Friday, June 13, 2014

Seattle Public Schools Believes It Does Not Have to Comply with State Law Regarding Employment Discrimination

Several weeks ago I wrote to the Seattle Public Schools to understand why they were breaking the law in providing access to the BSA, well-known for it's employment practices discriminating against LGBT people.  This is their response:

Dear Mr. McGrath,

Received via e-mail 2:01 pm June 13/2014
Thank you for your inquiry regarding the use of Seattle Public School facilities by programs associated with the Boy Scouts of America and the Chief Seattle Council. We are aware of the concerns of discriminatory practices by programs associated with the Boy Scouts of America and appreciate your concern. As a school district, a large part of our funding for education comes from the federal government. Also, as I am sure you are aware, federal law trumps state and local laws. With that understanding, in 2002 the Boy Scouts of America Equal Access Act, Section 9525 of the Elementary and Secondary Education Act of A965, as amended by Section 901 of the No Child Left Behind Act of 2001 became Federal law. The law applies to public elementary and secondary schools, local educational agencies, and State educational agencies that receive Federal funds made available through the Department of Education. Under the Boy Scouts Act, which became effective on January 8, 2002, no such public school, LEA, or SEA that provides an opportunity for one or more outside youth or community groups to meet on school premises or in school facilities shall deny access or a fair opportunity to, or discriminate against, any group officially affiliated with the Boy Scouts of America, or any other group listed in Title 36 of the United States Code as a patriotic society, that wishes to meet at the school.

Seattle Public Schools must follow the law. Because we provide many youth and community groups the opportunity to use our District buildings, we must allow programs associated with the Boy Scouts as well. By denying the Boy Scouts, we would also be forced to deny all associations. In the end, this would prevent our students and families from accessing many very beneficial programs and would in the end harm our students.
Again, thank you for your concern and inquiry into our practices. I hope this information has answered your questions and I thank you for the work you do for our students.

Sincerely,

Larry Dorsey Civil Rights Compliance Officer
This reading of the law by SPS is flawed, in that it only applies to access to the physical plant before or after standard instructional hours (see http://www2.ed.gov/about/offices/list/ocr/boyscouts.html). The details in the ECFR don't change that (http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&rgn=div5&view=text&node=34:1.2.1.1.6&idno=34), making the claims by SPS regarding their during-school-hours BSA and/or LFL programs fully problematic. Additional suspect areas include any non-rented associated equipment storage, as well as approved during-school extra-curricular activities associated with such programs.

BSA/LFL are involved in SPS schools during school hours. For starters, there is the Garfield High School POST program (http://www.ghspost.org). I could imagine a series of interrogatories that would establish certain facts:
  1. When are meetings?
  2. How many kids?
  3. What adults are involved (SPS/BSA?)
  4. Who is the BSA/LFL liaison (scouting professional)?
  5. When are activities?
  6. Where is equipment stored?
  7. Who owns the equipment?
  8. Is there a document for review?
  9. What about employment discrimination?
  10. Are kids registered with BSA?
  11. If BSA forms are used...they were developed by discriminating org...
  12. Produce a copy of the contract...
Federal law does not apply to LFL contracts nor BSA contracts with the districts, as they are for accessing curriculum-based program materials that is paid for by the school district. The same is true with Exploring, in as much as it is sponsored by the district/school. The district has chosen to sponsor an Exploring Post and pay BSA for LFL materials and program administration conducted by their paid professionals. Federal law does not require the school district to do so. The districts use of those materials as administered by paid BSA and/or LFL "executives," including Scoutreach, is a violation of state law for activities that have no protection in federal law. Again, NCLB has no bearing on LFL and/or Exploring, in these instances.  I cannot tell if this is simply misunderstood by the respondent, or if a hand-wave is being attempted in the response.

Federal law only applies to the situation where an Explorer Post that is organized by the community--not the school--wanted to use school facilities. Their response addresses that particular case--which is not what I asserted--I agree that under federal law, the district may have to treat them like any other community organization. If they do not charge a facility fee to such organizations, they cannot charge the Post, they also must charge the Post if they charge a facility fee to other community organizations.

In the case of the POST program at Garfield (for example), as long as there is no special access during school hours, nor any special accommodation that is not equally available to all comers at the same cost (such as storage of equipment, use of district vehicles, computers, etc.), then the district may rely on federal law, in-as-much as that law is constitutional (it isn't, but that would likely have to be proved).

Beyond the facts established by answers to these question there is this: Can Federal law provide special access to employment discriminators overriding the constitutionally provided equal protection of all citizens? Imagine the worst case where all employment (except perhaps governmental) were associated with private organizations such as the BSA--and all of those employers refused to employ LGBT people--without the means to secure a livelihood all such people would be unprotected in our society.

Naturally, this correspondence will be forwarded on to the appropriate parties for their consideration, and to prepare to work through the appeal to the Seattle Public School board.