From today's Oregonian, by Steven Carter and Scott Learn:

The Oregon Supreme Court ruled Friday that Portland Public Schools didn't discriminate against atheist students by allowing the Boy Scouts to recruit during school hours in a tangled legal case that dates back 10 years. Even though the Boy Scouts require a belief in God to become a member, the court ruled that no discrimination took place at school because neither the recruiter nor the Scout material distributed during lunchtime to elementary school boys mentioned religion.

"It is in the later enrollment in the organization that the Boy Scouts differentiate among those who do not profess a belief in a deity and those who do," Justice W. Michael Gillette wrote. "That enrollment, however, is not done by the school district . . . ."

The 6-1 opinion reversed the Oregon Court of Appeals, which last year held that the school district had contributed to discrimination by allowing the Boy Scouts to recruit during school hours in 1996 at Harvey Scott Elementary School. The mother of a first-grader, Remington Powell, sued because the Scouts don't allow atheists to join.

The high court, however, said the school district isn't responsible for that policy.

"By its conduct in this case, the school district has done nothing more than permit a community group to provide nondiscriminatory information to parents and students, who may then voluntarily decide the extent of their involvement, or noninvolvement, in such activities," Gillette wrote.

Justice Rives Kistler dissented, arguing that the recruitment effort "divided the elementary school children into two groups: those whose religious views agreed with the Scouts' views and those whose views did not."

The ruling drew praise from the Boy Scouts.

"The right decision"

"It's the right decision," said Don Cornell, field director of the Columbia-Pacific Council of the Boy Scouts of America. "It's going to allow Portland Public Schools to help parents find out about all community organizations available to their kids."

Nancy Powell, an atheist who filed the suit on behalf of her son, called the ruling "a blow to my family . . . and a blow to Oregon."

She said her legal fight with the district prompted threatening phone calls and picketing in front of her house. She spoke at a news conference in the Portland headquarters of the American Civil Liberties of Oregon, which handled her case. Her son, now 16, sat beside her.

Jollee Patterson, legal counsel for Portland Public Schools, said the district was happy to resolve the long-standing case, but she emphasized that the district doesn't endorse the Boy Scouts' policies on religion or sexual orientation.

Dori Brittain, general counsel for the Oregon School Boards Association, praised the ruling for upholding and clarifying what she said was routine practice in Oregon schools -- providing fair and nondiscriminatory information about community groups to students and their parents.

No ACLU appeal

David Fidanque, executive director of the Oregon ACLU, said the ruling turned on a technical definition of what constitutes discrimination in the schools.

In theory, he argued, a hate group such as the Ku Klux Klan could make a presentation in an Oregon school about joining, and it would not be discrimination as long as it didn't mention it restricts membership to white people. In practice, however, he said he doesn't believe the ruling will encourage Oregon schools to change policies that promote nondiscrimination.

Fidanque said there will be no more appeals because the Oregon Supreme Court has the final word in cases involving state anti-discrimination laws.

Portland changed its policy on outside groups' access to schools about three years ago. It stopped allowing the Boy Scouts and all other community groups to make pitches during the school day. That change was made to preserve instructional time, Patterson said, not in reaction to the lawsuit.

But the court decision is still important for the district, Patterson said. Applied broadly, a decision in the Powells' favor could have made it "more challenging to develop partnerships with organizations that help our students," she said.

"Civic use" of schools

As it stands now, groups can apply through a separate "civic use of buildings" process to use school property outside school hours. Patterson said that makes them legally responsible for children who attend.

Groups also can ask to have the district send home recruiting materials and other information with students, which allows the district to note that the organizations are not sponsored by Portland Public Schools, Patterson said. To qualify, a group's mission has to be primarily to support students. That caveat allows the district to bar hate groups such as the Ku Klux Klan from sending home materials, she said.

The district didn't provide an exact figure, but said it had spent more than $305,000 on the original case and the appeals.

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