ACLU of Oregon Calls Boy Scout Decision ‘Shameful’

Sept. 8, 2006 - The court held that it is not illegal for discriminatory organizations to recruit students in public school settings during school hours as long as the organization sanitizes its message, removing any mention that not all students can join.

In a press conference, the ACLU of Oregon called the Oregon Supreme Court decision in Powell v. Bunn “a shameful day for Oregon.”

That’s the culmination of a decade-long struggle by Nancy Powell and her son Remington. Ten years ago, in first grade, Remington Powell was invited during school hours at Harvey Scott Elementary in Portland to join the Boy Scouts; a hospital-style bracelet was even attached to Remington’s wrist, including the message, “Every boy can join.” Only later was Remington told that, as an atheist, he was not allowed to join because all Boy Scouts must swear an oath to God.

“Today’s decision says that as long as the Boy Scouts hide their discriminatory practices, and the discrimination happens away from school grounds, the school district is not engaging in discrimination,” said David Fidanque, executive director of the ACLU of Oregon. “So in a public school setting, the Boy Scouts can claim to welcome all students when the organization knows full well the only students it will allow to join are those who meet its discriminatory restrictions.”

While the court opinion did not endorse discriminatory practices, it did say such practices are not prohibited under Oregon law.

In a footnote in the opinion, the court describes an unsettling view of what legally may be allowed in Oregon public schools. There, Justice W. Michael Gillette writes that the court “fails to see how the wording of [the statute] 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 under [Oregon statute].”

“The decision is an extremely narrow reading of the law, and it certainly does not follow the spirit of Oregon’s anti-discrimination statutes,” Fidanque said.

What it does do is acknowledge, without dispute, that the Boy Scouts engage in discriminatory practices. And while the court decision disappointed the ACLU of Oregon, the real victory has been increased public awareness and an increasing number of government agencies refusing to foster those practices.

“For a number of years, the Portland School District denied knowing or refused to acknowledge that the Boy Scouts engaged in discriminatory behavior,” Fidanque said. “With this court decision, we have it as undisputed fact that the Boy Scouts discriminate on the basis of religion.

“This is not a victory for the Boy Scouts,” Fidanque added. “The values of the Boy Scouts are not the values of most Oregonians, because most Oregonians do not endorse religious discrimination.”

Oregon Supreme Court Justice Rives Kistler, in a dissent to the majority opinion, described the Boy Scouts’ misleading offer of membership, as “discriminatory in operation,” writing that it immediately “divided the elementary school children into two groups: those whose religious views agreed with the Scouts’ views and those who views did not.”

When considering the decision this morning, Nancy Powell called it a Pyrrhic victory; while there were important gains in public awareness, the end result is that Oregon law will not protect her family, or others, from discrimination. “The final decision is unfortunate, but we did our best,” she said.

Saying she has no regrets in taking on the 10-year battle, Powell added: “When you’re the victim of discrimination, you have two choices. You can stand, or you can run. We chose to stand.”

The case, in two different forms, has worked its way through Portland Public Schools, the office of the state Superintendent of Public Instruction, and the court system, before reaching the Oregon Supreme Court in May. Today’s ruling reversed earlier appellate court and circuit court decisions.

Cooperating attorneys Charles F. Hinkle of Stoel Rives LLP, Ken Wittenberg, and Andrea R. Meyer, legislative director/counsel for the ACLU Foundation of Oregon Inc., have argued the case on behalf of the Powells.