S054156, Opinion — Nakashima v. Board of Education

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Argued and submitted March 5, 2007, decision of Court of Appeals affirmed;
order of Oregon State Board of Education reversed, and case remanded to
Oregon State Board of Education for further proceedings May 8, 2008

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;
CA A123878; SC S053972, S054156)

185 P3d 429

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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.

The decision of the Court of Appeals is affirmed. The order
of the Oregon State Board of Education is reversed, and the
case is remanded to the Oregon State Board of Education for
further proceedings.

\* On judicial review from the Oregon State Board of Education. 204 Or App
535, 131 P3d 749, adh'd to on recons, 206 Or App 568, 138 P3d 854 (2006).

** Kistler, J., did not participate in the consideration or decision of this case.

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# 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 activi-
ties.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 peti-
tioners 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 reconsid-
eration by the board. Montgomery v. Board of Education, 188
Or App 63, 71 P3d 94 (2003). After the board issued its final
order on reconsideration, petitioners again sought judicial

1 ORS 659.850 (1999) provided:

"(1) As used in this section, 'discrimination' means any act that unreason-
ably differentiates treatment, intended or unintended, or any act that is fair in
form but discriminatory in operation, either of which is based on age, disabil-
ity, national origin, race, marital status, religion or sex.

"(2) No person in Oregon shall 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.

"(3) The State Board of Education and the State Board of Higher Educa-
tion shall establish rules necessary to insure compliance with subsection (2) of
this section in the manner required by ORS chapter 183."

When this litigation began, the statute was codified as ORS 659. 150. It was renum-
bered in 2001, and for convenience, we cite to the statute using its current desig-
nation. The legislature amended the statute in 2007. See Or Laws 2007, ch 100,
§ 29. Those amendments do not affect our analysis.

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review, and the Court of Appeals again reversed and
remanded for reconsideration. Nakashima v. Board of
Education, 204 Or App 535, 131 P3d 749, adh'd to on recons,
206 Or App 568, 138 P3d 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 Church 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 ses-
sions, 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 commenc-
ing at 9:00 a.m.

2 As we later explain, in 2005, OSAA moved PAAto the 3A classification, which
holds its annual tournament in Salem. We describe the schedule for the Pendleton
tournament to provide context for the dispute between the parties, which is not
mooted by the way in which games are scheduled for the 3A tournament in Salem.
See 344 Or at 516-17.

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On Friday, there is a morning session of two boys'
"consolation" games; in the afternoon, there is a session con-
sisting 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 morn-
ing 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 champion-
ship 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 circum-
stances 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 rela-
tively 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.

3 The board found that OSAA continues to be willing to make that change to
the Friday schedule of games. Therefore, the issue in this case involves only
OSAA's schedule of games during the day on Saturday.

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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 tourna-
ment so that PAA team members would not have to play on
their Sabbath. OSAA's Executive Board issued an order con-
cluding 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

4 At different times throughout the course of this proceeding, the board has
allowed additional student athletes and their parents to join the case as parties.
Similarly, the Court of Appeals, while review was pending before it, permitted
additional student athletes and their parents to intervene in this case. Nakashima,
204 Or App at 543-45. Most recently, on January 17, 2008, this court granted two
student athletes, Jeremy Long and Rodney Larry, permission to intervene in this
case. At the same time, as student athletes graduated from PAA, this case became
moot as to those students and their parents (if a sibling was not also named
as a party), and the Court of Appeals dismissed review as to those students.
Montgomery, 188 Or App at 65, 65 n 3. Similarly, while the case has been under
advisement by this court, additional students have graduated from PAA. Accord-
ingly, we dismiss review as to Anthony Nakashima and his parents Greg and
Esther Nakashima, as to Jonny Long (but not as to his parents Lee and Sue Long,
who also are the parents of Jeremy Long), and as to Loren Larry (but not as to his
mother Violet Larry, who also is the mother of Rodney Larry).

5 OAR 581-021-0049 provides generally for the board's review (through the
Superintendent of Public Instruction) of the resolution of complaints of discrimi-
nation against "districts," which petitioners apparently understood at the time to
apply to OSAA as an entity that is composed of schools and that administers inter-
scholastic activities. In January 2006, the board adopted a new rule, OAR 581-021-
0042, which specifically applies to appeals from decisions concerning interscholas-
tic activities by voluntary organizations authorized to administer such activities.
That rule, although more detailed, provides for an administrative review proce-
dure that, in all material respects, is substantially similar to OAR 581-021-0049. In
all events, ORS 339.430(3) authorized such an appeal to the board.

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tournament.6 In its order, the board found that OSAA's poli-
cies for its tournament games were religion-neutral. In par-
ticular, 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 rea-
sons, rather than to accommodate the religious beliefs of per-
sons 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 circum-
stances when making its tournament decisions. Any tourna-
ment 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." 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. In its order, however, the board had consid-
ered only whether OSAA engaged in intentional discrimina-
tion. Id. at 69-70. 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. 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. The
Court of Appeals therefore determined that ORS 659.850
required OSAA to attempt to make a reasonable accom-
modation of the petitioners' religious needs and that, by fail-
ing to consider whether OSAA had fulfilled that obligation,
the board erred. Id. at 77, 79. 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

6 The Deputy Superintendent of Public Instruction issued the order on the
board's behalf. See OAR 581-021-0044 (authorizing board to delegate authority to
hear and enter final orders on discrimination complaints).

7 See ORS 339.430(3) (2001) (providing that board decisions concerning inter-
scholastic activities may be judicially reviewed under ORS 183.482). In 2003, the
legislature renumbered subsection (3) as subsection (6), and amended the statute
in minor ways that are not relevant to the matter before us.

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accommodation of religion in the employment context, and
specifically drew the board's attention to Trans World
Airlines, Inc. v. Hardison, 432 US 63, 97 S Ct 2264, 53 L Ed
2d 113 (1977), Balint v. Carson City, Nev., 180 F3d 1047 (9th
Cir 1999), and Heller v. EBB Auto Co., 8 F3d 1433 (9th Cir
1993). Id.

