PLAINTIFFS' MOTION FOR A PRELIMINARY

INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT THEREOF

Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, Plaintiffs Boy Scouts of America and South Florida Council, Boy Scouts of America (together "Boy Scouts"), through undersigned counsel, hereby move this Court, on the basis of their Complaint, the Affidavit of Jeffrie Herrmann and this Memorandum of Law, for a preliminary injunction to prevent the Superintendent of Schools ("Superintendent") and the School Board of Broward County, Florida ("School Board") from depriving Boy Scout Troops, Cub Scout Packs, and other Scouting groups access to public school facilities, and request an immediate hearing.

Introduction

The School Board has created an open forum in Broward County public schools by permitting numerous community groups, including 57 Boy Scout Troops and Cub Scout Packs, to use school rooms and school buses. Yet the School Board now proposes to evict Boy Scouts from this forum on December 17, 2000, in retaliation against the viewpoint expressed by Boy Scouts in Boy Scouts of America v. Dale 120 S. Ct. 2446 (2000), where the United States Supreme Court upheld the First Amendment right of Boy Scouts to maintain leadership standards do not permit open homosexuals to become Scout leaders. The Court in Dale rejected application of a state nondiscrimination statute against Boy Scouts' leadership decisions. Citing the Dale case, the School Board has given Boy Scouts a 30-day notice to find other places for the Troops and Packs to meet. Ironically, the School Board has regarded the United States Supreme Court decision protecting Boy Scouts from censorship by the government as a reason for the School Board to punish Boy Scouts for their views, using an administrative nondiscrimination policy. The School Board's action is a violation of the Constitution, as it threatens to exclude Boy Scouts from an open forum because of the School Board's disapproval of Boy Scouts' moral code and the requirements for uniformed leadership based thereon.

The School Board is a government entity obligated to treat all groups on a viewpoint-neutral basis. Under the guise of a self-made and not uniformly applied nondiscrimination policy, the School Board has attempted to silence the viewpoint of Boy Scouts by excluding 1,985 boys from use of school property available to thousands of others. If the School Board's nondiscrimination policy were to be applied consistently, dozens of the groups currently using Broward school facilities would be disqualified because they provide services exclusively or preferentially to one sex, one age group, one ethnic or racial group, or one religious denomination. Thus, the School Board has selectively applied a seemingly neutral nondiscrimination policy as a facade for viewpoint discrimination in violation of the First Amendment. Moreover, as the School Board has elected to enforce this policy solely against Boy Scouts, it seeks to deny them the right to equal protection of the law as guaranteed by the Fourteenth Amendment.

The School Board's actions are unconstitutional and should be enjoined.

STATEMENT OF FACTS

Viewpoint of Boy Scouts of America

Boy Scouts of America is a private, non-profit membership organization founded in 1910. Boy Scouts of America requires its youth and adult members to agree to live according to the values of the Scout Oath and Scout Law. See Affidavit of Jeffrie Herrmann at 9 (hereinafter "Aff. at ___"). The Mission Statement of Boy Scouts of America provides:

It is the mission of Boy Scouts of America to prepare young people to make ethical choices over their lifetimes by instilling in them the values of the Scout Oath and Law.

Uniformed volunteer leaders such as Scoutmasters and Assistant Scoutmasters act as teachers and role models for the values of the Scout Oath and Law to the 15 to 30 adolescent boys in a Scout Troop. In the Cub Scouting program, for younger boys, the same values are taught by volunteer Cubmasters and Den Leaders. A small number of professional leaders commissioned by Boy Scouts of America support the efforts of the adult volunteers in delivering Scouting to the boys. Nationally, more than two-thirds of Troops are sponsored by churches, temples, or other sectarian bodies. Because of their role in conveying the values of Boy Scouting, all registered volunteer leaders must commit themselves to live the values of the Scout Oath and Law. Aff. at 10.

Boy Scouts regard homosexual conduct as inconsistent with the obligations of the Scout Oath and Law to be morally straight and clean in thought, word, and deed, just as religious denominations to which a majority of Americans belong regard homosexual conduct as immoral. While Boy Scouts teach boys to respect all persons, Boy Scouts expect leaders to act as role models for the values of the Oath and Law and accordingly do not select persons as leaders who openly hold themselves out as homosexual. Similarly, given the obligations of duty to God and reverence in the Oath and Law, Boy Scouts do not select as leaders persons who are openly atheistic or agnostic. Aff. at 11.

