Update on Broward County

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The following comes from the Ft. Lauderdale newspaper online.

 

Boy Scout groups moving from schools, disbanding after School Board threat

 

By BILL HIRSCHMAN Sun-Sentinel

Web-posted: 9:35 p.m. Mar. 12, 2001

 

More than half of Broward County's Boy Scout troops and Cub Scout packs have moved their meetings out of school buildings or disbanded rather than be evicted by the School Board over the Scouts' policy banning gays.

The South Florida Boy Scouts Council and the School Board will clash in a Miami courtroom today in what they believe is a precedent-setting case about the rights of governments and private organizations to control their own destinies.

The Scouts have asked the U.S. District Court for a preliminary injunction to block the board from refusing to let the Scouts meet on school property as of March 31.

Nearly 2,000 Scouts were meeting regularly in schools, and the council has representatives in most elementary and middle schools one night each fall to recruit.

But 22 of the 57 Boy Scout troops and Cub Scout packs using schools already have moved their meeting places, primarily to churches, said Jeffrie Herrmann, Scout executive.

Nine others, primarily in "high-risk neighborhoods," have disbanded in part because "tenuous leadership" was unable to deal with "the absolute chaos" caused by the controversy, he said Monday.

That figure is not typical of the number of troops that collapse during a normal year, Herrmann said.

School district officials have contended since September the Scouts' ban on gay members and leaders violated a nondiscrimination clause in their agreement to use school facilities.

The council's lead counsel has been Miami attorney Sharon Kegerreis. But she said Monday the national organization also was bringing in George Davidson to argue at the 4:30 p.m. hearing in Miami before Judge Donald Middlebrooks.

Davidson was the Scouts' attorney who won the Dale case before the U.S. Supreme Court last year. The high court held that the Scouts' rights as a private organization to hold any belief superseded a New Jersey law that forbids discrimination by a group seemingly open to the public.

But that does not address whether the Scouts can be banned from public facilities.

The Scouts say the school district is unfairly choosing which groups to ban; the district agues that the Scouts breached a binding contract not to discriminate.

The Broward School Board voted Nov. 14 to evict the Scouts in 30 days, then agreed to an extension so that both sides would have time to develop legal arguments.

The Scouts' lawsuit filed Dec. 4 claimed the district is violating the First and Fourteenth Amendments to the U.S. Constitution by denying Scouts the right of free expression and the right of equal access to public facilities.

The Scouts claim the district's policy is so broad it outlaws any group that targets a particular age or sex or belief system, including Brownies, boys' choirs and church groups, none of which are being evicted.

But School Board Attorney Ed Marko has argued that while those groups may target certain people as members, they don't refuse to serve them.

Superintendent Frank Till has repeatedly said he also would recommend evicting other groups that discriminate.

But Kegerreis has said the School Board members were aware that other groups discriminated when they voted to evict the Scouts, but took no action against them.

 

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Further update from Fort Lauderdale Sun Sentinel

 

Lawyers argue KKK ruling means Boy Scouts should be allowed to use schools

 

By BILL HIRSCHMAN Sun-Sentinel

Web-posted: 10:24 p.m. Mar. 13, 2001

 

The constitutional question of whether the Boy Scouts will be evicted from Broward County schools because the organization bans homosexuals hinges on the Scouts' similarities to the Knights of the Ku Klux Klan.

Attorneys for both sides as well as a federal judge spent much of an injunction hearing on Tuesday discussing whether the Scouts had the same legal standing as the KKK when the Klan won its legal battle to hold a rally in a Louisiana school.

"You don't lose your rights because you're more popular than the KKK," argued attorney George Davidson, representing the South Florida Council of the Boy Scouts of America.

U.S. District Judge Donald Middlebrooks postponed deciding whether to block the School Board after the 100-minute hearing in Miami. He said he would rule before the Scouts' contract with the board for meeting space expires on March 30.

