dissenting.
Harvey Scott Elementary School permitted the Boy Scouts to come into the school during school hours and recruit its students. Not only did the school give the Scouts access to its students, it required the students to attend the *319Scouts’ recruiting session. During that session, the Scouts invited the children to join the Scouts. They did not say, although it was true, that only those children who shared the Scouts’ religious views could join. That distinction only became apparent later on. I would hold that an apparently facially neutral offer that, in operation, turns out to discriminate on the basis of religion violates ORS 659.850(2). I respectfully dissent from the majority’s contrary holding.
ORS 659.850(2) provides that no person “shall be subjected to discrimination in any public elementary * * * program or service [or] school * * * activity.” For the purposes of that subsection,
“ ‘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 * * * religion [.]”
ORS 659.850(1). In holding that no statutory violation occurred, the majority notes that, when the Boy Scouts made their recruitment offer during the school lunch period, the offer ostensibly was open to all children. Only later, off the school grounds, did the children whom the Scouts had recruited learn that the offer, in fact, extended only to those children whose religious beliefs agreed with the Scouts. It follows, the majority concludes, that no discrimination occurred “in [a] public elementary * * * program or service [or] school * * * activity” (emphasis added); according to the majority, the discrimination occurred only at a later time, apart from any school activity.
The majoritys conclusion is difficult to square with the statutory definition of discrimination. That definition is not limited to overt acts of discrimination that occur in a public school program, service, or activity, as the majority’s opinion appears to assume; it also includes “any act that is fair in form but discriminatory in operation.” ORS 659.850(1). That definition assumes that an act that occurs in a public school program, service, or activity may appear neutral when made. It also recognizes that that apparently neutral act may turn out to be discriminatory in operation.
*320The Scouts’ offer falls squarely within that statutory definition. There is no dispute that, on its face, the offer to join the Scouts was “fair in form.” It appeared to be open to all the elementary school children without limitation. However, that apparently neutral offer was, in fact, limited at the time the Scouts made it to those school children who shared the Scouts’ religious views. That offer, both in fact and in operation, divided the elementary school children into two groups: those whose religious views agreed with the Scouts’ views and those whose views did not. The fact that the discriminatory nature of the offer only became apparent later neither diminishes its discriminatory nature nor takes it out of the definition of discrimination in ORS 659.850(2). That definition of discrimination recognizes that an apparently neutral act may, in operation, turn out to be discriminatory precisely as the Scouts’ offer did.
Because I would hold that the act of making the offer during a mandatory school session subjected the elementary school children to discrimination in a public school activity in violation of ORS 659.850(2), I respectfully dissent.1
Because the school required the children to attend the recruiting session, this case does not present the question whether permitting the Scouts to make the same offer during a voluntary recruiting session would subject the children to discrimination within the meaning of ORS 659.850. Nor does it raise the question whether presenting information about the Scouts or other groups as part of the school curriculum would violate ORS 659.850.