Plaintiff South Florida Council, Boy Scouts of America ("South Florida Council") is a private, non-profit organization chartered by Boy Scouts of America to support Scouting in Broward, Dade, and Monroe counties. The South Florida Council serves approximately 25,000 children in Scouting programs, 9,298 of whom reside in Broward County. These Boy Scout groups are supported by volunteer leaders. Aff. at 12. Fifty-seven Boy Scouts Troops and Cub Scout packs, comprising 1,985 children and 625 volunteer leaders, conduct their meetings in Broward County public school facilities. Aff. at 2.

Broward Schools Used As Open Forum

The School Board permits numerous organizations to meet and recruit members in the approximately 215 public schools in Broward County. Superintendent Frank Till has estimated that "hundreds of groups" regularly use the Broward County Schools. Aff. at 24. By its policy and practice, the School Board has created an open public forum in the public schools. School Board policies regarding the "Use of Broward County School Facilities for Non-School Purposes" support the active use of school facilities and note a series of criteria including: "The rental use or enjoyment of school facilities or services by any group or organization which discriminates on the basis of age, race, color, disability, gender, marital status, national origin, religion or sexual orientation will not be permitted." School Board Policy 1341. Without regard to this policy, the School Board permits many groups which restrict membership according to sex, age, religion, or ethnicity to use school facilities.

For example, the Girl Scouts regularly use the Broward County public schools for their meetings. Similarly, the Indian Princesses, a YMCA sponsored group limited to young girls and their fathers, meet in at least one elementary school in Broward County. Many youth groups, such as the Brownies and the YMCA tutoring programs, limit participation to students of certain ages. Aff. at 5. In addition, the following religious organizations use Broward County public school facilities for religious services or other activities: (1) Congregation Kol Tikvah; (2) First Baptist Church Piney; (3) Lauderhill Seventh-Day; (4) Everglades Community Church; (5) Metro Life Chapel; (6) Iglesia Cristo La Roca; (7) Cornerstone Community Church; and (8) Faith Abounding. The membership of these churches is comprised of persons who adhere to particular religious beliefs. Aff. at 7. In addition, Aspira Clubs have historically conducted after-school programs in the Broward public schools to "promote the empowerment of the Puerto Rican and Latino community by developing and nurturing the leadership, intellectual, and cultural potential of its youth." Aff. at 8. Other than Boy Scouts, no groups which limit membership to protected categories of persons have been denied use of public school facilities.

On November 14, 2000, the School Board of Broward County voted unanimously to terminate Boy Scouts' agreements with the School Board, thereby excluding Boy Scouts from Broward County public school facilities. Without an injunction, the result of the School Board's decision would be that Boy Scout Troops and Cub Scout Packs would no longer be allowed to use or rent Broward County public school facilities. Broward public school facilities would remain available to other similarly-situated organizations in Broward County. Aff. at 25-26.

The Decision to Evict Boy Scouts

The School Board threatens to evict Boy Scouts from the public schools based solely upon Boy Scouts' view that open homosexuals should not be permitted to be Scout leaders. The School Board's actions were a reaction to Boy Scouts' expression of their viewpoint before the Supreme Court in Dale, as evidenced by the facts leading up to the School Board's decision, the admissions of the Superintendent, and the comments of various School Board members. On September 20, 2000, Superintendent Frank Till wrote to Jeffrie Herrmann, Scout Executive for the South Florida Council, and advised that Boy Scouts' views on homosexuality violated the School Board's nondiscrimination policy. Till specifically cited the Dale opinion as the basis for his conclusion. Superintendent Till demanded to know whether the South Florida Council intended to adhere to the same policies that Boy Scouts of America had expressed before the United States Supreme Court. Aff. at 14. Herrmann explained to Superintendent Till in a letter dated September 27, 2000, that the Supreme Court had upheld Boy Scouts' constitutional right to establish leadership standards for Scouts, and advised that any attempt to treat Boy Scouts on an unequal basis from other organizations using public school facilities would violate the First Amendment. Till nonetheless recommended that the Board take immediate action. Aff. at 15.

