thing that there are two issues on this appeal the first issue which we might articulate differently but i would articulated in this way it's whether this case should be retried against the school district claims belong to the children and the parents were their guardians that lead them and the claims that the children were that's adam is the only one that's relevant on the appeal is that the school is an interesting issue here and it relates to the jury instructions as well but i understood that the sun the child  this is if we can look at this i understood the the approach from the district court and your approach i don't know what kind of what the theory was with that parent speech but the parents the parents the parents speech was really for the for the child right the parents spoke out on behalf of the children right and so the protected speech of the parents was really the speech of the  child should have been imputed to the child because the child was subjected to retaliation you know what's the best support in the ninth circuit that supports that proposition well the we have any one circuit  which is called dangler where the father in that instance was the one who complained in the child was basically not allowed to be part of the national honor society and this was kind of the classic third party retaliation because  it's the parents who speaks out on behalf of the children if something is terrible is happening at the school such as a hostile environment based on religion which was what these parents perceived was happening and now the school is not in a they were like in a menu and i don't recollect from what's in the record as to what adam or mark actually told their parents so i'm sorry i can't respond to that question but you know read the briefs i just thought to myself well we have the evidence so you have to react to answer the basic question first so number one it makes sense number two there's no precedent to the contrary and number three we have  circuit southern district of new york in the eastern district of pennsylvania and there's no reason for the ninth circuit addressing this question as a matter of first impression not to follow that principle then there's the issue  's going to articulate the issue without even getting to that fundamental question was whether the jury was misled because the question that the jury had to answer the special verdict form was basically whether adam was retaliated parents had but his having a right to pursue what the parents said i mean everybody springer wheels as you see just a few minutes ago nobody for a moment says that he got up and said anything to the school so the question is what do we hear in court for everybody's wasting their time if the parents teach is not attributed to him the whole thing is a waste of time because everybody knows that he didn't say those things so that's the first thing when you say well the jury was misled i mean everybody must have been nuts they didn't know what they were doing the lawyers the judge the jury nobody knew what they were there for because there's no evidence beyond that the instruction  what plaintiffs allege speech was what quote alleged was protected consider these three things the parents if you take the whole menu of the trial and you take those two instructions i'm having a really hard time understanding why the jury was misled i understand the jury didn't find your favor but i'm having a hard time understanding why the jury chance couldn't figure out what it was doing well i try to write a long speech i  that that the child was being retaliated because of the parents speech and now it's true that instruction number twenty there there's a list of certain types of speech that the parents engaged in but then there's an instruction number nineteen which talks only about the child's own speech and i think most important is the special verdict because that's the question the jury is directly asked to respond to them so you don't think the instructions are so bad  confusion in the verdict is reinforced by instruction number nineteen and it's mitigated somewhat by instruction number twenty that would be my take on it then there's all this discussion in the court and there's all the discussion during the close thing argument and of course a district which wasn't party to the first case then this becomes less important anyway because we're not going to have the individual individuals there and we can but i think with the guidance of this court that we can questions on that so i think the school finance issue this is a very interesting case i think because it relies on balance your which was decided in ninety two and there's all kinds of stay there in the county in the with the county board of education or does it go to sacramento the school district collects that money so they can spend it on their children they have the s district is not actually collecting the county tax collector collects property tax money in the county promina county pacs collected then distributes the money to the various sources you know special districts and what not to get their share of the money what with the school money does it does it does it go directly to the district or does it go to the state board it is interesting when you talk about this education fund it just sort of this accounting method i think the important fact is that the money that's collected the tax money that's been collected for the last last will need a school district is local it's not shared with any other school districts because they have deliberately to spend a lot more money on the education of their children and in fact the expert got three says they spend two to three times as much as the average elementary school expenditure and forty four percent more than the average general expenditure now we're talking here about sixty districts out of the pot a thousand in a state and we're talking about they're serving about one hundred and this is all in the experts declaration hundred thousand students out of about i think whether they could or not is irrelevant just as the question of whether they are to the extent to which the covered by their insurance joint powers agreement is irrelevant because the first mutual standard the most important strategic decision to opt into the revenue limit equalization program with the rest of the district because it would no longer be wouldn't have those dollars to give to other district i thought everybody thought they were all equalized and there's a run on him but you know what is that often an opt out mean well as i understand the practical matter i mean what what does the district i don't know of any basic a district tha decide that they want to just use their local property tax and you know spend as much money as they can write