A local Boy Scouts of America council has settled its five-year legal fight to occupy a city-owned facility near the Ben Franklin Parkway, but it will receive $825,000 in city tax dollars to settle the litigation.
Under terms of the settlement, which was announced May 3, the BSA Cradle of Liberty Council will leave the facility by June 30.
A retail store that sells items associated with Scouting will vacate the premises by Oct. 31.
In return, the city will give Cradle $825,000 for improvements to the building that Cradle reportedly made over the years.
Mark McDonald, a spokesperson for the Nutter administration, said the money will come from the city’s general fund, which is supported by tax dollars.
“I don’t have any idea when [Cradle] gets the money,” he said.
He said the Nutter administration was pleased with the settlement.
“We think this is the best course,” McDonald added. “It’s a good result.”
R. Duane Perry, an LGBT advocate, expressed mixed feelings about the settlement.
“The Scouts don’t get to discriminate on city property,” Perry noted. “That’s a good outcome. But the city is paying $825,000 for improvements that it was not obligated to pay for. So it’s a sweetheart deal. It’s not right for city taxpayers to give $825,000 to an organization that discriminates.”
Perry also expressed hope that the city would sell the building through a public-bidding process.
“Wouldn’t it be nice if the proceeds went to organizations that fight homophobia?” Perry posed.
McDonald had no comment about the possibility of selling the building.
“What happens to the property at 22nd and Winter streets is a subject for another day,” he said.
McDonald said the settlement allows Cradle to remove some items associated with Scouting.
“They do get to take a statue in front of the building and a couple of other little things that are adornments related to Scouting,” McDonald said.
Cradle filed a federal suit against the city in 2008, claiming its civil rights were violated due to the city’s eviction effort.
Two years later, a federal jury issued a mixed verdict: Jurors decided that the city’s overall eviction effort was reasonable, but that the city acted unreasonably when asking Cradle to repudiate BSA’s antigay policy in order to remain in the building rent-free.
After the verdict was handed down, Cradle claimed the city owed it about $1 million in legal fees.
But Perry said the city had a strong chance of prevailing on appeal, in which case it wouldn’t have to pay Cradle’s legal fees.
The matter was pending in the Third Circuit Court of Appeals when the settlement was announced.
The Scouts have occupied the building since 1928, but they’ve been in conflict with the city’s antibias rules for decades because they refuse to allow lesbian, gay and atheist participants.
Cradle issued this statement about the settlement: “The Cradle of Liberty Council is glad to bring this litigation to an end in Philadelphia. Ultimately, Scouting doesn’t happen in an office. Scouting happens in neighborhoods, community centers and church basements. With that in mind, we felt it was time to put an end to the litigation and turn our attention back to our core mission of serving Philadelphia’s youth.”
Margaret A. Downey, president of the Freethought Society, expressed concern with the settlement.
“It’s outrageous that Cradle is getting any of our tax dollars because they blatantly violate the law and discriminate against many groups, including nontheists,” Downey said. “But at least they’re getting out of the building, which they should have done a long time ago.”
Downey added: “The Parkway building should become a community center that houses many different organizations that fight discrimination, including discrimination against nontheists.”
Will Cradle return to the city?
According to published reports, Cradle intends to relocate to an alternate site in the city.
But some LGBT advocates have expressed concern about that possibility, noting that Cradle allegedly uses a job application form that forbids the hiring of gays, atheists and/or agnostics.
“I question whether Cradle should be permitted to do business in a private facility in the city, if doing business includes use of an employment application that explicitly discriminates against gays, atheists and agnostics,” said LGBT advocate Arthur Kaplan.
Kaplan also questioned whether the Nutter administration enforces the city’s antibias rules in an equitable manner.
“If another employer were using an employment application that said no Jews, no Catholics or no people of color — and they were doing business in Philadelphia — you can be sure the city would be on their backs,” Kaplan noted.
Kera Armstrong, a Cradle spokesperson, declined to say whether Cradle would stop using the job application form if it returned to the city.
Kaplan expressed strong displeasure with the Cradle settlement.
“The mayor and city solicitor have forced the taxpayers of Philadelphia to pay a subsidy to an organization that openly discriminates,” Kaplan continued. “There’s no way of knowing what the city is going to do with that building. The city could have gotten $2 million from Mel Heifetz for the building and won the lawsuit. Instead of the taxpayers being $2-million richer, the taxpayers are now $825,000 poorer.”
Details of the entire settlement should be released to the public, Kaplan added.
“Of course the LGBT community should see the settlement agreement because the devil is in the details.”
David W. Adamany, former president of Temple University, said the city had a strong likelihood of prevailing if it pursued the appeal.
“This settlement is a serious setback for equal rights in Philadelphia. and really is very contrary to Philadelphia’s long history of being a city concerned about equal rights,” Adamany said. “I think the Nutter administration has pulled an end-run around City Council, which previously declined to approve a subsidy for the Scouts. Now, with this settlement, the Scouts are getting a substantial amount of city tax dollars.”
But Thomas W. Ude Jr., senior staff attorney at Lambda Legal, was more supportive of the settlement.
“This is not a perfect settlement but it allows the city to make a clean break that ends a subsidy of discrimination,” Ude said. “As with many advances, this outcome is the product of long, hard work by many activists and city officials.”
David M. Rosenblum, legal director at Mazzoni Center, echoed Ude’s sentiments.
“Though their decision to vacate the premises may not be an ideal resolution for [Cradle], the agreement between the parties ensures that the city will not subsidize organizations that find it necessary to discriminate, in this day and age,” Rosenblum said. “We applaud the city for enforcing its strong Fair Practices Ordinance and ensuring that all are treated equally, regardless of their sexual orientation.”
