the morning your honour's martin stern for the petitioner voices along with brook duncan and marshall have on your honor's i'd like to start with the purpose of the exclusion that is it issued today i think it's important to start there briefly because it informs this entire discussion and i think the purpose of the exclusion is hiding in plain view the purpose is recognizing the core principle of federalism that is that the federal government does not has violated that core principle its exercising its jurisdiction over a state political subdivision and i think i can show that in two ways there are two ways that the board has erred here first it hasn't set out to answer the right question the right question of course is whether voice that is is a political subdivision that's the question under the act instead the board set out to answer a single to answer a question that's different plucked out of the totality of factors that speak to that to the real question the board has plucked out of all of the factors that apply one factor and it's made it the litmus test for its decision and that of course is whether the administrators of voices are subject to being hired or fired by public officials and the board has been very upfront that it believes that it is the only thing that matters it to have the board look at the totality of factors i don't think it would require your honour's to do that although of course that would be an option because i think that the record is clear that first of all even under that factor the concerns you cite a lot of state law how do you deal with the two thousand and four louisiana attorney general's opinion the public charters the charter schools are not political subdivisions but of the deed first of all the louisiana attorney general decisions are not binding they're not even very authoritative when it comes to stating stay aloft there issued you know twenty to thirty a week they're usually very short they're not given the way that court decisions are and second i would agree frankly with me the board that while state law as is important it's not controlling of this is an issue of federal law the the thing that i think really  would think so generally speaking seems fair to me but that one of the benefits of charter schools is that they're not political i mean i can't speak with any authority to that but it makes sense to me you but you see why i'm that the what congress has set out to exclude is political something and i think we agree that sort of the nature of charter schools is that they're not political well you're right i think when congress uses the phrase political subdivisions what its meaning to refer to is not politics in the sense of political science but politics in the sense of is the entity at issue in effect an administrative arm of the state and i think hear our voices meets that test and i'll look i'll get accountability and oversight is and is as tight which is what allows us to do the soup experimentation and that's why you should come to our schools and in the louisiana new orleans charter school in particular have a very good track record of getting better results so it is somewhat at odds with the whole idea behind charter schools which is independence from school boards from state education commissions to say that they are in fact political subdivisions no i don't think so at all your honor i think on the contrary the very things that you just described that i agree with and of course in new orleans the charter school system is the public school system i think that our unit is for charter schools to be outside of the jurisdiction of the national labor relations board not within it i mean i think that that we're mixing apples and oranges that may be a great policy argument for congress i'm sorry i may be a great policy argument for congress that we don't have to know or be to be involved in this and as i understand it there's actually some discretion  policy charter schools are conceptualized this way is there anything in the record about that whatsoever no your honor i don't think there is a rather record i think on the record is there some evidence that it is a political subdivision because it's more members are subject to remov public officials there's nothing in the record that sets forth that are right that that is of course the board's argument but i don't think there's any whatever argument in the record or any evidence you know that advocates that one way or the is there anything in the record to say these charter schools are prep you know they're all over the place in new orleans as you say they're eighty percent or so of the school system is there any evidence as to how often or if ever that the removal of the word has been exercised there's no evidence but i know that it has been your own as i just want to go back to see that it seems to me if there are political if you win here and there are political subdivision under the you know or a that seems to be mean they would automatically be state actors subject to lawsuits by students by teachers you know for due process for first amendment religion and speech issues do you concede that charter schools are a state actor for constitutional purposes i honestly haven't thought through the state actor question i would concede that it would mean that voice is subject to state labor law that's that's certainly true and i think i believe that's what congress wants i believe that congress wants and i'm curious on this because i mean it's going to be careful what you wish if you know you might get sued for religion problem students speak we see these cases all the time in the regular public schools with teachers saying i didn't get due process and you know it i mean you know what i'm talking about but i i don't think that a decision whether voices as a as a political subdivision answers the question of whether it's a state actor i want i mean seems to me state actors actually broader than that and political subdivision but how can you be a political subdivision and not a state actor for the constitution well i just thought i would have to get into the law and state actor frankly your honor to it to give you a real answer i don't think one equals the other i understand that would certainly be relevant i do want to just go back to the questions the whole