Court backs atheist mother in Scout case

[Merlyn_LeRoy]

http://www.oregonlive.com/newsflash/regional/index.ssf?/base/news-9/1109813285143540.xml&storylist=orlocal

 

Court backs atheist mother in scout case

By CHARLES E. BEGGS

The Associated Press

 

SALEM, Ore. (AP) The state Court of Appeals ruled Wednesday there is "substantial evidence" that the Portland School District illegally discriminated against an atheist student by allowing in-school recruiting by the Boy Scouts.

 

The 6-3 decision is the latest development in a long-running battle by an atheist mother to prevent the Boy Scouts from recruiting in Portland schools because the organization requires a belief in God.

 

The new ruling sends the case back to the state school superintendent for conciliation efforts to resolve the dispute. The district, meanwhile, is considering adopting a policy that could ban Scouts from recruiting during school hours.

 

The controversy began in 1996, when Nancy Powell, an atheist, objected to Boy Scout recruiting visits to an elementary school attended by her son, Remington, who is now in high school.

 

Nancy Powell sued the school district in 1998, claiming that because the Scout oath and principles require a belief in God, the recruiting violated the Oregon Constitution's ban on government involvement with religion.

 

The appeals court in 2002 ruled in the school district's favor, saying the recruiting did not amount to an "unconstitutionally excessive entanglement of government with religion."

 

The state Supreme Court let the lower court decision stand by refusing to review it.

 

The Court of Appeals' decision Wednesday came in a separate lawsuit brought by Powell under a state statute forbidding public schools from discriminating based on religion.

 

Former State School Superintendent Stan Bunn concluded that there was no solid evidence of discrimination, but the appeals court disagreed in a ruling upholding Multnomah County Circuit Judge Ellen Rosenblum.

 

"There is substantial evidence that, by giving the Scouts the access that it does, the district treats those students who are eligible to join the Scouts differently from those who are not," the appeals court said.

 

The court said while all students have been required to listen to an introductory presentation, "only the students who meet a religious test may accept the invitation to join."

 

That amounts to substantial evidence, the court said, that the district "subjects persons to differentiated treatment in a school activity on the ground of religion."

 

[OldGreyEagle]

SO it would have been preferable to have the Boy Scout rep say all you Atheists can leave. and then have everyone watch the students who leave declare their beliefs ?

[Merlyn_LeRoy]

It would be preferable for public schools to actually teach children during classtime, instead of having membership drives for private, discriminatory religious organizations.

[johndaigler]

OGE, (what I read as your) sarcasm aside, you're not really saying that a public elementary school is right to mandate that their students sit through a BSA recruitment speech, are you?

 

The ridiculous thing is that it doesn't need to be done this way!!! There are plenty of ways to reach kids - in and out of school. Merlyn is certainly right that there are better uses of class time than forcing kids to listen to extra-school activity sales pitches. Both the Scout Leader and the school Principal ought to know better!

 

 

 

We embarass ourselves when we break or even bend obvious situational rules and circumstances. We look desperate and hypocritical. Such a waste of everyone's time and money, and our reputation!! We don't have to cheat to win - all we have to do is BE who we say we are!!

 

We'll lose more Scouts (and more public goodwill) using those type of techniques than we'll gain with them. It's just another shot in our own foot!

 

jd

[Merlyn_LeRoy]

 

Here's the actual court opinion:

http://www.publications.ojd.state.or.us/A117310.htm

[OldGreyEagle]

JohnD, My comment was based on the article, that the pupils had to sit through the presentation. The issue of whether or not the presentation should have been done during class time isnt mentioned in the initial post. I dont think the BSA should have any more or less access than any other private group

[johndaigler]

OGE,

 

I understand your point about class time not being mentioned in the article. That's true, though, I think it's safe to assume that it occurred during the school day and is thus subject to the complaint about misuse of school time.

 

But, my concern isn't just about that detail.

 

"...The court said while all students have been required to listen to an introductory presentation, "only the students who meet a religious test may accept the invitation to join."..."

 

Why would the school MANDATE that kids sit through a recruiting presentation for ANY outside activity? Should our children then be forced to sit through pitches by the Y? private afterschool childcare programs? sports academies? local church choirs? It just doesn't make sense to me to use a public school's child gathering structure in this way. It seems cheap and lazy on the part of everyone involved. The entire planet is critical of how we use our public schools - in this case, it seems to me, that the criticism is valid.

