traffic and some noise outside all right i think we may proceed now mr route thank you your honor please the court it's an honor to be here today on behalf of liddy of appears on ken ross and their children they sought to intervene in the case that has been to this court many times but not in many years this is the continuation of the one nine hundred seventy two desegregation case that was filed against the city of st louis in the state of missouri regarding the jury rachel racial segregation in public education the case was litigated hard for twenty seven years and resulted in a settlement in one thousand nine hundred ninety at the time of that settlement on behalf of a class consisting of school age children and their respective parents the next friends residing in the metropolitan school district of the city of st louis the parties and the class council came to court and urged that the settlement agreement should be interpreted to exclude revenues to the charter public schools in the city of st louis charter public schools in the city  louis are where my clients children attend and they are members of the class they were members of the class of the time of the ninety nine settlement and they sought to intervene after asking class counsel to abandon their position in support of this relief because it would hurt their children's education the district court as you know concluded my client's lack standing we believe that's wrong and we asked the court to reverse that conclusion as a matter of law the district court started at the wrong place the place to begin an analysis on a motion to intervene as to whether the intervenor has standing is at you assume the relief that is being sought by the plaintiff in this case is going to be granted ok even if they get it you still the legislature still might give you as much money you haven't got you would not be heard at all that's down the road to figure that out i don't agree with that judgment the legislature gives money to public schools in the city of st louis pursuant to the funding formula that was passed in the senate bill to eighty seven in two thousand and five and the funding for allows districts and schools throughout the state of missouri to receive funding in a set amount and if there are charter public schools in the city of st louis or kansas city as there are and the school district receives local tax revenue the proportion of state aid under the formula is reduced by the receipt of that local tax revenue to the district and is proportionally per pupil increased to the charter public schools in an effort to equalize the funding between the two schools now what the relief that is being sa is would require is the state to discontinue that practice that the relief to be sought is it's a motion to enforce correct all men agreement to which your clients were were not parties to help me out here sir our position is they were parties asked ok then let me stop you right there if they were parties why aren't they already represented they the answer to that is because class council has chosen not to represent them any longer they've taken the position that somehow by operation of their educational decision making mr ross this trial began his education in the st louis public schools and the position of class council is when he made the decision to take his child into the charter public schools he opted out of the class well there's no opt out provision in the in the settlement agreement he didn't know he was doing that and there are six thousand plus african american school children the city of st louis who at the time of the ninety nine settlement agreement clearly where members of the class those families are not being represented by class council and they admit that they're not being represented well did was the dish heard concern that was evidence that was presented i don't understand why that's relevant to your standing whether you are a beneficiary of the mayor and i mean even if you were not a beneficiary sell him agreement you would still be making the same argument that you're injured because the school that you attend is going to lose millions of dollars that's right judge i think in this case we have two independent bases for standing that the district work out wrong both times there's the first basis that is we're injured by the relief is being sought if the relief  being granted and that there will be fifty million dollars taken out of the state education department and there will be an order from the federal court that the settlement agreement prevents the state from reducing the proportionate aid to the district and increasing the proportionate aid to the schools my job my client's children sad that's the release of the lead and you allege that if that happens that your clients and their children would suffer a loss in educational funding for teachers facilities and equipment necessary for the children's education right that's correct and that's the allegation on which you base here claim of injury in fact that's correct that's correct how as far as whether that would actually happen you think that's a factual issue that could be raised later in the litigation i whether i think there would be evidence presented regarding that if we were allowed to intervene and as to as to the resolution of the factual dispute if it was in fact a dispute it would be appropriate for the district court to resolve that where we are right now and rule twenty four is we are interpret ing our allegations liberally in favor of intervention so the district court won't resolve this case without a concrete understanding of the factual scenario that he's addressing which gets us again back to the independent basis for standing that give you standing in the intervening ordinarily a class member is presumed to be represented by class counsel and there hasn't been any motion to remove counsel or something for inadequately representing a class we have not moved to disqualify class counsel i don't think we should class councils done a great job for many years representing the school children in the city of st louis and then to our great surprise  dismay in april twenty sixth seen they took sides with the school district in a funding dispute but what authorities are that class members who end up disagreeing with the approach of class council can intervene as  accepted proposition fortunately it is your honor