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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

MARGARITA VEJO, 

Plaintiff, 

vs. 

PORTLAND PUBLIC SCHOOLS, a 

public entity; ROBERTA COOPER, 

individually and in her official capacity; 

PETRA CALLIN, individually and in 

her official capacity; LEWIS & CLARK 

COLLEGE, an Oregon public benefit 

corporation; and DOES 1 THROUGH 50, 

inclusive, 

Herbert G. Grey 

Attorney at Law 

Defendants. 

4800 SW Griffith Drive, Suite 320 

Beaverton, OR 97005 

Micah D. Fargey 

Fargey Law PC 

5 Centerpointe Drive, 4th Floor 

Lake Oswego, OR 97035 

Attorneys for plaintiff 

No. 3:14-cv-01656-AA 

OPINION AND ORDER 

Case 3:14-cv-01656-AA Document 80 Filed 09/06/16 Page 1 of 46
Michelle B. Smigel 

Cody J. Elliott 

Miller Nash Graham & Dunn LLP 

111 SW Fifth A venue, Suite 3400 

Portland, OR 97204 

Attorneys for defendants Portland Public Schools, Roberta Cooper, and Petra Callin 

Damien T. Munsinger 

Paula A. Barran 

Barran Liebman LLP 

601 SW Second Avenue, Suite 2300 

Portland, OR 97204 

Attorneys for defendant Lewis & Clark College 

AIKEN, Judge: 

Plaintiff Margarita Vejo was a master's degree student in defendant Lewis & Clark's 

Graduate School of Education and Counseling. As part of this program, she was placed in a 

counseling internship at Madison High School ("Madison"), which is part of defendant Portland 

Public Schools ("PPS"). Defendant Petra Callin ("Callin") is the principal at Madison and defendant 

Roberta Cooper ("Cooper") is a counselor at Madison who served as plaintiffs on-site internship 

mentor. 1 After about two months, Callin and Cooper terminated the internship. Lewis & Clark 

offered to let plaintiff continue in the program but imposed requirements before she would be placed 

in a new internship; those requirements would have delayed her graduation at least nine months. 

Plaintiff opted instead to transfer into a different Lewis & Clark program. She graduated on time 

but without a counseling degree. 

Plaintiff then filed this action, asserting defendants violated her rights under the First and 

Fourteenth Amendments to the United States Constitution; various Oregon state antidiscrimination 

statutes; and Oregon contract law. After discovery, all defendants filed motions for summary 

1 This opinion refers to PPS, Callin, and Cooper collectively as "PPS defendants." 

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Case 3:14-cv-01656-AA Document 80 Filed 09/06/16 Page 2 of 46
judgment and motions to strike. For the reasons set forth below, the motions are granted in part. 

BACKGROUND 

Plaintiff, a Russian-born orthodox Christian, immigrated to the United States as an adult. 

Vejo Deel. ii 3 Apr. 29, 2016; Vejo Dep. 129:7-14. For thirteen years, she worked as a social worker 

for the Immigrant and Refugee Community Organization ("IRCO"), assisting immigrant families 

in their transition to life in the United States. Vejo Deel. iii! 4-6 Apr. 29, 2016. Her colleagues at 

IRCO describe her as a "tireless" advocate whose "quiet sensitivity, compassion and friendliness 

quickly put her clients at ease and engender[ ed] trust." See Grey Deel. Ex. 28 at 3-13 Apr. 29, 2016. 

In the fall of2012, plaintiff enrolled in Lewis & Clark's Graduate School of Education and 

Counseling. Vejo Deel. ii 12 Apr. 29, 2016. Internships are a major component of the master's in 

counseling program at Lewis & Clark. Each student must complete three internships: two "micro" 

(100 hour) internships and one "macro" (full school-year) internship. PPS and Lewis & Clark have 

a contractual internship agreement facilitating the placement of Lewis & Clark counseling interns 

in PPS schools. The interns are not parties to the internship agreement, which gives PPS unilateral 

authority to terminate an internship whenever it deems removal in the school's best interest. Grey 

Deel. Ex. 13 at 2 Apr. 29, 2016. 

The record contains mixed evidence regarding plaintiffs academic performance at Lewis & 

Clark. She earned very good grades in the majority of her courses. See Grey Deel. Ex. 38 Apr. 29, 

2016. She also performed well in her initial "micro" internships; Heather Hadraba ("Hadraba"), the 

Director of the School Counseling Program, stated her only concern was plaintiff might have been 

"taking on a little bit too much" by clocking more than the required 100 hours. Hadraba Dep. 79: 14-

21. However, plaintiff received an incomplete in Ethical and Legal Issues after failing the final; 

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withdrew from Social Justice and Diversity; and required substantial assistance with her writing 

assignments. Pederson Dep. 50:21-51 :11, 127:10-12; Fletcher Dep. 42:6-14; Grey Deel. Ex. 24 at 

2 Apr. 29, 2016. 

Plaintiff also struggled with some of the subject matter in the courses. For example, Vicki 

McNamara ("McNamara"), who taught the Ethical and Legal Issues course in which plaintiff 

received an incomplete, stated "over the years that I've taught this class [plaintiff] stands out to me 

as the most uncomfortable [with discussions of adolescent sexuality.] I don't recall another student 

being that resistant and pushing back." McNamara Dep. 108:10-13. In an email written during 

plaintiffs first year in the program, McNamara documented concerns about plaintiff"seem[ing] out 

of touch and not understanding the culture in which she will work." Grey Deel. Ex. 19 at 2 Apr. 29, 

2016. Earl Scott Fletcher ("Fletcher"), Dean of the Graduate School of Education and Counseling, 

recalled faculty members' concern that plaintiff had expressed "outrage" that a panel oflesbian, gay, 

bisexual, transgender, and queer professionals ("LGBTQ") had been part of the curriculum. Fletcher 

Dep. 42:24-43:5. Fletcher stated the faculty commented on plaintiffs "rigidity and ... complete 

dismissal of the issues that were being raised .... They were concerned that [plaintiff] could make 

no space in her own understanding of the work to benefit from that experience[.]" Fletcher Dep. 

43:8-14. 

At the beginning of her second year at Lewis & Clark, plaintiff was accepted at Madison for 

her yearlong "macro" internship. Cooper selected plaintiff for the position based on her "strong 

background in working with refugees." Cooper Dep. 68:10-23. Cooper's initial impression of 

plaintiffs interactions with students was positive. Cooper Dep. 77 :2-12. Hadraba, plaintiffs Lewis 

& Clark-based mentor, thought plaintiff was doing "good work" when she conducted an early site 

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visit. Hadraba Dep. 146:6-147:23. In late September and early October, however, a series of 

interactions changed Cooper's evaluation of plaintiffs performance. 

In mid- to late September, plaintiff had a conversation with Myriah Day ("Day"), a student 

support coordinator at Madison. Day was describing some of the student clubs at Madison, 

including the Black Student Union. Day Dep. 30:5-31: 1. Plaintiff asked why Madison did not also 

have a White Student Union. Day Dep. 31 :2-3. Day responded that "the White Student Union is 

everywhere, you know, everywhere we go in the world is the White Student Union because white 

is part of this culture that we live in." Day Dep. 31:2-10. The conversation then moved on to 

comparing the graduation rates at Madison to those at Lincoln High School ("Lincoln"), another PPS 

school. Madison and Lincoln are demographically different, a significantly larger percentage of 

Madison's students are low-income and/or of color. Day Dep. 32: 17-23. Plaintiff expressed 

skepticism that demographics adequately explained the different graduation rates. Day Dep. 33:8-

34:2. The conversation left Day concerned that plaintiff lacked cultural competency and a basic 

understanding of educational equity. Day Dep. 34:25-35:21. Because she was worried those 

deficiencies would negatively affect plaintiffs ability to counsel Madison students, Day shared the 

conversation and her thoughts about it with Cooper and Tammy O'Neill, Madison's assistant 

principal. Day Dep. 38:24-39:5. In a different conversation around the same time, plaintiff told 

Cooper students "either want to perform or they don't." Cooper Dep. 79:20-80:15. Like Day, 

Cooper worried plaintiff lacked the understanding of educational equity necessary to work with 

Madison students. Cooper Dep. 79:20-80:15. 

Several weeks after these conversations with Day and Cooper, plaintiff and Erin Hale 

("Hale"), a Madison counselor, counseled a student who was struggling to make social connections. 

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Case 3:14-cv-01656-AA Document 80 Filed 09/06/16 Page 5 of 46
Hale suggested referring the student to the Gay Straight Alliance ("GSA"). Hale Dep. 54: 15-55:4, 

55:23-56:8, 57:4-16. The student left, and plaintiff asked whether Hale planned to inform the 

parents about the ref err al because she assumed "that would be an appropriate first step before making 

a resource like [the GSA] available." Hale Dep. 58: 14-20. Plaintiff shared with Hale she believed 

that homosexuality with "something that was created or a choice" and thus "could be changed." 

Hale Dep. 60:2-10. Hale believed allowing plaintiff to work with students who were "already 

fragile" could be "detrimental" if "her views were to come out." Hale Dep. 65:8-18. Hale feared 

plaintiff would be unable to direct students to the resources they needed. Hale Dep. 77 :20-78: 17. 

The next day, Hale told Cooper about her conversation with plaintiff. Cooper Dep. 81 :21-

82:5. Cooper followed up with plaintiff, who substantially confirmed Hale's account of the 

conversation. Cooper Dep. at 84:2-7. Cooper then engaged plaintiff in a conversation about being 

"judgmental." Plaintiff recalled the conversation as follows: 

Q. Do you remember telling Roberta Cooper that in Russia you don't talk about 

homosexuality, or words to that effect? 

A. I remember I said that in Russian culture we don't talk personal stuff in the 

public, at work. And it doesn't matter if it's homosexual or heterosexual or 

whatever, we just don't talk about it. It's considered very impolite and rude and not 

appropriate. 

