concurrence">LINDER, J.,

concurring.

I join in the majoritys legal analysis and disposition of this case. I write separately to clarify my understanding of the task left to the superintendent, given the procedural posture of the issue.

ORS 659.850(2) prohibits discrimination in any program or service in a public school. Discrimination, as defined in ORS 659.850(1), means any act that “unreasonably differentiates treatment, intended or unintended” on any of several prohibited grounds, including religion. Under the administrative rules that the board has promulgated to ensure compliance with the prohibition on public school discrimination, the board has established a procedure by which the superintendent first determines whether “substantial evidence” of discrimination exists. OAR 581-021-0049(1). If no substantial evidence of discrimination exists, the superintendent takes no further action. OAR 581-021-0049(l)(a). If there is substantial evidence of discrimination, the superintendent encourages conciliation between the parties; if conciliation fails, the superintendent conducts a contested case hearing to determine whether a school district is in compliance with ORS 659.850(2). OAR 581-021-0049(l)(b), (2)(a).

In testing for substantial evidence in this case, the superintendent was to ask only whether any reasonable person could conclude, on the record as a whole, that the school district “unreasonably differentiated” in treatment, intended or unintended, on the basis of religion. See generally Baker v. City of Woodburn, 190 Or App 445, 455-56, 79 P3d 901 (2003) (describing the nature of substantial evidence review). In *51other words, as the majority correctly states, the superintendent’s role in investigating the complaint was only “to determine whether there was substantial evidence, not whether the district actually discriminated.” 198 Or App at 38 (emphasis in original). The same is true of what we must decide on appeal.

As a result, the scope of our decision is limited. The majority opinion correctly does not conclude that the district has, in fact, actually engaged in unlawful discrimination. Rather, it determines only that there is substantial evidence in the record to reasonably support such a conclusion. That determination has a legal component, one that involves the interpretation of the statute and, in particular, the meaning of the language in ORS 659.850(2) that requires the discrimination to be “in any public elementary, secondary or community college education program or activity[.]” On that point, the majority holds that discrimination “may occur ‘in’ a school activity when that activity includes recruitment for an organization that discriminates, even if the discrimination becomes manifest at a later time.” 198 Or App at 41-42.

The majority’s substantial evidence determination also has a factual component. As the majority concludes, the record includes evidence that the Boy Scouts’ current recruiting efforts take place dining school hours, at a place where the district requires students to be, and at a time when the students, in effect, are a captive audience under the direction, control, and supervision of school officials. Such circumstances provide “substantial evidence” to support a determination that “the district itself offered the Scouting program to those students.” 198 Or App at 38. Perhaps reasonable minds can and would differ on whether to draw that conclusion. But for present purposes, that is beside the point. The only question is whether such a conclusion reasonably could be reached. Because it could be, the superintendent has an obligation to pursue the complaint.

If the dispute proceeds to a contested case hearing on remand, the superintendent’s task will include determining whether any unlawful differentiation in treatment is “unreasonable.” In the superintendent’s order declining to pursue the complaint further, the superintendent concluded that *52any differentiation in treatment by the school district was not unreasonable, apparently as a matter of law.1 The superintendent reasoned that the district made a policy decision that was consistent with state law encouraging public school and community connections and that any differentiation in treatment was limited in character. The superintendent did not consider the effect of the Boy Scouts’ discriminatory practices on students who are turned away from participation in Scouting activities. As the majority describes, the record developed in the circuit court contains evidence that the religious test for membership imposed by the Boy Scouts significantly ostracizes some students. That effect on those students provides substantial evidence to support a conclusion that the district’s sponsorship of the recruiting activities results in unreasonable differentiation in treatment. 198 Or App at 44.

An inquiry into “unreasonableness,” in many contexts, including administrative ones, often involves questions of both fact and law. See, e.g., SAIF v. Severson, 105 Or App 67, 72, 803 P2d 1204 (1990) (Workers’ Compensation Board must apply correct legal standard in determining whether refusal to authorize training program was unreasonable; beyond that, the board’s decision is tested for substantial evidence). At tins procedural point, we appropriately determine only that substantial evidence exists from which a decision-maker reasonably could conclude that the district engaged in unlawful discrimination. The superintendent has not yet held a contested case hearing or made findings based on the record of that contested case. Nor has the superintendent examined the “unreasonableness” of any unlawful differentiation in treatment based on the totality of the circumstances as developed in a contested case. The legal sufficiency *53of any determination that the superintendent may make on the basis of a fully developed record if a contested case hearing is held is not a matter that we now determine.

