Submitted by Attorney Rees Lloyd
granting “equal access” to anti-military, “counter-recruiters,” including self-declared “revolutionary” organizations, in Portland Schools at “Career Day” and other forums at which military recruiters have access to students pursuant to law.
The resolution of American Legion Portland Post 1 charges that the Portland School Board’s policy should be rescinded because it constitutes unconstitutional “view point” discrimination by the School Board’s creating and granting speech and expression rights in forums in the schools only to anti-military and/or pro-revolutionary organizations, while denying the same rights to pro-military, patriotic organizations like the American Legion and other veterans organizations.
Therefore, the resolution calls on the Portland School Board to rescind the policy. If the School Board refuses to rescind the policy, then it should grant “equal access” to representatives of American Legion Post 1 to counter the anti-military, and/or pro-revolutionary “counter-recruiters” favored by the school board.
More specifically, the resolution adopted by unanimous vote at American Legion Portland Post 1’s general membership meeting on February 15, 2012, provides in the resolved clauses:
RESOLVED, that American Legion Post No. 1, Portland, Oregon, opposes and calls for the rescission of the policy of the Board of Education of the Portland Unified School District known as “Providing Equal Access To Military Counter-Recruiters in High Schools,” established by Board Revised Resolution No. 4503, on the basis that said policy on its face constitutes unconstitutional view point discrimination by allowing equal access for expressive activity only to anti-military and/or pro-revolutionary organizations based on their viewpoint as “Military Counter Recruiters,” while that policy upon its face denies equal access to recruitment forums by pro-military, patriotic organizations, including the wartime veterans of American Legion Post 1 based on their view point.The Portland School Board adopted its Resolution 4503, “Providing Equal Access To Military Counter-Recruiters in High Schools, in September, 2011. It states that its purpose is “to ensure that our students have complete and accurate information about committing to military service…,” (Recitals, Section B). But it acts to provide “accurate information” by allowing “equal access” to students in recruitment forums solely and only to anti-military and/or pro-revolutionary organizations, and not to pro-military and/or patriotic organizations. That is, more specifically, the resolution provides:
BE IT FURTHER RESOLVED that if the Board of Education refuses to rescind its policy based upon view point discrimination, that the Board of Education should grant to The American Legion Post 1 equal access and equal right to engage in speech and expressive activity as is granted to anti-military and/or “revolutionary” organizations designated as “Military Counter Recruiters” and hand-picked by the Board based upon point of view.
BE IT FURTHER RESOLVED that the Post 1 Adjutant is directed to transmit this Resolution to the Board of Education of the Portland Unified School District, and to each officer and member of said Board of Education, each of whom is responsible for the establishment and maintenance of the discriminatory and unconstitutional non-"Equal Access" policy based upon point of view challenged by American Legion Post 1.
“In furtherance of this, Portland Public Schools will allow counter-recruiters to have access to high school students whenever it permits military recruiters to speak with students regarding military service career opportunities. Similarly, if literature encouraging military service is displayed for students to read or pick up, counter-recruiter literature may be displayed as well.” (Recitals, Section C; emphasis supplied.)
Besides limiting “equal access” to “counter-recruiters, only, the School Board’s policy provides for propaganda of anti-military, and/or pro-revolutionary organizations to be distributed by the schools not only to students, but to parents.
More specifically, the policy provides: “Each high school should be provided a packet of information from counter-recruiters about military service, including information for parents and students on their rights to privacy from military recruiters, information about the practices of military recruiters and the full range of service opportunities upon graduation. (Recitals, Sec. D; Resolution Sec. 1; emphasis added).
As to whom the School Board policy grants “equal access” and rights of speech and expression in recruitment forums inside the schools, the Board’s Resolution No. 4503 makes clear on its face that those rights are granted only onto those hand-picked individuals and organizations with whose view point the School Board agrees, to the exclusion of all others.
More specially, the Board’s policy states : “In order to further ensure that students have access to critical information about military service, the Board also directs the Superintendent to provide equal access to counter recruiters. ‘Counter recruiters’ include organizations that have a local presence and an established practice of providing information to students about military service and career alternatives, such as the American Friends Service Committee, Military & Draft Counseling Project, Recruiter Watch PDX, and Veterans for Peace, or other such organizations that wish to present information regarding military service.”
Thus, all the organizations to be granted equal access and speech and expressive rights are anti-military, and/or pro-revolutionary organizations, to the exclusion of pro-military, patriotic organizations like American Legion Portland Post 1 which has “a local presence and an established practice of providing information to students about military service and career opportunities…”
It is significant, I believe, that in identifying the organizations who would meet the board’s “counter-recruiter” limitation, the Board failed to include the War Resisters League, which was a leader in pushing for the “equal access” policy, whose representative testified for its adoption, and which openly identifies itself on its website not as merely anti-military, but as a self-declared “revolutionary organization,” seeking the overthrow of the United States’ form of government, albeit by allegedly “non-violent” means.
Thus, it is manifest that the Portland School Board has established a blatantly discriminatory and patently unconstitutional policy granting speech and expressive rights in the in-school forums solely based upon the “point of view” of the recipients of those rights, including even the pro-revolutionary anti-military “counter-recruiters.”
As a longtime constitutional attorney, veteran, and a Life Member of The American Legion, I testified, as an individual, against adoption of the policy at the School Board at its meeting at which the vote was taken. I objected that, in my opinion, the policy is facially unconstitutional as “view point” discrimination, and would lead to costly and unnecessarily litigation.
Indeed, even the “Oregonian,” while not calling for immediate rescission, criticized the School Boards’ adoption of the “equal access” for “counter-recruiters” only policy as unwise.
Now, the veterans of American Legion Portland Post 1 have taken a stand against and challenged the School Board’s “counter-recruiter” policy, calling for its rescission; or, failing that, inclusion of representatives of American Legion Portland Post 1 in the recruitment forums.
Those wartime veterans of American Legion Portland Post 1 should be respected, listened to, and not further insulted and slapped in the face by the Portland School Board members’ discriminatory and unconstitutional policy granting equal access and speech rights in recruitment forums to “counter-recruiters” only, including those openly declaring themselves to be “revolutionaries.”
[Rees Lloyd, longtime civil rights lawyer, veterans activist, and American Legionnaire, is the author of the resolution unanimously adopted by American Legion Portland Post 1.]