On remand, the board reopened the record for addi-
tional evidence. In its order on reconsideration, the board
adopted its original factual findings and made extensive sup-
plemental ones. The board reviewed the federal cases cited by
the Court of Appeals to determine the legal standard that it
should apply. Based on that review, the board concluded that
"[a]n obligation to accommodate a religious need ends when
the proposed accommodation imposes an undue hardship on
the employer. A hardship is 'undue' if it imposes more than a
de minim[i]s burden."

The board then applied that standard to the contro-
versy before it. The board began by identifying the various
factors that OSAA strives to serve in scheduling the tourna-
ment. The board summarized those factors as "[to] maximize
revenue, maximize attendance in general, minimize
expenses to fans and participants, minimize loss of school
time, treat both genders equally, and maximize attendance
at girls' games."8

Next, the board examined each of 10 scheduling
alternatives that petitioners had proposed and that OSAA
had rejected. One alternative was to permit what OSAA had
agreed to permit in 1996-i.e., the forfeiture of any game that

" The board also made detailed findings describing OSAA's relevant goals.
Those findings included that OSAA, in administering the tournament seeks to
(1) maximize participation and attendance by ensuring that games occur at pre-
dictable times and by holding games on days when persons are likely to attend and
according to a schedule permitting persons to attend all games; (2) maximize rev-
enue by increasing attendance and minimizing costs; (3) minimize "attendance dis-
ruptions" by ensuring that the tournament's venue and structure accommodate all
persons desiring to attend; (4) maximize "sportsmanship considerations" such as
"tournament records" and the " 'thrill' of progression"; (5) minimize missed school
time; (6) minimize uncertainty and disruption in the tournament schedule;
(7) avoid a tournament schedule that favors any team over another or favors the
boys' games over the girls' games; (8) encourage attendance at the girls' games;
(9) maintain the "longstanding tradition" of a "double elimination tournament";
and (10) "[n]ot unnecessarily increas[e] the costs or burdens of interscholastic par-
ticipation for OSAA, parents of students, fans or the schools."

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PAA might be scheduled to play during the day on Saturday.
Several other alternatives involved moving any game sched-
uled for play during the day on Saturday to a time after sun-
down. Two of the proposals involved playing the rescheduled
game at a second venue, either in the evening at the same
time as the girls' championship game or before the girls'
championship game (which would require scheduling the
girls' game to begin later). Other proposals involved resched-
uling any game that PAA might otherwise be scheduled to
play during the day on Saturday to the evening on Saturday
at the same venue as games scheduled for Saturday evening.
Under those proposals, instead of a two-game session on
Saturday evening, the schedule would call for three- or four-
game sessions. Finally, several proposals involved playing all
the first-round games on Wednesday, which would require
fewer games to be scheduled on Friday and Saturday. Each of
those proposals included schedules for Friday and Saturday
games that would either minimize or eliminate the potential
for the schedule to require PAA to play at a time that con-
flicted with the observance of petitioners' Sabbath.

After reviewing petitioners' proposed rescheduling
options and OSAA's reasons for rejecting them, the board
concluded that each proposal would impose more than a
de minimis burden on "OSAA as an organization, on the fans,
on the participants and/or on the member schools." The bur-
dens that the board identified included an opposing team's
lost opportunity to participate in a round of play if PAA were
permitted to forfeit any game that it is scheduled to play dur-
ing the day on Saturday; added cost and work for OSAA in
holding a Saturday evening game at a second venue; possible
increased ticket prices for three- and four-game sessions;
greater inconvenience to fans in securing good seats at three-
and four-game sessions; possible reduced attendance at the
girls' games; and a loss of additional school time for some of
the students if all first-round games of the tournament were
played on Wednesday. Based on those findings, the board
concluded that OSAA's policies for scheduling the Class 2A
boys' tournament did not violate ORS 659.850.

Petitioners again sought judicial review of the
board's order. The principal dispute on review was the

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correctness of the legal standard that the board applied-
viz., that OSAA had no obligation to accommodate petition-
ers' religious beliefs if doing so would impose an "undue hard-
ship" in the form of a more than a de minimis burden on
OSAA's interests." The Court of Appeals concluded that the
federal cases on which the board relied (and that the Court of
Appeals in Montgomery had cited for "assistance" on remand)
did not reflect the prevailing federal law when ORS 659.850
was enacted. Nakashima, 204 Or at 553-55, 557. Rather,
after examining "all relevant indicators" of the legislature's
intent, the Court of Appeals determined that, although the
correct test for whether a reasonable accommodation must be
made is "undue hardship," the legislature most likely under-
stood that test to require "a significant or substantial burden
taking into account all relevant circumstances." Id. at 553.
The Court of Appeals also rejected OSAA's further contention
that a de minimis burden test should be adopted to avoid con-
flict with state and the federal constitutional principles. Id.
at 557. Because it concluded that the board had applied the
wrong legal standard in evaluating whether OSAA reason-
ably could accommodate petitioners in scheduling its tour-
naments, the Court of Appeals reversed and remanded a sec-
ond time to allow the board to apply the correct standard. Id.
OSAA sought reconsideration of the Court of Appeals deci-
sion; the Court of Appeals allowed reconsideration and
adhered to its opinion. Nakashima v. Board of Education,
206 Or App 568, 138 P3d 854 (2006)." As noted, both the
board and OSAA then petitioned for review, and this court
granted both petitions.

9 Petitioners also challenged the board's conclusion that it was petitioners'
obligation, rather than OSAA's, to propose a reasonable accommodation. The Court
of Appeals initially concluded in Montgomery that OSAA bears that burden. 199 Or
App at 78-79. It reaffirmed that conclusion in its second decision in Nakashima.
204 Or App at 548. The court further concluded, given the record and the proce-
dural posture of the case, that the point was "academic and the error of no conse-
quence." Id. No party raises an issue in this court with regard to the Court of
Appeals' resolution of that question.

10 On reconsideration, the Court of Appeals primarily clarified some aspects
of its original decision in Nakashima and reaffirmed some of its conclusions in
Montgomery. The decision on reconsideration does not significantly affect the
issues before us on review.

