Sunday, September 10, 2006

OSC Shrugs off Boy Scout Recruitment Discrimination

It was a notable week for the Oregon court systems; two fairly major rulings came down on two very different cases that both turned on the First Amendment to the US Constitution. Tomorrow I'll report on the national story with a local angle: you'll be able to read plaintiff legal team member Ashlee Albies' exclusive comments on the al-Haramain trial--the only NSA wiretapping case in the country where there is actual evidence in court that would prove unwarranted surveillance occurred. But today we'll talk about the local story with national implications--what evolved into Nancy Powell v Boy Scouts of America, but which was officially known as REMINGTON POWELL v. STAN BUNN, Superintendent of Public Instruction, OREGON DEPARTMENT OF EDUCATION.

It was 10 long years ago that seven year old Remington was recruited during lunch at Harvey Scott Elementary in Portland, by the Boy Scouts. He remembers being wristbanded, and that his mother gave the principal an "evil glare" when Remington was forced to receive the lunchtime pitch. Superintendent Bunn said he saw no discrimination when BSA told all kids they could join, of course only to let them know if they DID decide to join that they had to be a theist of some kind. That decision was appealed to Circuit Court, which found that the superintendent had abused his discretion and remanded it back to him to reconsider. The Appeals Court grudgingly upheld the Circuit Court decision, and so here we were, en banc in front of the Oregon Supremes.

In a ruling that was unanimous save the principled Rives Kistler's dissent, the Court drew an extremely narrow definition of "discrimination" and concentrated on whether the elementary school was doing the discriminating, or was "on duty" when discrimination occurred. Since it was the BSA and not Scott who discriminated, that was strike one. Strike two for the Court was that all the kids got the same treatment at least while in was only later that they got discriminated against, on their own time. And since the case is the legal matter of the superintendent's conduct, the school's liability was found to extend only to what literally happened on school grounds, and who was actually doing it.

To which Kistler and I say rubbish. Utter rubbush. What the ruling does is exempt school officials from having any social responsibility or need to consider context in making these kinds of decisions. The Boy Scouts knew they wouldn't take the godless, and the schools also knew it (or should have). Whether the school in this case specifically knew that the Boy Scouts were lying to the kids or not, as a generality it was known that BSA was not a general-public sort of club, because they did exercise their right to exclude gays and--in this case--atheists.

I relunctantly agree that BSA has the right to exclude those kids if they want. I have the right to ignore them when they come for my child, and for them not to be given state imprimatur by holding captive audience recruitment drives along with the nuggets and tater tots. They are not ROTC; the military makes a much stronger case for their presence on state-funded campuses. This is a homophobic, theist club trading on a reputation that remains largely unexplored by the body popular despite some disturbing events that may call into question their status as a community good neighbor.

What if the Klan came to schools to recruit, and told the kids that everyone was welcome at a fun rally in two weeks, and gave kids a wristband to remind them? Except, everyone--including the school officials--knew that any minority, jewish or gay kids who showed up at the meeting got whipped while the white kids got ice cream. Would you hold the school liable for sponsoring time at lunch on the Klan's next recruitment drive? Of course you would.

Atheists and gays don't get whipped by the Boy Scouts (hopefully), they just get rejected after being told in school they were welcome. It's not the size of the discriminatory punishment; what happens to the "bad" kids is irrelevant. The point is that the school knows that the Scouts are not there for any kid to join, and to offer them time--especially under the initial guise that all children may benefit from their presentation--is to implicitly endorse that practice. The bottom line is that the Boy Scouts are a discriminatory organization, and just because they have the right to be so, does not mean that government-based institutions have to embrace or even tolerate them--and to offer BSA time when students must be in school is to strongly endorse the credibility of BSA.

Lest you think that I expand the school's liability too far, here's Kistler:
...according to the majority, the discrimination occurred only at a later time, apart from any school activity. The majority's conclusion is difficult to square with the statutory definition of discrimination. That definition is not limited to overt acts of discrimination that occur in a public school program, service, or activity, as the majority's opinion appears to assume; it also includes "any act that is fair in form but discriminatory in operation." ORS 659.580(1). That definition assumes that an act that occurs in a public school program, service, or activity may appear neutral when made. It also recognizes that that apparently neutral act may turn out to be discriminatory in operation. [emph mine]
Kistler points out that school officials not only may, but must include contextual information in their decision, and specifically with regard to whether the acts promoted or endorsed are eventually discriminatory in nature. Clearly in the case of the Boy Scouts they were, and thus the school is on the hook.

It's important to make a strong legal argument for why this ruling is a bunch of hooey, but there's a far simpler test: it's a ridiculous hair-splitter. Like I said, it's a fairly obvious construct--the Scouts discriminate, and the school winked at it. Creating a shield that encourages officials to turn off their brains in order to be safe on the establishment clause, does no one in Oregon (and beyond) any damn good. What's saddest is that this ruling comes long after schools in Oregon modified their policies towards accepting the Scouts:
The Portland public schools no longer allow groups to conduct the kind of recruiting the Powells objected to, said General Counsel Jollee Patterson. Access is limited to groups that offer services to students, and such groups are permitted only to distribute leaflets and brochures, she said.
The public has taken the lead, and BSA (along with other niche-groups) is given far less free reign in schools than they used to. It's OSC that's behind the curve, rational to a fault and slow on the uptake.