please court like to just start by affirming what i had asked the clerk to do which is to reserve five minutes for rebuttal my name is jonathan taylor and i represent the defendant or the jefferson county board of school commissioners who respectfully request this court reverse and remand to the district court for the eastern district of tennessee for entry in the judgment entry of judgment in the favor of the school board and hold to two things and i would concede that i'm narrowing or attempting to narrow down some of the issues that we appealed and filed in our briefs i believe we raised eight issues in the brief  at least for purposes of today i'd like to focus in on two of those one of which is obviously the clause and the school board's decision to outsource its alternative school services to king's wood school and  we would ask this court to hold that that did not violate the establishment clause of the first amendment second of all we would ask this court to find that the district court of used its discretion in awarding compensatory damages to the plaintiffs under the guise of state law all as those claims were dismissed without prejudice by the district court in the november two thousand and six opinion and that decision was not challenged in this court on the prior people this is the second time we have been before this honorable court i'd like to start it with regard to the establishment clause by addressing one of the key things that this court asked the parties to to address  which is the application of town of greece versus galloway and how that might potentially affect this court's resolution of this case first paul galloway abandoned the traditional endorsement test which formed the basis of the eastern district decision in this case just as the second circuit in galloway you know had relied on endorsement of religion the supreme court reversed that and you know without applying anything with regard to the endorsement test and they did that likely because of the reasons and you know the the idea that this might potentially you know condemn a whole host of traditional things that as chiefly in that case legislative prayer you know that would you know that we value in terms of our limited to the particular kind of sort of proper roe the public religion in america the law sorts of cases do you think that it has implications for this type of a do at least just in terms of the test i mean we can see that the test is difficult in application discord in other courts of and found it difficult to at least certainly district court level have found it difficult to apply the limon test not the first the court has resorted to looks that is jury for help in these sorts of establishment clause cases and it's not the first time that the court has sort of looked to a variation of limon in doing that with that explicitly doing away with the limb and test would that be an accurate statement is your are that's a fair assessment in a fair by the most recent opinion and it is the most recent opinion on the establishment clause of supreme court and i think that it was there was a purpose in the supreme court doing what it did which was you know to abandon the traditional lemon test and at least just focus on the historical current and those sort of issues with regard to that and it did have which kind of led it to that conclusion obviously if we if we year well that is precisely the issue your honor in this case here there is absolutely no testimony on behalf of the plaintiffs at least in this case that took any offense whatsoever  to anything going on in king's would school in fact what she had was a complete absence of any sort of testimony from those plaintiffs as to what went on it kings would for seven years i would remind the court seven years the contract between jefferson county board and kings would school and not once did we have any complaints for any parents any students about any sort of religious teachings going on teachings or any where here  i'm misunderstanding things we're here solely on the question of taxpayer standing and that kind of of offense and what what in the record where does that really leave us if if if we're just looking at taxpayers standing well that leads us to one of the issues that were raised in the brief and that we did address in the reply brief which is that there is absolutely the have been in this in this situation there was not any sort of correlation between the standing of the plaintiffs as tax payer standings and the actual proof that was put on in the trial and none of those really is there was no basis at least for then there was absolutely no testimony in the trial about any sort of problems with regard to the teachings that these students had most what we have is a chapel on this site that these students may least you know in this context with regard to students have been cast away these are alternative school students who've been cast away from their traditional home school and essentially are of the fact and i should know the answer to this and i can't remember i know that that scriptural piece had the citation to luke but was it the whole is it just suffer the little children that's it doesn't even mention the kingdom of heaven it does not ok held that kings would school was a pervasive christian institution the alternative school students from jefferson county the court found attended assemblies in the chapel which was located on king's woods campus and this chapel was adorned with the hallmarks of the christian faith but where they were required to attend they were not required to attend but the evidence is that they did attend the chapel inside had pews that had crosses engraved on the sides the bibles were located in the pews i believe it's exhibit fifty one with those assemblies so those were that was bob and terry attendance rate correct that they had but they had various programs