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November 15, 2006
Max Taves ,
A lawsuit filed by the parents of a 13-year-old autistic former Boy Scout against local Scout Troop 223 and the Western Los Angeles County Council of Boy Scouts of America was dismissed by a federal district court in late October.
In their lawsuit, Pacific Palisades residents Jane Dubovy and Mike Reilly argued that Troop 223 and the Council violated state and federal disability laws, mainly the Americans with Disabilities Act (ADA), after Scout leaders excluded their son, Casey Reilly, from scouting activities and from advancing in rank.
Reilly's specific form of autism, known as Asperger's Syndrome, entails impaired communication skills, repetitive patterns of thought and behavior, and weak motor skills.
The central debate in court was whether the ADA could be applied to a private organization like the Scouts. The ADA became law in 1990 and prohibits discrimination on the basis of a disability. But the immunity of private clubs and organizations from that law has been a frequent source of debate nationwide.
The Dubovy-Reilly suit cited a 2001 case mandating that the Professional Golfers' Association follow the ADA. If the ADA could be applied to a private organization like the PGA, they argued, then it should also apply to the Scouts.
The judge, S. James Otero, ruled that because the Boy Scouts of America excludes homosexuals and atheists it is not an 'open' organization and therefore does not have to follow the ADA. The only requirement for joining the PGA, Otero concluded, was being a 'good golfer.'
'Boy Scout Troop 223 is not a private organization,' said Dubovy. 'It's open to all boys in the community. They start applying to the Tiger Cubs at seven to eight-years-old. Being a boy in a certain geographic area is the only real requirement, not one's sexuality or religious beliefs.'
Otero also rebuffed another argument from the plaintiffs when he ruled that the Boy Scouts do not cease to be a private membership club merely because they operate campsites for their own private use.
'We were pleased with the judge's decision,' said Ross Harrop, executive of the Western Los Angeles County Council. 'It is the way it should have been dismissed.'
Dubovy and her husband plan to appeal the ruling in the Ninth Circuit Court of Appeal. Their lawyer, Barak Lurie, said the judge 'misapplied' ADA law and 'went beyond what he is authorized to do.'
That appeal is expected to be filed sometime this month.
In August 2005, Scout leaders told Casey's parents that he could only attend a weeklong, Scout rite of passage at Catalina's Emerald Bay if his father came to supervise him. Casey's father was an assistant Scoutmaster and frequently attended the Troop's outings, and his brother is an Eagle Scout. But his father's health prevented him from attending that summer's event and his brother was not allowed to attend the event and supervise Casey.
In Casey's four years of Scouting, his disability had presented difficulties for the troop. He is physically weaker than his peers and often needs assistance on long hikes. Also troubling for troop leaders was Casey's frequent use of foul language and his propensity to become hyperactive, which they insisted only Casey's father could control.
'We didn't do anything wrong,' said Troop 223 Scoutmaster Mike Lanning in a press release. 'It is standard practice in scouting to ask a parent to accompany a Scout with disabilities whose behavior appears to endanger himself and others. With the help of their parents, our troop has worked successfully with many Scouts with various disabilities. Most have attained the rank of Eagle.'
Lanning has run Troop 223 in the Palisades for more than five decades, and the Troop has produced more Eagle Scouts than any other troop nationwide.
As volunteers, Troop leaders receive no specific training to deal with special-needs children. And Casey's parents said that lack of preparation created an inhospitable environment for their son and other students with special needs. When Casey used profanity or other Scouts with disabilities would not follow orders, Scout leaders would respond by yelling or threatening punishment, said Mike Reilly.
Despite the case's dismissal, there are signs that the suit might have already changed Boy Scouts' special-needs training.
'This experience is a reminder to provide additional training for our leaders and parents,' said Harrop, who oversees 27,000 Scouts within L.A. County.
An advisory committee will review the current practices toward special-needs students and recommend ways to better serve those Scouts, Harrop told the Palisadian-Post.
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