Q. And you remember telling Roberta Cooper that? 

A. Yes. 

Q. How did that come up? 

A. When I said that I am a Christian and I have Christian value, she immediately 

said, you judge people. And I say, no, I don't judge. And she said, you Russians 

judge people. I say, no, we don't judge. She said, your Russian government judge 

people. 

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Vejo Dep. 78:8-25. 

Cooper recalled the conversation somewhat differently: 

Q. [W]e started a conversation about being judgmental. 

A. Do you remember who started that conversation? 

Q. It was a part of the conversation. And so I asked her if she felt she was 

judgmental, and she said no. And then we continued along that same topic, and she 

told me at one point that gay people were diseased. 

A. Were those her words? 

Q. Yes. 

A. Okay. 

Q. And I said- I was shocked. And I said something to the effect of, do you 

not see that as a judgment? And she said, no, it's not a judgment, it's a scientific 

fact. And I said, what are you talking about? And she said, you can go on the 

website of the National Center for Disease Control and you can find that information, 

this isn't a judgment. 

And so for me I was trying to search in my mind, because part of the thing 

that I think we have to do as counselors is look at our own bias, and I was trying to 

find a way to help her see that there was a bias here, or at least in my opinion there 

was a bias. 

And so I said - we had also talked - the entire four weeks she brought up 

what happened in Russia a lot. And so I said, and what about - they had just made 

the announcement over the summer that Russia was - had made some 

announcement about gays not being able to participate in the Olympic Games. And 

I said, what about the Russians and their pronouncement that gays can't participate, 

don't you find that judgmental? And she said, it's not the Russians, that's the 

Russian government. And I said, okay, so don't you think that the Russian 

government is being judgmental? And she said, no, that she didn't. 

Cooper Dep. 84:6-85: 16. 

Plaintiff and Cooper agree that, during this conversation, plaintiff brought up rates of 

sexually transmitted infections among gay and bisexual men. Plaintiff referred to a Centers for 

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Disease Control website containing the information, telling Cooper, "once we educate students we're 

supposed to educate with all facts what we know" so that students understand "the available 

consequences" for their choices. Vejo Dep. 133:24-134:12, 135 :5-13. Cooper understood plaintiffs 

statements to mean she believed gays were "diseased." Cooper Dep. 87:12-18. 

When Hadraba next visited Madison, she and Cooper discussed plaintiff. Cooper relayed 

the conversation about LGBTQ students and sexually transmitted infection rates. Hadraba shared 

with Cooper that Lewis & Clark had concerns about plaintiffs "understanding of the support 

networks that are in place for LGBTQ youth." Hadraba Dep. 149:20-150:8. She also mentioned 

plaintiffs struggles with some of the social justice and educational equity concepts could be related 

to the fact she had not yet completed the Ethical and Legal Issues or Social Justice and Diversity 

courses. Hadraba Dep. 150:9-16. 

Cooper spoke to Callin about plaintiff. Together, Cooper and Callin decided the internship 

should be terminated. At no time had they warned plaintiff termination was a possibility. Cooper 

sent Lewis & Clark a letter detailing the reasons for the termination: 

The first concern is her Cultural Competency. In the past week she has 

openly made statements to me and other staff which exhibit a color-blind prejudice 

that is potentially harmful in interacting with our students. School counselors need 

to possess a heightened sensitivity to the role color and poverty play in our student's 

lives to work with and advocate for them effectively. Margarita does not possess 

such skills. 

The second concern is her lack of Social Justice Competency. She has made 

statements to both Erin Hale and me referring to the LGBT population as diseased 

and a "wrong or bad" lifestyle. She has asked for clarification why we have a GSA 

at school and why we would refer students to such a group. 

I feel that for the above reasons we cannot allow Margarita to work with 

students unsupervised. Each counselor at our school has a caseload of 363 students 

so we do not have the time to supervise every interaction between a counseling intern 

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Case 3:14-cv-01656-AA Document 80 Filed 09/06/16 Page 8 of 46
and students. All 3 of our school counselors at Madison graduated from Lewis and 

Clark College from the School of Counseling Program and we expect that counseling 

interns have basic cultural and social justice competency. Since Margarita does not, 

we cannot continue to support her working with our students. 

Grey Deel. Ex. 25. Although the letter was addressed to Lewis & Clark and not to plaintiff, Cooper 

offered to meet with plaintiff to discuss the termination decision. Hadraba told her such a meeting 

would be unnecessary. Cooper Dep. 103:9-17. 

Lewis & Clark informed plaintiff about the termination of the internship. The faculty offered 

her two options. She could remain in the counseling program, subject to requirements that she 

complete the Social Justice and Diversity and Ethical and Legal Issues courses and complete ten 

hours of counseling before being placed in a new macro internship that following academic year. 

Grey Deel. Ex. 27 Apr. 29, 2016. That option would have extended her graduation date and required 

her to incur the cost of an additional year of school. 2 Alternatively, plaintiff could change the focus 

of her degree away from counseling and graduate in two years, as originally planned. Grey Deel. Ex. 

31 Apr. 29, 2016. Plaintiff did not consider these options fair choices; instead, they "sound[ ed] like 

disciplinary/punishment actions." Grey Deel. Ex. 32 Apr. 29, 2016. She elected the second option, 

changed her major, and graduated. Vejo Dep. 298:22-299: 1. 

2 At oral argument, the parties disputed whether plaintiff would have had to incur any 

additional tuition costs; however, they agreed she would have been responsible for nine months 

of additional living expenses. There does not appear to be evidence in the record regarding 

living expenses for the relevant nine-month period during the 2014-15 school year, but it appears 

$20,000 is a rough estimate. Lewis & Clark's Graduate School of Education and Counseling 

website estimates room, board, transportation, and discretionary costs for this period for a ninemonth period during the 2015-16 school year at $19,800, with an additional $1,900 for health 

insurance. https :// graduate.lclark.edu/ offices/admissions/paying_ for _graduate_ school/ (last 

visited Aug. 2, 2016). 

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Case 3:14-cv-01656-AA Document 80 Filed 09/06/16 Page 9 of 46
STANDARDS 

Summary judgment is appropriate if"there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). The moving party has 

the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of 

material fact, the nonmoving party must go beyond the pleadings and identify facts which show a 

genuine issue for trial. Id. at 324. "Summary judgment is inappropriate if reasonable jurors, drawing 

all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's 

favor." Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207 (9th Cir. 2008). 

DISCUSSION 

I. Defining the Summary Judgment Record 

Defendants have filed motions to strike various declarations and exhibits filed by plaintiff. 

Before turning to the motions for summary judgment, I must define the record by resolving those 

motions. All defendants move to strike the declarations of plaintiffs expert, Rodger Bufford, PhD., 

and PPS defendants move to strike a portion of plaintiffs declaration and an Exhibit 12 to the Grey 

Declaration, which is purportedly a copy of the American School Counselor Association ("ASCA") 

standards. Lewis & Clark makes its motion to strike by separate motion (doc. 65), while PPS 

defendants embed their motion to strike in their reply to their motion for summary judgment (doc. 

66). For the reasons set forth below, the motions are granted in part and denied in part. 

A. Bufford Declaration 

An individual may testify as an expert only if he or she qualifies "as an expert by knowledge, 

skill, experience, training, or education." Fed. R. Evid. 702. Defendants challenge Bufford's 

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qualifications, arguing he is not an expert on public school district evaluation of school counseling 

interns; the ASCA standards and whether Cooper was bound by them in her interactions with 

plaintiff; the Oregon Administrative rules on state counselor licensure; or discrimination and 

microaggressions. These arguments define expertise too narrowly and ignore the text and advisory 

committee notes to Rule 702, which "contemplate ... a broad conception of expert qualifications." 

Thomas v. Newton Int'! Enters., 42 F.3d 1266, 1269 (9th Cir. 1994). Bufford has participated in 

accreditation procedures for graduate counseling programs with a special focus on disciplinary 

matters and determining whether students have met core competencies. He also works in a 

department at George Fox University that partners with a master's in counseling program similar to 

the one at Lewis & Clark. Bufford' s qualifications, including his experience and publications, amply 

demonstrate he is qualified as an expert to opine on ethical matters related to the training and 

certification of school counselors. 

Nonetheless, nearly all of Bufford's declarations must be stricken on other grounds. 

Bufford' s primary conclusions - set out separately at the beginning of each declaration - are that 

defendants "exhibited invidious vias and discriminated against Vejo, contrary to ASCA ethical rules 

and [defendants' own] policies" and "interpreted and applied" the language of various documents 

in order to "cover up its own invidious bias and discrimination." Bufford Deel. at 4-5 Apr. 29, 2016 

(doc. 57); Bufford Deel. at 4 May 2, 2016 (doc. 62). In addition, the final paragraphs ofBufford's 

first declaration document "clinically significant" evidence of "trauma" to plaintiff, specifically 

headaches, hypertension, anxiety, and disengagement. Bufford Deel. at 11Apr.29, 2016 (doc. 57). 

These statements must be stricken for four reasons. First, an expert may not give any opinion 

related to intent, motive, or state of mind. See Siringv. Or. State Bd. of Higher Educ. ex rel. Eastern 

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Or. Univ., 927 F. Supp. 2d 1069, 1077 (D. Or. 2013) ("The jury is sufficiently capable of drawing 

its own inferences regarding intent, motive, or state of mind from the evidence, and permitting expert 

testimony on this subject would be merely substituting the expert's judgment for the jury's and 

would not be helpful to the jury.") Accordingly, any statements about defendants' intent (being 

biased or taking steps to cover up bias) must be stricken. Second, an expert may not give an opinion 

on an ultimate legal conclusion. Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 

1016 (9th Cir. 2004). This means any statement that defendants discriminated against plaintiff on 

account of her religion, race, or national origin are improper. Third, contract interpretation is a 

question oflaw, and thus inappropriate subject matter for expert opinion. McHugh v. United Serv. 

Auto. Ass 'n, 164 F .3d 451, 454 (9th Cir. 1999). Thus, any opinion about the correct interpretation 

of ambiguous contractual language is inadmissible. Finally, Bufford may not give any diagnosis or 

hypothesis regarding plaintiffs reaction to purported microaggressions, as he has never examined 

her. 

