Powell v. Bunn , 198 Or. App. 21 ( 2005 )

LINDER, J.,

concurring.

I join in the majoritys legal analysis and disposition of this case. I write separately to clarify my understanding of the task left to the superintendent, given the procedural posture of the issue.

ORS 659.850(2) prohibits discrimination in any program or service in a public school. Discrimination, as defined in ORS 659.850(1), means any act that “unreasonably differentiates treatment, intended or unintended” on any of several prohibited grounds, including religion. Under the administrative rules that the board has promulgated to ensure compliance with the prohibition on public school discrimination, the board has established a procedure by which the superintendent first determines whether “substantial evidence” of discrimination exists. OAR 581-021-0049(1). If no substantial evidence of discrimination exists, the superintendent takes no further action. OAR 581-021-0049(l)(a). If there is substantial evidence of discrimination, the superintendent encourages conciliation between the parties; if conciliation fails, the superintendent conducts a contested case hearing to determine whether a school district is in compliance with ORS 659.850(2). OAR 581-021-0049(l)(b), (2)(a).

In testing for substantial evidence in this case, the superintendent was to ask only whether any reasonable person could conclude, on the record as a whole, that the school district “unreasonably differentiated” in treatment, intended or unintended, on the basis of religion. See generally Baker v. City of Woodburn, 190 Or App 445, 455-56, 79 P3d 901 (2003) (describing the nature of substantial evidence review). In other words, as the majority correctly states, the superintendent’s role in investigating the complaint was only “to determine whether there was substantial evidence, not whether the district actually discriminated.” 198 Or App at 38 (emphasis in original). The same is true of what we must decide on appeal.

As a result, the scope of our decision is limited. The majority opinion correctly does not conclude that the district has, in fact, actually engaged in unlawful discrimination. Rather, it determines only that there is substantial evidence in the record to reasonably support such a conclusion. That determination has a legal component, one that involves the interpretation of the statute and, in particular, the meaning of the language in ORS 659.850(2) that requires the discrimination to be “in any public elementary, secondary or community college education program or activity[.]” On that point, the majority holds that discrimination “may occur ‘in’ a school activity when that activity includes recruitment for an organization that discriminates, even if the discrimination becomes manifest at a later time.” 198 Or App at 41-42.

The majority’s substantial evidence determination also has a factual component. As the majority concludes, the record includes evidence that the Boy Scouts’ current recruiting efforts take place dining school hours, at a place where the district requires students to be, and at a time when the students, in effect, are a captive audience under the direction, control, and supervision of school officials. Such circumstances provide “substantial evidence” to support a determination that “the district itself offered the Scouting program to those students.” 198 Or App at 38. Perhaps reasonable minds can and would differ on whether to draw that conclusion. But for present purposes, that is beside the point. The only question is whether such a conclusion reasonably could be reached. Because it could be, the superintendent has an obligation to pursue the complaint.

If the dispute proceeds to a contested case hearing on remand, the superintendent’s task will include determining whether any unlawful differentiation in treatment is “unreasonable.” In the superintendent’s order declining to pursue the complaint further, the superintendent concluded that any differentiation in treatment by the school district was not unreasonable, apparently as a matter of law.¹ The superintendent reasoned that the district made a policy decision that was consistent with state law encouraging public school and community connections and that any differentiation in treatment was limited in character. The superintendent did not consider the effect of the Boy Scouts’ discriminatory practices on students who are turned away from participation in Scouting activities. As the majority describes, the record developed in the circuit court contains evidence that the religious test for membership imposed by the Boy Scouts significantly ostracizes some students. That effect on those students provides substantial evidence to support a conclusion that the district’s sponsorship of the recruiting activities results in unreasonable differentiation in treatment. 198 Or App at 44.

An inquiry into “unreasonableness,” in many contexts, including administrative ones, often involves questions of both fact and law. See, e.g., SAIF v. Severson, 105 Or App 67, 72, 803 P2d 1204 (1990) (Workers’ Compensation Board must apply correct legal standard in determining whether refusal to authorize training program was unreasonable; beyond that, the board’s decision is tested for substantial evidence). At tins procedural point, we appropriately determine only that substantial evidence exists from which a decision-maker reasonably could conclude that the district engaged in unlawful discrimination. The superintendent has not yet held a contested case hearing or made findings based on the record of that contested case. Nor has the superintendent examined the “unreasonableness” of any unlawful differentiation in treatment based on the totality of the circumstances as developed in a contested case. The legal sufficiency of any determination that the superintendent may make on the basis of a fully developed record if a contested case hearing is held is not a matter that we now determine.

For those reasons, and with that clarification, I concur.

1 Given the “substantial evidence” aspect of the inquiry, the question before the superintendent should have been whether any reasonable decision-maker could find the district’s activities to be unreasonable discrimination. To answer that question in the negative, the activities would have to be reasonable as a matter of law. The superintendent may have departed from that standard. In his order, he concluded that, “[u]nder the circumstances presented here, * * * [the district’s activities] did not unreasonably subject complainant to differential treatment in any public school program, service, or activity.” In effect, the superintendent may have slipped into the role of final decision-maker, rather than testing the evidence for substantial evidence. If so, he erred in that regard.