EDITORIAL NOTE - With the full support and encouragment of the owner of OregonPrepSports.Net, who does not fully agree with my opinion, I am republishing my blog essay from last week relating to the OSAA and private school ADM multiplier. My boss, nceagle, and I agreed that the topic is of public concern and my opinion should not be silenced because of the objections of a few people.

Outside my blog essays, I will continue to bring you my best efforts in reporting on boys and girls sports, particularly at the small school classification. I have made it my personal goal to never disparage an individual high school student athlete in anything I write. Our children deserve better than what they routinely read about themselves on another forum site.

You will not read anything below that speaks negatively about any teenage student athlete, though some of you will vigorously disagree with my opinion on the proposed polices by some adults which may affect those student athletes. For that, I do not apologize.

2009 marks the 150^th anniversary of Oregon's statehood. When Oregon joined the union in 1859, a substantial number of Americans were considered by their government as counting as only 3/5 of a person for the purpose of apportioning congressional districts amongst the states. Even today, millions of adults experienced and recall a time when American school children were segregated into "separate, but equal" partitions.

This year, the Oregon State Activities Association (OSAA) has charged its Classification and Districting Committee to "investigate and report regarding the feasibility and advisability of ... improving public/private competitiveness." Depending on the outcome of that committee's work, OSAA may possibly recommend counting some Oregon students as fractional persons, segregating students along protected class lines, or both.

Background

OSAA's Classification and Districting Committee is a standing committee with the permanent charge to "make recommendations to the [OSAA] Executive Board regarding classifications and districts for the upcoming four-year time block" using specific criteria. For the past several months, the Committee has been working hard toward that end, garnering much media coverage by those interested in possible revamping of the current six-classification system.

But the OSAA Executive Board also issued to the Committee three additional charges that have not been so highly publicized:

"ADDITIONAL CHARGE: The OSAA Board further requests that the Classification and Districting Committee for 2010-2014 investigate and report regarding the feasibility and advisability of:

A. Increasing league sizes.

B. Improving public/private competitiveness.

C. Adjusting individual ADM based upon socio-economic status."

As it has in its first four meetings, the Committee continues to investigate and request input relating to these additional charges.

Measuring "Competitiveness"

The Committee's charge to explore "improving competitiveness" between public and private schools presumes the two groups are not competitive now. So how exactly does one define and determine objectively such a subjective term as "competitiveness?" That threshold question lies at the heart of this issue and presents an immediate problem for proponents of changes to the status quo.

Some may argue the most obvious measurement of competitiveness is the win-loss record of each school. Games won. League titles won. State championships won. That's all that matters. Others may take a more literal - and liberal - approach. Playing well, but losing nonetheless, is still seen as being competitive. But in this context, "improving competitiveness" is more than likely code speak for redistributing wins and losses through policies intended to artificially ensure just that.

Oregon is not alone or unique in having some athletic directors, coaches and influential boosters complain that private schools win too often, especially in the small-school classifications where the majority of private schools are concentrated. Each side in the debate will point to historical or contemporary data to bolster its position.

For example, this season all six OSAA football championship games were played between public school finalists, producing six public school champions. Critics will correctly note that since there are no private 5A schools, that partial outcome was destined before the season began. In volleyball, two private Catholic schools - Jesuit (6A) and Blanchet (2A) won state titles, while public Crook County (5A), Central (4A), Sheridan (3A) and Imbler (1A) won the remaining classifications.

In 6A boys soccer, an all-public semifinal bracket eventually produced a Grant victory over Westview in the title match. Likewise, public schools Churchill (5A) and Cottage Grove (4A) won their respective classifications. Only in the combined 3A/2A/1A group did private Portland Christian earn its first-ever soccer championship with a 1-0 win over public Umatilla. In 6A girls soccer, only one private school - Jesuit - reached the quarterfinals before being eliminated by public school Lincoln, the eventual state champs. With no private schools in 5A, Bend won that classification. Finally, public Philomath beat private Valley Catholic for the combined 4A/3A/2A/1A title. Improve competitiveness? In whose favor?

In response, private school critics will roll out their reams of data in an attempt to show that private schools win too much and so often that only intervention by the government - in this case OSAA - can level the proverbial playing field. This is a zero-sum game, with a finite, determined number of games, league titles and state championships available to win. Therefore, measuring success of any changes becomes as simple as tracking the before-and-after redistribution of wins and losses between public and private schools.