Bufford' s declarations are admissible only on the limited question whether the actions taken 

and processes followed by defendants conflict with ASCA and other ethical standards and/or with 

defendants' own policies. The jury must be left to draw its own conclusion regarding whether any 

inconsistencies give rise to an inference ofimpermissible discrimination. Plaintiffs citation to Ward 

v. Polite, 667 F.3d 727 (6th Cir. 2012), does not alter this analysis. In Ward, the plaintiffs expert, 

a former chair of the American Mental Health Counselors Association's ethics committee, opined 

that the plaintiffs request to refer a homosexual client to another counselor rather than counsel that 

client was compliant with the ethics code. Id. at 736. That sort of narrow opinion about the 

applicability of ethical rules is precisely the type of statement that remains admissible under this 

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Opinion. 

B. Plaintiff's Declaration 

PPS defendants move to strike the final three paragraphs of plaintiffs second declaration and 

an accompanying set of exhibits. The material at issue relates to a school district intern inviting 

plaintiff to participate in a panel discussion about effective engagement with youth from diverse 

communities. PPS defendants move to strike this material on relevancy grounds.3 Plaintiff responds 

that the invitation to serve on this panel shows she does have cultural competency skills and goes 

to whether the stated reasons for terminating her internship were pretextual. Evidence is relevant 

if "it has any tendency to make a fact more or less probable than it would be without the evidence" 

and "the fact is of consequence in determining the action." Fed. R. Evid. 401. This evidence meets 

the broad test for relevancy. The motion to strike is denied as to plaintiffs declaration. 

C. Copy of ASCA Standards 

Finally, PPS defendants move to strike a document purporting to show the ASCA standards 

governing counselors' relationship with their clients. PPS defendants move to strike due to lack of 

authentication. Plaintiff concedes the document has not been adequately authenticated. 

Authentication is mandatory. See Fed. R. Evid. 901 (a) ("To satisfy the requirement of authenticating 

or identifying an item of evidence, the proponent must produce evidence sufficient to support a 

finding that the item is what the proponent claims it is." (emphasis added)). The content of 

3 PPS defendants also challenge plaintiffs failure to provide this information earlier in 

the discovery process. In light of the fact that the invitation to speak on the panel did not occur 

until January 2016, I am satisfied by plaintiffs explanation that she disclosed it as soon as she 

knew the information was relevant and responsive to discovery requests. See Fed. R. Civ. P. 

26(e)(l)(A). 

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professional standards might be an appropriate subject for judicial notice if, for example, they were 

readily accessible on the organization's public website. See Fed. R. Evid. 201 (b )(2) ("The court may 

judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and 

readily determined from sources whose accuracy cannot reasonably be questioned.") But here, a 

review of the public ASCA website reveals differences between Exhibit 12 to the Grey Declaration 

and the publicly available standards. The Court thus cannot ascertain whether Exhibit 12 is an 

accurate historical version of the standards, and must grant the motion to strike the exhibit. 

II. Motion for Summary Judgment 

With the record so defined, I turn to defendants' motions for summary judgment. I first 

address PPS defendants' broadly applicable arguments regarding the section 1983 claims against 

PPS and against Cooper and Callin in their official capacities. I then address plaintiffs other claims 

in the following order: First Amendment claims; federal equal protection and analogous state-law 

discrimination claims; due process claims; and contract claims. 

A. Federal Claims Against PPS and Official-Capacity Claims Against Cooper/Callin 

A public employee's unconstitutional discretionary actions generally do not accrue to the 

employer. Gillette v. Delmore, 979 F .2d 1342, 1346 (9th Cir. 1992). Municipal liability under 

section 1983 attaches only when "a deliberate choice to follow a course of action is made from 

among various alternatives by the official or officials responsible for establishing final policy with 

respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). 

The same standard applies to official-capacity suits against government employees, because officialcapacity suits are just a different way of pleading an action against the entity. Kentucky v. Graham, 

473 U.S. 159, 169 (1985). 

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Whether an official has final policymaking authority is controlled by state law. Gillette, 979 

F.2d at 1346. Oregon law vests final policymaking authority with the School Board. Or. Rev. Stat. 

§ 332.107. The Portland Public School Board, in tum, has delegated "executive, supervisory, and 

institutional functions to the Superintendent." Portland Public School Board Policy 1.10.010-P.4 

The authority to hire and fire is insufficient to show policymaking authority; the plaintiff must show 

the decision was made by a person with the power to establish policy for the entire entity. Pembaur, 

475 U.S. at 482-83 & nl2. Alternatively, the plaintiff may show a final policymaker ratified both 

the decision and the basis for it. Gillette, 979 F.2d at 1348. 

Plaintiff has not met this standard here. There is no evidence Callin or Cooper had authority 

to establish policy for the entire school district. That they made the decision to terminate plaintiffs 

internship does not create a viable municipal liability claim, because there is no evidence a final 

decisionmaker (i.e. the School Board or the Superintendent) even knew about the decision, much 

less ratified it and the reasons behind it. PPS defendants are entitled to summary judgment on all 

federal constitutional claims against PPS and on all official-capacity claims against Cooper and 

Callin. 

B. First Amendment Claims Against Callin and Cooper 

Plaintiff alleges PPS defendants retaliated against her for expressing certain views, in 

violation of the First Amendment. 5 In order to analyze her free expression claim, it first is necessary 

4 

http://www.pps.net/ cms/lib8/0RO1913 224/Centricity/ domain/219/policies/ 1I1_10_010 _ P .pdf. 

5 Plaintiff also asserts a compelled speech claim. However, plaintiff argues she was 

retaliated against for making statements about her beliefs that the government found repugnant, 

not that she was compelled to make statements she did not want to make. Because she has failed 

to allege compelled speech, PPS defendants are entitled to summary judgment on plaintiffs 

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to determine the appropriate legal framework when an unpaid intern asserts a First Amendment 

retaliation claim. Once the appropriate framework has been identified, I must address whether Callin 

and Cooper are entitled to qualified immunity. 

1. Applicable Legal Framework 

There are three frameworks that could apply to plaintiffs First Amendment claim. The first 

possibility, established in Pickering v. Board of Education of Township High School District 205, 

Will County, Illinois, 391 U.S. 563 (1968), would treat plaintiff as a public employee. Pickering 

requires balancing the employee's free expression rights against the state's interest as an employer.6 

See Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 961 (9th Cir. 2011). The second option, 

established in Oyama v. Univ. of Haw., 813 F.3d 850 (9th Cir. 2015), would treat plaintiff as a 

graduate student seeking professional certification. Oyama requires assessing whether a decision 

to deny certification to a student due to the content of the student's speech was "based on defined 

professional standards, [rather than] on officials' personal disagreement with students' views." Id. 

compelled speech claim. See C.N v. Ridgewood Bd. of Educ., 430 F.3d 159, 189 (3d Cir. 2005) 

("[A] violation of the First Amendment right against compelled speech occurs only in the context 

of actual compulsion.") 

6 PPS defendants contend unpaid interns have no First Amendment rights in the context 

of their internship, arguing it makes little sense to give unpaid interns the same free expression 

rights as permanent, paid employees with state-law property rights in their jobs. This argument 

conflates due process and free speech principles and turns Pickering on its head. Pickering holds 

that when the government acts as employer, it has more power than usual to limit speech because 

"the State has interests as an employer in regulating the speech of its employees that differ 

significantly from those it possesses in connection with regulation of the speech of the citizenry 

in general." 391 U.S. at 568. Put differently, public employees' free speech rights are more 

limited than the free speech rights of the general public. PPS defendants cite no case to support 

their assertion that an unpaid intern in a public school forfeits her First Amendment rights. 

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at 868. Third, it is possible the generally applicable forum-based framework for free expression 

claims applies. See, e.g., Preminger v. Principi, 422 F .3d 815, 823 (9th Cir. 2005) (explaining test 

for content-based restrictions in a nonpublic forum). 

The last alternative is the easiest to reject. The tests articulated in Pickering and Oyama 

acknowledge that the government has a heightened interest in regulating the speech of certain 

individuals based on the special relationships of employer-employee and certifying entity-student. 

The facts in this case may not perfectly fit under the Pickering or Oyama umbrellas, but there are 

clear parallels between the governmental interests at issue in those cases and the interests of PPS 

defendants here. PPS defendants' interests here include running the public schools in an orderly 

fashion, using school resources efficiently, keeping students safe, and protecting themselves from 

liability. It is clear this is a case where the government's interest in plaintiffs speech is qualitatively 

different than in "pure" free expression cases. The typical forum-based framework does not apply. 

Next, it is necessary to determine whether plaintiff was more like a public employee or more 

like a student seeking certification in the context of her PPS internship. 7 In First Amendment cases, 

the Ninth Circuit applies a functional approach to determining whether an individual spoke on a 

matter of public concern. Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir. 2001). This same 

7 Neither the Ninth Circuit nor this court has decided whether an unpaid intern or 

volunteer is a public employee for the purposes of the First Amendment. There is disagreement 

among the federal courts on this question. Compare Beaton v. City of Allen Park, 2015 WL 

3604951, *8 n.1 (E.D. Mich. Jun. 8, 2015) (questioning whether an "unpaid volunteer serving on 

a single City advisory board" was a public employee for First Amendment purposes) with 

Anderson v. McCotter, 100 F.3d 723, 725 (10th Cir. 1996) (stating in dicta that Pickering 

governs volunteer's First Amendment claim whether or not she had full public employee status); 

see also Mathews v. City of South Bend, 2013 WL 2149482, *6-7 (N.D. Ind. May 16, 2013) 

(assuming without deciding that an unpaid volunteer had employee status and applying 

Pickering). 

