Powell v. Bunn

108 P.3d 37, 198 Or. App. 21

• Court: Court of Appeals of Oregon
• Decided: March 2, 2005
• Docket: 0104-03557; A117310
• Status: Published

Opinions

BREWER, C. J.

The state Superintendent of Public Instruction, the Oregon Department of Education, and the Portland Public School District (respondents)¹ appeal from the trial court’s decision in this action for judicial review of a final order that the superintendent issued in other than a contested case. ORS 183.484. The superintendent declined to proceed further on petitioners’ complaint of discrimination on the ground that there was no substantial evidence that the district’s policy of permitting the Boy Scouts of America to make presentations to students during school hours constituted discrimination on the basis of religion in violation of ORS 659.850.² The trial court held that the superintendent abused his discretion in so acting. The court also awarded attorney fees to petitioners, payable by all respondents. Petitioners Remington Powell and his mother Nancy Powell³ cross-appeal, arguing that the court should have entered a judgment determining that discrimination existed rather than remanding the case to the superintendent for further proceedings. On the merits of the appeal, we modify the legal basis for the trial court’s judgment but affirm its dispositive order. We reverse the award of attorney fees. On the cross-appeal, we affirm.

The issues in this case arise from the same circumstances that were involved in Powell v. Bunn, 185 Or App 334, 59 P3d 559 (2002), rev den, 336 Or 60 (2003) (Powell I). In that case, petitioners challenged the district’s actions, in part under ORS 327.109, which sets out procedures for responding to a complaint that a school district “sponsors, financially supports or is actively involved with religious activity.” We concluded that the legislature intended ORS 327.109 to codify federal First Amendment Establishment Clause principles and decided the case on that basis. We held that, because the school district’s actions did not rise to the level of an unconstitutionally excessive entanglement of government with religion, petitioners’ challenge failed. The record in this case is similar to the record in Powell I, although it contains some additional information. The issue, as we discuss below, is whether there is substantial evidence of discrimination.⁴

The Boy Scouts is a private organization that, among other things, provides programs for boys of elementary school age, beginning with the first grade. One requirement for participation in a Scouting program is that the boy profess belief in a theistic God. The Scout Oath includes a promise to “do my duty to God,” while the Scout Law includes a statement that “[a] Scout is REVERENT. A Scout is reverent toward God. A Scout is faithful in his religious duties. He respects the beliefs of others.” The Cub Scout Promise and the Tiger Cub Promise, which apply to programs for younger boys, include similar statements. The Boy Scouts treats the statements as a recognition of general theistic principles that are not tied to any specific religion, and participants include believers in a number of religions. The Boy Scouts, however, explicitly excludes atheists from eligibility for participation in its activities. It states that the “tenets of most world religions form the foundation of Scouting’s values” and maintains that “no child can develop to his or her fullest potential without a spiritual element in his or her life.”

The Boy Scouts recruits a large proportion of the participants in Scouting programs from the public schools, and it regularly sends representatives to the district’s schools in order to encourage students to join. In fall 1996, Remington was a student in the first grade at Harvey Scott Elementary School, one of the district’s schools. In September, a teacher distributed a Boy Scouts promotional flyer to him and other students during their regular class period. In October, during the school’s lunch period, while Remington and other students were in a room where the district required them to be, a district employee introduced a Boys Scouts representative, who then made a presentation encouraging boys to join a Scouting program. The representative and the district employee attached hospital-style bracelets containing information about the time and place for the first meeting to the wrists of interested boys. Remington thought that the program sounded like fun and got a wrist bracelet.

Nancy knew that Remington was ineligible for membership in the Scouts because he is an atheist. She complained to the school and the district about the presentation because of what she believed was the negative impact on Remington of subjecting him to the organization’s discriminatory practices. There was a similar presentation at Remington’s school in September 1997, except that the district employee did not assist in attaching the wrist bracelets. In April 2000, the official school newsletter contained an invitation for boys and their parents to attend a Cub Scout open house at a nearby church. Throughout this period, the district was aware that the Scouts excluded potential participants who did not express a belief in God.

In April 2000, petitioners filed a discrimination complaint with the district under ORS 659.850 and the implementing rules, OAR 581-021-0045 to 581-021-0049. In July, the district’s board, by a divided vote, denied the complaint. In September 2000, the district’s deputy superintendent issued guidelines to all school building administrators on permitting community organizations to use school facilities during noninstructional time “in response to the many questions we have been receiving about appropriate handling of Boy Scout materials and presentations.” Although the guidelines are not a formally adopted district policy, they generally guide building administrators in decisions concerning the use of school property, and the parties treat them as authoritative. According to the guidelines, noninstructional time includes lunch and recess periods during the regular school day. The guidelines give administrators discretion to allow the distribution of flyers provided by community organizations, specifically including the Boy and Cub Scouts, and to allow volunteers to make brief presentations to students and parents about their programs. Under the guidelines, administrators may permit the Boy Scouts to make presentations during noninstructional time during the school day. The guidelines also guide the administrators’ discretion in permitting groups to distribute materials during their school-time presentations. It would violate the guidelines for a Boy Scouts representative to make a presentation during instructional time or for a school district employee to assist in placing wrist bracelets on interested boys. It does not violate the guidelines for a representative to make a presentation during the lunch period or to be present at the school at that time.

The record includes videotapes of four presentations that a Boy Scouts representative made at district schools in fall 2001, after the adoption of the guidelines. In all but one videotape, a district principal, teacher, or administrator first quieted the students and told them to listen to the representative, who then made a short presentation to everyone and invited interested boys to talk with him further, either in the lunch room or outside on the school grounds. In the remaining videotape, the district employee mentioned the representative’s presence and availability. In all of the videotapes, the representative spent 15 or more minutes with those boys who came up to talk with him, handing out brochures, answering their questions, and encouraging them to join; at least once the representative told the boys that anyone could join.

