BSA Equal Access Act (Complaint Letter)


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26 March 2013

DELIVERED VIA CERTIFIED MAIL: 7011 2970 0000 0196 3228

Mr. J. Aaron Romine, Regional Director

U.S. Department of Education, Office For Civil Rights

Cesar E. Chavez Memorial Building

1244 Speer Boulevard, Suite 310

Denver, CO 80204-3582


Re: Boy Scouts of America Equal Access Act

 Dear Mr. Romine,

I was recently elected to serve on the Salt Lake City Board of Education. I am filing a complaint with your office on behalf of my neighbors who elected me to serve in this capacity.

I believe that the Salt Lake City School District is in violation of the Boy Scouts of America Equal Access Act of 2001 (Boy Scout Act) 20 U.S.C. § 7905, 34 CFR Part 108.

On March 16, 2013, two Latino parents reported to me, that a Principal of an elementary school within our community would not allow the Cub Scout Pack to continue meeting at the school.

On March 18, 2013, I put a call into the Principal and the Boy Scouts of America (BSA) Salt Lake Council office, in order to ascertain the validity of the report from the parents. A Scout Executive advised me that the Principal did indeed tell him that the Cub Scouts were prohibited from meeting in the building because of their position on ‘gay rights’. On this same day, I sent an email to the Salt Lake City School District Superintendent.

On March 19, 2013, the Principal returned my phone call from the previous day and confirmed that the Cub Scouts were prohibited from meeting in the building because they will not allow gay scout leaders. The Principal further explained that to allow the Cub Scouts to meet in the building would constitute a violation of district policy G-19. I responded that I felt the explanation was a misapplication of the district policy. I pointed out that the Community Learning Center had partnerships with faith-based groups that share the same position as the BSA on this issue. I asked, “would we also ban them from the building?” I also expressed my view that in prohibiting the Cub Scouts from meeting in the school, the District is in violation of the Boy Scout Act.

On this same day, prior to the start of the school board meeting at approximately 5:30 p.m. the Superintendent advised me he had spoken to the Scout Executive, but had not yet spoken to the Principal. He also mentioned that the Cub Scouts could still use the building; they would just have to pay the facility fee. I replied that would violate the Boy Scout Act because it denied the Cub Scouts ‘equal access’. I also pointed out that the BSA are District partners. The Superintendent seemed unaware of this partnership and was nebulous as to how he was going to resolve this conflict.

Salt Lake City School District’s, web page under the title of Community Learning Center:

Definition & Current Services: A Full Service Community School (or Community Learning Center) is a public elementary or secondary school that coordinates multiple federal, state, and/or local educational and social service programs through community-based organizations and public/private partnerships. The purpose of these schools is to improve the coordination, delivery, effectiveness, and efficiency of services provided to families and children. Improving academic outcomes for students and quality of life for the community are key elements of successful programs.

Schools involved in the SLCSD expansion:

Rose Park Elementary School

Lincoln Elementary School

Mountain View Elementary School

Current Partnerships: Healthcare providers, early childhood experts, refugee service providers, higher education, mental health, mentoring organizations, arts organizations, health and wellness partners, boy and girl scouts, adult education.

On March 20, 2013, I contacted the leadership of Equality Utah, a civil rights organization in Utah committed “to secure equal rights and protections for LGBT Utahns and their families”. I explained the situation that had developed and stated that as an elected official I was committed to their cause. I also explained that I saw no reason that the ‘equal rights’ they are pursuing should collide with the interest of the Cub Scouts in the schoolhouse. While Equality Utah is not the catalyst for the Cub Scout’s banishment from the school, I nevertheless, extended to them a phone call as a matter of courtesy.

In the spirit of full disclosure, I am a lifetime Scouter. I for one am not beyond challenging the institution of BSA when I have felt they were not sensitive to the changing demographics in our community (See: Tribune Article: Boy Scouts Chastised for Immigrant Rallies –April 15, 2006 & Deseret News: Scout Leaders Criticize Role of Troop In Demonstrations –April 16, 2006).

