Ore. high court rules Boy Scout recruiting not discriminatory

Monday, September 11, 2006

PORTLAND, Ore. — A Portland elementary school didn’t discriminate against an atheist first-grader by requiring his presence at a Boy Scout recruiting session held at lunch time, the Oregon Supreme Court ruled on Sept. 8.

The Scout oath and principles require members to profess belief in God, but simply providing information to pupils in public schools isn’t discrimination under Oregon law, the high court said.

Reversing the state Court of Appeals, the justices denied the claim of atheist Nancy Powell, whose son, Remington, was in Harvey Scott Elementary School when the dispute began in 1996.

The state Supreme Court said the Boy Scout recruiting process treated all students equally.

“It is in the later enrollment in the organization that the Boy Scouts differentiate among those who do not profess a belief in the deity and those who do,” the court said in its ruling in Powell v. Bunn. “That enrollment, however, is not done by the school district, nor is it done in any public elementary school activity.”

Dissenting, Justice Rives Kistler said the Scouts told the pupils any boy could join, but that wasn’t true.

“That offer, both in fact and in operation, divided the elementary school children into two groups: those whose religious views agreed with the Scouts’ views and those whose views did not,” he wrote.

David Fidanque, executive director of the Oregon ACLU, whose lawyers argued for the Powells, said it was “a shameful day for Oregon.”

“This decision does not follow the spirit of Oregon’s anti-discrimination laws,” he said.

He pointed to a footnote in which the court said it didn’t see how state law “prohibits an organization, even a hate group, from making a neutral presentation to students, or how such a presentation, even by a hate group, necessarily would subject a person to differential treatment or discrimination.”

He said the long court fight and the controversy over the Scouts’ stand on gays have changed public perception of the Scouts, and many school districts have curtailed recruiting.

“We feel good now that nobody now denies that the Boy Scouts are permeated with discrimination,” he said.

“We are doing nothing illegal,” responded Don Cornell, director of field service for the regional Cascade Pacific Council of the Boy Scouts of America. “The right to free association has been fundamental to America since its founding.”

He said the Scouts have literature distributed in schools, and that’s still one component of its membership-building.

The Boy Scouts of America said in a statement that free-speech rights and federal legislation require groups to have equal access to school facilities.

“Giving Boy Scouts equal access is not discrimination,” said spokesman Robert H. Bork Jr. “It is the law.”

The Portland public schools no longer allow groups to conduct the kind of recruiting the Powells objected to, said General Counsel Jollee Patterson. Access is limited to groups that offer services to students, and such groups are permitted only to distribute leaflets and brochures, she said.

The Powells had filed an earlier lawsuit arguing that the school endorsed religion by allowing the Boy Scout recruiting. But a three-judge panel of the Court of Appeals rejected that lawsuit, ruling that allowing the Scouts to make brief in-school presentations with no religious content would not violate the state constitution’s ban on government involvement with religion.

The lawsuit the high court ruled on last week addressed only whether the recruiting amounted to discrimination under the state constitution.

Remington Powell, now 16 and a junior in high school, said he barely remembers the recruiting talk, except that he got a wristband. He said his mother gave the principal an “evil glare” for allowing the Scouts to make a recruitment pitch to him against her wishes.

He said at a Sept. 8 press conference with his mother that the court fight during most of his young years has made him “a little more wary of things up front.”

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