Jennifer K. WALTER, Petitioner,
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
Jennifer K. Walter fled the briefs for petitioner pro se.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Inge D. Wells, Assistant Attorney General, fled
the brief for respondent Oregon Board of Education.
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.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
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.
Or.App. 518] ARMSTRONG, P. J.
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
"[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
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."
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
court shall declare the rule invalid only if it finds that
"(a) Violates constitutional provisions;
"(b) Exceeds the statutory authority of the agency; or
"(c) Was adopted without compliance with applicable
See Nay v. Dept. of Human Services, 360 Or. 668,
679, 385 P3 1001 (2016) (explaining standard of review under
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.
STATUTORY AND PROCEDURAL BACKGROUND
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
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
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
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.
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.
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.
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."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 ...