as they can they send a piece of paper in the sacramento and say we opt out of your stinking  program i just don't know what is it just as i'm as an accounting matter just as the way it figures out when the government making these calculations is always someone so got so much tax and therefore they only get so much money or is it really a an affirmative act by the district saying we don't want to be in your stinking program and so we're sending in this piece of paper i don't know how it comes about but i do know that the basic gay districts are the rich districts and  been a lot of changes in the school finance law and i think that if you look at these other state cases like holes and east and savage you find that the ny circuit has struggle lot with the ballenger case but but you don't have to go as far as to say balance your is invalid although i believe it is because all you have to decide is that it doesn't balance your clearly talks about the equalization and the state paying the money for the judgment and they didn't contemplate the basic eighth district and may not have known about them at that time either thank you very much good morning i'm joshua by represent the pelleas in this case i think that there is always a good reason for a circuit court to avoid reaching a constitutional issue like the eleventh remember if it can so i'm going to start with those earlier propositions and issues that n case and that's mentioned a little bit different well if you assume that the theory presented at trial was that adam on was trying to enforce his parents first amendment rights then i think that that case applies in the standing test in that case does apply in the element which is not shown here and which i guess appellants are asking this court to relax i think that was the phrase used in the reply brief that element is thankfully different from the weapon case it is different we haven't found i haven't found in my research a case that's closer however and watson does clearly state the test that applies to third party standing situations so i'm assuming that that's the test that's going to apply unl panel decides otherwise they haven't really presented a reason that i can see why that same three part test should not apply and in fact the out of district grad a circuit cases that were cited by palm and their reply brief they don't really abandon that test the case they talk about most often which is this dangler decision out of the new york district court decision in that case the district court decided that because the father's that was the third party in that case the father's claim would have no monetary value that met the element of some obstruction to his pursuing the claim himself there's been no showing here that that's that issue would apply those facts are on our record there's nothing here to suggest that's up beyond deciding to these out of circuit cases there's been no no why are we going there now maybe you can convince me that this was so confusing that it should be overturned but it looks to me when i read the record and when i read these instructions the jury was told speech we're talking about and whether it's good bad or indifferent law the way everybody puts it to the jury is here's the speech here's here's adam speech we're talking about my own about i don't know you know i mean i was there that was how the case was tried that was the theory of the case but that's just it puts the jury on their case the jury's asked that question everybody's arguing that everybody knows if this is the speech we're talking about it's put to the jury in a jury rules modern was asserting the first amendment rights are enforcing the first amendment rights of the parent you see unless we go into the plain arab world which which i'm afraid sometimes we slip into unless we start dragging the plane or world i have a sort of general well i won't repeat that turn of phrase but as the trial attorney on the case i can tell you that the judge indicated that in his view the speech of the parent was the speech of adam and that's how the case proceeded in trial and the jury was told throughout the course of the trial by the argument by the evidence presented by openings and by closings and by instruction twenty that those categories of speech by the parent were the speech that mattered that was the reason the jury was there that was the reason we had a three week trial and i don't think there's any confusion about that that's an issue that i hope i don't need to address further if there are any questions about that want to certainly try to answer them now but if not i'd like to turn to this other issue mootness that's how i describe it others might use a different label that has to do with the fact that the jury did return a verdict finding that adam alone had not suffered a constitutional injury at the hands of the school district employees  had caused that injury now that having occurred it's our position that there's no reason to reach the eleventh amendment issue at all the constitutional issue because there is no constitutional injury left to a t against the school district as the employer of those individuals who allegedly caused that injury i saw a reply brief a statement by appellants i was glad to see that they do agree that if the jury determine there was no constitutional injury then the school district can't be pursued further on at city climb there's a supreme court case that makes that point the heller case so the los angeles heller you know that in fact they don't really undercut heller they don't really go off in a different direction what they do is indicate if there are more than one constitutional injury out there that the case is talking about if the jury verdict for the employees only deals with one constitutional injury that doesn't take care of the second one which might still be attributed to the entity and i think the even later case of dixon versus will lower county that's a three three six after ten thirteen the two thousand and three case really pulls that together makes it clear that you have to focus on the constitutional injury involved in this case in our case the constitutional injury involved is retaliation alleged retaliation for the exercise of free speech there is no other possible to shoulder injury in question if you look at the way the pleadings go and there in the supplemental excerpts of record if you look at the way the case was tried that's the injury the i retaliation for exercising first minute rights and that's the injury the jury decided didn't exist it didn't occur that being the case there could be no end to the claim left this case does fall within the scope of the heller decision for that reason there is no reason for this court to reach for the eleventh amendment argument an issue