Mr. President, for years, the Boy Scouts of America organization has been subjected to malicious assaults by some homosexuals and some liberal politicians simply because the Boy Scouts of America organization, and many individual scout groups, have steadfastly continued to uphold their moral and decent standards for scouting and the leaders of that great organization.

I have long admired and supported scouting--its leaders, and the Boy Scouts themselves. (I was one a long time ago, although we will not discuss how long ago that was.) In any case, it comes as no surprise to me that the Supreme Court properly upheld in June of last year the constitutional rights of the Boy Scouts of America--their rights to establish their own membership guidelines, which included no obligation whatsoever to accept homosexuals as Boy Scout members or leaders.

Nor was there any surprise that there came the customary discordant company of radical militants demanding that this landmark decision of the U.S. Supreme Court be undermined.

Mr. President, they never miss a beat, not one--those who demand that everybody else's principles must be laid aside in order to protect the rights of homosexual conduct, or they go on and on like Tennyson's Brook. These radical militants are up to the same old tactics when targeting an honorable and respectable organization, the Boy Scouts of America.

Where else do you suppose these people are aiming their attacks now? The answer: the public schools of America. School districts across America are now being pressured to kick the Boy Scouts of America out of federally funded public school facilities. Why and how come, you may ask. I will tell you. It is because the Boy Scouts will not agree to surrender their first amendment rights, and they will not accept the agenda of the radical left in this country.

I asked the Congressional Research Service for a report about how many school districts have already taken hostile actions against the Boy Scouts of America. The Congressional Research Service reported to me that at least nine school districts are known to have publicly attacked the Boy Scouts of America, and in the majority of these cases they have done so in an outright rejection of the Supreme Court's ruling protecting Boy Scouts' rights.

One of the more publicized instances occurred in Broward County, FL--a place which earned some notoriety last fall due to its ballot confusion during the Presidential election. Obviously, Broward County, FL, is in another state of confusion: Its school board voted unanimously to forbid--get this--forbid the Boy Scouts of America to use the public school facilities for their meetings, as had historically been the case, unless the Boy Scouts compromised with, guess who? That is right: the homosexual leaders of Broward County. Thankfully, the U.S. district court in Florida intervened at that point, and the court has issued a preliminary injunction prohibiting Broward County from moving forward in evicting the Boy Scouts from the school premises.

I am obliged to acknowledge that Broward County is not the only school district taking such action. In my own State of North Carolina, members of the Chapel Hill School District have demanded that the Boy Scouts of America change their policy (which was upheld, Mr. President, you will remember, by the Supreme Court in June of last year), or the Chapel Hill School District will send the Boy Scouts packing to find another meeting place. Either do it their way or get out of the school. That is what they are saying in Chapel Hill, NC.

Only if they will accept homosexuals as their leaders and fellow scouts will these Boy Scouts be allowed to continue their meetings on school property. But those very same meeting places at school remain open for more than 800 Gay-Straight Alliance clubs. These are homosexual school clubs that have been formed with the assistance of the Gay, Lesbian, and Straight Education Network, which is a radical group committed to promoting immoral lifestyles in the school systems of America.

With groups such as these welcomed in our public schools, while the Boy Scouts are kicked out, schoolchildren need, it seems to me, to have the Boy Scouts stick around, and that is what I want to do with this legislation, if I can, and if the Senate will go along with it.

This arrogant discriminatory treatment of Boy Scouts of America must not be allowed to continue, and that is why I am sitting here this afternoon offering amendments to reinforce the U.S. Supreme Court's decision upholding the first amendment rights of the Boy Scouts of America and not oblige those Boy Scouts to compromise their membership or leadership guidelines, nor any of their moral principles.

Specifically, the pending first-degree and second-degree amendments propose that any public school receiving Federal funds from the Department of Education must provide the Boy Scouts or youth groups such as the Boy Scouts equal access to school facilities and must not discriminate against the Boy Scouts of America by requiring scouts or any other youth groups to accept homosexuals as members or as leaders or any other individuals who reject the Boy Scouts' oath of allegiance. The penalty for such violation could constitute the risk of their Federal funding being eliminated.

This amendment provides the Office of Civil Rights within the Department of Education the statutory authority to investigate any discriminatory action taken against The Boy Scouts of America based on their membership or leadership criteria.

