Nancy Powell and son Remington challenged the Portland Public Schools for their policy in allowing a discriminatory organization -- the Boy Scouts of America -- to recruit in the classrooms.

n a setback for civil rights, a County Circuit Judge has ruled that the Boy Scouts of American may continue to recruit students in Oregon public schools despite the fact that the group discriminates against atheists, gays and others.

    Portland Atheist Nancy Powell sued the school district and the Oregon Department of Education in May, 1998, arguing that officials should not allow a discriminatory group to use the public schools for membership recruiting purposes and promoting religion. Multnomah County Circuit Judge Joseph F. Ceniceros, however, ruled that BSA was not primarily a religious group despite the requirement that prospective scouts swear an oath affirming belief in a god. Associated Press noted, "The case is being watch nationally because it threatens the close ties between the Scouts and public schools."

    Powell complained to education officials in 1997, when her children were enrolled at Harvey Scott Elementary School in Northeast Portland. Her son, Remington, was in class on two occasions when local Boy Scouts of America recruiters showed up, and placed bracelets on youngsters and encouraged them to attend local meetings. In a letter to the Superintendent of Public Education, Oregon Department of Education, Powell noted that teachers distributed promotional flyers for the BSA, and that the Scouts "willingly admit their own discriminatory qualifications for joining and every Cub Scout through Eagle Scout must sign a 'Declaration of Religious Principles' which states: "The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God and, therefore, recognizes the religious element in the training of the individual..."

    "No mother should ever again be put in the position of telling her sobbing 6-year-old son on the steps of his own school that 'our kind,' nonbelievers in the supernatural, are not welcome to join the group that solicited our membership," added Powell.

    Powell mustered a substantial body of evidence exposing the discriminatory and religious agenda of the BSA. This included statements from the Scouts that it "recognizes the importance of religious faith and duty," and that "Leadership is restricted to qualified adults who subscribe to the Declaration of Religious Principle, the Scout Oath, and the Scout Law."

    Judge Ceniceros, however, opined that the BSA was not primarily a religious group. "I conclude that the religious aspect of scouting is a very small part of its programs," he wrote in his decision. "I also conclude that under any criteria or test that I am aware of the Boy Scouts are not a religious organization." Neither side contested the facts of the case -- that the school district permitted Boy Scout recruiters on school property during school hours to promote the "private" organization.

    Ceniceros did not deal with the issue of whether or not the BSA was a "public accommodation," which could have placed the group under the control of anti-discrimination laws.

"No mother should ever again be put in the position of telling her sobbing 6-year-old son on the steps of his own school that 'our kind,' nonbelievers in the supernatural, are not welcome to join the group that solicited our membership."

    "I am aware of cases throughout the country in which the BSA have earnestly contended that they are a religious organization," said Ceniceros in a brief statement. "In all these cases it was claimed that the BSA were a place of public accommodation and subject to the various State Public Accommodation laws. However, the law which applies to establishment cases is clearly different from that which applies to public accommodation cases and what is a religious organization under one set of laws is not under another. These cases are troubling but not persuasive..."

    Ceniceros added that the denial of membership "to boys and scoutmasters who do not acknowledge the existence of God." was "the most disturbing aspect of this case." He noted, though, that "for purposes of the establishment clause, this denial of membership does not seem to matter."

    Reacting to the decision, Nancy Powell told Associated Press, "I do not relish having to tell him (her son) that when he goes back to school next week, he may at times be exposed to an organization that condemns what he is. I don't want them (the BSA) near my children, yet by law I must send my children to school."

    "You tell me the fairness in this," she added.

    David Fidanque of the Oregon ACLU expressed regret over the ruling. "The Portland district is allowing an organization that discriminates on the basis of religion to have special access to its school buildings." The Portland Oregonian newspaper noted, "While the Portland school board allows Scouts to recruit in schools, it bars armed forces recruiters from schools because of the military's 'don't ask, don't tell' policy that the board says discriminates against gays and lesbians."

    The Portland case joins several others testing the relationship between the Boy Scouts and government. The national BSA contributed funds for the Portland board's legal defense cost, and a spokesperson for the Scouting group gushed, "We are obviously delighted... We look forward to continuing to work with the public schools to held educate their children."

    Nancy Powell told AANEWS today that she would proceed with an appeal. "It's incredible, no one seems to believe the Boy Scouts when they telling people how religious they are, how they're a religious organization," she declared. "It's frustrating that the courts don't believe them either."

    Powell said that before a formal appeal, however, she will again ask the Oregon Department of Education and the Portland school district to change their policy.

   "It's such a contradictory situation. The Boy Scouts cannot come into high schools to recruit employees on 'Jobs Day' since the schools ban groups that discriminate against gays and lesbians," noted Powell. "But in the lower grades they still allow a group that will not admit atheists to membership to come in during school hours and make their pitch for new members."

    Ms. Powell added that any appeal would remain focused on the establishment clause issues. "It's not OK to go around saying that homosexuals are not morally straight, or that atheists cannot be good citizens," Powell declared.

    "Atheists have to stand up in public against this sort of bigotry."

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