723 P.2d 298 (Or. 1986), SC S32472, Cooper v. Eugene School Dist. No. 4J

CourtSupreme Court of Oregon
Writing for the CourtLINDE, J.
Citation301 Or. 358,723 P.2d 298
Date29 July 1986
Docket NumberCA A31423; SC S32472; S32469.
PartiesJanet COOPER, Respondent on Review, v. EUGENE SCHOOL DISTRICT NO. 4J, Petitioner on Review, and Verne A. Duncan, Superintendent of Public Instruction for the State of Oregon, Petitioner on Review.

Page 298

723 P.2d 298 (Or. 1986)

301 Or. 358

Janet COOPER, Respondent on Review,

v.

EUGENE SCHOOL DISTRICT NO. 4J, Petitioner on Review,

and

Verne A. Duncan, Superintendent of Public Instruction for

the State of Oregon, Petitioner on Review.

CA A31423; SC S32472; S32469.

Supreme Court of Oregon.

July 29, 1986

Page 299

Argued and Submitted April 1, 1986.

Page 300

[301 Or. 359] Margaret E. Rabin, Asst. Atty. Gen., Salem, argued the cause for petitioner on review, Verne A. Duncan, Superintendent of Public Instruction for the State of Oregon. With her on the petition were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Bruce E. Smith, Eugene, argued the cause for petitioner on review, Eugene School Dist. No. 4J. With him on the petition were Jackquelyn Romm and Cass, Scott, Woods and Smith, Eugene.

Rohn M. Roberts, Eugene, argued the cause for respondent on review.

Leslie M. Swanson, Jr., Swanson & Walters, Eugene, filed an amicus curiae brief for American Civil Liberties Union of Oregon.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.

[301 Or. 360] LINDE, Justice.

When Janet Cooper, a special education teacher in the Eugene public schools, became a Sikh, she donned white clothes and a white turban and wore them while teaching her sixth and eighth grade classes. In a letter to the staff of the school where she taught, she wrote that she would wear the turban and often wear white clothing as part of her religious practice, and that she had explained this and other changes in her life to her students. 1 She continued to wear her white garb after being warned that she faced suspension if she violated a law against wearing religious dress at her work. The law provides, in ORS 342.650:

"No teacher in any public school shall wear any religious dress while engaged in the performance of duties as a teacher."

and, in ORS 342.655:

"Any teacher violating the provisions of ORS 342.650 shall be suspended from employment by the district school board. The board shall report its action to the Superintendent of Public Instruction who shall revoke the teacher's teaching certificate."

Pursuant to these statutes, the school superintendent, acting for the school board, suspended Cooper from teaching and reported this action to the Superintendent of Public Instruction, who, after a hearing, revoked Cooper's teaching certificate. This order was challenged on constitutional grounds in the Court of Appeals, which set

Page 301

aside the revocation of the teaching certificate as an excessive sanction under the court's understanding of federal First Amendment doctrine. Cooper v. Eugene Sch. Dist. No. 4J, 76 Or.App. 146, 708 P.2d 1161 (1985). On petitions by the school district and the Superintendent of Public Instruction, we allowed review.

  1. THE AGENCY ORDER

    At the outset, we must work our way through a number of problems that the parties and the Court of Appeals passed over in silence. The school district and the Superintendent of Public Instruction (hereafter "Superintendent" in distinction from the district's superintendent) seek a decision on the constitutionality of ORS 342.650 and 342.655, and this [301 Or. 361] may also be the chief remaining objective of the teacher, who has moved to New Mexico and whose Oregon teaching certificate has been reinstated conditional upon compliance with the law. Nonetheless, this case like others is, and if possible should remain, a case of ordinary administrative and statutory law before becoming a constitutional case. 2 The case came before the Court of Appeals on judicial review of an order in a contested administrative proceeding to revoke a license, and it cannot be converted into a declaratory proceeding on the constitutionality of a statute to accommodate the parties.

    The problems passed over in silence are, first, why the school district is a party to this proceeding; second, what was before the Superintendent for decision in a contested case; and third, whether the case is moot. A reading of the statutes makes evident how these problems are interrelated.

    Standing in the revocation procedure. ORS 342.650 forbids a teacher to "wear any religious dress while engaged in the performance of his duties as a teacher." ORS 342.655 directs the district school board to suspend the employment of any teacher who violates this proscription and to report its action to the Superintendent, "who shall revoke the teacher's teaching certificate." Obviously disputes may arise over exactly how a teacher was dressed, whether what she wore was "religious dress," what the teacher's "duties as a teacher" were, and whether she wore the "religious dress" while "engaged in the performance" of those duties. The agency that makes those determinations is the district school board. ORS 342.655 does not direct the Superintendent to reexamine the school board's findings and "action" and its underlying findings and conclusions before revoking the teacher's certificate. We do not foreclose an argument that could be made to the contrary, possibly under the Administrative Procedure Act, ORS 183.310(2)(a)(C), but none was made here.