In other words, DOE will handle cases of discrimination against the Boy Scouts, in the same manner that DOE currently handles other cases of discrimination, which are barred by Federal law and may result in termination of Federal funds.

For those unfamiliar with the existing process: DOE has given their Office of Civil Rights oversight responsibility over discrimination complaints. The Office of Civil Rights typically notifies and warns a fund recipient--such as a school--to correct its actions or else.

However, it should be noted that according to CRS:

Historically, the fund termination sanction has been infrequently exercised, and most cases are settled at ... the investigative process.......

Therefore, it's highly unlikely that any school will in fact ever have its funding cut-off; unless it adamantly refuses to provide the Boy Scouts of America equal access to school facilities.

Mr. President, 70 years ago, I remember raising my hand to take the Scout Oath. I have it written here but I really do not need it. How many times on Friday night would we stand with our hands up and say: On my honor I will do my best to do my duty to God and my country and to obey the Scout Law. To help other people at all times; To keep myself physically strong, mentally awake and morally straight.

Mr. President. I hope the Senate will, as the U.S. Supreme Court has already done, uphold the constitutional rights of the Boy Scouts of America to continue to take this oath, meaningfully and sincerely.

I ask unanimous consent that the two memoranda, prepared by the Congressional Research Service and a legal analysis, which was prepared by the American Center for Law and Justice in support of my amendment on the grounds that it is constitutional--I ask that all of these documents be printed in the CONGRESSIONAL RECORD at the conclusion of my remarks.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Memorandum to Hon. Jesse Helms from American Law Division, CRS, Mar. 5, 2001

Federal Civil Rights Enforcement by the Office of Civil Rights of the U.S. Department of Education and Related Matters

At your request, this memorandum summarizes our recent discussions relative to enforcement by federal administrative agencies--in particular, the Office of Civil Rights (OCR) in the Department of Education--of Title VI of the 1964 Civil Rights Act and other federal statutes prohibiting discrimination in state and local programs receiving federal financial assistance.

OCR is responsible for enforcing federal laws barring discrimination based on race, sex, national origin, disability or age in all federal education programs or activities funded by the federal government at the elementary, secondary, or higher educational level. It derives its authority mainly from the following statutory sources: Title VI of the 1964 Civil Rights Act, which enacted a generic ban on race, color, or national origin discrimination in all federally assisted programs, educational or otherwise; Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in education programs or activities that receive federal financial assistance; Section 504 of the Rehabilitation Act of 1973, banning discrimination because of handicap in all federally funded activities; and the Age Discrimination Act of 1975.

Federal agencies were authorized by Title VI to enforce nondiscrimination ``by issuing rules, regulations, and orders of general applicability'' and to secure compliance through imposition of sanctions, which may include the ``termination or refusal to grant or to continue assistance'' to recipients, or by ``any other means authorized by law.'' An early target of Title VI enforcement efforts were segregated ``dual school'' systems in the South, which had resisted the mandate of Brown v. Board of Education to desegregate with ``all deliberate speed.'' The Civil Rights Act enlisted the executive branch--in this case, the former Department of Health Education and Welfare--as an ally of the courts in effectuating compliance with desegregation requirements by means of threatened fund cutoffs. With statutory creation of the Department of Education in 1979, OCR was made the principal entity responsible for administratively enforcing the panoply of federal laws barring discrimination in programs and activities carried on by federally financed schools, school districts, and higher education institutions.

OCR enforces the noted statutes by conducting investigations of complaints filed in its ten regional offices or at national headquarters in Washington, or by conducting compliance reviews. Compliance reviews are internally generated and are intended as broad investigations of overall compliance by recipients of Federal financial assistance from the Department of Education. Institutions are targeted for such review by examining information gathered in surveys by OCR and from other sources. The surveys are intended to assist the agency in identifying potential areas of ``system discrimination.'' Upon finding an apparent violation of Title VI or other applicable law, OCR notifies the fund recipient, i.e. the state or local education agency, and must then seek voluntary compliance. If voluntary compliance cannot be secured, OCR may pursue enforcement through fund termination proceedings within the agency or seek compliance by other authorized means. The administrative fund termination process entails notifying the alleged discriminatory entity of the opportunity for hearing before a DOE administrative law judge. Alternatively, and more often the case, the matter may be referred to the Department of Justice (DOJ) with recommendation for appropriate legal action.

