delta charter school is a type two public charter school established by a contract between the delta charter curb in the louisiana board of elementary and secondary education it is accountable to the louisiana department of education and in essence is a standalone single site school district students from throughout the state of louisiana are allowed to attend and there are no requirements for admission other than being a resident of the state of louisiana delt admission no your honor the only requirement is that a child be of the appropriate age for that grade level there's no consideration of casting or no you're on your own rights to have an advantage not at the school there are some charter schools in the state of louisiana that are allowed to have admission criteria such as those but there are no such criteria in our charter contract  delta is here today because there is a louisiana state statute revised statutes seventeen thirty nine ninety one see that states charter schools must comply with any desegregation order in effect for the city or parish school system in the context of a of other charter schools such as charter schools created directly by a school district rather than the state or charter schools that are takeovers  ace particular state or district run school then clearly those charters would have to abide by that desegregation order however for a type two charter school because they are an affiliated with any district or current school system that's under a desegregation plan and there's some ambiguity as to whether that is a requirement for type two charters at war or whether there's any particular desegregation order that the target would have to answer for you know instead of getting into whether there's ambiguity in state law three nine one one because i had difficulty understanding how before us you would be asking to attack in order you sought to enter in louisiana law to require could we just start factually where in your brief do you say there was any clear error as to the just court's reliance on racial demographic information from the three day hearing i'm not certain that that was fully addressed i know that there was the what part of the brief addresses that would be n the section discussing it exactly yes  air when it found you had violated the terms of the order but i would say that stepping back my initial position is that our intervention in the case and very first places where the the problem lies and  i we can get to that but i just want to establish if all we're looking at is the contract you entered into and then the district court whether it committed clear or finding you violated the terms of that contract or abused its discretion in its remedial orders is it correct that the brief you've given to us has just one record site about your recruitment that is correct there's only so you don't dispute the district's finding of deliberate noncompliance with the district finding of no good faith you meant no effort to in the brief i did not address of the issues that were follow that we focused on our whether delta charter schools should have been required to intervene in this case in the first place adults charter school had no connection whatsoever to  charter school was in a position where the louisiana state department of education stated that in order to receive funding we had to get court approval filed anything to try and ameliorate the requirements o not certain that we would be able to have the consent order nullified in the state court for the federal consent order by that's an issue that i signed onto it through the state up i recruit from anywhere in the state that's not really happening now i suppose if this school simply moved across the parish line it may not be subject to this particular discrimination or this particular desegregation litigation it may then be subject to other desegregation litigation or could move to a parish where there is no current desegregation of us ought to intervene in order to open your school that's correct sr judge darrelle allowed you to that's correct you dispute any of the factual quotes from the got the federal government's brief that not only that but they are after repeatedly you said we respect that we're bound by this consent decree we certainly do respect that that we are bound by the consent or you do that we agree that we are bound by always have their coach to that extent  accurate to the extent that we must subject ourselves subject ourselves to this litigation as long as there is an active consent order then certainly i would agree that as long as it remains in effect we must comply with it and the issue before us again is did the district work clearly air finding that you violated it but you make no showing of that i would say that the issue gets back to a more basic level whether there was standing in jurisdiction for delta to intervene in this litigation where in the record with the record site did you ever tell a judge darrelle that you lack standing to do what you sought to intervene into there is one site in the record that was noted in the reply brief  where the similar arguments were raised i'm not certain that they were raised with great specificity at the same time i would state that standing and jurisdiction is an issue that can and should be raised at any the if you aren't judicially astop if it does go to standing there for jurisdiction if we must consider it what's your position as to our cases into relationship with the banks decision i would state that similarly if that is a case involving a party that was quite last has to do to wait hold our case in abeyance if we think it is implicated i would state that i would certainly i think there should be similar and bring opinions in the matters i would do anything pending in louisiana supreme court that's relevant to this issue even if it's an issue that's been preserved not to this particular issue there was one case that is cited in certainly the district court opinion finding is discriminatory no finding that it is discriminatory simply a finding that it has failed to attain the demographic numbers required by the consent order my argument in terms of a history of violated the constitutional provisions concerning discrimination your position and a lack of school provided transportation facts your ability to meet these qualities i would state that providing transportation is something that could assist in reaching these numbers that that is