 

respectfully,

 

jd(This message has been edited by johndaigler)

[johndaigler]

This is just a piece from the court's ruling . . .

 

"There is substantial evidence that the Boy Scouts' current recruiting efforts take place during school hours, at a location where the district requires the students to be, and begin with a district representative telling the students to be quiet and, in most cases, to listen to the Scout recruiter. For the students to be in a lunch room at lunch time is a normal school function, as is their listening to a district employee or their being on the school grounds after lunch and before classes resume. In that context, the recruiter's action of remaining on the school grounds after his presentation in order to talk with interested students, while continuing to use the authority of the district to facilitate recruiting, is a continuation of that school activity. In short, there is substantial evidence that, by giving the Boy Scouts representatives access to students in these circumstances, the district itself offered the Scouting program to those students. That is, in itself, a school activity."

 

 

Not to carry this ball too far, but as soon as a parent spoke up about this practice (if not proactively), the school and Scouts could have and should have modified how they handled on-site recruiting. There are ways to accomplish the good that would be acceptable to the courts.

 

jd

 

[Hunt]

A few points. First, the presentations were made during lunch, according to the opinion, not classtime. In fact, the primary point of dispute is whether such presentations could be allowed during non-instructional time. I'm sure it was a mistake when Merlyn mentioned classtime, not a deliberate untruth.

 

Second, this is a bizarre decision, given that the same court had previously ruled that there was no establishment of religion problem with the practice. It seems to me that this is a backdoor way of reversing that decision without admitting it. There's really no "discrimination" here, unless other groups were excluded from making such presentations. If any community group that wanted to make presentations, including religious, atheist, or whatever groups were allowed in, obviously that would not be discrimination against the students. Yet that isn't even mentioned. Why? Maybe that's how the superintendant will fix the problem.

[Merlyn_LeRoy]

Yes, I saw when reading the decision it was during lunch, so it was during school hours, not classtime.

 

Footnote 11 points out that they would analyze the case identically if the school had allowed the youth auxiliary of the Ku Klux Klan to make similar presentations, but that the superintendent probably would have concluded in that hypothetical case that there was sufficient evidence that the district discriminated by allowing it. If the school tries to address this decision by allowing all groups, the KKK would have to be allowed in with all the rest.

 

The court also said something that would apply to OGE's first comment: "There is no practical difference between encouraging a student to sign up during a school activity, knowing that the student subsequently will be rejected for a discriminatory reason, and preventing the student from signing up in the first place."

 

The court also distinguished this case from the earlier case:

"...the issue is whether there is substantial evidence that the district's actions constituted discrimination under ORS 659.850, that is, whether the district subjected Remington to an "act that unreasonably differentiates treatment, intended or unintended, * * * based on * * * religion * * *." That is also a different question from whether the district violated constitutional standards by itself promoting a religious message, which we held in Powell I it did not."

...

"It is apparent that, although the facts in Powell I are essentially the same as the facts in this case, the issues in the two cases have little in common. The question before us is not whether the district has established a religion by its relationship with the Boy Scouts; rather, again, the question is whether there is substantial evidence that the district subjected Remington to discrimination in a school activity."

 

[johndaigler]

Hunt,

 

I think drawing a line between classtime and non-classtime is a bit of a faulted argument. The school district decides how the school day is structured, but that doesn't change the nature of the captive audience. Nor, IMHO, does it really change the argument about good use of the school day (but given the opportunity I'd go on and on about better use of longer school days and longer school years).

 

To force kids to sit through a recruiting event when in reality they are uninvited isn't appropriate. I would be unhappy if my son was made to sit quietly and listen to the Episcopal Choir (just as an example, no offense intended)recruit during his lunch time. If the Choir only accepts Lutherans, then my son is excluded and needn't be listening to such a sales pitch. Now imagine the entire school is Lutheran, except my son. It's just not appropriate, and simple enough to avoid.

 

I think that the court shouldn't have made any different ruling in the first place. I don't see how they can view this any differently than their final standing. When I send my boy off to school, it most certainly is not for the purpose of sitting through private groups' recruiting speeches.

 

The silly thing is that it's very easy to use these rules and still accomplish what we want. But, it looks bad when we cheat. Aren't we against cheating?

