Page One

School Boy Scout policy may violate federal law

David Scharfenberg
Monday September 30, 2002

Berkeley Unified’s Board of Education decided last week to leave an anti-discrimination policy in place that may conflict with federal law. 

The 1992 school board policy, designed in part to cut off Boy Scouts’ access to public schools, prohibits any group that discriminates on the basis of race, sex, sexual orientation or a whole host of other factors to use school facilities for meetings. 

The Boy Scouts of America forbid homosexuals to hold leadership positions, disqualifying the organization from use of school property.  

The board’s policy appears to conflict with the federal “No Child Left Behind” law signed by President George W. Bush in January which, among other things, requires school districts to provide the Boy Scouts with access to facilities. 

Failure to comply, the law reads, will result in the termination of federal education funds, which flow to Berkeley Unified to the tune of $6 million to $8 million a year. 

District officials contend that the 1992 board policy includes just enough wiggle room to ensure that Berkeley Unified is in compliance with the “No Child Left Behind” law. 

The wiggle room is found in the details of the board policy. 

The policy prohibits discrimination on the basis of race, religion, sexual orientation, “or any other basis made unlawful by federal, state or local laws.” School officials, in an interpretive twist, argue that the “any other basis” phrase could extend protection to the Boy Scouts. 

But Board of Education member Ted Schultz acknowledged that the board did not originally intend the “any other basis” phrase to protect a group it sought to exclude. 

“It certainly was not the intent,” he said. 

UC Berkeley law professor Malcolm Feeley said the Boy Scouts provision of No Child Left Behind is one in a long line of largely symbolic measures added to federal law. Feeley said he does not expect the district to lose federal funding if it keeps the 1992 policy in place. 

“My prediction is it will be conveniently forgotten so that everyone can walk away and do what they want,” he said. 

U.S. Department of Education spokesman Jim Bradshaw offered no immediate opinion on whether the board’s 1992 policy would conform with the No Child Left Behind law. 

“We would have to take a look at that and review that language,” he said. “But we would hope and expect that organizations would follow the intent and spirit of the law.” 

Superintendent Michele Lawrence said the district may revise the policy in January, when it plans to overhaul its entire policy book, if compliance issues linger.  

Board member John Selawsky said he would not be troubled by letting Berkeley Boy Scout troops onto district property since most of the local scout leaders have denounced discrimination against gays. 

“They have publicly disavowed the national Boy Scouts’ homophobic policy,” he said. 

But local scout leaders, who were forced to leave the schools after the board passed its 1992 policy, said they do not intend to push for renewed access anytime soon. 

“We’re not pushing that because we understand its a sensitive political issue,” said Alan Houser, scoutmaster for Berkeley Boy Scout Troop 24. 

Houser said the district has allowed Boy Scouts to drop off posters at schools this year, but he is unsure if anyone is actually hanging them up. 

Houser said he would like the opportunity to add a Boy Scouts handout to the “fistful of flyers” that students receive in September, but that the district has denied the request. 

Lawrence said she has forbidden the practice not because of the Boy Scouts’ stance on homosexuality, but because she wants to cut down on the overall number of flyers students receive. 

“We just are bombarded,” she said, adding that she has denied several groups in addition to the Boy Scouts. 

Houser said the flyers would help reverse a significant drop in the number of public school students joining the Boy Scouts since 1992, when Berkeley’s troops were forced to leave the public schools. 


Contact reporter at scharfenberg@