in the jurisprudence that we have on race relations we have grass we have grutter and we have the parents involved case i think that in looking in reviewing all those cases and looking at where we are today i don't think that the  d policy there is any better than it did when we were here four years ago we're still left with the conclusion that somebody can be precluded from applying for a position simply because they were born to the wrong mother simply because of the melanin percentage in their skin simply because we've reached a critical mass in terms of the number of white versus nonwhite applicants that we have looking twenty five words or less mission is as it is self described placing importance on the value of diversity then why isn't the interest equally compelling  whether you're a student or your faculty member i actually think or so i think i can sum that up i taught in a minority school for ten years and sometimes examples are the best way to get to a solution i've just thinking on the way here is a appellate work so i don't need to deal with the quiets and it takes the humanity out of it but what i do know from teaching in a minority school and having grown up in a poor household with a blind mother in a minority neighborhood myself is that had i been precluded simply because of my race when i went to a quiet santa ana college to teach to those students it would have been a disaster because i did grow up in a minor minority neighborhood i was able to relate to those students on a much different level but what i had going for me was the qualification of a study in philosophy at the undergrad and graduate level i came to it with a law school education plus all of the experience of the things that were talked about in gratz and rather the ability to demonstrate what counsel i think we understand the general principles but i think we really have to focus on the two issues that are in front of us number one what does prop two hundred nine or section thirty one tell us so far as any state constitutional issues was there and then as you indicated there were do we stand with respect to the federal claim in light of greater gratz and more specifically which is now ninth circuit precedent the new decision in parents involved so if you could focus your remaining presentation if you don't mind those specific issues i think would be very absolutely what pro we get into the on getting back to judge reimers question on parents involved you say teachers aren't there from what in the record of this case or in case law would indicate that we could use that as a princip by which we could distinguish parents involved well that's just the problem with this case mr fry we never got to the place aside from his race to be able to talk about those things that we really are mentioning i think challenge though no i  think that is we look through the record there were questions about its application and its facial validity in its application we ended up with the problem in terms of you're the wrong ethnicity or wrong ethnic origin whatever the terms were and then we have the tell us the policy itself as it stands on its face and the issues about whether or not it can be modified to some future point in all of those issues so let's take them on a time as an on the facial challenge to the policy how do you distinguish parents involved on the basis of the record or the law well on its face and getting back to the answer that i tried to give judge reimer is that parents involved again dealt with a student based policy ellie u s does policy on its face is about teachers there's no doubt about that it talks about qualifications which is something that the the policy in washington would not have needed to talk about because simply by being in the district being within its boundaries you're qualified to attend one of the schools and then the l a district policy affects both teachers and students whereas the seattle policy affected students only is that correct that's more of us true that there was more of a direct correlation between l cities reasons for doing what it was because of students but in this particular situation with the unions involvement and the agreement that we have in place plus crawford we know that this was really directed at teachers especially with mr with respect policy is it i don't think that's true as a minus because he was trying to transfer a magnet program and for example example if he were a homosexual male knowing what we know about discrimination in the evolution of progressive law on the issue of suspect nothing in the record that i remember and that was two thousand and two yes there is nothing that i remember that shows that the qualifications to teach at the magnet school either addressed that but i don't have a say counsel from where i sit the fact that an attorney is representing someone who status he is unaware of is not very helpful to the court my understanding is that he was still employed as of last i heard which was in a conversation about a month or two ago with my form the wrong place at on the second question i have was i guess based on my concerns at the prior hearing which i satisfy but now you've raised again as to standing he did not apply for a transfer he inquired about a transfer we have a case that matz and purses boise state this is you've got to get it in order to make it as applied challenge that you have to follow through you have to apply you have to apply for a transfer of even i don't know why you don't have standing to make that challenge and in the prior case i prior hearing i thought he was a no no no or just asserting a facial challenge and i would suspect you might have standing on that basis but now you're saying we need more evidence in the record we need to put in evidence we're maintaining both at facial and and as applied challenge so tell me why your client has standing to make an as applied challenge when he didn't apply for the position he didn't get a chance to apply and i think that falls squarely within gratz and grutter with their acknowledgement that if for example if i walk into a restaurant as minority and i say may i have a meal here i'm willing to pay and they say no you need to leave because you particular position and that is enough to cause an actionable injury so you're saying he did apply is asking to apply for the position is i'm