Prior to the School Board meeting, Superintendent Till had been briefed by the Diversity Committee, an advisory committee to the Superintendent. This committee met on September 18, 2000, to consider whether Boy Scout Troops and Cub Scout Packs should be excluded from Broward County school facilities. Each committee member had been provided a copy of the Supreme Court's decision in Dale to review. A heated discussion ensued regarding whether Boy Scouts should be excluded from the schools based on their publicly expressed views on homosexuality. Ultimately, the Diversity Committee declared that if the South Florida Council adhered to the policy on homosexuality announced in Dale, and upheld by the Court as constitutionally protected, then they should be permanently excluded from the public schools.

Propelled by the motion it had proposed, the Diversity Committee orchestrated a media event in an effort to justify its efforts to exclude Boy Scout Troops and Cub Scout Packs. On September 22, 2000, two homosexual activists, trailed by television cameras, entered Boy Scout headquarters declaring that they were homosexual and presented applications to become Boy Scout leaders. Their applications were not accepted. Aff. at 13.

The School Board met on November 14, 2000. Superintendent Till insisted that unless Boy Scouts agreed to allow homosexuals to become Scout leaders, there would be no place in the Broward County public schools for Boy Scouts. Aff. at 9. One member noted that the School Board's nondiscrimination policy could not be consistently applied because Girl Scouts would have to be excluded as well. Superintendent Till replied that too much time and effort would have been required to identify prior to the School Board meeting all groups currently using Broward public schools which would fall within the policy. Aff. at 24. School Board member Paul Eichner, among others, stated that in light of the Dale opinion, there was no question that Troops and Packs should be excluded. Aff. at 20. At the conclusion of the meeting, the School Board unanimously voted that Boy Scouts would be given a 30-day notice of termination of their agreements to use Broward County public school facilities and school buses. Aff. at 25.

Defendants Single Out Scouting From All Groups Using the Schools

Although the School Board cited its nondiscrimination policy as a rationale to exclude Boy Scouts, this policy was used as a pretext to exclude Boy Scouts because of the Board's dislike of their views on the morality of homosexual conduct as expressed in its leadership policy. No other group had ever been denied access to the Broward County public schools based upon the nondiscrimination policy.

Prior to the eviction of Boy Scouts, no investigation was conducted by either the Superintendent or the School Board to determine whether any other organizations were in violation of the written policy, nor was any action recommended or taken against any other group. Aff. at 25. Till admitted that "hundreds of groups" use the Broward schools and that it would take him several months to even determine the identities of these groups. Aff. at 24.

The School Board was well aware that its nondiscrimination policy was not being consistently enforced. One School Board member expressed the concern that the schools would not be able to apply the nondiscrimination policy literally because it would require excluding the Brownies, which have certain age limitations, and the Girls Scouts, whose membership is restricted to girls. Aff. at 22. Another member stressed that school facilities were currently being used by churches, which restrict their membership to persons of that particular faith. Aff. at 23. No consensus was reached or action taken with respect to any other group except Boy Scouts. Aff. at 25. Concerned about the selective enforcement of the policy, several School Board members worried about the possible liability of the School Board for evicting Boy Scouts from the public schools without taking similar action against any other group. Aff. at 21. Despite such valid concerns, the Board pressed forward with its decision to ban Boy Scouts.

By letter dated November 17, 2000, the School Board formally gave Boy Scouts a 30-day notice of termination of its agreements to use school facilities and school buses. Aff. at 3. Without injunctive relief, this decision means that 1,985 boys and 625 leaders would be deprived of the school rooms and school buses they have been using for decades on 30-days' notice. Aff. at 26. Meanwhile, no action has been proposed or taken against any other organization which meets in the Broward County public schools, even though the School Board is well aware that they may not comply with the nondiscrimination policy. Aff. at 25.

ARGUMENT

I. STANDARD FOR A PRELIMINARY INJUNCTION

To be entitled to a preliminary injunction, a party must show (i) substantial likelihood of success on the merits, (ii) substantial threat that plaintiff will suffer irreparable injury if the injunction is denied, (iii) threatened injury to plaintiff outweighing any threatened harm the proposed injunction may cause defendant, and (iv) absence of disservice to the public interest if the injunction should be granted. See GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1518 (11th Cir. 1993); Johnson v. United States Dep't. of Agriculture, 734 F.2d 774, 781 (11th Cir. 1984); Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Dow Jones & Co. v. Kaye, 90 F. Supp. 2d 1347, 1351 (S.D. Fla. 2000); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Green, 936 F. Supp. 942, 944 (S.D. Fla. 1996).

