Re: Helms "Boy Scouts of America Equal Access Act" Amendment to ESEA Violates the First Amendment
Dear Senator:
The American Civil Liberties Union strongly urges you to oppose the Helms "Boy Scouts of America Equal Access Act" amendment to the Elementary and Secondary Education Act. The Helms amendment would be an unconstitutional Congressional response to unconstitutional local school board actions. Because the Constitution already protects the Boy Scouts and similar youth groups, there is no reason for Congress to add its own constitutional violation to any local school's constitutional violation.
Subsection 2(a) of the Helms amendment tracks the requirements of the First Amendment to the Constitution by prohibiting local schools from excluding the Boy Scouts and other youth groups from the use of school facilities because of membership criteria barring members or leaders who are gay or lesbian or who refuse to take an oath of allegiance to God and country. However, subsection 2(b) of the Helms amendment violates the First Amendment by imposing a severe punishment only for the exclusion of groups with these views and not for the exclusion of groups with contrary or neutral views.
If Congress finds a pattern of local schools unconstitutionally excluding from a public forum the Boy Scouts or any other group because of a specific viewpoint, then the ACLU would support Congress passing a viewpoint-neutral restriction on the use of federal funds. However, the Helms amendment is not viewpoint-neutral and, by taking procedural steps to preclude amendments to his own amendment, Senator Helms denied other senators the ability to correct its unconstitutionality.
The Helms Amendment Prohibits Conduct Already Prohibited by the Constitution
The Helms amendment is unnecessary. The conduct prohibited by the Helms amendment is no different than the conduct already prohibited by the Constitution. In Dale v. Boy Scouts of America, 120 S. Ct. 2446 (2000), the Supreme Court held that the Boy Scouts had an associational right under the First Amendment to prohibit gay men and lesbians from serving as leaders in the Boy Scouts. As a result, any governmental limitations on the Boy Scouts in a public forum because of their anti-gay discrimination violate the First Amendment because those restrictions interfere with the Boy Scouts' viewpoint. See id. at 2458 (holding that a state could not apply its public accommodation law that prohibited discrimination based on sexual orientation to the Boy Scouts' leadership criteria). Thus, local schools cannot treat the Boy Scouts differently in a public forum because of their membership criteria.
Under existing First Amendment law, if other community groups can have access to school facilities for a type of activity, then the Boy Scouts cannot be excluded based on these membership criteria from having access for similar activities. See, e.g., Arkansas Educ. Television Comm'n, 118 S. Ct. 1633, 1641 (1998) ("[i]f the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny"). Subsection 2(a) of the Helms amendment prohibits nothing more and nothing less than the Constitution itself. The Boy Scouts and similar groups already can enforce their constitutional rights--and there is no clear record of a need for the Helms amendment.
The Helms Amendment Would Uniquely Endorse Only the Boy Scouts' Message on Discriminating Against Members
Of all of the messages conveyed by the Boy Scouts or any other youth group, the only ones endorsed by the Helms amendment are its discriminatory views on who can join as members or leaders. Subsection 2(b) of the Helms amendment, which bars ESEA funds from non-complying schools, would uniquely put the weight of the federal government behind the Boy Scouts' or any other youth group's discriminatory decisions on who to include as members and leaders. The Helms amendment is not an endorsement of the Boy Scouts or any other youth group; it is instead solely an endorsement of a youth group's decision to "on the basis of the membership or leadership criteria . . . [to] prohibit the acceptance of homosexuals" and persons who reject an "oath of allegiance to God and country."
No other section of ESEA supports a specific viewpoint of any group by cutting off all funds to anyone who opposes that viewpoint. Congress has no reason to select this discriminatory viewpoint above all others.
