Judge Rules For Boy In Boy Scouts Case
by Betsy Hammond
December 13, 2001
Portland schools illegally discriminated against atheist students by allowing the Boy Scouts to recruit during school hours, and state officials are wrong to allow the practice to continue, a judge decided Wednesday.
That was the upshot of a ruling by Judge Ellen Rosenblum in Multnomah County Circuit Court. Schools across Oregon that allow Boy Scouts to recruit on campus have been closely watching the case, which has been in and out of court for more than four years.
The judge ruled that Oregon school Superintendent Stan Bunn must rewrite his decision allowing Oregon public schools to let the Scouts make a pitch to captive groups of schoolchildren.
It was a victory for Northeast Portland mother Nancy Powell, who has waged a 41/2-year battle to stop in-school recruiting by the Boy Scouts because the organization allows only boys who swear a belief in God to join. Her son, Remington, was repeatedly recruited by the Scouts at school, beginning when he was a 6-year-old first-grader and continuing after she complained.
After hearing evidence that Bunn did not hear, including watching videotapes of a Boy Scout recruiter making his pitch in several elementary cafeterias this fall, Rosenblum ruled for the Powells.
"It was an abuse of discretion for (Bunn) to find insubstantial evidence of discrimination based on religion," the judge said. "The evidence of discrimination is sufficient, and it was sufficient before today."
Oregon has stronger anti-discrimination laws than many states. One law, dating from the 1970s, says in part that, "No person in Oregon shall be subjected to discrimination in any public elementary, secondary or community college program or service." Discrimination is defined as "any act that unreasonably differentiates treatment ... based on age, disability, national origin, race, marital status, religion or sex."
Both sides in the Powells' case have agreed that "because he is an atheist, Remington may not join the Boy Scouts."
Rosenblum's decision, which she issued orally after a daylong hearing, does not settle the question of what will happen with Boy Scout recruiting in Oregon schools.
The controversy is now before Bunn, who has twice ruled that Boy Scout recruiting during school is OK because it is the Boy Scouts, not the schools, that turn away boys who don't believe in God.
The judge said Bunn should try to work out an agreement between the Powells and the American Civil Liberties Union lawyers who represent them and the Portland School Board, which favors allowing in-school recruitment to continue. If that doesn't work, Bunn will have to hold a hearing and issue a new decision, the judge said.
Rosenblum made it clear that Bunn's July 2001 decision upholding Portland schools' current practice, saying "no substantial evidence exists to support the charges of discrimination," will need to change.
Bunn was traveling Wednesday and unavailable for comment, said Barbara Wolfe, a Department of Education spokeswoman.
Deputy Attorney General Peter Shepherd said state officials are weighing whether to appeal Rosenblum's decision or to accept the case for a rehearing before Bunn.
Remington Powell, an atheist who is now an 11-year-old sixth-grader, testified in court Wednesday for the first time in the case's history.
He vividly recalled some details from the first time a Scout recruiter came to Harvey Scott Elementary and told him and other first-graders how much fun Cub Scouts have. His school counselor seconded that. So he raced out of school door that day to tell his waiting mother, an activist atheist, that he wanted to join.
"It sounded fun and I wanted to try it," he said. "When my mom told me the Boy Scouts do not take our kind, I started crying and sobbing ... I was really sad."
Stephen Bushong, the attorney for Bunn, prompted Remington Powell to admit that he never tried to join the Scouts after his mother told him he would not be accepted. Thus it was Nancy Powell, not the school or the Scouts, that made Remington feel left out, Bushong said.
When his children, now teen-agers, were younger, Bushong said: "I told my kids a thousand times, 'no,' and they broke into tears."
Parents have to be prepared to set limits for their children and deal with the grief that results, he said.
Boy Scout leaders say it is essential for them to be able to recruit new members at school because it is the most complete, most effective and least expensive way to get the word out. The organization teaches leadership, outdoors skills, teamwork and wholesome values to young boys, along with reinforcing a belief in and respect for God, they say.
Portland public school officials have cited the same advantages when explaining why they support giving the Scouts and other community groups access to students during the school day.
You can reach Betsy Hammond at 503-294-7623 or by e-mail at firstname.lastname@example.org.