For those reasons, and with that clarification, I concur.

Given the “substantial evidence” aspect of the inquiry, the question before the superintendent should have been whether any reasonable decision-maker could find the district’s activities to be unreasonable discrimination. To answer that question in the negative, the activities would have to be reasonable as a matter of law. The superintendent may have departed from that standard. In his order, he concluded that, “[u]nder the circumstances presented here, * * * [the district’s activities] did not unreasonably subject complainant to differential treatment in any public school program, service, or activity.” In effect, the superintendent may have slipped into the role of final decision-maker, rather than testing the evidence for substantial evidence. If so, he erred in that regard.

LANDAU, J.,

dissenting.

The principal issue in this case is whether there is substantial evidence that the school district, by permitting representatives of the Boy Scouts of America to make a presentation about the organization’s programs during a school lunch period, has subjected students to “discrimination’’ in an education program or service or in a school or interschool activity within the meaning of ORS 659.850. The key to resolving that issue is the statutory definition of “discrimination”: It is an act that “unreasonably differentiates treatment” on the basis of, among other things, religion. ORS 659.850(1). Thus, our task is not to determine whether the district policies that permit such presentations make sense, are good policy, or are detrimental to children. Our task is limited to the narrow matter of determining whether there is evidence that (1) the school district has committed an act that differentiates among students on the basis of religion; and (2) if so, whether there is evidence that the differentiation in treatment occurred in an education program or service or in a school or interschool activity; and (3) if so, whether that differentiation is unreasonable.

In this case, the Superintendent of Public Instruction reviewed the matter and issued a thoughtful 17-page final order explaining his conclusion that there is no evidence that the school district violated the statute. In brief, the superintendent reasoned that (1) there is no evidence that the school district is subjecting students to differential treatment; (2) any differential treatment that does occur takes place outside of any education program or service or a school or interschool activity; and (3) even if that were not the case, any differentiation in treatment that the school district conceivably has committed by mere association with the Boy Scouts is so brief and attenuated that it is not unreasonable under the circumstances.

*54The majority gives that final order short shrift and reverses the superintendent’s decision. It essentially ignores the definition of “discrimination” set out in the statute, substitutes its own judgment for that of the superintendent, and concludes that the fact that the district permits the Boy Scouts to make presentations during school transforms that Boy Scout policy into unlawful school district discrimination.

In my view, the majority has strayed from the narrow task before it. The superintendent correctly concluded that there is no evidence that the school district subjects students to differential treatment. Even assuming for the sake of argument that the differentiation in treatment to which the statute refers includes the sort of differentiation by proxy that the majority concocts, it is undisputed that — and it bears some emphasis that this is a point that even petitioners concede — no differentiation in treatment occurred in any education program or service or a school or interschool activity. Thus, it is not even necessary in this case to evaluate whether any differentiation in treatment that occurred in this case was reasonable. The superintendent’s order should be affirmed.

I. THE REGULATORY BACKDROP

A. The relevant statute

I begin with the wording of the statute, which I contend is so important in understanding the nature of the task before us. ORS 659.850(2) provides that

“[n]o person in Oregon shall be subjected to discrimination in any public elementary, secondary or community college 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.”

The statute defines the term “discrimination” to mean

“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.”

ORS 659.850(1).

*55The statute was enacted in 1975, and its text parallels federal antidiscrimination legislation that Congress had enacted several years earlier. In fact, we have noted that the Oregon legislature intended that the statute — in particular, the definition of “discrimination” — track federal law. See generally Montgomery v. Board of Education, 188 Or App 63, 71-79, 71 P3d 94 (2003) (discussing relationship between state and federal antidiscrimination statutes and regulations). As a result, federal decisions sometimes are consulted in evaluating discrimination claims arising under the state statute; we have even instructed administrative agencies to consult federal law concerning the “reasonableness” component of the definition of “discrimination” in ORS 659.850(1). Montgomery, 188 Or App at 79. That fact becomes important in reviewing the superintendent’s evaluation of the conduct at issue in this case.