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pragmatism guides the analysis of whether an individual speaks as a public employee or a private 

citizen Dahlia v. Rodriguez, 735 F.3d 1060, 1069 (9th Cir. 2013). Applying a similar, pragmatic 

approach here, I conclude plaintiffs role at PPS was more analogous to public employee than to 

graduate student seeking certification. Plaintiff was not at PPS to take courses; she was at PPS to 

work directly with students. Although there was a significant learning component to her job, it is 

PPS policy to have counseling interns work with students unsupervised. This renders PPS' s interest 

in limiting counseling intern speech most similar to its interest in limiting the speech of paid 

employees. Accordingly, Pickering supplies the correct framework for analyzing plaintiffs claims. 

2. Qualified Immunity 

"An official sued under [section] 1983 is entitled to qualified immunity unless it is shown 

that the official violated a statutory or constitutional right that was clearly established at the time of 

the challenged conduct." Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). Qualified immunity 

"gives government officials breathing room to make reasonable but mistaken judgments about open 

legal questions. When properly applied, it protects all but the plainly incompetent or those who 

knowingly violate the law." Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). In order to deny 

qualified immunity to an official, "existing precedent must have placed the statutory or constitutional 

question beyond debate." Id. at 741. 

Cooper and Callin are protected by qualified immunity because it is not obvious that 

defendants' alleged actions violated plaintiffs First Amendment rights under Pickering. 8 The Ninth 

8 As the foregoing analysis in Section II.B.1 demonstrates, there is plainly room for 

debate on the correct First Amendment standard to apply. Nonetheless, Cooper and Callin would 

not be entitled to qualified immunity if plaintiff could show their actions violated her First 

Amendment rights under every conceivably-applicable First Amendment framework See Hope 

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Circuit has established "a sequential five-step inquiry" to determine whether an employer's 

restriction on an employee's free expression violates the First Amendment. Johnson, 658 F.3d at 

961. The court must determine 

( 1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff 

spoke as a private citizen or public employee; (3) whether the plaintiffs protected 

speech was a substantial or motivating factor in the adverse employment action; (4) 

whether the state had an adequate justification for treating the employee differently 

from other members of the general public; and (5) whether the state would have 

taken the adverse employment action even absent the protected speech. 

Id (citing Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)). 

The law is not clearly established regarding whether statements like plaintiffs are on matters 

of public concern. "Speech involves a matter of public concern when it can fairly be considered to 

relate to any matter of political, social, or other concern to the community." Eng, 552 F .3d at 1070 

(citations and quotation marks omitted). By contrast, employee speech generally is not protected 

under Pickering when it deals with "individual personnel disputes and grievances and ... would be 

of no relevance to the public's evaluation of the performance of governmental agencies." Id 

(citations and quotation marks omitted). Speech may be on a matter of public concern when it 

addresses "the preferable manner of operating the school system," which "clearly concerns an issue 

of general public interest." Pickering, 391 U.S. at 571. However, whether a public employee's 

speech is on a matter of public concern depends on "the content, form, and context of a given 

statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 148 (1983). "The 

employee's motivation and the chosen audience are among the many factors to be considered in light 

v. Pelzer, 536 U.S. 730, 741 (2002) ("[O]fficials can still be on notice that their conduct violates 

clearly established law even in novel factual circumstances," so long as the government had "fair 

warning that its alleged [action] was unconstitutional.") 

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of the public's interest in the subject matter of the speech." Johnson v. Multnomah Cnty., 48 F.3d 

420, 425 (9th Cir. 1995). 

It is possible to view plaintiffs statements as addressing policy choices regarding how to 

counsel students. Plaintiff (1) stated she thought parents should be informed before a student is 

referred to the gay-straight alliance; (2) suggested teaching sexual education taking into account 

multiple religious perspectives; and (3) referred to information about rates of sexually transmitted 

infection in different population groups. These statements arguably express opinions on the wisdom 

of Madison High's counseling policy and approach to LGBTQ students, topics most people would 

consider "relevan[t] to the public's evaluation of the performance" of the school. McKinley v. City 

of Eloy, 705 F .2d 1110, 1114 (9th Cir. 1983). 

It is equally possible, however, to interpret plaintiffs statements as those of a counseling 

intern working through cognitive dissonance over the differences between her experiences and 

beliefs and the policies in place at Madison. Indeed, this is precisely the interpretation plaintiffs 

counsel urged at oral argument. Plaintiffs counsel stated that plaintiffs questions involved no 

"judgment calls" but rather were good-faith inquiries to a mentor. There is no clearly established 

law holding those sorts of questions are statements on a matter of public concern within the meaning 

of Pickering. Cooper and Callin are entitled to qualified immunity on plaintiffs First Amendment 

claims. 

C. Equal Protection and State-Law Discrimination Claims 

1. State-Law Claims Against Lewis & Clark 

Plaintiff advances three bases for its state-law discrimination claims against Lewis & Clark. 

First, plaintiff asserts claims under Or. Rev. Stat. § 345.240, which addresses discrimination in 

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"career schools." Second, plaintiff contends Lewis & Clark is bound by Or. Rev. Stat. § 659A.403, 

which prohibits discrimination on the basis of race, religion, or national origin in "places of public 

accommodation" as defined in Or. Rev. Stat. § 659A.400(1 ). Third, plaintiff seeks to hold Lewis 

& Clark liable for aiding and abetting PPS defendants' discrimination, in violation of Or. Rev. Stat. 

§ 659A.403. The first and second theories fail as a matter oflaw, while the third cannot survive 

summary judgment due to lack of evidence. 

1. Career School 

Oregon law provides that a "career school" may not "discriminate in giving instruction to any 

person otherwise qualified." Or. Rev. Stat. § 345.240(1). A "career school" is any "private 

proprietary professional, technical, home study, correspondence, business or other school instruction, 

organization or person that offers any instruction or training for the purpose or purported purpose 

of instructing, training or preparing persons for any profession." Or. Rev. Stat. § 345.010(3). The 

statute expressly provides that the provisions governing career schools do not apply, "except as 

provided in [Or. Rev. Stat.§] 345.017, to schools approved by the Higher Education Coordinating 

Commission [("HECC")] to confer or offer to confer academic degrees under [Or. Rev. Stat. §] 

348.606." Or. Rev. Stat. § 345.015(10). Lewis & Clark falls within this carve-out because it is 

approved by HECC to confer academic degrees.9 Nor does section 345.017 bring Lewis & Clark 

back into the definition of "career school." That section explains the licensing requirements for any 

9 See www.oregon.gov/HigherEd/Pages/campuslinks.aspx (listing Lewis & Clark as a 

"private ... institution ... authorized by the HECC Office of Private Postsecondary Education, 

Office of Degree Authorization"). The Court sua sponte takes judicial notice of this listing on 

Oregon's official state website because it "can be accurately and readily determined from sources 

whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2), (c)(l). 

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HECC-approved degree-conferring schools that continue to offer a course or program that does not 

lead to an academic degree. Or. Rev. Stat. § 345.017. It is undisputed that plaintiff was in an 

academic degree program at Lewis & Clark. Lewis & Clark is entitled to summary judgment on the 

discrimination claims brought under Or. Rev. Stat. § 345.240. 

11. Place of Public Accommodation: Lewis & Clark 

The next question is whether Lewis & Clark is a "place of public accommodation." Oregon 

law provides: 

[ A]ll persons within the jurisdiction of this state are entitled to the full and equal 

accommodations, advantages, facilities and privileges of any place of public 

accommodation, without any distinction, discrimination or restriction on account of 

race, color, religion, sex, sexual orientation, national origin, marital statue or age if 

the individual is of age ... or older. 

Or. Rev. Stat. § 659A.403(1). With respect to places owned by non-public entities, a "place of 

public accommodation" is "[a]ny place or service offering to the public accommodations, 

advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, 

transportation or otherwise." Or. Rev. Stat. § 659A.400(1)(a). As relevant here, the question is 

whether Lewis & Clark meets this definition without falling into the exception set forth in Or. Rev. 

Stat. § 659 A.400(2)( e ), which excludes"[ a ]ny institution, bona fide club or place of accommodation 

that is in its nature distinctly private." 

Oregon courts apply a two-step inquiry to determine whether a private entity is a place of 

public accommodation under the statute. First, the court must ask whether the entity is a "business 

or commercial enterprise." Lahmann v. Grand Aerie of Fraternal Order of Eagles, 121 P.3d 671, 

67 4 (Or. Ct. App. 2005). If so, the court must determine whether the entity's "membership policies 

are so unselective that the organization can fairly be said to offer its services to the public." Id. A 

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series of cases have mapped the contours of this provision. See, e.g., Roberts v. Legacy Meridian 

Park Hosp., Inc., 2014 WL 294549, *7 (D. Or. Jan. 24, 2014) (hospital was public accommodation 

and was bound by nondiscrimination requirements of state law with respect to granting clinical 

privileges to licensed neurosurgeons); Schwenk v. Boy Scouts of America, 551P.2d465, 469 (Or. 

1976) (Boy Scouts are not a place of public accommodation because they do not offer goods or 

services to the public within the meaning of the Act, i.e., some sort of business or commercial 

enterprise offering the goods or services); Lahmann, 121 P.3d at 676 (Or. Ct. App. 2005) (private 

fraternal organization was a place of public accommodation due to its very loose membership 

requirements, which rendered it de facto open to the public). 

Most instructive here is Abukhalaf v. Morrison Child & Family Servs., 2009 WL 4067274 

(D. Or. Nov. 20, 2009). In Abukhalaf, this Court had to determine whether the defendant 

organization, a recruiter of foster parents for the state, was a public accommodation. Id at *7. The 

Court cited Graham v. KoldKist Beverage Ice, Inc., 607 P.2d 759, 762 (Or. Ct. App. 1979), in which 

the Oregon Court of Appeals held a "corporation engaged in the business of selling commercial 

equipment at wholesale for use in retail stores, was not engaged in the sale of goods 'to the public' 

within the intended meaning of the public accommodation act." The Court then analogized the 

foster-parent recruiter to the wholesaler in Graham: 

Similarly, like the wholesaler who advertises its wares to retailers, but retains 

discretion as to which retailers it sells to, defendant advertises the opportunity to 

become a foster parent to the public, but then ultimately retains discretion as to which 

applicants are chosen. Both are selective, rather than nonselective, processes. Both 

involve discretion, and indeed the selection of a foster parent candidate seems at least 

as selective as the selection of retailers, if not more so. 