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# II. DISCUSSION

## A. ORS 659.850: the meaning of "fair in form but discrimi- natory in operation"

The statute that we must interpret in this case, ORS
659.850, was enacted in 1975 to address discrimination in
the area of publicly funded educational activities and pro-
grams. The operative prohibition declares that "[n]o person"
in Oregon shall 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 appropri-
ated by the Legislative Assembly."

ORS 659.850(2). "Discrimination," for purposes of that pro-
hibition, is defined to mean

"any act that unreasonably differentiates treatment,
intended or unintended, or any act that is fair in form but
discriminatory in operation, either of which is based on age,
disability, national origin, race, marital status, religion or
sex."

ORS 659.850(1).

In this case, petitioners do not claim that OSAA has
any policy or practice in place that affirmatively treats them
differently based on their religion.11 Their claim, instead, is
that OSAA's policies, although "fair in form," discriminate
against them "in operation" based on their religion. The pre-
cise question that we must decide in this case, therefore, is
what legal standard applies to determine whether a policy or
practice that is facially nondiscriminatory nevertheless has a
prohibited discriminatory effect.

In interpreting ORS 659.850, our goal is to determine
the intent of the legislature that enacted it in 1975. State v.
Perry, 336 Or 49, 52, 77 P3d 313 (2003). To accomplish that,
we look first to the text of the statute itself. See PGE v.
Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d

11 Petitioners initially advanced an intentional differential treatment claim.
They did not prevail on it before the board, however, and they no longer assert it.

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1143 (1993) (outlining methodology). As the Court of Appeals
correctly observed, the statute textually embraces two forms
of discrimination that are familiar concepts in state and fed-
eral discrimination law. Montgomery, 188 Or App at 68. The
prohibition of an act that "unreasonably differentiates treat-
ment" describes disparate treatment discrimination-i.e., a
policy or practice that affirmatively treats some persons less
favorably than others based on certain protected criteria,
such as race, sex, or religion.12 The prohibition of an act that
is "fair in form but discriminatory in operation" describes dis-
parate impact discrimination-i.e., a facially neutral policy
that adversely effects a group that shares certain protected
characteristics, such as race, sex, or religion.13 The distinctive
"fair in form but discriminatory in operation" terminology
that the legislature used is, word-for-word, the phrase coined
by the United States Supreme Court in Griggs v. Duke Power
Co., 401 US 424, 431, 91 S Ct 849, 28 L Ed 2d 158 (1971)
(holding that Title VII of the Civil Rights Act of 1964 reaches
not only overt discrimination but also practices that are "fair
in form, but discriminatory in operation"). With that phrase,
the Supreme Court judicially embraced, for the first time, the
theory of discrimination that has since come to be known by

12 In City of Portland v. Bureau of Labor and Ind., 298 Or 104, 123 n 1, 690 P2d
475 (1984), we quoted from a respected treatise to describe the "usual" disparate
treatment case as

" 'an individual case [in which] the focus of the contest is on the employer's
motivation for the different action taken, with the plaintiff attempting to prove
intentional bias and the employer contending that its actions were based on a
legitimate, nondiscriminatory reason.'"

(Quoting B. Schlei and P. Grossman, Employment Discrimination Law 1286 (2d ed
1983).) In ORS 659.850, the legislature made the concept more expansive by reach-
ing disparate treatment discrimination "whether intended or unintended." At the
same time, the legislature expressly tempered the statute's reach by prohibiting
only those acts that "unreasonably" differentiate treatment on a prohibited basis.

13 In City of Portland, this court endorsed the following description of the dis-
parate impact theory of discrimination:

"'In contrast to the disparate treatment theory, proof of discrimination under
the adverse impact theory focuses upon the effects of the alleged discrimina-
tory practice. The consequences of employment policies rather than the
employer's motivation or intent is of paramount concern. The essence of the
adverse impact theory is a showing that a policy or practice has a substantial
adverse impact on a protected group, notwithstanding its equal application to
all individuals. * * ** *

298 Or at 123 n 1 (quoting B. Schlei and P. Grossman, Employment Discrimination
Law 1286 (2d ed 1983)).

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the short-hand descriptions of "disparate impact" and
"adverse impact" discrimination.14 That landmark holding
issued in 1971, just four years before ORS 659.850 was
enacted. We therefore agree with the Court of Appeals that,
by using that legal term-of-art phrasing, the legislature
adopted the disparate impact theory of discrimination
directly from Griggs.

The question remains, however: What legal stan-
dard did the legislature intend to determine whether a neu-
tral policy or practice is "discriminatory" in operation?
Because the legislature drew from Griggs, the Court of
Appeals concluded the statute was "patterned on" Title VII of
the Civil Rights Act of 1964 and was based on concepts that
had developed under federal employment discrimination
law. Nakashima, 204 Or App at 550; Montgomery, 188 Or
App at 68, 71-72. By 1975, those federal concepts included an
employer's obligation to "reasonably accommodate" the relig-
ious beliefs of its employees. Nakashima, 204 Or App at 549-
53 (discussing federal precedents); Montgomery, 188 Or App
at 71-78 (same). The Court of Appeals therefore canvassed
Title VII cases that predated ORS 659.850, and concluded
that the legislature most likely intended the reasonable
accommodation test articulated in those cases, which
required undue hardship in the form of a "significant or sub-
stantial burden" taking into account "all relevant circum-
stances." Nakashima, 204 Or App at 552-53. The Court of
Appeals rejected the de minimis cost or burden test articu-
lated in some post-1975 federal cases. Id. at 553-57.

Our disagreement with the Court of Appeals' analy-
sis concerns its resort to Title VII case law.15 That step in the

14 Disparate impact as a theory of discrimination "was born full-grown" as a
result of the Supreme Court's articulation of the theory in Griggs. Lindemann &
Grossman, I Employment Discrimination Law, ch 3.I at 113 (4th ed 2007). Until
Griggs was decided, a few lower courts at most had suggested the concept; none
had formally recognized it as a distinct legally cognizable theory and none had used
the terminology that courts have since settled on. Id. at 113, 113 n 5; see generally
id. at 114 (describing Griggs as the seminal case in the area).