sorry i'm not drawing a fine enough distinction there are i apologize well do we know who actually to whom actually an application would go or who actually make the decision my understanding is it would have been processed through mr thomas principal thomas the gentleman that we did have involved here thompson restaurants and that that would have been the first step in order to get to the application process and that's why he had gone to the president and first place look at find that in the record i without being able to quote to an exact page i do believe that at least in that it would be in the policy or be in some kind of procedural manual or what i mean isn't particularly makes sense to me that you're your own boss we need a person who would decide whether you could transfer to a different school and he strikes me as probably be somebody slightly above the principal maybe not i don't know well as much as i might be inclined to just say well it doesn't matter that the principal said this and completely precluded somebody from even thinking about a position because of their race i'm inclined to say the grass and grettir still get us to the conclusion that that in of itself was an actionable form of conduct in terms of having a policy that was in place that was applied to this individual a specific matter that resulted in a racist decision that was based solely on race in the context of an employment decision however you know judge roberts asked you pretty specific question when you're answering answering or by talking about i understand your argument but i guess we don't know the facts at all in this case is that what you're saying no i don't think that's true and so who would have had the authority to grant the transfer that would have been at the district level  fact that he went to restaurants and it's in reasonably infer from there and was not challenged by the district that that was the person to go to in terms of having the capacity to deal with the issue about him wanting to apply for that particular specifically paragraph twelve for the talks about the fact the point of a gun to talks and for permission to apply for and transfer to a position he had learned had become available then i saw my school thomson would not let plaintiff apply for a transfer and deny plaintiff's request on the ground the plane of was white that reasonably infers and was never challenged by the district that there was an issue about needing to go directly to thompson thompson as one of the held the permission and that's not disputed  question about it it makes sense to remain and to the district court for an opportunity to develop their record before we go off considering whether to invalidate  a school district policy under either the federal or state constitution i think that enough standing his is that there's a critical mass for that but there is standing as i think is indicated by thomas at least arguably for the facial challenge and i don't think that it would make any sense to send it back and remain and without some indication as to how the policy itself fares as against gratz grutter and parents involved and again i think that that is a substantial issue in this case is how does that policy on its face knowing that it was a quiet and intended to apply to teachers in this case fair in terms of where we are even if we had some issues as we did in the situation with washington where there was x for testimony there were a number of things that we don't have in this case the bottom line is that there was a backdrop against which the parents involved in bank decision could look and look at gregory look at graphs and say all right we've got this policy in front of us and now we have a fully developed factual record but they were prevented from being able to address the policy itself and i don't think that this court would be either respectfully with those who me assuming there is standing just for the sake of argument from your point of view is your case just sort of a group that's defined by simply demographic or population changes or migratory behaviors of humans this is a very directed thing when we're talking about a teacher applying for a position based on his or her qualifications making the decision to go to a particular district it's not comparable to the types of social economic factors that we're talking about was student populaces when deciding which school to go to and you've got the open door policy that says we can fight anyone unless we get raises a critical factor i don't think exemption for pre existing court orders and there is a one nine hundred eighty one desegregation plan i guess my question to you is to what extent does that affect compliance after the term that was specified by o c r was completely voluntary and there was nothing that prohibited them from adopting a plan that would have or could be consistent with the principles stated in grutter and grass and yet still priority which is now only voluntary well apart from the voluntary aspect of it is it your contention that the order applies both to students and teachers or just to students i think that the overriding policy that o c r was concerned about and that the court in crawford was concerned about probably ultimately did apply to both because they wanted to see desegregation at all levels pulse they were talking about here has been in effect for twenty years or so and the only school district right yes how does prop two nine touch that because it only affects acts that are then  after the effect of the late one nine hundred ninety seven i think that that's essentially valance of powers issue i think that it would be disastrous if we were to have a situation where there have been a number of court orders or consent decrees within let's say two or three years prior that had an overview period of five ten years to give it an opportunity to for desegregation of the whites i'm not talking about consumers i'm talking about the policy the district itself the policy of the district itself that has at issue here  been in effect in one form or another for twenty years what prop two nine says on its face is that this section shall only apply the action taken after the sections of active day now does not preclude your facial challenge no and as a matter of fact i think that the fact that it had been in existence for twenty years actually