[00:00:01] Speaker 04:
Mr. Rosbach.

[00:00:03] Speaker 02:
Yes, Mr. Rosbach, yep.

[00:00:10] Speaker 02:
May it please the court, Eric Rosbach, for plaintiff's appellants.

[00:00:13] Speaker 02:
I'd like to reserve five minutes for rebuttal.

[00:00:16] Speaker 02:
ML is a five-year-old boy diagnosed with autism, which means he needs services like speech, occupational, and behavioral therapies.

[00:00:25] Speaker 02:
In accordance with IDEA, the state would pay for those therapies if ML

[00:00:28] Speaker 02:
attended a public school, or if he attended a secular private school, or even if he attended a private school with some religious content.

[00:00:35] Speaker 02:
But the state won't pay for ML's therapies if he attends a religious school.

[00:00:39] Speaker 02:
That puts ML's parents in a bind.

[00:00:42] Speaker 02:
They have the choice of either giving him a Jewish education or giving him the speech therapy he needs.

[00:00:49] Speaker 02:
The Constitution resolves this problem because it forbids the state from enforcing the non-sectarian requirement in the education code.

[00:00:56] Speaker 02:
under Trinity Lutheran, Espinosa, and Carson, excluding Jewish schools from IDEA funding, simply because they are Jewish, violates the First Amendment.

[00:01:05] Speaker 02:
I'd just like to start off by saying that the district court made a number of errors here, but I think you can kind of sum them up as

[00:01:13] Speaker 02:
Too much on standing and too little on the merits.

[00:01:17] Speaker 03:
Well, standing is a threshold question.

[00:01:18] Speaker 03:
So I'm not sure that's a fair complaint about the district court doing our job.

[00:01:22] Speaker 03:
Can you talk to me about, I just want to make sure first I get everybody's name right.

[00:01:26] Speaker 03:
Is it parrotses?

[00:01:28] Speaker 03:
Or how do I pronounce it?

[00:01:29] Speaker 02:
Parrots, yes.

[00:01:29] Speaker 02:
Parrots?

[00:01:30] Speaker 02:
Parrots, yeah.

[00:01:30] Speaker 03:
Parrots.

[00:01:31] Speaker 03:
So that family has six children, I think.

[00:01:36] Speaker 02:
Is that right?

[00:01:37] Speaker 02:
Yes.

[00:01:37] Speaker 03:
And five of them are attending an orthodox school, and one child with a disability is not.

[00:01:42] Speaker 03:
That's correct.

[00:01:42] Speaker 03:
Okay.

[00:01:43] Speaker 03:
And my understanding is their allegation is that that child is not getting a FAPE right now because of a certain type of speech therapy that's not available in the public school.

[00:01:53] Speaker 03:
A prompted speech therapy where there's touching is involved.

[00:01:57] Speaker 03:
Do I understand that?

[00:01:58] Speaker 02:
Well, I would actually say also because they cannot have the child in the

[00:02:03] Speaker 02:
environment that would be best for his unique needs.

[00:02:06] Speaker 00:
Part of their argument as I understand it is in, is it NP?

[00:02:12] Speaker 00:
NP, yes.

[00:02:13] Speaker 00:
Part of it as I understand it is NP's parents do not have even now the ability to advocate that part of his FAPE requirement is having this type of secular education because

[00:02:28] Speaker 00:
they would be talking to the wind because there would be no possibility under California law for him getting it so they don't even have the right to advocate.

[00:02:36] Speaker 00:
So they're not even in a position where they can even advocate for it because it couldn't do any good.

[00:02:42] Speaker 02:
That's right.

[00:02:42] Speaker 02:
So normally the way the IEP team works is that people can put different things on the table as options.

[00:02:48] Speaker 02:
And the parents have an absolute right to be able to do that.

[00:02:51] Speaker 02:
That is, they're able to say, we want to put this as an option for the IEP team to consider.

[00:02:58] Speaker 02:
And the way the statute is set up and the way that the regs are set up, they have the ability to do that.

[00:03:03] Speaker 02:
Except in California, they're not allowed to do one class, which are religious schools.

[00:03:09] Speaker 02:
And that's the problem in this case.

[00:03:10] Speaker 02:
They normally would have the right to do that, put that into the discussion, and they're being denied that.

[00:03:17] Speaker 03:
So you're not arguing that if there were a determination that the child was being denied FAPE, and then the team were to convene and talk about what to do, what the appropriate placement would be,

[00:03:27] Speaker 03:
You're not arguing, as I understand it, that the parents would be in a position to direct or unilaterally decide on the next best step.

[00:03:34] Speaker 03:
Is that right?

[00:03:35] Speaker 02:
That's right.

[00:03:35] Speaker 02:
I think the way to think about it is that the unilateral part that they could do is to put that into the mix.

[00:03:40] Speaker 02:
That's the part that they would have.

[00:03:42] Speaker 03:
The sort of a nomination to be considered on the table.

[00:03:45] Speaker 02:
Yes?

[00:03:46] Speaker 02:
Yes.

[00:03:46] Speaker 02:
Before the president nominates someone, then it gets considered by the Senate.

[00:03:51] Speaker 02:
Painful memory.

[00:03:52] Speaker 02:
So I think that that's a very similar idea.

[00:03:54] Speaker 03:
Right.

[00:03:55] Speaker 03:
Thank you.

[00:03:57] Speaker 03:
So going back to that point, opposing counsel is going to argue and has argued in the briefing that the IDEA doesn't guarantee anybody a secular education.