If the problem truly is that private schools win too often, then the solution is simple and straightforward. OSAA must adopt policies that ensure private schools win fewer games and public schools win more. This is not a novel idea, nor is it reserved for government tax laws or trade policies. In fact, the idea is best illustrated in a scene from the first Star Wars movie.

While aboard the Millennium Falcon, R2-D2 and Chewbacca are engaged in a table game involving miniature action creatures on a chess board. After R2-D2 makes what 3CPO declares to be a lawful move, Chewbacca reacts with his distinctive growl, indicating his displeasure. After listening to the input of Hans Solo regarding the feasibility and advisability of a different approach, 3CPO then advises R2-D2 of a new strategy to guarantee improved competitiveness: "Let the Wookie win."

Multipliers and Segregationists

No discussion of "improving public/private competitiveness" would be complete without addressing the twin issues of "private school multiplier" and separate (but presumably equal) divisions that segregate private from public school athletes. At some point in completing its charge, the Committee will likely wrestle with either or both of these ideas. Each idea has its vocal proponents, ranging from amateur internet posters to professional administrators.

The multiplier is a simplistic idea in which a private school's Average Daily Membership (ADM) is multiplied by a factor arbitrarily ranging from 1.25 to 2.00. The intent and purpose is to artificially inflate the private school's size with the hope that the school will be forced up into a higher classification against presumably tougher competition, resulting in fewer private school victories and championships.

For example, a 1.5 multiplier applied to 4A Marist's ADM of 507 results in a revised, artificial ADM of 760. However, because the current 4A cutoff is 850, the Spartans would nonetheless remain in 4A despite the multiplier. In fact, a multiplier in Oregon would have little effect at the top three current classifications, since the three 6A private schools would remain 6A, while only La Salle Prep (ADM 618) might get bumped up as the only private school in 5A. At the lower classifications, a multiplier will simply move some 2A privates up to 3A, only to be replaced by some 1A privates that are so small, there would be even fewer 2A football, baseball and softball programs than currently exist.

When reversed, the multiplier has a more insidious result. By counting a private student as 1.5 students, the formula reduces each public student to only 2/3 as much. A 1.67 private multiplier results in every Jefferson Democrat counted by OSAA as only 3/5 a person compared to their Central Catholic counterparts. That's not an easy sell in North Portland.

Of the handful of states that have toyed with the multiplier, almost all are in the Midwest and South. Alabama was the first state to adopt a multiplier when it developed a 1.35 multiplier that took effect in the 2000-2001 school year. Georgia soon followed with a 1.5 multiplier until it was repealed by the Georgia Legislature in 2005. Arkansas and Missouri each have multipliers, and each state's multiplier has withstood legal challenges on constitutional grounds (more on that later).

In 2006, South Carolina rejected a multiplier proposal that was primarily targeted at the success of a single private school. In the same year, the Arizona Interscholastic Association dropped its multiplier proposal after a state legislator introduced and passed a bill that would outright ban the practice.

Two states - Kentucky and Louisiana - have explored options to segregate public and private schools completely. Two other states - Texas and Tennessee - have blended the two ideas together, resulting in separate divisions for almost all public and private schools. For the few private schools remaining in the public division, their enrollment was increased by a multiplier ranging from a low of 1.17 to a high of 1.8.

Adoption of a multiplier or religious segregation of students would be more than bad public policy. Each practice is little more than a solution in search of a problem, and will almost certainly be challenged through lengthy administrative and legal appeals.

Legal Challenges Likely

OSAA is a "voluntary organization" that administers "interscholastic activities" for its member schools pursuant to authority delegated by the State Board of Education. To obtain and maintain its status as an approved voluntary organization, OSAA must comply with the board's administrative rules and applicable state laws, including anti-discrimination statutes that protect all students in the state. As such, the Oregon Supreme Court has held that OSAA is a "state actor" for the purposes of state discrimination laws.

As noted earlier, Arkansas and Missouri both survived legal challenges to their multipliers, brought on common law and constitutional grounds. But that does not guarantee a similar outcome in Oregon. If OSAA and the state were to adopt a private school multiplier or segregate private students from public students, such action would almost certainly be challenged by private schools, students and parents.

Procedurally, the starting point is an administrative appeal under OAR 581-021-0042 to the State Board of Education. The appeal begins by filing a written complaint with the State Superintendent of Public Instruction after exhausting any and all internal OSAA reviews. In addition to the contested case administrative hearing process, there is always the option of civil litigation, beginning in circuit court. Given the importance of this issue, such litigation would likely be pressed for years on appeal until resolution by the state's highest court.