15 As an intermediate step in its analysis, the Court of Appeals first concluded,
based on the wording of ORS 659.850(1) as a whole, that an act that disparately
impacts a protected group is prohibited only if it does so "unreasonably." Montgomery,
188 Or App at 68-69. We need not decide if that particular aspect of the Court of

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court's analysis is at first blush understandable, because
Griggs involved a claim brought under Title VII, which
addresses discrimination in employment. And Griggs, as we
have concluded, was the source of the distinctive phrasing
that the legislature used in ORS 659.850 to include disparate
impact discrimination within the statute's sweep.

But contrary to the Court of Appeals' conclusion and
the assumptions of the parties, ORS 659.850 was not pat-
terned on Title VII or on its provisions requiring reasonable
accommodation of religion. The two statutory schemes are
aimed at different concerns (employment discrimination in
the private and public sectors, as opposed to discrimination
in publicly funded educational activities at elementary
through university levels). They share no significant textual
parallels. ORS 659.850 and Title VII simply are not statutory
analogues.16 Griggs, moreover, involved a claim of racial, not
religious, discrimination. Griggs therefore did not discuss or
have reason to consider an employer's duty of reasonable
accommodation under Title VII, or the "undue hardship"
standard that applies to it, which arises only in connection
with religious discrimination.17 Consequently, the legisla-
ture's reliance on Griggs for phrasing to describe disparate

Appeals' analysis was correct. As we will explain, the disparate impact test derived
from Griggs itself encompasses a reasonableness component as an aspect of when
a neutral policy or practice is or is not "discriminatory in operation." The interme-
diate analytical step that the Court of Appeals took was therefore unnecessary.

16 Oregon had a statutory analogue to Title VII in place when ORS 659.850 was
adopted, one that preexisted Title VII by more than a decade. See Or Laws 1949, ch
221 (providing, in part, that the "opportunity to obtain employment without dis-
crimination because of race, religion, color or national origin" is a "civil right"). In
1953, the Revisor of Statutes codified the statutes at ORS 659.010 to 659.140,

17 When Griggs was decided, neither a duty of"reasonable accommodation" for
an employee's religious beliefs, nor the "undue hardship" standard that applies to
that duty, was expressed in the text of Title VII. Rather, at that time, both were
part of federal employment discrimination law only as a result of a 1968 guideline
promulgated by the Equal Employment Opportunity Commission (EEOC). In that
guideline, the EEOC interpreted Title VII to require employers to make reasonable
accommodations to the religious needs of employees when the employers could do
so "without undue hardship on the conduct of the employer's business." 29 CFR
§ 1605.1 (1968). The "undue hardship" standard thus was limited to accommoda-
tion of religion. In 1972, one year after Griggs was decided, Congress amended the
definition of "religion" in Title VII in a way that essentially incorporated the duty
of religious accommodation and the "undue hardship" test from the 1968 EEOC
guideline, thus making those concepts a part of the express text of Title VII for the
first time. 42 USC § 2000e(j).

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impact discrimination provides no basis to conclude that the
legislature had concepts of reasonable accommodation of
religion in mind in enacting ORS 659.850.18

That does not mean, however, that federal law can-
not aid us. It may. But the federal law to which we should
look is Griggs itself. In borrowing from Griggs its judicially
crafted legal phrasing to describe what was, at the time, a
novel and developing theory of discrimination, the legislature
embraced disparate impact as a cognizable theory of discrim-
ination for purposes of ORS 659.850. Griggs is thus context
for determining what the legislature understood disparate
impact, as a theory of discrimination, to entail. See Central
Catholic Ed. Assn. v. Archdiocese of Portland, 323 Or 238,
251, 916 P2d 303 (1996) (context for interpreting statutory
terms includes the established meaning oflegal terms of art).
We therefore turn to a detailed examination of Griggs and its
holding.

Griggs involved a class action discrimination claim
brought against a private employer with a history of inten-
tionally discriminating against African-Americans, and in
favor of whites, in hiring, placement, and advancement deci-
sions. The employer abandoned its overtly discriminatory
policies in the mid-1960s, when the Civil Rights Act of 1964
was passed. Simultaneously, however, the employer adopted
hiring criteria for the positions traditionally held only by
white employees. The criteria-a high school education and
successful completion of two tests that purported to measure
general intelligence-were intended to ensure that appli-
cants had the ability to perform the job. Griggs, 401 US at
426-28. As a result of using those hiring criteria, "a markedly
disproportionate number" of African-Americans were ineli-
gible for many jobs and for most advancement opportunities

18 To verify that observation, we have examined the legislative history. It con-
firms that the Supreme Court's decision in Griggs was the source of the distinctive
"fair in form" terminology that became part of the definitional subsection (legisla-
tors at some points referred to it as the "Powers" case, an apparent reference to the
defendant Duke Power. Company; other references included both "Powers" and
"Griggs" in the case title). Tape Recording, Senate Floor Debates on HB 2131, May
7, 1975, Tape 16B, Side 2, at 592 et seq. (comments of Senator Edward Fadeley);
Tape Recording, House Floor Debates on HB 2131, May 8, 1975, Tape 20, Side 1, at
753 et seq. (comments of Representative Mary Rieke). Neither the definitional sub-
section, nor ORS 659.850 more generally, was patterned on Title VII.

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in the employer's business. Id. at 429. By the time the case
reached the Supreme Court, the dispute was not whether
those job requirements were a pretext for intentional dis-
crimination; the Court accepted the district court's factual
determination that the employer lacked a subjective racial or
discriminatory purpose in adopting them. Id. at 428-29.
Instead, the issue was whether "a subjective test of the
employer's intent should govern," which was, as the Court
described it, an issue of "first impression." Id. at 428.

