Downey v. Boy Scouts of America Appeal Brief Highlights

by Margaret Downey
GREATER PHILADELPHIA STORY-January 2000

 My eight year legal battle against the Boy Scouts of America (BSA) continues. On December 20, 1999, the appeal from the unfavorable decision of the Commonwealth of Pennsylvania Human Relations Commission (PHRC) was filed in Commonwealth Court. Steven P. McFate of the law firm Hoyle, Morris & Kerr LLP in conjunction with the American Civil Liberties Foundation filed in my behalf. PHRC and BSA are respondents, as is normal in an action brought by a party aggrieved with a PHRC decision.

 After a public hearing in May 1999, seven of the thirteen commissioners ruled that BSA is not a public accommodation under the Pennsylvania Human Relations Act. The Act states: "Any accommodation, resort or amusement which is open to, accepts or solicits the patronage of the general public, including but not limited to inns, taverns, roadhouses, hotels, motels, whether conducted for the entertainment of transient guests or for the accommodation of those seeking health, recreation or rest, or restaurants or eating houses, or any place where food is sold for consumption on the premises, buffets, saloons, barrooms or any store, park or enclosure where spirituous or malt liquors are sold, ice cream parlors, confectioneries, or their derivatives, or where beverages of any kind are retailed for consumption on the premises, drug stores, dispensaries, clinics, hospitals, bathhouses, swimming pools, beauty parlors, retail stores and establishments, theaters, motion picture houses, airdromes, roof gardens, music halls, race courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, gymnasiums, shooting galleries, billiard and pool parlors, public libraries, kindergartens, primary and secondary schools, high schools, academies, colleges and universities, extension courses and all educational institutions under the supervision of this Commonwealth, nonsectarian cemeteries, garages and all public conveyances operated on land or water or in the air as well as the stations, terminals and airports thereof, financial institutions and all Commonwealth facilities and services, including such facilities and services of all political subdivisions thereof, but shall not include any accommodations which are in their nature distinctly private.".

 The five page concurring opinion written by Commissioner M. Joel Bolstein stated that, "The list of public accommodations that appears in the Act, coupled with this language from Section 5 (illegal to 'Refuse, withhold from, or deny to any person because of his race, color, sex, religious creed. . . any of the accommodations, advantages, facilities or privileges of such place of public accommodation'), would appear to indicate that the General Assembly intended to regulate places of public accommodation, where a person could be denied access, and not to regulate organizations such as the BSA Chester County Council."

 Commissioner Raquel Otero de Yiengst wrote the eight page Dissenting Opinion. She pointed out that Section 12 of the Commission's Anti-Discrimination Act says, "The provisions of this act shall be construed liberally for the accomplishment of the purposes thereof, and any law inconsistent with any provision hereof shall not apply." Otero de Yiengst also stated that, "The Pennsylvania Human Relations Act has always been constructed broadly and, in effect, the Act was amended to drop the limitation of a 'place.'

 The appeal brief asserts that the PHRC erred as a matter of law in determining that the BSA is not a public accommodation under the statutory definition contained in Section 4(1) of the PHRC Act, 43 P.S. §954(1). The thirty-two page appeal brief seeks to demonstrate that BSA is a public accommodation as defined in the Act.
 The brief avers that BSA as a nonprofit corporation is open to, accepts, and actively solicits the patronage of the general public. BSA is similar to other educational and recreational accommodations covered under the PHRC Act. Dedicated to "the promotion of Scouting within the limits of Chester County" BSA has "irrevocably dedicated [its property and assets] to the charitable and educational purposes of carrying out the program of the Boy Scouts of America." The brief also details the close and beneficial relationship BSA has with government entities and other public accommodations, BSA's profile that is absolutely nonsectarian, and its large and unselective membership numbering over 9,000 youths and 3,200 adult volunteers.

