Opinion
A4
Saturday, March 12, 2022
OUR VIEW
Judge right to
block real estate
‘love lett er’ law
S
o-called real estate “love letters” aren’t
exactly a major free speech issue.
But it’s not surprising that Oregon’s unique
new law partially banning these messages quickly
ran into trouble on First Amendment grounds.
U.S. District Judge Marco A. Hernández last
week issued a preliminary injunction blocking
the law, which the Oregon Legislature passed in
2021 and Gov. Kate Brown signed. It took eff ect
Jan. 1, 2022.
Hernández made his ruling in a lawsuit fi led in
November 2021 by the Pacifi c Legal Foundation
on behalf of the Total Real Estate Group of Bend.
Oregon State Rep. Mark Meek, a Democrat
from Clackamas County and a real estate agent,
promoted the law. It deals with letters that hopeful
buyers sometimes send to a seller, using real estate
agents as intermediaries, as a way to try to entice
the seller to choose the letter writer’s off er.
The law doesn’t prohibit prospective buyers
from writing such letters, or from sending them
directly to a homeowner. The law prohibits real
estate agents who represent a seller from passing
on such letters to the seller.
Meek and other supporters said they were con-
cerned that such letters could include personal
details about the prospective buyer, such as race,
gender or sexual orientation, that might infl uence
the seller’s decision about which off er to accept.
Proponents of the law contend this situation
would violate the federal Fair Housing Act, which
prohibits discrimination in housing based on fac-
tors such as race and sexual orientation.
This is a legitimate concern, to be sure.
But the notion that such letters would truly
lead to discrimination is diffi cult, if not impos-
sible, to prove. In any case, the mere potential for
a letter to contribute to discrimination is not suf-
fi cient to meet the appropriately high threshold
that the First Amendment sets to ensure Ameri-
cans have the right to freely express themselves,
regardless of the topic or the forum.
Daniel Ortner, an attorney for the Pacifi c Legal
Foundation, made that point in a statement about
the preliminary injunction.
“Love letters communicate information that
helps sellers select the best off er,” Ortner said.
“The state cannot ban important speech because
someone might misuse it.”
Hernández acknowledged in his decision that
the purpose of the new law is worthwhile. The
judge cited Oregon’s “long and abhorrent history
of racial discrimination in property ownership
and housing” that in the past explicitly blocked
people of color from owning property.
But the judge also rightly concluded that the law
is too broad, prohibiting this type of letter in general
rather than outlawing specifi c subjects. Oregon law-
makers, Hernández wrote, “could have addressed
the problem of housing discrimination without
infringing on protected speech to such a degree.”
That’s an interesting point. However, it’s hard
to imagine that any such restriction on this type
of letter, even one with a narrower focus than the
current law, would pass constitutional muster.
The preliminary injunction will remain in
eff ect until Hernández makes a fi nal decision on
the lawsuit.
Oregon offi cials, including Attorney General
Ellen Rosenblum and Real Estate Commissioner
Steve Strode, both named as defendants in the
lawsuit, should concede that the new law, how-
ever well-intentioned, is too general in its restric-
tions on free speech to stand.
There’s no reason to spend public money
defending against a lawsuit that stands on a legal
foundation as formidable as the First Amendment.
Average standardized test
scores should be celebrated
EVELYN
SWART
OTHER VIEWS
T
he story “Legislators push
for money to train Oregon
teachers in the science of
reading” (lagrandeobserver.com,
March 1) inspires me to comment.
I suspect that there are far more
adults who read very little than there
are children who struggle to learn
to read. Perhaps we should spend
as much eff ort and resources to
increase adult reading as we use on
children learning to read.
About 25 years ago the Legis-
lature in another state decreed that
teacher training institutions must
incorporate instruction of phonetic
methods in their language arts cur-
riculum. I was hired to implement
phonics instruction at one of the
state universities.
Prior to this assignment, I was
employed in the state education
department working in curriculum
and instruction. My comments are
based on these experiences as well
as years of experience teaching in
the classroom.
Regarding the science of reading,
my experience tells me that children
of normal intelligence should have
few problems learning to decode
language. The decoding process can
be accomplished by most students in
the fi rst three grades.
After that, reasoning and under-
standing the reading content is
EDITORIALS
Unsigned editorials are the opinion of The Observer
editorial board. Other columns, letters and cartoons
on this page express the opinions of the authors
essential for success. Discussion, a
variety of reading content and stu-
dents’ past experiences in and out
of the classroom are meaningful for
learning and doing well in school
and on tests.
Legislators and journalists need
to know the meaning of the term
“grade level” and what standard-
ized tests were intended to accom-
plish. It is my understanding that an
important purpose of these tests is
to improve the level at which large
groups of students understand what
they read.
It is expected that when they
know student test scores, teachers
and curriculum developers will
upgrade instruction and the reading
level will be raised.
During my career, I asked curric-
ulum developers and the test devel-
opers how they come up with “grade
levels.” I wanted to know why grade-
level textbooks seem to increase in
diffi culty over the years. The expla-
nation I received was that it is done
by a certain process. Large samples
of students at diff erent levels are
given a standardized test, and the
average performance of the students
at specifi c age levels becomes the
“grade level.”
Curriculum specialists
develop textbooks and instruc-
tion using the averaged levels, or
“grade levels.” Textbook compa-
nies revise their textbooks every
few years; they are purchased by
school districts and implemented
in classrooms.
At the same time, classroom
and not necessarily that of The Observer.
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teachers are taking courses to learn
new eff ective instruction techniques
for student success.
The conclusion that I draw is
that when curriculum materials and
classroom instruction is upgraded,
learning is enhanced and “grade
levels” are upgraded.
As student performance on
standardized tests increase, it
raises the average grade level and
higher expectations of students.
Thus, higher expectations result in
increased student learning.
I would suggest that parents
should not be unduly dismayed by
standardized testing averages in
their children’s school district. Stan-
dardized tests are not an appropriate
way to understand an individual stu-
dent’s progress. They are intended to
gauge the average progress of large
numbers of students, and to assess
the progress of instruction in the
state or nation.
Legislators can use the informa-
tion to assess the need for resources
to improve statewide learning levels,
not to punish poor performing
districts.
A school district that maintains
average test scores over the years
should be celebrating a resounding
success. Districts with lower stan-
dardized testing averages can use the
overall information to determine the
need for resources and training.
———
Evelyn Swart is a retired
educator who was born in 1936. Her
retirement is devoted to writing and
community volunteering in Joseph.
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