The Court concluded that discriminatory intent was
not necessary. The Court did not base that conclusion on the
explicit text or wording of Title VII itself, but instead based it
on Congress's objective "to achieve equality of employment
opportunities and remove barriers that have operated in the
past to favor an identifiable group of white employees
over other employees." Id. at 429-30. The Court expressly
rejected the proposition that, to achieve that objective,
"[d]iscriminatory preference for any group, minority or
majority" was required or even permissible. Id. at 431. Title
VII was not, in the Court's view, intended "to guarantee a job
to every person regardless of qualifications." Id. at 430. The
Court held, however, that, when "practices, procedures, or
tests neutral on their face, and even neutral in terms of
intent" have the same effect as overtly discriminatory prac-
tices, they too are prohibited. Id.

Significantly, the Court did not hold that any differ-
ential effect on a protected group is discriminatory, and
therefore prohibited. Rather, the "discriminatory" quality of
a practice depends on whether it creates "artificial, arbitrary,
and unnecessary barriers" for a protected group. Id. at 431.
In the key passage from which our legislature drew the "fair
in form" wording, the Court explained what an employer
must show to defend a policy or practice that "operates to
exclude" a protected group from a job or job advancement:

"[Title VII] proscribes not only overt discrimination but also
practices that are fair in form, but discriminatory in opera-
tion. The touchstone is business necessity. If an employ-
ment practice which operates to exclude [a protected group]

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cannot be shown to be related to job performance, the prac-
tice is prohibited."

Id. at 431.

The employer in Griggs presented no evidence of
"business necessity" or "job-relatedness." Id. at 432. The
Court's discussion of why the record was deficient in that
regard repeatedly emphasized what an employer must do to
show that the differential impact on a protected group is not
discriminatory. The Court described the employer's evidence
in Griggs as insufficient because the employer had not estab-
lished that its criteria for hiring and advancement "fulfill [ed]
a genuine business need" (id. at 432); had "a manifest rela-
tionship to the employment in question" (id.); bore a "demon-
strable relationship to successful performance" for the jobs
for which they were used (id. at 431); were based on any
"meaningful study" demonstrating that they measured
actual job ability (id.); or were "significantly correlated with
important elements" of the jobs for which they were required
(id. at 433, 433 n 9, quoting with approval implementing
administrative guidelines pertaining to employer job test-
ing). In the closing lines ofits opinion, the Court reiterated its
point: "What Congress has forbidden is giving these devices
and mechanisms controlling force unless they are demonstra-
bly a reasonable measure of job performance." Id. at 436
(emphasis added).

We presume that our legislature, in adopting dispa-
rate impact as a theory of discrimination from Griggs, under-
stood that theory as Griggs explained it. We also presume
that the legislature was aware of any existing decisions of
this court that considered or interpreted the disparate impact
theory of discrimination as announced in Griggs. See Joshi v.
Providence Health System, 342 Or 152, 158, 149 P3d 1164
(2006) (this court will presume that the legislature is aware
of existing decisions of this court interpreting the legal mean-
ing of terms that the legislature uses in an enactment). When
the legislature enacted ORS 659.850, one such decision
existed: School District No. 1 v. Nilsen, 271 Or 461, 481-83,
534 P2d 1135 (1975).19 Nilsen, after quoting the same key

19 Nilsen was decided on April 1, 1975, just a few weeks before the leg-
islature incorporated the wording from Griggs as part of the statutory definition of

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"fair in form but discriminatory in operation" passage from
Griggs that we have quoted above, observed that the dispa-
rate impact test from Griggs is not an absolute one that pro-
hibits any adverse effect on a protected class. Nilsen, 271 Or
at 481-82. Rather, Nilsen described Griggs's disparate impact
test as permitting neutral policies and practices that
adversely affect a protected group if the policies or practices
are "reasonably necessary" to job requirements. Nilsen, 271
Or at 483.

Griggs and Nilsen together provide guidance as to
what our legislature intended in 1975 when it drafted ORS
659.850 to prohibit policies and practices that are "fair in
form but discriminatory in operation." Under Griggs, if a
neutral policy or practice disparately affects a protected
group by excluding members of the group from equal access
to jobs or advancement, that effect is discriminatory in oper-
ation unless the policy is "reasonably necessary" to the
employer's business. Nilsen, 271 Or at 483. To satisfy that
test, a policy must have a "demonstrable relationship" to suc-
cessful performance of the employer's work; must be "signifi-
cantly correlated" to "important elements" of the work; or
must fulfill a "genuine business need." Griggs, 401 US at 432-
33.

To be sure, Griggs was decided in an employment
context and therefore was written in terms of business needs
and justifications. Those concepts translate meaningfully to
education-related programs and activities, however. By
embracing Griggs's theory of disparate impact discrimina-
tion in ORS 659.850, the legislature intended to give similar
protection to participation in public education-related activi-
ties and programs. We do not understand the notion of need
or necessity, as described in Griggs, to pose an impossible
burden on an entity defending a neutral policy that adversely
affects a protected group. But the terms do convey that the
policies must be demonstrably related or correlated to impor-
tant elements of a program or activity, given what the pro-
gram or activity exists to accomplish. Applied to this context,
Griggs's test of what is "discriminatory in operation" depends

discrimination in subsection (1) of the statute. See 344 Or at 512 n 18 (discussing
legislative history).

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on whether a practice or policy that disparately impacts a
protected group is reasonably necessary to a program's or
activity's successful operation or the achievement of its
essential objectives.20

## B. The board's order on reconsideration

With that understanding, we turn to the board's
order in this case-both to the legal test that it applied and to
the conclusions that the board reached in its analysis of
OSAA's scheduling policies. As we earlier described, to deter-
mine whether OSAA's policies violate ORS 659.850, the
board analyzed whether a change to those policies would
impose more than a de minimis burden on OSAA's interests
in administering the tournament. The de minimis burden
test that the board applied is a lower standard than ORS
659.850 requires, as we elaborate below. This case therefore
must be remanded to the board for reconsideration, as the
Court of Appeals concluded. See ORS 183.482(8)(a)(B)
(authorizing remand on judicial review for reconsideration
under a correct interpretation of a provision of law).

