Americans with Disabilities Act -- does it apply to High Adventure?

[Mike F]

We're preparing to go to Philmont this summer and have run into an explosive situation. We have a scout who has a mental/emotional disability which makes it very difficult for him to interact with other scouts and almost impossible to function as a member of a crew. We have allowed him to participate in shakedown activities with a prayer that he'll learn enough coping skills to make it, but it hasn't been going well. Now his father, a medical doctor, has told us that we must make allowances for him under the Americans with Disabilities Act.

 

I sure could use a definitive reference to back me up here before we become one of those unfortunate press stories...

All I can find is on http://www.scouting.org/nav/enter.jsp?s=ba.

"Scouts With Disabilities and Special Needs", under "Advancement." "This policy is designed to keep youth with disabilities and special needs as much in the mainstream as possible." But this mostly talks about alternative advancement programs. Other stuff on the same page talks about building programs to include everyone, but nowhere do I find a guarantee that every scout with every disability will have all of the same opportunities as every other scout. If this were true, we'd need a wheelchair ramp up Mt. Baldy.

 

I appreciate all the guidance on how to include and we've been trying, but now I could really use some official guidance on how to "exclude" when you must.

 

We'll start calling the local officials tomorrow, but I figured there's a good chance one of you will know where to point me. Help!

[Bob White]

Unfortunately for him, he is a doctor and not a laywer. He is incorrect. The BSA is a private organization and the ADA applies to employment, education and access to public properties and services.

 

You are not the chartered organization, you are not Philmont. He has nothing to sue you about. Philmont can exclude anyone from their high adventure area and activities whose physical condition poses a danger to themselves or others.

 

Contact your local council scout executive, he has access to the council's and national's legal division and they can correct the doctor's diagnosis.(This message has been edited by Bob White)

[Mike F]

Man, am I glad you're still up and on duty, Bob White!!

I can see a ray of sunlight through the storm clouds.

(And I really liked your analogies.)

[Proud Eagle]

Generally speaking, my understanding is that ADA only applies to public accommodations. Part of the basis for the Dale ruling was that BSA wasn't a place of public accommodation, as I understand it. Therefore there is little in the way of a legal argument on this issue.

 

Also, there is one very strong argument you could make. The safety of the group is a greater concern than allowing any one person to go. If the individual can not be relied upon to do what is required when it is required, that could jeopardize the safety of the entire crew, under certain circumstances. It would definitely have a negative impact on the experiences of the others if there was one member of the crew that could not carry his weight (literary or figuratively). As Mr. Spock said, "The good of the many outweighs the good of the few, or the one." (Of coarse, as Admiral Kirk later proved, there are times the opposite is true, but we won't get into that.)

[John-in-KC]

What the folks have said here matters, but we aren't where (physically) you are, and we don't have to deal with Doctor Dad. You do...

 

Call your Unit Commissioner. Ask to visit with the District Special Needs chair. That's a position on most larger District committees. If you are in a smaller Council, you may have to go to the Council special needs chair.

 

(This dovetails with Bob's advice to contact your DE or Council Executive, to ask for support from legal counsel).

 

Help IS available within your local Council. You do not have to stand up to a recalcitrant Dad on your own.

 

Properly equipped, you will be able to counter him, and his words will be bluster.

 

YIS John(This message has been edited by John-in-KC)(This message has been edited by John-in-KC)

[eisely]

I don't know if you have ever seen a Philmont health form, but there is an interesting point made in that form about mental health. Philmont does not see itself as an "outward bound" program providing therapy for troubled or emotionally disturbed youth. One has sympathy for the youth and the family, but there are limits.

[NJCubScouter]

ProudEagle says:

 

Part of the basis for the Dale ruling was that BSA wasn't a place of public accommodation, as I understand it.

 

Your understanding is not correct. The U.S. Supreme Court did not not decide whether the BSA is a "place of public accommodation." It did note in a footnote (footnote 3) that one federal court had found that it is not, under federal law, and that four state supreme courts had determined that it is not, under the laws of those states, and that one state supreme court had determined that it is, under the law of that state (that state being New Jersey, and the case being the New Jersey Supreme Court opinion in the Dale case.)