I nevertheless, reject intolerance in all its forms. In my view, the actions in this situation do not combat discrimination but serve to promote it.

The School District and the community should continue their commitment to partnerships that will serve to eradicate the ‘out of the classroom’ risk factors that impede a student’s ability to receive an equal opportunity to an education.

For the past century, the BSA has helped build the future leaders of this country by combining educational activities and lifelong values with fun. The BSA has enjoyed a long history of involvement in public schools.

In 2000, the United States Supreme Court in, Boy Scouts of America v. Dale , ruled that the Boy Scouts could enforce prohibitions on scout leaders under its First Amendment right of expressive association.

In 2001, a Federal District Court decision in Florida directly addressed the perceived conflict between the Boy Scouts right to private speech and a school’s anti-discrimination policies. In

Boy Scouts of America v. Till, the Broward County School Board attempted to end its relationship with the Boy Scouts as a result of its anti-discrimination policies. In that ruling, the Federal District Court acknowledged that traditionally, the daily operations of school systems are reserved to the states and local school boards. However, in this case, the court found in favor of the Boy Scouts. The Court stated that the constitutional rights to freedom of speech and expression are not shed at the schoolhouse gate.

The Court found that once the school created a limited public forum, by allowing public groups use of its facilities, the school may not exclude speech on the basis of viewpoint. The public organizations using the school facilities, including the Boy Scouts, have a First Amendment right to freedom of expressive association. These constitutional rights were violated when the School Board acted to evict the Boy Scouts from the school facilities.

Clearly, the decision from the Florida Federal Court is consistent with the United States Supreme Court rulings on this issue. I therefore, assert that it is unlawful for the Salt Lake City School District to deny equal access to, or discriminate against the Cub Scouts on the basis of religious, political, and/or philosophical viewpoints.

I recognize that for many, the BSA has become a symbol of discrimination and a lightning rod for public debate over anti-discrimination laws. To the extent that the BSA, like other organizations teaches important values to our youth and serves a function vital to our pluralistic democracy. I believe it is an assault on the founding principles of our country for school officials to attempt to exclude a voice no less legitimate than its own from public school participation.

The Constitution provides that the government may not endorse religion or irreligion and that each individual retains the power to choose what moral compass to follow. Such choices imply the presence of diverse groups from which to choose. Singling out the BSA for exclusion does not serve these ends. A marketplace of ideas devoid of competitive viewpoints engenders an insidious society of conformity, contrary to the fundamental precepts of our Constitution.

I would argue that one of the Founding Father’s principle aims was to ensure that conformism never takes root in the American conscience. A School District should allow competing interests to co-exist in an effort to promote equally important concepts of individual and associational freedom. To do otherwise, is to risk damaging the diverse underpinnings to which our society is built upon.

While the Superintendent mulls over the banishment of the Cub Scouts from a school in my neighborhood, I am compelled to file this complaint with your office because school officials, in their effort to eliminate societal discrimination have instead contributed to it.

Moreover, the federal government requires any public school that receives funds from the Department of Education to grant the BSA equal access to school facilities if those facilities are held open to the public:

Boy Scouts of America Equal Access Act, 20 U.S.C. § 7905:

Notwithstanding any other provision of law, no public elementary school, public secondary school, local educational agency, or State educational agency that has a designated open forum or a limited public forum and that receives funds made available through the Department shall deny equal access or a fair opportunity to meet to, or discriminate against, any group officially affiliated with the Boy Scouts of America or any other youth group listed in title 36 (as a patriotic society), that wishes to conduct a meeting within that designated open forum or limited public forum, including denying such access or opportunity or discriminating for reasons based on the membership or leadership criteria or oath of allegiance to God and country of the Boy Scouts of America or of the youth group listed in title 36 (as a patriotic society).

Recognizing that the U.S. Department’s Office for Civil Rights is charged with enforcing the Boy Scouts of America Equal Access Act, I submit these allegations for your review and corrective action.


J. Michael Clára

Board Member, District 2

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