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Powell v. Portland Public School District & Stan Bunn,
Superintendent of Public Instruction

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  • CHRONOLOGY

    October 15, 1996 During school hours, a Boy Scout troop leader is allowed to speak to Harvey Scott Elementary school students, encouraging them to join the Boy Scouts. Troop leader and school employees put wrist bracelet on Remington Powell and other boys and instruct then to wear it home and ask their parents to read it. The bracelet says "Come Join Cub Scout Pack 16! Round-Up for New Cub Scouts for Boys in Grades 1-5...Scott Elementary School." The bracelet, similar to the type used in hospitals, is only removable by cutting off with scissors.
     

    October, 1996 Knowing that the Boy Scouts bar membership to atheists, and that Remington, an atheist, will not be able to join the Cub Scouts, Remington's mother, Nancy Powell speaks to Harvey Scott Principal Joseph Williams and his supervisor. She asks them not to let the Boy Scouts recruit in the school during school hours because the Boy Scouts bars admission to all children who are atheists. She is ignored.
     

    April 8, 1997 Portland Public School District spokesperson Lew Frederick speaks to an open meeting at the Atheist Community Center of Oregon. At that time, he states that the school employee who helped the Boy Scout troop leader put on wrist bracelets is not to do that and that the Boy Scouts have been told not to do that again.
     

    April 10, 1997 Nancy Powell attends a School Board meeting. She provides each School Board member a notebook, documenting Boy Scout policy barring atheists, the events that have occurred at Harvey Scott and a copy of the Portland District rules barring activities at school that bar admission based on religion (PPSD Rule 3.30.020(9)). She asks for the opportunity to speak before the Board.
     

    June 25, 1997 Nancy Powell writes the School Board asking for a response to her April request and asking again that the District not allow the Boy Scouts to recruit during school hours because of their discriminatory religious policy. August 5, 1997 Having heard no response from the School District, Nancy Powell files a complaint with Norma Paulus, Oregon Superintendent of Public Instruction under ORS 327.109 which prohibits public schools from sponsoring, financially supporting or being actively involved with religious activity. As part of her complaint, Nancy Powell files extensive documentation of the Boy Scout's policy discriminating against atheists.
     

    August 20, 1997 Portland District Superintendent Jack Bierwirth, also serving as the Senior Vice President of Outreach for the Boy Scouts, states before a television reporter that there are plenty of Scout leaders who have told Nancy Powell that her son would be perfectly welcome in their troops no matter what his belief. In fact, no Scout leader has ever contacted Nancy Powell inviting her son to join. Larry Otto, Scout Executive for the Cascade Pacific Council of the Boy Scouts later testifies that Jack Bierwirth was not authorized to speak for the Boy Scouts and that any Scout leader who invited Remington Powell to join would be violating Boy Scout policy.
     

    September 2, 1997 Portland District Superintendent Jack Bierwirth informs Nancy Powell that legal counsel reviewed her April submissions to the School Board and determined that Boy Scout recruitment activities do not violate the law.
     

    September 30, 1997 Again during school hours, a Boy Scout troop leader is allowed to speak to Harvey Scott students, encouraging them to join the Boy Scouts. Students are once again offered wrist bracelets and the troop leader puts them on the children's wrists. Principal Joseph Williams stands by and watches. Remington is present but does not take a wristband because he now knows the Boy Scouts will not let him join.
     

    March 20, 1998 State Superintendent Norma Paulus issues a "Finding of Preliminary Investigation" (authored by Greg McMurdo) determining that there is no basis for Nancy Powell's complaint and dismisses it. The Superintendent makes no finding as to whether or not the Boy Scouts denies membership to atheists.
     

    May 14, 1998 The American Civil Liberties Union of Oregon, through volunteer counsel, agrees to represent Nancy Powell and Remington Powell and files a complaint in Multnomah County Circuit Court against the Portland Public School District for Declaratory and Injunctive relief. Plaintiffs ask the court to find that the School District's action of allowing the Boy Scouts to recruit in public schools during school hours amounts to unconstitutional support of a religious organization and violates the religious freedom rights of Remington and Nancy Powell (Oregon Constitution, Article I, sections 2, 3 and 5). The complaint also requests a permanent injunction ordering the School District to cease its recruitment activities with the Boy Scouts during school hours. Plaintiffs seek no monetary damages.

