the issue in this case is whether the apple e defendant orange county department of education should continue to enjoy eleventh amendment i'm unity in view of california legislation known as assembly bill ninety seven enact it in two thousand and thirteen eighty ninety seven constitutes a fundamental decentralization in california's educational system from concentrated state control to local control over the finances and provision of education by local county boards of education mr james i understand the argument with regard to some of the delegation of control issues but as i understand it from my reading of your briefs and looking at the law the bill itself didn't change the fact that the state still set a a maximum amount to be spent on students and then provides the difference between what the local school districts are able to raise through local property taxes so the state still provides most of the funds doesn't the state in the case of orange county department of education in the one year that i have the actual statistics statistics for provided a little less than fifty percent under the new local control financing formula but you didn't answer  question because his question is pretty important which is under the old statute as it was before ninety seven it didn't matter how much the to run the school otherwise the state had a max they had to have and they tracked it out whatever the locals gave and they paid the rest and therefore they were responsible for the funding where whatever they got from some place failed they got but it didn't matter the state provided access if it didn't equal what they had to get and the orange county department of education gets they make up any difference from what they say they have to have that's not correct you're on well as a way tell me where i find that in the briefing or where i find that in the statute well where you find that in the statute well my entire briefs are directed towards analyzing the statutes with respect to where the revenue was coming from and  think about it again because judge thomas question is very good they replaced the revenue limits they replaced the funding grants and they said those those receiving streams had to measure the progress but none the less with what they replaced them with which was the base grant a supplemental grants the concentration grants all these grants nonetheless after getting all of them in there and they get to give them doesn't matter what happens as relates to this funding outside the states per pupil funding to rived hast to be no your honor under the statutes the revenue limits system was replaced with a base grant system which allows the local educational  entity in this case the county board of education to raise additional local revenue over and above what they get from the state they could do that  for not only the revenue when they said they could raise anything they wanted under the revenue limit system has long as after they got through raising it and the state would look at it and they'd say here's the revenue limit system you've at least got to have that much if you didn't get out of the county we're going to have to pay it well that's not the case and that's exactly what's happening now under the base grant they give them a base grant they give them a supplemental grant they give them a concentration grant all of those are calculated in a way such that the prior funding mechanism remains the same i it changes it changes the nomenclature from an explicitly says we are no longer having a revenue limit system we now are switching this to a base grant that doesn't answer the question again well and then you look just because your name and had a dog doesn't mean it is a dog the bottom line is and this is the very fundamental question judge tallman ask and i'm only following up so you make sure you understand if in fact the state is still responsible for the limit that they say is of per pupil funding limit whether you call it revenue limits or base grants or supplemental grants or whatever if they're responsible for that limit you lose on funding but the revenue limit system is no longer in place i understand what your honor is saying that if you just call it a different name it's still the same thing if it if that's the way it operates in practice but in practice and per the statute that's not the way it's operating now the way it's operating now let me see if i can come out from a different way is that still true that the state sets performance goals for students statewide proficiency i think is the term they use standards they have yes like six or eight category and then the local county boards of education are supposed to come up with these plans basically to explain how in orange county or in mode county we're going to meet those state proficiency goals isn't that how this system works and basically yes with providing much more discretion to  local agency to decide which well i already how you meet those goals but you still have to meet the don't you don't they still have standardized school tests that they administer to make sure that the children in the various grades are at vance ing to meet those proficiency levels yes but the provisions does the state also provide or specify the textbooks that are to be used in teaching certain core courses like california history that i took when i was a seventh grader i'm not sure ok i think they do do they also set the certification standards for the teachers and how one becomes credentialed in the state i'm not sure i think the answer is yes so i'm having a very difficult time understanding your opening statement that a b ninety seven amounted to a sea change in the manner in which the state complies with its california constitutional duty to provide education to the children of the state well on this second mitchell factor which relates to who was providing the from the state of ca i'm not from california but my sense is that there has been a change in nomenclature you're absolutely correct about that there's been any change in process there's been a change in stance you but essentially the you can't say that there's no funding such that there's no arm of the state in the county educational system because there is funding there is grants and what we really need to do is resolve whether or not the change takes us into the mitchell factors and whether the m factors mandate a result that dictates the orange county system here is not a normal state correct i mean legally that's how we should approach it right i think v ninety seven not withstanding the change and the reasons for it money goes from the state as it's supposed to to county educational systems that's and the question then is whether or not in mitchell or in this case mitchell mandates that we follow the laws of arizona nerve of the ninth circuit cases and in the other states have found that