[00:04:07] Speaker 03:
It's about responding to disabilities.

[00:04:10] Speaker 03:
So without broaching that, it seems to me on the facts of this case alone, without exceeding the boundaries of our existing law, one of these six children is being, every day, getting up, well, five days a week, I guess, getting up and going to school, a different school than his siblings.

[00:04:32] Speaker 02:
Right.

[00:04:32] Speaker 03:
And IDEA, if there's one thing that is a cornerstone of that piece of legislation, it's mainstreaming and inclusion and not being treated differently.

[00:04:41] Speaker 03:
So it seems to me, for this particular child, there's a unique argument, and the parents might be wanting to make that argument,

[00:04:49] Speaker 03:
that one of the orthodox schools should be considered, not because it's orthodox, but for a more fundamental reason, which is we've got to go to a private, but this is, I want to hear from both parties to see why I'm wrong, but it seems to me that their position is going to be, we have to go to a private school because our child can't get the

[00:05:08] Speaker 03:
type of prompted speech therapy he needs in a public school.

[00:05:11] Speaker 03:
That's my first understanding.

[00:05:13] Speaker 03:
And please correct me if I'm wrong.

[00:05:15] Speaker 03:
And what they want to argue is that we want our child to be mainstreamed, as in not treated differently than his siblings.

[00:05:22] Speaker 03:
So we want consideration of the orthodox school where he currently contends, not that they get to choose that.

[00:05:28] Speaker 02:
That's right.

[00:05:29] Speaker 02:
So it's not something where we're seeing at the end of the

[00:05:32] Speaker 02:
you know, this case where we're going to get an injunction saying, you know, send this child to this school.

[00:05:38] Speaker 02:
It's just about having that option to have that discussion and to make exactly the kind of thing you're talking about.

[00:05:44] Speaker 02:
I think the mainstreaming point that you make is excellent.

[00:05:47] Speaker 02:
That is that if you can have the siblings go together with each other, that is something that I think is often considered in IEP discussions.

[00:05:57] Speaker 03:
And it doesn't always prevail.

[00:05:59] Speaker 02:
It doesn't.

[00:06:00] Speaker 02:
It doesn't.

[00:06:00] Speaker 02:
That's right.

[00:06:01] Speaker 03:
So you just want the chance to make the pitch.

[00:06:04] Speaker 02:
That's right.

[00:06:04] Speaker 02:
It's sort of a right to try case.

[00:06:06] Speaker 02:
So I think we're trying.

[00:06:08] Speaker 02:
We're just trying to get a right to do this.

[00:06:10] Speaker 04:
The reason you can't make this pitch is because of this California law.

[00:06:16] Speaker 02:
That's right, Your Honor.

[00:06:17] Speaker 02:
It's the California Education Code.

[00:06:18] Speaker 04:
And it's nothing in the IDEA that precludes you from making this pitch.

[00:06:23] Speaker 02:
That's right.

[00:06:23] Speaker 02:
That's right.

[00:06:24] Speaker 02:
And in fact, if you look at what the state's already doing, this is a very narrow case.

[00:06:29] Speaker 02:
Because under the 10C funding, so that's that third.

[00:06:33] Speaker 02:
We had that chart that we tried to use to make this somewhat more understandable on page nine of our opening brief.

[00:06:39] Speaker 02:
That third line.

[00:06:43] Speaker 02:
They're already paying tuition at religious schools like New Harvest Christian School, Imago Dei.

[00:06:51] Speaker 02:
They're already getting it.

[00:06:51] Speaker 02:
And then under 10B, you have private school, the Intermountain Children's Home in Helena, Montana, has religious content, has a Jewish chaplain, has Jewish mentors.

[00:07:02] Speaker 02:
and they're getting 10B funding.

[00:07:04] Speaker 02:
So that's what this case is about.

[00:07:05] Speaker 02:
So we're really just talking about a very small slice, which is 10B funding for these Orthodox Jewish families.

[00:07:11] Speaker 03:
I'm not sure you're making it such a small slice, because even though I fully appreciate that you want to get to the merits, but there is a standing component.

[00:07:17] Speaker 03:
So we've just been talking about standing vis-a-vis the one family with a child that we've discussed here, the child who's one of six.

[00:07:24] Speaker 03:
But there's also both schools seek a ruling that they have standing.

[00:07:29] Speaker 03:
And this one is much tougher, I think.

[00:07:32] Speaker 02:
Well, and I think, Your Honor, the good news is you don't actually have to address all those things.

[00:07:36] Speaker 02:
And what the district court should have done is once it decided that the Taxons had standing under the Little Sisters of the Poor case, note six, the court should have stopped.

[00:07:47] Speaker 02:
It was actually said in the Little Sisters case that it was error to go on and figure out the standing of the other parties.

[00:07:52] Speaker 03:
But since we're here, I'd like to figure out.

[00:07:54] Speaker 03:
And you want this case to be a narrow case.

[00:07:56] Speaker 03:
And I'm struggling to see how it's narrow.

[00:07:58] Speaker 03:
So as to the schools, we all understand the standing requirement.

[00:08:02] Speaker 03:
We think we do, and it's jurisdictional.

[00:08:07] Speaker 03:
The district court had to satisfy herself that there was standing here.

[00:08:10] Speaker 03:
And you know about the Carson case, right?

[00:08:13] Speaker 03:
That's the judge who hadn't even tried to apply for a judgment.