Abukhalaf, 2009 WL 4067274 at *7. Public accommodations laws did not apply because "the 

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evidence in this record demonstrates that foster parenting through defendant is not a de facto public 

opportunity. It is a highly selective process." Id. 

I find the analysis in Abukhalaf persuasive and apply it here. Lewis & Clark meets the first 

part of the public accommodation test because it is a commercial or business entity. However, its 

membership processes are not so unselective that it is de facto open to the public. Plaintiff 

challenges Lewis & Clark's claim of selectivity, asserting that two-thirds of applicants to its 

counseling program are accepted. Even assuming that is the case, 10 a program that rejects one-third 

of its applicants is not de facto open to the public. Lewis & Clark is entitled to summary judgment 

on plaintiffs claims under Or. Rev. Stat. § 659A.403. 

111. Aiding and Abetting PPS's discrimination 

PPS retained unilateral authority to terminate plaintiffs internship. No evidence in the 

record suggests that Lewis & Clark was aware PPS was contemplating terminating plaintiffs 

internship or played a significant role in the termination. The letter to Lewis & Clark explains PPS' s 

decision, but it is not phrased as a request. Lewis & Clark is entitled to summary judgment on 

plaintiffs aiding and abetting claim. 

2. State-Law Claims Against PPS Defendants 

Plaintiffs asserts two types of state-law discrimination claims against PPS defendants. First, 

plaintiff contends she is protected from discrimination under Or. Rev. Stat.§ 659A.350(3)(b ), which 

10 Plaintiff purports to support this assertion with a citation to the record. Pl.' s Opp. L&C 

Mot. Summ. J. at 22 (doc. 54). Although the cited exhibit contains information about the 

number of students admitted to the counseling program each year (thirty-two), it does not appear 

to state what percentage of applicants are admitted or how many applications the school typically 

receives. Fargey Deel. Ex. L 44:3-8 (doc. 55-1 at 79). 

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gives individuals who meet the statutory definition of "intern" the employment protections set forth 

in Or. Rev. Stat. § 659A.030. Second, she argues Madison is a place of public accommodation 

pursuant to Or. Rev. Stat. § 659A.400(1), and that she is therefore protected from discrimination 

during her time at Madison pursuant to Or. Rev. Stat.§ 659A.403(1). I conclude plaintiff does not 

meet the statutory definition of intern, but that her state-law discrimination claims against PPS 

defendants may proceed because Madison is open to the public within the meaning of the statute. 

1. Discrimination Protection for Interns 

Oregon law extends the anti-discrimination protections in section 659A.030 to interns only 

if "the employer and the person performing the work agree in writing that the person performing the 

work is not entitled to wages for the work performed." Or. Rev. Stat. § 659A.350(3)(b). It is 

undisputed that there was never a written agreement between plaintiff and PPS. Instead, the written 

agreement governing plaintiffs internship was between PPS and Lewis & Clark. 

Plaintiff urges the Court to override the absence of a written agreement between her and PPS 

as a technicality, arguing she was a clear third-party beneficiary of the PPS-Lewis & Clark intern 

agreement. She also points to the broad legislative declaration that the purpose of Oregon's 

unemployment protections 

is to encourage the fullest utilization of the workforce by removing arbitrary 

standards of race, color, religion, sex, sexual orientation, national origin, marital 

status, age or disability as a barrier to employment of the inhabitants of this state, and 

to ensure the human dignity of all people within this state and protect their health, 

safety and morals from the consequences of intergroup hostility, tensions and 

practices of unlawful discrimination of any kind based on race, color, religion, sex, 

sexual orientation, national origin, martial status, age, disability, or family status. 

Or. Rev. Stat.§ 659A.003. 

Neither argument permits this Court to ignore the plain text of the statute. In Oregon, "the 

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cardinal rule of statutory construction is that a court shall pursue the intent of the legislature if 

possible." State v. Gaines, 206 P.3d 1042, 1047 (Or. 2009). The first step in this process is "an 

examination of text and context." Id. at 1050. The text of section 659A.350(3)(b) brings interns 

under the protections of section 659A's employment laws only if there is a written agreement 

between the intern and the employer. Because no such agreement existed here, plaintiff was not an 

"intern" within the meaning of the statute. PPS defendants are entitled summary judgment on 

plaintiff's section 659A.030 claims. 

11. Place of Public Accommodation: Madison 

Plaintiff also contends Madison, a public high school, is a place of public accommodation 

pursuant to § 659A.400(1). After carefully reviewing the 2013 amendments to the statutory 

definition of "place of public accommodation," I agree. 

As explained above, the longstanding definition of "place of public accommodation" is 

"[a ]ny place or service offering to the public accommodations, advantages, facilities or privileges 

whether in the nature of goods, services, lodgings, amusements, transportation or otherwise." Or. 

Rev. Stat. § 659A.400(1)(a). In C.O. v. Portland Pub. Schs., 406 F. Supp. 2d 1157, 1172 (D. Or. 

2005), this Court held public schools were not places of public accommodation within the meaning 

of that provision. However, C. 0. does not decide the question presented here, because the statute 

has been amended since C. 0. was decided. 

In 2013, the Oregon Legislature added two new provisions to the statutory definition. See 

2013 Oregon Laws Ch. 429 (H.B. 2668). The law now provides a place of public accommodation 

is also "[a]ny place that is open to the public and owned or maintained by a public body ... 

regardless of whether the place is commercial" and "[a]ny service to the public that is provided by 

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a public body ... regardless of whether the place is commercial in nature." Id § 659A.400(l)(b) 

& ( c ). These definitions remain subject to certain exclusions, including the provision stating that 

a place of public accommodation does not include "[a]n institution, bona fide club or place of 

accommodation that is in its nature distinctly private." Id. § 659A.400(2)(e). 

The public schools are indisputably owned and maintained by a public body. They are places 

and they also provide services. Finally, there is no question that a public school is not "in its nature 

distinctly private." Id. § 659A.400(2)( e ). The question, then, is whether they are open to the public. 

There are good arguments on both sides. In one sense, schools heavily restrict who can access their 

campuses: only students of a certain age may enroll, and only staff, students, and authorized visitors 

are permitted free movement on school grounds. On the other hand, enrollment is open to all 

children in the state seeking to attend public school. 

Whether public schools are places of public accommodation under Oregon law as amended 

in 2013 is a question of first impression. Because the text of the law is ambiguous, it is particularly 

appropriate to consider legislative history. See Gaines, 206 P.3d at 1051 (Or. 2009) (ambiguity is 

not required before a court considers legislative history in interpreting an Oregon statute, but such 

history is generally most helpful in cases where the text is ambiguous). Here, however, the 

legislative history is also ambiguous. The bill containing the 2013 amendments was introduced at 

the request of the Oregon Bureau of Labor and Industry ("BOLI"). Hearing on H.B. 2668 Before 

the H. Comm. on Judiciary, 2013 Leg., 77th Sess. (Or. 2013) (statement of Brad Avakian, 

Commissioner of BOLI). 11 In testimony before the Senate Committee on the Judiciary, Elizabeth 

11 Audio recording at 6:40, http://oregon.granicus.com/MediaPlayer.php?clip id=1815 

(last accessed Aug. 4, 2016). 

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Cushwa, a BOLi representative, used the example of a church renting a gym from a public school 

to illustrate the reach of the law. Hearing on H.B. 2668 Before the S. Comm. on Judiciary, 2013 

Leg., 77th Sess. (Or. 2013) (statement of Elizabeth Cushwa, BOLi representative). 12 In using this 

example, Cushwa was responding to concerns that the amendments might expand the liability of 

private entities by making them places of public accommodation through association with publiclyowned entities. Cushwa explained that a church could not be held liable for discrimination under 

the new amendments simply because it rented a gym from a public entity. Rather, the amendments 

imposed new obligations on the public school, which would be barred from discriminating in making 

rental decisions; if it rented the space to a Methodist church, it would be required to rent it to an 

Episcopal church as well. Senator Jackie Dingfelder used this same example while introducing the 

bill on the Senate floor. Senate Floor Debate on H.B. 2668, 2013 Leg., 77th Sess. (Or. 2013) 

(statement of Senator Jackie Dingfelder). 13 These statements suggest members of the Oregon 

Legislature understood that the amendment would make public schools places of public 

accommodation. 

However, in her testimony to the Senate Committee on the Judiciary, Cushwa also 

acknowledged the analysis of whether a place is one of public accommodation may change 

depending on who was using the space and how it was used. For example, although inmates at a jail 

might not be entitled to the public accommodations law's protections, jails would be considered 

12 Audio recording at 18:15, http://oregon.granicus.com/MediaPlayer.php?clip id=l429 

(last accessed Aug. 4, 2016). 

13 Audio recording at 1 :21 :14, http://oregon.granicus.com/MediaPlayer.php?clip id=6712 

(last accessed Aug. 4, 2016). 

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places of public accommodation with respect to tours given to the general public. 14 This testimony 

leaves open the possibility that public schools are not places of public accommodation with respect 

to students and staff, who must meet certain criteria to be on campus during the school day. 

Having found the text and legislative history ambiguous, I turn to other authorities. The 

Missouri Court of Appeals recently decided public schools were places of public accommodation 

for the purposes of the Missouri's human rights statute. Doe ex rel. Subia v. Kansas City, Mo. Sch. 

Dist., 372 S.W.3d 43, 48-50 (Mo. Ct. App. 2012). In Subia, the defendant school district made the 

same argument advanced by PPS defendants here: that public schools are not open to the public 

within the meaning of the statute because 

members of the general public do not have unfettered and unlimited access to it. ... 

Missouri law contains limits on students' access to public schools based upon age, 

residency, and immunization requirements, and school districts restrict the general 

populace's access to school buildings to protect the safety and welfare of students. 