Historically, the fund termination sanction has been infrequently exercised, and most cases are settled at one of four stages of the investigative process: early complaint resolution; during negotiations prior to a ``letter of finding'' by the agency of a violation, or following such a finding; and at the administrative enforcement stage, when the institution is given a final opportunity to correct any violation found by the ALJ. In addition, litigation instituted by DOJ, on referral from DOE, or by private parties pursuant to an implied right of action has been an important avenue for Title VI enforcement. Although much litigation has concerned public school desegregation, Title VI judicial remedies have also been invoked for claims of discrimination in school disciplinary proceedings, failure to provide bilingual or supplemental instruction for non-English speaking students, student grades and ability grouping, financial aid or scholarship programs. *.*.*.*.*

[Memorandum to Hon. Jesse Helms from American Law Division, CRS, Mar. 6, 2001]

Actions by Various School Districts Across the Nation to Restrict Access by Local Scouting Organizations to Public School Facilities

This memorandum responds to your inquiry, and our recent conversation, relative to the above.

In Boy Scouts of America v. Dale, the U.S. Supreme Court ruled, by a 5 to 4 vote, that the Boy Scouts have a constitutional right to exclude homosexual members and leaders. Since then, controversies have arisen in Broward County, Florida, New York City, and several other jurisdictions concerning continued local school board support of scouting programs. In Broward County, school authorities reportedly ``evicted 57 Boy Scout troops and Cub Scout packs from school property in December [2000]'' for violating a nondiscrimination clause in their agreement for use of the facilities. The Boy Scouts responded with a federal lawsuit in Miami district court, apparently still pending, which challenges the officials' action as unlawful ``viewpoint discrimination.'' The action claims that the school district violated the Scouts' right to free expression and equal access to public facilities. As we discussed, presumably neither Title VI of the 1964 Civil Rights Act nor Executive Order 13160, issued by former President Clinton, would prohibit denial by local educational agencies of school facilities or services to scouting organizations.

A search of the Westlaw all news database revealed that the following state or local educational agencies have taken, or are considering, actions to restrict Boy Scout access to public school facilities since the Supreme Court decision in Boy Scouts of America:

Broward County, Fla.: ``Broward County's school board voted unanimously to keep the Boy Scouts of America from using public schools to hold meetings and recruitment drives because of the groups ban on gays.'' 11/16/00 Fla. Today 06, 2000 WL 20222668.

Chapel Hill N.C.: ``The Chapel Hill-Carrboro school board voted [on January)11, 2001] to give Scouts until June to either go against the rules of their organization or lose their sponsorship and meeting places in schools.'' 1/13/01 News & Observer (Raleigh NC) B1, 2001 WL 3447689.

New York City: ``School Chancellor Harold Levy ..... said the city school system would not enter into any new contracts with the Boy Scouts of America;'' and that all sponsorships and special privileges by city schools would be terminated, but that they ``will be allowed to have access to school buildings after school hours on the same basis as other organizations, which means they would have to seek customary approval first.'' 12/3/00 Star Ledger (Newark N.J.) 028, 2000 WL 29894638.

Los Angeles, CA: Los Angeles City Council has ``directed all of the city's departments to review contracts with the Boy Scouts and order an audit of those contracts to ensure they comply with a nondiscrimination clause.'' Id., 2000 WL 29894638.

Madison, Wis.: ``A resolution unanimously passed by the Madison School Board ..... harshly criticizes the Boy Scouts of America for its exclusionary policies, but the resolution does not change district policies towards the group.'' 12/6/00 Wis. St. J. B3, 2000 WL 24297730.

Seattle Wa.: ``Seattle Public Schools officials could decide as early as [January 2001] whether to restrict Boy Scouts of America's access to students and school buildings.'' 12/19/00 Seattle Post-Intelligencer B2, 2000 WL 5309920. No additional reportage on the current status of Seattle schools was located.