certainly speculation at this point have any information that there are students throughout the state who would be willing to come to your school if transportation are they perfectly happy where they are i would simply be speculating if i try to give any hard numbers on that i can't so i can state that as of may twenty seventeen twenty percent of the students were residing outside of the district boundaries  in addition to be the standard questions again the consent order itself is in interdistrict remedy and interdistrict remedies are severely limited  precedent in order to have an interest remedy there needs to be some finding that the party that whose actions are being limited by the order has acted in an unconstitutional matter fifth circuit has also  but again that's that if that's not somehow a standing argument that's an argument you didn't deserve to present to us that is not in the trial court record is it even in your principal brief yes your honor there's a lengthy discussion about intra district remedies in the principal brief but why would that be waived if that's if that goes to remedial authority and you didn't oppose the district court's remedial authority below well i would s number one it's a pure question of law as to whether something is or is not up in interdistrict remedy there's on the record there are two districts independent districts that's well that's based on your statement i don't think you have any supporting louisiana law that went into two independent public school itself becomes the school becomes a district that's your proposition that is private and you made that proposition in the principal brief you didn't have supporting authority what's your authority under louisiana law that every charter school itself is a district even geographically if it's within a district where i know that's an argument but you have any authority for that is certainly yes i threw out best people in one twenty six  that would be twenty eight that ministry of code and i would have to get give any case authority saying that charter schools are the functional equivalent of school districts each charge a school its own school district that would be in the recently santa supreme court case on the matter that decision came out in march of this year is that in your brief but no you thought that that decision was released after a briefing had been completed one charter school in the pardon wouldn't that only be aware if there was one charter school in the district so you would say the charter school district school the military to schools correct so for type two charter schools type two charter schools are considered l d s or local education agencies under state law the other types of charge schools authorized directly by school districts are not considered their own early eighty's so for example a type one or type three charter school created by a city or parish school district is not a standalone district it's a piece of parchment piece of that overlap district the type to charter school is wholly independent it does not have any connection with any other school districts within the state and it answers directly to bessie and the louisiana department of education just as any other city or parish school system does i may misunderstand your use to tell me if this isn't your argument but as a party to a consent decree therefore bound by the terms would a district court in order to conclude you violated the terms also have to fight find that you separately violated either state law or constitutional law if so what your case no it is that the court would simply need to find that the consent order itself had been violated our challenge however is on the validity of the consent order  based upon standing in jurisdictional questions and upon whether that consent order constitutes an improper interdistrict remedy i would also again on the standing point know that delta had no interest in joining this case they were simply compelled to do so by that was in a department of education they suffered no injury as a result of the school district's actions there was no relief that they were seeking they were simply seeking an opinion stating also sought to open a school that's a pretty high interest that's an interest your honor but it bore no connection on its interest and simply suffered punishment as a result of that we've run out of time multiple violations of the consent order but my friend mr hagan seems to have consented that they're not challenging the district court's finding that they violated the consent order multiple ways and they're not challenging he didn't commit a clear error in so finding while mr higgins in his brief didn't directly address the standing issue until until his reply brief we're more than capable of discussing the standing issue today and to that effect where you get the yes or no specific questions  whether there's evidence to support the violations and then the remedial authority the remedial forty as i understand it judge drell extended his ruling to require a consultation with school boards subject to separate desegregation orders yes your honor and i tried to look at your brief in the federal government's brief and i didn't see authority that would support that well this is that is a resident of issue before this court charter school other than the st james case and this case of both or before pending before this court no appellate court has ever dealt with the issue of charter schools in a desegregation case what judge drell recognized in his remedial order is that what we imposed three limitations first the three hundred fifty student enrollment limitation from concordia which is actually fifty students more than the maximum in the consent order second they could enroll any student from any parish not under a desegregation order so they could have as many students from any other parish that they wanted and that third measure and that they had to go and basically ask permission to enroll students who are coming from a parish with ongoing desegregation obligations we submitted judge drone recognized the complicated issue with  charter schools that can enroll students from any other parish for example catahoula parish which is neighboring to can courtney a parish delton rolls approximately ninety students from that parish while they have ongoing obligations all judge drole said was come ask permission and will have a contradictory hearing with that school board holding