[00:08:17] Speaker 03:
The Kearney case.

[00:08:18] Speaker 03:
Thank you for correcting me.

[00:08:20] Speaker 03:
And then we have—well, I don't want to go through all the—you know these cases as well as I do.

[00:08:26] Speaker 03:
And so the problem I have in this case is that there's an allegation in the complaint that seems to be directly opposite the allegations that were made in the declaration submitted in support of the preliminary injunction.

[00:08:38] Speaker 03:
In the complaint, there's allegations—I can read them to you, but you know them—about both—the leaders of both schools really feeling compelled to make—to see if they could qualify as NPSs.

[00:08:48] Speaker 02:
Seek to qualify, yes.

[00:08:50] Speaker 03:
Yes.

[00:08:50] Speaker 03:
Right.

[00:08:51] Speaker 03:
But in the preliminary injunction, sorry, declaration submitted in support of the preliminary injunction, there's statements to the effect that even beginning the certification process would require me to violate the school's sincerely held religious beliefs because I would have to disavow the religious character of the institution, which, of course, he was not willing to do.

[00:09:12] Speaker 03:
And I fully appreciate that and respect that.

[00:09:14] Speaker 03:
But the problem we've got, counsel,

[00:09:17] Speaker 03:
is that to go that route, I just cannot square that.

[00:09:22] Speaker 03:
I'm having a hard time.

[00:09:23] Speaker 03:
Squaring that with our standing jurisprudence that requires everybody who comes to the court to show the requirement of ready and able.

[00:09:32] Speaker 03:
So how do we reconcile that?

[00:09:34] Speaker 02:
So it's really at ER 205, there's this assurance statement, and you're swearing, you know, we're not religious.

[00:09:42] Speaker 02:
And that would be a lie.

[00:09:43] Speaker 02:
They are religious schools.

[00:09:45] Speaker 03:
Why do you think it requires them to swear they're not religious?

[00:09:48] Speaker 02:
Because it says at ER 205, they have to actually sign something on behalf of the school saying,

[00:09:54] Speaker 02:
As part of the application, this is part of the ER.

[00:09:58] Speaker 03:
Maybe I'm splitting hairs.

[00:10:00] Speaker 03:
I'm certainly not suggesting that anybody affiliated with the school is going to say I'm not religious.

[00:10:04] Speaker 03:
But it does say that we can't even begin this process.

[00:10:07] Speaker 03:
So there's no attempt to even cross that out and say we're otherwise qualified.

[00:10:11] Speaker 03:
And that's what I was looking for, because we do have standing requirements.

[00:10:15] Speaker 02:
Right.

[00:10:15] Speaker 02:
But I think where this comes up in, I guess I would say, is futility.

[00:10:21] Speaker 02:
So you have a futility response to that, which is just that

[00:10:24] Speaker 02:
If you have to check a box that says, I'm not black, I'm not Jewish, I'm not something else,

[00:10:31] Speaker 02:
And that's not true, or you think it's a discriminatory barrier, you don't have to go any further.

[00:10:37] Speaker 03:
I would never suggest that that's required here.

[00:10:38] Speaker 03:
But what I am suggesting is there's everything else that's required to qualify as an MPS.

[00:10:43] Speaker 03:
And I look, look, look to see where does it say that the curriculum otherwise satisfies whatever it is that is required, all of the other requirements for MPSs.

[00:10:52] Speaker 03:
And so my really, this is a clumsy way of me asking you, is that in the record somewhere?

[00:10:57] Speaker 03:
That they they've not otherwise Otherwise qualify except for the sectarian.

[00:11:03] Speaker 02:
Yes, we did we did allege that where is that?

[00:11:06] Speaker 02:
That's that that that is alleged at er 268 270 268 to 270 correct

[00:11:14] Speaker 02:
Okay.

[00:11:16] Speaker 02:
Okay.

[00:11:16] Speaker 02:
Um, but I, but can I go back to the point about, about record sites that I've already read?

[00:11:20] Speaker 02:
Okay.

[00:11:21] Speaker 02:
Can we go back to the point about the, um, the standing, which is I really, I do think that I agree.

[00:11:27] Speaker 02:
Obviously you have to satisfy standing, but I do think that the court has been, the Supreme court has been clear in the little sister's case that it is actually error to go and look at those other things.

[00:11:36] Speaker 02:
If you look at the new civil liberties, what other things, what do you mean?

[00:11:40] Speaker 02:
to look at once you've decided if the parties have the same claims and the same relief, which is the case here that they're seeking, then once you've decided one party has standing, it's error, the Supreme Court has said, to go further.

[00:11:54] Speaker 02:
So they have to run the table.

[00:11:55] Speaker 02:
They have to run the table on their 12-B-1 motion.

[00:11:57] Speaker 02:
And I think what happened here is that the court, when we got into district court, I think the district court was planning or thinking that it was anticipating that it was going to dismiss everyone for standing.

[00:12:08] Speaker 02:
And that's why there's, you know, every time we try to talk about that at the hearing, the court says, I don't really want to hear about that.

[00:12:14] Speaker 02:
And then as a result of the hearing, the court decided, you know what, actually this will create a circuit split with the First Circuit and Carson, because this is on all fours with Carson, therefore, you know, changed its mind.

[00:12:26] Speaker 02:
But it should have taken this subsequent step of saying, like, I'm done with this now.

[00:12:31] Speaker 02:
And that's both the Supreme Court, that's other circuits.