Boy Scouts meet the standards necessary for the entry of a preliminary injunction. First, Boy Scouts are likely to succeed on the merits of their claim because the proposed exclusion is blatantly unconstitutional. Second, exclusion of Boy Scouts from school facilities would result in the irreparable harm of (i) displacing 1,985 boys in 57 Packs and Troops, (ii) denying Boy Scouts equal access to school facilities, (iii) denying Boy Scouts the same privileges to use school buses as similarly situated groups, and (iv) infringing Boy Scouts' rights to expressive association under the First Amendment. Third, the potential harm caused to Boy Scouts by disrupting Boy Scout activities and jeopardizing Boy Scouts' ability to attract members in Broward County far outweighs any damage that could be claimed by Defendants, who have allowed Boy Scout Troops and Cub Scout Packs to meet in Broward Schools for decades, and who continue to allow similarly-situated organizations to use school facilities. Finally, since Boy Scouts have raised constitutional issues, while Defendants rely only on administrative regulations, the public interest would not be disserved by making sure that constitutional rights are not infringed. Entry of a preliminary injunction is plainly warranted.

II. THE SCHOOL BOARD HAS ENGAGED IN VIEWPOINT DISCRIMINATION.

A. Boy Scouts of America v. Dale

In Boy Scouts of America v. Dale, the United States Supreme Court held that the application of New Jersey's nondiscrimination law to require Boy Scouts to appoint an avowed homosexual as an Assistant Scoutmaster ran "afoul of the Scouts' freedom of expressive association." 120 S. Ct. at 2455. In addressing the question whether forcing the inclusion of Dale would "significantly affect Boy Scouts' ability to advocate public or private viewpoints," id. at 2452, the Court found that Dale's presence "would significantly burden Boy Scouts' desire to not 'promote homosexual conduct as a legitimate form of behavior.'" Id. at 2453. The Court found that New Jersey's public accommodations law did not justify such a "severe intrusion" into the freedom of association rights enjoyed by Boy Scouts, a private entity. Id. at 2457. That Boy Scouts' views on homosexuality had become unpopular among some circles in society was "all the more reason to protect the First Amendment rights of those who wish to voice a different view." Id. at 2457 (emphasis added). The Dale decision makes clear that no government agency may interfere with Boy Scouts' expressive message regarding homosexual conduct merely because the agency disagrees with that message.

The very efforts of Boy Scouts in protecting their constitutional rights from government infringement in Dale caused the Board here to initiate government action against them. As the first step in this process, the Diversity Committee, a citizens' advisory committee to the Superintendent, circulated copies of the Dale opinion and commenced discussion of how Boys Scouts could be excluded from the Broward public schools. Believing that their heretofore unapplied nondiscrimination policy would justify such action, the Committee went so far as to orchestrate a media event in which avowed homosexuals, trailed by TV cameras, went to Boy Scout headquarters pretending to be interested in leadership positions. Till overtly cited his disagreement with Dale as the reason he was requesting the Board to evict Boy Scouts.

The School Board cites the very Supreme Court decision holding that the views of Boy Scouts are protected by the First Amendment as the basis to deny Boy Scouts' constitutional right of access to the Broward County public schools.

B. The School Board's Decision

The School Board attempts to justify the exclusion of Boy Scout Troops and Cub Scout Packs based upon the application of its nondiscrimination policy. If applied equally, however, this policy would preclude any organization focusing its efforts on one age group or sex from using schools. The Superintendent and the members of the School Board alike recognized that this policy is not being applied consistently. By singling out Boy Scouts for exclusion, the members of the School Board make clear that the real reason for their action is their distaste for Boy Scouts' viewpoint. In effect, the individual members of the Board are using the power bestowed upon them by the State of Florida and Broward County to "send a message" to Scouting and to punish Scouting for its views. This is viewpoint discrimination, precisely what the Constitution forbids.