that were put on by king's wood and because of the volume they had different classrooms at kingswood because of the volume for everyone to attend a program the only location was at the sanctuary so the premise there would sort of be if that is wrong if that in support of your case the premise would be the first amendment  are comes to children from being in a room in which their religious symbols or which they might come within close proximity of about well i don't think that in this case your honor that it was the strongest evidence  was certainly one of many pieces that's well it's not the strongest evidence is that the way the argument with respect to that is that just the mere exposure well yeah well i think i think so your honor because in this case and it's not like the situation like and leave vs why isn't worse just a graduate graduation ceremony where there's just a prayer this was something at kingswood where the students besides being in the assemblies at the sanctuary they also received the report cards and the family feedback forms that had the biblical scripture about that taking up where judge that killed or left off for people who were brought up in a religious tradition and even some who are not the english language of educating people in this country is littered the there's some harm to both from that if the speaker is a government entity well anyhow as separate the children on a report card different from that exposure where bad teacher makes a biblical reference in a classroom i mean what's the what's the where's the first amendment are from this it's different from just the exposure that's in evitable if one  lives in a society in which you know people engage in fairly intelligent conversation and i can answer that your honor i think in this situation this is a specific and clear religious message that is sent home to the children and to the parents and let me let me correct mr taylor here is the gospel of luke chapter eight hundred sixteen and on these report cards and on the  feedback forms it says as follows jesus said suffer little children to come and to me in forbid them not for such is the kingdom of god it says the kingdom of god even the director of kings would admit it that that is that that could be interpreted as an invitation to the kingdom of god and i think what's important here if you look at how someone may view this is not a universal theme of goodness or something like this this is this particular scripture is one of the most recognized and revered of christian scriptures expression with regard to children is kings woods operating philosophy and then operating philosophy is found in their report cards and on these family feedback forms and in fact in the chapel there is a large stained glass window that has a picture of jesus with children sitting before him as he ministers to them you know that point simply act the for example by public school teacher a particularly frustrating  woods operating philosophy this is this is how they this is how they have carried on their program it's been their motto and clearly the president's on a report card of this scripture has absolutely on point but i think if we if we look at that at the case law where for instance in wasa jesus were you have a picture of jesus that that's in the hallway again in this case we've got a report card where it says jesus said we have stone verses grammar you have the ten commandments that are located in the hall again these are in this case we have a statement of jesus about an invitation into the kingdom of god  the it's clear the law facts right the classrooms there was absolutely no religious references of any god in the classroom building or other well that's correct your honor but i think that what we look at is the overall their their re ligious displays the of the report cards via the website the literature that goes out the sanctuaries that they have all of the church or that goes out in general or with your gold regard only to the alternative school well some of it some of it goes out in in general i mean to other kings wits unions not to other public school students correct and then you have the enter were point of kings would that's available and then that the interim report contains language the talks about instilling a personal faith in god but again is that report that report isn't specific to the alternative school that's does in general in general right so you were concern is that taxpayers are harmed here by the fact that this christian organization which does disseminate christian views with regard to the rest of its operation and i'm not now talking about what's on the report card but the fact of the dissemination of that information and its availability on their website a first amendment and establishment clause harm specifically now with regard to the running of yes your honor i think what we're saying here is you know besides the report cards there was a school improvement plan that taught that referred to a school chaplain and the school improvement plan applied to the alternative school students the school improvement plan also said that the school was to provide spiritual guidance to the students and this applied to the alternative school students if you were to go on the web site and it doesn't distinguish between the residential program and the alternative school but if you're going the website there are numerous instances throughout king's woods website that proclaims and promotes the christian ministry but the alternative school students are not specifically subjected to that as part of the alternative school program not as the alternative school program but we had one one parent whose son whose son was remanded to the alternative school and she testified that her investigation of kings would because she didn't want to child to go to king's would and they have to go to king's would they have absolutely