Seabourn v. Coronado Area Council, Boy Scouts of America

• Decision Date: 10 March 1995
• Docket Number: No. 70772,70772
• Citation: 257 Kan. 178,891 P.2d 385
• Parties: , 63 USLW 2578 Bradford W. SEABOURN, Appellant, v. CORONADO AREA COUNCIL, BOY SCOUTS OF AMERICA, a Kansas Not For Profit Corporation, and Boy Scouts of America, a Washington, D.C., Not for Profit Corporation, Appellees.
• Court: Kansas Supreme Court

Page 385

891 P.2d 385

257 Kan. 178, 63 USLW 2578

Bradford W. SEABOURN, Appellant, v. CORONADO AREA COUNCIL, BOY SCOUTS OF AMERICA, a Kansas Not

For Profit Corporation, and Boy Scouts of America,

a Washington, D.C., Not for Profit

Corporation, Appellees.

No. 70772.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. The interpretation of a statute is a question of law. When determining a question of law, this court is not bound by the decision of the district court.

2. Although advertising may be a consideration in determining whether a place is holding itself out to the general public or inviting the public's patronage as a place of public accommodation, advertising alone is

not enough to convert an otherwise private "person" into a place of public accommodation within the meaning of K.S.A. 44-1002(h).

3. Public accommodations include those places of business which are held open to the general public and where members of the general public are invited to come for business purposes. "Public accommodations" as used in K.S.A. 44-1002(h) and "place of public accommodations" as used in K.S.A. 44-1002(i)(1)(A) include those places of business held open to the general public where members of the general public are invited to come for business purposes.

4. As a matter of public policy, Kansas abhors discrimination. However, in the area of public accommodations, the legislative intent is that the term "public accommodation" includes all businesses which can reasonably be described as offering goods, services, facilities, and accommodations to the public. In addition, "public accommodation" may cover those "persons" traditionally considered a public accommodation.

5. Private groups and institutions are not subject to the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq., simply because they operate nongratuitous residential or recreational facilities for their members or participants incidental to their nonbusiness purpose.

6. The scope of public accommodations under K.S.A. 44-1002(h) includes business establishments and those establishments traditionally considered public accommodations. A broad, expansive coverage, divorcing "public accommodations" from business establishments or business purposes, is not the law in Kansas.

7. The record in this case supports the conclusion that the Boy Scouts of America has no business purpose other than maintaining the objectives and programs to which the operation of certain facilities is merely incidental. Relationships in scouting stand in stark contrast to retail or business-like establishments in that scouting relationships are continuous, close, personal, and social and take place, more or less, outside of public view; whereas business establishments or business-like establishments or traditional public accommodations involve interactions between store personnel and patrons that are perfunctory and impersonal, involving the payment of prices which reflect the full cost of what is received.

Robert Littell, Manhattan, argued the cause, and James Grafton Randall, Anaheim Hills, CA, was with him on the briefs for appellant.

John D. Conderman, of Arthur, Green, Arthur, Conderman & Stutzman, Manhattan, argued the cause, and George A. Davidson and Carla A. Kerr, of Hughes Hubbard & Reed, New York City, were with him on the brief for appellee.

DAVIS, Justice:

Bradford W. Seabourn appeals from summary judgment granted to the defendants, Coronado Area Council, Boy Scouts of America, a Kansas not for profit corporation, and Boy Scouts of America, a Washington, D.C., not for profit corporation (the defendants hereinafter are referred to as the Boy Scouts), ruling that "Boy Scouts is not a public accommodation" as that term is used in the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq.

The court ruled that the Boy Scouts could legally deny Seabourn's registration to serve as an adult leader of the Boy Scouts because of his unwillingness to subscribe to the religious principles of the organization. For the reasons set forth in this opinion, we agree that the Boy Scouts are not "public accommodations" under the Kansas Act Against Discrimination and affirm.

The Boy Scouts of America was incorporated in 1910 in the District of Columbia. In 1915, the First Session of the 64th Congress of the United States of America undertook to incorporate the Boy Scouts. Section 3 of the Charter stated:

"That the purpose of this corporation shall be to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred virtues, using the methods which are now in common use by Boy Scouts."