[00:12:34] Speaker 04:
With respect to 12b6, you have to look at, I mean, the plaintiffs, the parents are not similarly situated to the schools in terms of standing.

[00:12:44] Speaker 02:
Right, but I think the ambit of that rule, at least is the way the Supreme Court was talking about it, is the same claims and the same forms of relief that you're seeking.

[00:12:52] Speaker 04:
Not really the same claims, because no, I mean, schools want to become NPSs.

[00:12:58] Speaker 04:
The parents want to advocate for their kids.

[00:13:01] Speaker 02:
Right, but I think if you look at it through the lens of Carson, where there were no schools in the case, but it was all about whether schools could qualify for this tuition assistance program in Maine, the parents are the ones asking for it, but they need the school to do it.

[00:13:14] Speaker 02:
They're kind of together on it.

[00:13:16] Speaker 00:
So I think that it- So, Ken Sal, how, I mean, theoretically, how would that work?

[00:13:22] Speaker 00:
That, let's say, totally as a theoretical hypothetical, we were to agree with you that the statute were unconstitutional, that the parrots have standing, and we were to agree with you somehow.

[00:13:35] Speaker 00:
That means, under little sisters of the poor, we don't have to address the standing of anyone else.

[00:13:41] Speaker 00:
and we were to send this case back to the district court would and you would you would seek a preliminary injunction assuming we didn't grant you one on appeal the parties that we didn't reach standing as to because under little sisters of the poor we don't have to could they still under your

[00:14:01] Speaker 00:
your scenario here get injunctive relief running in their favor?

[00:14:06] Speaker 02:
Yes.

[00:14:06] Speaker 02:
And I think that's really the idea behind the Little Sisters case, where it was, of course, considering an injunction against the federal government in that case.

[00:14:14] Speaker 02:
So I think if you line those two cases up, that is what would happen.

[00:14:18] Speaker 02:
Now, we'd have to still meet all the preliminary injunction factors.

[00:14:20] Speaker 03:
Counsel, I don't know what you mean.

[00:14:21] Speaker 02:
Oh, sorry.

[00:14:21] Speaker 03:
When you say that is what would happen, could you fill in what you're talking about?

[00:14:24] Speaker 02:
Oh, sure.

[00:14:25] Speaker 02:
Sorry.

[00:14:25] Speaker 02:
If you look at the Little Sisters of the Poor case and what the posture was there, the lower- Council, I've read all those cases.

[00:14:31] Speaker 03:
Just tell me what you think would happen on remand, if you would.

[00:14:33] Speaker 02:
Oh, sure, sure.

[00:14:34] Speaker 02:
I don't want to take up all your time.

[00:14:35] Speaker 02:
We would seek a prohibitory injunction against the enforcement of the word nonsectarian in the education code.

[00:14:45] Speaker 03:
Who's we in your sentence?

[00:14:46] Speaker 03:
On remand, would you go forward just the parents or the schools?

[00:14:49] Speaker 02:
We would seek it on behalf of all of our clients.

[00:14:51] Speaker 02:
Yes.

[00:14:52] Speaker 02:
Yes, Your Honor.

[00:14:53] Speaker 03:
I'm not sure you're communicating with Judge Bennett.

[00:14:55] Speaker 02:
That's what my point is.

[00:14:55] Speaker 02:
OK, sorry.

[00:14:56] Speaker 02:
And you guys do a good job of helping each other out.

[00:14:59] Speaker 02:
Yes, Your Honor.

[00:15:00] Speaker 03:
He's trying to get to a clear answer.

[00:15:01] Speaker 00:
Yes.

[00:15:01] Speaker 00:
So everybody could get a preliminary injunction in your view.

[00:15:05] Speaker 00:
That's right.

[00:15:06] Speaker 00:
And again, I don't mean to be facetious in an important case, but that would also be true if one of your plaintiffs were the governor of Minnesota.

[00:15:18] Speaker 03:
Doesn't every party have to have standing?

[00:15:23] Speaker 02:
Every party has to have standing, but the Supreme Court has said that you should stop looking after you've decided that one of the parties does.

[00:15:31] Speaker 02:
is what this court has said in cases like Maya against syntax.

[00:15:35] Speaker 02:
And of course, all the other courts of appeals say things like that.

[00:15:39] Speaker 02:
They say, we've decided one party has standing.

[00:15:42] Speaker 02:
We're done.

[00:15:42] Speaker 02:
Let's move on to the merits.

[00:15:44] Speaker 02:
So I think that that is the typical way that courts of appeals do this.

[00:15:47] Speaker 03:
So I'm trying to figure out whether you think I shouldn't be bothered by the

[00:15:51] Speaker 03:
discrepancy, which seems to me to be quite inconsistent with our stand for standing that I just pointed out to you about the heads of the schools declarations, right?

[00:16:00] Speaker 03:
Should I, should I not be concerned about that because I just, if I find standing for, as to one family?

[00:16:05] Speaker 03:
Or are you suggesting that at the next step on remand, if I decide they're standing for one party, then all parties can go forward?

[00:16:14] Speaker 02:
All parties can go forward.

[00:16:16] Speaker 02:
But of course, if you got further into the case, like so for example, you get to the summary judgment stage of the case, then the standing inquiry gets looked at again.

[00:16:24] Speaker 02:
So that's the San Francisco USCIS case.

[00:16:28] Speaker 02:
We're just asking for the level of standing inquiry at the outset of the case.