no choice there or that it's mandatory would she go on the website to see what it was look like she was concerned about the safety because there's disciplinary kids at the alternative school and she was reassured by the principal at king's would that her son would be in a christian environment another parent testified that he was told that his grandson would receive a good christian education and so i think all these the district court in weighing all this evidence found that this created a coercive christian environment implicitly promoted the christian faith it just impacts the relief that they would have as a municipal taxpayer if there is that if that there's a violation of the establishment clause that this is an institution that should never that the board should never have sent the alternative school students to about that it just seems a little odd well i think that you know what you know i think what the court has to look at is is this if we're going to have taxpayer money fund and the evidence was violation this is a constitutional violation and then you have one point seven million dollars of public tax money going to do this and that money was how are your clients injured in any way differently from every other i mean this bill taxpayer well awarded damages well the issue was but it's clear that the issue was before the court because the board filed a motion in limine to keep those damages from being presented in the court this court remanded not only on the on taxpayer standing but also remanded the case at least on one other pendent state law claim which would that would the talking to most women with which apparently the district court did stabbed well in the in the final pretrial order where it said what issues were before the court in the final pretrial order clearly stated that that was one of the issues that was before the court and the court had discretion here to hear those pending claims and i'm about ready to tom let me just briefly address greece because that was one that the court asked me to address just briefly in greece greece soli is a legislator per case it only applies to adults in this case we have a prayer that's brief there's a universal theme typically in these legislative prayers and the adults in these cases with the town meeting their freedom live free to live leave and the sole basis of that was just the historic tradition that this supreme court looked at him cames would in the present case we've got school children this court answered that distinction in coles versus board of education where it said that you've got legislative prayer and then you've got screw prayer at the school board and separated that amount of time thank you very much thank you council bottle yeah i'd like to address in a couple of these things that were object to the plaintiffs including the state law claims that is very clear in the pretrial order plaintiffs did reserve the right to object to that they did object to it in the final pretrial order in areas language in that final pretrial order where the defendants did reserve some at least in my mind in my client's mind with regard to why there was any award whether whether it was truly as a violation of these hellish mclaws and not surprisingly the amounts actually add up to idea that there was one point seven million dollars of taxpayer money spent to kings what well while that may be true it's important to at least consider this one point one million dollars was also saved and that is undisputed undisputed that  sole purpose was to save money by making this outsourcing the kings would and it's undisputed that they were saving one hundred seventy one thousand dollars per year so you multiply seven years same way they do their funny math you save the taxpayers one point one million dollars which is a substantial sum so now you can't have it both ways with regard to the fun rise fund raising letters the these letters were only sent to prior donors of kingswood for the residential program they were not sent to parents or students of jefferson county alternative school students there's nothing in the record with regard to mr dampier and what he may or may not have testified what is clear at least and there are there were a ton of hearsay objections and there was a standing objection for hearsay at that time but the court said it was just going to hear the proof and what the witnesses it was a non jury trial and there was no concern they would make the court would make its decision in light of those objections but no doubt that mr dampier there was nothing in the record that actually demonstrated that his grandson received a good christian education there was an allegation that somebody during intake had said well you're you know at his inquiry that that he might have that he would receive a good christian education that was to align his fears but there's nothing in the record that actually demonstrates that he actually received that good christian education don't you think it would be it's interesting that after ten years or more than two in years of litigation that if there had in fact been good christian education that we would have heard from some of those witnesses with regard to the website this important help who was the director of kings would stated unequivocally during the trial that all of these references a web site the website was created after the contract with jefferson county had expired students not even move back and he stated very clear on the record that the website was limited solely to the residential program it had nothing whatsoever to do with the day treatment program or the alternative school program the jefferson county in the students  is extremely important i gather that mr marson couldn't cite a case directly on point do you have a case directly i don't have one directly on point your honor i buy at least in terms of the defendant's argument here on