Why James Dale is back in court—30 years later
The memorandum of understanding between Scouting America and the DoD has eluded public view. James Dale is trying to change that.
Color me surprised: Nearly three decades after James Dale lost his legal battle for inclusion as a gay man in Scouting, he’s back in court—this time, to help the organization.
To understand why, we need to go back to February, when Scouting America signed a memorandum of understanding with the Department of Defense, agreeing to hem its DEI programming in exchange for continued federal support.
I’m sure you know the details of that already, but if you need a refresher, here’s my recap. The thing is, the general public has yet to actually see that crucial memo, while Scouting and the Department have given conflicting accounts of what it contains.
Crucially, Pete Hegseth’s description of the agreement implied that Scouting had agreed to effectively ban trans kids. A demonstrative headline from The Guardian read: “Scouting America to reinstate ban on trans children, says Pete Hegseth." But Scouting chief executive Roger Krone instead told the Associated Press: "We have transgender people in our program, and we’ll have transgender people in our program going forward."
Krone also told the AP "there was nothing in discussions with the Pentagon that changes the way the programs are run.” Indeed, the “boy or girl” checkbox on membership applications already exists, for example.
So what exactly did Scouting America agree to change? Dale is trying to find out.
On Thursday, the long-ago Supreme Court plaintiff filed suit against the Department of Defense, arguing that the agency is failing to fulfill his Freedom of Information Act request to see this infamous memorandum of understanding.
Dale says that the public is entitled to see the document for themselves. This is crucial because the Pentagon has set an August deadline for Scouting America’s compliance with the agreement, lest it lose its federal support.
But we still don’t know what, exactly, Scouting America is complying to. The general public has not seen the actual agreement. Dale tried to retrieve the memo with his FOIA request, but reports that the department "stonewalled me for three months and blew every legal deadline.” Cue, the lawsuit.
Dale’s case is filed in the Southern District of New York, and assigned to judge Ronnie Abrams, a Barack Obama appointee whose father, interestingly enough, is Floyd Abrams, the First Amendment lawyer who represented The New York Times in the Pentagon Papers case.
If all of this wasn't interesting enough, there’s one last twist that I can’t stop thinking about. When Dale lost his case in the Supreme Court in 2000, it was on the basis that the Boy Scouts of America had a constitutional right to “expressive association,” allowing it to choose its own members (in that case, heterosexual ones).
It’s that same legal precedent, now, that would seem to protect Scouting America from federal incursions to kick out trans youth. As Dale wrote in TIME back in March, "The federal government is doing exactly what the Supreme Court said the government cannot do: pressuring a private organization over who belongs in its program."
And that’s at the core of why Dale is starting a new legal battle. "The public is entitled to see the document before the Pentagon's August review of Scouting America's compliance, and to judge for itself whether the federal government obtained by contract what the Court once held it could not impose by law,” Dale says.
As y’all know, I’m mostly in Scouting retirement these days. I might write about this occasionally in the future, but if you want more frequent updates, I’d encourage you to follow James directly.
