‘Contact Sports Exception’ to Negligence Applies in Illinois Case

Jun 2, 2006

An Oregon appeals court has held that the state Board of Education (Board) must reconsider its ruling, which endorsed the Oregon School Activities Association’s (OSAA) decision not to reschedule the State High School Boys’ and Girls’ Basketball Tournament to ensure that members of the Portland Adventist Academy (PAA) teams would not have to play on the Sabbath.
Specifically, the court found that the Board used the wrong standard when it came to determining the extent of the impact making such an accommodation for the PAA would have upon the OSAA and its members.
Central to the case was ORS 659.850 which provides, in part:
“(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.”
Despite that statute, the Board had affirmed that OSAA’s finding that the PAA’s proposed accommodations were unreasonable “because each would impose an ‘undue hardship’ on OSAA, on its member schools, and on participants in and fans attending the tournament. In reaching that conclusion, the board determined that an ‘undue hardship’ exists if the proposed accommodation imposes more than a de minimis cost on OSAA. Because it found that each of petitioners’ proposed accommodations would impose more than de minimis costs, the board concluded that OSAA did not violate ORS 659.850 in declining to incorporate one or more of those proposed accommodations into the tournament structure.”
After reviewing the parties’ arguments, the appeals court quickly zeroed in on the proper construction of ORS 659.850.
“(A)ll relevant indicators suggest that the legislature most likely would have understood that ORS 659.850 prohibited discrimination on the basis of religion unless a school or school district could establish that accommodating a student’s religious practices posed an ‘undue hardship,’ that is to say, a significant or substantial burden taking into account all relevant circumstances,” the appeals court wrote. “There is a complete absence of evidence that the legislature would have understood or intended ORS 659.850 to permit discrimination upon a showing that accommodation is not possible without imposing any cost that is more than what the law would regard as de minimis.”
The appeals court concluded that “the board erred in applying a de minimis test in evaluating whether OSAA could reasonably accommodate PAA in scheduling its tournaments. We recognize that, in Montgomery, we advised the board that it might ‘find assistance’ in federal case law concerning what kinds of accommodations are reasonable and ‘what kinds of hardships are undue.’ Id. at 79. However, we did not directly address the latter issue. Most saliently here, we did not address the question of what magnitude of hardships are ‘undue’ for the purpose of ORS 659.850. Having now considered that question, we reach the answer set out above.
“Because the board did not apply the standard that we now conclude applies, we reverse and remand for it to do so in the first instance. See ORS 183.482(8)(a)(B) (if agency has erroneously interpreted applicable law, this court on review may remand the case to the agency for further action under a correct interpretation of the law).”
Anthony Nakashima et al. v. Board of Education et al.; Ct. App. Oregon; A123878; 2006 Ore. App. LEXIS 322; 3/15/06
Attorneys of Record: (for petitioners) Charles F. Hinkle of the ACLU Foundation of Oregon. (for respondent) Janet A. Metcalf, Assistant Attorney General.


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