In August 2000, petitioners appealed the district’s denial of their complaint to the superintendent, asserting that the district’s application of its policy to the Boy Scouts violates ORS 659.850, which provides:

“(1) As used in this section, ‘discrimination’ means 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.

“(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 Education shall establish rules necessary to insure compliance with subsection (2) of this section in the manner required by ORS chapter 183.”

The superintendent considered the appeal in accordance with the procedures that the state Board of Education (board) had previously established in OAR 581-021-0049, which provides, in part:

“(1) Districts shall adopt written procedures for the prompt resolution of complaints of discrimination. Persons may, after exhausting local grievance procedures or 90 days (whichever occurs first) appeal in writing to the Superintendent of Public Instruction. The Superintendent shall review the local school district procedures and findings of fact to determine if proper procedures were followed and what action if any shall be taken. In making this determination, the Superintendent may decide:

“(a) No substantial evidence exists for the charges of discrimination, and no further action will be taken;

“(b) Discrimination may exist, and conciliation will be attempted to reach agreement by both parties.

“(2)(a) If conciliation fails to resolve the parties’ differences within 30 days, the Superintendent shall promptly establish a date for a hearing on the complaint. Said hearing shall be conducted within 30 days of failure of conciliation unless both parties agree to an extension of the period. The hearing shall be conducted in accordance with provisions of Oregon’s Administrative Procedures Act.

“(b) In conducting a hearing required by this rule, the Superintendent of Public Instruction shall determine if a local district is in compliance with the provisions of ORS [659.850].”

Under OAR 581-021-0049, thus, the superintendent’s responsibility is first to review the district’s procedures and findings of fact to determine both whether the district followed proper procedures and what, if any, action the superintendent should take. Those actions depend on the evidence. If there is not substantial evidence to support the charges of discrimination, the superintendent will take no further action. If discrimination may exist, the superintendent will conduct conciliation in an attempt to reach agreement by both parties and will proceed to a contested case hearing if conciliation is unsuccessful.

In this case, after reviewing the record, the superintendent concluded that there was no substantial evidence of discrimination and declined to take any further action. Because the superintendent’s decision was an order in other than a contested case, petitioners sought judicial review in the circuit court. ORS 183.484(1). As part of conducting the judicial review, that court received evidence in addition to what was in the record before the superintendent. As noted, it concluded that the superintendent abused his discretion in determining that there was no substantial evidence of discrimination and remanded the case to the superintendent for further action on the complaint in accordance with OAR 581-021-0049. Respondents appeal.

The trial court’s review was for substantial evidence and errors of law, ORS 183.484(5), and we review the trial court’s decision to determine whether it correctly applied its standard of review. Powell I, 185 Or App at 338-39; Harris v. Board of Higher Education, 145 Or App 477, 478, 930 P2d 873 (1996). In practical effect, that means that we review the agency’s order for compliance with the standards set out in ORS 183.484(5). See Norden v. Water Resources Dept., 158 Or App 127, 136, 973 P2d 910 (1999), aff'd, 329 Or 641, 996 P2d 958 (2000). We discuss the nature of our review in greater detail later in this opinion.

Respondents first argue that petitioners do not presently have standing to challenge the district’s policies. They point out that Remington no longer attends Harvey Scott Elementary School and that the school that he attends is not one of the schools where the Boy Scouts currently makes presentations. ORS 183.480(1) provides that a person seeking judicial review of a final order of an agency must be “adversely affected or aggrieved” by the order. We have held that a petitioner must also show that the court’s decision will have a practical effect on the petitioner’s rights. See Powell I, 185 Or App at 346.

Contrary to respondents’ arguments, we have already decided the standing issue in petitioners’ favor. Remington changed schools before our decision in Powell I, and in that case we discussed petitioners’ standing as a result of the change. Although some of our discussion was based on concerns that were specific to the constitutional issues involved in that case, we also held that Nancy had standing as the mother of a student in the district to seek declaratory and injunctive relief.

“Granted, her son no longer attends a school in which the Boy Scouts engages in membership activities. But neither the district’s policies nor the Boy Scouts’ ability to pursue school membership activities pursuant to those policies at any school in the district [has] changed. The Boy Scouts’ voluntary limitation of its activities, without more, does not render moot plaintiffs challenge to the district’s policies. Moreover, as long as the district’s policies remain in place, and as long as the Boy Scouts remains active in other schools within the district, plaintiff is confronted with a classic Hobson’s choice: she must either subject her child to unwelcome and allegedly unconstitutional religious activity or she must restrict her choice of schools for her son to those in which the Boy Scouts declines to recruit. * * * Either choice provides her with a concrete stake in the litigation such that, if her claim has merit, a judicial resolution will have a practical effect on her rights and interests.”

Id. at 352-53 (citation omitted).