Several things are worth noting about the statute. To begin with, it prohibits not all discrimination, but only discrimination that occurs “in any public elementary, secondary or community college education program or service, school or interschool activity.” ORS 659.850(2). The operative word is “in.” The term seems to me straightforward enough as it is used in the statute. It commonly is used as a term of limitation or location, usually in time or space. Webster’s, for example, defines the term as, among other things:

“la (1) — used as a function word to indicate location or position in space or in some materially bounded object < put the key ~ the lock > < travel ~ Italy > < play ~ the street > < wounded ~ the leg > <read ~ bed > < look up a quotation ~ a book > * * * b (1) — used as a function word to indicate position or location in something immaterial or intangible < saw him ~ my dreams > < position of the artist - society > or the fact of belonging to a group or association <you’re ~ the army now > < are you ~ the orchestra > (2) — used as a function word to indicate activity, occupation, or purpose < advanced ~ hot pursuit > < ~ search of lost treasure > * * * (3) — used as a function word to indicate a position or relationship of authority or responsibility < ~ charge of the company’s affairs > < ~ command of the garrison > (4): in the course of < ~ cooling this material hardens > < drowned ~ crossing the *56riven (5) — used as a function word to indicate close connection by way of implication or active participation < ~ the plot >< - an amateur play > [.]”

Webster’s Third New Int’l Dictionary 1139 (unabridged ed 2002). Merriam-Webster’s Collegiate Dictionary 585 (10th ed 1999) similarly defines the term as “a fimction word to indicate inclusion, location, or position within limits < ~ the lake > < wounded ~ the leg > < ~ the summer >.” See also Marcilionis v. Farmers Ins. Co., 318 Or 640, 645-46, 871 P2d 470 (1994) (“Giving the words used in the statute * * * their natural, plain, and ordinary meaning, a person is ‘in’ the insured car when that person is completely or partially inside a portion of the car.”).

Of course, dictionaries tell us only what words can mean, not necessarily what the legislature in fact intended them to mean. State v. Holloway, 138 Or App 260, 265, 908 P2d 324 (1995). What the legislature intended must be gleaned from the way words are used in the statutes. Id.In this case, the legislature employed the term with reference to a “public elementary, secondary or community college education program or service, school or interschool activity.” ORS 659.850(2). What the statute prohibits is discrimination that occurs “in” such programs or activities. Thus, it appears that the legislature used the term in its ordinary sense, that is, as a function term to indicate limitation in terms of time, position, or location. Not all discrimination is prohibited, only discrimination that occurs “in” one of the listed programs or activities.

Next, the “discrimination” that must occur “in” an education program or service or “in” a school or interschool activity must occur in one of two ways. First, the statute defines “discrimination” as an “act that unreasonably differentiates treatment.” ORS 659.850(1). Second, it also defines the term as “an act that is fair in form but discriminatory in operation.” Id.I mention that because, as I understand this case, the parties debate only the application of the former definition of discrimination; no one has suggested that — and the majority does not address whether — the school district’s conduct is “fair in form but discriminatory in operation.”

*57Thus, the relevant portion of the statute in this case is the provision of ORS 659.850(1) that defines discrimination as an “act that unreasonably differentiates treatment.” That means that there are three elements of the discrimination claim in this case. At the outset, there must be differentiation in treatment. If there is none, there is no discrimination within the meaning of the statute. If — and only if — there is differentiation in treatment, then, to qualify as “discrimination” under the statute, that differentiation must have occurred “in” an education program or service or “in” a school or interschool activity. If it did not, then there is no “discrimination” within the meaning of the statute. Finally, if — and only if — there is differentiation in treatment in an education program or service or in a school or interschool activity, that differentiation must be unreasonable. If it is not unreasonable, then there is no “discrimination” within the meaning of the statute.

B. Applicable administrative rules

The statute also authorizes the state Board of Education to adopt rules to ensure compliance with the prohibition against subjecting any person to discrimination within the meanhig of the statute. ORS 659.850(3). The board has adopted such rules, and among them is OAR 581-021-0049, which sets out a procedure for resolving complaints of discrimination in violation of ORS 659.850(2).1 A person complaining of such discrimination first is required to exhaust local grievance procedures, after which he or she may appeal in writing to the superintendent.2 OAR 581-021-0049(1). The superintendent’s role then is as follows:

*58“The Superintendent shall review the local school district procedures and findings of fact to determine if proper procedures were followed and what action if any shall be taken. In making this determination, the Superintendent may decide:

“(a) No substantial evidence exists for the charges of discrimination, and no further action will be taken;

“(b) Discrimination may exist, and conciliation will be attempted to reach agreement by both parties.”

