good morning on a members of this court my name is david jordan from gallatin the mexico i'm the attorney for miles beam and it is a pleasure to be here in front of you this morning i'd like to reserve two minutes for rebuttal please please watch the clock i shall it's right in unprofessionalism and he has challenged that discipline on st amendment grounds under vivants announced the district court dismissed contending that hopi junior senior high school is challenge that use i don't challenge the apple compelling of it i challenge the application of it ok so you're not challenging that randall baker is in fact the case we ought to apply all you're suggesting is that it was applied wrongly as that is correct so if we go through the randall baker factors then you're going to talk to us about which ones were applied wrongly because there are four factors right that is my intent is all right i just want to make sure because your brief seem to be saying that but i did never actually say i was wondering if we would have to look at a different test is the question of whether or not there is a sufficient nexus between the federal involvement here and the activities well we understand that but what i was getting you to determine was the nexus exists when dealing with whether the employees of the private school and gauged in the state action where to consider four factors and those four are the degree of funding by the government i could go through them i'm sure you know them having read your brief so which factor are you challenging well that's a good question because the bottom line is if i'm to determine the nexus when i look at these factors then i take these factors and i put a mile out on my outline and i say ok which one is this guy after here and i say i'm having a tough time it seems to me they're applied correctly well the degree of funding is one hundred the st one the degree of funding by the government you don't argue that the funding of the high school is enough to warrant the finding to you i do not ok so then randall baker says no state action even where virtually all of the school's income is derived from government funding is enough so number one satisfied well ok so then i go to number two i'll try to do is get you to concentrate on the factors that i'm supposed to look at if you agree that rendell baker is what i'm to apply and then i go through and apply these factors which one did the district court apply incorrectly and i apologize i do not have the four factors in f it has to actually the particular regulation dead issue has to compel the the decision that's being challenged compelled or or so the supreme court said even though this was subject to substantial state regulation there is no showing that the firing decision had been compelled or even influenced by any state regulation so i guess here the court found that th firing decision here wasn't compelled or even influenced by any federal regulation said you on the explain why that's wrong yes the federal government if i may just take one step back before i answer your question because it  just funded school but it converted to a tribal right it converted to a tribal controlled school under the grant program yes isn't that stepping back rather than forward with regard to the federal  activity it is a very small step back if i may explain for a nd all aspects of the school including in particular what teachers are able to say to students are curriculum completely that what teachers teach students the curriculum in the schools is one hundred percent under federal control our position is that as a curriculum say  client to be fired the curriculum says what the teacher can or can't say the students our position is my client was not saying something in the curriculum and was fired and we and we're saying when when the federal one hundred percent intends to reduce the amount of federal involvement in schools where the tribes agreed to take over the operation of the school that seems to under cut your argument that there is a call it federal state action when the intent of congress is to do so the intent of congress is one thing the reality is something completely different but don't you agree that the tribe complied with the statue when it converted to a tribal leader and school so i believe that i don't think that's relevant to this analysis that is if the intent of congress in acting the statute is to reduce the role of the federal government in the education of native american children on a reservation i grew up on an individual what i promised by the reason that what is promised by the feds and what is actually done are never the same they did not give them the freedom that they promised them that's not the reality that's the point we're trying to make in our brief the reality is absolute federal control i mean and yet we made pipi statements about how we're trying to give you control up to the tribes but the reality is everything is under control including the decision to discipline yes yes grievance procedures there's an appeal to the b i am for grievance procedures how can you say it's under tribal control time i don't know he came to see me after the time expired so i don't have an answer as to why he didn't but my point is you can't say the federal got no involvement in these decisions when the fed or makes all the ultimate decisions the problem we're struggling with here is the supreme court has told us repeatedly that we are to be very wary of expanding causes of action in the absence of an express their cooperation by congress t doing what the supreme court has told us be wary of doing before you do it i understand that and i understand the congressional intent here appears to be to try and turn this thing over to the tribes but our position is when the federal government is  involved as they are in this case and we've listed in my brief the millrace aspects of this school that is controlled by the feds this is at best a joint venture between the tribes and the federal government grievance disciplined process for employees and other personnel and it says that thirty eight point one explains that thirty eight applies only to individuals in education positions  defined in thirty eight three and thirty eight dollars defines education physician as a physician in a peer a elementary and secondary school so indicating that the disciplinary process applies only in a tribally controlled school if you have agreement and it does not go your way with the school board it can be appealed to the b a that is my