Defending Boy Scouts in Massachusetts Public Schools

By Amy Contrada
February 5, 2001  

The Boy Scouts of America have recently come under attack in Massachusetts because of a massive campaign against them. 

Although the legal issues are simple, many school administrators and school committee members appear to be “confused” -- perhaps on purpose. 

Two separate laws are involved. 

State Law - Do civil rights laws of our state (which decree that homosexuals are a “protected class”) require that the Boy Scouts be expelled from the schools? The simple answer is that the Massachusetts laws do not require that the Scouts be expelled from the schools. 

(Under the federal civil rights law, homosexuals are not even included as a “protected class” like blacks and women. Therefore they have no special rights under federal law. However, both Senators Kennedy and Kerry are active in attempts that would give them special status under federal law as well as state law. But they have no such status at the present.) 

U.S. Constitution - If the Boy Scouts are expelled by a school misapplying Massachusetts law, does this violate Free Speech under the U.S. Constitution? The simple answer is that it probably does violate their First Amendment rights. 

What Is Unfair Treatment?
Massachusetts citizens should watch for the following unfair treatment of the Boy Scouts being done under the ruse that this is required by state law. For example, these types of treatment are not required by our state law and could violate First Amendment rights under the U.S. Constitution: 

  Are Scouts forbidden from meeting in schools, even though other outside groups are allowed?

  Are Scouts forbidden from distributing literature or posting notices, even though other outside groups are allowed to do so?

  Are schools saying that if Boy Scout literature is distributed, they would have to allow literature from all groups to be distributed (for example, even the KKK)? 

If you see any this type of treatment, it probably is illegal. 

Some Schools Discriminate Against Scouts
Although most schools have not taken any action against the Scouts so far, some have jumped to put new policies in place or are seriously considering doing so. Few school administrators would answer questions from Massachusetts News. They seemed aware they are on shaky legal ground in challenging the Scouts. 

The Framingham schools were one of the first to go after the Scouts, banning the distribution of literature and recruiting notices, but continuing to let them use school buildings for meetings and wear their uniforms in school, according to an article in the Boston Globe last fall. If this ban applies only to the Scouts, Framingham schools are clearly violating the Scouts’ First Amendment rights. Superintendent Mark Smith has not responded to our repeated inquiries on whether their new policy bans all outside groups, or just the Scouts. Many calls were made to him plus a fax with questions and calls were made to the Assistant Superintendent. They obviously do not wish to talk about this subject. 

In Northampton schools, there’s a plan to redraft school policy to ban the Scouts, according to Lucy Hartry, the chairman of the school board Rules and Policy Committee. She told the Daily Hampshire Gazette, “I personally don’t feel that any group which openly discriminates should be allowed to use the school buildings or use the schools as an avenue to distribute their literature.”

An attempt by the city’s Human Rights Commission to get the school board to ban the Scouts was defeated last fall. The Scouts are still allowed to hand out literature for the present. 

The Gazette also reported that the Shutesbury elementary school was considering preventing Scouts from recruiting and meeting in its schools. The Union 28 District Superintendent, David Christafulli, told Massachusetts News they are in the process of studying the legal issues involved and will take it up in February. He said the issue arose out of consideration for gay and lesbian community members.  

According to that area’s Great Trails Scout Council executive, Richard Stritzinger, school administrators respond well to parents speaking up for the Scouts. He said that “misinformation” is the biggest enemy in their troubles with the public schools. (Despite the recent attacks, he has seen encouraging growth this year in Scout membership: 12% in the Berkshire County Cub Scout packs, and XXXX 5½ % growth overall.) 

Most Schools Know the Law  
In Belmont last fall, an elementary school principal was reversed after telling the Scouts they could no longer distribute literature in the school. According to Assistant Superintendent Patricia Aubin, the principal was eventually overruled by the superintendent and school committee chairman after they met with Scout leaders. The schools in that town do not have a written policy concerning distribution of literature from outside groups, but Aubin stated that the Scouts may still meet in school buildings and send out literature as before. 

The Southwick-Tolland Regional Schools tried to ban Scout recruiting there. But Steve Hoitt of the Pioneer Valley Scout Council said they resolved the issue by agreeing (along with every other outside group) to put a disclaimer on all notices, making it clear that the schools do not officially sponsor the Scouts. (The Pioneer Valley Council also noted that, despite attacks on the Scouts, they have had their best recruiting year in eight, with a 2% growth in membership.) 

The Bennett School principal in Taunton has correctly decided to stop the school’s five-year sponsorship of a local Cub Scout pack. While the Scouts will still be allowed to meet in the Bennett School, the school’s name will no longer appear on the local chartering documents. 

Carlisle flirted with banishing the Scouts from meeting in its elementary school building this fall. The school committee pulled the rug out from under the Cub Scouts and would not allow them to hold their first meeting at the school. Scout leaders then protested that they had not even been notified the issue would be discussed at a school committee meeting. The Carlisle School Association, which chartered the Scouts in that town, withdrew their sponsorship as of January 1. But Scout parents came together as a new chartering organization. Eventually, the schools decided to let the Scouts use the building but charge them a fee as an outside group. 