line of questions about political subdivision with the emphasis on political as though that means politics in terms of the day to day you know arguing politics i don't think that's what political means in the phrase political parties it's time to be my fault in this issue when i think about politics is not the pejorative politics more i mean is political accountability an election by the voters or appointed by the governor or a senate confirmation that's what i mean and it seems to me that your entity is completely created in the private sector all the people are appointed by the private sector that's not something we typically associate with a politically accountable and city but i think the answer to that it lies in hawkins county which is the only u s supreme court case interpret in this exclusion and what the supreme court looked at was it did consider what you were referring to whether the administrators were appointed by they were hired or go or could be fired by government officials but also looked at a host of other factors and those other factors included things like whether the the entity was a nonprofit whether it was tax exempt whether it was subject to public records laws whether it was subject to other laws that applied to other political subdivisions all of these things are argued argue in favor of voices being considered a political subdivision some of the other laws that it's subject to are it has to provide an annual budget to the government it has to undergo an annual any charter school contract so all of this follows from that and to come back to the hiring and firing judge where your started the board has made very clear now that it doesn't require both for  it only requires one or the other hiring or firing by public officials and that was the case for that well they centered in their brief they still use the word or very pointedly and in all of their the florio of  jason missions they're very clear that it's either or both aren't required and the significance of that is that when you look at so what's important for us because we readily concede that our ministers are not appointed by the state but we do and you know so putting aside the movability is limited to sort of malfeasance broad you agree that you can't remove someone because you don't like the policy choices the charter schools taking when you don't like their curriculum and that's not a basis to get rid of them that's correct your honor and that's exactly the point i want to make which is that's exactly the same as hawkins county and hawkins county the only way to remove officials from the utility district was under what was called the tennessee ouster law that it is a parallel the analog of the tennessee ouster law is the louisiana code of governmental ethics both are all strong laws both apply only to government employees that's right but that well that's true but remember the board can't revert to that because it's conceited and i think if you ask them they will concede they don't require both appointed and the you know the hiring and firing of its hiring or firing so when we question you you make the argument that education is a core government function of local governments which of course it is criminal justice is also a core function of state governments the state of louisiana is i'm sure it does contracts out to  private prisons or those private prisons political subdivisions of the state i think that it's facts and sort of question it would depend upon the relationship between the private prison and the state and if i administrators of the private prison were subject to removal by government officials as are the administrators of voices and if all the other indicia were present which the board wants to ignore but which ar administrators of voices subject to removal under the code of government ethics which ended up itself a significant that's treating them as government employees it only applies to government employees it's the same as in tennessee but they also are at risk of losing their jobs because the the state officials have the right they have great discretion to terminate the charter completely at their will if they believe that corporate law that's it a case of corporate malfeasance the state secretary of state can take an action to remove the fees and born without turn wal mart into a political division i think that would no i don't think that along with her at all i think that it would be one can say i was also shocked to the state's public records long you know i mean it you know it every every hypothetical would be very fact sensitive and we'd have to look at everything in my mind that alone would not do it funds that go into private delivery of health care started to cure time but i don't know ult i mean just to answer your question joe almost all the cases require the entity to be a nonprofit wal mart is the opposite from a nonprofit it's a for profit company so it's hard for me to imagine how it could how it could possibly be considered a political subdivision i see that my time is up unless you have any more questions i'll be back on the good morning your honor greg laurel for the national labor relations board asking this court to enforce the board's order if you will for enforced an order like this one in the place where ninety percent of the schools were under this format not that i'm aware your honor but what we do know i mean that's extraordinary isn't it it's not some one off little thing it's a you know i understand the nature of what happens here and i think it goes to two things i'd like to touch on based on your honor's discussion this morning one is i still say that the words determination that this one charter school created by private individuals and run by advantage of private enterprise the state chose to allow private citizens to create these schools and boards composed of private individuals who choose what other private individuals will join them to run the school and to control the labor relations and i think this is important because when you look at the coliseum of the political subdivision exemption it goes to two things one is oftentimes public employees lack the right to strike but of course the state supreme court held here that public employees have the right to strike and the other is avoiding undue interference with