Nakashima v. Board of Education

• Decision Date: 08 May 2008
• Docket Number: Agency No. CA A123878.,Agency No. S054156.,Agency No. 581-021-0034-4-00.,Agency No. SC S053972.
• Citation: 344 Or. 497,185 P.3d 429
• Parties: Anthony NAKASHIMA, Greg Nakashima, Esther Nakashima, Jonny Long, Lee Long, Sue Long, Loren Larry, Violet Larry, Josh Linfoot, Becky Harvey, Taylor Lewis, Carlene Lewis, Andrew Bailey and Susie Bailey, Respondents on Review, and Jeremy Long and Rodney Larry, Intervenors on Review, v. OREGON STATE BOARD OF EDUCATION, Petitioner on Review, and Oregon School Activities Association, Petitioner on Review.
• Court: Oregon Supreme Court

185 P.3d 429

344 Or. 497

Anthony NAKASHIMA, Greg Nakashima, Esther Nakashima, Jonny Long, Lee Long, Sue Long, Loren Larry, Violet Larry, Josh Linfoot, Becky Harvey, Taylor Lewis, Carlene Lewis, Andrew Bailey and Susie Bailey, Respondents on Review, and Jeremy Long and Rodney Larry, Intervenors on Review, v. OREGON STATE BOARD OF EDUCATION, Petitioner on Review, and Oregon School Activities Association, Petitioner on Review.

Agency No. 581-021-0034-4-00.

Agency No. CA A123878.

Agency No. SC S053972.

Agency No. S054156.

Supreme Court of Oregon.

Argued and Submitted March 5, 2007.

Decided May 8, 2008.

On review from the Court of Appeals.^*

Jonathan M. Radmacher, McEwen Gisvold, LLP, Portland, argued the cause and filed the briefs for petitioner on review Oregon School Activities Association.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for petitioner on review Oregon State Board of Education. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Charles F. Hinkle, ACLU Foundation of Oregon, Inc., Portland, argued the cause and filed the brief for respondents on review.

Michael H. Simon, Perkins Coie LLP, Portland, and Marc. D. Stern, Counsel of Record, American Jewish Congress, New York, filed a brief on behalf of amicus curiae American Jewish Congress.

Before DE MUNIZ, Chief Justice, and GILLETTE, DURHAM, BALMER, WALTERS, and LINDER, Justices.^**

LINDER, J.

This case requires us to decide the legal standard that applies to determine when a practice or policy is "fair in form but discriminatory in operation" within the meaning of ORS 659.850, which prohibits religious and other forms of discrimination in state-funded school and interschool activities.¹ Petitioners are student athletes at Portland Adventist Academy (PAA) and their parents (collectively, petitioners). In approximately March 2000, petitioners asked the Oregon School Activities Association (OSAA), which is the governing body for interscholastic activities in Oregon, to alter the scheduling of the Class 2A Oregon State High School Boys' Basketball Tournament so that they, as members of PAA's basketball team, would not be required to play tournament games on their Sabbath. OSAA denied the request, and petitioners appealed to the Oregon State Board of Education (board), arguing that OSAA's refusal to alter the scheduling of the tournament was discriminatory under ORS 659.850. The board denied relief.

Petitioners sought judicial review in the Court of Appeals, and that court reversed and remanded for reconsideration by the board. Montgomery v. Board of Education, 188 Or.App. 63, 71 P.3d 94 (2003). After the board issued its final order on reconsideration, petitioners again sought judicial review, and the Court of Appeals again reversed and remanded for reconsideration. Nakashima v. Board of Education, 204 Or. App. 535, 131 P.3d 749, adh'd to on recons., 206 Or.App. 568, 138 P.3d 854 (2006). We allowed petitions for review filed by the board and by OSAA. As we will explain, we agree with the Court of Appeals that the board did not review OSAA's actions under the correct legal standard, but our analysis differs, in part, from the analysis that the Court of Appeals followed.

I. FACTS AND PROCEDURAL HISTORY

The basic facts are not in dispute and are largely drawn from the Court of Appeals decisions and the board's order. OSAA is a voluntary organization of public and private schools in Oregon that the board has approved to administer interscholastic activities. PAA is a private Seventh Day Adventist school and a member of OSAA. Petitioners are Seventh Day Adventists. One of the tenets of the Seventh Day Adventist religion is observance of a Sabbath that begins at sundown on Fridays and continues through sundown on Saturdays. Consistently with their religious beliefs, neither PAA nor the student petitioners participate in competitive sports during their Sabbath.