[00:16:32] Speaker 02:
This is up on a motion to dismiss and a denied preliminary injunction.

[00:16:35] Speaker 02:
But absolutely, and that's why they're gonna look at the facts.

[00:16:40] Speaker 02:
And then you have many more facts in the record to be able to decide, we'd be able to put forward our case.

[00:16:45] Speaker 02:
I don't think I got back to the governor of Minnesota question.

[00:16:49] Speaker 02:
I think that my answer is actually yes, though I have a hard time putting together how the governor would have standing.

[00:16:57] Speaker 00:
But see, that's what I took your position as being.

[00:17:02] Speaker 00:
that if person one has standing, then it really doesn't matter actually who persons two through 20 are.

[00:17:11] Speaker 00:
That's right.

[00:17:12] Speaker 00:
And maybe the Supreme Court mandated that in Little Sisters of the Poor, but it sure seems to me to be a strange way of approaching things.

[00:17:21] Speaker 02:
Well, I think it's not if you just look at the one party standing rule and how it gets applied.

[00:17:26] Speaker 02:
And I think it's really a prudential judgment of the way that the courts operate that you're going to be in court anyway.

[00:17:33] Speaker 02:
We're just going to decide this.

[00:17:35] Speaker 02:
But I agree.

[00:17:36] Speaker 02:
It should get looked at, again, at later stages of the proceedings.

[00:17:40] Speaker 02:
So we're just talking about the low level at the outset of the case.

[00:17:45] Speaker 04:
But I want to understand, suppose we were to say that

[00:17:49] Speaker 04:
The California statute is unconstitutional because it violates the established free expression clause.

[00:18:00] Speaker 04:
And we're talking about the free expression rights of the parent to advocate, right?

[00:18:09] Speaker 02:
The free exercise right of the parent to advocate and put put that on the table.

[00:18:13] Speaker 04:
Yes, right.

[00:18:14] Speaker 04:
That's what we're talking.

[00:18:15] Speaker 02:
Yes.

[00:18:15] Speaker 04:
Yes, your honor and Suppose we do that What what kind of relief ultimately?

[00:18:22] Speaker 04:
Does would the parent get I?

[00:18:26] Speaker 02:
Think we're just we would just get a prohibitory injunction that we would we would be able to put that into the mix then You'd have your IEP discussion

[00:18:36] Speaker 02:
Sorry, sorry, I shouldn't say into the mix, into the ITT.

[00:18:39] Speaker 04:
The guarantee that any kid could actually go to the religious or private school that they want to because of all the other restrictions in the IDEA, correct?

[00:18:51] Speaker 02:
That's right.

[00:18:52] Speaker 02:
You would not be deciding those issues.

[00:18:53] Speaker 02:
You would just be deciding whether this particular discriminatory barrier, which they're up against right now, whether that would have to come out.

[00:19:01] Speaker 00:
So the IEP team could say, no, we're not placing the child here because that's not in his or her best interest.

[00:19:08] Speaker 00:
What they couldn't say is, we're not placing the child here because this is a Jewish secular school or a Catholic secular school or some other religion secular school.

[00:19:17] Speaker 02:
That's right.

[00:19:18] Speaker 02:
And they might also look at things like the mainstreaming issue that Judge Christen was mentioning.

[00:19:22] Speaker 00:
They might.

[00:19:23] Speaker 00:
But to go to what I think Judge Wardlaw's point is, a ruling that this no secular school statute were unconstitutional would not give the parrotses, for example, the right to have NP placed at any particular school.

[00:19:38] Speaker 02:
It would not be a sort of carte blanche.

[00:19:40] Speaker 02:
That's exactly right.

[00:19:41] Speaker 03:
When we talk about redressability, which is also part of standing, the harm

[00:19:47] Speaker 03:
that you're complaining of, the redressable harm is quite narrow.

[00:19:50] Speaker 03:
It's the ability of the parents to advocate for this option at the IEP meeting.

[00:19:56] Speaker 02:
It is to get into the door.

[00:19:58] Speaker 02:
Yes, Your Honor.

[00:19:58] Speaker 02:
Yeah.

[00:19:59] Speaker 02:
Right.

[00:19:59] Speaker 02:
Get rid of the discriminatory barrier.

[00:20:00] Speaker 03:
And the schools may or may not otherwise qualify as NPSs.

[00:20:04] Speaker 03:
My read of the record is we really don't know that.

[00:20:06] Speaker 03:
But that's a subsequent conversation.

[00:20:08] Speaker 04:
Even if we gave you the relief, but you want it on the calendar.

[00:20:12] Speaker 04:
The schools don't actually have redressability, I guess is how I see it, because they have a whole separate road to climb, even if the statute weren't on the books the way it's written.

[00:20:26] Speaker 02:
Yeah, I think one way to maybe think about it is just compare it back to Carson again.

[00:20:30] Speaker 02:
Carson there made all the same arguments.

[00:20:35] Speaker 02:
And they said, no standing.

[00:20:36] Speaker 02:
It's all over the BIO.

[00:20:37] Speaker 02:
It's all over the briefing.

[00:20:38] Speaker 02:
It's in the oral argument, which is very telling about this issue.

[00:20:41] Speaker 02:
And so the court just doesn't address it.

[00:20:44] Speaker 04:
It was direct.

[00:20:46] Speaker 04:
You got the 10% tuition paid for.

[00:20:50] Speaker 04:
across the board.