Our discussion of the practical effect of the district’s policy on Nancy for the purpose of declaratory and equitable relief applies equally to the practical effect of that policy on Nancy and Remington for the propose of seeking judicial review of the superintendent’s order. If the district’s policies remain in effect, their choice of schools will be affected because they will either have to subject Remington to what they assert is an illegal discriminatory policy or place him in a school where the Boy Scouts, for the moment, does not recruit. We decline the superintendent’s invitation to reconsider that analysis. Petitioners have standing.⁵

Respondents also assign error to the court’s ruling permitting petitioners to introduce evidence in addition to what was in the administrative record. They acknowledge that, in Norden, the Supreme Court held that a proceeding in the circuit court for judicial review of an order in other than a contested case includes an opportunity to develop the record beyond what was before the agency at the time it made its decision. 329 Or at 647-49. They argue that that holding does not apply to this case because petitioners had an opportunity to present evidence to the superintendent and, in fact, did so. However, in Norden the court held that the legislature intended ORS 183.484 to provide parties an opportunity during the judicial review proceeding in the trial court “to develop a record like the one that parties are entitled to develop at an earlier stage in a contested case proceeding.” Id. at 649. The proceeding before the superintendent was not a contested case, and petitioners did not have all of the opportunities to develop the record that they would have had in a contested case. The extent to which they did develop, or could have developed, the record before the superintendent may affect the trial court’s exercise of its discretion in determining what additional evidence to admit, but it does not turn the trial court proceeding into judicial review of a contested case. The trial court did not err.⁶

We turn to the merits of the trial court’s decision. In their third assignment of error, respondents argue that the trial court erred in determining that the superintendent abused his discretion in concluding that the district acted appropriately, that there was no substantial evidence of discrimination, and that he would take no further action. Respondents first assert that the trial court erred in reviewing the superintendent’s decision for abuse of discretion rather than for substantial evidence. As previously stated, the circuit court reviews an order in other than a contested case under ORS 183.484. As pertinent here, it determines whether substantial evidence supports the agency’s factual findings. In addition, it also determines, as a matter of law, whether the agency “has erroneously interpreted a provision of law” or has exercised its discretion “[o]utside the range of discretion delegated to the agency by law.” ORS 183.484(5)(a) - (c).

On appeal, we review the circuit court’s determinations in those regards to determine if it correctly assessed the agency’s actions under those standards. As to factual issues, the question is whether the order was supported by substantial evidence. Cf. Powell I, 185 Or App at 339 (appellate court reviewed order to determine whether circuit court correctly decided that order was supported by substantial evidence). As to legal issues, we review the agency’s order to determine whether the agency correctly carried out its duties, functions, and powers under the relevant organic statutes and rules, as well as under any other applicable law. In this case, the issues were primarily legal, and review of the superintendent’s action is therefore for errors of law, rather than for abuse of discretion. We modify the trial court’s order in that respect.

We turn to the relevant provisions and to the superintendent’s order applying them in this case. Pursuant to ORS 659.850(3), the board has adopted OAR 581-021-0045(3), which provides:

“ ‘Specific Prohibitions’: In providing programs or services to students, a school district shall not, on a discriminatory basis as defined in subsection (l)(a) of this rule:

“(a) Treat one person differently from another in determining whether such person satisfies any requirement [or] condition for the provision of such aid, benefit, or service;

“(b) Provide different aid, benefits, or services; or provide aids, benefits, or services in a different manner;

“(c) Deny any person such aid, benefit, or service;

“(d) Subject any person to separate or different rules of behavior, sanctions, or other treatment;

“(e) Aid or perpetuate discrimination by joining or remaining a member of any agency or organization which discriminates in providing any aid, benefit, or service to students or employees;

“(f) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.”

Thus, ORS 659.850 establishes a standard for what conduct by a public educational entity constitutes discrimination, prohibits such discrimination, and requires the board to establish rules to ensure compliance with that prohibition. In turn, OAR 581-021-0045(3) lists specific actions that can constitute discrimination. Finally, OAR 581-021-0049 requires school districts to adopt written procedures for the prompt resolution of written complaints of discrimination and sets out standards and procedures by which the superintendent must review a school district’s action on a particular complaint.

Under the board’s rules, the superintendent’s task was to determine whether there was substantial evidence of discrimination, not whether the district actually discriminated. Stated differently, the issue that he decided was only whether “the record, viewed as a whole, would permit a reasonable person” to find that the district discriminated. ORS 183.484(5)(c).⁷ The superintendent, following the formulation provided in OAR 581-021-0049(1), determined that “[n]o substantial evidence exist [ed] to support the charges of discrimination” as defined in ORS 659.850 and that, accordingly, no further action was required. The superintendent made no factual findings of his own, and factual findings are irrelevant to his decision. Whether substantial evidence exists involves evaluating the evidence for its legal sufficiency.

We turn, then, to the relevant legal question, whether the superintendent correctly determined that there is no substantial evidence that the school district subjected petitioners to discrimination within the meaning of ORS 659.850. That statute itself defines discrimination as “any act that unreasonably differentiates treatment,” whether intentionally or unintentionally. In addition, OAR 581-021-0045(3) sets out examples of discriminatory conduct that the board has determined to be unreasonable. Here, the parties do not dispute that the Boy Scouts discriminates within the meaning of that statute and rule, that Boy Scouts representatives acted at Remington’s school in the ways that petitioners describe, and that they acted at other schools in the ways shown on the videotapes. The parties also do not dispute that the guidelines currently permit Boy Scout recruitment during school hours and with district assistance. In his order, the superintendent recognized those facts but reasoned that the district’s actions did not discriminate against Remington on the ground of religion because

“the law and rules prohibit discrimination in education programs and services or school or interschool activities funded by the state. The law and rules do not provide a blanket prohibition that guarantees that everything said and done or occurring at school will be discrimination free or that the school will insure that all outside contacts will be with persons or organizations that are free of discrimination.”

The superintendent reasoned in part that a school district is liable under Title IX of the Educational Amendments of 1972, 20 USC § 1681, only for its own misconduct. He also reasoned that an issue of the school newsletter announcing the Cub Scout open house

“was available to all students on a nondiscriminatory basis. * * * While Boy Scout membership is apparently not open to all students, membership is not a public school program, service or activity. Thus, the Boy Scout membership policies — which apparently excludes [sic] atheists and gays— standing alone do not amount to discrimination in a public school program, service or activity in violation of ORS [659.850].”

(Emphasis in original.)

