Case No. 00-7776-Civ-Middlebrooks/Bandstra

BOY SCOUTS OF AMERICA and
SOUTH FLORIDA COUNCIL-BOY SCOUTS OF AMERICA,
Plaintiff,
v.
FRANK L. TILL, JR., et al.
Defendants.

PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs, Boy Scouts of America and South Florida Council, Boy Scouts of America (collectively, "the Boy Scouts" or "Plaintiffs"), through undersigned counsel, hereby file its Reply to Defendants' Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction.

INTRODUCTION

In its Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction, Defendants acknowledge that the Broward County School Board has created a public forum in the public schools by granting open access to a wide variety of community groups. Similarly, the School Board has not refuted Plaintiffs' assertion that the Board has not sought to enforce its nondiscrimination policy against other groups using the schools, regardless of their membership policies with respect to age, gender, religion or other classifications contained in the Board's nondiscrimination policy. The only argument raised by Defendants is that the 1998 Partnership Agreement, which has now been unilaterally terminated by the School Board, constituted a waiver of Plaintiffs' First Amendment right to expressive association.

Contrary to Defendants' contention, the reproduction of the School Board's nondiscrimination regulation in a written agreement between the South Florida Council, Boy Scouts and the School Board does not constitute a waiver of the Boy Scouts' constitutional rights to free speech and expressive association. First, the contract has been terminated at the election of the School Board and no longer defines the relationship between the School Board and the Boy Scouts. Second, the School Board may not attempt to restrict one group's constitutional rights by way of a written agreement, where other similarly-situated groups enjoy unrestricted access to the public forum in the schools. Conditioning access to a public forum upon a waiver of constitutional rights is itself evidence of viewpoint discrimination and constitutes an Equal Protection violation.

I. A TERMINATED CONTRACT CANNOT BE USED TO DENY PLAINTIFFS' CONSTITUTIONAL RIGHTS

A. School Board's Waiver Argument is a Red Herring

The Partnership Agreement between the School Board of Broward County and the South Florida Council, Boy Scouts of America was officially terminated when the School Board provided 30 days written notice as required by Article VIII of the Agreement on November 17, 2000. Accordingly, regardless of the terms of the terminated contract, it does not control the Boy Scouts' right of access to the schools. Instead, the Boy Scouts seek continued access to the schools, not pursuant to a contract which is no longer valid, but as an established constitutional right of access to a public forum. Since the Broward Schools are used as a public forum, the Boy Scouts, like any other group, are entitled to use school facilities after hours without being subjected to viewpoint discrimination concerning their moral values and leadership standards.

The question in this case is not one of contract rights, but one of discrimination by the School Board against the Boy Scouts in excluding them from the use of school facilities. Indeed, Defendants agree that in the absence of any contract, a state may not constitutionally restrict the off-time use of school facilities based on the membership policies or political or ideological views of a particular group. See Defendants' Opposition at P. 7. The existence of a prior contract does not sanction conduct that would otherwise be unconstitutional. Thus, the School Board's contract defense is a red herring, having no relevance to Boy Scouts' constitutional rights today to hold meetings in school buildings.

B. The Partnership Agreement Did Not Constitute a Waiver of Constitutional Rights

While the School Board argues that Plaintiffs had agreed to waive its constitutional rights with respect to its specific activities within the Broward County public schools, the Partnership Agreement does not demonstrate a clear and unambiguous waiver of the Boy Scouts' constitutional right to free association and expression. Thus, even during the period the Agreement was in force, it did not constitute a valid waiver of the Boy Scouts' constitutional rights.

There is a strong presumption against waivers of constitutional rights, and the courts must not presume acquiescence to the loss of fundamental rights. Johnson v. Zerbst, 304 U.S. 458 (1983). Such presumption also extends to contracts purporting to divest a party of a constitutional right. Johnson v. U.S. Dep't of Agriculture, 734 F.2d 774, 784 (11th Cir. 1984). The party claiming that a waiver has occurred bears a heavy burden of establishing by "specific proof" that a "voluntary, intelligent, and knowing" "relinquishment of a known right or privilege" has occurred. Id. at 784; Gonzalez v. County of Hidalgo, Texas, 489 F.2d 1043, 1046 (5th Cir. 1973). Such a waiver must be established by "clear and compelling" evidence. Miami Tele-Communications, Inc. v. City of Miami, 743 F. Supp. 1573 (S.D. Fla. 1990) (citing Curtis Publishing Co. v. Butts, 388 U.S. 130, 145 (1967)).

Although the Partnership Agreement restates School Board Policy No. 1341, it did not operate as a clear, unambiguous "blanket waiver" of the Boy Scouts' constitutional right to freedom of speech and expressive association.¹ No constitutional rights are mentioned, nor is the word "waiver" even used. In fact, it is unclear from the language of the Agreement what constitutional rights Defendants contend have been waived and to what extent. Defendants failed to show that the contract clause they cite was anything more than a standard term added without discussion as a prerequisite to School Board's contract.²

Significantly, at the time the Partnership Agreement was signed in 1998, the Supreme Court had not yet defined the parameters of the First Amendment right to expressive association, which it would do two years later in Boy Scouts of America v. Dale, 530 U.S. 640 (2000). Thus, the Boy Scouts could hardly have knowingly and intelligently waived a constitutional right which had not yet been judicially upheld. See Miami Telecommunications, 743 F.Supp. at 1579. (Finding company could not waive right to equal protection that had not been upheld at the time the contract was signed).

