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A federal court in Miami recently overturned a Broward County School Board edict banning Boy Scouts of America meetings on school property. The court held that the Scouts should have equal access to public facilities despite its policy of excluding gay youth and adult members. Boy Scouts of America v. Till, 2001 WL 315360 (S.D. Fla. March 21, 2001). Advocates of both strong civil rights enforcement and vigorous protection of free speech need not feel conflicted about this ruling. The court correctly fielded a tough First Amendment question, and the Scouts won nothing but the right to be treated like the Ku Klux Klan. It has been nearly a year since the Supreme Court decided Boy Scouts of America v. Dale, 530 U.S. 640 (2000), upholding the Scouts’ right to exclude gay troop leaders. Civil rights lawyers still question the shaky doctrinal footing of that decision — an exercise in precedent-bending judicial activism that presaged the presidential Bush v. Gore — but the rest of the country has moved on to consider its practical impact. While some still defend the Scouts’ policy, many want nothing to do with the gay ban. Last month, film director Steven Spielberg resigned from the BSA advisory board, saying he could no longer associate himself with a group that engages in discrimination. Even many of those who agreed with Dale see the policy as unnecessary and hurtful. SEVERING TIES And while the Boy Scouts’ private choices may be protected, active government involvement with discrimination is another matter. Government bodies across the country (including the Los Angeles City Council and school boards in New York, Minneapolis and Chapel Hill, N.C., as well as Broward County) have cut ties to the Scouts, often citing anti-bias laws and agency policies. Their actions echo the New Jersey Supreme Court, which warned that, if its decision overturning Dale’s expulsion were reversed, state law would nevertheless bar government entities from “sponsor[ing], or conferring special benefits on, an organization that practices discrimination.” Even where anti-discrimination laws have not yet been extended to cover sexual orientation, general equal protection principles and public policy both weigh against active government involvement with discriminators. At a minimum, governmental entities should not be actual “sponsors” — in effect, owners — of traditional Scout troops. Nor should they grant the Scouts special privileges not accorded to other community groups. Both gay and straight kids are hurt by the symbolism of such direct government backing of a discriminatory organization. This concern persists even where scouting has skirted anti-discrimination laws by offering “non-discriminatory” programs in the public schools under different logos, such as “Learning for Life.” Broward County school officials thus acted lawfully and in the public interest by suspending affirmative support for the Boy Scouts after Dale. In a powerful statement against intolerance, the school board terminated an agreement whereby the school system actively promoted and recruited for the Scouts through classroom presentations, formal assemblies and school-sponsored evening events. But the school board went too far. It barred the Scouts even from meeting on school property, denying it the same after-school access afforded to a wide range of community and religious organizations without regard to their membership policies, some of which appeared to be restrictive on religious or ethnic grounds. The school board admitted that this openness had created a “limited public forum,” but argued that its compelling interest in combating bigotry justified the Scout ban. A CRUCIAL DISTINCTION U.S. District Judge Donald M. Middlebrooks, acknowledging that the case was difficult, zeroed in on the crucial distinction between the school board’s right to control its own speech — which justified cutting off affirmative support for the Scouts — and impermissible viewpoint discrimination in a public forum. Selectively denying the Scouts equal access based on disapproval of its anti-gay policy, the court held, was squarely in the latter category. In enjoining the Scouts’ exclusion, the court stressed that the school board was not obligated to resume any activities constituting “involvement” with the Scouts or to “endorse, participate, or solicit others to participate in Boy Scouts activities.” Nor did the court indicate how it would have come out had the school board directed more consistently the public forum to require all activities to be non-exclusive. The court got the public forum analysis right, but the decision is hardly a proud moment for the Boy Scouts. The court found the Broward County case factually “very close” to an earlier appellate decision, Knights of the Ku Klux Klan v. East Baton Rouge Paris School Board, 578 F.2d 1122 (5th Cir. 1978) upholding the Klan’s right to use a high school gym for a so-called “patriotic” meeting on a Saturday morning. Since that case similarly involved a state-created public forum, the Klan’s speech was seen as its own, not that of the school, and therefore protected from viewpoint discrimination. Judge Middlebrooks found “understandable” the Broward County School Board’s desire to protect children and teachers from the “emotional hurt” of exclusion from activities in their own school buildings. But this hurt paralleled that of “the African-American student whose school gymnasium is used for a Klan rally” or “the Holocaust survivor forced to contemplate the National Socialist Party parading through the streets of Skokie, Illinois wearing swastikas.” As the court said, “Freedom of speech has its costs, and tolerance of the intolerant is one of them.” The court notably did not defend the Scouts’ organization for its good works or hail its cherished place in the community. Those arguments have soured: No other major youth group vilifies and expels members based on their personal status, and the Scouts’ leadership has made clear, at least for now, that it is willing to sacrifice scouting’s unique public role to preserve its hard-won right to practice private discrimination. No, the Boy Scouts won this one despite, not because of, its professed core values. That makes it a good day for free speech and also for civil rights, because the decision makes clear that a bigot with free speech rights is still a bigot. Jeffrey Trachtman, a partner at New York’s Kramer Levin Naftalis & Frankel, participated in an amicus brief in support of the New Jersey Supreme Court decision in Dale.

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