The superintendent also considered whether allowing a private organization that included a religious requirement to have access to school facilities constituted discrimination under ORS 659.850. On that issue, he relied on United States Supreme Court decisions that a school could not prevent a private religious organization from using school facilities after hours, citing Good News Club v. Milford Central School, 533 US 98, 121 S Ct 2093, 150 L Ed 2d 151 (2001), and that a school district is liable for a third party’s discrimination under Title IX only in limited circumstances, citing Davis v. Monroe County Bd. of Ed., 526 US 629, 119 S Ct 1661, 143 L Ed 2d 839 (1999). He stated that there was no discrimination under those tests:

“The school district does not exercise any control over the Boy Scout membership policies. Allowing the Boy Scouts to have access to school newsletters and facilities in the manner that occurred here was not so pervasive as to deprive the complainant of access to any educational opportunities or benefits. And in light of the adoption of the September 14, 2000 guidelines limiting access (and prohibiting the type of activities that were of concern to complainant in 1996 and 1997), it cannot be said that the school district’s actions amounted to ‘deliberate indifference.’ ”

Finally, the superintendent concluded that any differential treatment by the district was not unreasonable and therefore was not prohibited discrimination under ORS 659.850. The superintendent concluded that there was educational value in engaging the school with community organizations:

“Notifying students of activities of the Boy Scouts or other organizations does not make the school a sponsor, partner!,] or agent of those organizations. The school obviously saw more value than harm in the notification and opportunity, and ORS [659.850] simply does not make that choice unlawful.”

The dissent reasons that it was appropriate for the superintendent to rely on federal cases, noting that we have previously suggested that the board should consider federal cases based on a federal anti-discrimination statute in resolving an issue of discrimination. 198 Or App at (Landau, J., dissenting) (citing Montgomery v. Board of Education, 188 Or App 63, 79, 71 P3d 94 (2003)). The problem with the dissent’s reasoning is that, in contrast to the situation in Montgomery, the federal cases on which the superintendent relied were, at best, only tangentially related to the issues in this case. We conclude that, in relying on those cases, the superintendent evaluated the district’s action by the wrong standard.

In Good News Club, the plaintiff asserted that a school district’s rule that prohibited after-hours use of school property for religious worship violated the plaintiffs First Amendment right to free speech. The Court agreed, holding that the district had created a limited public forum at the school and that prohibiting the expression of views because of their religious nature was impermissible viewpoint discrimination. 533 US at 107. The Court rejected the district’s argument that its action was necessary to avoid violating the Establishment Clause of the First Amendment. Rather, the Court pointed out that the plaintiffs meetings were held after school hours, were not sponsored by the school, and were open to any student who obtained parental consent, not just club members. Id. at 113. Thus, allowing the club to speak on school grounds would ensure the district’s neutrality, not threaten it. Because the students needed a parent’s permission in order to attend, they could not be coerced into doing so and they would not perceive the school as sponsoring the program. Id. at 115.

The issue in Davis was whether the school district’s failure to protect a student from sexual harassment by another student gave rise to a claim against the district for money damages under Title IX of the Education Amendments of 1972, 20 USC § 1681. The conduct allegedly continued over a period of many months. The student and her mother reported it to several teachers, who reported it to the principal, but the school took no disciplinary action against the offending student. The harassment stopped only when the student pleaded guilty to sexual battery. Davis, 526 US at 633-35. Title IX prohibits education programs or activities that receive federal funds from excluding any person from participation in, denying the benefits of, or subjecting a person to discrimination in those programs or activities on the basis of sex. 20 USC § 1681(a). That prohibition is an exercise of Congress’s spending power, a fact that was the focus of the Court’s decision. A district could be liable for money damages only if Congress’s intent that it be liable was so clear that the liability was part of the contract to which the district agreed when it accepted the money. Davis, 526 US at 640.

The Court concluded that the district could be liable under Title IX for the acts of the student only if the district’s own deliberate indifference to the student’s misconduct caused the discrimination. It discussed what was necessary to meet that standard at some length. Id. at 640-46. Because the statute prohibits discrimination that would lead to a student being excluded from participation in or denied the benefits of the relevant educational program, the Court concluded that

“funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

Id. at 650. That strict standard, thus, was the result of a combination of the limitations of Congress’s spending power and the fact that the district had not directly engaged in misconduct but had only failed to stop the misconduct of a third party.

Although Good News Club involved access to school property and Davis involved discrimination by a school district, the differences between those cases and this case make their analyses largely inapplicable here. Again, in Good News Club, the Court emphasized that the district had created a limited public forum, that the club intended to meet after school hours, that it required parental permission to attend, and that students would not perceive the school as sponsoring the program. In addition, the case involved a constitutional claim of free speech, not a statutory right to be free from discrimination. In Davis, the issue was whether the school had discriminated by failing to stop a third-party student from sexually harassing other students, not whether it had participated in any discriminatory action on its own. In addition, the fact that the antidiscrimination statute was part of Congress’s exercise of its spending power required the Court to create a very narrow basis for the district to be liable in money damages that would not have applied to a general antidiscrimination statute.

In contrast to those cases, ORS 659.850 does not merely prohibit the district from acting with deliberate indifference, nor is it limited to actions that deprive Remington of any access to educational opportunities or benefits.⁸ Rather, the statute prohibits any discrimination on the basis of religion in any school program or service or in any school or inter-school activity. Although it applies to recipients of state funds, there are no spending power limitations on its scope. The relevant dictionary definitions of “activity” include “natural or normal function or operation” and “an occupation, pursuit, or recreation in which a person is active.” Webster’s Third New Int’l Dictionary 22 (unabridged ed 2002). There is substantial evidence that the Boy Scouts’ current recruiting efforts take place during school hours, at a location where the district requires the students to be, and begin with a district representative telling the students to be quiet and, in most cases, to listen to the Scout recruiter. For the students to be in a lunch room at lunch time is a normal school function, as is their listening to a district employee or their being on the school grounds after lunch and before classes resume. In that context, the recruiter’s action of remaining on the school grounds after his presentation in order to talk with interested students, while continuing to use the authority of the district to facilitate recruiting, is a continuation of that school activity. In short, there is substantial evidence that, by giving the Boy Scouts representatives access to students in these circumstances, the district itself offered the Scouting program to those students. That is, in itself, a school activity.