was that these remedial measures were designed to see if delta charter school could ever come into compliance with this consent order because they were rapidly advancing their own agenda only winking at the consent order and  within plus or minus ten percent and that's a remedial measure that you know has been implemented in numerous desegregation cases ranging from anywhere from ten percent to twenty percent and were dealt with such a provision and parents involved a disagree the parents involved applies to this case and we could talk about that but if parents are involved were to apply do you agree that this is the contribution that parents of all struck down i would disagree that this is the type of provision the parents involved struck down because i would say that in the history of this case delta is on the site of the former huntington academy which the district court recognized in one nine hundred seventy s a private segregationist academy that school closed around two thousand and eleven primarily because of financial concerns and several of their alumni including mr craig jackson who's the founder of delta charter school at the time of the hearing he was their vice president and spokes person they've they decided to start a charter school on the same grounds of the huntington academy so there is a perception in the community and concerns throughout this case that delta charter school was a mere continuation of huntington academy i don't know joe there's all those facts but given the constitutional issues and parents involved why not issue in the repeats parish case where splinter districts one of when the state tries to carve up a school district undergoing desegregation those new school districts have a heavy burden to show that they don't have a deleterious effect on the desegregation efforts of the parent school and we would submit that a similar standard should be a place of home to charter schools this issue wasn't quite squarely addressed in this case but it is pending in the st james cases to the standards dealing with opening a charter school and we were we also represent the st james parish school board one of the standards that we are asking the court to adopt in that case is to ask the question what negative effects would the charter school have on ongoing desegregation efforts just to be clear that i'm not just going to the president you're signing this case does sound different in that this is not the school district generating the new school this is in fact a new school existing in opposition to the school board to understand correctly yes you want it is a new school district operating under the auspices of the board of elementary and secondary education through district opposed or the local authorities opposed that yes your honor the charter school actually went to the school board to try to open what's known as a type one charter school which would be supervised by the board the board rejected it so they went to bessie and bessie approved it as the bessie approved the opening the louisiana supreme court recently in the interval parish case it found that type two charter schools are public schools entitle to public funding i don't believe that that stood quite for the premise that it says its own independent school district but it is its but it is its own independent school that's operating within the boundaries you see yes you're out of that bank versus does and we would submit that we are more than willing to offer this court supplemental briefing on the standing issue as well if the court would permit or would like we are more than willing to provide it to the court but to to to address your issue just how about  delta needs to have there needs to be a finding about discrimination for for delta you know that the supreme court as early as nine hundred sixty four in the griffin vs the school board of prince edward county case state officials can't take any action to impede the desegregation efforts colluding with the new entity to try to undermine this is fine or stand you're opposed to the yes you know what we're not opposed to the prison this is not your puppet that's doing this over to the school boards not opposed to charter schools in principle if the school board wanted to open the charter school at the time of its opening delta charter school was about eighty five percent white about a mile and a half from the from ferris high school for example a fairly high school is a predominantly black school if the school board had wanted to open a predominantly white school less than a mile from a predominantly black school we would submit that the district court never would have allowed that to happen because it's adverse to desegregation and it just it's i mean it's just adverse to the principles of desegregation to have a near one white race one  near one race of white school less than a mile from a racially identifiable black school that the school board is is working to resolve those issues with you believe guilty as discriminatory i think the testimony of mr craig jackson calls that into would submit that parents involved is a very different question dealing with post unitary issues where here this is a new public school trying to enter into a parish with ongoing desegregation obligations if if we were to look at the equivalent of spencer districts this court has not hesitated in the history of desegregation to look at splinter districts and how they affect ongoing desegregation efforts and have said has said interrupted i know your time is limited i want to address the waiver issue do you acknowledge th have moved to modify the consent decree to remove they did move yes your honor they did move for that but i would say that the arm of the school board's motion for further relief was filed on june sixth twenty fourteen less than a year after delta began he denied it without hearing and the school board and the department of justice didn't have an opportunity to brief that issue because if it was filed three days before the hearing and judge threw out what acknowledged at the hearing that it was highly prejudicial to file that motion three days before hearing on the board's motion for further relief so that the parties didn't have an opportunity to brief that motion but i would suppose some it that that argument that isn't introduced a dramedy is essentially the same argument that they made on appeal that we would submit that whether subject to waiver for for the pop