Acton-Boxborough schools are considering a ban on literature from all outside groups. Discussions by the school committee clearly show, however, that the Boy Scouts’ are their specific target. Superintendent William Ryan has not answered our questions about fair enforcement of such a policy. A new policy may be approved in February. 

The Lexington superintendent’s office said that they are not taking any action regarding the Scouts. 

Chelmsford School Committee member Evelyn Thoren said there has been no discussion of the Scouts in her district, and she knows of no plans for any. 

Eight other school districts contacted by Massachusetts News would not answer repeated requests for information. (They were Boston, Brookline, Cambridge, Newton, Worcester, Springfield, Brockton and Attleboro.) But it seems fairly clear that many more districts will try to follow the “PC” line on this issue before the Scouts’ recruiting season begins next fall unless the citizens become familiar with the law. 

Jerry Bieler, Scout Executive of the Nashua Valley Council, said that his office has not received any letters from school districts in his council (including Acton and Boxborough) concerning distribution of Scout literature. A few districts have asked him for information. He expects a variety of responses from the different districts by this summer, just prior to the fall recruiting season. He said he is not actively pursuing the issue with the schools, but is in a wait-and-see mode. 

Generally, the Boy Scout organization seems reticent. They are letting their lawyers do the talking, or they are encouraging parents to approach school administrators on their behalf. Some Scout leaders are attempting to placate their attackers by stating that they do not support the national organization’s ban on homosexual troop leaders.  

Mass. Dept. of Ed Says Scouts are Okay  
The Massachusetts school administrators who wish to challenge the Scouts seem aware they are on dangerous First Amendment grounds. Several asked for legal advice from the state Department of Education last fall. Specifically, they wondered whether allowing Boy Scout literature distribution and notices in their schools would violate state law and the non-discrimination policies regarding sexual orientation 

All of the questions concerning the Scouts have arisen because of last June’s decision by the U.S. Supreme Court which ruled that the Scouts had the right to exclude homosexuals as Scout leaders under their right of freedom of “expressive association” in determining their own membership.  Homosexual activists, infuriated by the decision, retaliated with a campaign to deny public forums to the “discriminatory” and “homophobic” Scouts. Some corporations, charitable and religious groups, and public school systems fell into line and cut off aid, sponsorship, meeting places and other support for the Scouts. 

On November 15, the state’s education department responded to the many requests by publishing a legal advisory guiding the schools in their treatment of the Scouts. 

Jonathan Palumbo, Press Director at the department, tells Massachusetts News that the advisory was meant to encourage local school officials to make informed decisions regarding their treatment of the Scouts. They were cautioned to avoid discriminating in either direction, whether by unfairly excluding the Scouts or by officially sponsoring the group, he said. 

Official sponsorship of the Scouts was rare in the Massachusetts schools. Probably only a few systems (in Carlisle and Taunton) were actually sponsoring them. As defined in the advisory, “sponsoring” means “endorsing the group or participating in the organization of its activities or recruitment of students.” 

The advisory gives clear instructions on how schools can avoid “sponsorship” which would violate state law. However, it also makes it plain that because of the First Amendment to the U.S. Constitution, scout literature must still be distributed. 

Attorney Chester Darling, President of Citizens for the Preservation of Constitutional Rights in Boston, told Massachusetts News that while the Department of Education is “not going after the Boy Scouts” in its advisory, it is clear that various groups around the state are positioning themselves for future action against the Scouts. 

Darling also said that the issues swirling about the Boy Scouts are still being defined. Focus will come as new court cases are settled. For instance, in a case pending in Broward Country, Florida, the school board has barred only the Boy Scouts (out of many private groups) from using school buildings, in clear violation of their First Amendment rights. 

Massachusetts school boards seem to be more cautious than the Broward County board. They have decided to focus their energies on banning the distribution of Scout literature in the schools. Such bans would apply to any notices sent home informing parents and children of pack and troop organizational meetings, especially during the fall recruiting season, and include notices posted on bulletin boards or mentions in school newsletters. 

But this may be overkill, according to the state’s advisory, which goes to great lengths to make it clear that the Scouts do not have to be booted from our schools, as long as the schools are careful not to officially sponsor them. 

It says that under the state’s civil rights laws and the First Amendment: “A school committee (or the board of trustees of a charter school) may adopt a policy that allows the Boy Scouts to post notices and distribute flyers in the school(s). As long as the public school does not ‘sponsor’ the Boy Scouts or any other group that restricts membership, by endorsing the group or participating in the organization of activities or recruitment of students, the school is not in violation of 603 C.M.R. 26.06(1). If the school committee permits certain types of outside groups (e.g., nonprofit charitable or civic groups that provide programs of services for young people) to distribute literature in the schools, it creates a ‘limited public forum.’ No school committee is required to create a limited public forum. Once it does so, however, the school committee may not deny access to a qualified group on grounds that the group restricts membership based on sexual orientation or another protected category.” 

