On June 28 last year, the United States Supreme Court in Boy Scouts of America v. Dale ruled that, under the First Amendment right of free association, the Boy Scouts had a right to remove James Dale from a leadership position. Dale had publicly declared his homosexuality, thereby violating the principles of the Boy Scouts.
Since then, the Scouts have been treated like pariahs around the country. Cities have barred them from schools. In some places, police can no longer sponsor Scouts programs in areas where kids have no other after-school activities. And "public-spirited" private organizations have stopped funding Boy Scout troops.
The American Civil Liberties Union affiliate in San Diego as George Mason University law professor Peter Ferrara noted in The Weekly Standard "is suing the city to evict the Scouts from Balboa Park, where they built and have long operated excellent camping and recreational facilities open to the public."
The national ACLU, in one of its excursions into extreme political correctness, opposed the Boy Scouts when Boy Scouts of America v. Dale went before the Supreme Court. In doing so, the ACLU, which was founded to protect the First Amendment, ignored Supreme Court precedents. One such precedent states "The First Amendment guarantees the ... freedom to associate or not to associate." It is the "freedom to identify the people who constitute the association, and to limit the association to those people only." (Democratic Party of U.S. v. Wisconsin, 1981).
Should the NAACP be forced by the courts or by the ACLU to allow adherents of white racist organizations to take leadership positions in the NAACP? Should disability-rights groups be compelled to have disciples of Dr. Jack Kevorkian in leadership roles?
In a significant Florida court decision, the Boy Scouts' First Amendment rights have been upheld after they were evicted from the Broward County public schools. The court said that once school facilities are open to other organizations, they cannot be denied to a group because of its views.
Now, Rep. Van Hilleary of Tennessee has successfully introduced in the House an amendment to the large-scale education bill called the No Child Left Behind Act of 2001. His amendment requires schools that receive federal funds to give the Scouts the same access that they provide to other groups.
Says Rep. Hilleary: "Denying the Boy Scouts equal access to schools cuts against court precedent, the Bill of Rights and common sense. This amendment effectively ensures that schools won't be able to discriminate against the Scouts or force them to go to court to have their rights upheld."
The Hilleary amendment passed the House by voice vote, and a companion amendment by Sen. Jesse Helms is now pending before the Senate. But on the House floor, during debate on the amendment, Lynn Woolsey of California presented a letter opposing the amendment. It was signed by a long list or organizations. Their names reveal how pervasively political correctness has infected Americans who cherish their own right to associate with like-minded people, but would allow local school boards to deny that right to the Boy Scouts. This is a list that exposes how much education in constitutional rights is needed in our schools and school boards. Among those on the list opposing the Boy Scouts are the following organizations:
The American Association of School Administrators; American Federation of State, County and Municipal Employees; AFL-CIO; American Federation of Teachers; Anti-Defamation League; Council of the Great City Schools; Leadership Conference on Civil Rights; National Association of School Psychologists; National Association of Secondary School Principals; National Council of Jewish Women; National Council of La Raza, National Education Association; National PTA; National Rural Education Association; National School Boards Association; National Women's Law Center; NOW Legal Defense and Education Fund; People for the American Way; Unitarian Universalist Association of Congregations; United Church of Christ Justice and Witness Ministries.
These are good, decent people, and they desire diversity but not the diversity of viewpoints that is guaranteed by the First amendment. They do not understand what Supreme Court Justice Sandra Day O'Connor has emphasized:
"Protection of (an) association's right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice. And the selection of members is the definition of that voice."
This is the very essence of the First Amendment.
CORRECTION: Due to an error in transmission, a recent column incorrectly described Sidney Zion as a reporter for The New York Times. Zion is a columnist for the New York Post.
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights.
Copyright 2001, Newspaper Enterprise Assn.