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Activist groups, including Scouting for All, urge President Obama not to accept the honorary Presidency of the Boy Scouts of America until they stop discriminating.


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Boy Scouts of America Settlement with the ACLU

http://govexec.com/pdfs/boyscoutsettlement.doc
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

EUGENE WINKLER, et al., )
)
Plaintiffs, )
) No. 1999 CV 02424
v. )
) Judge Blanche Manning
CHICAGO SCHOOL REFORM BOARD )
OF TRUSTEES, et al., )
)
Defendants. )
)

PARTIAL SETTLEMENT AGREEMENT
BETWEEN PLAINTIFFS AND SECRETARY RUMSFELD

Plaintiffs Eugene Winkler, Gary Gerson, Timuel Black, Mary Cay Marubio, and C. Douglas Ferguson ('plaintiffs'), and defendant Donald Rumsfeld, Secretary of Defense, U.S. Department of Defense ('DOD' or 'DoD'), by their respective counsel, hereby state and agree as follows:

Background

  1. In this lawsuit, plaintiffs have alleged that DOD and the U.S. Department of Housing and Urban Development ('HUD') have violated the Establishment Clause of the First Amendment to the U.S. Constitution by spending appropriated funds in support of the Boy Scouts of America ('BSA'). In Count II of their complaint, plaintiffs allege that DOD unlawfully spends appropriated funds in sponsoring BSA youth activity programs. In Count III of their complaint, plaintiffs allege that, pursuant to 10 U.S.C. § 1785, 10 U.S.C. § 2012, 10 U.S.C. § 2554, 10 U.S.C. § 2606, 32 U.S.C. § 508, 42 U.S.C. § 5303 et seq., and 42 U.S.C. § 11902 et seq., DOD and HUD unlawfully spend appropriated funds in supporting BSA youth activity programs sponsored by other organizations.
  2. The parties disagree on the factual question whether DOD sponsors BSA organizations (including Boy Scout Troops, Cub Scout Packs, and Venturer Crews), and on the legal question whether any such sponsorship would violate the Establishment Clause. The factual disagreement centers on whether BSA charter agreements executed by DOD personnel evidence sponsorship of BSA organizations by DOD, on whether DOD policy prohibits official sponsorship of BSA organizations, and on whether DOD policy regarding official sponsorship of non-Federal organizations has been followed in the case of BSA organizations. The Defendants deny any violation of law.
  3. To avoid protracted and costly litigation, however, the plaintiffs and DOD have agreed to settle these disagreements under the terms and conditions set forth herein. DOD believes that the terms and conditions set forth herein clarify the application of existing DOD policy. This settlement agreement seeks to resolve Count II in its entirety and Count III as it relates to one of the statutes, 10 U.S.C. § 1785. Regarding plaintiffs' challenge in Count III to defendants' spending pursuant to the remaining statutes (10 U.S.C. § 2012, 10 U.S.C. § 2554, 10 U.S.C. § 2606, 32 U.S.C. § 508, 42 U.S.C. § 5303 et seq., and 42 U.S.C. § 11902 et seq.), the parties filed on August 17, 2004 fully briefed cross-motions for summary judgment, and this settlement agreement shall have no effect upon the resolution of those cross-motions.

    Definition

  4. As used herein, the terms 'DOD Directive' and 'DOD Instruction' have the meanings set forth at DOD Directive 5025.1-M at § 4.1.1 and § 4.1.2, respectively.

    Agreement

  5. Plaintiffs and DOD agree that this Agreement shall not in any way be construed as an admission of liability on the part of DOD. DOD specifically disclaims any liability with respect to plaintiffs' claims arising from Count II and 10 U.S.C. § 1785, and expressly denies that DOD sponsors BSA organizations and, even if DOD were to sponsor BSA organizations, that any such sponsorship would violate the Establishment Clause.
  6. On November 15, 2004, plaintiffs shall file this settlement agreement with the district court. Except as required by law, plaintiffs and DOD agree to withhold publicly announcing the content of this settlement agreement until it is filed with the district court.
  7. Within 60 days of filing this settlement agreement, a DOD official at the Deputy Under Secretary level or higher will send a statement to the Secretaries of the military departments, who will forward the statement through the chain of command worldwide to each DOD facility and/or base.