There is a clear distinction in the advisory between “school-sponsored activities” and outside groups. It is up to the individual district school committee to establish “reasonable rules regarding the type of outside groups that may use the school facilities and the extent to which such groups may use the facilities.” 

The advisory states, “Once a school committee decides to create a limited public forum, First Amendment principles dictate that it cannot refuse access to a qualified group based on the content of its message.” 

Note that school boards could define a “qualified group” so that extremist groups such as the KKK or the American Nazi Party could be excluded while the Boy Scouts could be admitted. Using the example given in the advisory, a school committee could establish that “if a school committee decides to allow its schools to be used as literature distribution centers by nonprofit charitable or civic organizations that provide programs or services for young people, it must allow the Boy Scouts to use the schools for this purpose despite the restrictive membership policy of the Boy Scouts.” 

The KKK is not, after all, a “non-profit” group providing “programs of services for young people.” Nor is it a “civic” group, in the sense of “promoting good citizenship.” A school board could devise its own definition if they don’t like the example in the advisory. 

Despite this clear language, some school districts are using the excuse that if they let in one group, they have to let in all groups, no matter how offensive the message. This “all-or-none” interpretation is wrong, and possibly meant to mislead citizens who don’t have time to look up the advisory. 

Another question may arise whether a change of policy clearly intended to block the Boy Scouts in particular, while purportedly blocking all groups, may be shown to be discrimination on the part of the school board. 

Interestingly, the advisory does not discuss the possibility of barring Scouts from holding meetings in school buildings, apparently because this would so clearly violate their First Amendment rights. It does cite a state regulation, 603 C.M.R.26.06(1), which “does not prohibit school committees from allowing use of school premises by independent groups with restrictive membership.” Yet some school boards may be trying to find ways to do this. 

The advisory on the Boy Scouts in the public schools is available online at: www.doe.mass.edu/lawsregs/advisory/boyscouts.html 

Possible Violations of Scouts’ First Amendment Rights  
Is your town is attempting to boot the Scouts from meeting in your schools (or other government buildings)? If so, do the Girl Scouts or other outside groups still have access? Or do school-sponsored clubs, such as the Gay-Straight Alliance, host speakers from outside groups that may discriminate against some religious beliefs? (Note the clever inclusion of “straight” students as members of the GSAs, so that they cannot be accused of discrimination based on sexual orientation.)  

If the Scouts are asked to pay a fee to meet in the school for the first time (as recently happened in Carlisle), is this new policy being fairly applied to all outside groups? Do the Brownies or AA meet in the school without paying a fee or paying a lower fee? 

If your school board adopts an “all or none” approach on literature distribution, it must be even-handed in its enforcement of this policy. For instance, are the Girl Scouts still allowed to announce meetings? Is the school-sponsored GSA still allowed to post notices or pamphlets from outside groups they associate with on the hallway bulletin board? 

For example, on January 12 the Acton-Boxborough High School GSA bulletin board (in the main hall) held a flyer from “Safe Homes of Central Massachusetts.” Safe Homes “provides foster/alternative parenting, mentoring, activities and resources for GLBTQ [gay, lesbian, bisexual, transgender, and questioning] youth.” It invited students to audition for an original theater production “Out and About” which will begin touring in March. There was also a notice from the “Reconciling Congregation Program” which directs students to United Methodist churches “welcoming” homosexuals and bisexuals.  

This bulletin board obviously makes information from outside groups available to students during the official school day. If a school adopts an “all-or-none” policy on literature distribution, such notices could no longer be posted. 

Public Forum Law Is Key
The “public forum” aspect of the First Amendment is key. Attorneys representing the Boy Scouts in the Broward County case in Florida have written: 

“Once the government has allowed a facility to be used as a public forum, it may not in any way regulate the viewpoint of the groups using that forum or the content of their speech without infringing on freedom of speech and freedom of association protected by the First Amendment. Access to a public forum may not be restricted based upon a desire to suppress a particular viewpoint, nor can the government rely upon a viewpoint-neutral justification for its action if it is in fact motivated by an impermissible purpose.”  (Boy Scouts of America vs. Till, U.S. District Court, Southern District of Florida, “Plaintiffs’ Motion for a Preliminary Injunction and Memorandum of Law in Support Thereof.”)  

In the pending Broward County case, the Scouts claim that the school board there is using its power to “send a message” and punish them for their views. “This is viewpoint discrimination, precisely what the Constitution forbids.” Some Massachusetts school districts are trying to do just this XXXX “send a message” to the Scouts by changing their policies concerning distribution of literature. 

Many non-profit groups besides the Scouts use public buildings for meetings. They are all endangered by the attack on the Scouts. Keith Pavlischek of the Center for Public Justice points out: “For the government to dictate the hiring practices of the Boy Scouts on the basis of these contacts with the government is, in effect, to make them an appendage of the state. 

Attorney Darling’s organization will keep a close watch on the Florida court action, which obviously will have ramifications across the nation.