The Oregon Legislature held its second experimental supplemental session in February. As we wrote after the first supplemental session in 2008, “the brevity of the session made it almost impossible for public interest organizations like ACLU to play a meaningful role.”  Our latest experience, if anything, was even more frustrating than two years ago, including an extremely limited opportunity to provide testimony on significant policy issues. Starting on February 1, the 2010 supplemental session went until February 25, still shy of the one month schedule.

To see how your legislators voted on civil iiberties issues, see ACLU of Oregon's cumulative 2009-2010 Legislative Scorecard.

Religious Dress Law (HB 3686)

As we wrote in our Spring 2010 newsletter in more detail, House Speaker Dave Hunt introduced legislation to repeal the Oregon laws that prohibit public school teachers from wearing religious dress in the classroom. Last fall, in anticipation of this issue arising in February, the ACLU of Oregon Board of Directors deliberated on the complexities of this issue. Our board was sympathetic with the concerns of minority faiths who feel they have been excluded from public school teaching by this law. However, the ACLU Board was deeply concerned that repeal of the current prohibition would open the door to more conflicts over religion in public schools that would compromise the religious neutrality that we feel is critical for all children and families.

The ACLU Board determined that it had many questions and concerns about the effect of a possible repeal, and concluded that it would oppose any effort to repeal the prohibition during the short February session. Instead, we urged consideration of this issue at the next regular session in 2011, by which time we and others would have had the opportunity to fully evaluate the issues and other possible solutions.

Prior to the February session, Attorney General John Kroger issued a letter to the House Education Committee stating:

“We have also concluded that if the statute is amended or repealed, there is significant risk that the new law will be challenged in court by parents who believe that the wearing of religious dress in the classroom violates their constitutional rights or those of their children. For that reason, we urge you to make any changes with great care, with an eye to the potential liability that may be incurred by state or local school districts. . . . The policy choices implicated by [this law] are complex and challenging.”

Despite our urgings (and those of Attorney General Kroger), the Legislature moved forward with HB 3686. As originally drafted, it would have repealed the religious dress law and done nothing more. It was amended to add language to the Oregon Workplace Religious Freedom law passed in 2009, which requires employers to accommodate religious dress and time off work unless it creates an economic hardship for the employer. Because an economic hardship standard would not work for a public school, the new language allows public schools the ability to deny an accommodation to “the degree to which an accommodation may constrain the obligation of a school district . . . to maintain a religiously neutral work environment.”  We thought that language was insufficient for several reasons, including that a school is more than a “work environment.” 

While recognizing how complicated the issue is, including adding even more language related to the above provision on the Senate side, the proponents also amended the law so it would not take effect until July 1, 2011, arguing that the remaining issues could be resolved through a 17-month period of rulemaking. We are not convinced that months of rulemaking can resolve the legal and constitutional issues, which is precisely why this matter should have waited until January 2011.

One of our objections to having this proposal considered in the February supplemental session is it does not allow for meaningful deliberation or public participation. When the bill was heard on in the House Education committee, once prior and once during the legislative session, ACLU submitted written testimony but each time was allotted only 3 minutes to testify, despite the significant legal and policy issues raised.

HB 3686 A-Eng. passed the House floor 51-8. ACLU issued a House floor statement urging a “No” vote. When it came over to the Senate, rather than being assigned to the Senate Education or Senate Judiciary committees (the two most appropriate policy making committees), it was assigned to the Senate Rules Committee. Once again, we were allowed to testify only a few minutes. HB 3686 B-Eng., passed the Senate by a vote of 21-9. ACLU issue a Senate floor statement urging a “No” vote.

The following House members supported ACLU’s position: Barker (D), Freeman (R), Gilman (R), Harker (D), Maurer (R), Nolan (D), Olson (R), Witt (D). The remainder, with the exception of Rep. Tomei (D), who was absent, voted in support of HB 3686.

The following Senate members supported ACLU’s position: Bonamici (D), Burdick (D), Johnson (D), Kruse (R), Metsger (D), Nelson (R), Prozanski (D), Verger (D), Whitsett (R). The remainder voted in support of HB 3686.

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Prescription Drug Monitoring Database (final authorization)

In the 2009 legislative session, the ACLU opposed SB 355 which allows the government to create a database to monitor medication prescriptions for Schedule II, III & IV controlled substances. We opposed creation of this database because it will allow the government to monitor millions of prescriptions of law abiding Oregonians and raises significant privacy and security concerns. SB 355 passed over our objections, but it required the Department of Human Services (DHS) to return to the 2010 Legislature for final authorization and release of funds by the Ways & Means Committee.

ACLU provided each member of the Ways & Means Committee a longer version of this detailed analysis of the implementing plan, including the fact that DHS intends to use this database to send out notifications to providers, a use that was not authorized by SB 355.

We were quite disappointed in the lack of oversight by the Ways & Means Committee. In providing final authorization to the DHS to proceed with implementing the Oregon prescription database monitoring program as authorized by SB 355, not one legislator on Ways & Means asked any questions or raised any concerns. With millions of Oregonian’s prescriptions and personal information set to be entered in a state-run database monitoring program, we believe the Oregon Legislature has failed in its obligation to ensure that the law be followed and that meaningful privacy protections be put in place. ACLU will continue to monitor the DHS process.

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