In short, the factual and legal issues in this case are not limited to permitting a discriminatory organization to use school facilities before or after school hours in order to conduct the organization’s programs in a way that did not suggest school sponsorship. Thus, the superintendent’s reliance on Good News Club is misplaced.⁹ The issues also do not involve whether the district was deliberately indifferent to one student’s sexual harassment of another or the establishment of the criteria for the victim of the harassment to receive money damages based on Congress’s exercise of its spending power. Thus, the superintendent’s reliance on Davis is also misplaced. Rather, the issue is whether there is substantial evidence that the district’s actions constituted discrimination under ORS 659.850, that is, whether the district subjected Remington to an “act that unreasonably differentiates treatment, intended or unintended, * * * based on * * * religion * * That is also a different question from whether the district violated constitutional standards by itself promoting a religious message, which we held in Powell I it did not.

In Powell I, we applied ORS 327.109, which provides a procedure for a complaint that a school district “sponsors, financially supports or is actively involved with religious activity.” We held that that statute adopted the three-part test for resolving Establishment Clause-type claims that the Supreme Court set out in Eugene Sand & Gravel v. City of Eugene, 276 Or 1007, 558 P2d 338 (1976), cert den, 434 US 876 (1977). Powell I, 185 Or App at 358. That test required us to determine the following: “(1) Does the district’s policy reflect a secular purpose? (2) Is the primary effect of that policy to advance or inhibit religion? (3) Does the administration of the policy excessively entangle the district in religion?” Id. at 360. We concluded that none of the prongs was satisfied and therefore affirmed the circuit court’s decision in favor of the superintendent. Id. at 366. It is apparent that, although the facts in Powell I are essentially the same as the facts in this case, the issues in the two cases have little in common. The question before us is not whether the district has established a religion by its relationship with the Boy Scouts; rather, again, the question is whether there is substantial evidence that the district subjected Remington to discrimination in a school activity. We turn to that question.

In concluding that there was no substantial evidence that the district’s actions constituted discrimination under the statute, the superintendent stated that there is no guarantee that everything that occurs at school will be discrimination-free¹⁰ and that notifying students of Boy Scouts activities does not make the district a partner of the Scouts. Those statements demonstrate that the superintendent did not adequately consider either the scope of the district’s obligation to prevent discrimination or the extent to which a factfinder could determine that the district’s actions connected it to the Scouts and its discriminatory practices. The guidelines permit school administrators to give the Scouts and other organizations direct access to students, at a time when the students are a captive audience, in order to promote their programs without regard to whether the programs practice discrimination that the statute forbids the district from practicing on its own. By permitting administrators to use the school’s authority so to aid a discriminatory organization, they allow the school to offer an activity to students that is not available to all students without discrimination.

There is substantial evidence that, by giving the Scouts the access that it does, the district treats those students who are eligible to join the Scouts differently from those who are not. All students must listen to the introductory presentation, but only those students who meet a religious test may accept the invitation to join. Because eligibility to join the Scouts depends on religious belief, there is substantial evidence that the district thus subjects persons to differentiated treatment in a school activity on the ground of religion.

The dissent disagrees, in part because it concludes that any discrimination to which the district subjected persons did not occur “in” a school activity. The dissent incorrectly treats petitioners’ statement that the discrimination is manifest at a later time rather than during the presentation itself as a concession that the dissent’s conclusion is correct. 198 Or App at 63 (Landau, J., dissenting). Petitioners made no such concession. District support of a discriminatory act can be discrimination by the district in a school activity even if the discriminatory act takes place after the district’s support has occurred. The word “in” is a preposition that shows relationships. Marcilionis v. Farmers Ins. Co., 318 Or 640, 645, 871 P2d 470 (1994). “In” is sometimes used as a function word “ ‘to indicate location or position in space or in some materially bounded object.’ ” Id. (quoting Webster’s at 1139). It also can mean “in the course of,” thus suggesting a temporal connection. Webster’s at 1139. However, its use is not limited to the description of spatial or temporal relationships. It also can be used as a function word to “indicate close connection by way of implication or active participation.” Id. That meaning captures the sense in which the district here subjected Remington to differentiated treatment in a school activity; the precipitating conduct — Scout recruitment— occurred at school and in the course of a school activity, even though the ultimate impact of that conduct — the exclusion of Remington from membership in the Scouts — did not occur at the same place and time. Any other interpretation of the statute would create a formalism that would foster almost endless loopholes that would permit the district to discriminate indirectly while nominally keeping its hands clean. Accordingly, we reiterate our conclusion that there is substantial evidence that the district subjected students to differentiated treatment in a school activity on the ground of religion.