 

But the U.S. Supreme Court did not rule on whether the N.J. Supreme Court was correct in that finding. Rather, it assumed that that finding was a correct statement of New Jersey law. The U.S. Supreme Court then started moving into what the real issue in the case was, with the following sentence: "As the definition of "public accommodation" has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased."

 

See http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=99-699

 

I don't think that's going to come out as a link, but it can be put back together. See especially the paragraph of the majority opinion that includes footnotes 2 and 3, and those footnotes.

[Proud Eagle]

OK. Thanks for correcting the record on that. There are times my understanding of rulings (or just my memory of them) is a bit off.

 

Either way the safety issue should be of prime concern.

[Mike F]

Update.

 

Local council wasn't much help. They say it's up to the unit, but can't cite a reference that clearly gives us the authority to exclude if we decide that would be best. (This reference would sure be useful if anybody knows where to find it.)

 

I'm still trying to make contact with Philmont Director of Programs for some guidance. (Missed his return call this afternoon when I was on an airplane. Dang!)

 

I met tonight with parents, CC, and SM - I think it went as well as it could.

Lots of talking to clear up multiple misunderstandings.

 

Main point from parent's point of view: They want their child to have the opportunity to participate in such a wonderful experience as Philmont.

 

My main point: For their son, with his limitations, Philmont has the potential to be the worst nightmare of his life IF the rest of the crew doesn't accept him and resents him holding them back, helping carry his gear, doing his share of the work, etc. The adult advisors can only do so much to help avoid this and we can't control their emotions when they're getting tired during the daily grind. It's my job as the Trek Leader to make the judgment call on whether this is likely to be the case.

The situation is not without hope, but right now my judgment is that he is not equipped to be successful. The scout will continue to participate in our upcoming shakedown activities. We will do our best to coach him on what he needs to do and we will assess his performance.

 

Thanks for the thoughts. Wish us luck... -mike

[Bob White]

Whoa Mike, you just changed the original situation a little.

 

You really didn't talk about the "unit" restricting his involvement before. You asked about the ADA and how it relates to this event.

 

It is not for the unit to restrict the scout if he meets the requirements set for the others, even if he only meets them minimally.

 

Each application to Philmont is as an individual. It will be Philmont's decision whether or not to allow the scout on the trail. there is no need for you to place yourself or the unit in the middle of this problem.

 

If you have specific safety concerns for this scout I would share them with the parents and with Philemont. The reasons you give about the affect his participation may have on others is only a guess. helping him to achieve this challenge could actually be a very positive experience for the crew.

 

Prepare this scout as best you can and let the proper program level determine his fitness for the trek. At least that would be my suggestion.(This message has been edited by Bob White)

[Mike F]

Sorry, BW -- I've finally spoken directly to the Philmont Director of Program. To quote from the letter I'm holding in my hands, "Each group must carefully select participants that are capable of completing an Expedition."

 

Sorry about the confusion about who was doing the excluding - I thought I made that clear when I wrote "...we must make allowances for him under the ADA" and "I could use some guidance on how to exclude." It was because we have raised the specter of excluding this scout that caused the parents to start making what we understood to be a legal threat.

 

Per my discussion with the Director today, they expect the unit (or Council) trek leaders to screen out any participants that are not capable (in our assessment) of completing an expedition before they get to Philmont. Unfortunately, as the Trek Leader, there IS a need for me to place myself in the middle of this situation - it comes with the job.

 

I'm not guessing about his abilities (physical and social/emotional) - I have observed this scout for the last few years, including a 2-day Philmont shakedown hike this winter where he struggled on a 7-mile hike on mild terrain at low elevation. He has multiple diagnosed psychiatric disorders that severely affect his ability to relate to others - especially authority figures. I pray daily for some breakthrough that will give him some more effective coping skills, but I am also mindful of a quote from the official 2004 Philmont Planning Guide, "Experience demonstrates that psychological or emotional problems frequently become magnified, not lessened, when a participant is subjected to the physical and mental challenges of a trek at high elevation, carrying a heavy backpack of steep, rocky trails."