understanding of thirty eight point nine three three eight page definitely is but the question of whether or not there's any remedy is one thing the question of whether or not there's a sufficient alternate federal remedy is a different question our position here is there is no sufficient alternate federal remedy to protect civil rights in this case that it has to be federal my reading of the case law is that if there are administrative remedies available i don't read the case law saying they have to be federal remedies they can in this case they can be i guess and the ministry of appeal with or if the remedy allows the employee to challenge and obtain some sort of independent review of their constitutional rights that's one thing there is no such remedy in this case so you're saying the only remedy that would be available to him would be overturning ready the discipline and ordering was he fired or just  fired the administrative remedy have as one of his remedies the ability to order reinstate does the grievance can you can order reinstatement under the grievance yes sir i'm a little worried about what you said about c f r thirty eight when i read the letter july st two thousand and sixteen a letter from the bureau of indian education to the high to the school board and i read the policy g c q aff which describes the disciplinary policy for the high school teachers none of them list part thirty eight as a regulation was a political to high school if you're saying i'm trying to figure out why you say they are this is a high school i looked at that's the letter from the bureau of indian education to the school board i looked at the policy g c q aff which describes th military policy for the high school none of them list part thirty eight as in the regulation of pleasurable to high school so i said to myself i don't believe thirty eight is a political to the high school well all i can say is work my plane reading up thirty eight i mean if if that's so why would the bureau of indian education which they wrote write to the school board why would the policy which is the policy is scribing what your good morning your honors may it please the court counsel my name is akin brundle and i am here appearing on behalf of mr not mr low bank at the time employees of the hopi junior senior high school  located in or on the hopi reservation in northeastern arizona as is this court to correctly pointed out the factors that are set forth in randall baker are what appropriate factors correct and our position is certainly that they are the correct factors and they were correctly applied the st factors that your honor pointed out to the federal funding i mean we certainly acknowledged that puppy junior senior school as he tribally controlled grant school submitted the grant application to the federal government for grants lines so we certainly acknowledge that the funds it receives are regulations compelled or at least influence the firing decision here and in fact the federal government is in control effectively of this decision making authority certainly hon but i will also see i cannot prove a negative there is nothing set forth anywhere in any of the documents that supports plaintiff's appellants position that the federal government is any is in any way whatsoever involved in personnel decisions disciplinary matters at holby school we certainly acknowledge that the federal government certainly maintains some oversight of a tr control grant school they do have the right to request audits they do have the right to know where the money is is going to how the money is being spent but what courts in this very very long history of  these matters have set forth is we're not looking at the at the entire overview of the operation of the school so what what the district court judge said here was does the federal government or did the federal government at the time of this issue have any influence coersion involvement whatsoever in the disciplinary process that was involved here and the answer is absolutely not and the district court judge specifically pointed out in pointed to throughout his brief therefore be i schools it's a separate beast that is operated across a number of tribal reservations across the country but this as cricket and instructional standards saying you have to teach to that standard and he didn't he taught to that standard and yet he was fired so if that's a political well and his argument certainly around and also to make clear the term firing is also incorrect what the contracts for teachers administrators and other personnel in a school such as this are there non renewed other year to year contracts so it's not that someone is terminated they are either renewed or they are non renewed for the next coming academic year so just for purposes of the record mr bean was not terminated he was not fired his contract was simply non renewed  have to assume based on the plea that the reason for that was because of the alleged amendment violation for purposes of the argument yes that would be the assumption that is made whether we call it a firing or a non pointed out he had an appeal process through the school through i believe it's a policy g c q f he could have appealed that decision he chose not to there's also the indian civil rights act or if as as it's known  he could have pursued a constitutional violation through the hopi tribal courts that is certainly in an option that was available to him if he chose not to go that route the indian civil rights act and certainly the hopi tribal constitution the bill of rights they're very similar to the united states bill of rights and the effect is still the same the tribal courts are there to protect  pretty protect persons from having to suffer alleged constitutional violations which is exactly what mr beam has alleged here about those are the remedies that he simply ignored chose not to  put into effect so when we come back to the overarching question that was originally presented you know how much involvement does the federal government have here with the school when it comes to the disciplinary process it has absolutely no involvement in the cases of certainly set forth that in order for someone to be deemed a federal act or for purposes of bivins liability the government has to basically be so entrenched they have to have coerced somehow influenced and directed that decision but again there is absolutely no evidence whatsoever that the federal government was involved in this disciplinary process whatsoever in the disciplinary process