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IN THE COURT OF APPEALS OF THE STATE OF OREGON

Jennifer K. Walter,
Petitioner

Case No. A161646


v.

Oregon Board of Education,


Respondent
Rule No. 581-021-0047

PETITIONERS OPENING BRIEF AND EXCERPT OF RECORD

This brief challenges the constitutionality of SB 1509 (2014) and OAR


581-021-0047.

Jennifer K Walter
Pro Se for Petitioner
38939 River Dr.
Lebanon, OR 97355
shehulk@comcast.net
503-407-0989
July 2016

TABLE OF CONTENTS
STATEMENT OF THE CASE1
1. Nature of the Action and Relief Sought.1
2. Basis of Appellate Jurisdiction.1
3. Statement of Agency Jurisdiction...1
4. Questions Presented on Appeal..1
5. Statement of Facts.2
ASSIGNMENT OF ERRORS.8
Summary of Argument.8
Argument..10
Conclusion35
Excerpt of Record
Appendix
6.

TABLE OF AUTHORITIES
Cases:
Brown v. Board of Education, 347 U.S. 483 (1954).....29
Cook v. State, 495 P. 2d 768, n. 3 (Or. Ct. of Appeals 1972).27
Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 378, 723 P.2d 298
(1986), appeal dismissed 480 U.S. 942 (1987)..22
Fullilove v. Klutznick, 448 U.S. 338, 480 (1980)27
Gilliam County v. Dept. of Env. Quality, 316 Or. 99, 849 P. 2d 500 (1993)
16
Gomez v. United States, 490 U.S. 858, 864 (1989)..22
Grutter v. Bollinger, 539 U.S. 306 (2003)31
Harper v. Virginia Board of Elections, 383 U.S. 663, 670 (1966)...27
Korematsu v. United States, 323 U.S. 214 (1944)31
Kramer v. Union Free School District, 395 U.S. 621, 627 (1969)..27
Loving v. Virginia, 388 U.S. 1, 11 (1967)...25
Namba v. McCourt, 185 Or. 579, 583 (1949)25
PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P2d 1143
(1993)...17
State v. Anthony, 179 Or. 282, 169 P. 2d 587, cert. denied, 330 U.S. 826
(1946).22
State v. Gulbrandson, 470 P. 2d 160 (Or. Ct. of Appeals 1970)..22
State v. Harmon, 225 Or. 571, 358 P. 2d 1048 (1961)..22
State v. Hodges, 88 Or. Adv. Sh. 721, 457 P. 2d 491 (1969)22
Wygant v. Jackson Board of Education, 476 U.S. 267, 274 (1986).27
Constitutions:
U.S. Const. Amend. XIV, section 123
Or. Const. Art. 1.23
Statutes:
ORS 174.02017
ORS 183.4005,16

ORS 326.051.5
ORS 332.075passim
ORS 659.850. ..26
Regulations:
OAR 581-021-0047passim

PETITIONERS OPENING BRIEF AND EXCERPT OF RECORD


----------------------------------------------------------------------------------------STATEMENT OF THE CASE
1. Nature of the Action and Relief Sought
This is an action against the Oregon Board of Education (State Board)
seeking review of the validity of Rule No. 581-021-0047. (2016 Rule).
ER 6-7. Petitioner requests that the court find that the portion of the
2016 Rule which authorizes the use of race-based mascots is invalid. In
the alternative, Petitioner seeks a declaration that the portion of the
statute underlying the 2016 Rule which authorizes race-based mascots,
SB 1509 (ER 1-2), is unconstitutional. This action does not affect the
earlier rule adopted by the State Board requiring the retirement of Native
American mascots (the 2012 Rule) (App. at A1) because SB 1509 did
not overrule the 2012 Rule, but simply added an exception to the rule.
2. Basis of Appellate Jurisdiction
Appellate jurisdiction is based on ORS 183.400.
3. Statement of Agency Jurisdiction
Statutory authority for the State Boards action is ORS 326.051(1)(g).
4. Questions Presented on Appeal
A. Did the State Board exceed its statutory authority by adopting a
rule that authorizes race-based Native American mascots in
public schools rather than namesake mascots?