you need look no further than this case in one nine hundred seventy six in this case in the underlying case the plaintiffs had reached a tentative settlement agreement with the school district that was only going to apply to certain types of educational settings the dollar c p and and mr caldwell disagreed with that and sought to intervene to represent the members of the class and and the district court said you're too late you may not intervene you're untimely to intervene and this court said no no they did no way to know that this was going to affect their interests in till such time as class counsel approached caldwell was a member of the class called i was a member of the she was allowed to intervene is she on her own behalf is interesting that's right she was allowed interview on our behalf and and that's where we are seeking here there are families that are not going to be heard by the district court there will be evidence that will that no party is presently equipped to present to life and i mean i know this gets into rule twenty four and there's a question whether we would address that if we thought you had standing but there is discussion in the briefs about it were i would the state be in a position to defend its own statute well the state state's positions are broader and their interests are broader than the interests of the people i represent has said in national parks conservation association and south dakota versus to behold sorry if i'm but butchering that that name where the individuals who seek to intervene have a more narrow set of interests that may not be protected by the state under the parlance patri a doctrine they are allowed to intervene in fact have standing to protect their own interest because they're more narrow and more specific than the broad state interests and but i thought the issue here would just be whether the state law is consistent or inconsistent well what if they lose on their jurisdictional argument then what happens if that is i don't know what happens your honor for if my clients are allowed to intervene i won't have a say in what happens but my own you're saying the state has not said whether it would defend its own statute if the case is properly in federal court the state has affirmatively filed pleadings when asked by the district court for its position on the merits and said the state has deliver really not taking a position on the merits of the relief being sought by the motion because we believe you're in the wrong jurisdiction and not to be too crass is that still the state's position today to the best your knowledge to the best of my knowledge it is that was filed before the ministration changed it it is and there's nothing in the record that would suggest otherwise and district court ruled on jurisdictional question the district has not and frankly i've been living in fear since the district court denied our motion to intervene that something would happen on the merits in the interim fortunately for my clients it has not happened and i hope it does not happen by the district court continue to have jurisdiction over the case and there are no pleadings opposing the relief being sought none the only one that was filed was attached to my motion to intervene well i understand but i thought the disc or would rule in sequence presumably it would first decide your stiction and then when at that point the state have an opportunity to address the merits if it so chose it may you know it's up to the district court how to handle it how to handle the case and what we would like an opportunity to participate in that case we believe we have an injury we believe that it's we have clear causation and redress ability and we need what do you say to the argument that your pleading in some of the affidavits used the words could have been my dear i think i think  extent of the injury in order to have standing if you have the injury you are allowed to intervene and try and protect against the injury and that's what we'd like the court to rule i'd like to reserve the balance of my time  are three attorneys arguing for the apple ease and i understand mr norwood wishes to argue first is that right all right well we'll hear from you first then you may raise that there's a button on the right side there that on the right side of the let him can be raised it will go up for you there you go to thank you maybe good morning this court in the case of united states vs duran has denied intervention on standing grounds by concluding that the arguments that theories that were being asserted were at odds with the government contract and the governing law we respectfully submit that in this case the arguments raised by parents raised by a meek on quite frankly are at odds with reality at odds with the factual reality of what this case is really about expanding now going on forty plus years their arguments at are at odds with the various decisions of the district court various district court judges judge hunky judge john before you get too far in the weeds why didn't the district court addressed your diction first because it was a key part of the settlement with the missouri legislature put right in the decision that any theatre claims should be adjudicated only in state court about the monies and the sales tax revenues well yeah i mean that's that's glaring council well no actually that the language of the settlement agreement provides that if there's a dispute between the plaintiffs and the state that that would be litigated in federal court i thought said the money claims are going to be in state court tele tell me true ned that is not quite as ok what's supposed to be in state court is what i'm trying to if there is a situation and this had occurred in a prior case where it's solely a dispute between the special administrative board and the state those go to state court if there is a dispute and they've actually had many disputes that have been resolved by the district court for instance there were some section ten monies which involved money set aside for facilities and when there was a dispute and with the consent of the state those went back to federal twain assimilates and the board about money it's in federal and state court it soley the essay be the ollie involving those parties that would be in state court if it involved the plaintiff seeking to enforce the settlement then they have a right to be in federal