the prejudice in the timing or judicial stoppel because they intervened in this case and they took the position that they were subject to the district court's orders and voluntarily entered into a consent order and the district court to relieve themselves of their obligations of the consent order and it was four years after the consent order was entered into after they repeatedly violated the consent order that they asked to be relieved from those obligations and judged or all recognize that from the from the word go they were violating it they were rapidly advancing their own agenda so we would object insofar as they were relieved of any of their obligations you i believe under state law and mr higgens can correct me but as of the next school year it is a requirement of the state law that they provide transportation and it is my understanding that they are currently trying to find a benefit low income families and it would probably help those families in the farraday area who would like to go to the charter school but are unable to get there for various reasons the state law or believe only require that they provide transportation  match even more years but i believe that they have an obligation to provide transportation nondiscriminatory basis your honor regardless of the race of the students and we would encourage them to move forward with those obligations what noncompliance do you  school board and if they didn't fall within ten percent percentage points they were required to submit an analysis of why they didn't fall within that requirement and even then on several occasions they never submitted that analysis and if i may very quickly the third violation your honor was that they also agreed not to have an impact on the school board's obligations over three hundred seventy five students who were predominantly white transferred from the school board in the school board is a relatively small with about thirty five hundred kids so that's a significant impact and they recruited unapologetically according to mr chip read jackson sixteen teachers away from the school and over a four year period it was uncontested that school board lost approximately twelve million dollars and t funding and those are three issues your honor and thank you for a time and we pray that you affirm the district court's judgment morning august and may please the court john go on half the united states the court should affirm because delta has waived its primary argument on appeal throughout the proceedings below delta repeatedly agreed that it was subject to the district court's remedia talent one provision of the order as being overbroad what it didn't do is raise the challenge that they're now raising it didn't say that the order was an improper interdistrict remedy it didn't say that the district court lacked jurisdiction elect remedial authority in total look no further than that in the title of their motion it was a motion for partial release it was in a motion for total relief which is what they're asking for and they're not asking to require them to louisiana law to be subject to the court but they were challenging they provision were subject to parents involved that it's pretty hard for you guys to get around here a little but we agree it would be subject to strict scrutiny of course but let me let me give a little bit more color on the provision as it stands in this case which is an ongoing desegregation order there is the  racial balance requirement and then as judge higginson pointed out if delta comes more than ten percent below that requirement it's required to do an analysis and make proposals for steps it will take to improve its balance of course rule sixty is always available if for some reason it's impossible to get to that level delta can bring forth evidence to the court and make a sixty motion to try to get out from under it the problem with the motion that it filed for partial relief is that it was untimely it was found on a friday before monday  hearing it was a surprise motion with a surprise expert in a surprise analysis and so once we get further down the road and deltas have an opportunity to meet as its requirements and its obligations of the consent order we can look at it at that point and see if there are other steps that that are appropriate on that record or alternatively i assume you agree it sounds like you agree that they can also move in a timely fashion to escape the provisions altogether on the ground that they were never found to be discriminatory we don't actually agree with that piece because we don't think there is a requirement that they had to be found to be discriminatory in order to be subject to the district court's remedial authority in this case for the same reason the school board just laid out this is analogous to a splinter district case in fact council this morning said the delta is a single site school district well this court and the supreme court have been very clear that in a splinter district situation which arises when a state actor it doesn't matter if it's the school board or the state or a group of parents trying to organize a new school district or school under state and local law that it's the proponents of the new school and school district that bear a heavy burden to show that their operation of the new school won't undermine the ongoing desegregation efforts in the area covered by desegregation decree there's not a requirement that any party show that  discriminatory intent by the school to splinter districts or the splinter school let me give you some case cites to to drive that point home the first of course is the right case from the supreme court that's it for us seven us four fifty one you then have to scotland that case which is four zero seven u s four eighty four both of those cases coincidentally are cited in milliken versus bradley so the supreme court recognized that those cases stand for a proposition that's independent of mil perhaps the best case for our purposes is a fist circuit case called eros five fifty nine f second nine thirty seven and that's a case to your earlier question judge joe where the splinter district was opposed by the existing district it was the houston independent school district was under desegregation decree and some parents wanted to create a new district in that geographic area and that went up to the fist circuit and this court held that that the proponents of the new splinter district for a heavy burden to show