Powell v. Portland Public School District & Stan Bunn, Superintendent of Public Instruction
The Powell cases began when the Portland school district allowed the Boy Scouts, a self-described religious organization that discriminates based on religious belief and sexual orientation, to recruit in the schools during class time. After being exposed to one of these recruitments, Remington Powell asked his mother about the group and found out that as an atheist, he would not be able to join the Boy Scouts. The Powells felt that this school
-sponsored recruitment was an unacceptable violation of the separation between religion and government, and appealed to the principal, the school board, and the superintendent to end the recruitment. After school authorities denied any wrong doing, Powell contacted the ACLU, who agreed to represent the Powells in court.
Two suits were filed by the ACLU in this case, and were finally settled after ten years of struggle against religious discrimination in the Portland Public Schools. The final order from the Oregon Supreme Court can be viewed here.
October 15, 1996: During school hours, a Boy Scout troop leader is allowed to speak to Harvey Scott Elementary school students, encouraging them to join the Boy Scouts. Troop leader and school employees put wrist bracelet on Remington Powell and instruct him to wear it home and ask his parents to read it. The bracelet says "Come
Join Cub Scout Pack 16! Round-Up for New Cub Scouts for Boys in Grades 1-5...Scott Elementary School." The bracelet, similar to the type used in hospitals, is only removable by cutting off with scissors.
October, 1996: Knowing that the Boy Scouts bar membership to atheists, and that Remington, an atheist, will not be able to join the
Cub Scouts, Remington's mother, Nancy Powell speaks to Harvey Scott principal and his supervisor. She asks them not to let the Boy Scouts recruit in the school during school hours because the Boy Scouts bars admission to all children who are atheists. She is ignored.
April 8, 1997: Portland Public School District spokesperson Lew
Frederick speaks to an open meeting at the Atheist Community Center of Oregon. At that time, he stated that the school employee who helped the Boy Scout troop leader put on wrist bracelets was not to do that and the Boy Scouts had been told not to do that again.
April 10, 1997: Nancy Powell attends the Portland School Board
meeting. She provides each school board member a notebook, documenting Boy Scout policy barring atheists, the events that have occurred at Harvey Scott and a copy of the Portland District rules barring activities at school that bar admission based on religion (PPSD Rule 3.30.020(9)). She asks for the opportunity to speak before the Board.
June 25, 1997: Nancy Powell writes the school board asking for a response and requesting again that they not allow the Boy Scouts to recruit during school hours because of their discriminatory religious policy.
August 5, 1997: Having heard no response from the School District,
Nancy Powell files a complaint with Norma Paulus, Superintendent of Public Instruction under ORS 327.109 which prohibits public schools from sponsoring, financially supporting or being actively involved with religious activity. As part of her complaint, Nancy Powell files extensive documentation of the Boy Scout's policy discriminating against atheists.
August 20, 1997:
Portland District Superintendent Jack Bierwirth, also serving as the Senior Vice President of Outreach for the Boy Scouts, states before a television reporter that there are plenty of Scout leaders who have told Nancy Powell that her son would be perfectly welcome in their troops no matter what his belief. No Scout leader ever contacted Nancy Powell. Larry Otto, Scout Executive for the Cascade Pacific Council of the Boy Scouts later testifies that Jack
Bierwirth was not authorized to speak for the Boy Scouts and that any Scout leader who invited Remington Powell to join would be violating Boy Scout policy.
September 2, 1997: Portland District Superintendent Jack Bierwirth informs Nancy Powell that legal counsel reviewed her April submissions to the school board and determined that Boy Scout
recruitment activities do not violate the law.
September 30, 1997: Again during school hours, a Boy Scout troop leader is allowed to speak to Harvey Scott students, encouraging them to join the Boy Scouts. Students are once again offered wrist bracelets and the troop leader puts them on the children's wrists.
The principal stands by and watches. Remington is present but does not take a wristband because he now knows the Boy Scouts will not let him join.
March 20, 1998: State Superintendent Norma Paulus issues a "Finding of Preliminary Investigation" (authored by Greg McMurdo)
determining that there is no basis for Nancy Powell's complaint and dismisses it. The Superintendent makes no finding as to whether or not the Boy Scouts denies membership to atheists.
May 14, 1998: The American Civil Liberties Union of Oregon, through volunteer counsel, agrees to represent Nancy Powell and Remington
Powell and files a complaint in Multnomah County Circuit Court against the Portland Public School District for Declaratory and Injunctive relief. Plaintiffs ask the court to find that the School District's action of allowing the Boy Scouts to recruit in public schools during school hours amounts to unconstitutional support of a religious organization and also violates the religious freedom rights of Remington and Nancy Powell (Oregon Constitution, Article 1, sections 2, 3 and 5).