B. Does the portion of SB 1509 authorizing race-based Native


American mascots violate the equal protection provisions of the
Oregon and United States Constitutions?
C. Does the 2016 Rule permitting race-based Native American
mascots in public schools violate the equal protection
provisions of the Oregon and United States Constitutions?
5. Statement of Facts
For more than 50 years, Native American organizations have sought
the elimination of Native American sports mascots at the professional,
college, and local levels. In 2005, the National Collegiate Athletic
Association (NCAA) adopted a policy prohibiting the use of Native
American mascots at post-season events.1 Later, after negotiations
among the NCAA, the National Congress of American Indians (NCAI) 2
and individual colleges, the NCAA granted waivers to five colleges to
continue the use of mascots named after tribes that had consented to

1 ttp://fs.ncaa.org/Docs/PressArchive/2005/Announcements/NCAA

%2BExecutive%2BCommittee%2BIssues%2BGuidelines%2Bfor
%2BUse%2Bof%2BNative%2BAmerican%2BMascots%2Bat
%2BChampionship%2BEvents.html. The information presented here is
publicly available and relevant because the legislature discussed the
NCAAs policy when enacting SB 1509.
2 NCAI is the oldest, largest, and most representative American Indian
and Alaska Native organization. http://www.ncai.org/about-ncai.

the use of their tribal name.3 This was consistent with the policy adopted
by the NCAI. In its policy on mascots, NCAI states:
Negative Indian stereotypes especially those perpetuated by
sports mascots affect the reputation and self-image of every single
Native person and foster ongoing discrimination against tribal
citizens.4
However, because NCAI also has a policy of respecting the sovereign
rights of individual tribes, its mascot policy also includes a limited
exception:
In general, NCAI strongly opposes the use of derogatory Native
sports mascots. However, in the case where mascots refer to a
particular Native nation or nations, NCAI respects the right of
individual tribal nations to work with universities and athletic programs
to decide how to protect and celebrate their respective tribal
heritage.5
In April 2006, the Oregon Indian Education Association (OIEA)
adopted a resolution to ban the use of all Native American mascots for
sports events. This resolution supported action already taken by NCAI
and cited the findings of the American Psychological Association,

3 The five teams and the tribes approving the use of their names are:

Catawba College Indians (Catawba), Central Michigan University


Chippawas (Saginaw Chippewa Tribal Nation), Florida State Seminoles
(Seminole Tribe of Florida and Seminole Nation of Oklahoma),
Mississippi College Choctaws (Mississippi Band of Choctaw Indians),
and University of Utah Utes (Ute tribal councils). The latter is an
unofficial name.
4 http://www.ncai.org/policy-issues/community-and-culture/antidefamation-mascots.
5 Id. (emphasis added).

concluding that Indian mascots are detrimental to the health and wellbeing of students.6
In December 2006, Che Butler, accompanied by his sister Luhui
Whitebear (both members of the Siletz tribe and members of OIEA),
testified before the State Board of Education, presenting arguments in
support of the OIEA resolution.7 At the time, 15 public high schools in
Oregon had some form of Native American mascot. App. at A4-6.

On May 17, 2012, the State Board adopted a rule and resolution
banning the use of Native American mascots in Oregon public schools
as of July 2017, thereby eliminating all race-based mascots in Oregon
public schools (2012 Rule).9 The resolution stated: the continued use of
Native American mascots establishes an unwelcome and often times
hostile learning environment for American Indian students in all schools
and not just in those schools with Native American mascots, particularly
during sports competitions.10 Susan Castillo, the Superintendent of
Public Instruction at the time of the State Boards action, issued a
6 OIEA Resolution 07-02, http://02af27e.netsolhost.com/oiea2/wp-

content/uploads/2013/07/OIEA-Resolution-07-02.pdf.
7 http://www.ode.state.or.us/superintendent/priorities/native-americanmascot-report.pdf at 6.
8 http://www.ode.state.or.us/superintendent/priorities/native-americanmascot-report.pdf at 25-27.
9 http://www.ode.state.or.us/stateboard/pdfs/581-021-0047-native-

american-mascot-final.pdf . (App. at A1)


10 App. at A2-3.

comprehensive report setting forth the research on the subject. Included


in that report was a list of more than 100 organizations that oppose the
use of Native American mascots.11
In 2014 the Oregon legislature enacted, and the governor signed, SB
1509, which did not overrule the 2012 Rule, but created an exception to
the ban, if an Oregon tribe and a local school district entered into an
agreement for the use of such a mascot by a public school. This law
applies only to the use of Native American mascots, singling out the race
by name. The law allows the use of a Native American mascot that
represents, is associated with or is significant to the Native American
tribe entering into the agreement. ER1-2. The meaning of this term is
one of the core issues in this case.
The legislation required the state board of education to adopt rules
implementing this law. Although SB 1509 requires that the agreement
between a tribe and a school district must be approved by the State
Board, the law gives the board no discretion in approving the
agreement.
The State Board held several hearings and meetings concerning
implementation of SB 1509. In December 2015, the State Board held a
first reading on a proposed rule that would have created an exception for
11 http://www.ode.state.or.us/superintendent/priorities/native-american-

mascot-report.pdf. App. at A7-8. This is a partial list.