the school districts are not arms of the where the local of that crown the board of education can raise foreign loans over and above what they get from the state under the l c f f it provides a minimum base not a maximum i mean and that's right in the statute of the and in practice i mean i ask you a question you suggest that the o c d gets thirty nine percent of its funding from local revenues i read in both braves trying to find out what those were you know where they get this revenue it's phrases all their local revenue i understand so you know where they get it they get it from local taxes not from the state is that in your brief yes repeatedly well i what you do say is that the o c d misrepresents all funding coming from the state because their report said they get thirty nine percent of its funding from other local revenues what it didn't say is what those revenues are those other local revenue it's it's from their local tax let me ask a second question isn't it true that the l c a p s must be developed using a state provided template yes but isn't it true that those same l c yes and they must address these areas for all of the students and for all the particular subquery subgroups of students isn't there right in the statute fifty two zero six trying to make sure that what you're telling me i have some of these questions is not true that the l c a peas must address the implementation of the academic conduct content and the performance standards adopted by the state board yes we great discretion now at the local county level as to which priorities they emphasized and which priorities they don't but  that's my understanding was that the local school district prepares the draft plan and approves it and then it goes to the county board of education that has to sign off on it but then the county board of education sends it to the state for final approval isn't that the true i think there is some approval process by by the state superintendent that sounds to me to be a continuation of statewide control of education it depends on who is doing the addressing who is the one that's deciding what the what the priorities are and i think that makes sense i mean suppose that you have a  school district and maybe los angeles county that has a predominantly non english speaking non english as a as a primary language base so that their big priority is going to have to be teaching english as a second language to the students of that they can survive in this society and that might be a very different priority than a rural county in northern california that has relatively few minorities well i think your honor just identified one of the principal reasons that a b ninety seven was enacted to give private districts a little more flexibility in terms of making sure that every student who advances from k through twelve basically meets a minimal proficiency language skills in english right what's that that maybe one one aspect of it but the county is the one at the county level they decide are we going to have a special program for disabilities students with disabilities i thought the state one of those priority areas actually is  compliance with english and lang's or developing english skills i'm sure that's correct your honor but the question is who is it which before it was the state providing this now sensible way to address a problem given the vagaries of california's fifty eight counties and their differing demographics i agree but that's not the way it was doesn't want answers the question as to whether or not the state has relinquished its control over basic education that must be provided to all the students in california prior to the implementation of a b ninety seven the state decided down to the to the minuscule portion each priority what each county was going to do right now it's the county board of education and i saw it from los angeles county might be very different than the priority of which are the california supreme court's interpretation of the constitution say that the state must spend an equal amount per student under the constitution are you arguing that a p ninety seven is unconstitutional the whole well if you didn't argue that then how can i say that a p ninety seven is at all good because it seems to me a p ninety seven cannot overturn serrano one or serrano two a p ninety seven can't be enacted to overturn it you've got to spend an equal not all forevermore california's education system must be based on the revenue limits system no but it did say the state must spend an equal amount per student that is constitutional that of fornia law your honor respectfully it did not say that what it said was the educational funding system before us is not const it is unconstitutional why it didn't spend an equal amount per student then the supreme court came out and said the way you're looking at this is wrong california and california came in again and said we don't care what the supreme court says the california supreme court says you must spend in the equal amount per student and we're holding to that that first of all that's not what serrano said serrano said equal opportunity equal access to education secondly it did not it did he could not say for evermore we are going to have a fix revenue limit system the campaign for quality education case and many cases have come out and said the legislature is the one that has primary authority here and this court does not have the jurisdiction to say eighty ninety seven is unconstitutional three hundred th because of you just said though is your argument is going to say i don't have any authority to do it right i was just reading what your argument is if a p ninety seven for runs according to what i believe serrano one and two say then it seems to me that your argument is again not accessible serrano does not say that it says equal access to educational opportunity and that's an argument for a different case that's almost league zakk the argument they made in this campaign for quality education case is that while the constitution provides provide standards it provides equal access equal amount per student and the court came back and said no we will not legislate from the bench eighty ninety or it's said that the legislature has total of forty in this area and a california court says this is unconstitutional and legislature go back to the books and come up with something that is it's all up a speculative hypothetical question whether a b ninety seven then your answer and good morning your honors jeffrey thompson on behalf of the orange county department of education here in california we do have a very unique system of school districts financing that begins with serrano one and serrano two and proposition thirteen they require that the state provide equal funding per student and they eliminate the district or the county office of education to raise taxes only