Minneapolis Mn: Under unanimously-passed Minneapolis School Board policy, ``[s]couts no longer can pass out recruitment material in the city's public schools and individual schools cannot sponsor troops; however, scouting units may still use school buildings for meetings and other events.'' 10/11/00 Stat. trib. (Minneapolis-St. Paul) 01B, 2000 WL 6992730.

Worchester Ma. ``Superintendent of Schools Alfred Tutela ..... banned the Boy Scouts from holding meetings in the properties of the Wachusett Regional Schools District.'' 9/15/00 Telegram and Gazette (Worchester) B1, 2000 WL 10219354.

Framingham Ma.: Scouts ``were banned from recruiting in the district's schools.'' 12/29/00 Nat'l Post A 16, 2000 WL 30654763.

We hope that this is of assistance to you.

[Memorandum to Office of Senator Jesse Helms from American Center for Law & Justice, May 17, 2001]

The Boy Scouts of America Equal Access Act (S. 1) Is Fully Constitutional

INTRODUCTION

The American Center for Law and Justice (``ACLJ'') is a nonprofit, public interest law firm and educational organization dedicated to protecting religious liberty, human life, and the family. ACLJ attorneys have successfully argued constitutional law cases in federal and state courts across the United States. See, e.g., Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997); Lamb's Chapel v. Center Moriches Union Free School District, 113 S.Ct. 2141 (1993); Bray v. Alexandria Women's Health Clinic, 113 S.Ct. 753 (1993); United States v. Kokinda, 497 U.S. 720 (1990); Westside Community Schools v. Mergens, 496 U.S. 226 (1990); Frisby v. Shultz, 487 U.S. 474 (1988); Board of Airport Commissioners v. Jews for Jesus, 482 U.S. 569 (1987). As reflected by these cases, the ACLJ has a substantial interest in preserving First Amendment freedoms for groups in various speech fora.

The Boy Scouts of America Equal Access Act (S. 1) is consonant with the Free Speech and Free Association provisions of the First

Amendment. The denial of equal access for speech or association by the Boy Scouts in a forum generally open to all other types of speech is unconstitutional viewpoint-based discrimination. See generally, Lamb's Chapel v. Center Moriches Union Free School Dist., 113 S.Ct. 2141 (1993). And, as to this issue in particular, a Federal District Court in Florida has very recently ruled that such discriminatory exclusion of the Boy Scouts from public school facilities was unconstitutional, and enjoined the school district from such further discrimination. See generally, Boy Scouts of America v. Till, Case No. 00-7776-Civ-Middlebrooks-Bandstra (S.D. Fla. Mar. 21, 2001). The Boy Scouts of America Equal Access Act follows in that determination to prevent discrimination and seeks to insure equal and constitutional treatment of youth groups, such as the Boy Scouts, without regard to such organizations oath of allegiance to God and country, or the acceptance of homosexuality. * * * * *

The Boy Scouts of America Equal Access Act is not only constitutional, the equal access that it seeks to protect is mandated by the Constitution.

EXCLUSION OF THE BOY SCOUTS FROM AN OTHERWISE OPEN FORUM WOULD BE REGARDED WITH STRICT SCRUTINY BY THE COURTS

When a school district by policy or practice rents its facilities to community groups it has clearly created an open forum and cannot then exclude speech because of its content. As the Supreme Court has said, ``[w]here the State has opened a forum for direct citizen involvement, exclusions bear a heavy burden of justification ''Widmar v. Vincent, 454 U.S. at 268.

When the government excludes speech from an open forum, the government ``must therefore satisfy the standard of review appropriate to content-based exclusions. It must show that its regulation is necessary to serve a compelling state interest, and that it is narrowly drawn to achieve that end.'' Widmar va. Vincent, 454 U.S. at 270. See also, Perry, 460 U.S. at 45; Cornelius v. NAACP Legal Defense and Education Fund, 473 U.S. at 800. When an otherwise available public facility has erected a content-based prohibition against religious speech in an open forum, for example, it must justify that burden by showing that it has a compelling governmental interest implemented by the least restrictive means. Widmar v. Vincent, 454 U.S. at 270; accord Adams Outdoor Advertising v. City of Newport News, 373 S.E.2d 917, 923 (Va. 1988). Like the City of Hialeah in Church of Lukumi v. City of Hialeah, 113 S. Ct. 2217 (1993), those that would target the Boy Scouts for special disabilities misunderstand that ``the interest given in justification of [such a] restriction is not compelling.'' Lukumi, 113 S.Ct. at 2234. I Establishment Clause concerns were not a compelling reason for the targeted restrictions in Lukumi, then generalized concerns about the Boy Scouts taking a politically incorrect stand on the issue of homosexuality is also not compelling.