namesake mascots, those that include the name of the tribe in the
mascot title or the schools name.12 For example, the Siletz Warriors
mascot would be a namesake mascot because it would represent the
Siletz tribe, (assuming that the tribe agreed to the use of this mascot).
One month later, on January 21, 2016, the State Board adopted a
rule and resolution allowing the use of any Native American mascots,
including ones named Redskins, Savages, and Indians, if a single
Oregon tribe agrees to the use of such a mascot. ER6-8. As example of
a race-based Native American mascot would be the Roseburg Indians.
Roseburg High School would be entitled to retain a name that
represents an entire race rather than a mascot name that represents the
local tribe, the Cow Creek Band of the Umpqua Indians (Roseburg is not
the name of an Oregon tribe).
The resolution accompanying the 2016 Rule gave the boards
rationale for adopting a rule restricting the use of Native American
mascots. Two clauses of the resolution state:
WHEREAS, symbolizing a complex and varied race with a single
narrow representation of a male warrior distorts and misrepresents
that race to both Native Americans and non-Native Americans and
communicates an inaccurate portrayal of American Indian heritage;
and
WHEREAS, more than 100 organizations across the nation have
endorsed the discontinuation of Native American mascots, including
12 App. at A3-5.

the National Indian Education Association, Oregon Indian Education


Association, the Society of Indian Psychologists, the Affiliated Tribes
of Northwest Indians, and the US Commission of Civil Rights, have all
endorsed the elimination of the use of Indian sports mascots.
ER9-10. This language is identical to the language in the 2012
resolution.
The 2016 Rule delegates to a single Oregon tribe authority to make a
determination that the mascot represents the tribe. There are no
provisions in the rule to require the consenting tribe to hear or consider
the opinions or arguments of other Oregon Native American tribes, tribes
located outside Oregon, or individual Native American Oregonians
regarding whether the mascot image, logo, or name are representative
of that consenting tribe. Instead the 2016 Rule states that the tribe
entering into the agreement determines that the districts mascot
represents, is associated with or is significant to the tribe. . . . OAR 581021-0047. ER at 7. In other words, the State Board will not consider
arguments from citizens (including Native American Oregonians from
tribes other than the consenting tribe) that a mascot or image does not
represent the consenting tribe, but instead represents an entire race or
another tribe.

ASSIGNMENT OF ERRORS
I.

The State Board erred in interpreting SB 1509 to permit racebased Native American mascots in public schools.

II.

If the State Board properly interpreted SB 1509 as requiring it to


approve race-based Native American mascots in public
schools, then both SB 1509 and the 2016 Rule violate the equal
protection provisions of the Oregon and United States
Constitutions.

III.

If SB 1509 delegated to the State Board the decision to


determine whether or not to permit race-based Native American
mascots in public schools, then the State Board erred in
adopting a rule that permits race-based Native American
mascots. Such a rule violates the equal protection provisions of
the Oregon and United States Constitutions.

Summary of Argument
On the surface, this case is about the use of Native American
mascots in Oregon public high schools, a seemingly innocuous issue.
But the real question is whether this Court will uphold state action that
isolates and treats one race different from all other races.
At issue is SB 1509 and a rule passed by the State Board of
Education to implement SB 1509. In both cases, the state has
authorized racial Native American mascots in public schools. The racial
nature of the authorization is explicit unless the Court holds that the law
and the rule should be defined more narrowly.
The following is a summary of the analysis that the Court must
perform in this case.

10

11

ARGUMENT
Historically, a stereotypical Native American has been used as a
mascot by sports teams, including a number of public schools in
Oregon. This has become an issue within the nation, involving public
school, college, and professional sports teams. The issue of Native
American mascots in Oregon public schools has been a controversial
matter for a decade, resulting in a rule adopted by the State Board in
2012 banning the use of Native American mascots in public schools,
legislation in 2014 creating an exception to the ban, and a rule
modification adopted by the State Board in 2016 to implement the
legislative exception.
Ultimately, this case turns on whether the legislature intended to
adopt a namesake exception (one that is specific to a particular Oregon
tribe, for example, the Klamath) or a race-based exception (one that
would apply to all Native Americans with the approval of one of the nine
federally-recognized tribes in Oregon, for example, the Banks Braves,
where the Grand Ronde Tribe would consent to the use of the name
Braves, even though Banks is not a tribal name).

12

If the legislature adopted a race-based exception, it is necessary


to determine if this exception violates the equal protection provisions of
the Oregon and United States Constitution.
Under ORS 183.400, the Court must consider the following issues
in the following order:
1. Whether there were any procedural issues in the rulemaking,
2. Whether the substance of the 2016 Rule exceeds the statutory
authority contained in SB 1509 because SB 1509 intended only as
a namesake exception,
3. Whether SB 1509 is unconstitutional because it adopts a racebased exception to the Native American mascot ban, 13 and, finally,
4. Whether the 2016 Rule violates the equal protection provisions of
the Oregon and United States Constitution because it authorizes a
race-based exception to the Native American mascot ban.
Planned Parenthood Assn. v. Dept. of Human Resources, 297 Or.
562, 687 P. 2d 785 (1984).
In the instant case, the Petitioner is not raising the procedural
irregularities in the administrative proceedings. Therefore, she will be
addressing only the latter three issues.
I.