OAR 581-021-0049(1).

In other words, the superintendent must determine whether proper procedures were followed and what action, if any, is to be taken. In making that determination, the superintendent may take one of two courses. First, he or she may determine that no substantial evidence exists for the charges, in which case no further action is necessary. Second, he or she may determine that discrimination may exist — that is, that there is substantial evidence of discrimination — in which case the superintendent must engage in a conciliation process.

II. REVIEW OF THE SUPERINTENDENT’S ORDER

As I have mentioned, the superintendent examined the findings of fact made by the school district, evaluated the evidence submitted by the parties, and concluded that there was no substantial evidence of discrimination. As a result, in accordance with the applicable administrative rule, he determined that no further action was necessary. In reaching the conclusion that there was no substantial evidence of discrimination, the superintendent addressed each of the three components of the statutory definition of “discrimination” in ORS 659.850(1), although he did not identify them as separate *59considerations. With the foregoing statutes and rules in mind, I turn to the proper review of the superintendent’s findings and conclusions.

A. Differentiation in treatment

The superintendent concluded that there was no evidence that the school district subjected any person to differential treatment. He noted that the Harvey Scott principal prepared a newsletter about the Boy Scouts that was “available to all students on a nondiscriminatory basis.” He further noted that the informational presentations that occurred during school were “open to all students on a nondiscriminatory basis.” He noted that, although the Boy Scouts may have a discriminatory membership policy, the fact remains that nothing that the school did subjected anyone to differentiation in treatment. In that regard, the superintendent referred to cases interpreting the federal law that forms the context for ORS 659.850 and that hold that a recipient of federal funds generally may be hable for violating the federal law counterpart “only for its own misconduct” and may be liable for the discriminatory acts of third parties in only very limited circumstances not present in this case.

As far as I can tell, the facts on which the superintendent relied are undisputed and entirely borne out by the evidence in the record; there is no evidence to the contrary. It seems clear that the school permitted representatives of the Boy Scouts to make presentations during the lunch period. The length of the presentations varied, usually lasting no more than a few minutes. Videotapes of several presentations show that the introductions of the Boy Scouts representatives by school personnel lasted from 15 to 90 seconds, followed by presentations by the Boy Scouts representatives themselves averaging around a minute. Afterward, the Boy Scouts representatives made themselves available to talk with students for up to a half hour. During the presentations, information about the Boy Scouts was distributed to interested children. No child was required to take any information. The wrist bracelets, for example, were given only to children who asked for them. There is no evidence that, during the presentation, anyone mentioned the policy of the Boy Scouts with respect to a belief in God. There is no evidence *60that anyone mentioned religion at all. There is certainly no evidence that anyone told the children that only persons who believe in God may join the organization. To the contrary, the Boy Scouts representatives told the children that anyone could join.

Under the circumstances, it is difficult for me to understand how the superintendent erred in concluding that there is no evidence that the school district subjected students to differentiation in treatment. The evidence appears to be undisputed that the school district treated every child the same. I therefore would conclude that the superintendent did not err in determining that there was no evidence of differential treatment and end the matter.

The majority nevertheless concludes that the superintendent erred. The majority reasons that, even though the school district itself did nothing that differentiated treatment, the fact remains that the Boy Scouts does differentiate treatment by hmiting their membership to those children who profess a belief in God. According to the majority, because of the extent to which “the district’s actions connected it to the Scouts,” the district, in effect, ratified the differentiation that may be committed by the Boy Scouts. 198 Or App at 40. The majority thus concludes that the school district engaged in differentiation in treatment by mere association with the Boy Scouts.

I find the majority’s reasoning difficult to accept for several reasons. To begin with, the complaint in this case targets discrimination by the school district, not the Boy Scouts. Thus, the issue is whether the school district has committed an “act” that differentiates treatment between individuals on the basis of religion. The only “act” that the school district committed was to permit Boy Scouts representatives to make presentations to students, presentations in which they declared that membership in the organization was open to all students on a nondiscriminatory basis. Moreover, the majority’s argument misses the point of the statute, which does not prohibit a school district from merely associating with an organization that discriminates.