suggests that two and one should have much more of a strong effect against it in light of the jurisprudence that we now have on the issue it shows  dealing applied retroactively it says it's only applied to action taken after the sections affected a this policy was in place before the sanctions affected and last year as applied challenge that may be different but  challenge i think by the terms of prop two hundred nine itself your facial challenges preclude i think the court if i recall correctly in coalition for economic equality did address that issue and said that if you if we treat the policies essentially have the effect of law and we have a law that's later in time precedence preference should be given to that was later in time and we've got the will of the people which can't simply be disregarded because we had a policy that's now otherwise unconstitutional for twenty was intended to effect change not to allow an existing but not required racist policy to continue existing simply because it was there there was no requirement to continue engaging in these racist practices and policies you're down about honor peter james for him the school district mr can you and us who represents the union is here as well and we've agreed that he may have five minutes of the time if he chooses to take you have twenty minutes total whichever way certain that i would have heard this is something that happened in the last two or three days thanks for checking and thanks for being prepared to answer the question the program guidelines would prohibit his transfer to the van eyes math science as magnet because of the composition of that school's hockey now is that composition changed at least to the extent that we should be made aware of it or perhaps have the case remanded for further examination or no i don't believe so your honor i was going to give you a little bit more information on that the the faculty i think and i use math science and i get is sixty five percent white faculty at the is seventy five percent black and so to the extent that further information is need to supplement the record i would be glad to do so in written form but what is apparent is that the ability of the district to go beyond the guidelines if appropriate skills are needed at least has been exercised to some extent i think that's that may not be a basis for for important part of our presentation if you give us a point of reference these numbers sixty five seventy five one hundred what is the base number that that would affect this in  forming arts both of the teachers are white and the other magnet medical magnet six of the teachers you know i mean isn't there a  between forty percent and eighty percent and so each of these magnet schools that brown eyes are outside the policy on the forty to eighty percent minority correct explain to me the transfer policy of the district and leave out for the second for the for the moment that this involves a magnet school on what what procedure you have when someone wants to transfer school what looked requirements are there and apart from the policy and with the policy and how does that transfer request how does that transfer request process your honor part principal of the magnet school and asked about transfer and was told that he was the wrong ethnicity and so he did not apply for the job so that it is dated and it is and the application is made through personnel so someone wants it is done through personnel and frankly i haven't pursued it to find out which person is or was the person involved but it's not done by mr thompson i see and it's not and it's done and as i understand it with the consultation of the principal of the  example the guidelines are guidelines adopted by the board the procedure for order to be the board of education of the whole district that's correct and the procedure is that yes the guidelines would bar the transfer one has to look at and involve the principal of the receiving school about the particular characteristics of the applicant or the particular needs of the school so the guys like this comes up most frequently other features are met and we think we've just been discussing and you have two cases have been filed in state court that i think this court needs to know about they are facial challenges not only to this program but also to the magnet school program and the so called pete of the permits with transportation program both of which are race based programs both of which originated with the crawford remedy court or r one of those cases is currently active the other case the one that deals with the teacher program has been stayed pending the resolution of this case is that when we got the notice about that is correct that consolidated or coordinated hand that was not a factor was if it didn't work on the other hand it had one unique characteristic that was different than all the others we found on like this all of the others have the paragraph that says in essence that if the supreme court in the state refuses certain sort of occasion this court will use its understanding or its production of how this the supreme court of the state would rule that's not present in this it included a point as i say that i wish we wish you hadn't and that is the point we think was designed was decided in bowling prisons and then of the no school district and that is that the transfer of teachers among schools in the district does not constitute and and section thirty one does not have qualifiers like this federal law does it for compelling interest or any of that stuff just if it discriminates on the basis of race well it just does and when you add into that the huntington beach crawford case posing to you the opposite side of the question to mr furnish counsel twenty five words or i think that that when we're talking simply about someone getting the same having the same position getting the same benefits same seniority at one location or another particularly in this instance runs on the same campus and maybe using the same parking space  it's not something that rises to the level of user discrimination of preference i recognize that the majority opinion and high voltage said rules will define these or will you use the normal definition  schools well if your is your argument on that and if you find understanding you're just saying ordinary transfer in the school district doesn't