    The present version of ORS 342.650 and 342.655 was enacted in 1965 in a major revision of public education laws that included extensive provisions governing the certification, [301 Or. 362] employment, and discharge of teachers. Or.Laws 1965, ch 100. These provisions were further amended during the same session by the Teacher Tenure Law, Or.Laws 1965, ch. 608. The Teacher Tenure Law entitled a permanent teacher to have a district superintendent's recommendation of dismissal reviewed by a panel of a Professional Review Committee and to a hearing by the school board before the board acted on the recommendation. In 1971, the law again was amended to provide review of a teacher's dismissal by a panel of the Fair Dismissal Appeals Board. Or.Laws 1971, ch. 570. These statutes are now found in ORS 342.805 to 342.930. 3

    Page 302

    None of the parties nor the Court of Appeals addressed the question what substantive or procedural effects various provisions of the Teacher Tenure Law might have on a teacher's suspension and a resulting revocation of the teacher's certificate under ORS 342.650 and 342.655.

    The teacher obviously has standing to challenge the state Superintendent's revocation of her teaching certificate, and a demand for a hearing before that official is a logical first step, despite doubts whether the law leaves anything for him to decide. But the school district's stake in the revocation of the teacher's certificate is far from obvious. The district need not request revocation and is not otherwise a necessary party to the revocation proceeding. Again, possible arguments for allowing the district to intervene in the revocation proceeding can be imagined, but none were made here. 4 The record contains no motion to intervene or order allowing intervention. The district simply appeared before the Superintendent's hearing officer without stating any reasons for its appearance and was allowed to participate without objection.

    The Superintendent's responsibility. What the parties wanted the Superintendent to decide was the constitutional validity of the law forbidding a teacher to wear religious [301 Or. 363] dress while on duty. The Superintendent, adopting the hearing officer's memorandum of law, concluded that he had no power to decide the constitutional question. The memorandum stated:

    "Judicial decisions are not completely in accord, but the clear consensus seems to be that in a proceeding such as this the administrative agency has no authority to declare an act of the legislature to be contrary to the federal and state constitutions. That decision is to be made by a court. The Attorney General takes a contrary position."

    The memorandum quoted Professor K.C. Davis's distinction between applying a statute constitutionally, which is the agency's duty, and determining the constitutional validity of a statute, which Davis considers to be beyond an agency's power. 5

    Enough judicial opinions have said that agencies cannot pass on the constitutionality of the laws entrusted to them to support the cautious conclusion of the hearing officer's memorandum, at least as to federal agencies; but more recently the proposition has been questioned. 6 It deserves examination.

    Agency power to consider constitutional challenges to a statute generally has been discussed in opinions on exhaustion of administrative remedies. The issue has been, not whether an agency erred in considering such a challenge, but whether a litigant could take the challenge to court without first asking the agency to pass upon it. Both the Davis treatise and Jaffe, Judicial Control of Administrative Action 438 (1965), place the question under the "exhaustion" heading.

    [301 Or. 364] This is not such a case. Opinions denying agency power in constitutional cases

    Page 303

    only as an explanation for dispensing with the normal exhaustion requirement are weak authority for holding that an agency should not consider a constitutional claim when a party chooses to exhaust that process, or that the agency errs if it does decide the issue. If an agency decides a constitutional issue, though needlessly, the only result is that it will be affirmed on judicial review if the decision was right and reversed if the decision was wrong. It would be pointless to reverse an agency for correctly deciding a legal question on the ground that the agency should have waited for the reviewing court to decide the question.

    Long familiarity with the institution of judicial review sometimes leads to the misconception that constitutional law is exclusively a matter for the courts. To the...