Aside from that, the majority’s conclusion that the school district’s actions too closely identify the district with *61the discrimination that the Boy Scouts practices is rather at odds with our previous analysis of essentially the same factual record in Powell v. Bunn, 185 Or App 334, 59 P3d 559 (2002), rev den, 336 Or 60 (2003) (Powell I). In Powell I, to be sure, the precise legal issue was different — involving the question whether the actions of the school district, in permitting the Boy Scouts to recruit during the school lunch period, amounted to a violation of the constitutional prohibition on state entanglement with religion.

But, doctrinal differences aside, the underlying issue was quite similar, namely, whether the policies of the Boy Scouts with respect to religion could be attributed to the school district. We answered the question in the negative. Among other things, we explained that the relationship between the Boy Scouts and the school district was too brief and minimal:

“A Boy Scouts representative addresses the students for a limited purpose: to make the organization’s existence known and to tell students (and their parents, via the students) how to learn more about the organization and join it. That is all. No religious message is conveyed; religion is not so much as mentioned. The students’ exposure to that limited message is brief, consisting of a five-minute announcement in the school cafeteria. Also, the students voluntarily may receive printed information to * * * take home to their parents. That limited information is given to students once or, at most, twice in a full school year. Such brief, neutral activity that conveys no religious message cannot sensibly be equated with governmental advancement of religious beliefs or principles.”

Id. at 361 (emphasis added). As far as I can determine, the record in Powell I and the record in this case are not materially different. Thus, we are left to wonder why the same conduct can be characterized as “brief,” “neutral,” and “limited” in one case and characterized so differently in another.3

*62The majority also takes the superintendent to task for referring to federal case law. According to the majority in relying on those decisions, “the superintendent evaluated the district’s action by the wrong standard.” 198 Or App at 35-36. I suggest that the majority is being unnecessarily harsh. As I pointed out earlier in this opinion, we ourselves have observed on a number of occasions that the text of ORS 659.850 has its origins in federal statutes and regulations in a number of respects. Indeed, in Montgomery, we went so far as to instruct a school board that it “may find assistance from the extensive federal law” concerning the relevant portion of ORS 659.850. 188 Or App at 79.1 would not be surprised if the superintendent were to feel a bit whipsawed by the contrary message the majority sends in this case.

The majority responds to my complaint with an extended discourse — indeed, the majority devotes more attention to this than to any other issue in the case — on the differences between federal and state law. 198 Or App at 35-39. With respect, the majority doth protest too much. All the superintendent did was note that we stated in Aiken v. Lieuallen, 39 Or App 779, 593 P2d 1243 (1979), that ORS 659.850 was enacted shortly after Congress enacted Title IX and that the regulations implementing ORS 659.850 “were modeled closely after the federal regulations” implementing Title IX. Aiken, 39 Or App at 781-82. The superintendent did not, as the majority suggests, substitute consideration of federal for state law. He simply referred to federal law “for guidance” in interpreting the state law, as often occurs in cases in which the federal law provides context for a state enactment. See, e.g., Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (Federal Rules of Civil Procedure may serve as context for construing Oregon counterparts); State of Oregon DCS v. Anderson, 189 Or App 162, 171, 74 P3d 1149, rev den, 336 Or 92 (2003) (federal child support legislation is context for state law); Harris v. Pameco Corp., 170 Or App 164, 176, 12 P3d 524 (2000) (federal civil rights law is “instructive” in interpreting state law). I do not retreat from my observation that, upon reading the majority’s opinion, the superintendent will likely — and, in my view, understandably — feel unfairly treated by this court.

*63B. Differentiation in treatment “in” an education program or service or “in” a school or interschool activity

The superintendent also noted that the record contained no evidence of discrimination “in” a school or school program or activity. The superintendent noted that, “[w]hile Boy Scout membership is apparently not open to all students, membership is not a public school program, service or activity.” (Emphasis in original.) In my view, the superintendent was correct.