the state determines what portion of property taxes will be paid to school districts or county office of education and because of proposition thirteen no public school district no public county office of education is able to go out and raise taxes to satisfy a judgment so if so where where or what is the meaning in the department of education i think of the education of other revenue sources your honor i didn't address it in the brief because it's not in the record on appeal so i didn't think we could on the website the county office does listed it receives a lot other local revenue thirty nine percent i think is the number that revenue comes from things that it provides to other school districts for example special education services the county provides deaf and hard of hearing services to other school districts and the school districts with poor pay a portion of their funding which comes from the state to the county office of education to provide the services the juvenile court system the county office provides schools for those it is still funding that originates with the state but it's paid to another agency because they have students in their district and they don't provide those services i don't have that on the record on appeal so i can only introduce that with the way the system works and is that the bulk of the local revenue comes from whatever they can squeeze out of property taxes with the  overarching lid of proposition thirteen correct and this is a chance to augment the difference not only that but is the state alone that determines what percentage of local property taxes will go to the schools versus the make california unique from arizona alaska in terms of what this court the ninth circuit the term and it was that in those states the school districts in those states have the ability to raise local property taxes proposition thirteen precludes that here and when you couple that with serrano versus priest and the but versus state decision in which the supreme court mandated that the state had to fund the school through the one hundred eighty days plaintiff has argued that the campaign case that he cited the dissent opinion from the supreme court somehow stands for the proposition that we don't have to provide a minimum level of school from the state that is not correct at all what that he said was it's up to the legislature basically to decide if there is a minimum level of funding it's not for the court to determine if there's a minimum quality of education is what it is it's not it or so if i understand i'm just trying to put this in perspective and now the state gives everyone the bas calculated according to the multiple the statutory amount multiplied by the number of students and then the state also determines how much property tax goes to the each individual school district correct so in that way how is that similar to or is it different from which is i understand councils argument which prior was the state gives these revenue limits and funding grants and then they look at the property taxes or the individual county property taxes and if there isn't enough to meet their per pupil funding they fund more or they don't tell me how that is equal it is the same because they do the same thing if they look at the amount of property taxes are deducted from what you would get from the state in the supplement the base grant the supplemental grant and the concentration range so if you live in a poor rural county that does not have sufficient property taxes for example the state is going to supplement that if you were picking this up on other words it is the same formula as was used in the revenue limits and the funding grants just with different names different names and your honour's are correct as players counsel is there is more leeway at the local level to what i would call the move money around to fill a certain bucket they used to have these very limited grants that you would get that you could only use this money say for early morning breakfast program or you could only use this money for  english second language or only use this money for some other limited purpose the school that the state has given the local district the ability to say ok we have many the second language probably don't students and we need to focus on that in order to get them up to speed so that they can pass the state mandated tests so that they can succeed going forward it has that autonomy to move the money around a little bit more subject as the core pointed out to the state control of all of those are those the only things that changed i mean it seems to me that if everything's the same the governor and the legislature went through an awful lot of trouble and expense not to do much i think aldrin in the state of california i think the big difference is there is more flexibility at the local level to teach change the money around is that you do not have sufficient you know students who are sufficiently versed in english they're giving them more money in the ability to focus in that area as opposed to math or something else like that where you're ok it so there were significant legal changes that effectuate different and presumably better treatment of students but the legal issue that we have to decide is whether or not those changes impact whether or not your client functions as a state actor an arm of the state or entirely autonomous right correct and then what's your answer there it is an arm of the state as basically held by the but court by serrano one into the funding that iraq the funding it derives is from the state and because the state mandates a minimum level of education in the event that my client was hit with say eight are we able to decide that without i mean do we have to do a specific analysis of these mitchell factors because mitchell as i understand it was the spring board in nevada arizona and alaska to come to contrary rulings for what you want from us you do because those rulings and again the big difference between now that i'll ask in arizona is that the local school district could raise taxes proposition thirteen precludes that from happening in california they also don't have serrano similar decisions and no state correct they that they don't have that but as i look at mitchell factor number one is who's going to have to satisfy judgement and in this case because  to satisfy any judgment of the school district heath so if i were to ask you what is the effect of forty two twenty three a j what would you tell me its effect is it isn't that the central issue of whether you are performing central government functions without stake c yes but but i would say that the effect of it is not significant because the funding is still coming from the state and the state is still mandating the standards well i didn't find your explanation of the effect of section forty two thirty a j in your