The Severe Punishment for Violating the Boy Scouts' Rights Would Harm Youth Groups that Do Not Discriminate
The Helms amendment could harm all other youth groups that do not discriminate against gay and lesbian members. The heavy hammer of losing all ESEA funds will loom large in the minds of local school boards and principals as they decide which groups to schedule for use of a school's facilities. Even if a school has no intention of unconstitutionally excluding the Boy Scouts or other youth groups that bar gay and lesbian members, local school leaders may be unwilling to ever say "no" to any request by the Boy Scouts or anti-gay youth groups. Thus, if the Boy Scouts, the Girl Scouts, Little League, and the PTA all want to use the school auditorium for a membership meeting on a Tuesday night, the school principal could be intimidated by the threat of losing all federal funds into saying "yes" to the Boy Scouts and "no" to the Girl Scouts, Little League, and the PTA. Congress should not endorse any specific viewpoint when it could chill the First Amendment rights of other groups.
The Special Protection for the Boy Scouts' Discriminatory Membership Message Violates the First Amendment's Prohibition on Governmental Endorsement of Speech
The harms caused by the Helms amendment would result from an unconstitutional endorsement of a specific viewpoint. By punishing schools for excluding the Boy Scouts and other youth groups for their discriminatory membership criteria, the Helms amendment would provide protection for the Boy Scouts' discriminatory viewpoint that no other viewpoint receives. Such unequal treatment of different viewpoints is unconstitutional.
The First Amendment to the Constitution prohibits Congress from endorsing or punishing specific viewpoints. As Justice Scalia wrote for the Supreme Court, "[t]he government may not regulate use based on hostility--or favoritism--towards the underlying message expressed." R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2545 (1992). In that case, the Court held that a city could not punish only those "fighting words" that were also hate speech. Id. at 2547. It could not select out only certain viewpoints for different treatment. Id. at 2547-49.
The Supreme Court has explained the danger caused by the government showing hostility or favoritism towards a specific viewpoint. Justice O'Connor wrote for the Court that a prohibition on financial regulation of speech "is but one manifestation of a far broader principle: 'Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.'" Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 112 S. Ct. 501, 508 (1991) (citation omitted) (invalidating a state law that required publishers and others to turn over the amount of any contract with a convicted or accused person to a state crime victims' fund). The problem with such regulations is "that the government's ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace. The First Amendment presumptively places this sort of discrimination beyond the power of the government." Id.
The Helms amendment would fail this First Amendment test because it favors--by protecting with the severe punishment of cutting off all federal funds--the discriminatory message of the Boy Scouts. Since other viewpoints of community groups, youth groups, and even the Boy Scouts themselves do not get the protection of a federal funds cutoff, the Helms amendment uniquely--and unconstitutionally--favors a single viewpoint, namely, the discriminatory message espoused by the Boy Scouts.
In essence, the same First Amendment principle that prohibits schools from excluding the Boy Scouts because of their discriminatory message is the same First Amendment principle that prohibits the federal government from providing special protection for the Boy Scouts' discriminatory message. They are the nothing more than different sides of the same coin.
The only way that a viewpoint-specific regulation can be constitutional is if it is narrowly tailored to serve a compelling governmental interest. Even if Congress finds a sufficient amount of unconstitutional conduct by local school boards to justify federal intervention to protect a person's First Amendment rights, Congress can create a content-based statute "only where it is 'necessary to serve the asserted compelling interest.'" R.A.V., 112 S. Ct. at 2549 (citations omitted) (emphasis in original). The Supreme Court has held that "The existence of adequate content-neutral alternatives thus 'undercuts significantly' any defense of such a [content-based] statute, casting considerable doubt on the government's protestations that 'the asserted justification is in fact an accurate description of the purpose and effect of the law.'" Id. at 2550 (citations omitted). Because Senator Helms could have drafted a content-neutral amendment that would protect any youth group excluded because of its viewpoint, the Helms amendment cannot be the least restrictive means of serving the goal of stopping viewpoint discrimination by school boards.
For these reasons, the Helms amendment is not only a harmful policy for the discriminatory message that it sends to youth--particularly to gay and lesbian youth--and for its potential effect on other youth groups, but also an unconstitutional endorsement of a specific viewpoint. The ACLU urges the Congress to avoid violating the First Amendment itself as a way to correct First Amendment violations by local schools. There are better tools to correct any problems faced by the Boy Scouts and similar groups. Please do not hesitate to call us if you have any questions regarding this issue.
Sincerely,
Laura W. Murphy
Director
Christopher E. Anders
Legislative Counsel