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Walter v. Oregon Board of Education

Court of Appeals of Oregon

December 26, 2019

Jennifer K. WALTER, Petitioner,
v.
OREGON BOARD OF EDUCATION, Respondent, and, THE CONFEDERATED TRIBES OF SILETZ INDIANS OF OREGON, a federally-recognized Indian tribe, Intervenor-Respondent.

          Submitted June 2, 2017

         Agency/Board/Other

          Jennifer K. Walter fled the briefs for petitioner pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, fled the brief for respondent Oregon Board of Education.

          Craig J. Dorsay, Lea Ann Easton, and Dorsay & Easton LLP fled the brief for respondent The Confederated Tribes of Siletz Indians of Oregon.

          Kimberly D'Aquila and Holly Partridge fled the brief amicus curiae for the Confederated Tribes of The Grand Ronde Community of Oregon.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Petitioner challenges the validity of OAR 581-021-0047 (2016). Respondent Oregon Board of Education promulgated the rule to implement a 2014 statute authorizing Oregon school boards to enter into a written agreement with the governing body of a federally recognized Native American tribe in Oregon to allow the use of a school mascot that "represents, is associated [301 Or.App. 517] with or is signifcant to" the tribe. Petitioner contends that respondent's rule exceeded its authority under the 2014 statute because the statute only authorizes the use of "namesake" mascots. Petitioner further contends that, if the rule did not exceed respondent's authority under the statute, then the rule and its authorizing statute violate the Equal Protection Clause of the Fourteenth Amendment. Held: The rule did not exceed the board's authority under the statute because the statute did not limit the board to authorizing the use of only namesake mascots. Furthermore, in light of the limits imposed by ORS 183.400 on a challenge to the validity of a rule, petitioner's challenge under the Equal Protection Clause to the rule and its authorizing statute fails.

          [301 Or.App. 518] ARMSTRONG, P. J.

         This is a petition under ORS 183.400 challenging the validity of OAR 581-021-0047 (2016), an administrative rule promulgated by the State Board of Education (board). The challenged rule implemented 2014 legislation authorizing district school boards to

"[e]nter into an approved written agreement with the governing body of a federally recognized Native American tribe in Oregon to allow the use of a mascot that represents, is associated with or is significant to the Native American tribe entering into the agreement."

ORS 332.075(1)(g). Or Laws 2014, ch 43, § 1. Petitioner contends that the board's rule exceeds the board's authority under ORS 332.075 and, if the rule does not exceed the board's authority, petitioner challenges the constitutionality of both the statute and the administrative rule. The board responds that the rule does not exceed the board's authority or violate constitutional provisions. Intervenor, The Confederated Tribes of Siletz Indians (the Siletz Tribe), and amicus curiae, The Confederated Tribes of the Grande Ronde, (the Grande Ronde Tribe), have also appeared and make additional arguments in support of the rule's validity. We conclude that the rule is within the board's authority and constitutional, and we uphold its validity.

         We consider administrative rule challenges under the scope of review specified in ORS 183.400(3): "Judicial review of a rule shall be limited to an examination of:

"(a) The rule under review;
"(b) The statutory provisions authorizing the rule; and
"(c) Copies of all documents necessary to demonstrate compliance with applicable rulemaking procedures."

         In a rule challenge pursuant to ORS 183.400, judicial review is limited to the face of the rule and the law pertinent to it. "Numerous individual fact situations can arise under any rule, but judicial review of the rule as applied to each of those situations is reserved to other forums." AFSCME Local 2632 v. Dept. of Corrections, 315 Or. 74, 79, 843 P.2d [301 Or.App. 519] 409 (1992). The court may hold a rule invalid under the circumstances described in ORS 183.400(4):

         "The court shall declare the rule invalid only if it finds that the rule:

"(a) Violates constitutional provisions;
"(b) Exceeds the statutory authority of the agency; or "(c) Was adopted without compliance with applicable rulemaking procedures."

See Nay v. Dept. of Human Services, 360 Or. 668, 679, 385 P3 1001 (2016) (explaining standard of review under ORS 183.400).

         Petitioner contends that OAR 581-021-0047 (2016) is invalid because it exceeds the statutory authority provided in ORS 332.075. In the alternative, if the rule is within the board's authority under the statute, petitioner contends that both the statute and the rule violate Article I, section 20, of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

         I. STATUTORY AND PROCEDURAL BACKGROUND

         We begin with some statutory context. Under ORS 326.011, the Board of Education is charged with establishing policies for the administration and operation of public elementary and secondary schools in Oregon. Under ORS 326.051(1)(b), the board is charged with adopting rules for the general governance of public schools.

ORS 659.850(2) prohibits discrimination in education:
"A person may not be subjected to discrimination in any public elementary secondary or community college education program or service, school or interschool activity or in any higher education program or service, school or interschool activity where the program, service, school or activity is financed in whole or in part by moneys appropriated by the Legislative Assembly."

See also ORS 659.850(1) (defining "discrimination" as used in the statute). ORS 659.850(3) requires the board to [301 Or.App. 520] establish rules necessary to "ensure compliance with" ORS 659.850(2).

         A consensus of authority exists that the use of negative or derogatory stereotypical Native American mascots is harmful to Native Americans and fosters discrimination. In 2012, after receiving studies and holding public hearings, the board adopted OAR 581-021-0047 (2012), which prohibited public schools from using Native American mascots.[1]

         The Siletz Tribe and the Grande Ronde Tribe opposed the adoption of OAR 581-021-0047 (2012), expressing the view that a wholesale ban on Native American mascots was itself discriminatory and would not help to dispel misconceptions about Native American people or address existing derogatory stereotypes or discriminatory practices. The tribes were also concerned that a total ban might result in a backlash against tribes and Native American students.[2]

         [301 Or.App. 521] The tribes believed that, in contrast, culturally appropriate mascots could support students' self-esteem and tribal identity. They also believed that tribes should have a voice in determining what was culturally appropriate. To combat a lack of knowledge leading to negative stereotypes, the tribes supported allowing schools to continue using Native American mascots if school districts collaborated with representative tribes to create positive and culturally appropriate portrayals of Native Americans and to integrate cultural and historical curricula that accurately portrayed Oregon's Native history.

         ORS 182.164(3) requires that state agencies and units of local governments "shall make a reasonable effort to cooperate with tribes in the development and implementation of programs" affecting tribes, including the use of agreements as authorized by ORS 190.110. ORS 190.110 in turn provides that, in performing duties imposed on it, a state agency or unit of local government "may cooperate * * * by agreement * * * with an American Indian tribe." The Siletz and Grande Ronde Tribes sought to be involved in the development of policy around the use of Native American mascots, as required and authorized by state law, and they actively pursued legislation to that effect.

         ORS 332.075 sets forth the general powers of local school boards. Senate Bill 215 (2013), supported by the Siletz and Grande Ronde Tribes, would have amended ORS 332.075 to authorize a local school district board to enter into a written agreement with the governing body of a federally recognized tribe in Oregon for the use of an "acceptable name, symbol or image of a mascot that represents, or is associated with, a Native American tribe."[3]However, then-Governor Kitzhaber vetoed the bill. In his veto message, the Governor expressed concern that the statute was too broad and his hope that interested parties "can work together over the coming months to bring to the Board or the 2014 legislature a consensus proposal that would provide for reasonable exceptions to the [Board of ...


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