 

If - and it's a big IF - we can get the crew to rally around and support him, it might work and I agree they would all benefit. We owe it to him to do our best and I do believe in miracles. But I also have to prepare to make the tough call if I (and my other advisors) determine he's not ready at age 14 for this challenge.

 

Proud Eagle - thanks - I used some of your thoughts in meeting last night.

 

John-in-KC - thanks for the idea - I know both the Council Medical Advisor and Special Needs Chair and we're getting them involved to assist with our assessment.

 

All - thanks for your support - this is NOT a fun part of the job...

[NJCubScouter]

Mike says:

 

He has multiple diagnosed psychiatric disorders that severely affect his ability to relate to others - especially authority figures. I pray daily for some breakthrough that will give him some more effective coping skills, but I am also mindful of a quote from the official 2004 Philmont Planning Guide, "Experience demonstrates that psychological or emotional problems frequently become magnified, not lessened, when a participant is subjected to the physical and mental challenges of a trek at high elevation, carrying a heavy backpack of steep, rocky trails."

 

It's really the last part of the last sentence that caught my eye, but I wanted to leave in the context. So it says that, right in an official Phlmont document? That sounds like a pretty powerful clue about what should probably happen in your particular case. I wonder, have you shown this passage to Doctor Dad?

 

From your posts, I have increasingly had the feeling that what really needs to happen here is that the boy's parents need to take a step back and think some more about what is best for their son. Is sending him to Philmont really the best thing for him? The passage you quote might make them think again about this question. And, look, I have sympathy for them, I also have a child who is under psychiatric treatment and has been classified "emotionally disturbed." As a result of her condition (which is probably worse than this boy's if his condition is "mild"), saying "no" to things that she wants, or wants to do, and enforcing that "no", is sometimes very difficult and unpleasant. But it has to be done. So I can readily understand a parent of such a child saying, "You want to go to Philmont, we'll make sure you go to Philmont, no matter what anyone says." But that is even more reason for them to question whether that is the right thing for their son.

 

Ultimately of course, you may still have to make the decision, but I hope the parents make that unnecessary.

[Mike F]

NJ,

Yes - it says that in Risk Advisory handout for all participants and something similar on the medical form itself.

I share your hope that parents will come to the conclusion on their own, but they are very emotional about fighting for their son's right to be included. I understand and would probably be pushing the system myself if I was in their shoes. We'll just have to see how the next shakedowns go. Doctor Dad will be there, so at least he'll see first hand. Taking him to Philmont to assist his son is an option, but not a good one due to health issues of his own. (And we don't really have room for him.)

[Bob White]

Mike you have the information you need to show the parents that the son does not meet "Philmonts" requirements and to take yourself and the unit out of the middle of the conflict. It is not you saying he cannot go it is Philmont's guidelines that are identifying his restrictions.

 

I agree that this is not fun, but you can make it less destructive to the unit by not making this your burden or your rules. Share the Philmont documents with Dr. Dad and explain that it would not be safe or fair to expose his son to this kind of event at this point in his development according to the High Adventure base.

 

And Philmont really is the final authority. Many boys get to camp and then are not permitted on the trail.(This message has been edited by Bob White)

[Mike F]

Philmont's words about emotional/psychological problems are not stated as a requirement - they are a warning.

Philmont will allow participants with psychological disorders on the trail if the parents, family doctor, and trek leaders all agree that it's OK and they have an adequate supply of medication (if required). Since these situations require observation over a period of time, Philmont is not able to assess during in-processing. They usually only screen for the health threats that endanger your life on the trial - most importantly height/weight and blood pressure. If you're within their limits in these areas and your family doctor has cleared you, you're on the trail. (Incredibly, they reject about 10 people a year who show up and don't meet published requirements.)

 

It remains a subjective decision and the Trek Leader has to honestly answer questions like the following:

1. Do I have enough knowledge and skill to handle this disability? If not, can I get help?

2. Does this participant represent a threat to themselves? Are they self-sufficient enough to be in a wilderness situation with inherent dangers from getting lost, protecting self from hypothermia, violating bear safety measures, etc.?

3. Can this participant function within a crew environment?