the state's relationship with its own public employees but here when you look at the choices the state made and you see this in the charter law you see this in the charter great but it said voices you will go on the school you will hire and fire teachers you will set their terms and conditions of employment nothing in the borge jurisdiction here will interfere with that choice or the state relations which are separate but the point is when you look at the facts we have here in the largely undisputed we have what the court has called a private self perpetuating board my opponent cites no case where you had those circumstances and yet the entity was found to be a political subdivision under prong two now i know my opponent mentions well let's look at other characteristics but those have been addressed by precedent as well and i'd like to say first of all this  very similar charter school operations and we rejected some of the arguments that are made here like we have occurred characteristics were publicly funded for example in the court this court has also addressed that argument and the  there the court explained you have this private self perpetuating board therefore you are not a political subdivision under problem too and the entity which happen to be a nursing home said but we receive public funds we have to issue public reports we have tax exemptions the state in some ways constrains our operations and screens who can be patient we have to seek permission to make improvements on the facility and still because of that key fact the private self perpetuating board it was not a political subdivision and are prone to and what i would submit is my opponent who does have an appellate burden here to show the board abused its discretion so it's no case or factor that compels the board to find  circumstances that the school was a political subdivision of the state you know one of the things we have to decide is did you did the board abused its discretion in applying the test in a way that's different than we would apply the test right and so if they only considered these things collapse the test down to two prongs and only considered this one thing and didn't consider the robust the record the the other factors that would be relevant under hawkins county then it might abuse it its discretion for not doing the test right and that's what i'm trying to figure out is is it your position that they did use the one factor under prong two and have that be dispositive or is it your view that there was a totality of all the factors here on this record this particular record well i'll be candid the board did say that this factor of a private self perpetuating governing board can be dispositive it's very strong evidence but this court has said the same thing but also that the board said well that's often sufficient to find that it's not a sub political subdivision it also did address arguments about other characteristics as my opponent puts it this case in hawkins county itself and there's other cases where they find that that first factor of who appoints in can remove board members that that favored it being a political subdivision and they went on to see other indicia of it being a political sub are there any cases where a coup or two has found that the board selection and removal process was not indicative of a political subdivision as was found here yet then went on to analyze all these other factors i want to make sure i understand your honest question i have not aware of a case where it's like this one you have a private self perpetuating board and the court goes on to find because of some other factor it's none the less that's what it then then the answer is no i'm aware of no such case let me ask you there's there's i mean political accountability if not the factor is certainly a big factor i think everyone would agree in as i think as has been alluded to in a selling point of charter schools is at least as compared to regular public schools they have less political accountability but i look at the charter school law in louisiana i mean it's in the exam stronger schools from a lot of requirements but it's still there's forty four laws that subjects them to including you have to teach the constitution according to state law teachers teaching regarding sex according to state law corporal punishment for all these different things it goes on and on doesn't that show there is a great deal of political accountability even if not as much accountability as regular public schools i don't think it shows political accountability i think what the board of courts have sad and saying that you're not a political subdivision just because the significant state oversight is that's not necessarily any different than the regulation or oversight faced by other private entities who contract with the government they face regulations their choices are constrained but they're still making choices so that fact alone is not dispositive so is it your position that the n l r b can reasonably ask one question whether the entities administrators are subject to appointment or removal by public officials or electorate in order to determine whether an entity is a political subdivision and that one question is dispositive i do think that one question can be dispositive i don't know if that the trying to evade your question on it my point is here the board applied the precedent much like this court has this court said there's a lot of weight put on that fact you mentioned the private self perpetuating board we see that in high view we see that natchez we see that in other cases and in starter and this court noted usually when you meet kong too it's because a majority of every governing board members were picked by the state and that's just not the case here what about well i am aware of no case that found that the kind of limited removal of thirty we have here was sufficient here as you're always noted this morning this isn't like the power the board members have over each other where they can add or remove each other with a lot of discretion here the state can remove someone for particular instances of conflicts of interest malfeasance such  of office for financial gain as you were just gushing this morning you can't say i don't think that person is doing a good job running the school i don't