[00:20:52] Speaker 04:
It was not so dependent on individual characteristics of either the school or the kid.

[00:20:58] Speaker 02:
Right.

[00:20:58] Speaker 02:
And that is a difference in the sense that here the categorical rule that we have a problem with is the exclusion of this entire category of school.

[00:21:06] Speaker 02:
But you're absolutely right.

[00:21:07] Speaker 02:
IDEA is set up to deal with unique needs.

[00:21:10] Speaker 02:
That's literally in the statute.

[00:21:11] Speaker 02:
It's very tailored to particular people.

[00:21:14] Speaker 02:
You're just not going to get that same kind of categorical ruling out of any IDEA proceeding.

[00:21:21] Speaker 02:
I'm not sure if my time is up or if I've got one more minute.

[00:21:25] Speaker 04:
You're over.

[00:21:25] Speaker 02:
Okay.

[00:21:26] Speaker 04:
Thank you, Your Honor.

[00:21:27] Speaker 04:
Easy answer.

[00:21:38] Speaker 01:
Good morning, Your Honors.

[00:21:39] Speaker 01:
Thomas Prouty for the State Appellees.

[00:21:42] Speaker 01:
I may have pleased the court.

[00:21:44] Speaker 01:
The IDE recognizes that parents have a choice to enroll their children in private school, which could include a religious school for a religious education or the state's public education system.

[00:21:57] Speaker 01:
LEAs have to spend a fully proportionate amount of their IDEA dollars providing services to the families that choose

[00:22:03] Speaker 01:
Private school and they are required to consult with private schools and private school families about how to do that.

[00:22:10] Speaker 01:
And when they provide those services, they do it pursuant to a services plan, which is different than an IEP.

[00:22:16] Speaker 03:
In fact, the very concept isn't this aren't these two schools ineligible to enter into those plans, those service plan?

[00:22:24] Speaker 03:
Is that what the contracts are called the NPS contracts?

[00:22:27] Speaker 01:
LA USD and every other school districts in California can provide services to children in religious schools obtaining a religious education pursuant to a services plan.

[00:22:38] Speaker 01:
When families choose the state's public education system,

[00:22:42] Speaker 01:
LEAs are required to provide a FAPE pursuant to an IEP.

[00:22:47] Speaker 01:
Those terms, their legal meanings of those terms reflect their application only to the state's public education system.

[00:22:54] Speaker 01:
Were this, I see it.

[00:22:55] Speaker 01:
No, I'm sorry.

[00:22:57] Speaker 00:
You were answering the question, but I mean, there is no dispute here, correct, that the

[00:23:04] Speaker 00:
Is secular schools who are plaintiffs here or secular Catholic schools or any other secular religious school who couldn't certify that they're non-secular pursuant to what you were just talking about, no child can be placed there for a fate, right?

[00:23:23] Speaker 00:
There's no question about that, right?

[00:23:25] Speaker 00:
That's correct.

[00:23:26] Speaker 01:
California hasn't chosen to become a manager of sectarian institutions.

[00:23:33] Speaker 00:
So Council, I think we're all familiar with, I mean, for example, I was particularly struck by the

[00:23:46] Speaker 00:
The amicus brief from the California Catholic Conference.

[00:23:51] Speaker 00:
This horrible history in the 19th century of the Blaine Amendment and anti-Catholic sentiment and even the origins of the term secular and

[00:24:05] Speaker 00:
I just can't understand how the state can defend a law which says Catholic schools, Catholic secular schools, Jewish secular schools, Muslim secular schools, Buddhist secular schools, they just don't qualify.

[00:24:22] Speaker 00:
Virtually every other private school can qualify, but religious schools don't.

[00:24:28] Speaker 00:
I just have a hard time understanding

[00:24:30] Speaker 00:
how under Trinity Lutheran, Espinosa, Carson, the other cases, California can defend the statute.

[00:24:37] Speaker 01:
Thank you for posing that question.

[00:24:39] Speaker 01:
My understanding of the Blaine Amendment is it was an across-the-board prohibition on providing any aid going to sectarian institutions.

[00:24:47] Speaker 01:
That's not this case and that's not what we're talking about.

[00:24:51] Speaker 01:
What the Supreme Court has said for free exercise clause is denying a generally available public benefit.

[00:24:58] Speaker 01:
And that's where that's where the free exercise clause comes into play.

[00:25:02] Speaker 01:
But there are instances in which a state will be providing Aid or benefits to a large segment of the population and it's doing so in a non-neutral way or we know sorry Sorry, did you say doing so in a non-neutral way?

[00:25:18] Speaker 01:
I'm sorry in a neutral way.

[00:25:20] Speaker ?:
Okay

[00:25:20] Speaker 01:
And there are times where we know from Zelman and Mitchell, these cases that talk about public funding going to sectarian institutions only when it results from the genuinely independent and private choices of individuals, that limiting language assuring neutrality by limiting both intentional and unintentional systemic favoritism.

[00:25:44] Speaker 01:
And that's a concern in this case.

[00:25:45] Speaker 01:
So I would agree with you.

[00:25:47] Speaker 01:
If there's a Blaine Amendment type law, which is going to prevent any type of aid going to a sectarian institution, shame on California, but that's not to get this case.

[00:25:58] Speaker 01:
The line in this case with respect to the free exercise clause is whether there's a generally available public benefit being deprived in all of those cases.

[00:26:08] Speaker 01:
There's a public benefit that is created for the very purpose of directly benefiting the recipient public.