On remand, the facts and circumstances that the
board must consider likely will differ, at least in some
regards, from those before the board at the last evidentiary
hearing. In their briefs on review, petitioners have advised us
that, in 2005, OSAA announced a new classification system
that took effect in the 2006-07 school year. Under that sys-
tem, PAA has a "3A" classification. The basketball tourna-
ment in which petitioners will play, if they qualify, will be in
Salem, not Pendleton. The change in venue for the tourna-
ment in which PAA plays may alter at least some of the con-
siderations that PAA takes into account in the scheduling of
the tournament.21 Nevertheless, we discuss two aspects of

20 Petitioners posit that Griggs's "business necessity" test and the "reasonable
accommodation" test that prevailed as of 1975 are "different ways of making the
same point." Perhaps, at least for some purposes and in some contexts. Even if the
two inquiries sometimes yield the same answers, we frame the issue as it is framed
by the statute, not as it would be framed by Title VII concepts that were not the
source of ORS 659.850.

21 The essential controversy before us remains a live one, however. For relig-
ious reasons, petitioners continue to be unable to play in games scheduled between
sundown on Friday and sundown on Saturday; petitioners continue to assert
that OSAA's scheduling policies discriminates against them in violation of ORS
659.850; OSAA continues to maintain that scheduling the tournament in such a
way that PAA may be required to play on its Sabbath does not violate ORS 659.850.

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the board's order and analysis that merit the board's atten-
tion on remand. We do so in an effort to give the board as
much guidance as possible on the record before us, with
appreciation for the desire that the parties and the board
undoubtedly have to achieve a resolution of this case.

First, as a threshold matter, the board assumed in
its order that OSAA's scheduling policies adversely affect
petitioners, but the board did not make an explicit finding as
to the nature or extent of that adverse effect. Specifically, the
board acknowledged that "participation" in interscholastic
sports is an "important part of the educational process" and is
"important to all students who, like plaintiffs here, undoubt-
edly derive uncalculated [sic] benefits from such competi-
tion."22 The board also found that, under OSAA's written pol-
icies, schools that enter a tournament are deemed to certify
that the teams and individuals representing them "will par-
ticipate in every game or competition" in the tournament.
The board then analyzed whether OSAA could "reasonably
accommodate" petitioners' religious beliefs by altering its pol-
icies to avoid a conflict with petitioners' religious beliefs.

The board's order thus suggests that OSAA's policies
in effect pose a complete barrier to petitioners' participation
in the tournament, one that arises because of petitioners'
religious beliefs. On review, the parties likewise appear to
assume that OSAA's policies have that effect. The board may
have considered such a finding to be implicit in its other find-
ings, or may have concluded for other reasons that an express
finding on the point was not necessary. See Montgomery, 188

22 In acknowledging the importance of student participation in athletic com-
petitions, the board quoted from, respectively, Whipple v. OSAA, 52 Or App 419,
423, 629 P2d 384, rev den, 291 Or 504 (1981) and Cooper v. OSAA, 52 Or App 425,
438, 629 P2d 386, rev den, 291 Or 504 (1981). The legislature's recognition of the
value of student participation in athletics is reflected generally in the nondiscrim-
ination provisions of ORS 659.850. That recognition is also reflected in the fact that
the legislature has declared student participation in interscholastic activities to be
a "right," one that extends to privately schooled and home schooled students as
well as those who attend public schools. See ORS 339.450 (limiting grounds on
which private and public schools may deny students the "right" to participate in
interscholastic activities); ORS 339.460(1) (ensuring home schooled students the
opportunity to participate in all interscholastic activities as long as the student
meets certain eligibility criteria); ORS 339.460(2)(c) (defining "interscholastic
activities" to include athletics).

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Or App at 71 ("It is clear from the board's findings that, with-
out some accommodation of [petitioners'] religious obliga-
tions, OSAA's policy will have a direct impact on [their] abil-
ity to participate in the Class 2A basketball tournament.").
The board should, however, expressly identify in what way
OSAA's policies are adverse to petitioners.23 If OSAA's poli-
cies operate to exclude petitioners from any participation in
the tournament, and do so because of their religious beliefs,
that adverse effect falls well within what concerned the
Court in Griggs and what the legislature intended to reach by
incorporating Griggs's disparate impact theory of discrimi-
nation in ORS 659.850. If the adverse effect of OSAA's poli-
cies is something other than a complete barrier to participa-
tion in the tournament, the board should identify that
effect.24 Such a finding is a predicate to the disparate impact
analysis that ORS 659.850 requires.

Second, and equally fundamental, the correct test
under ORS 659.850 is more demanding than the de minimis

23 We do not suggest that the board cannot make such a finding on this record.
Our problem is that the board's findings do not specifically address the actual
impact on petitioners, and the board's findings arguably point in more than one
direction. On the one hand, the board found that OSAA traditionally has not inter-
preted its no forfeiture or withdrawal policy to apply to any decision that PAA
might make to forfeit a game scheduled on its Sabbath, "because PAA intends to
win all of its games and hopes to avoid a forfeit." On the other hand, the board
found that OSAA changed its written policy in December 2002 to declare that, by
entering into a tournament, a school certifies that its teams and individual com-
petitors will participate in every game the school is scheduled to play. The board
further found that PAA could not forfeit or withdraw from a tournament game
without violating OSAA's 2002 policy. Under OSAA's written rules, forfeiture or
withdrawal is a sportsmanship violation and subjects a team to penalties. Finally,
the board found that a forfeiture to honor one's religious beliefs is not exempt from
OSAA's policy.

24 We note, in that regard, that the board found that OSAA is not willing to
schedule athletic events on Sundays. The board further found that, whatever the
historical reasons for that policy, OSAA now adheres to it for religion-neutral rea-
sons. The fact that OSAA does not intentionally differentiate between individuals
who observe different Sabbaths does not foreclose petitioners from urging that
OSAA's policies have a differential impact on athletes who observe different
Sabbaths. Disparate impact discrimination is concerned with neutral "fair in form"
policies that create preferential effects, at least when that impact is the flip-side of
adverse impacts on protected groups. Griggs expressly made that point by declar-
ing that the disparate impact test that it announced, in addition to reaching inten-
tionally differential treatment, also extends to neutral practices that "operate to
'freeze' the status quo of prior discriminatory employment practices." Griggs, 401
US at 430.