The State Board Erred in Interpreting SB 1509 To Permit


Race-Based Native American Mascots in Public Schools.

13 See Gilliam County v. Dept. of Env. Quality, 316 Or. 99, 849 P. 2d 500

(1993) (Court found that portion of enabling statute was unconstitutional,


but found that portion was severable so did not strike down rule).

13

The judicial standard for determining the meaning of a word or words


in a statute is to determine the intent of the legislature. ORS 174.020.
To the extent required to resolve any ambiguity, a court must give
consideration to the following items in the following order:
A. The text of the statute and the context provided by
simultaneously enacted provisions in light of applicable rules of
statutory construction;
B. Legislative history; and
C. General maxims of statutory construction.
PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P2d 1143
(1993).
The appropriate interpretation of SB 1509 is that it authorizes an
exception to the 2012 Rule for only namesake mascots, not for racebased mascots.
A. The Plain Meaning of That Represents, Is Associated with
or Is Significant to the Native American Tribe Entering into
the Agreement Is Limited to Mascots that Represent a
Tribe, Not an Entire Race.
SB 1509 allows an exception to the Native American mascot ban for
a mascot that represents, is associated with or is significant to the
Native American tribe entering into the agreement. ORS 332.075(1)(g).
ER1-2. The plain meaning of the terms represent, associate, and
significant all imply a relationship between the tribe and the name or

14

symbol that the tribe is consenting to be used. In some sense, the


phrase used in SB 1509 implies a cultural, if not legal, ownership of the
images and names to which the tribe consents. The Grand Ronde tribe
simply can not be considered to have an interest in the name Mohawk, a
nation of Native Americans located in the state of New York. Yet, if SB
1509 is interpreted to allow race-based mascots, the Grand Ronde tribe
could enter into an agreement with the Marcola School District to
consent to Mohawk Indians as the mascot for Mohawk High School.
Such a reading would be troubling in three respects: first, it would allow
the Grand Ronde tribe to appropriate the name of another tribe; second,
it would allow the Grand Ronde tribe to consent to the term Indians
which represents all Native Americans, not merely the members of the
Grand Ronde tribe; and third, it would create confusion among Oregon
students regarding the history of Native Americans in Oregon by
implying that the Mohawk nation was an Oregon tribe.
If the legislature intended to allow a single tribe to approve a generic,
race-based mascot such as Indians, Braves, or Redskins, it would have
used the term a Native American mascot instead of a mascot that
represents, is associated with or is significant to the Native American
tribe entering into the agreement.

15

If the Court finds that it is clear from the language of the statute itself
that the legislature intended a namesake exception to the Native
American mascot ban, then it need not consider the legislative history of
the bill. In that case, the Court must conclude that the 2016 Rule
exceeds the statutory authorization and therefore is invalid.
B. The Legislative History of SB 1509 Supports an
Interpretation of a Namesake Exception to the Native
American Mascot Ban.
The legislative history of SB 1509 does not provide a clear statement
on the scope of the exception. However, it can not support the
conclusion that the legislature intended a race-based exception to the
Native American mascot ban. At most, it supports the conclusion that
the legislature left to the State Board to decide the exact nature of the
exception. The better interpretation of the legislative history is that the
intent was to allow the namesake exception.
The members of the legislature who carried the bill in the floor
sessions did not expressly define the term at issue in this case. Sen.
Kruse stated that the bill was to allow the use of mascots closely
associated with the nine federally-recognized Oregon tribes. 14 This
14 Senate

Floor Session, Debate on SB 1509 (2014 Leg.) Statement of


Sen. Kruse. Feb. 14, 2014.
http://oregon.granicus.com/MediaPlayer.php?clip_id=6583 at 1:07:0007.

16

argues for a narrow reading of the exception. On the other hand, Sen.
Kruse spoke in favor of allowing his alma mater to continue to use the
mascot Indians and said the bill would allow schools to keep our
traditions in place. 15
At the Senate Education and Workforce Development Committees
public hearing on the bill, there were no clear statements regarding the
scope of the exception. There was discussion of both the race-based
interpretation and the namesake interpretation. Witnesses who spoke
against the bill indicated that a race-based exception would be contrary
to the positions of American Indian organizations. In particular, a NCAI
representative testified and put into the record the NCAIs resolution and
report on Indian mascots which explicitly adopts the narrow namesake
exception to preserve a tribes sovereignty over its own affairs. NCAI
participated in the negotiations leading to the namesake exception to the
NCAAs ban on Native American mascots. This allows an exception for
college mascots that are named for a particular tribe.16

15 Id. At 1:07:09- 1:09:00.


16 National Congress of American Indians, Resolution #TUL-05-87

(2005) and Ending the Legacy of Racism in Sports & the Era of Harmful
Indian Sports Mascots, NCIA (Oct. 2013) found at
https://olis.leg.state.or.us/liz/2014R1/Downloads/CommitteeMeetingDoc
ument/33771. Certain pages from this document are attached in the
App. at A12-15.