[00:26:15] Speaker 01:
And that broad segment of the population has a vested right to receive it or to apply for it where there's neutral criteria being applied.

[00:26:24] Speaker 01:
In this case, the NPS system was created, it's a statutory creature and it was created for one limited purpose, to serve as an adjunct to the state's public education system

[00:26:37] Speaker 01:
to provide the state's FAPE, which is the state's public education under public supervision and direction.

[00:26:44] Speaker 00:
And in California's view, we would judge this law under a rational basis.

[00:26:51] Speaker 01:
I believe the question in this court, strict scrutiny comes if there's a threshold burden imposed on religious exercise.

[00:27:00] Speaker 01:
The question here in terms of whether there's even a threshold cognizable burden placed on private religious exercise is... The parents think there is.

[00:27:11] Speaker 03:
Let's use the example of the one child who is receiving special education, and they think it's not sufficient because it's a particular type.

[00:27:19] Speaker 03:
And I think that this part's uncontested.

[00:27:20] Speaker 03:
At least make it a hypothetical, right?

[00:27:23] Speaker 03:
If you would please.

[00:27:24] Speaker 03:
Uncontested that the type of speech therapy he needs isn't available in public schools, and they have to go to a private school.

[00:27:31] Speaker 03:
That's my hypo.

[00:27:33] Speaker 03:
So they think it is a burden on their free exercise to not have that option at the IEP meeting, this hypothetical follow-on IEP meeting.

[00:27:45] Speaker 01:
Following the discussion with my friend earlier, there was talk of a specific type of

[00:27:53] Speaker 01:
healing service of touching, that's not based on religion.

[00:27:59] Speaker 01:
And NPS is required.

[00:28:01] Speaker 03:
My hypothetical is it has nothing to do with religion.

[00:28:04] Speaker 03:
It has to do with there's something this child needs, my hypothetical child, right, we'll make it a hypothetical, to address a disability that's not offered by the county or state schools and is at, let's say, at two or maybe three.

[00:28:23] Speaker 03:
private schools and they want to be able to advocate that their child goes to a private school that is sectarian in nature.

[00:28:31] Speaker 01:
NPS's are not all private schools and an NPS is... My hypothetical they are.

[00:28:36] Speaker 01:
It's not a hypothetical, it's the law that an NPS carries out the IEP which is settled on ultimately by the LEA.

[00:28:44] Speaker 01:
So here's the question, if LAUSD is deciding not to put a service that is required to achieve faith

[00:28:53] Speaker 01:
in its IEPs, then the plaintiffs already have the option to say... Right, they can unilaterally take their child out.

[00:28:59] Speaker 01:
Right, but they also currently have the option to advocate to the LAUSD IEP team, you need to provide this touching therapy.

[00:29:10] Speaker 03:
right but let's say they they have a difference of agreement about that and and and and and time is of the essence because now they've lost a school year and this is a child we're talking about so so just if you could please let me please depose advocate to make sure i understand this they decide

[00:29:25] Speaker 03:
Times ticking, we're going to unilaterally take our child to school X, then there's going to be a due process hearing, then there's going to be, this takes a lot of time.

[00:29:35] Speaker 03:
But in the end, in my hypothetical, they prevail, and it's determined that whatever speech therapy they thought they needed, they need.

[00:29:42] Speaker 03:
It seems then the district either has to provide that or pay for somebody else to provide that.

[00:29:48] Speaker 01:
If California, the challenge law here is whether the NPS is sectarian or not.

[00:29:53] Speaker 01:
To me, if we've already established that this touching therapy doesn't really have anything to do with religion, the IEP that they're gonna take an NPS to is set by the LEA.

[00:30:05] Speaker 01:
Wait a minute.

[00:30:05] Speaker 01:
This is a lot of acronyms.

[00:30:07] Speaker 03:
So if you could, the IEP, the Individual Education Plan or program.

[00:30:11] Speaker 01:
LEAs make that final offer placement.

[00:30:14] Speaker 01:
Now that's a big problem here if we are going to go down the road of sectarian institutions.

[00:30:17] Speaker 01:
But the content of that IEP that LAUSD is making the offer of, that content doesn't change.

[00:30:23] Speaker 03:
I appreciate that.

[00:30:24] Speaker 03:
I know that.

[00:30:25] Speaker 03:
Okay.

[00:30:26] Speaker 03:
Yes.

[00:30:26] Speaker 01:
They go to the MPS.

[00:30:27] Speaker 03:
Right.

[00:30:28] Speaker 03:
I get that.

[00:30:28] Speaker 03:
But if the MPS is otherwise capable of meeting the goals, what's the problem?

[00:30:33] Speaker 03:
Isn't it just the sectarian nature that is preventing that school from being on the list to be considered?

[00:30:38] Speaker 03:
No?

[00:30:40] Speaker 01:
I'm not sure I'm following.

[00:30:42] Speaker 01:
The concern seemed to be from the earlier discussion was that in the IEP team, the parent would say, you're telling me that I can't get this particular type of touching service as part of an IEP.

[00:30:55] Speaker 00:
Well, part of my hypothetical, not Judge Christens', was

[00:30:59] Speaker 00:
We need, I mean they may not prevail, but we need to be able to place our child in with their siblings or in an orthodox secular school.

[00:31:09] Speaker 00:
And right now they can't make that argument because they can't possibly prevail on it because secular schools are excluded.