Government entities must treat private groups on a content-neutral basis. In Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 389 (1993), the United States Supreme Court addressed a state school access law interpreted to exclude events that are "church related." The state law listed ten specific allowable uses for school property, but did not include religious purposes on the list. See id. at 386. The school district issued rules respecting the use of school property and included a blanket ban on use for "religious purposes." Id. at 387. Based on state law and the district's rules, the Second Circuit found that even though the school district had created a limited public forum in the school facilities, the school district's decision to deny permission to a religious group desiring to show a Christian film series on school property was viewpoint neutral, reasonable, and constitutional. See id. at 390.

The Supreme Court reversed. The Court noted that any number of groups, both religious and secular, had been granted use of school property under the policy, including a New Age religious group, gospel singers, a quilting bee, a drama club, a Boy Scout Troop, and a Cub Scout Pack. See id. at 391, n.5. Given the numerous other uses to which school property had been put, the Court held that the religious group enjoyed the same constitutional right as other groups to express its viewpoint. Any effort to ban religious subjects was not viewpoint-neutral and violated the First Amendment. See id. at 392-93.

III. THE SCHOOL BOARD HAS CREATED A LIMITED PUBLIC FORUM FROM WHICH IT CANNOT EXCLUDE BOY SCOUTS

The United States Supreme Court has created a tripartite framework for classifying forums on public property: (i) the traditional public forum, such as a park or sidewalk, (ii) the public forum created by government designation (the "limited public forum"), and (iii) the nonpublic forum. See Perry Education Assoc. v. Perry Local Educators' Assoc., 460 U.S. 37, 45-46 (1983); Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 802 (1985). In determining what kind of forum a state entity has created in particular public property, the court must consider the nature of the activities the state has permitted in the space and what limitations the state has placed on activities in the forum. See id.; Southeastern Promotions v. City of West Palm Beach, 457 F.2d 1016 (5th Cir. 1972) (finding a designated public forum in a municipal theater because, inter alia, of the variety of uses allowed in the theater).

Once the government has allowed a facility to be used as a public forum, it may not in any way regulate the viewpoint of the groups using that forum or the content of their speech without infringing on freedom of speech and freedom of association protected by the First Amendment. See Crowder v. Housing Authority of Atlanta, 990 F.2d 586, 590-91 (11th Cir. 1993). In a limited public forum, the government may only enact content-neutral regulations of time, place, and manner that are narrowly tailored to serve a significant government interest. Access to a public forum may not be restricted based upon a desire to suppress a particular viewpoint, nor can the government rely upon a viewpoint-neutral justification for its action if it is in fact motivated by an impermissible purpose. See Cornelius, 473 U.S. at 812-813 ("[t]he existence of reasonable grounds for limiting access to a nonpublic forum . . . will not save a regulation that is in reality a facade for viewpoint-based discrimination").

Here, the School Board has created a designated public forum at the Broward County public schools by allowing numerous community groups and organizations to use its facilities during after-school hours on an essentially unrestricted basis for a wide-variety of expressive activities including meetings, fund-raisers, recruiting, social events, and religious services. Thus, it may not limit access to school facilities because of the views of a particular group.

This Circuit has previously addressed challenges to school access policies in two controlling decisions, Knights of the KKK v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir. 1978), and Searcey v. Crim, 815 F.2d 1389 (11th Cir. 1987).

Knights of the KKK is directly on point because it involves both a preliminary injunction and the denial of access to school facilities based on a nondiscrimination policy. There, both the federal government and the school district attempted to apply policies which prohibited discrimination on the basis of race to prevent the KKK from meeting in the public schools. 578 F.2d at 1123-24. The Fifth Circuit reversed the district court's denial of injunctive relief, enjoined the enforcement of the school district's nondiscrimination policy, and recognized the right of the KKK to access to the public schools for its meetings. See id. at 1128. The Fifth Circuit observed that the use of the nondiscrimination policy to exclude a viewpoint with which the school district disagreed violated the First Amendment and the Equal Protection Clause. See id. at 1125.

The Fifth Circuit found that the school district had created a public forum by allowing use of school facilities by organizations holding a variety of political and ideological views on a "first come, first served" basis. Id. at 1123. When the federal government threatened to cut funding because the KKK violated its nondiscrimination policy, the school district canceled a previously scheduled KKK meeting to be held after-hours in a school. See id. The school district then enacted its own nondiscrimination policy, preventing the KKK from permanently meeting in the public schools because its membership policies discriminated on the basis of race. See id. at 1124.