The dissent, in effect, accuses us of cherrypicking an obscure dictionary definition of “in” to reach a result that the legislature did not intend. 198 Or App at 64-65 (Landau, J., dissenting). We reject that characterization. The fact that “in” is a function word that conveys a broad array of possible meanings does not require us to infer that the legislature intended only a limited subset of those meanings to apply to its use of the word. It is not uncommon for the legislature to use a word in its broad sense where the circumstances to which it is intended to apply also are broad. See, e.g., State v. Branstetter, 332 Or 389, 403, 29 P3d 1121 (2001) (citing State ex rel Gattman v. Abraham, 302 Or 301, 311, 729 P2d 560 (1986), for the proposition that “ ‘cause’ was chosen by [the] legislature because ‘it has a broad meaning and may include a case or proceeding or any part thereof depending upon the circumstances’ ”). In that regard, our conclusion that “in” should be given a broad meaning in ORS 659.850 is not “acontextual.” 198 Or App at 64-65 (Landau, J., dissenting). To the contrary, the dissent’s discussion of “in” reflects a formulation that would permit the district to engage in discrimination in activities it promoted simply by having the manifestation of the discrimination occur off district grounds. Unlike the dissent, we conclude that discrimination may occur “in” a school activity when that activity includes recruitment for an organization that discriminates, even if the discrimination becomes manifest at a later time. There is no practical difference between encouraging a student to sign up during a school activity, knowing that the student subsequently will be rejected for a discriminatory reason, and preventing the student from signing up in the first place. The first option is just as likely to harm the student in ways that the legislature intended to prevent.

Under the statute, differentiation in treatment that is based on religion constitutes unlawful discrimination unless the differentiation is reasonable.¹¹ The superintendent’s discussion of the reasonableness of the district’s actions in this case, assuming that it subjected Remington to differential treatment, was limited:

“Whether it is good policy to give the Boy Scouts access to public school newsletters and facilities is certainly open to debate, but that policy decision is for the school district, not the Superintendent to decide. The Superintendent’s review is limited to determining whether the school district subjected complainant to discrimination within the meaning of ORS [659.850]. Under the circumstances presented here, the Superintendent concludes that printing notice of a Cub Scout meetingt ] in the school newsletter, and allowing the Boy Scouts to make the type of informational presentations that occurred here, did not unreasonably subject complainant to differential treatment in any public school program, service, or activity.

“The school district has concluded there is educational value in engaging the school with community organizations that provide youth resources. State law encourages school and community connections. See ORS 329.025(7) (12) (13), 329.125; 332.172(1)(b); 336.067; 336.177; 336.510; 338.015.”

In sum, the bases for the superintendent’s conclusion that any differentiation in treatment was reasonable were that (1) the school district made a policy decision; (2) its decision was consistent with state law encouraging public school and community connections; and (3) apparently, that any differentiation was limited in character. Those reasons are not sufficient, either individually or in combination, to justify the conclusion that no substantial evidence of discrimination exists. A policy decision to permit discrimination would violate ORS 659.850, as would encouraging discriminatory public school and community connections. The fact that the differentiation is limited in character may affect its impact but does not make it any less discriminatory.

The superintendent’s reasonableness analysis must stand or fall with the validity of the idea that community organizations that provide youth resources should be allowed to recruit students with school support during school hours in school activities even if those organizations discriminate in ways that the statute would prohibit if the district did it directly. At the heart of his reasoning appears to be the premise that the public schools cannot reasonably be expected to protect children from the inevitable psychosocial bumps and bruises that occur in daily life. That premise misses the point. The purpose of ORS 659.850, like that of other anti-discrimination statutes, is to prevent children from receiving bumps and bruises from the school itself that are based on their membership in a group that, the legislature has decided, is an impermissible basis for differentiation. There is substantial evidence that this is not a case of playground scuffles but of the district promoting an organization that rejects Remington’s participation on a ground that would violate the legislature’s determination of public policy if the district had applied it directly. To treat such activity as no different from exposing children to the normal pains of growing up trivializes the legislature’s action and condescends to those whom it acted to protect.

The record contains undisputed evidence that, after being told that they cannot join the Boy Scouts for religious reasons, young children, including Remington, feel ostracized by their peers. The record, and common sense, teach us that such reactions are neither idiosyncratic nor trivial.

“Parents and lawmakers may and do assume that the hours, days, and years spent in school are the time and the place when a young person is most impressionable by the expressed and implicit orthodoxies of the adult community and most sensitive to being perceived as different from the majority of his or her peers; famous constitutional cases have involved this socializing rather than intellectual function of the schools.”

Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 376, 723 P2d 298 (1986), appeal dismissed, 480 US 942 (1987).

The Board of Education has not expressly adopted rules concerning criteria for determining whether differentiation is reasonable. However, the rules that it has adopted prohibit actions that “[a]id or perpetuate discrimination by joining or remaining a member of any agency or organization which discriminates in providing any aid, benefit, or service to students or employees,” OAR 581-021-0045(3)(e), or that “[otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity,” OAR 581-021-Q045(3)(f). Those rules indicate that the board generally considers differentiation on prohibited grounds to be unreasonable. In all events, those rules support the conclusion that substantial evidence of discrimination exists. The fact that the superintendent may believe that the Boy Scouts generally plays a constructive role in the development of youth character does not alter that conclusion. The same might be said for any number of discriminatory organizations.

Our conclusion should not be taken to suggest that discriminatory organizations such as the Boy Scouts may not, under any circumstances, be permitted to conduct recruiting or other programs on school premises. Here, however, the district’s policy authorizes school administrators to provide practical support for such programs during school activities for which student attendance and attention are mandatory. In those circumstances, there is substantial evidence from which, under the applicable statutes and rules, a reasonable factfinder could determine that the differentiated treatment to which the school district subjects school children by virtue of the Boy Scouts’ recruitment activities is unreasonable. The superintendent therefore erred in concluding that there is no substantial evidence that the district discriminated. We affirm the trial court’s order to that effect and, as did the trial court, remand to the superintendent for further proceedings under OAR 581-021-0049(l)(b).