also just for purposes to be clear since using terms firing and in terminating its stem from an incident in which mr beam was going to be interviewed by students at the student run radio a number of miles away from the school he was going to leave his class unintended unsupervised when mr not mr low because learned of this they told no he couldn't go because his class was not going to have a teacher that's what this stemmed from and at that point mr bean then challenge that decision saying because he was not being allowed to be interviewed on the student run radio program and that the school was somehow stifling his st amendment rights but as has also been set forth in the record mr bean had a history of speaking out for years and the school had never done anything it so you know mr bean was known to the school that was who mr bean was but again it didn't stem from anything that was said or not said it was the fact that he was going to leave his classroom back at the school and attended unsupervised with no coverage so is it your position that this case is similar to the department of defense hiring a contractor to perform some work and the contractor makes th but what was specific in that case was as the court set forth the government retained the right to terminate employees which we do not have here there is not a single piece of paper that  appellant can point to that shows the government the federal government retain any such right involving personnel matters disciplinary matters and that simply because none exist the other case is certainly  vocational person being hired because they wanted to ensure that a person with the proper credentials was going to be hired again there is no such issue here the federal government retaine performing what has traditionally been an exclusive parag of appellant wants you to believe that you threw the brief that the federal government has been the only entity that has provided education for indian children for well over a century but that's simply not the case just in the last approximately fifty years as your honor pointed out legislation has been enacted the indian self determination controlled schools act that we're that we're here because hopi tribal school or hopi school is a traveling control grant school the goal for the federal government over i mean even if you just look at the last fifty years and you don't go back to the johnson o'malley act you don't know missionaries and religious organizations that went out onto indian reservations more than one hundred years ago and they were paid by the federal government to go teach and educate indian children we have state schools in the interim that started coming out onto indian reservations and being paid by the federal government to then step in and take over the education of indian children so the overarching policy here by the federal government regardless of what appellant says what they promise is different than what is actually happening the fact is there is legislation on the books these acts are in place they work that's why i hope the junior senior high school is a tribally controlled grant school because of the tribally controlled schools act that allows the tribes to started and that start but to through their inherent sovereignty to get into the business of educating their own children and that's what we have here it's the federal government except in a grant application and saying here here are the funds to go run your school in your communities with your people you run them and as i said we certainly acknowledge there is some oversight audited financial financial issues but when it comes to disciplinary issues the federal government has absolutely no involvement whatsoever at the curriculum the same your honor the curriculum the curriculum you can probably say the curriculum throughout the entire country whether it's private schools public schools tribally controlled schools b schools is influenced by the federal government as is the same courses in curriculum have been taught for me ten thousand one hundred years but if you even if we were to accept that the c f r as pointed out by appellant are specific to the hopi tribal school hopi tribally controlled school it's is the shell teach math that shall teach history it doesn't say that you are going to teach these specific courses in history or algebra one or geometry two it simply says students across this country are going to learn math science history and such but the school is allowed to implement its own curriculum because many of the legislative acts and specifically the tribally controlled schools act speaks to turning the reigns back over to the tribes and a that the tribes have special needs and special circumstances they have a different culture and that's what the tribes are the in able to teach their children that are in these tribally controlled schools but if i look r thirty six point two four and read through it which i tried to do it doesn't seem to me that there is any regulation there which contains any subjective standard which would it could have compelled and i'm reading now or influence the defendants to decide whether to fire that's his allegation the plaintive and it seems to me that's the thing he's got to show right i agree one hundred percent your honor there is absolutely nothing showing the federal government retained any authority whatsoever regarding if they gave standards as to curricula or as to instructional standards there is nothing in there that would say that they compelled or influence the defendants to decide to fire the plaintive that is correct and absolutely no evidence has been put forth by appellant to the we disagree on the comment on the governing of curriculum the federal government does tell the schools this is what you shall teach our position is that this a district court should have allowed us to demonstrate on the record as we went forward because this was done at the beginning of the case that that the feds influence this but how is this any different from the federal government awarding grant situations if the federal government retains sufficient amount of control i could we contend they also can have been sly abilities of the cases i pointed out and i think your opponent cites in his brief cases for example involving the department defense or other cabinet level agencies that hire contractors if i was pretty clear that it's not sufficient state action to to convert them into federal actors i'm out of time but the only thing i want to say that i think makes th