Id at 49. The court explained that it would have to determine "whether a place of public 

accommodation must be accessible by all members of the public to be 'open to the public."' Id 

The court concluded the answer to this question was no. The court looked to other examples 

of places of public accommodation such as bars, restaurants, and concert or sporting venues, noting 

that "restaurants restrict minors from access to areas in which alcoholic beverages are served and 

exclude persons who do not comply with dress codes. Resorts, movie theaters, concert halls, and 

amusement parks impose age and height restrictions on patrons. Nevertheless, ... these facilities 

[are] 'places of public accommodation.'" Id at 50. Relying on these restrictions, the court held that 

14 Audio recording at 19:10. 19:18, 

http://oregon.granicus.com/MediaPlayer.php?clip id=l429 (last accessed Aug. 4, 2016). 

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"limiting the phrase 'open to the public' ... to mean accessible by all members of the populace 

would be contrary to the legislature's intent and would effectively nullify the prohibition against 

discrimination in public accommodations." Id at 49-50. The Subia court was interpreting a 

Missouri law according to Missouri principles of statutory interpretation, and its holding and 

reasoning are not binding in this Court. Nonetheless, I find the analysis persuasive and consistent 

with the Oregon courts' framework for interpreting statutes. 

Finally, I note that Oregon's law prohibiting discrimination m places of public 

accommodation is a remedial statute. Therefore, to the extent it is ambiguous, it should be 

interpreted liberally "to promote the beneficial results intended" - i.e., the prevention of 

discrimination. Newell v. Taylor, 321 P.2d 294, 297 (Or. 1958). With this canon of statutory 

construction in mind, I conclude public schools are places of public accommodation pursuant to Or. 

Rev. Stat. § 659A.400(1), as amended in 2013; accordingly, plaintiffs claims against PPS 

defendants pursuant to Or. Rev. Stat. § 659A.403 are legally viable. 

3. Merits of Discrimination Claims 

I now turn to the merits of plaintiffs discrimination claims. The legally viable discrimination 

claims are ( 1) equal protection claims under the Fourteenth Amendment against Cooper and Callin 

in their individual capacities; and (2) state-law discrimination claims against PPS defendants 

pursuant to Or. Rev. Stat. § 659A.403, which prohibits discrimination on account ofrace, religion, 

or national origin in places of public accommodation. 15 

15 Plaintiff initially pleaded aiding and abetting claims against Cooper and Callin, but now 

voluntarily withdraws those claims. PPS Mot. Summ. J. at 45 n.12 (doc. 47). 

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1. Legal Standards 

"The Equal Protection Clause of the Fourteenth Amendment commands that ... all persons 

similarly situated should be treated alike." City oj Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 

439 (1985). In other to prevail on her Fourteenth Amendment claim, plaintiff"must first prove that 

the defendants purposefully discriminated against her" because of her race, national origin, or 

religion. Lowe v. Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985). PPS contends that, in order to 

survive summary judgment, plaintiff must make out a prima facie case of discrimination under the 

test for discrimination under Title VII of the Civil Rights Act, which requires a plaintiff to show (1) 

she belongs to a protected class; (2) she was performing her work satisfactorily; (3) she suffered an 

adverse action; and (4) others not of her protected class were treated more favorably. McDonnell 

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This is not quite correct. "[T]here is a very 

close relationship" between Title VII and equal protection violations, Bator v. State oj Haw., 39 F.3d 

1021, 1028 n.7 (9th Cir. 1994), and decisions addressing these types of claims tend to be 

"remarkably similar," Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 754 (9th Cir. 

2001). Nonetheless, "courts in the Ninth Circuit are not bound by the formal Title VII disparate 

treatment ... framework when trying section 1983 claims." ld Instead, "in order to survive a 

motion for summary judgment by the defendant, a plaintiff must only produce evidence sufficient 

to establish a genuine issue of fact as to the defendant's motivations." Fed. Deposit Ins. Corp. v. 

Henderson, 940 F.2d 465, 471 (9th Cir. 1991). 

The requirements to state a prima facie claim under the state statute are similar, entitling 

persons in Oregon equal treatment in places of public accommodation, "without any distinction, 

discrimination or restriction on account of race, color, religion, sex, sexual orientation, national 

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origin, martial status or age[.]" Or. Rev. Stat. § 659A.403. In adjudicating a claim under section 

659A.403, "the issue is whether [the plaintiff] was treated in an 'unequal' manner because of [a 

protected characteristic] and whether that treatment resulted in an injury[.]" Allen v. US. Bancorp, 

264 F. Supp. 2d 945, 954 (D. Or. 2003). Accordingly, the same evidence sufficient to support a 

genuine issue of material fact as to plaintiffs equal protection claim- evidence that PPS defendants 

terminated plaintiffs internship for an impermissible discriminatory reason - is also sufficient to 

state a prima facie case for violation of the state statute. 

However, plaintiffs state-law discrimination claims, unlike her equal protection claims, are 

subject to the McDonnell Douglas burden-shifting framework. This is because claims of 

discrimination under Oregon law are analogous to Title VII claims rather than Fourteenth 

Amendment claims, and so must be analyzed under the federal procedural law applicable to such 

claims. 16 See Yoakum v. Wells Fargo Nank, Nat'! Ass'n, 2011WL1541285, *7 (D. Or. Mar. 30, 

2011); Gaines v. Nordstrom, Inc., 2006 WL 2711779, *5 (D. Or. Sept. 19, 2006). After a plaintiff 

shows prima facie evidence of discrimination, the burden shifts to the defendant to articulate a 

"legitimate, nondiscriminatory" reason for the termination of the internship. McDonnell Douglas, 

411 U.S. at 802. The burden then shifts back to the plaintiff to show the purportedly 

nondiscriminatory justification was pretextual. Id. at 805. 

16 Oregon courts have rejected the burden-shifting framework for their analysis of 

discrimination claims under Oregon state law. Callan v. Confederation of Or. Sch. 

Administrators, 717 P.2d 1252, 1254 (Or. Ct. App. 1986). Nonetheless, because the McDonnell 

Douglas framework is procedural and not substantive, it must be applied to state claims in 

federal court. See Dawson v. Entek Int'!, 630 F.3d 928, 935 (9th Cir. 2011) (affirming that the 

McDonnell Douglas framework governs analysis of claims of discrimination under Oregon state 

law regardless whether the federal court has diversity or pendent jurisdiction over the state-law 

claims). 

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The analysis of plaintiffs discrimination claims thus proceeds in two stages. First, I must 

determine whether plaintiff has stated a prima facie case of discrimination. If she has, her equal 

protection claims survive summary judgment, and her state-law discrimination claims proceed to the 

next phase of the McDonnell Douglas framework. Second, I must assess (1) whether PPS 

defendants have provided a legitimate, nondiscriminatory reason for terminating plaintiffs 

internship; and (2) whether plaintiff has introduced sufficient evidence of pretext to survive summary 

judgment on the state-law claim. 

II. Prima Facie Case 

The first issue is whether the record contains evidence sufficient to support an inference that 

PPS defendants terminated her internship on the basis of her race, national origin, or religion. I 

conclude it does. 

Taking this evidence in the light most favorable to the plaintiff, as I must at this stage, I 

conclude reasonable jurors could infer that the decision to terminate plaintiffs internship 

immediately, rather than making additional attempts to address the areas of disagreement or explain 

to plaintiff how she needed to change her behavior, was traceable at least in part to PPS defendants' 

beliefs about the ability of a person of Russian origin and/ or orthodox Christian faith to change her 

mind, adjust her behavior, or respect professional boundaries. The primary pieces of evidence 

supporting such an inference are: (1) the fact that PPS defendants made a unilateral decision to 

terminate the internship without ever warning plaintiff that possibility was on the table; (2) the fact 

that plaintiff never had a problematic interaction with a student, and raised her concerns in private 

conversations with PPS staff; (3) Cooper's statement about Russians and/or the Russian government 

being 'judgmental"; and (4) plaintiffs testimony that PPS defendants were aware of her race, 

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national origin, and religion, including her testimony that she asked whether there was room for her 

personal identity as a Russian and a Christian in her role as a counselor. 

PPS defendants contend they are entitled to summary judgment because they made the 

decision to terminate plaintiffs internship due to legitimate concerns about student safety. To be 

sure, school policies on issues like educational equity and the appropriate approach to counseling 

LGBTQ students implicate tremendously important interests, including students' physical and mental 

health. A school with good reason to be concerned a counseling intern will put students' physical 

and mental health at risk is under no obligation to wait until the harm occurs before terminating the 

internship. That said, a public school cannot make a decision to terminate a graduate student's 

internship based on an imagined worst-case scenario resting on cultural and religious stereotypes. 

A jury might conclude PPS defendants reasonably interpreted plaintiffs questions as 

revealing attitudes and biases that placed Madison students at immediate risk. But ajury also might 

conclude PPS defendants concluded plaintiff would be unable to gain cultural competency and/or 

separate her personal beliefs and history from her professional behavior because she is Russian and 

a Christian. Because there is ample evidence in the record from which the jury could draw either 

conclusion, plaintiffs claims PPS defendants unlawfully discriminated against her on the basis of 

race, national origin, and/or religion survive summary judgment. 17 

PPS defendants next assert plaintiffs discrimination claims are barred because she cannot 

overcome the "same-actor inference." Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1096-97 (9th 

17 Cooper and Callin are not entitled to qualified immunity with respect to the equal 

protection claims because it is beyond debate that a public school employee cannot 

constitutionally terminate a student's internship on the basis of the intern's race, national origin, 

or religion. 

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Cir. 2005). The same-actor influence provides that "where the same actor is responsible for both the 

hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of 

time, a strong inference arises that there was no discriminatory action." Bradley v. Harcourt, Brace 

& Co., 104 F.3d 267, 270-71 (9th Cir. 1996). "The same-actor inference is neither a mandatory 

presumption (on the one hand) nor a mere possible conclusion for the jury to draw (on the other.) 

Rather, it is a 'strong inference' that a court must take into account on a summary judgment motion." 