17

Senator Roblan expressed his desire to obtain an exception for a


charter school in his district, which is named for the Siletz tribe.

17

Later

he said, It sounds like this bill does what you did with the NCAA that
allows the local tribe to work with the local school to come up with
appropriate uses either as mascots, imagery or other things because I
look at the Seminoles as a good example to me. . . . To me, its the
same thing [NCAA policy and SB1509].

18

Later comments by Sen.

Roblan suggest that the exception in SB 1509 might be somewhat


different from the NCAA and NCAI policies.
At best, the legislative history indicates that there was no clear
statement on the scope of the exception and therefore the court must
conclude (1) the namesake exception was intended, or (2) the
legislature intended to leave the final decision regarding the scope of the
exception to the State Board.
C. The Court Must Interpret the Native American Mascot
Exception as a Namesake Exception Because a RaceBased Exception Would Be Unconstitutional.
When a court is confronted with two possible interpretations of a law,
only one of which is constitutional, the court must adopt the
17 Sen. Education and Workforce Development public hearing on SB

1509 (Feb. 11, 2014) Sen. Roblan and Se-ah-dom Edmo,Vice President
Oregon Indian Education Association, speaking.
http://oregon.granicus.com/MediaPlayer.php?clip_id=841 at 1:15:231:20:12.
18 Id. At 1:37:00 1:39:00.

18

constitutional interpretation. Gomez v. United States, 490 U.S. 858, 864


(1989); Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 378, 723 P.2d
298 (1986), appeal dismissed 480 U.S. 942 (1987) (before invalidating a
facially overbroad statute, the court is obliged to try to interpret the
statute constitutionally, consistent with its purpose); State v.
Gulbrandson, 470 P. 2d 160 (Or. Ct. of Appeals 1970) citing State v.
Hodges, 88 Or. Adv. Sh. 721, 457 P. 2d 491 (1969); State v. Harmon,
225 Or. 571, 358 P. 2d 1048 (1961); State v. Anthony, 179 Or. 282, 169
P. 2d 587, cert. denied, 330 U.S. 826 (1946).
The following section explains why a race-based mascot exception
is unconstitutional. If the Court finds that a race-based mascot exception
is unconstitutional, then it should determine that the correct
interpretation of SB 1509 is that it permits only namesake exceptions.
Then it must find that the 2016 Rule is invalid because it allows racebased mascots.
II.

If the State Board Properly Interpreted SB 1509 as


Requiring the Board To Approve Race-Based Native
American Mascots in Public Schools, Then Both SB 1509
and the 2016 Rule Violate the Equal Protection Provisions
of the Oregon and United States Constitutions.

If SB 1509 is interpreted to allow race-based mascots, it violates the


equal protection provisions of the Oregon and United States

19

Constitutions by singling out Native American mascots for a different


standard than applies to any other racial mascot. 19
Oregonians are acculturated to the use of Native American mascots and
most have not stopped to think about the unacceptability of using a racebased mascot. However, it become obvious if people substitute another
race for Native Americans. The 2016 Rule permits the use of Indians,
Redskins, and Savages as mascots. Would there be any question
about the legislature authorizing the use of Negroes, Blacks, or Coons
for mascots? Would there be any question about a mascot in black face
at a predominately white school? Would there be any question about
whether the State Board could authorize the use of Mexicans,
Wetbacks, or Field Rats for mascots? Would here be any question about
a public school using Asians, Orientals, or Yellowskins or mascots? No.
Using these terms in connection with a public school simply causes
ones toes to curl in abhorrence. Ergo, there should be no question
about the use of Indians, Redskins, or Savages as mascots in Oregon
public schools.
One question that may be asked is how this is different from the use
of ethnic mascots, such as the Spartans, Irish, or Scots. There are a
number of distinctions. First, neither the legislature nor the State Board
19 Or. Const. Art. 1, section 20; U.S. Const. Amend. XIV, section 1.