    Plaintiffs also appeal the "Finding of Preliminary Investigation" of the Superintendent of Public Instruction (Stan Bunn, currently Oregon Superintendent of Public Instruction has been substituted for Norma Paulus) and ask the court to find that the School District's activities also violate the Oregon law prohibiting public schools from promoting religious activity (ORS 327.109).
     

    November 25, 1998 Larry Otto, Scout Executive of the Cascade Pacific Council, Boy Scouts of America testifies under oath in a pre-trial deposition. He testifies that:

    December 1998 - February 1999 Immediately after Larry Otto's deposition, Portland School District approaches plaintiffs to discuss settlement. Over the next three months, the School District postpones discussions while they wait for undisclosed documents from the Boy Scouts.

    During this period, local attorneys for the Boy Scouts of America enter into an oral agreement with School District attorneys because they have a "joint interest" to "preserve access for Boy Scout volunteers to deliver the message about scouting opportunities to Portland School District students." (Later, the Boy Scouts file an amicus curiae (friend of the court) brief, arguing that the Boy Scouts right to engage in "religious speech" in the public schools must be protected.)

    During this period, the Boy Scouts of America enter into an agreement to pay the School District's bills for defending this case and are currently paying the School District's legal bills (Oregonian, July 4, 1999; Willamette Week, August 18, 1999).

    At the end of February, after no substantive settlement discussions plaintiffs are informed that there will be no settlement discussions.
     

    March 8-9, 1999 Lew Frederick, School District spokesperson, Joseph Williams, Principal at Harvey Scott, and Marc Abrams, School Board member testify under oath in pre-trial depositions.

    Despite three years of documentation by Nancy Powell that the Boy Scouts bars membership to atheist students (confirmed by Scout Executive Larry Otto who testified months before on the Boy Scout policy banning atheists) none of the school district witnesses admits to any current knowledge about the bar on atheists in the Boy Scouts.

    Lew Frederick, spokesperson for the School District who was charged with representing School District policy on the Boy Scouts before community organizations, including at the Atheist Community Center almost a year before, testified that he is "not really aware of the Boy Scout policy regarding membership of atheists to Boy Scouts."

    Joseph Williams, Harvey Scott Principal to whom Nancy Powell first complained in October 1996, testified that to this day he did not "know whether the Boy Scouts allows atheists to become members."

    Marc Abrams, School Board member, one of the members to whom Nancy Powell presented documentation in April 1997, and who as a School Board member participated in the decision to defend the School District practice, testified that the Boy Scout policy of banning membership to atheists "has been represented to me. I do not know that I have that information except secondhand and hearsay."
     

    June 8, 1999 The case is argued before Multnomah County Circuit Court Judge Joseph Ceniceros in cross-summary judgment motions. Judge Ceniceros determines that he will decide the case without a bench trial and takes the matter under advisement.
     

    August 31, 1999 Judge Ceniceros finds that the Boy Scouts discriminates on the basis of religion and bars membership to boys and scoutmasters who do not acknowledge the existence of God. The court holds that the Boy Scouts recruitment activities in schools do not violate Oregon's constitutional requirement of separation of church and state.
     

    September 1, 1999 The ACLU and Nancy Powell urge the School Board to reconsider its practice of granting special access to the Boy Scouts given the court's factual finding that the Scouts discriminate on the basis of religion. If the School Board does not change its practice, the ACLU will appeal the ruling and pursue legal challenges under state anti-discrimination laws.

    Graphic Rule

    ACLU URGES PORTLAND SCHOOL BOARD TO RECONSIDER BOY SCOUT ACCESS

    SEPTEMBER 1, 1999

    The American Civil Liberties Union said Wednesday that the Portland School District should reconsider its practice of granting special access to the Boy Scouts to recruit students given a Multnomah County Circuit judge's factual finding that the Scouts discriminate on the basis of religion.

    Multnomah Co. Circuit Court Judge Joseph Ceniceros issued a ruling Tuesday that rejected the ACLU's legal arguments that the school district's actions violate the constitutionally required separation of church and state. The ACLU had filed the lawsuit on behalf of Nancy Powell and her son, Remington, who is a student at Harvey Scott Elementary School.

