Rule Interprets Law on Boy Scouts’ Access to Schools

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The Department of Education has issued final rules underscoring that school districts must accommodate the Boy Scouts of America and certain other youth groups that ask to use schools for meetings and recruitment.

Schools risk loss of their federal education aid if they do not comply with the requirement included in the No Child Left Behind Act.

Congress added the provision, which was opposed by some national education and civil liberties groups, in the controversy that flared after the U.S. Supreme Court in 2000 upheld the right of the Boy Scouts to exclude homosexuals as adult leaders.

The Boy Scouts complained that they were having to sue to preserve long-held access to public schools. Many school districts concluded that the venerable youth organization’s exclusion of openly gay members was inconsistent with district anti-discrimination policies, with most such districts going at least as far as ending special arrangements such as reduced rental fees for facilities.

‘Opportunity to Meet’

The Boy Scouts count many friends on Capitol Hill; in the national BSA’s estimation, more than half the members of Congress have been youth or adult participants in Scouting.

Boy Scouts in the Schools

Boy Scouts salute the colors before a speech by President Bush at the National Scout Jamboree in July 2005. —File photo by Lawrence Jackson/AP

The Department of Education has issued a final regulation interpreting a provision in in the No Child Left Behind Act that guarantees the Boy Scouts of America, and certain other "patriotic" youth groups, "equal access" to public schools that receive federal funds. The regulation says:

• Schools may not deny Boy Scout troops the same use of campus meeting space, bulletin boards, information-distribution methods, and recruiting opportunities that they provide to other outside groups.
• Schools' normal campus rules, such as prohibitions on knives, may be applied to Scout troops.
• Schools are not required to sponsor Scout troops.
• Schools may charge fees for use of facilities, as long as they treat the Scouts no less favorably than any other groups.

The relevant provision of the 4-year-old No Child Left Behind law is called the Boy Scouts of America Equal Access Act. It also grants the same access rights to affiliates of other congressionally chartered “patriotic” youth groups listed in Title 36 of the U.S. Code. Those groups include, along with veterans’ organizations and scientific societies, the Board for Fundamental Education, Big Brothers/Big Sisters of America, Boys & Girls Clubs of America, Little League Baseball Inc., Future Farmers of America, the National Education Association, and the U.S. Olympic Committee.

The Education Department regulation, which appeared in the Federal Register on March 24 and takes effect April 24, clarifies that to be covered by the law, the groups must serve people under the age of 21.

The regulation interprets the statute as giving the Boy Scouts and other covered groups equal access, or a “fair opportunity to meet,” if a public school designates a time and place for any outside youth or community groups to meet on campus, for reasons other than to provide the school’s educational program.

“Any access provided under the act … must be on terms that are no less favorable than the most favorable terms provided to one or more outside youth or community groups,” the regulation says.

It makes clear that schools may not bar the Boy Scouts based on their criteria for membership or leadership or for their oath of allegiance to God and country.

Distribution of Fliers

The Education Department issued a draft regulation in October 2004, which received more than 3,000 comments. The department said in its introduction to the regulation that more than half the comments urged that gay-straight student alliances and other support groups for gay students have a right to meet in schools.

The department said that “it does not condone harassment of any students on any basis in the public schools,” but that it was beyond the scope of the federal law for the regulations to afford “coverage to groups not identified in the statute.”

Even before the federal regulation interpreting its finer points, public schools have been required to follow the law.

The Education Department’s office for civil rights, charged with enforcement of the provision, has logged only 13 complaints of alleged violations since 2002, according to Jim Bradshaw, a department spokesman.

In a 2004 letter on the proposed regulations, the Boy Scouts told the Education Department that “while the act has generally been a great success, some school districts have continued to refuse to provide Boy Scouts with the same access to school facilities that they provide to other outside groups.”

The letter said many districts were confused about the law. The letter cited the Montgomery County, Md., school district for adopting a policy “that precludes Scouting groups from distributing fliers to students to take home in their backpacks, even though outside youth sports leagues are allowed to distribute information in this fashion.”

Brian K. Edwards, a spokesman for the 139,000-student Montgomery County district, confirmed that the district has restricted outside fliers sent home with students. He said that the county’s general government, not the school district, was responsible for administering after-school use of the district’s schools by outside groups, and that he did not know whether Boy Scout troops meet in the district’s schools.

One school district that fought a legal battle to keep Scout troops out of its schools before the equal-access law was adopted appears resigned to having to accommodate them.

In 2000, a federal district judge ordered the 271,000-student Broward County, Fla., district to open its schools to the Scouts after school hours. But the judge said the district could impose the same fees on the Scouts that it charged to other groups using its facilities.

Scout troops now meet in some Broward schools and pay $100 per school to hold an annual recruiting drive, said Jeff Hunt, the executive director of the South Florida Council of the Boy Scouts of America, which includes Broward County.

“We continue to try to recruit in schools,” he said. “We do not have the ability to go into classrooms like we used to. That is a problem.”

Gerald N. Tirozzi, the executive director of the National Association of Secondary School Principals, based in Reston, Va., said that his group has not heard complaints about the equal-access law from its members. But he said the group still opposes the provision, as it did when Congress passed it.

“Our position is that we want any group not to discriminate, and the Boy Scouts do openly discriminate against gays,” Mr. Tirozzi said. “We would hope that over time the Boy Scouts would change their policy.”

PHOTO: Boy Scouts salute the colors before a speech by President Bush at the National Scout Jamboree in July 2005.
—File photo by Lawrence Jackson/AP

Vol. 25, Issue 30, Pages 32, 34

Published in Print: April 5, 2006, as Rule Interprets Law on Boy Scouts’ Access to Schools
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