A School That Ignores Its Diversity Statement … Because Federal Law Requires That It Do So

Yesterday in my post A School That Ignores Its Diversity Statement I wrote about a local elementary school apparently allowing the Boy Scouts to place signs upon the school’s grounds. The concern that I expressed was that it seemed contradictory to me for the school to have a strong diversity statement that included specific reference to sexual identity and to allow access to the school to a group that had  policies expressly opposite the specific terms and purpose of the diversity statement. Well, it turns out that the school had no choice but to allow the Boy Scouts to use the school because of a the No Child Left Behind Act and the Defense Authorization Act of 2006 (seriously).

Last night, I went to “meet the teacher night” at Clay Middle School (another school in the Carmel Clay Schools, barely a mile from the school that I wrote about). Later during the evening, I checked my email and found the following from Steven A. Dillon, Ed. D., Director of Student Services for Carmel Clay Schools:

Your recent article concerning Carmel Clay Schools entitled “A School That Ignores Its Diversity Statement” drew my attention. Hopefully I can clear up a misconception. Since public schools like Carmel Clay Schools receives federal funding to support our students education we as an organization cannot discriminate against, any group or individual. Furthermore, under the conditions of the Boy Scouts of America Equal Access Act, we cannot deny access to our facilities. Use of our facilities for their programs, allows them to place signage at the school just prior to their recruitment nights. Following the law does not mean that we ignore our diversity statement.

Since I assume that you are interested in the truth and want your blogs to be accurate, we would appreciate a correction printed in your blog.

My contact information is below if you would like to discuss the matter.

The Boy Scouts of America Equal Access Act was passed to prevent State and Federal agencies from reducing their support for the Boy Scouts of America (and other youth organizations). The bill was passed in the wake of a number of controversies involving the Boy Scouts of America, such as their exclusion of gays and atheists, and subsequent attempts to limit government support of the organization.

In particular, the bill states that no school receiving Department of Education funds:

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 of the United States Code (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 of the United States Code (as a patriotic society).

(Emphasis in original; contact information omitted)

Now I will admit that I after posting the original article, I did wonder about the issue of the school being a limited public forum, but I wasn’t really thinking about the law when I wrote my thoughts; rather, I was focusing (as I hope I made obvious) on the issue of the collision between the diversity statement and the express policies of the Boy Scouts. But I had never given any thought to or even heard of a specific law that expressly requires schools to grant access to the Boy Scouts.

So, anyway, here is the email that I sent back to Dr. Dillon (it was late and I was tired, but I wanted to address his concerns right away):

Thank you for your email. I must admit that I was completely unaware of the law that you reference and I appreciate your directing my attention to it and I will certainly review what it provides.

I will post a follow up to my blog outlining the information that you have provided. You are absolutely correct that I want my posts to be accurate and correct and I endeavor to make corrections and clarifications as appropriate.

I am a product of Carmel Clay schools (Woodbrook, Clay, and Carmel High School '84) and my children are presently students in the school system. I am very proud both of the education that I received and of the things the school system has achieved. But I have also worked, both as a student and parent, to try to make Carmel's schools even better, especially in the areas of diversity and respect for minorities. Certainly much progress has been made from what things were like in the mid-'70s … yet there is always room for further improvement.

I am gratified, though, to see the adoption of a strong diversity statement and the elimination of the reliance upon "the church" as an essential component of the educational system.*

Thank you again for reaching out and clarifying both the law and policy as they relate to the situation that I wrote about. And thank you for paying attention and taking my concerns seriously. Your response leaves me comfortable that Carmel's schools are under strong and thoughtful leadership that is both aware of and sympathetic to concerns and to the requirements of the law.

Should you ever wish to discuss this or any other aspects of the Carmel Clay Schools, I would welcome the opportunity as I hope for nothing other than ensuring that Carmel's children continue to receive the very best possible public education.

As I promised Dr. Dillon, I’ve now done a bit of (relatively quick) research on the Boy Scouts of America Equal Access Act. Not surprisingly, Dr. Dillon’s explanation of the Act and his quotation of the language of the act is precisely correct. The provision quoted by Dr. Dillon is Section 9525(b)(1). I think that it’s worth noting the provisions of Section 9525(b)(2) as well:

VOLUNTARY SPONSORSHIP- Nothing in this section shall be construed to require any school, agency, or a school served by an agency to sponsor any group officially affiliated with the Boy Scouts of America, or any other youth group listed in title 36 of the United States Code (as a patriotic society).

The Boy Scouts of America Equal Access Act was part of the No Child Left Behind Act. Interestingly, when looking for information about the history and response to the Boy Scouts of America Equal Access Act, I came across another related law adopted as part of the Defense Authorization Act of 2006, referred to as the Support Our Scouts Act of 2005 that has provisions very similar to the Boy Scouts of America Equal Access Act.

I’m going to presume that Cherry Tree Elementary School (and other Carmel Clay Schools) have made themselves limited public forums. Thus, it would appear that on the basis of Federal law, schools like Cherry Tree Elementary School have no choice but to allow groups like the Boy Scouts to hold events in or at the school, notwithstanding a diversity policy that might otherwise suggest that such groups not be allowed. Thus, my criticism of Cherry Tree Elementary School was almost wholly misplaced. And for that I apologize.

I do query whether either the Boys Scouts of America Equal Access Act or the Support Our Scouts Act of 2005 requires the school to allow the posting of signs on the school grounds, even if the group posting the signs must be permitted access to the limited public forum of the school itself. And I query for how long those signs must be allowed to remain. Can the group post them only the day of the meeting? The whole week? All year? I don’t know and I’m not sure that the law gives us much guidance there.

More importantly, I question the wisdom of the Acts. I’m not sure that it’s a good idea to have statutes giving particular protection to groups that choose to discriminate.** Furthermore, I’m not sure what message we’re sending to children when we tell them that we’re going to enforce broad and inclusive diversity statements but then tell them that the law requires us to make exceptions for certain groups that choose to do precisely the opposite of what the school’s diversity statement represents. And I wonder whether, given that the terms of the diversity statement and the purpose of the school are both grounded in education, discussion of the collision between diversity and discrimination is an appropriate topic to be addressed at the school (though, given the age of elementary school children, this would obviously be a very sensitive issue).

I guess those are all questions for another day.

Today I simply wanted to be sure that I set forth the correct information regarding the obligations of Cherry Tree Elementary School to allow the Boy Scouts to make use of the school as a limited public forum in compliance with Federal law. And again, I want to apologize for the criticism leveled against the school in my original post. Finally, as I noted in my email to Dr. Dillon, I want to thank him for responding to me and providing the pertinent information, for taking the matter seriously, and, most importantly, for the decision of Carmel Clay Schools to adopt such a strong and inclusive diversity statement.

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*Last spring I wrote Who Shares Responsibility for Educating Children Attending Public Schools? in which I noted that the Student Handbook for Clay Middle School said that “that education is a continuing process, and that the responsibility of educating must be the combined effort of the school, the church, and the home.” As you can probably guess, I took issue with the inclusion of “the church”. While I have not had a chance to write about it here (I did post about it on Twitter), I’m pleased to note that the 2012-2013 edition of the Student Handbook omits the phrase “the church” from those who have responsibility for educating our children.

**I am curious to know how people who think that Girl Scouts are a “radicalized organization” that acts as the “tactical arm” of Planned Parenthood with an agenda of “sexualizing young girls” and promotes a homosexual lifestyle and allows transgender youths to participate feel about Girl Scouts being treated like Boy Scouts for purposes of access to schools pursuant to the Support Our Scouts Act of 2005.