    The Powells are atheists and objected to Boy Scout recruiting efforts during school hours because the Scouts deny membership to boys who refuse to swear allegiance to God. The dispute began in the fall of 1996 when Boy Scout recruiters went to Scott Elementary School and placed a wrist band on Remington Powell's arm which advertised a Cub Scout recruitment meeting at the school.

    Oregon ACLU Executive Director David Fidanque said even though he is disappointed by Judge Ceniceros' ruling, it had a silver lining for the ACLU and its clients.

    Fidanque noted that in his ruling, Judge Ceniceros said the "most disturbing aspect of this case is the Boy Scouts' denial of membership to boys and scoutmasters who do not acknowledge the existence of God." Fidanque said the judge's factual finding is important because school officials have denied any knowledge of the Boy Scouts' long-standing policy of denying membership to atheists.

    "For almost three years the Portland School District has danced around the facts in this case," Fidanque said. "The District has taken a 'Don't Ask, Don't Know' posture when it came to the issue of discrimination by the Scouts.

    "Now is it clear for all to see," Fidanque continued. "The stock-in-trade of the Boy Scouts is discrimination against those who don't believe in God. When Portland schools give special privileges to an organization that discriminates against some of its students based on religion, they are promoting that discrimination. We sincerely hope the School Board will reconsider its position and enforce District policies and state laws that prohibit this kind of discrimination."

    Nancy Powell joined the ACLU in asking the school district to take another look at the issue. She noted the school district's long-standing practice of denying access to the high schools by U.S. military recruiters because the Armed Forces discriminate against gays and lesbians.

    "From the beginning, all I've ever wanted was for the District to enforce its non-discrimination policies equally," Powell said. "It's a ridiculous distinction for the school district to protect 17 and 18 year-old students entering the job market and not to protect 6 and 7 year-olds who can't cross the street by themselves from religious discrimination by the Boy Scouts."

    Fidanque said the ACLU will appeal Judge Ceniceros' ruling on the church-state issue if the District does not change its practices, but he said the ACLU may also file a new legal challenge against the school district based on state anti-discrimination laws.

    "We could keep arguing with the District in court for years about some of the legal and constitutional issues in this case, and we will if we have to," Fidanque said. "But that shouldn't be necessary if the School Board would just take a fresh look at the facts and do what they know in their heart is the right thing."

    "The Boys Scouts may have a legal right to discriminate against atheists, agnostics, gays and others, but we remain convinced that as long as they continue that discrimination they have no right to receive special access to Portland elementary schools during the school day to recruit 6 and 7 year-old boys to join in that discrimination," Fidanque said.

    Graphic Rule

    STATEMENT BY DAVID J. FIDANQUE Sept 1, 1999
    Executive Director, ACLU Of Oregon

    Judge Ceniceros' ruling had a silver lining for the ACLU and for our clients.

    Judge Ceniceros said in his opinion issued Tuesday that the "most disturbing aspect of this case is the Boy Scouts' denial of membership to boys and scoutmasters who do not acknowledge the existence of God."

    The judge's factual finding is important because up until now school officials have denied any knowledge of the Boy Scouts' long-standing policy of denying membership to atheists.

    For almost three years the Portland School District has danced around the facts in this case. The District has taken a 'Don't Ask, Don't Know' posture when it came to the issue of discrimination by the Scouts.

    Now is it clear for all to see. The stock-in-trade of the Boy Scouts is discrimination against those who don't believe in God. When Portland schools give special privileges to an organization that discriminates against some of its students based on religion, they are promoting that discrimination. We sincerely hope the School Board will reconsider its position and enforce District policies and state laws that prohibit this kind of discrimination.

    The ACLU will appeal Judge Ceniceros' ruling on the church-state issue if the District does not change its practices, but we may also file a new legal challenge against the school district based on state anti-discrimination laws.

    We could keep arguing with the District in court for years about some of the legal and constitutional issues in this case, and we will if we have to. But that shouldn't be necessary if the School Board would just take a fresh look at the facts and do what they know in their heart is the right thing.

    The Boys Scouts may have a legal right to discriminate against atheists, agnostics, gays and others, but we remain convinced that as long as they continue that discrimination they have no right to receive special access to Portland elementary schools during the school day to recruit 6 and 7 year-old boys to join in that discrimination.

    Graphic Rule