like their policies i'd like to remove them they have to be found with engage in this targeted malfeasance after i believe a complaint  like board members in some states you know mississippi's law differs from louisiana is in that regard to set a case recently about a board member and whether or not they had had of all the proper due process that they needed to have so many public board members have the same kind of removal process no i understand that i'm just trying to grapple with what authority does my opponents just say that the removal of thirty we have here is sufficient or even compels the board to find that their political subdivision does the board does have some discretion and interpret in this political subdivision exception and what i was saying is we have a case like elf and the other side's view that do you agree with his characterization of the board's position that it's sufficient either to have the appointment in removal power just one or the other that's what i took him to be characterizing your position as you agree that that's your position accountability well i'm still confused then because if removal power is often has due process concern is constraints and cause requirements in regular public school then why isn't it parallel enough to being a political subdivision this this removal power well your honor all i can say is in this case the precedent has been set forward that the board will find you have know we don't we don't like that's got to be coed institutions we're going to remove the board and get some people who like coed schools and they can't do that that's right and in the l t t s case it was more like that because the state in exercising this broad power to reconstitute the board is actually directed by texas law to consult with community leaders in other words the general electorate electorate to bring in that political or public input and that is now t t s it said only under certain conditions  denying that there are some conditions but i still think that the power to reconstitute a governing body is much broader than the power to wait for someone to be found guilty of malfeasance and then you can remove th especially when an l t g yes you do have this political or public component of going out and soliciting public input of who should be on this governing body we don't have that here what is the difference between the ouster law on hawkins and the ouster l the biggest difference is actually the context the supreme court found that that body was a political subdivision under prong two in large part because terry county judge had full authority to appoint the governing board because i don't think i'm asking what's the difference in this case it's targeted to specific instances of malfeasance that are proven after a certain process a complaint in a hearing i'm not sure that the ouster of law and hawkins was similarly tailored and i do think the supreme court in hopkins was focused on the fact that the judge could pick the board members what i'm saying is if you have a context where a public official can clearly pick the board members that may alter your view of what kind of removal power also goes into the equation i do think the context about us i don't think hawkins is what holds that that i was to law on its own was sufficient i don't think you can tell that i think the key thing is the judge picking who was on the pill if we were to hold and this is not foreshadowing it's a hypothetical that the test was not applied properly because it was t resolved the case of record that we did hanjour on or whether so you found that was an error you view the board is actually looking at those factors and adopting its prior decisions and hiding pension which rejected arguments based on  factors where the board candidly said this private board issue should be sufficient but will also look at these other factors but at the end of the day this is where the state is handing over labor relations of the school to private entity other questions thank you for your  court my name is julie richard spencer and i am counsel for the intervenor in this case the united teachers of new orleans i want to start by going back to a question judge costa asked which was what is in the rock heard as to control and operations of the school this case and the record goes back to a hearing that was held before the national labor relations board of attorney where the parties submitted what evidence they wanted to submit about jurisdiction issues under to two of the act and in that hearing backed almost two years ago the parties actually stipulated to this pertinent fact and that is that the current members of the board of directors and those that have changed since two thousand and twelve are private individuals appointed to this board by the board of directors and not appointed or controlled by any public elected official or state agency or political subdivision of the state and that stipulation was proposed by the union council and agreed to by council for voice and i think we start with that premise that at that point the record stopped in terms of submitting additional evidence about what control the state might have over this board of directors and the reason the unions did not put in additional evidence or seek to put it in to show evidence which might have addressed some of these issues is because of that stipulation and now what is this has gone back and is attempting to say well there is control and the reason there is control is because of this ability to potentially remove a board member because of the louisiana ethics laws the problem is that the board has the voices has already stipulated away that control mechanism in its own hearing before the national labor relations board regional attorney i think it did when its aaa did that the board of directors was not appointed are controlled by any public elected official or state agency or political subdivision and i think that stipulation was reliant upon by the union in not continuing to submit evidence or solicit testimony or question on the face of it what what it says the power is but the reason we don't know the answer to that your honor is because voices stipulated to the fact that there was no control over no control or control over that there was no that the board that i'm sorry that no