20

has distinguished among ethnic groups so there is no equal protection


argument all ethnic groups are treated the same under the law.
Second, the historical experiences, status, and power of American
Indians are vastly different from that of European Americans. Finally,
and most importantly, Native American students have a different color
skin pigment and therefore can be readily targeted by peers. A student
of Scottish or Irish descent is not subject to the same identification.
Additionally, Dr. Frybergs article notes that when exposed to the Notre
Dame Fighting Irish mascot, European-Americans did not suffer a
reduction in self-esteem so the social science research on the impact of
ethnic mascots is different from that or Native American race-based
mascots. Infra, n. 24.
A. SB 1509 and the 2016 Rule adopt a Racial Classification and
Therefore Are Subject to Strict Scrutiny.
When government action is based on a racial classification, it is
subject to strict scrutiny. Loving v. Virginia, 388 U.S. 1, 11 (1967) (the
court noted the very heavy burden of justification which the Fourteenth
Amendment has traditionally required of state statutes drawn according
to race.). The Oregon Supreme Court has found the use of race or
color to be an unacceptable classification for government action. It said:
A class of persons may be singled out and special burdens may be
placed upon it, provided the class manifests characteristics which to a

21

real and substantial extent distinguish it from all other persons and
justify the imposition of the burden. But color, as well as race and
creed, is an unacceptable distinguishing characteristic.
Namba v. McCourt, 185 Or. 579, 583 (1949) (emphasis added).
If SB 1509 is interpreted to permit race-based mascots, it explicitly
creates a racial classification resulting in a different standard for Native
American mascots than applies to any other racial mascot. Although a
mascot is not a person for purposes of the Oregon and U.S.
Constitutions, this law creates a separate standard for those who are
opposed to being represented as a mascot. In this case, many Native
American students and parents, as well as Native American
organizations, are opposed to the use of race-based mascots. Their
rights to challenge the use of a Native American mascot would be limited
by SB 1509. In particular, this would create a nearly impossible burden
for Native Oregonians who are not a member of the local tribe because
there is no provision in the law for a person to appear before the State
Board to challenge whether a particular mascot represents a particular
tribe.20

20 SB 1509 requires the State Board to approve all mascot agreements

that meet the 2016 Rule requirements. The 2016 Rule makes this even
more explicit, stating that the tribe entering into the agreement has sole
authority to determine if the mascot represents the tribe. OAR 581-0210047(4)(b)(A). ER7.

22

Also, the 2016 Rule allows a school to use a racial pejorative,


expressly stating that Redskins and Savages can be used as mascot
names. Although a school may not be able to find an Oregon tribe to
consent to the use of a pejorative, it nevertheless indicates that the state
is abdicating its responsibility to ensure that Native American students
are protected from discrimination. ORS 659.850.
On the other hand, there is no abdication of the states authority to
prevent discrimination in the case of other race-based mascots. If a
public school elected to adopt Hispanics or Africans as a mascot, a
different legal standard would apply to those of Hispanic or African
descent who would like to challenge the adoption of such a mascot.
Because the law and rule contain a suspect classification, they must
be reviewed through strict scrutiny, which requires that the Court find (1)
a compelling governmental interest, and (2) that the means chosen by
the State to effectuate its purpose [are] narrowly tailored to the
achievement of that goal. Wygant v. Jackson Board of Education, 476
U.S. 267, 274 (1986), quoting Fullilove v. Klutznick, 448 U.S. 338, 480
(1980) (Burger, C.J.).
The usual deference given to state legislatures does not apply to laws
affecting suspect classifications. See Cook v. State, 495 P. 2d 768, n. 3
(Or. Ct. of Appeals 1972) (deference to legislature not extended when a

23

question of fundamental rights is at issue), citing Kramer v. Union Free


School District, 395 U.S. 621, 627 (1969) and Harper v. Virginia Board
of Elections, 383 U.S. 663, 670 (1966).
B. The Use of Race-Based Native American Mascots Causes
Harm to Native American Oregonians, Particularly Students,
and Promotes Racial Stereotypes.
One reaction from proponents of the continuation of race-based
Native American mascots is Whats the big deal? They contend that
local schools should be able to pick their own mascots and that the state
has more important issues to address. And they contend that the
majority of Native Americans support the continuation of race-based
mascots.
Contrary to these myths, it is clear that (1) race-based Native
American mascots do cause harm, and (2) many Native Americans
oppose their use.21 More than 100 organizations, including the American
Psychological Association, the American Sociological Association, and
the National Association for the Advancement of Colored People have all
called for the retirement of Native American sports mascots, citing the
harm caused by them. App. at A14.

21 Petitioner is aware of only two of the nine Oregon tribes who have

participated in State Board proceedings in the last two years, suggesting


that the other tribes are not interested in an exception to the Native
American mascot ban.