A waiver of a fundamental constitutional right will not be implied from an ambiguous contract provision containing undefined terms. See e.g., In re Workers' Compensation Refund, 46 F.3d 813, 819 (8th Cir. 1995)(citing Fuentes v. Shevin, 407 U.S. 67 (1972)); (Contractual clauses purporting to waive constitutional rights must be clear and unambiguous.") Miami Tele- Communications, Inc., 743 F.Supp. at 1577 (finding no waiver of due process rights where the language was not clear and unambiguous and did not contain an express waiver).

II. REQUIRING A WAIVER FROM THE BOY SCOUTS AS A PRECONDITION TO ACCESS TO SCHOOL FACILITIES CONSTITUTES VIEWPOINT DISCRIMINATION AND VIOLATES EQUAL PROTECTION

Here, Defendants have twice violated the Boy Scouts' First Amendment rights, first by establishing a selective school use regulation and second by selectively enforcing it. Indeed, even though the School Board's policy also prohibits gender discrimination, Defendants brazenly suggest that the non-enforcement of their policies against the Brownies and Girl Scouts does not violate Equal Protection because such gender based membership policies are based on "common sense."³

In Knights of the KKK v. East Baton Rouge Parish School Board, the Fifth Circuit made clear that the State could not condition the use of a public forum based on the views of the applicant or its membership policies. 578 F.2d 1122 (5th Cir. 1978). Specifically, the State could not require adherence to a nondiscrimination policy as a precondition to access to school facilities. While Defendants agree that, under KKK, the School may not exclude the Boy Scouts based upon their viewpoint, they argue that they may nonetheless exclude them based upon a contract which incorporates such viewpoint discrimination. Such position represents a distinction without a difference.

The School Board may not impose an unconstitutional restriction on access to an open forum regardless of whether such condition is found in state law, in federal law, or in a contract. In KKK, the nondiscrimination policy was found in federal regulations and school board policy. Here, the nondiscrimination policy is found in School Board Policy No. 1341 and in the Partnership Agreement between the parties. Regardless of where this policy is expressed, it cannot be used to deny the Boy Scouts access to the public forum of the Broward County public schools based on the views and membership policies of the Boy Scouts. By dictating the membership policies of the Boy Scouts, Defendants are advocating exactly what the Supreme Court forbade in Dale and the 5th Circuit prohibited in KKK, that is "compelling unwanted association by conditioning access to a public forum on the Boy Scouts' acceptance of certain persons as members. To sum up, placing such a condition on the Boy Scouts, constitutes viewpoint discrimination, regardless of where that condition appears.

The School Board has not forced all of the other groups which use school facilities to waive, by contract, their constitutional rights. Indeed, Defendants acknowledge that it does not even require adherence to all elements of its nondiscrimination policy by other groups. Yet the Boy Scouts have been required to sign a contract compelling them to adhere to a policy that is unenforced against others, and the Boy Scouts alone have been subject to expulsion for violating this policy. By singling out the Boy Scouts from other groups which have freely used school facilities without such restrictive agreements, the School Board has violated the Equal Protection Clause.⁴

CONCLUSION

For the reasons stated in this reply and in Plaintiffs' memorandum of law in support of its motion, this Court should grant a preliminary injunction.

Attorneys for Plaintiffs Boy Scouts of America and South Florida Council-Boy Scouts of America

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served by U.S. Mail and facsimile this 5th day of February, 2001 on Edward J. Marko, Esq., Broward County Public Schools, Counsel's Office, 600 S.E. Third Avenue, Fort Lauderdale, Florida 33301, Bruce Rogow, Esq., 500 East Broward Boulevard, Suite 1930, Fort Lauderdale, FL 33394, and Michael Burke, Esq., Johnson, Anselmo, Murdoch, Burke & George, P.A. Post Office Box 030220, Fort Lauderdale, Florida 33303- 0220, Attorneys for Defendants.
 

1. School Board Policy No. 1341 provides that: "The rental use or enjoyment of school facilities or services by any group or organization which discriminates on the basis of age, race, color, disability, gender, marital status, national origin, religion or sexual orientation will not be permitted."

2. The Ninth Circuit's decision in Leonard v. J.E. Clark, 12 F.3d 885 (9th Cir. 1994), is distinguishable. There, the court found determinative that the union had raised the unconstitutionality of a particular contract provision during contract negotiations but nevertheless signed the agreement with the provision in it. As there was evidence that the union itself proposed the language of the agreement and the language was found clear and unambiguous, the contract clause was enforced. Id. at 890. The court held that "a relatively narrow limitation on the Union's political speech" did not outweigh the public interest in the finality of collective bargaining agreements and the predictability of municipal budgets. Id. at 892.

3. The notion that the sex and age discrimination practiced by the Girl Scouts is some how immunized by its federal charter is inconsistent with National Organization for Women in Little League Baseball, Inc., 127 N.J. Super, 522, 318 A.2d 33 (App. Div.), Aff'd., 67 N.J. 320, 338 A.2d 198 (1974), which held that state law required Little League to admit girls even though its federal charter described it as a program for boys.

4. Although Defendants note in their brief that they contest factual allegations in Jeffrie Herrmann's affidavit, they do not file any opposing affidavit. Instead of submitting an affidavit stating that, for example, no religious organization which meets in the public schools discriminates on any basis, Defendants make the broad, speculative, and unsupported statement in their brief that: "As we understand religious organizations, they welcome people of all faiths . . ." Opposition Memorandum at 9 (emphasis added). This is clearly insufficient to counter Herrmann's detailed factual allegations concerning the membership policies of specific groups which actually meet in Broward County public schools. Moreover, Defendants' contention in their brief that groups which restrict membership based on age and gender are permitted to meet in the schools because this type of discrimination is permissible is in direct conflict with its own nondiscrimination policy which expressly prohibits discrimination on these bases.