The Class 2A basketball tournament is held in Pendleton and, as of 2004, includes eight boys' teams and eight girls' teams.² All games are played at the Pendleton Convention Center. The girls' first-round (quarterfinal) games are held on Wednesday in two sessions, each of which is a block of two games played sequentially, or "back to back." The sessions are held at 1:30 p.m. and 6:30 p.m. The boys' first-round games are held on Thursday, likewise in two sessions, with the same starting times as the Wednesday games. On Thursday, there is also a third session, one that consists of two girls' "consolation" games, with that session commencing at 9:00 a.m.

On Friday, there is a morning session of two boys' "consolation" games; in the afternoon, there is a session consisting of a boys' semifinal game and a girls' semifinal game. On Friday evening, there is another session, again consisting of a boys' semifinal game and a girls' semifinal game. The consolation finals — the games involving the two remaining girls' teams and the two remaining boys' teams that lost their initial tournament games — are played in a Saturday morning session. Each winner receives a fourth place trophy. The boys' and girls' third place games — the games between the two girls' teams and the two boys' teams that won their initial tournament games, but then lost their semifinal contests — are played in a Saturday afternoon session. The championship games are played in a Saturday evening session with the girls' game played first at 7:00 p.m.

Thus, under the schedule, PAA potentially may be required to play on its Sabbath (that is, after sundown on Friday or before sundown on Saturday), depending on how it proceeds through the tournament brackets. The same is not true, however, for participants who observe a Sunday Sabbath. As a matter of long-standing practice, OSAA never schedules athletic events, including games that are part of the annual tournaments, on Sundays; OSAA has done so in the past only if necessary due to such unforeseen circumstances as inclement weather.

In 1996, PAA asked OSAA to adjust the schedule of games for the Class 2A boys' basketball tournament to avoid requiring PAA's team to play any game scheduled on its Sabbath. OSAA agreed to switch the schedule of the Friday games to avoid such a conflict, because those games are relatively interchangeable.³ OSAA was not willing, however, to adjust the Saturday games, which follow a set order. OSAA indicated that if PAA refused to play a Saturday game for which it qualified, PAA would have to forfeit the game. Because PAA in 1996 qualified for the championship game, which began after sundown on Saturday, no actual conflict occurred and PAA did not forfeit a game.

OSAA's agreement to allow PAA to forfeit a game led to numerous complaints from school officials. The complaints were principally concerned with the potential for a game in the consolation brackets to end in a forfeiture, which would deprive any team scheduled to play against PAA of a round of play in the tournament. As a result of the negative reaction to the forfeiture possibility, OSAA in 1997 decided not to permit PAA to forfeit any game that would require the PAA team to play on its Sabbath. OSAA so advised PAA.

The issue did not surface again until 2000. In advance of the tournament that year, petitioners⁴ again asked OSAA to adjust the scheduling of that year's tournament so that PAA team members would not have to play on their Sabbath. OSAA's Executive Board issued an order concluding that OSAA had no obligation under state law to alter the schedule for PAA and that, in all events, to do so would violate the Establishment Clause of the First Amendment to the United States Constitution. Petitioners appealed OSAA's order to the board pursuant to OAR 581-021-0049.⁵ The board dismissed the complaint in 2002, after concluding that OSAA did not violate any laws or rules in scheduling the tournament.⁶ In its order, the board found that OSAA's policies for its tournament games were religion-neutral. In particular, the board found that, "[r]egardless of any historical reasons for not scheduling tournament games on Sundays," OSAA currently enforces that policy for valid secular reasons, rather than to accommodate the religious beliefs of persons who observe a Sunday Sabbath. The board also found that, with regard to the tournament more generally, "OSAA does not differentiate between secular and sectarian circumstances when making its tournament decisions. Any tournament rescheduling by OSAA is based on nonpreferential adjustments that serve to maintain competitive balance and other neutral OSAA policies."

Petitioners sought judicial review of the board's order in the Court of Appeals.⁷ In Montgomery, the Court of Appeals held that ORS 659.850 prohibits facially neutral practices that have a discriminatory effect on protected groups, as well as intentionally discriminatory treatment. 188 Or.App. at 68, 71 P.3d 94. In its order, however, the board had considered only whether OSAA engaged in intentional discrimination. Id. at 69-70, 71 P.3d 94. The Court of Appeals concluded that the legislature enacted ORS 659.850 based on concepts that had developed under federal employment discrimination law. Id. at 71-72, 71 P.3d 94. Drawing from those federal law concepts, the court held that the statute requires OSAA to attempt to reasonably accommodate petitioners' religious beliefs. Id. at 77-79, 71 P.3d 94. The Court of Appeals therefore determined that ORS 659.850 required OSAA to attempt to make a reasonable accommodation of the petitioners' religious needs and that, by failing to consider whether OSAA had fulfilled that obligation, the board erred. Id. at 77, 79, 71 P.3d 94. In remanding the case to the board to consider that issue, the Court of Appeals noted that the board might "find assistance" in the extensive body of existing federal case law on the issue of reasonable accommodation of religion in the employment context, and...