On September 8, 2006, the Supreme Court of Oregon reversed the decision of the Court of Appeals regarding the case of Nancy Powell, both individually and as Guardian Ad Litem for Remington Powell, against Stan Bunn, Superintendent of Public Instruction, the Oregon Department of Education, and the Portland Public School District. The case, which was reviewed en banc, stemmed from allegations of discrimination based on the Powells' religious beliefs. The Court of Appeals had previously concluded that school personnel's facilitation of a message from the Boy Scouts, which excluded participation due to the Powells' atheism, could support a discrimination claim. The Supreme Court, however, reversed this conclusion and the judgment of the circuit court, remanding the case for further proceedings. The facts established that Remington Powell, an atheist first-grade student at Harvey Scott Elementary, was subjected to recruitment presentations by Boy Scouts during school hours, prompting the discrimination complaint. Justice Kistler dissented, expressing an alternative view on the issues presented.
School district personnel facilitated Boy Scouts presentations by managing student attention and assisting with informational bracelets. They distributed Boy Scouts flyers in classrooms and included related content in the school newsletter. The Boy Scouts require members to believe in a theistic God, but the representative did not disclose this during the presentations, suggesting that anyone could join, and there was no mention of religion in any materials. The Boy Scouts were not specifically invited, as they are one of several organizations that use the school for informational purposes.
After the presentations, Nancy Powell complained that her son Remington faced discrimination due to his atheism, which rendered him ineligible for the Boy Scouts. The Powells filed a discrimination complaint against the school district under ORS 659.850, which prohibits unreasonable differentiation in treatment based on various factors, including religion. The school district rejected the complaint, prompting the Powells to appeal to the superintendent, asserting that the presentations violated ORS 659.850.
Under OAR 581-021-0049, the superintendent reviewed the complaint and associated documents. Ultimately, he issued a 17-page order concluding that there was no substantial evidence of discrimination and that no further action was warranted.
The superintendent's decision was classified as an order outside a contested case under Oregon’s Administrative Procedures Act (ORS 183.310 to 183.690). The Powells sought circuit court review per ORS 183.484, which allows for examination of substantial evidence and legal errors. The circuit court found the superintendent had "abused his discretion" by determining there was no substantial evidence of discrimination and remanded the case for further action. The superintendent and school district appealed, but the Court of Appeals ruled that the circuit court had incorrectly applied the abuse of discretion standard instead of assessing substantial evidence and legal errors. However, the Court of Appeals affirmed the circuit court's judgment.
The case does not involve claims that the school district's actions violate constitutional or statutory bans on the establishment of religion, nor does it question the school district's allowance for organizations like the Boy Scouts to recruit during lunch. The sole issue is whether the school district's actions amounted to "discrimination" as defined in ORS 659.850. This statute defines "discrimination" as any unreasonable differentiation in treatment based on certain protected characteristics. In assessing whether Remington faced discrimination, the court follows the interpretive methodology from PGE v. Bureau of Labor and Industries, focusing first on the statute's text and context.
ORS 659.850(2) indicates that no person in Oregon shall be subjected to discrimination, applying to both school district personnel and representatives of organizations like the Boy Scouts. The school district is prohibited from allowing discrimination in any public educational program, service, or activity. Thus, if the school district permitted Remington to experience discrimination, it violated ORS 659.850. The prohibition extends to all public elementary and secondary education programs and services, emphasizing that discrimination is not allowed in any public educational context.
Under ORS 659.850, community groups are prohibited from discriminating against individuals in public school programs, services, or activities. However, this statute does not extend to activities by community groups that occur outside of public school contexts. Classroom activities and school lunch periods are classified as school activities. Therefore, if distributing Boy Scouts flyers or making presentations to students is deemed discriminatory under ORS 659.850(1), such actions would constitute discrimination within public elementary school activities. Similarly, including Boy Scouts meeting information in a school newsletter would also be considered an act within a public elementary school activity.
Discrimination, as defined by ORS 659.850(1), involves any act that unreasonably differentiates treatment based on specific characteristics, including religion. The school district would be found to discriminate against an individual, Remington, if it treated him differently from other children due to his religious affiliation. The Powells claim that the school district's actions unreasonably differentiated treatment based on religion. However, the evidence shows that the distribution of flyers and newsletters, as well as presentations made by Boy Scouts representatives and school staff, were conducted neutrally without reference to students' religious affiliations. The presentations did not incorporate religious content, and the use of wristbands did not introduce a religious element. Thus, the evidence indicates that there was no differentiation in treatment among students regarding the dissemination of information about the Boy Scouts.