 

jd

[acco40]

When I was involved in Cub Scouts we (Pack representatives) asked for permission to talk with each class for about two minutes about Scouts and also to place a flyer in the chidrens classroom folder (actually, have the classroom teacher place it). The school/PTA was NOT the CO of the Pack but the vast majority (over 90%) of the Cubs attended the school. The principal gave us the okay but we also needed each individual teachers okay too. The Pack also performed service for the school throughout the year and the adults who presented volunteered heavily at the school. No mention of religious principle was made. No application were handed out. Information about a Join Scouting Night was given along with a very short (two minutes or less) description of Cub Scouts and our Pack.

 

Now, my children did not have to listen about the Lutheran Choir but they were exposed to "sales pitches: for - Cub Scouts, Girl Scouts, school choir, after school activities, charitible fundraisers, booksales, DARE program, MADD program, Club Pride, and on and on. These organizations are given permission on a case by case basis.

 

I don't view this case as the public school discriminating based on religion at all. One could argue about the merits of the Cub Scout program and the judgement of the school for allowing recruitment but that arguement should be centered around the merits or lack of merits of the program and not legalities.

 

[CubsRgr8]

My son's elementary school principal decided last fall that room visits, just like acco40 described, were no longer acceptable. He also prohibited the pack from sending flyers home in the weekly folders. Instead, he offered the cubmaster the opportunity to address the kids during their lunchhour. Seems to me that the flyers would be preferrable to the lunchhour chats. My son brings home flyers from all sorts of organizations (club soccer, football, baseball, fee-based art classes, etc.), so why not scouts? Merlyn, what are your thoughts about flyers?

[Merlyn_LeRoy]

If absolutely everyone can send home fliers, then it's OK. But I think you'd see a change when churches start soliciting kids to change their religion, or KKK recruiting fliers, or when the system gets overwhelmed with too many fliers.

[Proud Eagle]

HOLD ON JUST A DARN MINUTE.

 

While we all probably agree that students' time is best spent on education, many schools spend huge amounts of time on all sorts of other things. If other groups are having in school recruiting assemblies and the like, then it is perfectly understandable that the local Scouting leaders would want to get in on the action. After all, most Scout leaders believe that Scouting is a very good program that teaches some very important lessons to Scouts. So if other groups are having special access to recruit, then the BSA should make use of the same access.

 

I know in my own experience I was forced to sit through recruiting and promotion pitches, speeches, and all sorts of junk from outside groups. We heard from everyone from the school's Cub Scout Pack (Catholic School for K-8 for me), to 4-H, to the YMCA, to the state department of Fish and Wildlife's Conservation Camp. We even had about half a day wasted with someone called Cowboy Louie who thought of himself as a magician. Then there was all the time wasted on pep rallies, sports recruiting, and all that sort of stuff.

 

When I got to junior high in 9th grade it only got worse, and stayed worse through high school. (public shools) The public shools waste more time than my previous school did. (Not counting all the wasted time in class, but that is a completely seperate issue.) Time was spent on everything from making us listen to the band practice its next competition peice to talks from convicted felons about the horrors of prison (a program mandated by the terms of their probation, fun). There were recruiting drives for all sort of organizations. I can't even remember them all. However, the only Scouting related recruiting was by a local volunteer fire department that was trying to gauge interest in starting an emergency services related Venturing crew. They got to set up a table in the lobby during lunch, while other groups got to show videos, have assemblies, or all sort of other ridiculous things.

 

Now the point here is that BSA should be recruiting just as aggresively as any other organization. If the time of kids is going to be wasted, it may as well be wasted hearing a BSA recruiting presentation as a promotion for the state's Conservation Camp.

 

Now as for the aethiests, I don't really know what to say. I guess I think that isn't much difference than the band doing recruiting with people who are deaf.

 

Personally, I don't think any group (in school or out) should be forcing the kids to sit through an assembly. However, if that is the way the school has chosen to make its students available, then I can't really blame all the groups for doing it that way.

 

It would be better if they just sent home something written to everyone. Then it would be the choice of the student and parent to determine if they were going to bother to read the information, or just ignore it. Maybe have optional assemblies for those interested during lunch time or after school or something like that.

 

Anyhow, that is just my take on things.