as i stated i'm here on behalf of the f l arizona state board for charter schools with me today is david garner from the law from a lewis and wrote he represents the individual charter school talents i will be handling the argument for the appellants today mr garner is here in case the court has any questions specific to the charter schools i would attempt to reserve about three minutes for rebuttal for your honors the legislative history and the purposes and the language of the phrase including a public charter school compels the court to find that arizona's public for profit charter schools are included within the elementary and secondary school definitions so that they're at risk and special needs students ma access to the federal assistance the congress intended them to have for their special educational needs this sort of interesting case of statutory interest in the construction that sounds like we get down to what the meaning of the word including is was that right this case that compel the opposite conclusion the first judges that the words that flank including in this case are phrases one side you have the phrase nonprofit institutional day residential school and on the other side you have public charter school the term public charter school is under the federal language under the legislative history is clearly intended to include all charter schools defined under public law as a public institution the department conceded as much in their determination where they determine in fact that the arizona charter schools were in fact public schools and in fact the legislative history indicates that congress was attempting to define charter schools not by definition as to whether they were nonprofit for profit or any other particular corporate form whether they constituted under state law a public institution and because they chose carefully to use the term public charter school know we don't believe there is much ambiguity or any real ambiguity in the well let's i start with this are there both for profit and nonprofit charter schools and there is one yes there are  that phrase at the time judge march on was because drawing it in district court if you look at the the words charter school at that moment and indeed this moment it could include both it does include both yes ye judge does that take you inside or outside those cases that provide an exception to the general rule that including means for example that including means for example it takes this outside of that you two definitions in the two statutes would would we be reading the sentence to read these are the secondary schools a nonprofit institutional day or residential school comma including a for profit charter school not specifically judge if i understand the question that exactly what you're doing well when you would be reading it to include that but it would be more it would be more inclusive it would include all public charter i mean if we rule in favor of the state in the charter schools wouldn't we be telling the department of education that's how you have to read these two statutes to say that nonprofit common including for profit is that right no you are not in the case of non charter schools in the case of charter schools yet here just about charter schools army yes we are we are judged in the case of charter schools yes you would be you would be telling the department cation that they need to read it as a nonprofit schools in the context of non charter schools but in the context of charter schools that the focus is not on nonprofit versus profit it is on public versus something else what do we make of the fact that congress and other sections of the statues pacifically recognized for profit schools your honor there are other other sections of the statutes that do specifically recognizes the distinction is in the charter school context and i would refer court back to some of the legislative history you said you cited i think it excerpt thirteen we include here we leave that point yes why shouldn't we look at that and say that in ourselves congress and move how to say for profit when they want to do the same statute your honor congress has included the word for profit they certainly do know how to include that term in the charter school context that term though isn't isn't the appropriate term to use to distinguish between what is an appropriate charter school for a therapist is and what is not instead congress has consistently focused on the public quality the entire purpose behind the charter school spanish and is to allow flexibility to allow new types of schools to be developed that are not within the prior model of public education in this country and therefore congress is focused on getting out support to those institutions that the states using the flexibility congress has given them have determined to be of sufficient quality sufficient compliance to qualify as a public institution and so in this case in the charter school cont that congress has decided to define or cut the dividing line at what a state determines to be a public institution rather than focusing on for example what would be in a more private school context the public excuse me profit versus nonprofit  distinction let's assume we accept the argument there are some ambiguity in the statute what's the next step in the analysis congressional history or what's argument that it's ambiguous what's the next the next step judges the legislative interpretation and using the standard rules of constructions such as the legislative history the statutory purposes the context in which the phrase is used and looking at the language itself in determining whether it's susceptible to the meaning that we put to it all of those examples judge we think fall in favor of defining for profit charter schools within this context specifically your honor the charter school and then exact legislative history included again it to have thirteen two are excerpts includes a statement by the house committee on education in the workforce that stated that impertinent part depending on the particular state law these schools may be established by nonprofit or for profit private or public organizations congress is well aware when it added this terminology to the statute that there were it was such a thing is for profit charter schools being created as a public entity at the state level so the legislative history itself indicates congress was was aware of the situation next you can look at the legislative purposes the legislative purposes include not only the purposes behind these particular definitions but the the i d e a and the no child left behind provisions to which they apply and those purposes are at least two fold and one is to get down to all eligible students who require under the congressional definitions these type of special services to get them these services and get them the service through federal financial support second your honor possible the congress actually thought about the clue that funneling these phones through a for profit institution would mean that less money would is there is no legislative history that indicates they have that thought in fact it indicates the opposite and i would direct the court's attention specifically to the legislative history under the again the charter school amendments act where the committee on education in the workforce indicated specifically their intent that charter schools that were operated or managed by for profit entities would still be entitled to receive the federal  education through council of cited legislative history that they can they argue suggest the opposite of what you're arguing let's assume that the congressional congressional record indicates and the record before the court is get to the reasonableness vilna on the agency interpretation you get to that point judge when you determine that in fact there is no sufficient indication of congressional intent that would be the first point which you could you could reach into the into the different side of the equation if the statute is or these acts are unambiguous i'm a little unclear as to whether or not your position is you still get to a an inquiry of legislative history and purposes or whether that's no longer necessary you