that appellant's are making comparing the last let me the school district with districts and out of school districts and out of state cases with districts that school district in arizona alaska nevada each state school system is unique case which analyzes california school system as the ballenger case there was discussion of that first bellenger is a close look at the california system the school financing and why it's taking all those things together it indicates that california public schools are arms of the state for a lot of the member purposes the better approach is to ask is there something about the last let me just school district in the record in this case which makes it so different than other california public schools that's not within the scope of and the legal reality is that school districts don't make decisions to opt in or out of the out of the state financing system all california school districts are subject to the same state financing system the state has chosen to use local the property taxes to meet the budget needs of school districts and to meet the revenue limit which is the cap the state imposes in terms of what the state must provide each school district the state legislature by law has said property taxes collected locally by the county distributed to very saturdays can be used for that purpose school district not make a choice school districts have valuable real property around them or not so valuable real property around them they have the advantage of local property taxes up to the revenue limit if they have that valuable real property around them they don't have that advantage if they don't that doesn't have anything to do with the decision there's in accounting she calculated in sacramento where wherever it falls that's where it false and it turns out you got a lot of tax are not going to send you very much money and if you don't have a lot of tax they send you a lot of money is that what you're saying yeah that's what i'm saying in fact ninety percent of its general budget from local property taxes and still receive the same basic school aid from the state and it's one hundred twenty five dollars per student that every other school district does those funds were commingled in its budget bellenger was decided the mid air unified school district which was the school district in that case received something on the order of around twenty percent of its revenue from local property taxes and a balance from a combination of state and federal funds ballenger the plaintiff's attorneys made the same argument that's being made by appellants here they argue that because a judgment might be satisfied out of that share of the budget which is local property tax therefore the school district is not of the state doesn't meet that mitchell factor they said this circuit intelligence said that's an irrelevant argument clearly did that it's sad that because the state has decided to use local property tax money to fill that part of the budget where it can rather than send a check directly from sacramento it becomes state money for that reason it's the state power to control school financing of the state's power to decide when local property taxes should be used for this purpose or that purpose the deansgate money it seems state money that was the holding in bellenger and that was the third of the three reasons  found a way not to do that that's true i'm not sure there's a conscious decision involved in that either but i can tell you this and it was the point i was going to make because i kept hearing mr sorkin say things about wealthy districts unequal treatment of students this decision is not a vehicle to overturn serrano the priest one or two it's not a vehicle to undermine what some perceive to be inequalities in state financing caused by the fact that some districts reside in areas where property taxes are higher collectively because of the value of the property that's not our case and those kinds of thoughts have nothing to do with the mitchell factors about whether the eleventh a moment applies or not understanding of the system and i i'm not the best expert in california on this but my understanding is that the school districts the on the basic state of one hundred twenty five dollars a student which comes from the state and is co mingled with the property tax local authorities of the county the county tax collector distributes to the various entities including this the school district its share a property tax and that amount of money can exceed the basic revenue limit and the school district can use that amount of money t it they don't have to take that extra amount over their resource revenue limit and it gets utilized around the state elsewhere take it back to the state you know that doesn't happen well that's a good point we asked this court to judicially notice something in connection with this hearing we asked the court to judicially notice that attempts by then governor gave us a year or two ago to take back that extra amount of properties he acts because he wanted to recapture that  app the affidavit and he says that the average per the amount of dollars spent per child in your in the district is quite high compared to to the average spent across the state that is an advantage that local school districts have when property values around them are higher and it has nothing to do with a conscious decision to opt in or opt out that's a complete mischaracterization of the the important point s however in terms of the mitchell factors and whether ballenger should remain the law and i'll take him at his statement that he's not asking you to throw bellenger out he's asking you to carve out an exception of bellenger for for the last let me to school district important point there is that the balance your analysis comparing them and their unified school district with a lot of school district at a time the summary judgment motion was decided you still got a school district that has local property tax all mingled with state funds and therefore the b analysis applies across the board all three of the reasons the bells are courts that were lying on the g s local property tax that might well the calling leaves with the basic eighteen is that what you're saying yes now at the time this summary judgment motion was decided that certainly was the case that explained in the record it's in the supplemental record of the declaration of the superintendent for instance of the school which is that are three hundred to three hundred three it's no further questions i have nothing more to say this case is not moot because in the jury did not determine that adam suffered no constitutional injury the jury merely determined that none of the individual dependents was liable for the retaliation and if you look at owen vs city of