Boy Scouts Win Oregon Case

The Oregon Supreme Court last week reversed a lower court ruling on whether allowing the Boy Scouts to recruit in public schools constitutes unlawful discrimination (see the court's ruling here). It was a fairly technical ruling based upon a narrow reading of Oregon law prohibiting discrimination by public school districts. But that hasn't stopped the Boy Scouts and their supporters from exaggerating and distorting the nature of the decision. In particular, they seem to want this case to mean that scouts must be given access to recruit in schools. The BSALegal site, for example, says:

"Giving Boy Scouts equal access is not discrimination," said Scouting spokesperson Robert H. Bork, Jr., "it is the law."

"The First Amendment and two federal statues require that Boy Scouts be given the same access to school facilities as other youth or community organizations," said Boy Scouts' attorney George A. Davidson.

LIkewise, Jay at STACLU, writes:

This is a ridiculous lawsuit in the first place. I feel bad for the judges that had to listen to the arguments in this one. It seems to me that it was a "no duh" equal access case, and the Oregon Supreme Court came to the same conclusion.

This is quite a bad misreading of the ruling. This case, in fact, had nothing to do with equal access. That phrase appears nowhere in the ruling for good reason. The case was not about whether schools had to allow the Scouts access to recruit, but only whether doing so amounts to discrimination or not. Indeed, the Court went out of its way to clearly state what the case did and did not deal with:

Before we turn to our analysis here, it is important to emphasize what is involved in this case and what is not. Plaintiffs in this case do not contend that the school district's actions as described above violate constitutional or statutory bans on the establishment of religion. Neither does this case concern whether the school district should allow the Boy Scouts or any other organization to recruit members during the lunch period at an elementary school. Instead, the only issue before this court is whether the facts surrounding the school district's conduct amounts to "discrimination," as that term is defined in ORS 659.850, by a public school or school district.

Despite that clear statement, the BSA and STACLU seems to insist on distorting the meaning of the ruling. In addition to that, there are several obvious reasons why this not a "no duh equal access case" as Jay calims. First, the Equal Access Act only applies to secondary schools, not elementary schools; this case involved an elementary school. Second, the EAA only deals with equal access to the use of school facilities by "any students who wish to conduct a meeting within that limited open forum." It deals with student groups using facilities for their meetings, not with outside groups recruiting during the school day.

There are, of course, equal access court cases that do not deal specifically with the Equal Access Act. The most obvious are Good News Club and Lamb's Chapel. But those cases dealt with whether the school must rent facilities to outside religious groups to hold meetings after regular school hours (and correctly answered "yes", they must treat religious groups the same as they do non-religious groups in that context), not with whether a group had to be given access to recruit members during the school day. So no, this was not an equal access case at all; the EAA and the various Federal equal access cases are pretty much irrelevant here.

Nor does this case really affect the other cases going on involving the Boy Scouts (the Sea Scouts case in California or the 7th circuit case involving mandatory Pentagon support for the Boy Scout Jamboree). The question of whether it is discriminatory to allow the Boy Scouts to recruit in schools is an entirely different legal question than either whether the government can give special support to a group that discriminates (which is the question in the 7th circuit case) or whether the government has to give a generally applicable benefit to a group that discriminates (which is the question in the Sea Scouts case). Just more of the sloppy thinking we've come to expect from STACLU


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I may be wrong (I wouldn't be surprised if I was totally wrong), but let me engage in a little reductio ad absurdum here. Does the court's decision imply that the Klan could come into a school as a "pro-American community youth group" as long as it recruits all students regardless of color and doesn't mention that the black, latino, asian and Native American students would not be eligible to join? Could the Klan could argue that there is no discrimination on school grounds and that any discrimination occurs off school property and outside the purview of the school board?

By justawriter (not verified) on 11 Sep 2006 #permalink

My guess would be that no court would accept that argument given the history of the Klan as essentially a terrorist group.


I've written about it many times here. Yes, it's for real, but it's another one of those loony bills that may pass the House but will likely die in the Senate.

Ah, but looking at the Klan's history is going outside of the reasoning of this decision. If it helps, change Klan to Conservative Citizens Council or some other nominally legal group that says its purpose is "pro-America" but uses that wording as a synonym for racial supremacy.

By justawriter (not verified) on 11 Sep 2006 #permalink

No outside group has a right to come into a school to address the students; some may be allowed in by the school administration. The question here was whether one of the allowed groups should have been.

As I understand the case, it's a bit of a stretch. The reasoning appears to be, "The scouts are a quasi-religious group, some of whose Associations ban athiest kids from membership, therefore it is an extension of that discrimination for little Johnny to be forced to sit through the presentation." At most, there is a slight establishment clause issue.

Having grown up an atheist in an area where every single assembly, ballgame, or meal was accompanied by loud public prayers, this just doesn't seem like much of an imposition. Especially where religion was not mentioned in the program, but would only be implicated in the hypothetical situation where young Johnny Atheist tries to join the scouts and is rejected, hopelessly crushing his young ego and turning him to a life of PZ Myersesque religion-bashing.

One last point is that my brothers and sisters were all involved in scouts, even though everyone knew we were the neighborhood atheists. Maybe the 1970s were simpler times, but it just wasn't an issue. Good thing we are all heterosexual, though. :D