Substantively, a legal challenge would likely be based on unlawful religious discrimination because every student attending a private religious school would be counted and treated differently than every student attending a public school. At last count, OSAA has 291 regular member schools, of which 52 are listed as private schools. In addition there are 26 associate member schools, all of which are private schools. Of the 52 regular member private schools, only one - Catlin Gable - self identifies itself as being sectarian or nonreligious. OK, maybe two, depending on whether one considers Scientology (Delphian School) as a religion.

Otherwise, every Oregon private religious school would be subjected to differential - and allegedly discriminatory - treatment solely on the basis of their status. Some states have attempted to downplay the targeting of religious schools by applying the multiplier to "non-boundaried" schools, which would include those public schools that allow free and open transfers. But that soon backfired, since those public schools liked the transfer system and didn't want to give it up or be penalized for it. Oregon has its share of open public transfers as well, most notably the PIL, where athletes routinely play for schools outside their local high school boundary, yet within the Portland Public School district.

Technically, the issue involves ORS 659.850, which provides:

"(1) As used in this section, "discrimination" means any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on age, disability, national origin, race, marital status, religion or sex.

(2) No person in Oregon shall be subjected to discrimination in any public elementary, secondary or community college education program or service, school or interschool activity or in any higher education program or service, school or interschool activity where the program, service, school or activity is financed in whole or in part by moneys appropriated by the Legislative Assembly.

(3) The State Board of Education and the State Board of Higher Education shall establish rules necessary to insure compliance with subsection (2) of this section in the manner required by ORS chapter 183. [Formerly 659.150]"

This is not a small or insignificant matter to OSAA. The State Board of Education, pursuant to administrative rule OAR 281-021-0034, requires OSAA to not violate this particular statute as a condition of obtaining and maintaining its status as an approved volunteer organization that administers interscholastic activities. If the Board receives a complaint that OSAA has violated this law, the State Superintendent is required by rule to order the Board to review OSAA's approval status. While it is nearly impossible to imagine OSAA ever losing its approval status, nor should anyone seriously desire that to happen, it is not unrealistic to suggest that OSAA could violate that law by discriminating against students who attend private religious schools.

OSAA and the state's attorneys are quite familiar with this statute because it was at the heart of the decade-long litigation between OSAA and a group of Portland Adventist Academy students and their parents. While the facts and court's holding in that line of cases is beyond the scope of this article, the Oregon Supreme Court did provide a useful and detailed analysis of how that statute is meant to be interpreted and applied. See, Nakashima v. Oregon State Board of Education, 344 OR 497, 185 P.3d 429 (2008).

In Nakashima the court noted that ORS 659.850(1) addresses both disparate treatment and disparate impact discrimination. The former is defined as "any act that unreasonably differentiates treatment, intended or unintended," while the latter occurs as a result of "any act that is fair in form but discriminatory in operation" based on protected class status, including religion.

One could argue that by applying a multiplier only to students that attend private religious schools or segregating those students solely on that basis, OSAA and the Board would be committing both forms of unlawful discrimination.

Vouchers, Transfers and Recruiting

One of the main reasons cited by proponents of the multiplier or separate divisions is that private schools have no determined boundaries to limit their prospective students. Furthermore, because most private schools are located in or near metropolitan centers, the charge is they have an unfair advantage by drawing from a much larger population base than their small town competitors. As a result, attempts are made to artificially limit the success of the private school, when the better solution is to grant other schools the same opportunity.

Open enrollment for all students to attend the school of their (or their parents') choice would be a much better field-leveler. For those students who would like to attend a private school, but cannot due to financial need, school vouchers open the door. Unfortunately, diverting tax dollars from teacher unions back to parents will never materialize in a state in which a particular political party controls the governorship, both chambers of the state legislature, both U.S. senators, four of five congressional Representatives, and the statewide office of Superintendent of Public Instruction.

Today, students in Oregon transfer between schools, both public and private, generally without losing any athletic eligibility. However, that wasn't always the case. Until 1983, OSAA had rule 20-6-2, which provided,

 "A student who transfers from any high school to any member high school becomes ineligible until one calendar year after the student first attends the new school. For purposes of this rule, a student is deemed to have transferred from another high school if at any previous time the student registered and attended classes at, or participated in any way in athletics at, another high school."

