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An appealing offer from the ACLU

by Margaret Downey

 On June 28, 1999 the Pennsylvania Human Relations Commission (PHRC) dismissed my seven-year-old discrimination complaint against the Boy Scouts of America (BSA). In a seven-to-two decision, the Commission ruled that BSA is a 'private' organization, exempt from anti-discrimination provisions.

 The dismissal came as a shock. I had been clearing legal hurdles each step of the way. In 1997, the PHRC's legal department found sufficient evidence against the BSA when they determined that there was 'Probable Cause' in my complaint. Over the years BSA often filed 'Motions to Dismiss.' They were never successful in getting that to happen.

 Even though my attorney, James Grafton Randall, made strong arguments in a public hearing held May 18-20, 1999, the Commission failed to recognize that BSA is an educational organization with a Congressional charter tasking it to 'scoutcraft.'

 I should not have been surprised by the commissioners' ruling. All around the country various cases against the BSA jump back and forth from victory to defeat in state human relations commissions and state courts.
 In the Randall v. Boy Scouts of America case in California, the Randalls were initially victorious. BSA appealed to the State Supreme Court and won.

 In New Jersey, James Dale's discrimination case against BSA lost its first round in state court in 1993. Dale appealed the case. The appellate court reversed the lower court decision and ruled in Dale's favor. At that point, BSA appealed to the New Jersey Supreme Court. Finally, on August 4, 1999, that court ruled unanimously in Dale's favor.

 The New Jersey justices looked at BSA's broad-based membership solicitation and the organization's historic partnership with various public entities and public service organizations.

 Ironically, the justices in New Jersey found BSA to be a 'place of accommodation.' That ruling is the complete opposite of the Pennsylvania commissioners' opinion that BSA is a 'private' organization.

 Shortly after the Dale decision was announced, I contacted the American Civil Liberties Union (ACLU) in Philadelphia to request help with my case. I wanted to appeal the PHRC decision but limited financial resources threatened to stop further action. I met with the ACLU's Legal Director, Stefan Presser, on August 10, 1999.

 I arrived with an armful of files, ready to plead my case. Within moments of my dissertation, Presser reassured me that the ACLU wanted to help. The only hurdle they faced was finding a law firm that could provide legal assistance. This was the offer I hoped would be extended.

 Within a few days of my August meeting, Presser informed me that the law firm of Hoyle, Morris & Kerr had volunteered to take up my case.

 I have conferred with several attorneys from Hoyle, Morris & Kerr, and am encouraged about the appeal possibilities. The playing field has changed slightly, however.

 When a citizen files an appeal against a decision made by state Commissioners, the citizen is placed in the position of suing his or her own government agency, in this case, the PHRC. The case is now Downey-Schottmiller v. Commonwealth of Pennsylvania, Human Relations Commission (Commonwealth Court Docket No. 2291 CD 1999). BSA is implicated only as an 'interested party.'

 Appeal briefs are due on December 17, 1999. Attorney, Stephen P. McFate at Holye, Morris & Kerr is assigned to the case. Presser and Randall are acting as advisors. I am participating in all aspects of the appeal and plan to continue pushing for an end to discrimination against Atheists.

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