Important precedent in Broward County

[eisely]

In prior posts I put up articles about the situation in Broward County where the local school district was seeking to disallow usage of school facilities by the scouts because of the policy on homosexuality. The scouts won an important victory in court Wednesday. Concerned scouters should be aware of this case in the event the issue surfaces in your area. Unfortunately the local district now plans to charge for the use of the facilities in that jurisdiction, and they may be able to do that. Nevertheless the precedent was established in Federal District Court and is an important one.

 

Schools can't bar Scouts over gays

 

By BILL HIRSCHMAN

and TAMIKA SIMMONS Education Writers

Posted March 22 2001

 

 

 

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The Broward School District can't stop the Boy Scouts from meeting in schools just because the district disagrees with the Scouts' ban on gay leaders and members, a federal judge ruled on Wednesday.

 

But the legal victory does not mean Scout troops will continue to meet in schools. That's because the district plans to charge a fee -- which the Scouts may be unwilling or unable to pay.

 

The ruling did not address the fee issue. Now, the Scouts meet for free in the schools, a deal that expires March 30.

 

Consequently, the Scouts will be required to reapply for leases at each school and pay for the meeting space, said Superintendent Frank Till.

 

And what if leases haven't been executed by March 30?

 

"They won't meet anymore," Till said. "It will be their call. ... We'll become landlords to them and we will charge them the same as any other organization that would rent from us -- no more, no less."

 

That may pose a serious financial problem for nearly 2,000 Boy Scouts and Cub Scouts who were meeting in the schools this winter, said Jeffrie Herrmann, Scout executive for the South Florida Council.

 

"Clearly we would be unprepared for that now," he said. Parents and Scout leaders will have to decide whether to pay.

 

In a battle that received national attention, U.S. District Judge Donald Middlebrooks upheld the Scouts' contention that the School Board was interfering with its First Amendment right to act on its beliefs.

 

"The constitutional rights to freedom of speech or expression are not shed at the schoolhouse gate," wrote Middlebrooks.

 

The School Board countered that governments do not have to provide a forum for groups to spread a message that the school district finds abhorrent.

 

"This wasn't about [restricting] personal beliefs," Till said. "It was about a philosophy and policy of our School Board not to enter into partnership agreement with organizations that do not serve all of our students."

 

Herrmann said the victory "allows us to continue our mission of providing character-building experiences for young people, which has been our chartered purpose since our founding nine decades ago."

 

Herrmann, who testified that his council never had cause to eject a gay member in 20 years, reiterated Wednesday that the Boy Scouts make no effort to learn the sexual orientation of anybody.

 

"Scouting has never sought to impose its values on anyone. We welcome all who share them and we respect the right of others to walk a different path," he said.

 

The ruling hands the Scouts its second triumph in 10 months in its battle across the country to preserve a policy prohibiting homosexual leaders and members. The U.S. Supreme Court ruled in June that New Jersey's antidiscrimination law could not force the Scouts to keep an openly gay leader.

 

Middlebrooks' ruling granted the Scouts a preliminary injunction that was originally designed to keep the troops from being tossed out on March 30.

 

But the Scouts conceded in court March 13 that the School Board had the right in November to revoke their five-year deal giving free meeting space districtwide. The School Board contended that the Scouts' policy on gay members violated a non-discrimination clause in the contract.

 

Wednesday's ruling essentially bars the School Board from rejecting the Scouts' future application for leases.

 

"The Boy Scouts and the School Board have reached an impasse over a divisive question, whether homosexuality is a matter of private sexual orientation that should be protected against discrimination or whether it is immoral conduct inconsistent with the values of being morally straight and clean," a quote from the Boy Scout Promise, Middlebrooks wrote.

 

To answer that, Middlebrooks cited the case that the Scouts relied heavily on, Knights of the Ku Klux Klan vs. the East Baton Rouge Parish School Board.

 

In that 1978 case, the Supreme Court forced the district to allow the Klan to meet on its grounds. The court held that if a school district was going to allow groups to use its facilities, it could not discriminate based on opinions or beliefs held by the group.

 

The school district's attorney, Bruce Rogow, argued that the district should not allow a group to use the schools if it would exclude students who sat in the same classrooms earlier in the day.

 

Middlebrooks responded, "The emotional hurt that such an event could cause may be a reason for the Boy Scouts to reconsider their policy. But the hurt of exclusion may be a reason for parents and young men to disassociate themselves from participation in Scouting. It may also be a reason for the Boy Scouts to reconsider their policy. But the hurt of exclusion is part of the price paid for the freedom to associate."

 

Until December, 57 Boy Scout troops and Cub Scout packs -- about 1,985 boys -- met in Broward schools. Since then, nine troops have dissolved, and 22 have moved to churches and other buildings rather than be evicted March 30. The South Florida Council serves more than 7,000 other boys in troops meeting elsewhere.

 

A hearing for a permanent injunction is slated for later this year. "There may well be and could be an appeal," said School Board Chairman Paul Eichner, but it has to be a decision of the full board.

 

Middlebrooks' ruling did give the School Board one small victory: The district won't have to allow the Scouts to recruit one night a year in virtually every school in the district -- a decades-old tradition cemented in the old agreement.

 

"The board, in its disapproval of intolerance towards homosexuality, is free to fashion its own message," Middlebrooks wrote. "It need not assist the Boy Scouts in the solicitation of members ... or any other affirmative acts to enhance the involvement of this group in the schools."

 

Conservatives cheered the decision, especially the Pacific Legal Foundation, a Sacramento-based group that filed a friend-of-the-court brief.

 

"It's reassuring that the First Amendment applies to all persons in the United States including the Boy Scouts, which is not the way the Broward County School Board saw it," said Frank Shepherd, managing attorney of the group's Miami office.

 

"They were trying to besmirch the reputation of some 10,000 students. It took a United States district judge to teach these leaders of children this lesson of tolerance," Shepherd said.

 

Gay rights groups were disappointed.

 

Ray Rideout, co-chairman of the Gay, Lesbian and Straight Education Network, said he was sad that children are required to go to a school while groups that preach bigotry and discrimination are allowed to assemble there.

 

"It's sad when we make an example of our children," Rideout said. "When we practice discrimination, shame on us."

 

The complete ruling can be read on the Internet at www.netside.net/ usdcfls/publications/ casindex.html.

 

Staff Writers Toni Marshall and Madeline Baro Diaz contributed to this report.

 

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