The complaint also requests a permanent injunction ordering the School District to cease its recruitment activities with the Boy Scouts during school hours. Plaintiffs seek no monetary damages.
Plaintiffs also appeal the "Finding of Preliminary Investigation" of the Superintendent of Public Instruction (Stan Bunn current
Superintendent of Public Instruction has been substituted for Norma Paulus, the former Superintendent) and ask the court to find that the School District's activities also violate the Oregon law prohibiting public schools from promoting religious activity (ORS 327.109).
November 25, 1999: Larry Otto, Executive of the Cascade Pacific
Council, Boy Scouts of America testifies under oath in a pre-trial deposition. He testifies that:
- The Boy Scouts bars membership to atheists and agnostics;
- Any boy who "refuse[s] to acknowledge a duty to God . . . cannot be a member";
- The Boy Scouts "will only partner with those people that recognize a duty to God;"
- The Boy Scouts "discriminate against atheists and people who do not believe in God."
The position of the Boy Scouts is that "Remington Powell, first-grade student, as an atheist, cannot grow up to be the best type of citizen;"
- Any "Scout leaders who would accept Remington Powell, knowing he was an atheist, knowing that his parents were atheists, they would be violating the rules of the Scouts."
December 1998 - February 1999:
Immediately after Larry Otto's deposition, Portland School District approaches plaintiffs to discuss settlement. Over the next three months, the School District postpones discussions while they await material from the Boy Scouts.
Local attorneys for the Boy Scouts of America enter into an oral agreement with the School District because they have a "joint
interest" to "preserve access for Boy Scout volunteers to deliver the message about scouting opportunities to Portland School District students."
The Boy Scouts of America agree to pay the School District's bills for defending this case and are currently paying the School District's legal bills (Oregonian, July 4, 1999; Willamette Week, August 18, 1999).
At the end of February after no substantive settlement discussions, the School District informs plaintiffs that there will be no further settlement discussions.
March 8-9, 1999: Lew Frederick, School District spokesperson, Joseph Williams, Principal at Harvey Scott, and Marc Abrams, School
Board member testify under oath in pre-trial depositions. Despite three years of documentation by Nancy Powell that the Boy Scouts bars membership to atheist and agnostic students (as well as the deposition of Larry Otto who testified unequivocally to the ban on atheists) none of the school district witnesses admits to any current knowledge about the bar on atheists in the Boy Scouts.
Lew Frederick, spokesperson for the School District who was charged
with representing School District policy on the Boy Scouts before community organizations, including at the Atheist Community Center almost a year before, testified that he is "not really aware of the Boy Scout policy regarding membership of atheists to Boy Scouts."
Joseph Williams, Harvey Scott Principal to whom Nancy Powell first complained in October 1996, testified that to this day he did not
"know whether the Boy Scouts allows atheists to become members."
Marc Abrams, school board member, to whom Nancy Powell presented documentation in April, 1997, and who as a School Board member participated in the decision to defend the School District practice, testified that the Boy Scout policy of banning membership to atheists "has been represented to me. I do not know that I have
that information except secondhand and hearsay."
April-June 1999: All parties move for summary judgment with the court, submitting memorandum, exhibits, and deposition excerpts.
The Boy Scouts of America files an amicus Curiae (friend of the court) brief on behalf of the School District asserting that its access to public school facilities should not be diminished because of its view on duty to God, arguing that "Religious speech is entitled to all the protection of the Free Speech Clause."
June 8, 1999:
The case is argued before Multnomah County Circuit Court Judge Joseph Ceniceros in cross-summary judgment motions. Judge Ceniceros determines that he will decide the case without a bench trial and takes the matter under advisement.
September 2, 1999: Judge Ceniceros issues a 5 page letter opinion granting both defendants their motions for summary judgment and
denying plaintiffs' motion for summary judgment. The court finds "most disturbing" that the Boy Scouts denies membership to boys who do not acknowledge the existence of God. The court does not examine the Oregon Constitutional provisions separately from the federal provisions, instead, adopting a federal constitutional analysis to the Oregon Constitution and limiting analysis to only Article 1, section 5 (making no reference to Article 1, sections 2 and 3). Under
a federal standard, the court determines that the Boy Scouts is not a religious organization and as a result, the School District does not violate the separation of church and state provisions under Article 1, sections 2, 3 and 5 of the Oregon Constitution.
October 21, 1999: Plaintiffs file their Notice of Appeal to the Oregon Court of Appeals
February 1999- May 2000: The parties participate in the Court of Appeals Settlement Program without success.
