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Discrimination in Schools?

The Boy Scouts and discrimination: be prepared!1

Martin Thompson, of Annapolis, Maryland, was eight years old when he attended his first school board meeting in the fall of 2000. He had a question: Why did the school board allow the Boy Scouts to meet at his school? Martin was too shy to speak into the microphone, so his father read aloud what he had written: "I don't want the Boy Scouts to come to my school because my school allows everyone to come. ... But not everyone is allowed in the Boy Scouts.".

This simple truth--that not everyone is allowed in the Boy Scouts--has put schools across the country in the uncomfortable position of choosing between their nondiscrimination policies and their 90-year affiliation with the Scouts.

Plaintiffs have been attacking that affiliation since 1998, when the California Supreme Court ruled that the Scouts, as a private organization, had the right to keep atheists and gays from becoming members of their organization. But most communities didn't come to grips with the implications for schools until the summer of 2000, when the U.S. Supreme Court decided, in a case titled Boy Scouts of America v. Dale, that the Boy Scouts had the right to dismiss James Dale as an assistant Scout leader because he is gay.

These court decisions are forcing school districts to answer some serious questions about their relationship with the Boy Scouts: Should public schools sponsor the Scouts? Should schools continue to give Scouts special treatment? And should Scouts be allowed to meet in public school buildings? These are questions which must be answered carefully, school attorneys advise, because plaintiffs are suing--or looking for reasons to sue--on each of these points.

For the record, these questions do not apply to the Girl Scouts, which is a separate organization that, along with several other youth groups, filed an amicus curiae brief with the Supreme Court on Dale's behalf. So go ahead and enjoy your Thin Mint cookies, without fear of subpoena. But when it comes to Boy Scouts, be prepared.

Boy Scouts are unlike other youth groups in that each troop requires a sponsor or chartering organization. Just because a troop meets in a school does not mean the troop is sponsored by the school. Most troops are sponsored by a church, a PTA, or a civic organization; only about 10% are sponsored by schools, according to Gregg Shields, spokesman at the Boy Scouts national headquarters in Irving, Texas.

Sponsoring a Scout troop can put schools on thin legal ice. Julie Underwood, who is general counsel for the National School Boards Association, advises districts to check their state laws. "If you have a state statute that prohibits discrimination on the basis of sexual orientation," she says, "you can't sponsor a Boy Scout troop.".

ANTI-GAY DISCONNECT
New York and Minneapolis were among the first districts after Dale to recognize that they needed to get out of the sponsoring business. The Minneapolis board saw the disconnect between its anti-discrimination policy (which includes sexual orientation) and the Boy Scouts' ban on gay leaders.

This was clearly unacceptable, according to then-board chair Judy Farmer, because the district sponsored and paid the leaders of 15 troops in inner-city schools. The district gave the troops until December 31, 2000, to find new sponsors and leaders but allowed them (and other troops not sponsored by the district) to continue meeting in school buildings on the same basis as other community organizations.

The board voted on the Scout issue in October, which was less than a month before voters decided on a $320 million school levy. "We were in the middle of a referendum campaign, so we were obviously concerned about how the Boy Scout issue would affect the vote," Farmer says. "But many people said that, even though they disagreed with us on this, they weren't going to take it out on the kids." The referendum passed.

Most of the criticism, Farmer notes, came from out-of-towners. After the Scout vote, "I started getting e-mail from all over the country against what we had done," she says. "I'm pretty sure there was an organized national effort by more conservative groups. I was hearing from Montana, California, Texas."

DIFFERENT TACK
Nearby Saint Paul has taken a different tack with the Scouts. Even before Dale, the Indianhead Council that serves Saint Paul Scout troops had asked the school district for diversity training that dealt specifically with issues of sexual orientation. The district provided it and continues to sponsor several troops in its schools.

Kent York, Indianhead's director of communications, says the council is concerned about the behavior, rather than the sexual orientation, of leaders. "The fact that an individual might have a partner, versus a husband or a wife, would not become an issue, and we as a local council would not intervene and dismiss that leader," he says. But a person who takes a Playboy magazine to a meeting and holds it up and says, 'OK, boys, to be a real man, you have to bed a different woman every night -- that leader would be out immediately.".

The national council of the Boy Scouts has yanked the charters of several troops whose sponsoring organizations said they did not accept the ban on gay leaders. And gay-rights organizations are not satisfied with local troops' renouncing the national organization's policy.

"Even if a local or regional is trying to do the right thing, ... these locals and regionals still pay dues to the national organization," says David S. Buckel, senior staff attorney at Lambda Legal Defense in New York. "So kids are taking money out of their pockets to pay dues to a national anti-gay organization. Schools have to be very concerned about any association at all with that kind of discrimination."

Lambda has been working with school districts across the country, encouraging them to disassociate themselves from the Scouts. So far, Buckel says, the schools they've contacted "have either pulled out or are in the process of pulling out. ... A lot of it is just an informational problem. When schools are aware that they are associated with discrimination that is unlawful, they consistently do the right thing.

And if they don't? "If a school continues to sponsor a troop--which means the school itself is chartered to run its troop--we are very eager to change the school's mind, because it is sponsoring discrimination and violating the law," says Buckel. "And we would most certainly consider litigation if the school board felt as if it wanted to continue its discrimination.".

Favoritism is another route which can lead to trouble. In 1997, Harvey Scott Elementary School in Portland, Oregon, sent boys home with wristbands telling their parents how to sign up for Cub Scouts. When Nancy Powell--an atheist and the president of the PTA--spotted the message on her son's wrist, she was outraged.