that their operation of public schools in the geography covered by ongoing desegregation order would not undermine the ongoing desegregation efforts of the school district and there was no requirement that anybody show that those parents were acting with discriminatory intent or that the state was acting  discriminatory intent that's very helpful law in an area that i hadn't seen as frankly presented here if we were to get anywhere near that issue would your position be we should wait for the banks and issue its decision it certainly is pending before the bank's panel your honor and obviously whichever panel decides it first is binding on the other and so it will be up to this court to decide whether it wanted to i'm left do you want to go back to the point it's presented to us in this case in the br s and i guess i'm most interested in suppose any supporting a forty four judged relative forty to require permission of other school sure and let me just add one more case say while i'm on a roll that would be the repeat is parish case from this on by a court one seventy three thirty nine forty four which we didn't raise any of this because the jurisdictional question wasn't raised until the reply brief which is why i provide the cites for that for the court today yes in terms of judge drowsed remedial authority again under the splinter district precedence from the supreme court in this court has ordered merely reflects a truism for a state actor a public school whether it's formed by a school board or parents force or by state law to operate in an area that's covered by an ongoing desegregation  has an affirmative obligation and a heavy burden to show that its operation is not undermining the ongoing desegregation effort i'm going to see in the consent decree likeable here is there it would be as to other school certainly in any parish where where they're going to operate where any charter of public school would operate it would have the same obligation and so what judge judge draw that is merely state a truism now that just drives tell me another point which is this obligation would have rested on delta the obligation to show that it's not undermining ongoing desegregation efforts the kind of right scotland's next ross obligation under the constitution would have applied to delta regardless of what louisiana state law sa on the topic if we were if we didn't have a louisiana state statute is extremely helpful would did you have another one just one quick question absolutely you depend on the quick do you agree with co that that's exactly delta's theory here that it's a splinter district and it's operating in geography covered by an ongoing desegregation order that's why it's different than milliken versus bradley as a supreme court self recognizing millikan by citing the right and scotland's next that they're the supreme court respects the geographic boundaries of the school district and so where the segregation is ongoing that's where the obligation attached think thank you the first issue i'd like to address in reply is that delta charter school should not be considered splintered district while it does it does have a physical location or at least the campus has parish again it covers the entire state if this were to be considered a splinter district then every district from which students tend to charter school could potentially also claim that that is a splinter district from those particular districts i would argue that i know the twenty percent of our student body comes from other parishes believe there are four parishes from which students are currently attending school but technically speaking anyone from within the state could choose to make the trip to delta charter school and iterators what percentage of your student body comes from a non  i'm not sure that we have those numbers in the record i would also argue that in addition to this not being a splinter district or certainly a beast that is distinguishable from splinter district would agree that parents involved is a controlling case here adult has never been found to have acted in an unconstitutional discriminatory manner the fact that there are quotas in essence established for what that student body should look like  definitely runs into that parents involved problem in order to clarify one point that was raised by mr blanchard i would say that while delta does have some individuals who were once affiliated with segregation academy who were on that initial board other than that there is no connection between the entities there are two completely separate legal entities they're funded they are in the same building correct it was  one vacant building available in the parish and it was available at the best price possible for the school sure that had there been a better facility available at a better price they would have preferred to be in in that location in the record they weren't targeting those buildings are intending to create a system where there would be centralised drop off points for those students concerning the quote unquote major violations i would state that delta's demographics simply reflect that this is a school of choice the underlying record does show that delta has engaged in student recruitment and has attempted to recruit african american students but at the end of the day if parents decide not to come to that school delta is not a position where they can force parents to do so by default every child who is in rolled in delta would otherwise be enrolled in a district school in the state of louisiana the parent has to make an active and conscious choice to leave the district school and come to the charter school just as they would for attending a private school or being homeschooled or moving to another school district pardon doubt there is presently a waiting list based on the i would say restrictions of the student population resulting from the most recent order delta has not been allowed to enroll as many students  as would like to attend a pardon the cap yes your honor because of that cap delta certainly would appreciate the opportunity to enroll those students but again so long as the lower court ruling remains in effect there and it unable to do so in conclusion i would simply ask that the court focus heavily on the standing issue and consider that delta should not have been involved in this case in the first place and i thank you for your time if there are any additional questions we have about ten seconds