April 17, 2000: Harvey Scott Elementary School distributes the
Principal's Newsletter to all children, which includes an invitation for "all boys [in] grades 1-4" to attend a Cub Scout Open House at the Baptist Church. According to the announcement "The church is working closely with the local Scouting [sic] to establish a neighborhood Cub Scouting program."
April 26, 2000: Nancy and Remington Powell file a complaint of
discrimination under ORS 659.150 (prohibiting schools from discriminating on the basis of religion) with the school principal as required by School District rules. Nancy and Remington assert that this latest recruiting effort is part of a four year pattern and practice of discrimination by the School District beginning when Remington was first recruited by the school to join the Boy Scouts in 1996.
May 2000-July 2000: The District and the Powells proceed through a three-level school district complaint process with the 659.150 discrimination claim. After the principal rejects the claim, the Powells complain to the Director of Student Achievement and finally, Superintendent Ben Canada. The Powells submit expert testimony from both a child psychiatrist and psychologist. The experts testify
that elementary children believe that when school personnel and teachers distribute Boy Scout material, that the Boy Scouts is a school endorsed and sponsored activity. They further testify to the risk of serious negative effects of this recruitment because of the school's sponsorship and endorsement of an organization that bars children based on their religious belief or non-belief.
July 28, 2000: After a school board meeting, with a two-vote dissent, Portland Public School District Board votes to accept Superintendent Ben Canada's dismissal of Nancy and Remington's discrimination complaint.
August 2000: Nancy and Remington file an Appeal and Request for
Hearing to the Superintendent of Public Instruction alleging that the District's activities violate ORS 659.150. The matter is on-going.
December 22, 2000: Plaintiffs file their opening Brief before the Court of Appeals.
April 5, 2001:
Plantiffs filed a new lawsuit against the school district, claiming that public school assistance for Boy Scout recruitment violates state anti-discrimination statutes.
May 1, 2001: The Superintendent issues a Notice of Withdrawal of Order for Purpose of Reconsideration of his Opinion for the purposes
of reconsidering the scope of facts and legal analysis he applied.
July 2, 2001: The Superintendent issues an Amended Order having ignored some of the facts raised by Nancy and Remington Powell but still finds no evidence of discrimination.
August 11, 2001:
Nancy and Remington file an Amended Petition for Review.
September 2001: Defendants file Motions for Summary Judgment
November 9, 2001: The Court of Appeals hears argument on the
first Powell case, alleging violation of Article 1, sections 2, 3 and 5 of the Oregon Constitution. The matter is taken under advisement and a decision is pending.
December 3, 2001: Judge Ellen Rosenblum denies defendants their Motions for Summary Judgment and allows plaintiffs to a hearing to supplement the administrative record
December 12, 2001: Judge Ellen Rosenblum holds a hearing during which time Remington Powell testifies to his experience of discrimination by the school when it allowed the Boy Scouts to recruit him for membership. After closing arguments, the Judge holds that the Superintendent of Public Instruction "abused his discretion
in reaching the conclusion that there was insubstantial evidence of discrimination (on the basis of religion) in the record to warrant a contested case hearing." She remanded the case back to the Superintendent for further administrative proceedings, including attempted conciliation and, if not successful, a contested case hearing.
July 12, 2002:
Judge Ellen Rosenblum ordered state Superintendent Stan Bunn, the Oregon Department of Education and Portland Public Schools to pay $108,000 to the American Civil Liberties Union for handling the Powell case. Both defendants have appealed the decision to the state Court of Appeals.
December 11, 2002: The Oregon Court of Appeals ruled that public
schools can allow the Boy Scouts to recruit students during school hours without violating the Oregon Constitution's requirement for separation of church and state. This ruling will be appealed as the Powells' attorney said that she thinks odds are good the state Supreme Court will accept her appeal. The appeals court decision "says outright that this is ripe for review by Oregon Supreme Court," she said.
The second Powell lawsuit challenging the school recruitment on
different grounds - a state law forbidding discrimination in schools - is pending before the Court of Appeals. A lower court judge ruled that Portland schools illegally discriminated against atheists by allowing scout recruitment.
To view the decision (in HTML format), click here.
September 2003: The Oregon Supreme Court denied review of the Court of Appeals decision in Powell I. The decision of the Court of Appeals stands.
March 2, 2005: The Oregon Court of Appeals in Powell II issued a ruling that supports Nancy Powell's long-held assertion that the Portland School District engaged in unlawful discrimination against
her son, Remington, by allowing the Boy Scouts of America to recruit elementary school children during the school day, when the district knew or should have known that the Scouts discriminate.
September 8, 2006: The Oregon Supreme Court held that it is not illegal for discriminatory organizations to recruit students in public
school settings during school hours as long as the organization sanitizes its message, removing any mention that not all students can join.