24

The resolution of the NCAI discusses the harm caused by these


mascots. It notes:
[T]he use of Native American sports mascots, logos, or symbols
perpetuates stereotypes of American Indians that are very harmful.
The warrior savage myth has plagued this countrys relationships
with the Indian people, as it reinforces the racist view that Indians
are uncivilized and uneducated and it has been used to justify
policies of forced assimilation and destruction of Indian culture.
App. at A10.
The report accompanying the resolution notes: In particular, the
savage and clownish caricatures used by sports teams with Indian
mascots contribute to the savage image of Native Peoples and the
myth that Native peoples are an ethnic group frozen in history. App. at
A13.
Both the NCAI report22 and the testimony of Dr. Samuel Henry,23
then Chair of the State Board, on SB 1509 cite the research of Dr.
Stephanie Fryberg,24 who found that all Native American mascots, even
so-called respectful mascots, damage the self-image of Native American
children. NCAI said: [T]heir self-confidence erodes, and their sense of
identity is severely damaged. App. at A13.
22 App. at A13.
23 App. at A16-19.
24 Fryberg, S., H. Marcus, D. Oyserman, and J. Stone, Of Warrior Chiefs

and Indian Princesses: The Psychological Consequences of American


Indian Mascots, BASIC AND APPLIED SOCIAL PSYCHOLOGY 30:208
218 (2008) http://www.indianmascots.com/fryberg--webpsychological_.pdf. App. at A20-30.

25

Just as the court in Brown v. Board of Education, 347 U.S. 483


(1954), considered sociological studies, the court here should consider
the statements by the American Psychological Association 25, the
American Sociological Association,26 and the studies of Dr. Fryberg, et
al., in determining whether there is harm associated with Native
American mascots.
In the House floor discussion of SB 1509, Rep. Reardon explained
why he opposes race-based Native American mascots:
In 2014, there is no place in our educational system for the
intentional degradation of an entire population in the name of
tradition and pastime. The current ban protects Oregon students
and provides socially and psychologically safe learning
environments. This is not me saying this; this is what the
unrepresented Native Americans are saying.
So we should be asking: is it appropriate to expose individual
Native students to mascotting, targeting and bullying for sport,
recreation, and entertainment? Its neither dignified nor viewed as
an honor by Native people.27
There simply is no social science research that supports the theory that
Native American mascots in public schools do no harm. Dr. Frybergs
25 Summary of the APA Resolution Recommending Retirement of

American Indian Mascots, http://www.apa.org/pi/oema/resources/indianmascots.aspx.


26 Statement by the Council of the American Sociological Association on
Discontinuing the Use of Native American Nicknames, Logos and
Mascots in Sport (March 6, 2007) http://www.asanet.org/about-asa/howasa-operates/council-statements/use-native-american-nicknames-logosand-mascots.
27 Oregon House floor session (Feb. 26, 2014)
http://oregon.granicus.com/MediaPlayer.php?clip_id=6569 38:52-39:21.

26

research indicates, even in the case of so-called respectful mascots,


damage to Native American students still occurs.28 The consent of an
Oregon tribe so that only respectful mascots are used will not erase
the harm associated with race-based Native American mascots.
C. The State Has Not Provided a Compelling Reason for the Use
of Race-Based Mascots.
The Courts first step in undertaking a strict scrutiny review of SB 1509
and the 2016 Rule is to determine if the state has identified a compelling
purpose in taking action based on race. There are two instances in
which the United States Supreme Court has found a compelling
government interest: national security during wartime 29 and affirmative
action to remedy past discrimination.30
Neither the legislature nor the State Board has articulated a compelling
reason for allowing the continuation of race-based mascots. If SB 1509
is interpreted to allow such mascots, it is reasonable to conclude that the
governmental interest is to permit local schools to continue use racebased Native American mascots. Certainly, that was the interest
28 Fryberg,

S., H. Marcus, D. Oyserman, and J. Stone, Of Warrior Chiefs


and Indian Princesses: The Psychological Consequences of American
Indian Mascots, BASIC AND APPLIED SOCIAL PSYCHOLOGY 30:208
218, 213 (2008) http://www.indianmascots.com/fryberg--webpsychological_.pdf. App. at A20-30.
29 Korematsu v. United States, 323 U.S. 214 (1944).
30 Grutter v. Bollinger, 539 U.S. 306 (2003).

27

identified by Senator Kruse. In describing the bill on the floor of the


Senate, Sen. Kruse said:
The bill permits school district boards to enter into
agreements with Native American tribes so that schools can
continue to use Native American mascots.31
Allowing a high school to keep its traditional mascot does not rise to the
compelling level of national security in wartime or correcting for past
racial discrimination. In fact, it is the opposite of correcting for past
racial discrimination.
Other reasons have been proffered for the continuation of these
mascots. Rep. Sprenger suggested that requiring schools to enter into
agreements with Oregon tribes will create authentic relationships. 32
It is questionable whether a school district that is forced into negotiations
with a tribe to retain its mascot will develop an authentic relationship or
whether it will instead build additional animosity towards Native
Americans. Assuming, arguendo, that it would result in such
relationships, even Rep. Sprenger admits that it is not the best way to
build them:

31 Senate

floor session (Feb. 14, 2014)


http://oregon.granicus.com/MediaPlayer.php?clip_id=6583 1:04:35-54
(emphasis added).
32 Oregon House floor session (Feb. 26, 2014)

http://oregon.granicus.com/MediaPlayer.php?clip_id=6569 26:00-26:41.

