In an official letter to the Greater New York Council of the Boy Scouts of America, schools chancellor Harold Levy declared that “the Boy Scouts will no longer be eligible to bid on contracts” and that “all sponsorships of scout troops and all special privileges will be terminated.”
As I noted in last week’s column, there is a legal problem in banishing the Boy Scouts from bidding on contracts with the school system. Many other organizations compete for such contracts—so bidding, therefore, is not a special privilege accorded the Boy Scouts.
Having won a Supreme Court decision upholding the Boy Scouts’ First Amendment right of expressive association with regard to their policy barring publicly avowed gays, the Scouts are now being singled out, nonetheless, from all other groups that bid on contracts with the New York City school system.
The chancellor justifies this discrimination—as he told the Boy Scouts—on the basis of a Board of Education policy prohibiting “all forms of unlawful discriminatory conduct based upon race, religion, ethnicity, alien and citizenship status, national origin, gender, marital status, sexual orientation, disability, and age.”
But based on previous responses from the chancellor’s office, I have grave doubts that the school system has any procedure in place that would answer the following inquiries. Has the chancellor carefully scrutinized every organization, profit and nonprofit, that contracts with the school system as to whether it fully adheres to the board’s policy against discrimination in all the forms he listed? Does he require sworn affidavits to that effect from all such groups? For instance, do any of these organizations discriminate against people because of disabilities? Do disabled people have full access to these outfits’ offices and workplaces—and are they hired and promoted without bias?
If he does do this, I’d appreciate knowing the process by which he determines that each such organization is free of bigotry. And is there a procedure for follow-up inspections? Or are the Boy Scouts “special” in this regard?
As for the fundamental issue in this controversy, as decided by the Supreme Court, I would welcome the chancellor’s reaction to this statement by Supreme Court Justice Sandra Day O’Connor in Roberts v. United States Jaycees (1984), which involved the admission of women to that organization. In that decision, O’Connor wrote about the First Amendment right of expressive association, which was at the heart of the Supreme Court’s ruling in Boy Scouts of America v. James Dale last June 28.
“An association engaged exclusively in protected expression enjoys a First Amendment protection of both the content of its message and the choice of its members. Protection of the message itself is judged by the same standards as protection of speech by an individual. (Emphasis added.)
“Protection of the 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.” (Emphasis added.)
In its majority decision in Boy Scouts of America v. James Dale, the Supreme Court quotes from the opinion in Roberts v. United States Jaycees:
“We observed that ‘implicit in the right to engage in activities protected by the First Amendment’ is a ‘corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.’
“This right,” the Supreme Court continued in the Boy Scouts decision, “is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. . . . Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express.
“Thus, ‘freedom of association . . . plainly presupposes a freedom not to associate.’ ”
And the Supreme Court has ruled that the Boy Scouts are indeed a First Amendment-protected association.
Antidiscrimination laws and policies, like the ones in place at the New York City Board of Education, are legal, but they don’t apply to organizations formed and based on the expressive free-association guarantees of the First Amendment. Yet the chancellor has banned the Boy Scouts from most of their previous associations with the schools.
In two college speech-code cases, thrown out by federal district courts in Michigan and Wisconsin, a similar conflict arose. Colleges had banned certain types of speech, claiming that some words—those that were hostile and demeaning to blacks, gays, the disabled, or members of various religions—created a hostile learning environment. The colleges argued that students targeted by epithets and other acutely hurtful attitudes expressed in speech were being discriminated against.
The courts ruled, however, that First Amendment rights, in such speech-code cases, prevailed over the Fourteenth Amendment right of “equal protection of the laws.”
As Supreme Court Justice William O. Douglas said, in delivering the opinion of the Court in Terminiello v. Chicago (1949): “Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for the acceptance of an idea.”
To repeat what Justice Sandra Day O’Connor said, “The formation of an expressive association is the creation of a voice.” Many Americans profoundly disagree with the “voice” of the Boy Scouts excluding gays. But it is a First Amendment-protected voice.
In the old days, the principal of a school was also its head teacher and taught classes. Chancellor Harold Levy is the head teacher of the entire school system of New York. At the very least, in telling his students that their schools must not associate with the Boy Scouts, he failed to educate them as to why the Supreme Court had protected the Boy Scouts’ right to exclude gays. He could then have said why he disagreed with the Court. But in this chance to teach about the Constitution, Harold Levy did not live up to his responsibilities as an educator.