Coghlan, 413 F.3d at 1098 (quotation marks omitted). Plaintiff does not address this argument in 

her response to PPS' s motion for summary judgment. 

Cooper hired plaintiff in June 2013 and recommended terminating the internship in 

September 2013. Both plaintiff and Cooper testified that Cooper knew plaintiff was Russian when 

she was hired. Accordingly, the same-actor inference applies. Nonetheless, I find the presumption 

is overcome here. Based on Cooper's comments about Russians and the Russian government being 

''judgmental," a jury could conclude that Cooper considered the "upside" of plaintiff's Russian 

heritage when she made the hiring decision (international diversity) but only grew to fear a 

"downside" based on that same heritage and/or plaintiff's Christian religion once the internship had 

begun. Plaintiff's equal protection claims survive summary judgment. 

111. Legitimate, Nondiscriminatory Reason and Pretext 

As explained above, PPS defendants have met their burden to articulate a legitimate, 

nondiscriminatory reason for terminating the internship. There remains a question of material fact, 

however, regarding whether that reason was pretextual; as explained, a jury could conclude from the 

evidence in the record that PPS defendants terminated the internship based on a belief that Russians 

and/or Christians are judgmental and unable to separate personal beliefs from professional conduct. 

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Plaintiffs state-law discrimination claim under section 659A.403 survives summary judgment. 

D. Due Process Claim 

PPS defendants are entitled to summary judgment on this claim. Identification of a protected 

liberty or property right is a prerequisite of any Fourteenth Amendment due process claim. Bd. of 

Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972). Plaintiff has identified neither. She 

had no protected property interest in her internship; she had no contract with PPS and PPS retained 

the right to terminate the internship at will. Plaintiff similarly has failed to articulate a liberty interest 

in any damage to her reputation. To assert a "stigma plus" due process claim based on governmental 

defamation, a plaintiff must show "the public disclosure of a stigmatizing statement." Ulrich v. City 

& Cnty. of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002). Plaintiff has not alleged PPS made 

any such statement. PPS defendants are entitled to summary judgment on plaintiffs due process 

claim. 

E. Contract Claims 

Finally, plaintiff asserts claims for breach and contract and breach of the duty of good faith 

and fair dealing against Lewis & Clark. She contends Lewis & Clark's unquestioning acceptance 

of PPS' s decision to terminate her internship, failure to find her an alternative internship to be 

completed the same year, and requirement that she complete counseling and certain coursework 

before beginning a new internship (which delayed her graduation nine months) breached both an 

express promise not to discriminate on the basis of race, national origin, or religion, and an implied 

promise to give every student a fair shot at graduation. She further asserts Lewis & Clark's failed 

to comply with the implied duty of good faith and fair dealing in performing under the contract. 

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1. Existence of a Contract 

The basic framework of a contractual relationship is a promise in exchange for consideration. 

Corbitt v. Salem Gas Light Co., 6 Or. 405, 406 (Or. 1877). It is generally accepted in Oregon and 

in other jurisdictions that the student-college relationship, which involves the payment of tuition for 

educational services, is essentially contractual in nature. See Mangla v. Brown Univ., 135 F.3d 80, 

83 (1st Cir. 1998); Tate v. North Pac. Coll., 140 P. 743, 745 (Or. 1914); see also Hazel Glenn Beh, 

Student Versus University: The University's Implied Obligations of Good Faith and Fair Dealing, 

59 Md. L. Rev. 183, 189 (2000). Oregon law also "recognizes that a student and a private university 

may have a contractual relationship based on the terms contained in publications that the university 

provides to the student." Dauven v. George Fox Univ., 2010 WL 6089077, *16 (D. Or. Dec. 3, 

2010) (citing Tate, 140 P. at 745) (emphasis added). However, the enforceability of provisions in 

handbooks and catalogs depends on the specific facts of each case. See Gibson v. Walden Univ., 

LLC, 66 F. Supp. 3d 1322, 1324-25 (D. Or. 2014)(collectingcases). The relevant inquiry is whether 

a party's "communications and overt acts" suggest it "manifested assent" to be bound by a promise. 

Kabil Developments Corp. v. Mignot, 566 P.2d 505, 508-09 (Or. 1977). "Whether a statement or 

act is a manifestation of assent is a question of fact." Martin v. Comcast of Cal./Col./Fl/Or., Inc., 

146 P.3d 380, 388 (Or. Ct. App. 2006) (ellipses and quotation marks omitted). 

Here, plaintiff has introduced ample evidence of a contractual relationship with Lewis & 

Clark: she paid tuition in exchange for educational services. Plaintiff asserts the terms of that 

contractual relationship are defined, in part, by documents developed by Lewis & Clark, including 

the Graduate School of Education and Counseling Program's Student Handbook and the 2012-13 

Course Catalog. See Hadraba Deel. Ex. 1 & 3 (doc. 44). Specifically, plaintiff points to a 

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"Nondiscrimination Statement" in the Course Catalog, which reads: 

Lewis & Clark adheres to a nondiscriminatory policy with respect to employment, 

enrollment, and program. Lewis & Clark does not discriminate on the basis of actual 

or perceived race, color, sex, religion, age, marital status, national origin, the 

presence of any physical or sensory disability, or gender expression and has a firm 

commitment to promote the letter and spirit of all equal opportunity and civil rights 

laws[.] 

Hadraba Deel. Ex. 3 at 2. 

Lewis & Clark argues that a general, boilerplate provision such as this one is not enforceable 

by the student in a contract action. In support this argument, Lewis & Clark points to the 

"Disclaimer" printed above the "Nondiscrimination Statement": 

Lewis & Clark College reserves the right to withdraw courses at any time, change the 

fees, change the rules and calendar regulating admissions and graduation 

requirements, and change any other regulations affecting the student body. Changes 

shall become effective when approved and shall apply not only to prospective 

students but also to those who are matriculated in Lewis & Clark college at the time. 

Hadraba Deel. Ex. 3 at 2. 

None of the District of Oregon or Oregon state court decisions cited by the parties address 

whether such a nondiscrimination provision is enforceable in a contract action. However, the 

District of Maine addressed similar questions in Goodman v. President & Trustees of Bowdoin 

College, 135 F. Supp. 2d 40, 56 (D. Me. 2001). In Goodman, the plaintiff, who was white, was 

expelled as a result of a physical altercation with another student, who was Korean. Id. at 44-46. 

The plaintiff brought a number of claims against the university, including a claim for breach of 

contract. He cited two provisions of the Bowdoin Student Handbook in support of his contract 

claim. The first addressed nondiscrimination: 

Respect for the rights of all and for the differences among us is essential to the 

Bowdoin community. Discrimination . . . of others because of race, religious 

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affiliation, gender, age, sexual orientation, physical characteristics, or other 

characteristics has no place in an intellectual community .... Such practices violate 

both the ideals of the College and its Social Code and are subject to appropriate 

disciplinary sanctions. When such incidents violate the statutes of the State of 

Maine, criminal prosecution may be pursued. 

Id. at 56. The court rejected the plaintiffs argument that in expelling him, the university had 

discriminated against him on the basis ofrace in violation of the handbook provision. The provision 

did not bind the university, as its purpose was "clearly" to provide the college with authority to take 

disciplinary action against students who engaged in discrimination. Id. "[N]owhere in this provision 

does Bowdoin assume any responsibility for refraining from discrimination itself or set forth any 

consequences of discriminatory actions in its part." Id. 

The court reached a different conclusion with respect to the other handbook provision cited 

by the plaintiff, which addressed the college's responsibilities in adjudicating student disciplinary 

incidents: 

Bowdoin College acknowledges its responsibility to conduct judicial procedures 

which reflect fundamental fairness. For the purposes of assuring fairness and 

consistency, the College adopts ... protections for students under conduct review ... 

impartial proceedings, the opportunity to provide evidence and witnesses ... and the 

right to a College member, uninvolved with the case, available for personal support 

at the formal Judicial Board hearing. 

Id. at 57. The court found this provision, unlike the nondiscrimination provision, "indicate[d] 

Bowdoin's manifestation of its intent to be bound by the standard of fundamental fairness, the 

requirement of impartiality, and the delineated procedures." Id. 

The defendant college pointed to a reservation clause in the contract, which retained the right 

to "make changes to the areas of course offerings, degree requirements, regulations, procedures, and 

charges." Id. (internal quotation marks omitted). The court found this clause did not permit the 

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college to withdraw or alter its fundamental fairness promise. The court also noted that "it appears 

... that Bowdoin agreed to promote certain principles and abide by certain procedures, and that 

Plaintiff agreed to the possibility that Bowdoin might change the procedures during his years at 

Bowdoin, with the understanding that Bowdoin would consequently be bound by those new 

procedures." Id In other words: the college retained to make certain changes, but until it actually 

made those changes, it was contractually bound to honor the current promises. 

I find the District of Maine's analysis both persuasive and consonant with Oregon contract 

law, and adopt it here. The Nondiscrimination Provision states that Lewis & Clark will adhere to 

a nondiscrimination policy in its "program" decisions and specifically lists religion, race, and 

national origin as protected classifications. It affirms Lewis & Clark's "firm commitment" 

upholding antidiscrimination laws and principles. A juror reasonably could read these statements 

as manifesting an intent to abide by those principles. Nor does the "Disclaimer" necessarily relieve 

Lewis & Clark of this contractual duty. Like the reservation clause in Goode, the Disclaimer 

specifically cabins Lewis & Clark's right to change courses, fees, admissions and graduation 

requirements, and "other regulations affecting the study body." Hadraba Deel. Ex. 3 at 2. A juror 

reasonably could conclude Lewis & Clark retained no right to rescind its nondiscrimination promise 

and begin making discriminatory decisions based on a student's race, national origin, or religion. 

Thus, plaintiff has stated a claim for breach of contract. 

Plaintiff also has stated a claim for breach of the implied duty of good faith in fair dealing. 

