a hearing where the district judge said i'm going to treat this as a summary judgment is that ok with you and both sides said ok that that's correct that was at the start of the hearing that this was already disco district was advancing for the for the policy why would the number students i would that have been a material fact because the number of students that had been excluded from this high school they design a system to have the exact same numbers of kids in each high school no that's not that's not true that was the promise that was not the premise behind us ok keep going because when when in one thousand sixty seven e house three schools three cities north of the municipal boundary formed the not attendance area and trees three cities saturday municipal boundary between the  of school children in the found attended school together and south high school in the farms there was no reason to to exclude twelve students from this a high school in the city what is what is your opposing sides statement of the reason this a pandemic why what did the school system say was their reason the school system said that their resume was first that in one thousand nine hundred sixty seven a boundary was proposed to include this area of the farms in the not attendance area but of the town going to school you know with your peers and contemporaries from middle school either high school and the evidence that's in the record evidence that there are or only twelve students that that policy must be rationally related to the end although the supreme court has said that if if a court can think of a rational basis that's enough it doesn't have to be there at their bases and i won't the upshot be that some kids that are in one elementary school will go one high school eventually and some will go to another high school eventually if you're if you're to win that's what'll happen right about that you know where the kids are tend to limit elementary school has no bearing on this issue the reason i'm making the point is you talk about freedom of association and it seems you can talk about freedom of association of going to school with people in your school or does it all depend more that the child or have they still make their child you know go to the north school or red light has been on for quite a long time yet think we should hear from the other side now yeah but the thing is that high school level your red light i mean your time is up so i think we should hear from the other side thank you that chunk of girls point farms in the north district from day one but he says that wasn't actually adopted it was adopted i think with mr rosen moore's point is that dead transfers were permitted people were permitted upon request in the early years to go to south from that area but the boundary was still in place in one thousand nine hundred five the school board passed a new policy saying that once the population of either high school got to fifteen hundred or the get between the high schools in rome and exceeded three hundred transfers would be limited that limitation happened in the year two thousand and since then transfers have been limited between from one to the other what does the record show is the number of transfers that are allowed for people who live in the north to go to the south does not address that issue your honor and didn't wasn't there a statement at that motion hearing in credit the judge the district judge that there was a need for that information on transfers did request an information several minutes after he had said that he had no objection to to judge douglas proceeding as with treating this as a motion for summary judgment also long after h the briefing it with the understanding that it was going to be treated as a motion for summary judgment he briefed it in response to my motion and my motion was a motion under twelve b six or alternatively under summary judgment the the  status conference of mr olson were referred to took place in june after this motion was fully briefed so i realize we're taking you in many different directions and your one one  basic question that i have is what is the rational basis for this policy that apparently says that twelve or so children who live in the farms are required to go to the north school rather than the south school first of all let me remind the court that it's approximately twelve per year right a school for grades so that's a total of about fifty kids the the rational basis and a s your honor pointed out in questioning of mr oza more we don't even have to make that showing under the rational basis standard and under the heller case but we did the rational basis is that at the time this boundary was established in one thousand nine hundred sixty seven there were ten elementary schools and the board of education decided we're going to put five in one and five in the other the boundary of monte thelema entry school which is the point farms also go to mine teeth in gross point woods so those boundaries are exactly the same but but given that one elementary school was closed isn't that no longer a rational bas is to have the five elementary schools to one in five to the other it may have the fact that it closed i think in the mid eighty's when it closed if it had been that way at the time in what i'm wondering is if the if the basis has changed and the original rational basis isn't rational as it doesn't exist the new rational basis is that there needs to be some kind of balance between the two schools and we do the balance through our transfer policy then isn't it vital to know what the transport policy is in actuality and shouldn't when this became apparent at this august twelfth hearing shouldn't the district judge have allowed your opponent to get the information about transfers because the the optics of this are a little bit difficult in that the way it's presented from the other side is that twelve people from the twelve kids from this area are not allowed to transfer but somehow i got the sense that there were sixty or seventy transfers that were allowed and i don't know if that's based on the record or whether it's based on i think it's it's i think it's based on air your honor there are air air ok there is there is nothing in the record ok nothing that's going to record about how many transfers there are or what the reasons are for trips i could tell the court as attorney for the school system that if there were a record it would not support then and there were any transfers there are very few allowed for particular reason sometimes a student may be interested in a particular course of studies that is taught at one school and not the other there are transfers both ways for that sort of reason  right right there are there are three middle schools some of the kids these these kids are going to middle school with a group of kids and then separated from them for high school that's that is correct that when you've got three middle schools and two high schools it's almost inevitable how does it work in terms of the middle schools one goes to one high school one goes to the other high school and the other one is split is that it that's the way it works out just because of the geography the situation the school it's in the middle of the of the gross points is brownell middle pool and certain number of those schools those children go to the south a school certain number number go to north a school not a