Specifically, the nondiscrimination policy provided that:

Any person who is a resident of East Baton Rouge Parish other than a person . . . who discriminates against any person on the basis of race, color, creed, sex or national origin, shall be permitted to use school facilities for meetings, programs, or other activities which are not prohibited by the laws of the State of Louisiana or the United States of America.

Id. at 1144. In enjoining the enforcement of this nondiscrimination policy, the court recognized that this policy "frankly discriminates among applicants on the basis of the content of the ideas they advocate and, arguably, on their membership and meeting-attendance policies." Id. at 1124.

Thus, in considering a nondiscrimination policy almost identical to the one at issue in the instant case, the Fifth Circuit asked: "May an agency of the state, consistently with the Constitution, condition the off-time use of public school facilities on the political or ideological views of the applicant, on its membership policies, or perhaps on who may be permitted to attend its proposed function?" Id. at 1124. Applying the standards for injunctive relief, the court concluded that there was a substantial likelihood that the KKK would prevail on the merits. See id. at 1125. The court recognized that the school district's nondiscrimination policy "contemplates that in comparable circumstances [the Board] will make school facilities available to some private groups and deny them to others." Id. at 1125. Further, the court cautioned that: "equal protection considerations render such selective exclusions unconstitutional." Id. Moreover, the court added that "it seems very dubious" that the discriminatory membership policies of the applying group "may be applied to deny the use for a few hours of a dedicated public forum." Id. at 1126.

Next, the court considered the irreparable injury prong of the test and held that the KKK was irreparably injured by being improperly barred from exercising its First Amendment rights in a generally available public forum. Using strong language, the court warned that: "We cannot regard such selective muzzlings lightly; to the contrary, in our constitutional scheme of things they are viewed very gravely indeed." Id. at 1127.

With respect to whether the injunction would be against the public interest, the court observed that, under the First Amendment, the school district was constitutionally prohibited from excluding "unfashionable, even pernicious and mischievous, ideas" from the public forum by a prior restraint. Id. at 1127. The court concluded that "enjoining a selective denial of a dedicated public forum to a group because of its ideas or membership policies would forward and not contravene the public interest." Id. at 1128. Accordingly, the court directed the district court to issue an injunction forthwith to enjoin the enforcement of the School Board's policy pending a hearing on the merits. See id.

As in the KKK case, Boy Scouts has presented a clear constitutional violation. Here, the School Board has applied a nondiscrimination policy to exclude Boy Scouts from using a designated public forum based upon its ideas and membership policies. Boy Scouts has shown irreparable injury in that its First Amendment rights have been infringed by denial of the use of this public forum and because the School Board has made it clear that these facilities cannot ever be used or rented by Boy Scouts unless it changes its views on homosexuality.

In the KKK case, the Fifth Circuit warned that the state could not "gag" those ideas and policies that it did not find suitable for public expression even in "the name of equal protection and civil rights." Id. at 1128. Likewise, here, although the members of the School Board may advocate equal rights for homosexuals, it cannot deny access to a public forum to Boy Scouts because the Board has a different viewpoint on the morality of homosexual conduct. While the School Board may believe that Boy Scouts' policy on homosexuality is politically incorrect, the public interest would be contravened by the restriction of free expression and free association in a public forum. See Searcey, 815 F.2d at 1390 (affirming grant of summary judgment to peace activists who wished to disseminate literature, post advertisements, and conduct workshops in high schools on grounds that school was designated public forum and that district's restrictions on access had violated the First Amendment); Verbena United Methodist Church v. Chilton County Board of Education, 765 F. Supp. 704 (M.D. Ala. 1991) (enjoining school board from denying access to school facilities to church for religious services.); Johnston?Loehner v. O'Brien, 859 F. Supp. 575 (M.D. Fla. 1994) (enjoining enforcement of facially-neutral regulation which gave unfettered discretion to superintendent to decide what literature to allow to be distributed in schools, because this discretion had been used to screen out materials with religious content). In addition, Boy Scouts are threatened with the denial of their fundamental right to free speech and freedom of association. "It is well-settled that loss of First Amendment freedoms for even minimal periods of time constituted irreparable injury justifying the grant of a preliminary injunction." Elrod v. Burns, 427 U.S. 347, 367 (1976); see Deerfield Medical Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981); Dow Jones & Co. v. Kaye, 90 F. Supp. 2d 1347, 1361 (S.D. Fla. 2000).