But Middlebrooks did cast doubt on the school district's case when he said, "It looks like you're targeting speech in a public forum that is (supposed) to be open to all comers."

Citing a school pool used in a baptism, Middlebrooks said, "If you can have a christening and these other things, I don't see how you can keep them out."

At its heart, the battle is between the Scouts' right to act on their beliefs by limiting their membership and the School Board's right to pursue its mission to teach children that discrimination is wrong, attorneys argued.

"What is happening here is that 70 schools are being used to send the wrong message several times a week," said Bruce Rogow, an attorney for the school district.

The Scouts contend that thinking constitutes "viewpoint discrimination," evicting the Scouts because of their national policy banning gay members and leaders -- a concept upheld by the U.S. Supreme Court last summer.

The School Board agrees the policy is the problem. Board members voted Nov. 14 to evict 57 troops and packs because the Scouts agreed not to discriminate in their contract for meeting space.

The Scouts sued Dec. 4, claiming the district is violating the First and Fourteenth amendments by denying the organization equal access to public resources and the right to express itself freely.

The collision of those rights earned national attention including jokes on talk shows, a friend of the court brief from a conservative California activist group, and hundreds of letters and e-mails to board members from around the country.

The freedom-of-speech issue led Davidson to lean heavily on the 1978 case of the Knights of the Ku Klux Klan vs. the East Baton Rouge Parish Schools, in which the Supreme Court forced the district to allow the Klan to meet on its grounds. The court ruled that if a school district was going to allow groups to use its resources, the district could not discriminate based on opinions or beliefs held by the group.

But Rogow tried to distance the Scouts from the Klan. He said the Klan's meeting was a one-time rally, not like Broward's ongoing relationship, which philosophically endorses the Scouts by letting them use scores of schools hundreds of times each year.

Rogow also argued that the Klan differed from the Scouts because the very people who would be banned by the Scouts would be children who used the schools during the day.

The other key argument centered on whether the Scouts were being singled out, because the district had not tried to evict other groups using school buildings.

Davidson argued that other groups that use the schools discriminate by targeting particular members. He cited the Girl Scouts, the Urban League and a Seventh-Day Adventist church that conducted a 21-day revival.

"The word discrimination has no meaning for (school officials), " Davidson said. "Even Inspector Clouseau could have found dozens of cases" of discrimination.

But Rogow countered with a federal law that says volunteer youth organizations can legally limit membership by age and gender, specifically the Boy Scouts and Girl Scouts. His briefs also noted that the religious groups welcome visitors as possible converts, and the Urban League accepts members of any race.

The case took a last-minute left turn in court when both sides abandoned a huge chunk of the arguments they had based their case on.

The school district had contended that the Scouts waived their rights when they freely signed the promise not to discriminate. Then they broke the contract, giving them no legal grounds at all to sue.

Davidson said no one expected the Scouts to live up to the nondiscrimination clause because everyone knew it conflicted with the Scouts' policy and because it had never been enforced against anyone else.

Both sides were poised to fight the issue Tuesday when the Scouts suddenly announced that they were simply assuming the contract was now void.

The issue for the court now, Davidson argued, was whether the district has the right in the future to bar the Scouts from using the schools.

Until December, 57 Boy Scout troops and Cub Scout packs -- about 1,985 boys -- met in schools. Since then, nine troops have dissolved, and 22 have moved rather than be evicted.

Although the South Florida Council serves at least another 7,000 boys in troops meeting elsewhere, the freedom of expression issue affects every Scout in the country, said Scout Executive Jeffrie Herrmann.

"This case has arisen solely because the superintendent and School Board disagree with the message and mission of the Boy Scouts," he said.

But the school district contends in its brief that its nondiscrimination policy is "designed to eliminate hate and discord in order to further the equal treatment of all citizens."

Bill Hirschman can be reached at 954-356-4513 or bhirschman @sun-sentinel.com