Section 4 reflected that the "object and purposes [of the Boy Scouts were] solely of a benevolent character and not for pecuniary profit to its members."

In the "Congressional Report in Support of Act to Incorporate Boy Scouts of America" it is stated:

"The Boy Scout movement is ... intended to supplement and enlarge established modern educational facilities in activities in the great and healthful out of doors where may be the better developed physical strength and endurance, self-reliance, and the powers of initiative and resourcefulness, all for the purpose of establishing through the boys of today the very highest type of American citizenship.

"It tends to conserve the moral, intellectual, and physical life of the coming generation, and in its immediate results does much to reduce the problem of juvenile delinquency in the cities....

"The Scout scheme is based upon the methods involved in educating the boy. It is a scheme of placing the boy on honor. In addition to requiring him to live up to a standard or code of laws which insure development of character along proper lines, it requires him to study in order to pass certain tests of qualification. The passing of these various tests is recognized by the award of appropriate badges or medals and insignia.

"If any boy can secure these badges without meeting the required tests, the badges will soon be meaningless, and one of the leading features of the Scout program will be lost. Likewise, with the uniform which designates the Scout. At the present time this is protected by the use of insignia--a seal woven or stamped into the cloth. All of these various badges and insignia are at present protected by the patent laws, but under the patent laws such protection is available for a limited period only. The passing by Congress of this bill will, it is believed, provide the organization with proper protection for its distinctive insignia, the integrity of which is essential to the maintenance of the movement, and protect it from those who are seeking to profit by the good repute and high standing and popularity of the Scout movement by imitating it in name alone."

As soon as a boy joins the Boy Scouts, he becomes a member of a patrol, which is a group of three to eight boys of similar age. The goal of the Scout patrol is to help the boy become a good outdoorsman; active in his troop and patrol; physically fit; a knowledgeable, participating citizen; and a young man who lives by the Scout Oath and Law. A Scout troop is composed of all the patrol members. The troop meets less frequently than the patrol, usually for hikes, campouts, camporees with other troops, and a yearly trip to summer camp.

Article VI, § 6, of the bylaws provides that local councils be chartered with jurisdiction over a prescribed geographical area.

"Clause 1. Local councils duly chartered by the Boy Scouts of America shall, wherever possible, become incorporated under the laws of their respective states pertaining to nonprofit corporations and pursuant to and consistent with these Bylaws and the Rules and Regulations of the Boy Scouts of America."

Article VII, § 1 states: "Youth membership in Boy Scouts of America is open to all who meet the membership requirements."

Article VIII, § 1 addresses adult leadership:

"No person shall be approved as a leader unless, in the judgment of the Corporation, that person possesses the moral, educational, and emotional qualities deemed necessary for leadership and satisfies such other leadership qualifications as it may from time to time require."

Under Article IX, § 1, the Declaration of Religious Principle appears:

"Clause 1. The Boy Scouts of America maintains that no member can grow into the best kind of citizen without recognizing an obligation to God. In the first part of the Scout Oath or Promise the member declares, 'On my honor I will do my best to do my duty to God and my country and to obey the Scout Law.' The recognition of God as the ruling and leading power in the universe and the grateful acknowledgement of His favors and blessings are necessary to the best type of citizenship and are wholesome precepts in the education of the growing members. No matter what the religious faith of the members may be, this fundamental need of good citizenship should be kept before them. The Boy Scouts of America, therefore, recognizes the religious element in the training of the member, but it is absolutely nonsectarian in its attitude toward that religious training. Its policy is that the home and the organization or group with which the member is connected shall give definite attention to religious life.

....

"Clause 2. The activities of the member of the Boy Scouts of America shall be carried on under conditions which show respect to the convictions of others in matters of custom and religion, as required by the twelfth point of the Scout Law, reading, 'Reverent.' A Scout is reverent toward God. He is faithful in his religious duties. He respects the beliefs of others.

....

"Clause 4. Only persons willing to subscribe to these declarations of principles shall be entitled to certificates of leadership in carrying out the Scouting program."

The Boy...