More than a year ago, a federal district court judge dismissed a lawsuit that the parents of a 14-year-old autistic boy filed against Pacific Palisades Boy Scout Troop 223 alleging discrimination on the basis of their child’s disability. The parents appealed the judge’s decision and, last Thursday, their attorney, Christopher Knauf, presented their case at the U.S. Court of Appeals for the Ninth Circuit in Pasadena before Judges Jay Bybee, Marsha Berzon and Barry Silverman. ‘We feel the lower court erred in dismissing this case,’ Knauf said. The parents, Palisades residents Jane Dubovy and Mike Reilly, argue that Boy Scout Troop 223 violated the Americans with Disabilities Act (ADA) when the Scout leaders excluded their son, Casey Reilly, from a week-long scouting trip, which prevented him from advancing in rank. In October 2006, Federal District Court Judge S. James Otero dismissed the case, ruling that the Boy Scouts is a private club that does not have to comply with ADA, which became law in 1990. ADA prohibits discrimination on the basis of a disability, but private clubs and organizations are exempt from the law. Last Thursday, Knauff argued that a 2001 case mandated that a private organization, the Professional Golfers’ Association, follow ADA and, therefore, that could apply to the Scouts. ‘They don’t meet the definition of a private club,’ Knauf said, arguing that Troop 223 is open to every boy of a certain age in the community, and this is the only restriction. Reilly met all the requirements, but when his disability became an issue, he was excluded, Knauf said. In 1993, the U.S. Court of Appeals for the Seventh Circuit ruled that the Boy Scouts is a private club that is exempt from the Civil Rights Act, which also means it doesn’t have to follow ADA, attorney Carla Kerr countered. ‘It’s not a legal argument,’ she said, noting the Boy Scouts can legally exclude members based on religion and sexuality. Kerr, who works for the firm Hughes Hubbard & Reed, said that just because the Boy Scouts invites neighborhood boys to join does not make it an open club. Churches, which are private organizations, also solicit members, she said. The judges should make their decision in the next six months, Knauf said. If the parents lose the case, they can appeal to the U.S. Supreme Court. If they win, their case will return to the federal district court for a trial or the Boy Scouts can appeal the decision to the U.S. Supreme Court. The issue began in 2005 when Reilly’s father could not attend a seven-day trip to Emerald Bay on Catalina Island. The Boy Scouts had asked Reilly’s father to attend all of the activities to supervise his son, who has a form of autism called Asperger’s Syndrome, which is associated with impaired communication skills, repetitive patterns of behavior and weak motor skills. Reilly had to participate in the trip in order to become eligible for Eagle Scout. His teenage brother was able to travel with him on the trip, but Scout leaders refused to allow this, Knauf said. After the campout, one of the troop leaders e-mailed Reilly’s parents, citing their son’s disability as an obstacle in his participation, and saying their son would not advance, but could start again as a first-year Scout. Paula Pearlman, who is helping with the case through the Disability Rights Legal Center (DRLC), argued that it was unfair to require Reilly’s father to attend every function when that is not a requirement of the other boys in the troop. Reilly shouldn’t be forced to start over when ‘he would have gone on the trip, and he wanted to go,’ Pearlman said. It’s not uncommon for troops to require parents of children with disabilities to attend all functions, Kerr said. Troop 223 has existed for more than 50 years, and other children who have attention deficit hyperactivity disorder or autism have participated with the help of their parents, she said. ‘Asking one father to go is not outrageous.’ Reilly, who has outbursts where he spits, kicks and swears at the other children, requires additional supervision, Kerr said. Fathers, who volunteer to run Boy Scouts, would have had difficulty supervising him and the other 12- to 15-year-old boys during the seven-day trip. The hope of the lawsuit is that troop leaders will receive adequate training to work with children who have disabilities, said Shawna Parks, director of DRLC. By excluding Reilly from the trip, ‘they’re saying if you have autism, you can’t be in our group,’ said Pearlman, executive director of DRLC. Kerr said that Reilly was not asked to leave the Boy Scouts, but to start over with a younger group. Perhaps he would be more mature, Kerr said. ‘I don’t think they were unfair to him.’ Knauf countered that even if Reilly had been held back a year, his behavior issues would not change because of his autism. ‘He had the right to move forward with his friends,’ Knauf said. Last Thursday, attorney Jennifer Brockett, with the firm Davis Wright Tremaine, filed a friend of the court brief on the parents’ behalf. She believes people with disabilities should be able to participate in recreation in their communities without facing discrimination. Brockett said she hopes her brief will encourage the judges to consider how their decision will affect not only Reilly, but also other children with disabilities. ‘The ability to participate in recreation is the ability to participate in society,’ Brockett said.
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