political public elected official state agency or political subdivision either appointed board of directors members or controlled and so if  subsumed in that i think removal is clearly controlled but i also have an answer for judge about what the is the difference between the tennessee ouster law and our our law our ethics law here because they are not the same your honor the tennessee ouster law does include up broader scope of basis for removing public officials the louisiana code of ethics deals with things like nepotism self dealing now few since in office but the tennessee is much broader it allows for removal for those things surely but it also allows for an eclectic duty failure to perform duties and any law or potential violation of moral turpitude so that that  removal power is much broader more akin to the removal power that texas says in l t t yes then we have in the state of louisiana where our code of ethics is written very narrow to cover a very narrow scope of what's the difference here of louisiana law as well i think louisiana's law is written very naturally and it was done intentionally by the legislature when the legislature inactive the statute in one thousand nine hundred seven it knew about hawkins union members i think in terms of it it what it does is it does not do you have employees the right to self organization because under louisiana law we do have jurisdictions where our public school boards recognize and collectively bargain with teachers and school employees but the difference is under federal labor law teachers have a right to initiate a process to organize to have an election and to self determine whether they get to engage in collective bargaining and there is no indication that the louisiana legislature intended to are preclude that in the they are boys and the sovereignty concerns but none of those were concerns that the louisiana legislature had they did not for example identify the entity as a local school board or a local or a political subdivision in the act it could have it has done that in other instances for example with the transit company operating out of new orleans and the smith case that we cited in our brief answer his question thomas oh i'm sorry i apologize i didn't  thank you so much thank you i'd like to start with the stipulation argument that we just heard i believe that what counsel is referring to is a page is it's very early in the record pages nineteen through about twenty two and the stipulation was that there is no input from public bodies into the operation of the school that simply is not a stipulation about the removal of administrators and i believe the council is stretching portray the stipulation that way  if if that's accurate but that you can see did no control of the board public control of the board no your honor i believe that the stipulation was that the day to day affairs of the school are run by voices i believe that's what and  tennessee because they're not doing their job it doesn't mean that administrators in tennessee serve at the pleasure of the government and study it's very limited it allows and i'm looking at the article that allows for discharge only for misconduct in office violating the laws of the state intoxication illegal gambling and violations of penal statutes involving moral turpitude those are the five factors there's actually an interesting tennessee bar journal article that's in the february two thousand and sixteen tennessee bar journal that talks about how limited this is that the courts have interpreted it as a very drastic remedy that it's only allowed where there is clear  convincing evidence it's very similar to the louisiana code of government a lot of the nixon neither allows the government to alast government employees at the broad discretion of any public officials their very limited question whether or not a single factor is zero is enough and counsel never really answered that question but i invite you to read the board's briefs where they do concede that a single factor is on offer and that simply is not a reasonable interpretation of what is a political subdivision judge constant you asked given that they are trying to argue that the discharge whether or a hiring or firing whether either is enough and counsel never really answered that question either but they answered it for the court and l t ts and l t ts the charter school was found to be a political subdivision there was no right to there was no appointment of those administrators the only argument there was about the firing of the administrators so the council falls back and says well but the grounds were broader they could be fired for for violating the charter contract for violating public accounting standards for these types of broad things these are the exact things almost word for word that under bestie one twenty six the governing law here which is incorporated into the contract gives public officials the right to terminate the charter completely it's our broader right  getting rid of the administrators after all if you terminate the entire charter you're terminating the administrators jobs along with that and i think it bears emphasizing that the fact is most of the good people feeling protect the welfare of the students be only to satisfy performance standards your honor this is exactly my point those are the things investing one twenty six that and if you look at the contract and we cited the page on it and the record in our response to their twenty eight j a lot wrong l t s those same factors about my question could they fire the board member because they didn't like the charter school going with an ad we school in the easy and it could be removed the board members in it and force it to be put to make i don't think so i think the answer is no and i think they have the same answer in texas i think they're both circumscribed to that extent but the point that i would make your honour's is that the voices you know they try to portray voices is just another contractor voice is not just another contractor it exists solely for the purpose of operating international high school and if you take away the charter you are killing the entire the entire operation and so of course the administrators ok thank you very much your honor the court will take a brief recess before considering the final