All children were treated equally in the school context. The Powells contended that exposing Remington to information about the Boy Scouts, which he cannot join due to his family's religious beliefs, constitutes differential treatment. The Court of Appeals acknowledged that while all students must attend the introductory presentation, only those meeting a religious criterion may join, indicating potential discrimination based on religion. The Powells further asserted that the recruitment activities in schools are discriminatory. However, the evidence shows that the Boy Scouts targeted all children for recruitment, and the differentiation occurs only during the enrollment process, which is not managed by the school district or linked to any school activity. Additionally, the mere presence of a religious aspect in the Boy Scouts does not imply that information shared at school is discriminatory. The Court of Appeals reasoned that discrimination is still relevant to school activities, even if it happens outside school hours or property. Nonetheless, ORS 659.850 addresses only discrimination occurring within public school programs or activities, and the school district did not discriminate against Remington nor allow the Boy Scouts to do so within any public school context. The Powells also argued that the school's actions were "fair in form but discriminatory in operation," but the court found no discriminatory actions within any public school program or service, rendering their argument ineffective.
The school district allowed a community group to provide nondiscriminatory information to parents and students, enabling voluntary participation in related activities. This action does not constitute discrimination under ORS 659.850, as both the school district and the Boy Scouts did not discriminate in any educational program or activity. The superintendent's conclusion of no substantial evidence of discrimination is upheld, reversing the Court of Appeals' ruling. Dissenting opinion from Justice Kistler argues that requiring students to attend a recruiting session for the Boy Scouts, which later revealed a religious affiliation restricting membership, constitutes discrimination based on religion as defined under ORS 659.850(2). Kistler contends that the initial neutral offer becomes discriminatory in operation, challenging the majority's interpretation that discrimination only occurred outside a school activity. The dissent emphasizes that the statutory definition of discrimination encompasses both overt acts and those that, while seemingly neutral, result in discriminatory outcomes.
The offer to join the Scouts was superficially fair and appeared open to all elementary school children. However, it was limited to children who shared the Scouts' religious views, effectively creating a division based on religious beliefs. The discriminatory nature of the offer, which became evident later, does not negate its classification as discrimination under ORS 659.850(2). Making this offer during a mandatory school session subjected the children to discrimination in a public school activity, prompting a dissenting opinion.
The school district questioned whether the evidence for the case should be limited to the administrative record or include new evidence presented during judicial review. The court concluded that the newly presented evidence was not essential to the decision and did not need to address whether the trial court erred in allowing this additional evidence.
In 2000, the school district established new guidelines regulating community group presentations, including those by the Boy Scouts, during non-instructional hours, permitting flyer distribution and brief presentations but prohibiting staff from aiding in placing bracelets on children.
At the time of the Powells' action, ORS 659.850 was previously numbered as ORS 659.150, with a minor change in 2001 but otherwise remaining unchanged since its enactment in 1975.
ORS 183.484(5) outlines the court's powers in reviewing agency orders, allowing for affirmation, reversal, or remand based on incorrect legal interpretations or lack of substantial evidence supporting the agency's decision. Substantial evidence is defined as evidence that a reasonable person could rely on to support a factual finding.
The statutory distinction between "substantial evidence" and "erroneously interpreting a provision of law" is clarified, indicating that a lack of substantial evidence constitutes an error of law. Plaintiffs previously challenged actions by the superintendent and the school district regarding potential violations of the state constitution and ORS 327.109, which addresses complaints about school district involvement with religious activities. The Court of Appeals ruled in favor of the school district, concluding that its actions did not excessively entangle government with religion, and this previous ruling did not raise any issues of claim preclusion.
The court rejected the school district's argument that violations of ORS 659.850 could only occur through actions of school personnel, asserting that the statute prohibits discrimination in public school programs regardless of who the discriminator is. The Court of Appeals noted that the analysis applied to the case would remain unchanged even if a controversial group were allowed to present to students, stating that the statute does not inherently prevent such presentations from occurring. The court emphasized that the inflammatory nature of a group's ideology does not alter the interpretation of ORS 659.850.
Additionally, the case is distinguished from scenarios involving voluntary attendance at recruiting sessions, indicating that the implications of permitting such groups to present would not necessarily equate to discrimination under ORS 659.850. The court did not address whether presenting information about such groups as part of the curriculum would violate the statute.