At least twice the OSAA rule was challenged in court, and in both instances, the rule was upheld as constitutional while not violating the students' procedural or substantive rights. See, Whipple v. OSAA, 52 Or App 419, rev den 291 Or 504 (1981); Cooper v. OSAA, 52 Or App 425, rev den, 291 Or 504 (1981). So what happened to the transfer penalty? The Oregon Legislature in 1983 effectively nullified the OSAA rule when it passed ORS 339.450:

"No school, school district or association, whether public or private, shall deny any grade or high school student the right to participate in interscholastic athletics solely on the ground that the student transferred between schools or participated in athletics at another school."

All too often, whenever a student transfers from one school to another, especially from a larger public school to a smaller private school, the inevitable cries of "Recruitment!" echo across various internet sites. Every state's high school association, including OSAA, bans the recruitment of high school students for athletic purposes. In Oregon, the OSAA rule prohibits "Undue Influence" and may be read under Rule 8.7 of the OSAA Handbook.

But that doesn't halt the endless accusations by those who take the familiar college recruiting process - complete with full ride scholarships and living room visits from contract-toting recruiters - and superimpose that scenario on high school children, most of whom are still minors subject to their parents control and support.

[NOTE: The remainder of this article employs a writing technique known as "sarcasm."]

The Ultimate Multiplier

The Classification and Districting Committee has formidable challenges in fulfilling its charges, the most important of which being resolving the number of classifications and league alignments for the 2010-2014 time block. That singular issue alone will consume the time and effort of those men and women dedicating themselves to the betterment of high school sports in Oregon.

Perhaps in the distraction of working out the next round of classifications and leagues, the Committee may be persuaded that "improving public/private competitiveness" requires OSAA intervention. And if the unspoken but understood objective is to reduce private school success while improving public school win-loss records, then a multiplier is the absolute best solution.

But only if the multiplier is applied where it belongs: On the Scoreboard.

Applying the multiplier to a private school's ADM is not only awkward, but it also is a poor and inefficient method of guaranteeing improved public school success. On the other hand, by applying the multiplier to preliminary final scores in contests between public and private schools, the results will be immediate and unmistaken. Here's how it works...

First, the multiplier is inapplicable when both teams are public schools or when a public school actually beats a private school. But if a private school tentatively outscores the public school, then the multiplier is applied. For example, let's use a 1.5 multiplier.

At the end of their boys basketball game, 2A private De La Salle beats 2A public Corbett, 59-40. But once the 1.5 multiplier is applied to the public school score, the final result is a 60-59 Cardinal victory. Had the original score been 60-40, the multiplier produces a 60-60 tie at regulation end, leading to a standard overtime period in which the Knights outscore the Cards, 11-8. But again, once the multiplier is applied, public school Corbett emerges with a 72-71 OT win over their private school opponent.

In volleyball, Valley Catholic wins the first set against 3A defending champ Sheridan, 25-18. But once the 1.5 multiplier is applied, the Spartans prevail, 27-25, and are on their way to defending their title with help from the multiplier. Baseball and softball work, though not as well. If Regis beats Scio, 5-4, the Loggers end up winning, 6-5. But a 5-3 score leaves the Rams still winning, 5 to 4.5. Baseball may be a game built around percentages, but whole number runs remain preferable.

The formula works for football, too. At the final horn, the scoreboard reads Jesuit 35 - Beaverton 24. After applying the 1.5 factor to the Beaver's 24 points, the final score is artificially revised to a 36-35 win for the public school. Imagine the competitive improvement - not to mention the side benefit of real time math exercises - as private schools constantly push to overcome the multiplier spread before the contest expires.

Granted, there are some kinks to work out when applied to sports where a lower score or a faster time is better, like golf, swimming or track. And if not watched closely, multiplying a public school shot put, discus or javelin toss by 1.5 could result in a flurry of national records that might draw the unwanted scrutiny of NFHS officials.

But the biggest challenge to the Ultimate Multiplier involves shut-outs. A million zeros is still zero. So, the best alternative is to simply prohibit a private school from shutting out a public school in any sport. Failure to comply results in the private school forfeiting the game for unsporting conduct. In other words, as a condition of playing with public schools, private schools would be required to at minimum, "Let the Wookie score."

[UPDATE: The Classification & Districting Committee is scheduled to address this issue at its next meeting February 23, 2009 at 9:00 am at the Shriners Headquarters Auditorium across the street from OSAA offices in Wilsonville.]