court which is why we're in federal court today are now gone back to your have no claim on the motion to enforce because this money is clearly supposed to be with with the local schools but why isn't that a merits issue and the only question before us is standing well there is an entertainment and as the court court held in jarana asks the question is whether or not it's that i it's with the contract and so we have to look at the contract the four corners of the contract or the eight corners if you include judge limbaugh's judgment and so  based on that if you look at that contract it's pretty clear unequivocally that those forums were unconditionally assigned to the school district but that's not all dispute i mean that's the whole dispute in the district court over this standing the question is whether or not the record shows a concrete injury and under spokeo it has to be a real injury it can't be which is what mr root and the hillary in fact i'll quote from m when judge aubrey looked at him in a perplexed way and asked him ok well what is the injury to your client what in the record what have you produced to show this injury and at page five ninety four of the joint appendix that he said quote and if the charter schools lose funding and the charter schools have to reallocate resources some may have to close i don't know exactly what the financial circumstances are for the charter schools we may be able to present evidence on that down it on that if we are allowed to intervene in this case but that's down the road but doesn't mean how bad it's going to be it's going to be bad us to know how bad it's going to be well what what the supreme court has held in spokeo and the  whitman case and the hollingsworth case is that they have to present evidence in the record when there's a jurisdictional challenge you can't wait down the road because that's not concrete because that's what was why don't we just go based on the pleading at this stage well that's exactly what the court and whitman and hollingsworth and in fact even in this court has held that you can't go by the pleadings when there is a challenge you have to did not provide for this sales tax revenue to go to charter schools and for seven years back to the merits no this is related to what the statute provides and how they don't get they've been getting the money you've got a list of well they rely on seven eighty one in their brief and they say that seven eighty one gives them a right to receive desegregation sales tax proceeds and what i'm suggesting is that under seven hundred one that was not the case and for seven years we received every penny of that revenue and it wasn't until the state a changed the law by way of two eighty seven senate bill two eighty seven that then that money which our view constitute the breach began to flow to then years ago before you went to court go ahead that's right yeah and they basically if you look at the statute and how was framed up in terms of funding that funding consistent with the sun agreement and that money that flowed to us unimpeded for that seven years with no objection by the state no objection by intervenors not jackson by anyone and then our position is that when the state changed the statute and interpreted the statute to include monies that were specifically allocated by the settlement and by judge limbaugh to go to the st louis public schools district that back constituted the breach what is your position on their statement that they are able to intervene as did cal well years ago as class members who aren't being represented by the class well you know first of all this is post judgment and federal twenty three talks about when it can be modified when  a final judgment to be modified because as mr a motion to enforce correct and this is specifically a motion to enforce and a motion the whole state contempt and in the last forty seconds i remain they claim some derivative harm basically by the loss the funds to charter schools but the missing link as pointed out by judge benton is that the state hasn't indicated that they're going back against those funds nor in our view do they have a legal right to go back against those f and so that will what about pro spectacle and even if they don't go back this is a stream of funding that's going to be eliminated going forward well we believe that under that statute it's two prongs the formula says charter schools get a certain amount of money and we believe the state will be continue to be obligated to pay that part of money the issue we have is when they take our money to give them they can use state funds under that formula and we believe they're required to could pay them their money and payouts our money because that's what they were obligated to do by way of the final judgment using state law already requires that the money the amount that's coming from the local tax be target in that to mean the settlement proces that was specifically designed to pay for specific but i'm saying if you're right those funds need to stay with the board yes then is there some state law that you say requires the state separately to provide that amount of money to the charter schools or would that be an open issue in that formula the way the formula reads the state would be obligated to pay them in accordance with the formula and we would be entitled to keep our money under the orders as in the by juggling bother but under the formula you're saying they should not get this incremental amount that they're getting now from the law from the local tax or any no no what we're saying is that the state can't take desegregation settlement sales tax proceeds and use it for any purpose other than specific desegregation remediation programs because that's what the parties agreed to and i am out of time and so i want to reserve by and allow plaintiff coun may have please the court william douthat on behalf of the point of class we seek to preserve protect and enforce our right to the remedial and programs stated in the nineteen ninety nine desegregation agreement based on this court on bonks ruling that those remedies are the law of the case in th court's on bank ruling in one thousand nine hundred four regarding that settlement agreement there were specific provisions that were set for in part when the court approved compensatory programs in principle as the law of the case it found that the long as the roomies