The majority, however, concludes that, because the Boy Scouts recruiting took place during school hours at a location where the students were required to be, and after a district representative told the students to be quiet so that they could listen to the presentation, the recruiting itself became a school activity. 198 Or App at 38. The problem is that, as I have noted, even under the majority’s analysis, the recruiting presentation itself was not the “act” that constituted differential treatment that violates the statute. Everyone agrees that the recruiting presentation itself was neutral and contained no reference to religion at all, much less any mention of the Boy Scouts’ discriminatory membership policy. To the contrary, the only evidence on the subject is that the Boy Scouts representatives told the students that anyone could join the organization. Thus, even assuming that the recruiting presentation of the Boy Scouts representatives constituted a school activity within the meaning of the statute, the fact remains that that is not the activity that is the basis for the discrimination claim. As the superintendent correctly observed, the only actual differential treatment— exclusion of atheists from membership — occurs outside of any school program or activity.

Interestingly, petitioners in this case concede that much. In their own words:

“Petitioners admit that there is no evidence * * * that the Boy Scouts split the room into which students believe in God and which do not and then tell the non-believers [that] they cannot join. Instead, the Boy Scouts come into the schools and tell the young children that ‘all boys grades one *64through five can join’ and then discriminate against some of those boys at a future time.”

(Emphasis added.) The statute does not, however, prohibit discrimination that occurs “at a future time.” It prohibits discrimination that occurs “in” a school activity.

The majority acknowledges that, as I have noted, the word “in” commonly is used as a word of limitation with respect to space or time. In the blink of an eye, however, the majority then turns its back on the ordinary meaning of the term and suggests that it refers to something quite different. The majority begins by noting that, according to at least one of the dictionary definitions of the term, “in” also can “indicate close connection by way of implication or active participation.” 198 Or App at 41. Armed with that snippet from the dictionary, the majority then suggests that the differentiation in treatment in this case occurred “in” school in the sense that “the precipitating conduct — Scout recruitment— occurred at school and in the course of a school activity, even though the ultimate impact of that conduct — the exclusion of Remington from membership in the Scouts — did not occur at the same place and time.” Id. Thus, according to the majority, if an event occurs “in” a school activity (in its ordinary sense), and that event precipitates a chain of further events that ultimately produces discrimination, that discrimination occurs “in” a school activity (in the majority’s broader sense) regardless of when or where the discrimination actually takes place, whether weeks or even months later.

I find the majority’s proposed construction of the statute unpersuasive. To begin with, the majority relies on an acontextual use of definitions, which — as any lawyer knows — can be employed to make words mean anything.4 Indeed, the majority’s construction does not actually apply the dictionary definition that it cites. It takes several words used in the definition and employs them without reference to *65the definitional context in which they are used. Thus, when Webster’s notes that the term “in” may be employed to “indicate close connection by way of implication or active participation,” Webster’s at 1139, the majority rushes to conclude that the term may be employed to refer to any events that are causally “connected.” In the process, the majority’s construction produces a meaning of the statutory term that cannot be reconciled with any ordinary definition.51 have searched the wording of the statute in vain for any indication that the legislature intended that.

The majority’s construction, in fact, subtly rewrites the statute. According to the majority, only “precipitating conduct” that later produces discrimination need occur in or during a school activity for the statute to apply. As long as that precipitating conduct occurs during a school activity, it does not matter when or where the resulting discrimination occurs. That construction ignores the fact that the legislature took the trouble to spell out that the statute applies only if the discrimination itself — not the event that precipitated it— occurs “in” a school program or activity. ORS 659.850(1).

Petitioners complain that adhering too closely to the wording of the statute would permit discriminatory organizations to ‘lie about their discrimination” with impunity. The majority similarly insists that giving the words of the statute their ordinary meanings “would foster almost endless loopholes” that would permit people who discriminate to evade the law by not being candid about their discrimination. 198 Or App at 41. Those are interesting policy arguments, but ones that should be addressed to the legislature. The fact remains that no differentiation in treatment occurred during a time or place to which the statute applies.

Petitioners also complain that they offered uncontradicted medical evidence that young children tend to think that any presentation that occurs at school is, in fact, a *66school-sponsored presentation. That, however, is merely a variation of the majority’s contention that the school district should be regarded as having adopted or ratified the Boy Scouts presentation. As I have pointed out, even assuming that that is the case, the fact remains that the statute does not prohibit mere association with an organization that discriminates. It prohibits acts of differentiation in treatment “in” a school activity. The presentation that petitioners and the majority struggle so hard to associate with the school district simply did not treat students differently in any way.