IV. THE SCHOOL BOARD'S SELECTIVE APPLICATION OF ITS POLICY VIOLATES THE EQUAL PROTECTION CLAUSE

The School Board's distinction between Boy Scouts' use of schools and other groups' use of schools violates the Equal Protection Clause. In Police Department v. Mosley, 408 U.S. 92 (1972), the United States Supreme Court addressed content-based restrictions on speech as violations of the Equal Protection Clause. The unconstitutional ordinance in Mosley forbade all picketing within 150 feet of a school except for peaceful labor picketing. 408 U.S. at 93. The Court found that the regulation was content-based and implicated the Equal Protection Clause:

Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an "equality of status in the field of ideas," and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.

Id. at 96 (emphasis added); see Carey v. Brown, 447 U.S. 455 (1980) (reaffirming the Court's analysis in Mosley of applying the Equal Protection Clause to content-based prohibition on speech).

The School Board's selective enforcement of its nondiscrimination policy against Boy Scouts based on its viewpoint violates the Equal Protection Clause. Defendants have engaged in viewpoint-discrimination by excluding Boy Scouts alone out of the hundreds of groups using Broward County public school facilities. By its terms, the nondiscrimination policy prohibits the use of school facilities "by any group or organization which discriminates on the basis of age, race, color, disability, gender, marital status, national origin, religion, or sexual orientation." Broward County School Policy No. 1341. Despite the policy, the School Board permits many organizations which restrict membership on these bases to use Broward County public school facilities.

For example, the Girl Scouts are open only to girls and continue to use the Broward County public schools for meetings and to use school buses to transport members. Similarly, the Indian Princesses, a YMCA-sponsored group limited to young girls and their fathers, meet in at least one elementary school in Broward County. Groups focusing their activities on particular ethnic groups, such as Aspira Clubs, conduct their after-school meetings in the Broward County public schools without objection by the School Board. At least eight religious organizations use Broward County public school facilities, and the membership of these churches is comprised of persons who adhere to particular religious beliefs.

The School Board knowingly and recklessly used its nondiscrimination policy as a pretext to justify elimination of a viewpoint with which it disagrees. The School Board members made numerous derogatory statements regarding Boy Scouts' views at its November 14th meeting. Superintendent Till took the position that there is no place in the Broward County public schools for Boy Scouts unless they change their viewpoint concerning homosexuality and admit all homosexuals as Scout leaders. Several School Board members, including Judie Budnick, Lois Wexler, and Stephanie Craft, recognized the inherent inconsistency in taking action against Boy Scouts while numerous other organizations with restrictive membership policies continued to use Broward County schools.

The School Board's view that it is supporting discrimination by providing a forum for Troop and Pack meetings is based on a fundamental misunderstanding of the state's role in our constitutional scheme. The state provides many forums for speech, for example, a public sidewalk, without being responsible for sponsoring the speech. Furthermore, once the state has created a public forum, it may not condition access to that forum upon its acceptance of the views expressed by a particular group. Even the state's perceived need to avoid a constitutional problem by supporting a religious viewpoint, does not justify exclusion of religious groups from a public forum. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 830 (1995) (holding that public university's denial of funding to university student organization publishing newspaper with Christian editorial viewpoint constitutes unconstitutional viewpoint discrimination). Allowing all viewpoints to be freely expressed in a public forum is the touchstone of a free society.

Conclusion

For the foregoing reasons, Plaintiffs' motion for a preliminary injunction should be granted.

Date: December __, 2000

Attorneys for Plaintiffs Boy Scouts of America and the South Florida Council, Boy Scounts of America

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was hand delivered this _____ day of December, 2000, to Edward J. Marko, Esq., Broward County Public Schools, Counsel's Office, 600 S.E. Third Avenue, Fort Lauderdale, Florida 33301, attorney for Broward County Public Schools and the School Board of Broward County, and was served by Service of Process to all parties listed in the Complaint.