relate to the constitutional violation are remedial in nature and account for pointed out the district court order binding on all parties that the sole purpose for the expenditure of funds under the remedial incompen where as here there's an adjudicator equal protection violation where this court in adams determined that there were only two adjudicated constitutional violators the absent state of missouri and the st louis public schools the dual system was determined by this court within the st was public schools that is where in the desegregation remediation would lie charter schools created post final judgment in settlement negotiations or you know of a you know wrote a good a lateral act by the missouri legislature does not imply settlement condition when parties are equally engaged in negotiations under court supervision of a legislature was not a party this legislative process to govern and a legislature not a party this right absolutely they were represented by the state of missouri at the negotiating table and i can state in my place there were a nonparty never called before this court before this court or the district court for a segregation violation therefore they were not part of the settlement agreement strangers to our contract that as a remedy it's a non entity the remedy for the rulings of this court must be with him say it was public schools the district court found that the sole purpose for the expenditure of funds being to remove the segregated school system that in no way can the funds be expended for other than the city board's constitutional violation johnson will hear from you proposed intervenors appear in this court as beneficiaries of the state of missouri file a sion of our settlement agreement a violation of a federal court order this assume that to be true that that's what we're going to be prove that's what we'll be able to prove in the lower court under no theory of law or fact is the being a beneficiary of a violation of a court order have one for you i normally was the plaintiff is suing and claiming standing were required to assume that the plaintiff's claim has merit interact and so by analogy they're arguing punitive intervene or moves to intervene we have to assume that the interveners claim has merit so the interveners claim is that there entitle to this desegregation remedial funs correct i gather there the state law is not inconsistent with the settlement agreement a grant so so there their position is that the there that there has been no breach but the what i would say is that the the money that the desegregation sales tax generated that the state didn't have the authority to assign that to the charter schools the state of missouri may have to pay that itself but he can't take it from our remedial fines that's our position all right per well thank you thank you for the argument mr johnson root you have a little time remaining for a vital so hear from you thank you judge politan it's a great place to start i think in national parks conservation association this court said when evaluating a motion to intervene for the purposes of standing you assume that the injurious relief the plaintiff is seeking will be granted and evaluate whether that relief the injury that flows from that relief is adequate to confer article three standing on the intervenor we believe that it is and it's in our we put forth evidence before the affidavits from mr pierce and mr ross that the relief that's being sought will have a direct impact on me and my children it will hurt my children's education it will disrupt my children's education and their academic achievement we don't know exactly how but we don't have to know exactly how the injuries sir the school did the nature and extent of that injury is as yet unknown and the reason that to go back to judgments questions about jurisdiction that were in federal court is because the plaintiffs have joined with the district in seeking this fifty million dollars in back money and and and a person pro expected of injunction against delivery of that money going forward the settlement agreement should not be interpreted this way at the beginning of the settlement agreement which was approved by judge live on a friday night it's the plaintiffs unite states in the city board recognized the need for continuing remedial efforts to ensure that the enjoyment of full equality of opportunity by plaintiffs schoolchildren is not impaired by the effects of past segregation when the legislature passed a desegregation bill that gave great impetus to the  past facts of segregation it didn't exclude them from the class it didn't exclude children who had chosen to go to school at a parochial school in the city of st louis if they lived in the city of st louis or members of the class and beneficiaries of this agreement i have a question for you yes to fully understood mr norwood's point about the state funding but i thought maybe there was an argument that if the local tax money can go to the charter schools then the state law requires the state to provide that same amount from other sources in which case he i guess the argument is you would be injured well from the money will come to you from one way or another is that accurate i don't think so and i think if there's a dispute about that i think that from the state's perspective this is a zero sum game there are state funds that are available to educate students in a district but the state has not stated that is its position in this very case in their party right correct thank you correct and so they'll present law requires the state to try to equalize funding on a per pupil basis based on a weighted average daily attendance as students flow into the district the district's revenues go up as students flow out of the district near the end of the charter public schools the charter public schools revenue goes up similarly with the with the public magnet schools that the district operates the state's interest is equalizing the the funding for the for the kids my client's interest is protecting their children's education they should be heard the relief that's being sought will harm their educational attainment under this court's precedent they do have standing and we did reverse the district court all right thank you for your argument thank you jeff thank you all counsel for your presentations the cases submitted in the coral file an opinion in due course