Respondents’ final assignment of error is that the trial court erred in awarding attorney fees to petitioners. On appeal, they do not challenge the amount of the awards. The trial court relied on both ORS 183.497 and ORS 20.107 to support its award against the department and on ORS 20.107 to support its award against the district. We first discuss the award under ORS 183.497. That statute provides that the reviewing court may award attorney fees to a prevailing petitioner on judicial review of an agency’s final order, ORS 183.497(1)(a), and that it shall do so if it finds that the agency acted without a reasonable basis in fact or law, unless the agency shows that its action was substantially justified or that there are special circumstances that would make an award unjust, ORS 183.497(1)(b). We recently discussed the statute in Kaib’s Roving R.Ph. Agency v. Employment Dept., 189 Or App 579, 77 P3d 327 (2003), rev allowed, 336 Or 615 (2004) (Kaib’s). We first held that the criteria in ORS 20.075 for discretionary awards of attorney fees are substantially identical both to the criteria that we had previously established for awards under the predecessor to ORS 183.497(1)(a) and to the criteria for nondiscretionary awards under ORS 183.497(1)(b). We therefore applied the same criteria to both subsections of the statute in Kaib’s and do so again here. Id. at 586-87.

Respondents first argue that the trial court’s decision was not in favor of petitioners because the court’s order only required the superintendent to conduct further proceedings. In Kaib’s, we held that the petitioner prevailed when we reversed the agency’s order and remanded for a new order before a new decision-maker. Id. at 585-86. In this case, the superintendent in his final order refused to take any farther action on petitioners’ complaint. As a result of the judicial review, the superintendent must now proceed to conciliation and, if necessary, a contested case hearing and must do so under a substantially altered view of the law. The trial court’s decision was in favor of petitioners.

The crucial issue is whether the superintendent acted without a reasonable basis in fact or in law. In Kaib’s, the agency director issued a final order in a case in which the director had no authority to do so. Rather, the applicable statute required that a hearing officer issue the final order and gave the director only the status of a party to the proceeding. We therefore vacated the director’s order and remanded the case for a new decision by a hearing officer who was not involved with the previous decision. Despite that decision on the merits, we held that the agency had not acted without a reasonable basis in fact or law and refused to award attorney fees. We held that the agency had not misconstrued the applicable statutes but had failed to discern that they applied at all. Because the petitioner had not based its arguments on those statutes but, instead, on the federal constitution, the agency’s failure was not unreasonable. Id. at 588-89.

In this case, the parties knew which statute applied, and we have held that the superintendent misconstrued it. His error lay primarily in relying on federal principles that apply to some forms of discrimination in educational programs rather than focusing on the specific state statute that was at issue. Although the superintendent failed to understand why the principles on which he relied did not apply to this case, it was not unreasonable for him to look to them for guidance, particularly in light of the absence of relevant authority under the statute. As we said in Kaib’s, in

“deciding whether to award attorney fees against an agency that has erroneously construed a controlling statute, ‘the correct approach is to consider not only the meaning of the statute, as determined by the court, but also all the surrounding circumstances that help to explain whether the department’s erroneous statutory construction was the result of a reasonable mistake.’ ”

Id. at 588-89 (quoting Preble v. Dept. of Rev., 331 Or 599, 603, 19 P3d 335 (2001)) (emphasis in Kaib’s). In this case, the superintendent made a reasonable mistake, and ORS 183.497(1), therefore, does not support the award of attorney fees against the department.

The trial court also relied on ORS 20.107(1) to support its award of fees against both the department and the district. That statute requires a court to award attorney and expert witness fees to a prevailing plaintiff in a civil judicial proceeding, including judicial review of an administrative proceeding, that is based on a claim of unlawful discrimination.¹² However, petitioners did not follow the procedural requirements for seeking an award of attorney and expert witness fees under ORS 20.107, and the trial court therefore erred in awarding them.

ORCP 68 C(2)(a) provides that a “party seeking attorney fees shall allege the facts, statute, or rule which provides a basis for the award of such fees in a pleading filed by that party.” According to the rule, the consequence of failing to follow that procedure is clear: “No attorney fees shall be awarded unless a right to recover such fee is alleged as provided in this subsection.” Id. Petitioners did not refer to attorney fees in the body of their petition for review, but in the prayer they asked the court to “[a]ward petitioners their attorneys’ fees and costs pursuant to ORS 183.497[.]” Neither they nor respondents referred to ORS 20.107 until petitioners did so in the statement for attorney fees that they filed after the trial court’s decision on the merits.

We have recognized that there is some flexibility in the rule for pleading a right to attorney fees; the stringent mandate of ORCP 68 C “is tempered by ORCP 12 B, which directs the court to ‘disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.’ ” Lumbermen’s v. Dakota Ventures, 157 Or App 370, 375, 971 P2d 430 (1998). Thus, we have permitted a request for fees in the prayer of a pleading rather than in the body of the pleading itself. Little Whale Cove Homeowners Assoc. v. Harmon, 162 Or App 332, 342, 986 P2d 616 (1999).

In Domingo v. Anderson, 138 Or App 521, 910 P2d 402 (1996), rev’d in part on other grounds, 325 Or 385, 938 P2d 206 (1997), the plaintiffs filed a complaint that asserted various claims but did not allege a breach of contract. In his answer, the defendant alleged a right to attorney fees under ORS 20.105 (1993), which at the time required a showing of bad faith. The plaintiffs then filed an amended complaint that alleged a breach of contract claim and sought attorney fees under the contract. The defendant responded with a motion for summary judgment. After the court granted that motion, he amended his answer to include a request for attorney fees under the contract. We held that, because the defendant’s original answer alerted the plaintiffs that he would seek attorney fees on some theory, and because the plaintiffs themselves asserted a right to attorney fees under the contract, the plaintiffs were necessarily aware that they would be liable for attorney fees if they proved the existence of a contract but failed to prove a breach. Id. at 527.