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burden test that the board applied. That difference is illus-
trated by examining the board's analysis in its order. The
board considered the several goals that OSAA seeks to
advance in scheduling those policies, such as maximizing
revenue, maximizing participation by athletes and atten-
dance by fans, minimizing expenses to fans and participants,
minimizing loss of school time, and maximizing attendance
at girls' games. As that list suggests, OSAA's goals are often
competing ones. Generating revenue, for example, is at odds
with holding down ticket costs; minimizing student time
away from school is at odds with maximizing opportunities
for athletes to participate in the competition. Given the con-
stellation of interests that OSAA strives to further, OSAA
necessarily must balance its programmatic objectives in a
way that compromises each of them to some degree. As a
result, OSAA likely can-and in this case did-identify a
potential "downside" to any scheduling change it might
make. The board relied on those "downsides" to conclude that
each of petitioners' proposed scheduling options imposed an
undue hardship in the form of a more than de minimis bur-
den on OSAA's interests.

Under ORS 659.850, however, to conclude that a pol-
icy having a disparate impact is not discriminatory in opera-
tion, it is not enough for the board to find that abandoning or
altering a challenged policy will compromise some interest
that the entity administering a program or activity is entitled
to further. Instead, the board must find that the challenged
policy is necessary-at least, reasonably so-to the existence
and successful administration of the program or activity
involved. To support such a finding, the evidence must dem-
onstrate, in a concrete and measurable way, the relationship
between the challenged policy and the success of a program
or activity that it furthers. And the board must consider those
with reference to the essential objectives that the program or
activity serves. In this case, the foremost objective of the tour-
nament is to give students the opportunity to participate in
sports.

Neither the board's findings, nor the evidence that
the board relied on, met that standard. For example, the
board found that having all first round games played on the

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first day of the tournament (Wednesday) would impose a bur-
den on some of the participants in the tournament. To sup-
port that finding, the board relied on evidence that a "num-
ber" of school principals have "voiced concern" about the loss
of an additional day of school time for some of the teams.
However, the board made no findings (and no evidence estab-
lishes) what consequences would follow if all students partic-
ipating in the tournament, rather than just those who would
otherwise have been scheduled to play on Wednesday, lost
that day of academic time. Similarly, the board found that
OSAA might incur added expense if it secured a second venue
so that an additional game could be played after sundown on
Saturday (thus permitting any game that PAA might have to
play during the day on Saturday to be moved to that later
time). But the board did not find that OSAA in fact would
have to incur added expense.25 Nor did the board quantify the
added expense or find that, relative to the overall cost of the
tournament, the expense was so great that it would jeopard-
ize OSAA's ability to hold the tournament.

In its order, the board made extensive factual find-
ings and explained its reasoning in detail. But because the
factual record may develop differently on remand, a more
exhaustive discussion of the board's findings and reasoning
at this juncture is not warranted. Again, to provide the board
with guidance on remand, we offer the above examples of
how the board's findings-and the evidence that the board
relied on to support them-fail to meet the test required by
ORS 659.850. Because the board applied the wrong legal test
in its analysis, its analysis misses the mark. The board must
reconsider this case-and reopen the record if necessary-
pursuant to the "reasonably necessary" test that ORS
659.850 requires, and it must make findings consistently
with that test.

25 To the contrary, the board affirmatively found that OSAA had never
explored with the host for such a venue (which likely would be a public high school)
the possibility that OSAA could not be charged if it did not have to use the added
venue. The board also found that, in past years when PAA had been in the tourna-
ment, gate receipts (which are OSAA's main source of income for the tournament)
were "substantially above-average" than in years when PAA did not play. The
board's findings thus leave us to speculate as to whether there would be a net
increase to OSAA's costs and, if so, the effect of that increase on OSAA's ability to
hold the tournament.

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## C. OSAA's constitutional arguments

We turn, finally, to OSAA's constitutional argu-
ments. As we have described, OSAA presented evidence, and
the board found, that petitioners' proposals for rescheduling
tournament games to avoid the religious conflict for petition-
ers risked burdening third parties by, among other things,
potentially inconveniencing other athletes and spectators or
increasing ticket prices for the games. Relying on those find-
ings, OSAA urges that, to the extent that altering the tour-
nament schedule to avoid that conflict imposes more than a
de minimis burden on third persons who do not share peti-
tioners' religious beliefs, the accommodation violates the
Equal Privileges and Immunities Clause of the Oregon Con-
stitution (Article I, section 20) and the Establishment Clause
of the First Amendment to the United States Constitution.
OSAA's arguments in those regards are sufficiently without
merit that we answer them summarily.

### 1. Article I, section 20

Article I, section 20, of the Oregon Constitution
declares: "No law shall be passed granting to any citizen or
class of citizens privileges, or immunities, which, upon the
same terms, shall not equally belong to all citizens." The pro-
vision is "a guarantee against unjustified denial of equal
privileges or immunities to individual citizens" as well as a
guarantee "against unjustified differentiation among classes
of citizens." State v. Clark, 291 Or 231, 239, 630 P2d 810
(1981). As we understand it, OSAA's theory is that, if persons
who do not share the petitioners' religious beliefs are bur-
dened in more than a de minimis way by any changes that
OSAA might make to the tournament schedule, then peti-
tioners are being accorded a "privilege"-that of dictating
how the tournament is scheduled-that does not belong on
the same terms to others.26

26 OSAA is a state actor for constitutional purposes. It is a "voluntary organi-
zation" that administers "interscholastic activities" pursuant to authority dele-
gated by the board. ORS 339.430. Under the board's rules, such an organization
administers interscholastic activities "for Oregon public schools" and is subject to
the board's oversight. OAR 581-021-0034(1)(c). OSAA is thus a state-approved
entity that oversees publicly financed activities that are, as a matter of state policy,
considered integral to the students' educational experience. See OAR 581-021-
0034(1)(b) (defining "interscholastic activities" as "[a] public school activity with