implicate in these policies on the fritz it's a shuffle policy that he's getting the same treatment so it's not preferential treatment is  one of the things that were that were quite clear that we will be able to show in the state court is the guy from los angeles district with not intended to be covered by proposition thirty proposition two o nine on the other hand as a whole see that the legislative analyst said that that some volunteer programs could be affected and the state may if they are and if they're there there's often save sixty million dollars at that point and that's the point we have to examine at that point the state was paying the los angeles district somewhat over four hundred million dollars for its desegregation program and the legislative analyst's knew this this was conveying to the public that the that the because i thought it was the easiest your honor our argument there will be that there is no in the in the faculty programs there is no preference or discrimination and in the magnet school in futility programs where there is a race based admission then it is permitted under some party but as between public employment a private contracting with presumably is not affected between employment education which one of those two concepts would apply in this case i think education  is just make sure i understand your argument are you are you contending that the fact that a magnet school is involved makes no difference in terms of the faculty as opposed to students and it's obviously  its nature a desegregation tool california supreme court on at least two occasions has said that the way you are going to fight a segregated school is not only student race and ethnicity but also faculty i'm running your honor raised the issue of standing in our response to the court that request for a briefing in gratz of grettir we believe that this court ought to follow the suggestion although not directly applicable in arizona differently this case will be binding on us in the in the california courts where the issues ought to be decided if this court rules against the destroyed are best of what the california courts decided well it's my reading on the high voltage to suggest that there may be a little bit too much electricity in that case to have them take on another one but that's on the other hand think of saying i suggest that you're saying i'm suggesting i now you're on so he created without leaving any additional kind of qualifications have been transferred i believe that's correct you got it if this policy word in existence there wouldn't be any in addition if you put it this way there is nothing in the federal and state laws she's in this case i do i do think that it's significant that there wasn't an actual application here because we there wasn't an opportunity to determine if in fact the person that was selected might have had for example more seniority under the collective bargaining agreement whether there were exceptions that could have been applied here the policy itself and the excerpts of record refers to getting advice from cluster administrator is which are administrator is that are above the local principle and none of that occurred here because i thought i don't think the lack of an application but i don't is any objection to his application or to his interest in the transfer from the union is there was there any union complaint or challenge no no there wasn't and then the union wasn't asked to intervene  he felt aggrieved he would have talked to you that's right that's right that that's correct but you know and so so i want to point out i also want to suggest that you do have the possibility here the the what i think should occur here is that you should decide this case guided by parents involved on the federal question and that you can choose to abstain under state law issue which is a novel and complex  states courts to decide this novel and complex issue on the state law issue but that you decide the federal question in light of parents and paul yes one quick question i mister just about a minute thank you so much and again i'd like to apologize for not having contacted my client the last two or three days i sincerely apologize for that but aside from that i think that the district's reliance on bowen is slightly misplaced and gets directly to one of the questions raised by judge thomas in bowen what we were dealing with were orders from o c r that were not yet rescinded they run rescinded is that we're here we've got a situation again getting back to the issue of a voluntary compliance simply ratifying something that you've done before in light of article one section thirty one provides dealing with that issue the other thing that causes me concern about of standing and i'm tending to agree with the union in this case is i think the federal issue should be dealt with i don't want to leave my quiet although i haven't talked to him in a little while but what i don't want to do is leave that injury swinging in the wind i think that the issue needs to be dealt with i don't want to have to come and revisit you in a few years i think we've got enough substance before us in the record and in the facts that we do have to be able to address whether that policy on it stays in the compared to something akin to all of this is a very bad example of a sign that simply said no blacks outside the admissions door understand the unions position is different from the districts position to this extent that they would like a ruling on the federal claim now and not reach the stay claim is that what you're saying i'm essentially saying that i think that it addresses the you know when you do a poll where you get again removed from that point just like i sort of found myself and when you asked me about when i did i last talked my client the one thing i know is that he still thinking about this policy he's still affected by it and he's still waiting for whatever remedy or lack of remedies they may think applied for it well again that gets back to is this policy the same as putting up a sign that says no blacks allowed in his view in the view of the record i think that's what the sign that policy did communicate to him through thompson an official within the school district and with that i submit anyway thank you counsel thank you for the case just argued will be submitted for decision on the court wit