specific numbers based on where they  live it's is based on where the dividing line has it given you know i seem to be talking about settlements but it seems like this is a very small number of children that are involved and it 's curious that we say that the school system thought it was worth but again in this instance it's a small number of students your honor but it's in a situation and this is a question one of the members of the in fact the current i should say the thirteen fourteen school year which was the current issue year when we were in the district court the current and roman at north high school thirteen hundred twenty two the current enrolment itself a school seven hundred seven that's a three hundred eighty five student difference if you take fifty who are now in north and move them to south you just increase that distance that difference by another hundred and it's not a matter of running out of space it's a matter of being able to offer certain courses if there are not enough students to to justify certain courses then the students who are at north high school for example may not be able to take things if there are just enough students to justify a class and that's that's what the situation situation is it's not a matter of capacity i believe mr rose more is correct that at one point there were a whole lot more students at both of the schools now number students and classrooms the views of that have changed over the years you don't have nearly as many kids in classrooms as you did one when i was in school for that's another rational basis that you're asserting yes if you're on does it matter that i mean initially these kids were separated from the rest of their community based upon a crossing otherwise they would have been based upon a crossing a dangerous crossing i i believe the answer to that question is yes but i'm hard pressed right here to say well i know i want to can tell you the park elementary school which is located in the small gross point woods so they cross city lines rose point shores does not have an elementary school so it's kids go to one of two gross point woods elementary schools so there's there's all kinds of crossing that's going on in gross point you know if you if you imagine from a community that five communities use the word gross point it's not exactly an isolated taper situation it's this group points growth point and so the fact that we're going from the farms to the woods to the shores is really not that relevant as it might be in other communities it's very confusing to outsiders for i wish they'd chosen some different names and that's seems like the best constitutional argument just have one name think i think we've talked about the timing of the prematurity question sufficiently less of course is any of the questions one thing i'd like to point out though is that we originally brought this is it will be six motions alternatively as a summary judgment motion judge duggan to chose to treat it only under rule fifty six but i think dismissal of this case under twelve b six was was equally justified as it is the as it was under under rule fifty six which takes out the prematurity question because if you don't even consider the affidavit and look at the twelve twelve b six for the discoveries is irrelevant and it's it's it can be it should have been dismissed or could have been dismissed under twelve b six because on the protection argument the plaintiffs here failed to negative and he said that word is a verb of the supreme court did so i will now you give any possible explanation any rational basis if you will for this for the boundary that was drawn  hundred sixty seven and i'm not sure that's i'm not sure that's so easy i mean i think our courts pretty careful about twelve b six and you know saying you've got to be sure there's no way there's any discovery out there that might bear on the question and there are cases even involving rational basis review where there has been discovery i can think of cases where there were trials about evidence to determine whether there was a rational basis so it seems funny to think that it's a twelve  it's apparently judge duggan felt the same way which is why is a fifty six issue maybe it's more appropriate even in the in the freedom of association context because we believe relationship that gives a title to very little protection the freedom of association rules and that to me is is to will be six territory dismissal for failure depleted claim so i think in that context the twelve b six is even more important simone if the schools are so you've got a significant difference in the role i mean looking at the map you've got this little corner that's carved out  between three eighty five so that i mean if you why not just draw the line straight across and include those people on the other side and then you have a balance your suggestion that the southern of the boundary southern the political consequences of that the gross point would be but that's his that's basically his argument that politically you're able to carve out this little lesser income corner and say you go to north and you can't do that to the people on the other side after after fifty years you're making here making a change like that would be quite a drastic sort of situation this is been that way and the people who moved into that area knew if they asked or could have certainly found out where the boundary was from day one but everybody's going to that school until two thousand and sadia everybody was going to south until two thousand and the right now that they were allowed to ask for transfers they were asked aloud hansford and in transfers they were largely granted transfers until about two thousand when the when the contingency when the were reworded it was a change but it was reworded in two thousand and eight to further limit to limit transfers to situations where the balance will be sent off for class sizes won't be affected so you go to had been in place what was put in place by the board in ninety five based on the conditions that it came into effect in two thousand thank you thank you never implemented there was a lot of controversy and it was shelved it was never implemented and when i say wasn't implemented you mean it wasn't passed or they didn't enforce the borders it was not enforced because the board of education made that decision they lacked was opposed to it and it was it got so much controversy so much compulsion in the school district that it was shelved and you know school without any interest from the school board pinsent did they have to request a transfer they did have to request a trance where you simply indicate in your registration you have no choice you know because if you are in this out six long term residents well some of they have lived in the area for sixty years forty years thirty years before it went in one thousand nine hundred seven one i was drawn in and up as as things stand today all students in every city attend school together in december high school except the twelve students are the children that live in this part where they found their escape from attending school with  the students living in plenty area to go to a high school in the not that way from the appears and contemporary india city in elementary school level is for the benefit of the children so for thank you both for your argument the case will be submitted with the clerk call the next case