seem to be acknowledging that and your argument today but yet in the brief you know or brief you filed  there was some suggestion as i read them that even where you have a statute consisting of plain meaning and language you need to get into some level of legislative or legislative history or inquiry to make sure that the statute comports with legislative intent which is it you are yeah let me clarify that if in fact well i would i would cite the court there a plain meaning of the normal meaning to the statute but that it does comport with the legislative intent so if there is if there is contrary evidence from the legislative record the court needs to go that far if there were not your honor if we couldn't provide that to you  if we couldn't we couldn't provide any specific suggestion from the legislative record that there was some ambiguity here you would need to go further ok what you're saying then is if there is no ambiguity you don't go into the into the legislative history yes your honor the ambiguity here though is acknowledged obviously by the department education itself in its determination and by the use of the term public charter schools all the ambiguity doesn't go far so far as to acknowledge  in the clauses that we're discussing the i don't think i don't think the department of says taking that position you're i'm specifically referring to their determination the determination letter that they sent out on march eighteenth that letter indicates that were and i think the language they used is they admit there is some ambiguity to the statute because it doesn't clue the term public charter schools that's that's what i'm referring to as opposed to their briefs yes your honor i am getting close to the point where i am going to run out of time if i don't stop but a couple more points i think that are important for the court to note with respect to the language there are three key terms and judge hawkins i think you hit the nail right on the head that we probably boil down to the nub of this argument being over what including means you have nonprofit school on the one side we've offered the court legislative history that suggests the congressman out of intended nonprofit to mean specifically not for profit but it was really being inserted to protect certain nonpublic schools from federal regulation but put that aside and assume that nonprofit was intended to mean just not for profit in order for the appellants position to prevail at the court need only find that public charter school does encompass the arizona for profit charter schools and then at least our position is that the term including and the definition  the court would adopt what is a permissible interpretation of including as an expander one of the point on that issue your honor the department is argued that in order to interpret including as an expander the court must find that the categories on either side are mutually exclusive of one another that they can't they can't possibly be reconciled in any and any concept we do recognize here that there are certainly nonprofit charter schools as well in that definition of public charter schools at least in the arizona context  examples that are providing the case law are examples for the most part where where the the categories were mutually exclusive the line either but you've told us at the start of the argument that you found no case  that defines including to mean and where the second phrase income included both meanings that mean that the fourth circuit case talks about which to me provided the best example where  drivers license holders common including applicants applicants by definition can't hold licenses or it could include people who are both i suppose people applying for the new rules but our research couldn't find any case that where the second term included both the cases that have the terms seem to have to be mutually exclusive right well judge the closest we came again was the american case and that is that is slightly different it is not a mutually exclusive set although the second set has multiple terms in it as opposed to one term so it is a little bit different there but judge might might i think the fundamental point there is none of those decisions explain that we're returning the definition of including on the fact that it is mutually exclusive to terms of mutually exclusive likewise there aren't any decisions out there where the course of in face with exactly what we're faced with here and which they've said no we can't interpret including to be expansive because we don't have mutual exclusivity we only have partial a partial contradiction and our position is i guess that we are we are probably in a new in a new setting that hasn't been addressed by the courts yet but the logic of those other cases where the courts of excuses including as expansive does fit our cases well i want to sue little time i can thank you thank you very much for your argument we'll hear from the department of this time m provisions that issue of the individuals with disabilities education act and elementary and secondary education act explicitly restrict eligibility to receive federal grant monies under these programs to nonprofit institutional schools that test this plane and its meaning is bolstered threefold first by as the district court stressed by the history of the statutes and their legislative amendments second in the context of the larger federal educational grants  clear that where congress doesn't tend to make for profit entities eligible to receive federal funds it has done so and it and it can do so and thirdly your honor the decision to restrict funds or district eligibility to receive funds to nonprofit entities is grounded in sound policies that are appropriately left to congress and to the department of education the agency charged with administering and implementing these federal grant programs to penalize nothing further and i don't see any other questions thank you thank you for your argument r just just briefly judge adjusting specifically the question of sound policies the policies i think that are implied in that argument are policies against giving a for profit entity federal money or public money  many restrictions on uses of those monies that apply because these institutions are public schools because they are public schools they are regulated by the state they're subject to being charged as sort of being revoked they're subject to the audit requirements an financial management requirements that the state law imposes upon them like it does upon regular public school districts and so the concern that the money will somehow be filtered out into somebody's profits isn't  realistic for those purposes second point on that your honor is that the department concedes in their argument and they concede in their determination that the state of arizona could they believed allow these schools to be reconstituted as something else but then take their federal money and provide it to back to the for profit entities to operate their schools under contract  and that in fact is consistent with the legislative history and of the charter school amendments act that's been cited to the court and we would posit that it's difficult to reconcile that congress would allow that where the money is now being provided  for profit entity that is not public that is not subject to the same regulations state the state or federal level or the same audit requirements that a public entity is is subject to but the congress would somehow deem it inappropriate for a public for profit entity that is subject to all those requirements and restrictions to receive the money in summary judgment we believe that the statutory purpose is an intent behind getting the money down to as many students as possible who have these special needs who are in fact being serviced by these schools and the focus of congress on the public nature of charter schools compels the court to define including as an expansive term and public charter schools as including the arizona for profits ok you write down to the end of your time thank you thank you for your argument think both sides for their arguments are very interesting in the case just argued will be submitted for decision in the