Powell v. Bunn, No. S52659 (Ore. Sept. 8, 2006)

The Oregon Supreme Court has ruled that school officials did not discriminate against an atheist student when they allowed a Boy Scout representative to make a recruiting presentation in his classroom. The court concluded that Portland Public School District No.1J’s (PPSD) practice of allowing the Boy Scouts, an organization that requires members to profess a belief in God, access to students in class for recruitment purposes does not violate the state law prohibiting discrimination in any public school program, service, or activity. Remington Powell attended Harvey Scott Elementary School (HSES). After the Boy Scouts visited Remington’s classroom and gave a presentation, his mother complained that the presentation was discriminatory because as an atheist Remington would be barred from becoming a Boy Scout. The parents sued, claiming PPSD had violated a state law that defines "discrimination" as "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" and prohibits discrimination in any public elementary, secondary, or community college or higher education program or service, school, or interschool activity where the program, service, school, or activity is financed in whole or in part by state funds. The trial court found that PPSD’s practice violated the statute, and a state appeals court affirmed.

The state supreme court reversed. The court first determined that because the presentation occurred during lunch it clearly fell within the statutory definition of a school activity. Likewise, printing and disseminating the school newsletter is a school activity. As a result, the court found, if handing out a Boy Scouts flyer, making a brief presentation to children, or including information about Boy Scouts meetings in the newsletter amounts to discrimination amounted to "discrimination" as the statute uses that word, then such discrimination took place in a public elementary school activity. However, the high court cautioned that just because the promotions are school activities does not transform all the organization’s activities that occur outside school into school activities. The presentation itself, the court concluded, did not subject Remington to unreasonably differential treatment based on his religious beliefs. The presentation was given to all students without regard to religion. The discrimination that the parents alleged, i.e., the membership restriction, occurred in an activity outside the school setting.