The Supreme Court recently made it clear that the leeway that we have provided in those cases is not unlimited. ORCP 12 B applies only when the party has attempted to comply with the requirements of the rule; it cannot be used as an escape from those requirements. Thus, a defendant who files a motion for summary judgment before answering must comply with ORCP 68 C(2)(b) and include a request for attorney fees in the motion; a request in a supporting memorandum is insufficient. The failure to allege, or to attempt to allege, a right to attorney fees in the motion means that there was no error or defect in the motion that the trial court could disregard under ORCP 12 B. Mulier v. Johnson, 332 Or 344, 350, 29 P3d 1104 (2001).

In this case, petitioners did not allege a right to attorney fees under ORS 20.107, and there is nothing in what they did allege that suggests that they were attempting to assert a right under that statute. Nothing else in anything that petitioners filed alerted respondents that petitioners would seek attorney fees under ORS 20.107. Unlike in Domingo, there also was nothing that respondents filed that might indicate that they should have been aware of the possibility of an award of attorney fees under that statute. In short, there is nothing in the pleadings or motions that supports an award of attorney fees under ORS 20.107. The trial court erred in awarding attorney fees based on that statute.

The final issue is petitioners’ cross-appeal, in which they assign error to the trial court’s action in remanding the case to the superintendent for conciliation and, if necessary, a contested case hearing in accordance with OAR 581-021-0049. They argue that there is uncontradicted evidence that Remington was subjected to discrimination and that the court should have reversed the superintendent’s order outright and entered judgment that the district had violated ORS 659.850. The problem with petitioners’ argument is that it goes beyond the scope of a court’s authority on judicial review of an agency order. OAR 581-021-0049 establishes a procedure for the superintendent to follow in considering a complaint of discrimination. The superintendent followed the rule but reached the wrong decision, leading him to terminate the proceeding prematurely. The court cannot now tell the superintendent to ignore the rule; rather, the superintendent must follow the procedure that the rule establishes. The court’s authority is to set aside or modify the agency’s order or to remand the case for further action if the agency has erroneously interpreted the law, ORS 183.484(5)(a), to remand the case if the agency’s exercise of discretion is outside of its legal range or otherwise incorrect, ORS 183.484(5)(b), or to set aside or remand the order if it is not supported by substantial evidence in the record, ORS 183.484(5)(c).

In the current posture of this case, none of those provisions provides authority to a court to order the superintendent to find certain facts or to take any action other than to proceed in accordance with the rule in light of the law as the court has declared it. Among other things, the superintendent may now actually have to find facts rather than simply determining whether there is substantial evidence to support a potential factual finding. The cross-appeal does not identify any error in the trial court’s action.

On appeal, paragraph 2 of judgment modified to delete “abuse of discretion” and insert “error of law”; award of attorney fees reversed; otherwise affirmed. Affirmed on cross-appeal.

1 We refer to the parties by their designations before the trial court. The Superintendent of Public Instruction acts as the administrative officer of the Board of Education and as executive head of the Department of Education. ORS 326.310. The Department of Education functions under the direction and control of the Board of Education. ORS 326.111. The Board of Education establishes policy for the administration and operation of public elementary and secondary schools and community colleges and has general rulemaking authority for that purpose, ORS 326.011; ORS 326.051, as well as rulemaking authority relating to the specific issue presented here, as we discuss below.

2 ORS 659.850 was formerly ORS 659.150 and was given its current designation in 2001. We will use the current designation in this opinion.

3 Nancy Powell is Remington’s mother and appears both as his guardian ad litem and in her own capacity.

4 Because we are reviewing an order in other than a contested case, the relevant facts are those that appear in the record at the trial court. They are not limited to the facts before the agency at the time that it issued the order on review. Norden v. Water Resources Dept., 329 Or 641, 649, 996 P2d 958 (2000).

5 For the same reason, petitioners’ claim is not moot even though Kemington is now attending high school. The guidelines apply to all of the district’s schools, and high school principals have the discretion to permit the same Boy Scouts activity that elementary school principals permitted.

6 In any case, the additional evidence that petitioners presented is not essential to our decision.

7 The administrative rules do not define “substantial evidence.” We therefore use the definition that otherwise applies in Oregon administrative law.

8 The dissent suggests that Good News Club and Davis interpreted the statute on which ORS 659.850 was based. 198 Or App at 58-59 (Landau, J., dissenting). As our discussion indicates, that suggestion is incorrect.

9 For the same reason, the Boy Scouts of America Equal Access Act, 20 USC § 7905, which respondents first mentioned at oral argument, does not apply to this case. The act requires schools that receive federal money to provide equal access to the Boy Scouts and certain, other groups so that they may conduct meetings before or after the hours when attendance is compulsory. That is not the situation at issue here.

10 That statement is inconsistent with the express requirement in ORS 659.850(2) that “[n]o person in Oregon” shall be subjected to discrimination in any school program, service, or activity. Contrary to the superintendent’s position, the legislature has expressly required that everything that occurs at a school that receives state funds be free of discrimination.

11 The analysis that we apply to this case is identical to the analysis that we would apply if the school district were to permit the youth auxiliary of the Ku Klux Klan to make presentations at the school so long as it did not refer to limiting participation to white Protestants. Given the history of this state during the 1920s, that hypothetical is not entirely farfetched. See Pierce v. Society of Sisters, 268 US 510, 45 S Ct 571, 69 L Ed 1070 (1925). We doubt that, in that situation, either the superintendent or the dissent would fail to find substantial evidence that the district discriminated against racial minorities, Catholics, Jews, and Muslims.

12 ORS 20.107(3) specifically contemplates an award against a state agency or officer. Because of the basis for our decision, we do not need to decide whether that provision authorizes an award against an agency that simply acts as a neutral decision-maker in resolving a claim of discrimination by a third party.