 Using transcripts from the May 1999 public hearing, McFate quoted BSA witnesses corroborating that BSA is a federally chartered corporation whose purpose is to promote through organization and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred values using the methods which are now in common use by BSA. The primary purpose of BSA is "to supplement and enlarge established modern educational facilities and activities in the great and healthful out of doors."

 BSA's own witness confirmed that there is no selection committee that decides whether a boy may join and no screening or selective process for youth members. BSA's purpose and aims are not religious and it "does not define what constitutes belief in God or practice of religion." Consistent with its own bylaws and policies BSA solicits the general public by conducting a fall recruiting drive that includes open houses called "school nights" held in elementary schools throughout Chester County. BSA advertises in local newspapers and distributes flyers to the general public. In the words of the PHRC Act the BSA "solicits the patronage of the general public" and therefore should be considered a public accommodation.

 McFate covered BSA's congressional charter with its requirement to make annual reports to Congress concerning its proceedings. BSA, in turn, is entitled to many special benefits from the United States government. For example, the Secretary of Defense is authorized to lend the BSA, for the use and accommodation of Scouts, scouters, and officials who attend any national or world BSA Jamboree, cots, blankets, commissary equipment, flags, refrigerators, and other equipment without reimbursement for such services. They are also authorized to supply expendable medical supplies, as may be necessary or useful.

 The Secretaries of the Army and Air Force are authorized to sell the BSA obsolete or excess material. The Secretary of the Navy is authorized to give or sell to BSA obsolete and other materials. The Secretary of Agriculture is authorized to waive rental fees for the use of national forest lands "as organization camps by local units" of BSA in exchange for performance of services. The Corporation for the Promotion of Rifle Practice and Firearms Safety is authorized to "issue or loan, without charges" various firearms equipment to the BSA for activities related to the Civilian Marksmanship Program.

 Regarding belief in God, BSA byaws emphasize respect for the beliefs of others. Indeed, the bylaws protect members against forced participation in religious services by providing that the activities of BSA shall be carried on under conditions which "show respect to the convictions of others in matters of custom and religion."

 On page seven of the appeal brief, McFate addressed the entanglement of BSA with the United Way (UW). The Chester County Council of BSA received approximately $55,000 in 1998. Pursuant to the UW Member Agency Agreement, BSA agrees to abide by UW policies that require member agencies to be classified by the Internal Revenue Service (IRS) as 501(c), or similar, organizations and not to be private foundations.

 In conclusion, because BSA solicits the patronage of the general public, has a large membership, and eschews selectivity, it cannot reasonably be considered by its nature to be "distinctly private." The PHRC deleted the word "place" from both §954 and §955 to indicate clearly that its intent is not to limit the scope of prohibition. There is no requirement that a public accommodation be a physical place.

 McFate cited twenty legal cases to strengthen his appeal argument. In Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery Association the remains of deceased African-Americans were refused burial. The Pennsylvania Supreme Court rejected the cemetery's argument that it was not a public accommodation because nonsectarian cemeteries were not among the examples listed in the PHRC Act at the time the complaint was filed. That argument was denied.

 The Pennsylvania case that comes closest to interpreting the term "distinctly private" is Pennsylvania Human Relations Commission v. Loyal Order of Moose, Lodge No. 107. Lodge No. 107 had denied access to its dining facilities to African-Americans. The court found that a local lodge of a fraternal organization was not "distinctly private" when the lodge had opened its dining and bar facilities to members of the general public. In so doing the lodge diminished its status as a purely private club and became a place of public accommodation and a center of community activity.

 Dale v. Boy Scouts of America found BSA guilty of discrimination. The case was heard in New Jersey but the Pennsylvania Supreme Court has recognized that the New Jersey statute is virtually identical to the Pennsylvania statute, therefore, judicial decisions interpreting the New Jersey Act are persuasive in interpreting the Pennsylvania Act.

 The United States Supreme Court will hear oral arguments in Dale v Boy Scouts of America on April 26, 2000. The Downey v. Boy Scouts of America case has been placed on hold until the Supreme Court decision is announced. The announcement is expected in June or July 2000.