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OSAA's argument misidentifies the "privilege"
accorded by the statute. ORS 659.850 provides that "[n]o per-
son in Oregon shall be subjected to discrimination in any
** * interschool activity" based on certain protected criteria.
The statute thus extends protection to all persons from dis-
crimination on any of several bases, including ones that all
persons share in common (age, national origin, race, marital
status, sex). The inclusiveness of the statute's protection
against discrimination means that the statute does convey an
equal benefit to others-all persons in Oregon are entitled to
be free from enumerated types of discrimination in an edu-
cational setting. We fail to see-and OSAA does not ade-
quately explain-how the policy of nondiscrimination embod-
ied in ORS 659.850 reflects a legislative choice that violates
Article I, section 20, of the Oregon Constitution. See generally
MacPherson v. DAS, 340 Or 117, 129-30, 130 P3d 308 (2006)
(to complain that a statute accords a special privilege or
status to others, or treats them disparately without legiti-
mate reason, the persons complaining must qualify as a class
who share common characteristics that exist apart from the
criteria on which the governmental choice is made).

### 2. The federal Establishment Clause

OSAA similarly argues that altering the tournament
schedule to avoid conflict with petitioners' religious obser-
vance, if that is what ORS 659.850 requires, violates the fed-
eral Establishment Clause27 to the extent that any alteration

optional student participation which complements the curriculum, encourages stu-
dents' physical, academic or social development, is supervised by school personnel
and generally is conducted outside the instructional day"). Finally, as the recordin
this case establishes, OSAA is composed of predominantly public schools and its
governing body consists of school administrators. Given the source of OSAA's
authority, the scope of its responsibilities, and the composition of the organization,
it qualifies as a state actor for purposes of the state law principles involved in this
case. OSAA also qualifies as a state actor for purposes of the federal constitutional
principles that we discuss later in this opinion. See Brentwood Academy u. Tennessee
Secondary School Athletic Assn., 531 US 288, 295-302, 121 S Ct 924, 148 L Ed 2d
806 (2001) (concluding that analogous Tennessee organization is a state actor
for purposes of federal analysis). The Court of Appeals so held many years ago.
Josephine Co. Sch. Dist. v. OSAA, 15 Or App 185, 195, 515 P2d 431 (1973).

27 The First Amendment to the United States Constitution provides, in part:
"Congress shall make no law respecting an establishment ofreligion, or prohibiting
the free exercise thereof[.]"

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imposes more than a de minimis burden on others. At least
one answer to that claim is that, insofar as a change to
OSAA's policies would equalize athletic participation oppor-
tunities for those with differing religious beliefs (i.e., not
require any participant to play on his or her Sabbath, regard-
less of whether the participant observes a Sunday Sabbath or
a Sabbath beginning at sundown Friday and continuing
through sundown Saturday), that choice furthers, rather
than violates, the values served by the Establishment
Clause. See generally Widmar v. Vincent, 454 US 263, 274,
102 S Ct 269, 70 L Ed 2d 440 (1981) (equal access to a broad
spectrum of groups, both secular and religious, implies no
imprimatur of governmental approval of religion).

Beyond that, although the correct test under ORS
659.850 is not the same as that required for reasonable
accommodation of religious beliefs under Title VII, the Estab-
lishment Clause jurisprudence concerning religious accom-
modation answers OSAA's argument. The United States
Supreme Court has "long recognized that the government
may (and sometimes must) accommodate religious practices
and that it may do so without violating the Establishment
Clause." Hobbie v. Unemployment Appeals Comm'n of Fla.,
480 US 136, 144-45, 107 S Ct 1046, 94 L Ed 2d 190 (1987).
Such accommodations are not required to " 'come packaged
with benefits to secular entities.'" Cutter v. Wilkinson, 544
US 709, 724, 125 S Ct 2113, 161 L Ed 2d 1020 (2005) (quoting
Corporation of Presiding Bishop v. Amos, 483 US 327, 338,
107 S Ct 2862, 97 L Ed 2d 273 (1987)). On the other hand, as
the Supreme Court has also recognized, the accommodation
of religion is a principle with limits. Board of Ed. of Kiryas
Joel Village School Dist. v. Grumet, 512 US 687, 706, 114 S Ct
2481, 129 L Ed 2d 546 (1994). A religious accommodation
must be "measured" so that it does not "override other signif-
icant interests." Cutter, 544 US at 722. Close questions are
therefore presented where an accommodation requires
infringement of the legally protected rights or interests of pri-
vate persons or entities; the requirements of the federal con-
stitution in such cases are far from clear. See, e.g., Hardison,
432 US at 69-70 (Title VII does not require employer to
accommodate employee's religious beliefs where to do so

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would interfere with workplace rights of other employees in
bona fide seniority system under collective bargaining agree-
ment; Court therefore did not decide whether Establishment
Clause principles would be violated by such an accom-
modation).

The requirements of the federal Establishment
Clause in this-or perhaps any-context cannot be reduced
to a simple verbal formulation, such as a declaration that the
clause is violated whenever an accommodation for persons
with religious beliefs involves more than a de minimis bur-
den on others. We therefore reject OSAA's position that the
federal Establishment Clause requires the board to apply a
de minimis burden test. The analysis required by the Estab-
lishment Clause is qualitative, not quantitative. See Lemon
v. Kurtzman, 403 US 602, 612-13, 91 S Ct 2105, 29 L Ed 2d
745 (1971) (Establishment Clause analysis considers
whether governmental action has a secular purpose, a neu-
tral effect on religion, and avoids governmental entangle-
ment in religious matters). In this case, the burdens that
OSAA asserts may be imposed on other tournament partici-
pants and fans if OSAA alters the tournament schedule-i.e.,
possible ticket price increases, inconvenience in securing the
best seats for the tournament-do not involve legally pro-
tected rights or interests of private parties. Nor does chang-
ing OSAA's policies so that petitioners may play in the tour-
nament without conflict with their religious beliefs entail any
government sponsorship or entanglement with religion that
violates federal Establishment Clause principles. OSAA's
arguments to the contrary are without merit.

The decision of the Court of Appeals is affirmed. The
order of the Oregon State Board of Education is reversed, and
the case is remanded to the Oregon State Board of Education
for further proceedings.