28

So its been said a couple of three times and I agree with it,
that this is not the best way to grow these relationships, that
this is not the best way to educate folks. Okay, I wouldnt
disagree with that.33
If the legislature is interested in promoting authentic relationships
between Oregonians and Oregon tribes, there are plenty more effective
ways to do so. It does not require the retention of race-based mascots.
Because the state has failed to present a compelling reason for the use
of race-based Native American mascots, SB 1509 and the 2016 Rule
can not meet the high standard required to justify treating one race
differently from others. Therefore, they are unconstitutional.
Arguably, there is another grounds that may be offered to justify an
exception to the Native American mascot ban: tribal sovereignty. The
Grand Ronde Tribe has argued that it should be permitted to consent to
the use of Native American mascots and that other Native American
Oregonians should trust Grand Ronde to make a culturally
appropriate decision when approving Native American mascots. 34
However, the tribe has not provided any legal authority for its right to
appropriate the right of all Native American Oregonians to consent to a
mascot that represents an entire race.
33 Id. at 46:37-51.
34 Oregon Senate Education and Workforce Development Committee

Public Hearing on SB 1509 (Feb. 11, 2014) (J. Martin for Grand Ronde
tribe), http://oregon.granicus.com/MediaPlayer.php?clip_id=841 1:22:1136.

29

Of course, the issue here is not what sovereign tribes can do, but
what Oregon public schools can do. Therefore, it is not a matter of tribal
sovereignty whatsoever. Even assuming that this is compelling reason
for the legislature to approve an exception to the Native American
mascot ban, as discussed below, a race-based exception is not narrowly
tailored to achieve the goal of protecting the tribal sovereignty of
individual Oregon tribes.
6. If the Compelling Grounds for State Action Is To
Preserve Tribal Sovereignty, a Race-Based Exception Is
Not Narrowly Tailored as Required by United States
Supreme Court Precedence.
If the Court concludes that the tribal sovereignty of the Oregon
tribes is a compelling reason for allowing Native American mascots in
Oregon public schools, then certainly tribal sovereignty should extend
only to things that are related to a particular tribe. In this case, allowing
tribes to approve namesake mascots is narrowly tailored to achieve that
interest. Namesake mascots properly balance the interests of individual
Oregon tribes with the interest of the broader public in protecting Native
American students from the stereotyping, targeting, and bullying that
result from race-based mascots. Additionally, it enhances safety for all
minority students and teaches all Oregon school children respect for all
races.

30

III.

If SB 1509 delegated to the State Board the decision to


determine whether or not to permit race-based Native American
mascots in public schools, then the State Board erred in
adopting a rule that permits race-based Native American
mascots. Such a rule violates the equal protection provisions of
the Oregon and United States Constitutions.
If the Court finds that SB 1509 delegated to the State Board

whether to adopt a race-based or namesake exception to the Native


American mascot ban, then the board erred in adopting the racebased exception.
The analysis of the unconstitutionality of a race-based exception is
fully explored in the previous section of this brief.
CONCLUSION
For the above-stated reasons, Petitioner requests that the Court find that
the 2016 Rule is invalid.

Respectfully submitted,
________________________
Jennifer K. Walter
Petitioner

31

CERTIFICATION OF COMPLIANCE
WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS

Brief Length
I certify that
(1) this brief complies with the word-count limitation in ORAP 5.05(2)(b)
and
(2) the word count of this brief (as described in ORAP 5.05(2)(a)) is
_________ words.
Type Size
I certify that the size of the type in this brief is not smaller than 14 point
for both the text of the brief and footnotes as required by ORAP 5.05(2)
(d)(ii) and 5.05(4)(g).

_________________________
Jennifer K. Walter

32

PROOF OF SERVICE
I certify that on July 27, 2016, the original foregoing Petitioner's Brief
was filed with the Appellate Court Administrator.
I further certify that on July 27, 2016, copies the foregoing Petitioner's
Brief were deposited in the United States Post Office at Salem, Oregon,
with first class postage prepaid thereon addressed to:
Denis Fjordbeck
Department of Justice
400 Justice Building
1162 Court Street
Salem, OR 97310
and
Cindy Hunt
Oregon State Board of Education
255 Capital St NE
Salem, OR 97310
____________________
Jennifer K. Walter