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69 practice notes
  • 222 Cal.App.3d 345, A043385, In re Alcala
    • United States
    • California Court of Appeals
    • July 23, 1990
    ...v. Eugene Sch. Dist. No. 4J (1985) 76 Or.App. 146, 1165-1168, revd. on a different ground in Cooper v. Eugene Sch. Dist. No. 4J (1986) 301 Or. 358, 313-314 [regulation banning the wearing by a teacher of religious dress (in this case, the white clothing and turban traditional to the Sikhs) ......
  • 577 A.2d 254 (Vt. 1990), 86-128, State v. DeLaBruere
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 27, 1990
    ...liberty. See Employment Div. v. Rogue Valley Youth, 307 Or. 490, 498, 770 P.2d 588, 592-93 (1989); Cooper v. Eugene School Dist. No. 4J, 301 Or. 358, 368-73, 723 P.2d 298, 305-08 (1986); Salem College & Academy, Inc. v. Employment Div., 298 Or. 471, 484-92, 695 P.2d 25, 34-39 (1985). In......
  • Executive review in the fragmented executive: state constitutionalism and same-sex marriage.
    • United States
    • University of Pennsylvania Law Review Vol. 154 Nbr. 3, January 2006
    • January 1, 2006
    ...challenges would not be doubted if the legislature provided for it expressly..." (quoting Cooper v. Eugene Sch. Dist., 723 P.2d 298, 303 (Or. 1986))). (16) See John Devlin, Toward a State Constitutional Analysis of Allocation of Powers: Legislators and Legislative Appointees Performing......
  • 852 P.2d 859 (Or.App. 1993), CA A68770, Meltebeke v. Bureau of Labor and Industries
    • United States
    • Court of Appeals of Oregon
    • May 19, 1993
    ...is facially unconstitutional, because it directly interferes with religious freedom. It relies on Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 723 P.2d 298 (1986), appeal dismissed 480 U.S. 942, 107 S.Ct. 1597, 94 L.Ed.2d 784 (1987), where the court entertained a free exercise challenge......
  • Request a trial to view additional results
66 cases
  • 983 P.2d 1072 (Or.App. 1999), CA A99663, Newport Church of the Nazarene v. Hensley
    • United States
    • Oregon Court of Appeals of Oregon
    • June 2, 1999
    ...leaving only marginal instances of potentially unconstitutional application to case-by-case decision. Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 378, 723 P.2d 298 (1986), appeal dismissed 480 U.S. 942, 107 S.Ct. 1597, 94 L.Ed.2d 784 (1987). Here, claimant and the Department argue from......
  • 577 A.2d 254 (Vt. 1990), 86-128, State v. DeLaBruere
    • United States
    • Vermont United States State Supreme Court of Vermont
    • April 27, 1990
    ...liberty. See Employment Div. v. Rogue Valley Youth, 307 Or. 490, 498, 770 P.2d 588, 592-93 (1989); Cooper v. Eugene School Dist. No. 4J, 301 Or. 358, 368-73, 723 P.2d 298, 305-08 (1986); Salem College & Academy, Inc. v. Employment Div., 298 Or. 471, 484-92, 695 P.2d 25, 34-39 (1985). In......
  • 180 P.3d 735 (Or.App. 2008), A130883, Mountain Woodworks, Inc. v. Voss
    • United States
    • Oregon Court of Appeals of Oregon
    • March 19, 2008
    ...first drawn by the Supreme Court in State v. Hitz, 307 Or. 183, 188-89, 766 P.2d 373 (1988), and in Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 369 n. 12, 723 P.2d 298 (1986) (explaining that raising an issue is essential to preservation, and that identifying a source for a claimed pos......
  • 764 P.2d 556 (Or.App. 1988), CA A40979, City of Portland v. Ayers
    • United States
    • Oregon Court of Appeals of Oregon
    • November 9, 1988
    ...argued the overbreadth issue below under Article I, section 8, as a distinct and separate issue. See Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 723 P.2d 298 (1986). 5 [93 Or.App. 747] Page 566 In State v. Henry, 78 Or.App. 392, 717 P.2d 189 (1986), the defendant, without specifying a ......
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2 books & journal articles
  • Executive review in the fragmented executive: state constitutionalism and same-sex marriage.
    • United States
    • University of Pennsylvania Law Review Vol. 154 Nbr. 3, January 2006
    • January 1, 2006
    ...challenges would not be doubted if the legislature provided for it expressly..." (quoting Cooper v. Eugene Sch. Dist., 723 P.2d 298, 303 (Or. 1986))). (16) See John Devlin, Toward a State Constitutional Analysis of Allocation of Powers: Legislators and Legislative Appointees Performing......
  • A modest relativism.
    • United States
    • Albany Law Review Vol. 64 Nbr. 4, June 2001
    • June 22, 2001
    ...Government": The Campaign Against Homosexuality, 72 OR. L. REV. 19, 38 (1993). (6) Cooper v. Eugene School Dist. No. 4J, 723 P.2d 298, 301 (Or. 1986). Leslie Griffin, Associate Professor, Santa Clara University School of Law....

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