The ACRU Blog

Any comment on how the Boy Scouts of America used to charter units to public schools, and expected these public schools to unlawfully discriminate on the BSA's behalf? The BSA didn't stop doing this until the ACLU threatened to start bringing lawsuits against public schools that chartered units that excluded atheists. The BSA may be a private organization, but public schools are not, yet the BSA had no problem having public schools own & operate their supposedly "private" clubs.

Government schools never "own & operate" Boy Scout chapters, and never have. The Boy Scouts have merely used school property for their meetings, as have myriad organizations ranging from local citizen groups to volleyball leagues. And the use of public property by varied outside groups has never led anyone to the ludicrous suggestion that such use constitutes the establishment of volleyball as the national sport.

That's simply incorrect; the BSA used to issue charters to thousands of public schools, and public schools used to be the largest single chartering organization.
For example, see this news story:
www.sbcbaptistpress.org/bpnews.asp?ID=20306
How could the BSA remove the charters of thousands of scouting units from public schools if public schools had never chartered them?

Please note that I am not talking about BSA units that merely meet in schools; I am referring to the chartering organization. Ask the BSA who their largest chartering partner was back in 1997. Check out "BSA Today" Feb/Mar 1998, which shows that public schools were the #1 charterer, with 427,842 members.

In point of fact, a charter does not equal ownership. It is a sponsorship, and one may confer mission and/or certain special rights and privileges on an organization. Congress granted the Boy Scouts a charter in 1916 in recognition of their positive mission, but the Scouts remained a private institution (being founded in 1910).

Even if it meant what you claim, that shouldn't matter given the Constitution and the intent of the Founders concerning religious expression. For more information on this broader point, see my post, "The ACLU Takes on James Madison and the Founders on School Prayer."

Of course, the intent of the Founders and a long tradition in America of a positive public roll for the Boy Scouts doesn't prevent people at the ACLU and elsewhere from concocting some convoluted constitutional crisis out of this. In essence, the ACLU is telling the Founders and every generation of Americans before this present one that they had no idea what the Constitution actually said!

In point of fact, a charter does not equal ownership.

That comes as a surprise to the BSA:
http://www.scouting.org/factsheets/02-507.html
...

To support approximately 124,000 Scouting units owned and operated by chartered organizations, more than 300 BSA councils provide professional counseling and administration, commissioner service, training for leaders, camping and outdoor facilities, program materials and literature, planning tools, and other program aids.

Right there, the BSA says the chartered organizations own & operate the Scouting units.

Also, the chartering organization is in charge of approving leadership for the unit, and public schools can't apply the BSA's religious test for leadership, either.

I'll put up the ACLU's record of winning in the courts using their interpretation of the first amendment over the ACRU's anytime. Public schools can't charter discriminatory BSA units, because doing so requires that public school to discriminate on the basis of religion.

Yes, Brian, in a very limited sense a charter organization "owns and operates" a BSA troop. But that ownership isn't even so in the sense of a McDonald's franchise, though it is certainly franchise-like. Simply saying that they "own and operate" is misleading.

A Boy Scouts charter organization does two things: 1) oversees troop leadership, often through a charter representative who holds membership in both Scouting and the other organization; and 2) sets up or provides a place to meet (school gym, clubhouse, VFW hall, etc.)

Many charters are an outside organization such as a service club or grange hall sponsoring a local troop for boys in general. Other charters allow a Mormon Church or a Presbyterian Church or a PTA to focus their troop on their own people. There is some flexibility within limits.

The BSA can remove a chartered organization from sponsoring a troop, and a charter can be transferred. In other words, ultimate control comes from the Boy Scouts, not the chartering organization.

But again, even if we were to grant you your first argument, that should mean nothing concerning the constitutionality of the Boy Scouts retaining their Oath to God and their moral code, even if chartered by a public school. In addition to the arguments set out in my post and my other linked article above, at least 90% of Americans believe in God. The link you provide shows that as varied faiths and denominations as the Mormons, Baha'i Faith, B'nai B'rith, Buddhist, Baptists, Roman Catholics, Greek Orthodox, Pentecostals, Mennonites, etc. are involved in the Boy Scouts.

The "God" of the Boy Scout Oath is hardly defined. And even if it was, the practices of a local school hardly impact the potential establishment of a national church. The fact that the ACLU has succeeded in bullying the Boy Scouts and has won a few cases in liberal courts hardly proves them right on the question of constitutionality. I'll take James Madison, Thomas Jefferson, and 150+ years of American history and tradition over the specious and novel claims of the ACLU any day.

Your objections rely on the ACRU's faulty interpretation of the first amendment; in your view, anything short of a creation of a national church is acceptable, even a public school discriminating against atheists.

Unfortunately for your side of the argument, government officials and courts disagree with the ACRU's narrow view. Even the BSA itself saw that they were heading for disaster if they continued to have public schools as chartering partners.

For just one example, a school in my area (Cambridge-Isanti High School) used to use the BSA's Venturing program for activities like water polo, theatre, pottery, book club, dance club, etc. Any student wanting to participate in any of these activities had to join the school's Venture Crew. The principal of the school was also a longtime member of the local BSA district; he claimed that atheists could join his Venture Crew, but when I talked to David Park in the BSA legal department at BSA National, Park said atheists could not join that Venture Crew, even one chartered by a public school. Public schools can't run programs like theatre, water polo, or pottery classes that exclude students based on their religious views. The school had to stop using the Venturing program, because it violated the law and the constitutional rights of its students. This was in 2004, well after the Dale decision.

I suspect you've read little of Madison's or Jefferson's writings on religious freedom. You certainly have no respect for the rights of atheists.

I rely on the words of the Constitution, the words and actions of James Madison, Thomas Jefferson, and the other founders, and the majority of US history. You either refuse to read or don't care. But the record is clear.

I am not debating the fact that the courts have got this issue backwards more often than not these past few decades. You are right on this score: liberals are effectively rewriting the Constitution, without doing so through a constitutional amendment, as required. But until America is declared a judicial oligarchy and not a constitutional republic, I'll keep standing with the Founders of our country instead.

There is no right for atheists to force a private organization to accept them on their God-less terms. Since when in America is it a right to take away someone else's constitutional rights in order to get your way? If you don't like the Boy Scouts and their policies there is a simple solution: join another group or form your own.

How does your "join another group or form your own" work in my Cambridge-Isanti High School example? The school's theatre program was part of their Venture Crew -- to join the school's theatre group, you had to join their Venture Crew, which barred atheists and gays. "Join another group"? It's the only one offered by the school. "Form their own"? How can a public school run a theatre group that unlawfully excludes its own students on the basis of religion and sexual orientation?

I too have no desire to debate whether court interpretations are right or wrong; however, could you comment on the school situation above? Do you think it's legal for a public school to have many school activities open only to Venture Crew members, which is not open to atheist and gay students?