    The statement will contain the following text: The Joint Ethics Regulation, DoD Directive 5500.7-R, states DoD policy on sponsorship of non-Federal organizations by DoD personnel acting in an official capacity.

    This policy precludes DoD from sponsoring non-federal organizations. Under this pre-existing and generally applicable policy, DoD may not sponsor non-federal organizations, including Boy Scout organizations. In application of this policy, DoD personnel acting in an official capacity may not (and shall not) execute charters that serve as the legal basis for the creation of Boy Scouts organizations (including Boy Scout Troops, Cub Scout Packs, or Venturer Crews). Such charters constitute sponsorships of Boy Scouts organizations contrary to DoD policy on sponsorship of non-federal organizations. While such chartering is not allowed, nothing in this statement is intended to preclude DoD support to the Boy Scouts authorized by other DoD Instructions, to preclude Boy Scouts activities on DoD installations, or to preclude DoD personnel in their personal capacity from sponsoring Boy Scouts organizations. Existing charters executed by DoD personnel in their official capacity shall either be (a) terminated, or (b) amended to substitute sponsorship by an appropriate individual, volunteer, group, or organization, consistent with DoD policy.

  8. Simultaneously with the sending of the foregoing statement, DOD shall ensure that it is sent to plaintiffs' counsel.
  9. Within one year after the day that the foregoing statement is sent, DOD shall amend DOD Instruction 1000.15 or a successor Directive or Instruction to incorporate the substance of the aforementioned statement.

    At a minimum, the amended Directive or Instruction shall state: 'In accordance with the DOD Joint Ethics Regulation, DOD Directive 5500.7-R, which contains a policy on sponsorship of non-Federal organizations by DOD personnel acting in an official capacity, DOD personnel acting in an official capacity shall not execute charters that serve as the legal basis for the creation of Boy Scouts organizations (including Boy Scout Troops, Cub Scout Packs, or Venturer Crews). While such chartering is not allowed, nothing in this [Directive/Instruction] is intended to preclude DOD support to the Boy Scouts authorized by other DOD Instructions, to preclude Boy Scouts activities on DOD installations, or to preclude DOD personnel in their personal capacity from sponsoring Boy Scouts organizations. Existing charters executed by DoD personnel in their official capacity shall either be (a) terminated, or (b) amended to substitute sponsorship by an appropriate individual, volunteer, group, or organization, consistent with DoD policy.'

  10. Within one week after the foregoing amendment, DOD shall ensure that a copy of the amended Directive or Instruction is sent to plaintiffs' counsel.
  11. On November 15, 2004, Plaintiffs shall move to amend their complaint to remove without prejudice their claims in the above-captioned litigation arising from Count II and 10 U.S.C. § 1785, with leave to reinstate these claims in the event that DOD changes the amended Directive or Instruction described in paragraph 9 above in a manner that allows DOD personnel acting in an official capacity to execute charters of Boy Scouts organizations.
  12. The parties shall each bear their own costs and attorneys' fees arising from plaintiffs' claims in the above-captioned litigation regarding Count II and 10 U.S.C. § 1785.
  13. This settlement agreement constitutes the entire agreement between the parties.
  14. Each signatory to this settlement agreement represents that she or he is authorized to sign on behalf of any individual for whom she or he signs.




FOR PLAINTIFFS: FOR SECRETARY RUMSFELD:

PETER D. KEISLER
HARVEY GROSSMAN Assistant Attorney General
ADAM SCHWARTZ PATRICK J. FITZGERALD
ARDYTH EISENBERG United States Attorney
Roger Baldwin Foundation LINDA WAWZENSKI
of ACLU, Inc. Assistant United States Attorney
180 N. Michigan Ave., #2300 Northern District of Illinois
Chicago, IL 60601
VINCENT M. GARVEY
CHARLES PETERS Deputy Branch Director,
LAURA FRIEDEL Federal Programs Branch
DAVID SCOTT
Schiff Hardin LLP
223 S. Wacker Dr., #6600 MARCIA BERMAN
Chicago, IL 60606 Trial Attorney

Dated: , 2004
MATTHEW LEPORE
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W. Room 7204
Washington, D.C. 20530

Dated: , 2004

 

 

 

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