Powell knew that the Scouts required an oath to God. So she asked the Portland school board to stop letting the Scouts recruit new members at school. The board refused, and Powell sued. A Multnomah Circuit judge sided with the district, and Powell has taken the case to the Oregon Court of Appeals.

Schools across the country routinely give Scouts special access to students. Before the Minneapolis school board changed its policy, the superintendent was on the local Boy Scout council, and teachers made a point of encouraging boys to join the Scouts. Elsewhere, it's not unusual for Boy (and Girl) Scouts to pitch sign-up tables at back-to-school nights or be granted access to the school gym on Saturday mornings. And who knows how many teachers have helped in the construction of Pinewood Derby cars--or how many Cub Scout troops have cleaned up school playgrounds?

"It's not just that we want access to schools in order to hand out fliers," says York. "We want to be partners with schools."

UNACCEPTABLE
But the Scouts' declared national positions on atheism and homosexuality make such partnerships unacceptable to many groups. "Given the harm to students," Buckel says, "we would have to look at the potential for litigation if a school persisted in extending special rights to a discriminatory group.".

Fear of lawsuits need not remove Scouts entirely from schools, however. Attorneys say that savvy districts may allow Scouts to publicize their programs, along with other youth groups, in take-home packets and at activities fairs.

Even so, some board members are beginning to worry about the Scout presence in their buildings. If Nancy Powell were to come before the Portland board today, board member Marc Abrams says he would probably vote against allowing the Boy Scouts access to students. "I think the Boy Scouts should be told that, as long as they discriminate, we don't want them on our property," he says.

Those who may be thinking of banning meetings will need to watch their flank. In November 2000, the Broward County, Florida, school board made the decision that 57 Boy Scout and Cub Scout troops could no longer hold meetings in district buildings. The reason, according to assistant board attorney Marylin Batista, is that Scout officials had violated a 1998 agreement which they had signed, stating that organizations using district buildings could not discriminate on the basis of age, race, color, disability, gender, marital status, national origin, religion, or sexual orientation.

The Scouts responded to the eviction by filing a lawsuit against the school board. "In Broward County, the facilities are being used by religions, by community groups who have opinions," says Shields. "So why can't the Boy Scouts use the same facilities under the same ground rules?".

Attorneys say the difference is that other groups are self-selecting--that is, the Christian groups remain open to atheists, even though atheists probably don't want to join. The Boy Scouts, on the other hand, have spent a decade in courtrooms establishing the right to keep some people out.

Other districts have to wonder whether evicting the Boy Scouts would land them in court as well. Shields refuses to say whether the Scouts plan more lawsuits. "Never tip your legal hand," he says, with a laugh.

Meanwhile, North Carolina's Chapel Hill-Carrboro school board has charged ahead, voting unanimously to stop sponsoring troops, sending home Boy Scout fliers, and allowing troops to meet rent-free in district buildings. "The Boy Scout organizations are on notice that they're going to have to find other places to meet, or they're going to have to pay," says board attorney John McCormick.

The board said it was enforcing its "multicultural policy," which prohibits discrimination against homosexuals and other minorities. Still, board members hated to kick the Scouts out and asked McCormick whether the Scouts could stay in the schools if the local council signed a statement saying it would not discriminate.

"I said that was a legally defensible position, from the board's point of view," McCormick says. "But I also encouraged them to think about this in different terms: They had created this policy that put ... sexual-orientation discrimination in the same category as race discrimination. Would we actually be sitting here and talking about accommodating an organization whose national policy was racial discrimination?" The board decided to end its close association with the Scouts.

But many, if not most, school boards apparently want to keep the Boy Scout connection. When the National School Boards Association's American School Board Journal asked its readers in February 2001 whether the Boy Scouts should be allowed to meet in schools, more than 95% of the respondents said yes.

WHO TRUMPS WHAT?
To many, banning the Boy Scouts seems unthinkable, un-American. It's definitely un-Californian: That state's law requires schools to make meeting space available, when an alternative location is not available, for youth groups, specifically naming the Boy Scouts as an example of an organization that should be made welcome.

But what if a California district also has a policy that includes sexual orientation? John Bukey, the general counsel of the California School Boards Association, says he couldn't offer an opinion: "There would have to be a determination as to who trumps what."

In the end, the decision about whether to let the Boy Scouts meet in public schools comes down to a question of access. And the answer depends on a combination of state laws and individual district policies, with no "one-size-fits-all" answer.

The federal Equal Access Act--which says school districts cannot discriminate against student-run clubs on the basis of content--applies only to secondary schools, not to elementary schools, where the question of Scout meetings most often comes up. But even if the Equal Access Act doesn't apply, the First Amendment does. "Allowing the Boy Scouts in or not allowing the Boy Scouts in, just because you agree or disagree with that particular group, runs afoul of the First Amendment," warns Underwood, at the National School Boards Association.

The key, she says, is to ask: "What do you do for other organizations? You can't treat Scouts differently, and you can't engage in any kind of viewpoint discrimination.".

But if your school district's policies prohibit discrimination on the basis of religion or sexual orientation--and if you non-discrimination policy extends to groups using the school buildings--then the Boy Scouts might be out. No sponsorships, no special treatment, no meetings at the school. "If you have an anti-discrimination policy ...," says Underwood, "you have to abide by it.".

1The above article originally appeared in Education Digest (Jones, Rebecca. "The Boy Scouts and discrimination: be prepared!" The Education Digest 67, no. 1 (2001): 62-67.). It was condensed from the American School Board Journal (V.188,  April 2001, 34-37). The author, Rebecca Jones (rjones@nsba.org) is Senior Editor, American School Board Journal.
 

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