Law & Courts

Ruling on Boy Scouts Could Pose Dilemma For Schools

By Mark Walsh — July 12, 2000 4 min read

The U.S. Supreme Court’s recent ruling that the Boy Scouts of America has a First Amendment right to exclude homosexuals is likely to lead to more pressure on public schools and other sponsors to sever their ties with the organization.

The court ruled 5-4 on June 28 that the application of a state law barring discrimination based on sexual orientation violates the Scouts’ right of “expressive association.” The court overturned a ruling by the New Jersey Supreme Court in favor of James Dale, who was ousted as an assistant scoutmaster in 1990 when the Boy Scouts learned he was gay.

For More Information

Read the full text of the opinions in Boy Scouts of America v. Dade:

“Dale’s presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior,” Chief Justice William H. Rehnquist said in the majority opinion.

“The state interests embodied in New Jersey’s public-accommodations law do not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association,” the chief justice added. He was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Writing in dissent in Boy Scouts of America v. Dale (Case No. 99-699), Justice John Paul Stevens said the Boy Scouts’ view of homosexuality was the product of “prejudices” and “a habitual way of thinking about strangers.” He was joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer.

“The state of New Jersey has decided that people who are open and frank about their sexual orientation are entitled to equal access to employment as schoolteachers” and other jobs that provide role models for children, Justice Stevens added. The Boy Scouts’ affiliation with schools and other sponsoring organizations that employ openly gay people, he said, “cannot be understood to convey any particular message endorsing or condoning the activities of all these people.”

Schools’ Reaction

The Boy Scouts lauded the court’s ruling as vindication for a 20-year legal effort to sustain its membership standards.

“Scouting’s message is compromised when prospective leaders present themselves as role models inconsistent with Boy Scouting’s understanding of the Scout oath and law,” the 4 million-member organization said in a statement.

The Lambda Legal Defense and Education Fund, a New York City-based gay-rights group that represented Mr. Dale in the Supreme Court, called on the public, however, to “urge the many government sponsors of Boy Scout troops—public schools, fire departments, etc.— to withdraw their sponsorship.”

“As an admitted discriminator, the Boy Scouts has forfeited the special privileges and benefits that it has enjoyed for decades as ‘open to all boys,’” the organization argued in a posting on its World Wide Web site.

The American Association of School Administrators, which had joined a friend-of-the-court brief in support of Mr. Dale, said it was surveying its members about what steps they might take after the decision.

“Clearly, we wish the decision had gone the other way,” said Judy Seltz, the AASA’s spokeswoman. “But whether schools will continue to want to make their facilities available to the Boy Scouts is a local decision.”

The ruling could generate tension between Scouting’s traditional ties to schools and the growing adoption in public education of anti-discrimination policies that include sexual orientation.

Carl Wong, the superintendent of the 7,200- student Petaluma City, Calif., school district, noted that a California statute that specifically guarantees the Boy Scouts access to school facilities. But many districts, including his, have strong policies against discrimination based on sexual orientation, he said.

“We don’t want to send mixed messages to students,” Mr. Wong said. “How can we, on the one hand, discipline students who engage in deplorable behaviors such as calling someone a faggot, and on the other hand, say it is OK to allow an organization like the Boy Scouts to use our facilities?”

Gregg Shields, the national spokesman for the Boy Scouts, said the organization would respect any district’s decision to sever ties.

“I would suggest, however, that they consider the issue in a larger context,” he said. “Because we are a private organization, the Boy Scouts deserve the same treatment as any other private organization. In many communities, school buildings are looked at as community buildings.”

Wiretapping Case

Meanwhile, in a separate development near the end of its term, the Supreme Court said it would use a case that grew out of a school district labor dispute to decide an important First Amendment issue involving a federal wiretapping law.

The case of Bartnicki v. Vopper (No. 99-1687) stems from 1993 labor negotiations between the Wyoming Valley West district in Pennsylvania and the local affiliate of the National Education Association.

An unknown person intercepted and recorded a phone conversation between a teacher and a union negotiator in which the teacher suggested the need to “blow off the front porches” of school board members who didn’t support the union’s demands for a salary increase. The tape ended up in the hands of a taxpayer group’s leader and then on a radio talk show.

The teacher and union official sued the tax-group leader and the radio host under a federal law that prohibits the interception of telephone conversations. The question for the high court is whether third parties can be held liable under the law. A federal appeals court ruled that third parties have a First Amendment right to disseminate such information if they had no role in the interception of the phone call.

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A version of this article appeared in the July 12, 2000 edition of Education Week as Ruling on Boy Scouts Could Pose Dilemma For Schools

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