In a similar vein, petitioners observe that there is evidence in the record that children “feel ostracized” when they learn that they cannot join the Boy Scouts because of their religious beliefs. Once again, however, the observation is beside the point. It is undisputed that the students were not informed of the Boy Scouts membership policies during any school program or activity. If they eventually felt ostracized, it was not because of any differentiation in treatment that occurred in school.

There is, in other words, no evidence that any act that occurred “in” school or during a school program or activity differentiated treatment among any persons. The only evidence was that any differentiation in treatment that occurred as a consequence of the Boy Scouts’ membership policies occurred outside of school in a nonschool program. Consequently, ORS 659.850(2) simply does not apply.

C. Reasonableness of differentiation in treatment

The statute also requires that, to constitute “discrimination,” any differentiation in treatment must be “unreasonable.” ORS 659.850(1). And, in this case, the superintendent concluded that — even assuming for the sake of argument that any differentiation in treatment occurred— such differentiation in treatment was not unreasonable. As I have noted, however, the record amply supports the superintendent’s findings that there is no evidence of any differentiation in treatment that occurred in a school activity in the first place. It is therefore not necessary to evaluate the correctness of his alternative conclusion; the majority, in other words, errs in even reaching the issue.

*67In conclusion, the majority’s opinion neglects to review the superintendent’s order in terms of the specific components of “discrimination” that ORS 659.850(1) details. In my view, the superintendent correctly concluded that there is no evidence that the students were treated differently on the basis of religion. Our review of the superintendent’s order properly should end there. Even assuming that there is evidence that the students were treated differently on the basis of religion, the fact remains that the superintendent correctly concluded that there is a complete absence of evidence — as petitioners themselves concede — that such treatment occurred “in” a school activity.

For the foregoing reasons, I would affirm the superintendent’s order, and from the majority’s opinion to the contrary, I respectfully dissent.

Edmonds and Haselton, JJ., join in this dissent.

The board also has adopted rules that enumerate a number of “specific prohibitions,” OAR 581-021-0045(3), but petitioners in this case have not contended that the activities in this case implicate any of them.

The existence of that local grievance procedure raises an interesting question about the scope of the proceedings in this case. Petitioners initiated this proceeding by filing a complaint concerning a recruiting incident that occurred in 1996. They exhausted local government grievance procedures and then appealed to the superintendent. Before the superintendent, they complained about additional recruiting incidents and offered evidence concerning those additional incidents. It is uncontested that petitioners did not exhaust local government grievance procedures as to those additional incidents. In fact, the superintendent himself noted that point and concluded that — strictly speaking — he did not need to address the lawfulness of those incidents. In the event that a reviewing court were to disagree about that point, he addressed the lawfulness of those additional incidents.

*58In my view, it is at least debatable whether the lawfulness of the incidents that occurred after the filing of the complaint is justiciable. See, e.g., Mullenaux v. Dept. of Revenue, 293 Or 536, 539, 651 P2d 724 (1982) (“judicial review is only available after the procedure for relief within the administrative body itself has been followed without success”). Nevertheless, I think the point is academic. If I understand the arguments and issues correctly, the case essentially stands or falls on the lawfulness of the initial 1996 incident. The additional incidents and the evidence pertaining to them do not materially alter the nature of the issues raised by the initial incident that is the subject of the original complaint.

I recognize that our standard of review in this case is different from the one that we applied in Powell I. Still, given what we said in Powell I — that the facts “cannot sensibly” he read any other way — it strikes me as at least odd that the majority does precisely that with no explanation beyond the unadorned conclusion that the cases “have little in common.” 198 Or App at 39.

I am reminded of the story — probably apocryphal — about an English-Russian translation computer program that, working word by word, translated the King James Biblical passage “the spirit is willing, but the flesh is weak” from English to Russian and back into English. The resulting word-by-word translation was that “the vodka is fine but the meat is rotten.” Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz St LJ 275, 285 (1998).

The dictionary itself offers examples — which the majority omits — to demonstrate the sense in which it refers to “close connection by way of implication or active participation”: “< [in] the plot > <[in] an amateur play>.” Webster’s at 1139. With those examples in mind, it becomes clear that the majority’s construction of the term “in” is foreign even to the dictionary definition on which it relies for support.

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How this case has been treated — in progress