In Oregon, thelawimposesthatdutyineverycontract. Bestv. US. Nat. Banko/Or., 739P.2d554, 

557 (Or. 1987). As explained, plaintiff and Lewis & Clark had a contractual relationship even if the 

provisions of the Student Handbook and other materials are not contractually binding. If Lewis & 

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Clark made decisions designed to deny plaintiff a fair chance at obtaining her degree, it breached its 

duty of good faith and fair dealing. 

2. Merits of Contract Claims 

The next question is whether there remain issues of material fact regarding Lewis & Clark's 

motivation in accepting PPS' s termination of the internship and delaying plaintiffs graduation nine 

months by requiring plaintiff to complete certain coursework and counseling before beginning a new 

internship. Plaintiff contends Lewis & Clark's decisions were driven by bias tied to her religion, 

race, and national origin. Lewis & Clark says it made all its decisions by considering only 

appropriate educational and professional factors, i.e., whether plaintiff was demonstrating 

competency in counseling skills. Accordingly, plaintiffs breach of contract and breach of the duty 

of good faith and fair dealing claims rise and fall together. The question is whether she has 

presented more than a scintilla of evidence that Lewis & Clark made its decisions for discriminatory 

reasons. 18 

Plaintiffs evidence of Lewis & Clark's discriminatory motives can be grouped into two 

categories. First, she has introduced evidence that some individuals felt Lewis & Clark was not a 

safe space to express Christian or conservative views. Plaintiff testified that a Lewis & Clark 

professor who was also a Christian and an immigrant told her she was a "perfect candidate for the 

counseling program," but warned her to keep her Christian faith private. Vejo Deel. ,-i 13 Apr. 29, 

18 Plaintiff makes one argument that does not fall under this umbrella: she asserts Lewis 

& Clark's immediate acceptance of PPS's decision to terminate the internship, coupled with its 

subsequent decision to hire Cooper, showed Lewis & Clark was more interested in maintaining 

its relationship with Cooper than with making the right decision for plaintiff. Plaintiff has 

introduced insufficient evidence to permit her to proceed on this theory. 

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2016; Vejo Dep. 239:3-20. She also testified that after a presentationonLGBTQ issues inHadraba's 

class, Hadraba told the students "Christians are wrong" about their approach to sexual orientation, 

gender expression, and gender identity. Vejo Dep. 280:24-281 :7. Plaintiff alleged Hadraba then 

encouraged "every student [to] say something against Christian." V ej o Dep. 2 79: 4-280: 1 7. Plaintiff 

"kept silent because I was ashamed, you know, to say I am a Christian." Vejo Dep. 280:9-17. 

Plaintiff also introduced evidence that in an anonymous evaluation, one Lewis & Clark student 

complained it was not possible to "express differing opinions" in Lewis & Clark counseling courses. 

Grey Deel. Ex. 21 at 3 Apr. 21, 2016. This student described "feel[ing] shouted down" and 

commented that "discussion and feedback isn't a safe space." Id. 

Plaintiff alleges this negative attitude toward Christianity contrasts with the school's 

approach to other groups. For example, she introduced evidence Hadraba invited a speaker to 

present to her class on issues affecting LGBTQ students. Vejo Dep. 279:9-16. The speaker told the 

students if a family was opposed to a certain course of action for religious reasons, to contact her 

organization and they would "find for them another church which would support" the recommended 

action. Vejo Dep. 330:6-18. Plaintiff considered this tantamount to converting students away from 

the church and fomenting distrust of parents. Vejo Dep. 330: 19-331 :6. Plaintiff alleges Hadraba 

"praised" everything the speaker said; plaintiff interpreted this as promoting "only one values, but 

she ignores that other people have another value, like religion people, not necessary Christian, like 

Muslim or other." Vejo Dep. 279:9-16. Plaintiff testified Hadraba then approvingly told the class 

a story about a lesbian friend who took a job with a Christian college "because she wants to change 

the culture ... [and] influence them to accept, you know, their values rather than Christian values." 

Vejo Dep 279:17-22. 

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Second, plaintiff asserts the notes of Lewis & Clark professors documenting concerns about 

her academic progress and competency in core counseling skills reveal bias based on her race and 

national origin running throughout the faculty at the school. This category of evidence includes: 

• Hadraba's testimony she was "concerned" about plaintiffs understanding of racism and 

racial equity after plaintiff shared a joke in class that in Russia, if you call someone black, 

everyone laughs, Hadraba Dep.133 :4-18; 

• McNamara's concern, after a discussion about the role of"gray areas" in counseling, plaintiff 

"just seemed out of touch and not understanding the culture in which she will work," 

referring to United States educational culture; McNamara Dep. 56:22-57:4; 

• McNamara wondering in an email how to address plaintiffs "lack of understanding about 

the enormity of the job" after plaintiff expressed a desire to "fix" the hypothetical client 

described on the final, including a statement that "I'm thinking she is not in the right field 

if this has been her story in other classes. She just seemed out of touch and not 

understanding the culture in which she will work. I sincerely believe that meeting with me 

will not change how she will perform the second time around ... it seems too ingrained in 

her thinking." Grey Deel. Ex. 20 Apr. 29, 2016; and 

• Notes indicating plaintiff was "resistant to [the] subject matter" in her social justice class, 

Grey Deel. Ex. 24 at 2 Apr. 29, 2016. 

This evidence is sufficient to withstand a motion for summary judgment with respect to 

plaintiffs claims of discrimination on the basis of race/national origin and breach of the duty of good 

faith and fair dealing, but not with respect to plaintiffs claim of discrimination on the basis of 

religion. 

Turning first to the religious discrimination claim, plaintiff has introduced evidence to 

support an inference Hadraba expressed hostility toward the Christian church in her classes and 

evidence some Christians did not feel comfortable expressing their beliefs in the Lewis & Clark 

counseling program. However, she has not linked that evidence to Lewis & Clark's decisions 

regarding her coursework and internship. None of the professors' stated concerns about plaintiffs 

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performance address or allude to religion or religious beliefs. Lewis & Clark had a valid and vested 

interest in ensuring plaintiff achieved competency in topics such as educational equity and approach 

to LGBTQ issues. The fact that plaintiff belongs to a religion with tenets addressing sexual 

orientation, gender identity, and gender expression does not convert Lewis & Clark's concern about 

cultural competency on these topics into religious discrimination. 

Plaintiffs contract claims may proceed, however, on a theory of race/national origin 

discrimination. A reasonable juror could conclude from the evidence in the record that Lewis & 

Clark set plaintiff up for failure by neglecting to require completion of Ethical and Legal Issues and 

Social Justice and Diversity before beginning the macro internship and by failing to give plaintiff 

the supportive environment necessary to develop cultural competency. Lewis & Clark admitted 

plaintiff to the counseling program fully aware that she had grown up in Russia. The issues the 

professors identified regarding plaintiffs difficulty understanding United States educational and 

counseling culture are clearly connected to her national origin; the professors understood she might 

be having these difficulties because she had not grown up and attended school in the United States. 

It is reasonable for a school that trains counselors to require those counselors to attain an 

understanding of the specific cultural context in which they will work before granting them a 

counseling degree. But when a school decides to accept tuition dollars from a student who comes 

from a different culture, it takes on an attendant responsibility to work with that student in good faith 

toward mastery of the necessary skill set. 

The record here reveals that Lewis & Clark had concerns about plaintiffs cultural 

competency, as well as about other skills (such as writing), directly related to her national origin. 

Nonetheless, Lewis & Clark awarded plaintiff high grades, accepted her tuition dollars, and placed 

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her in a macro internship. Lewis & Clark did not make Social Justice and Diversity or Ethical and 

Legal Issues prerequisites to beginning the macro internship, nor did it suggest to plaintiff that 

because she grew up in a different culture, she might particularly benefit from completing those 

courses during her first year. A reasonable juror could conclude Lewis & Clark set plaintiff up for 

failure, and that its actions show a lack of good faith and fair dealing as well as discrimination on 

the basis of race/national origin. 

Lewis & Clark argues that the evidence in the record supports the inference that Lewis & 

Clark worked with plaintiff in good faith and in a nondiscriminatory manner. In support of this 

argument, Lewis & Clark alleges that: (1) it gave plaintiff the opportunity to audit one of the courses 

she had not completed for free; (2) it refunded her tuition for the Madison macro internship to defray 

the costs associated with the delay; (3) professors spent significant time working with plaintiff to 

improve her writing and address other deficiencies; and (4) McNamara considered giving her a 

failing grade in Legal/Ethics, but instead opted to give her an incomplete so she still had a chance 

to graduate and become certified as a counselor. A reasonable juror could infer from these facts that 

Lewis & Clark was basing its decisions on legitimate educational/certification concerns and was 

making a genuine attempt to provide a way for plaintiff to gain the necessary competencies to 

graduate. However, as explained, that is not the only way to read the record. Because a reasonable 

juror could conclude Lewis & Clark acted in a discriminatory fashion and denied plaintiff a fair 

chance at graduating, plaintiffs contract claims survive summary judgment. 

CONCLUSION 

PPS defendants' motion to strike (PPS Reply Mot. Summ. J. at 17-23 (doc. 66)) is 

GRANTED as to Exhibit 12 to the Grey Declaration and DENIED as to plaintiffs declaration. 

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Defendants' motions to strike (doc. 65 and PPS Reply Mot. Summ. J. at 17-23 (doc. 66)) are 

GRANTED IN PART and DENIED IN PART as to the Bufford Declaration, as set forth in detail 

in this Opinion. 

Lewis & Clark's motion for summary judgment (doc. 41) and the PPS defendants' motion 

for summary judgment (doc. 47) are DENIED with respect to the Fourteenth Amendment claims 

against Cooper and Callin in their individual capacities (part of the first claim for relief); DENIED 

with respect to the state-law discrimination claims against PPS defendants pursuant to Or. Rev. Stat. 

§ 659A.403 (fourth claim for relief); DENIED with respect to the contract claims against Lewis & 

Clark (sixth claim for relief); and GRANTED with respect to all other claims. 

IT IS SO ORDERED. 

Dated this £~y of September, 2016. 

Ann Aiken 

United States District Judge 

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