briefing and so that's why i'm asking you directly the question because the your opposition is suggesting that forty to thirty  j really makes the entity the performing of the central government functions and therefore is not anymore a state  and i'm going to argue with you but it seems to me it's at least that you now get to include local priorities it seems to me that it least says that even though you have to set the goals for the students and the specific sub groups of students and you must cover your eight areas you in general choose the ones you're going to cover it gives them more flexibility and so therefore there is some effect or really hard or what we're really putting our pencil to the paper about the is does the system now allow the school district to be the central government function or does it just allow them to mess around with stuff underneath the state umbrella that's what we're really trying to determine is that it is and i think as as the question from the court of indicated it is clear that the state still controls the system and it does allow them some flexibility to meet goals where they think they have specific needs subject to county approval and then subject to state approval because of five take the rest of the factors in the mental factors seems to me that you lose on the other three and i know we have all kinds of says that county offices are agents of the state for purposes of in acting the constitutional obligations i think also the that the state sets all  standards by which we operate i would also argue that we hold property in our name but it is for the benefit of the state is what the case law says very question that if a student fell down herb so badly because of imperfections in a parking lot on a school district on the property and got a judgment for a personal injury that state funds would be used to pay the judgment no there i mean the funds would come from the district's east branch which comes from the state so and the real issue is there's also a whole line of california education code where in the event that a district falls below certain reserve levels the state steps in and takes over the district at varying degrees that was true part of a b ninety seven and it's true now rightist curre i've unfortunately had the privilege of working for some state controlled school districts in my time so i know that happens that doesn't happen in arizona an alaskan about it though does it not because they have the ability to raise revenue and the at least in the alaska case they said that there's no obligation to pay for the state paid beyond a certain level of council let me ask you a question and i'll just keep using my my e s l hypothetical as an example in light of a b ninety seven instead of a block grant for that specific program prior to a b ninety seven was the school either board of education or district forbidden from using money that had been allocated for e but you got sued or are you wanted to do a lunch program for your kids and you didn't have enough money for the lunch program you couldn't move the money from e s l over to the lunch program it's limited to that program only but now in determining how the local district is going to meet its goals it can decide we don't need to allocate as much of our block money to e because the need is not as great in our district we can spend it on other priority areas correct that they have the ability to move it to where their needs are provided they're meeting all of the minimum right now i understand why i'm  we have a handful of students who need special tutoring or whatever it may be a special class because of the demographics of your district you can move money over to i think even ninety seven is really simply a change in normal nomenclature and allowing the districts a little more flexibility to meet the state obligations i don't think it changes serrano once around a two or proposition thirteen i think unlike the other three states in which the ninth circuit has found no nine hundred eighty three moment and unity there are there are no eleven of them and immunity there is no ability for these districts to raise money apart from it and i think counsel for o c d has provided no citation to where they can say all money still continues to come from the state the california department of education ever been the case in effect yes under the revenue limit system i mean the money comes in to the local county and then the county pays the state but  the system prior to a b ninety seven it was a combination of state money plus money raised locally wasn't on yes but that local money went to the state and then came back and came back as a revenue limit now that his come in completely changed under a b ninety seven now it's a minimum base grant comprised of a number of  aspects but they come up with a minimum base grant and then the county can raise more money locally and that's exactly what's happened here with the thirty nine percent of their funding coming from other local revenues over and above the property tax revenues that went back to the state under to comprise the l c f f and furthermore the issue is who has the legal liability and or whether the funds are necessarily replaced we state funds under the ninth circuit arm of the state test and here there has been after a b ninety seven no aspect of this that shows that that the money would not com from the local revenue in alaska ninety eight percent of the money came from the state yet this court found that it was still more of a a local entity and eleventh amendment immunity did not apply alaska has a very different system do they not they have a sense of what amounts to a home rule and in that particular case that i think you're referring to the school district was actually a function of the municipal government for the native village that was at issue in this case that i certainly don't pretend to know the details of well ask is a very i mean well you know they don't have counties they have boroughs but but of those don't cover the whole state it's a very very different system than what we're used to in the lower forty but you have eastern in vado savage in arizona and all over the country but they don't have prop thirteen and they don't have serrano and as they can raise local property taxes that will be on one percent and what for example i quoted a number of cases one of which said that sonoma county case which said yes prop prop thirteen certainly caps the amount of local property taxes but it's up to the legislature to decide how those local property taxes use well they can switch it between the schools and the counties and back and forth and that's exactly what the legislature did easier with a b ninety seven ok i think we have your argument i can't thank you very much thank you very much for the cases are you to submit it will get a decision as soon as we can