EVEN IN A NONPUBLIC FORUM SUCH CONTENT-BASED EXCLUSIONS ARE UNCONSTITUTIONAL

The Supreme Court has made it clear that even in the context of a non-public forum, this type of viewpoint-based exclusion is unconstitutional and discriminatory. As the Supreme Court explained in Cornelius v. NAACP Legal Defense and Educ. Fund. Inc., 473 U.S. 788, 806 (1985), in a non-public forum `the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view the espouses on an otherwise includible topic.''

In Lamb's Chapel v. Center Moriches Union Free School Dist., 113 S.Ct. 2141 (1993), the U.S. Supreme Court declared that a religious speech exclusion (which is parallel to the moral viewpoint exclusion here) was unconstitutional viewpoint-based discrimination. The per se exclusion of a certain moral perspective is viewpoint-discriminatory. To make this point clear, the Court in Lamb's Chapel used non-public forum standards to emphasize that even in that context the Center Moriches School District has engaged in unconstitutional viewpoint-based discrimination because of its religious speech exclusion. See e.g., Lamb's Chapel, 113S.Ct. at 2141.

In Lamb's Chapel, the Center Moriches school district allowed dozens of groups to engage in a host of First Amendment expressive activities, but denied a church the right to rent the facilities after school hours to show a film series to adults on child-rearing because of its religious content. Lamb's Chapel, 113 S.Ct. at 2144. In declaring the religious speech ban to be unconstitutional the Court stated:

The film involved here no doubt dealt with a subject otherwise permissible under Rule 10, and its exhibition was denied solely because the film dealt with the subject from a religious standpoint. The principle that has emerged from our cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.--113 S.Ct. at 2147-48 (emphasis added, citations and quotation marks omitted). * * * * *

Like the school district in Lamb's Chapel, public school districts afford hundreds of thousands of people the opportunity to express themselves through a myriad assortment of words and phrases. And, as in Lamb's Chapel, the sole rationale for the exclusion of the Boy Scouts is a reliance upon the censorship itself as a justification for such a flat ban. This circular reasoning cannot withstand the strict scrutiny which must applied to such censorship. Such ``overt, viewpoint based discrimination contradicts the Speech Clause of the First Amendment.'' 113 S.Ct. at 2149, (Kennedy, J. concurring).

Even if the public school facilities were deemed to be non-public fora, a policy targeting the Boy Scouts for exclusion would fail the governing constitutional test. The Supreme Court has explained that ``[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint-neutral.'' Cornelius, 473 U.S. at 806 (emphasis added). The Boy Scouts exclusion fails even this deferential standard.

There is simply no reasonable basis for the per se exclusion of speech by private actors based upon speech content. Ultimately, some public school districts claim the sheer power to exclude the private speech of the Boy Scouts for no better reason than just because the school district says so. Such an assertion of a stark power to discriminate against a particular group because of its message is incompatible with the Constitution under any standard. * * * * *

CONCLUSION

The Boy Scouts of America Equal Access Act is fully constitutional, and properly exercises Congress power of the purse to insure the constitutionally recognized rights and privileges of all youth groups, like the Boy Scouts, are protected and honored. While it may be that exclusion of the Boy Scouts has become a cause celebre for some since the U.S. Supreme Court's decision in Boy Scouts of America v. Dale, 120 S.Ct. 2446 (200), censorship and discrimination are not answers to disagreements over stands on moral issues. The First Amendment specifically permits a variety of viewpoints to be expressed in the marketplace of ideas, without fear of censorship or exclusion.

The Boy Scouts of America Equal Access Act bill merely mandates what is constitutionally required. As Boy Scouts of America v. Till clearly illustrates, however, there is a clear and present need for such legislation. **************************************

Forwarded by:
William Castro
24606 N. Elliott Rd.
Acampo, CA 95220
(209)334-0181