[00:31:15] Speaker 00:
But I didn't mean to jump in on Judge Christensen's hypothetical.

[00:31:18] Speaker 03:
That is not my hypothetical.

[00:31:18] Speaker 03:
Okay.

[00:31:18] Speaker 03:
But you can now turn the book.

[00:31:19] Speaker 01:
If there's one case that I'd ask you to read, and this ties into the legal meanings of these terms reflecting their application to the state's public education system and the IDEA, an IEP is concerned with how the child's disability, not their religious beliefs, factor in the development

[00:31:42] Speaker 01:
in the general education curriculum, which the federal regulations make a point of saying is the same education provided to non-disabled children in that public LEA.

[00:31:52] Speaker 01:
The ML case, 2017, unanimous decision, Fourth Circuit cert was denied.

[00:31:57] Speaker 01:
It also involved Orthodox Judaism.

[00:32:00] Speaker 01:
This is a case because you talk- What year was that case?

[00:32:02] Speaker 01:
fourth circuit what year 2017 andrew after the andrew f case which is a supreme court espinoza we have we have trinity luther and we have newer case this is really been a shift so we're all doing our very best but but what and what at what the m l case with the m l case did for two thousand seventeen unanimous also involved orthodox Judaism was that circumstances of the child that is relevant for purposes of the federal idea

[00:32:30] Speaker 01:
Are the circumstances relating to their disability, not their religious beliefs?

[00:32:34] Speaker 03:
I know.

[00:32:34] Speaker 03:
That's why I want you to answer my hypothetical and not Judge Ben's.

[00:32:37] Speaker 01:
I'm sorry.

[00:32:38] Speaker 03:
That's okay.

[00:32:39] Speaker 03:
Of course I want you to answer his as well, but they are meaningfully different, and there's a reason that I ask the question the way I ask.

[00:32:46] Speaker 03:
Yours is the- My hypothetical, the disability and the reason that the child's not getting a faith is the disability.

[00:32:52] Speaker 03:
the orthodox nature of the school but when they come to their IEP meeting and say hey our child needs this particular type of therapy and the district can't provide it and we want this other school to be on the list and we get that we can't unilaterally direct that but we want to be able to advocate for that school and we think that school is better for our child not only because it provides this type of therapy that is needed

[00:33:15] Speaker 03:
but also because what the IDEA is about is mainstreaming.

[00:33:19] Speaker 03:
And right now, this child who is one of six is being separated from his siblings every morning.

[00:33:25] Speaker 03:
Why wouldn't that be a fair argument for them to make?

[00:33:28] Speaker 03:
I don't know if they'd prevail.

[00:33:29] Speaker 03:
But it seems to me the kinds of things that that type of discussion happens in IEP meetings, not infrequently.

[00:33:38] Speaker 01:
My understanding is, LAUSD is not putting this particular service in the IAP because it's not necessary to achieve FAPE.

[00:33:47] Speaker 03:
If it were... Why isn't it necessary to achieve the mainstreaming goal of the statute?

[00:33:55] Speaker 01:
I guess the reason is the negative implication.

[00:33:57] Speaker 01:
LAUSD has a requirement to provide faith.

[00:34:01] Speaker 01:
And the parents already have the right to look at the LAUSD IEP team and say, provide this service, which we've already established has nothing to do with religion.

[00:34:12] Speaker 03:
Right.

[00:34:13] Speaker 03:
And so can you just help me out?

[00:34:14] Speaker 03:
And let's say in my hypothetical, they don't, they just disagree, right?

[00:34:18] Speaker 03:
They disagree.

[00:34:19] Speaker 03:
And the parents have the ability to unilaterally, it's on their dime, unilaterally place their child in the private school of their choice, have the due process hearing fight it out.

[00:34:28] Speaker 03:
If they lose at that hearing and it's determined that their child didn't need that special type of therapy, nobody's going to reimburse them.

[00:34:37] Speaker 03:
If they prevail,

[00:34:38] Speaker 03:
They are entitled to reimbursement, I think.

[00:34:40] Speaker 03:
And then you're back to, so where's this child going to be and who's going to pay for it?

[00:34:43] Speaker 03:
and they want to be able to advocate that he should stay right where he is, in my hypothetical, and that it should be on the district's dime.

[00:34:51] Speaker 01:
If they were correct, they would get reimbursement for that year in the religious school.

[00:34:58] Speaker 01:
And there's certain state put provisions in the IDEA, which allows us to say there.

[00:35:02] Speaker 01:
The next year, though, they would have had the benefit of the ruling that LEOSD was failing to provide the FAPE.

[00:35:10] Speaker 01:
they would presumably change courts to meet the federal obligations.

[00:35:14] Speaker 03:
So exactly.

[00:35:14] Speaker 03:
So they wouldn't necessarily get to even stay there.

[00:35:17] Speaker 03:
I mean, I think Judge Wardlaw's point is really well taken.

[00:35:20] Speaker 03:
This is very intenuated.

[00:35:22] Speaker 03:
But it seems to me that at bottom, what there's a standing and redressability is the ability to advocate for this.

[00:35:31] Speaker 03:
And on year two,

[00:35:33] Speaker 03:
In this hypothetical are you telling me at that point then if they prevailed at their due process hearing the district then you have to provide that service for them.

[00:35:43] Speaker 03:
Or allow the child to stay where he is and pay for it is that not right.

[00:35:49] Speaker 01:
lusd if it was declared that what they were doing didn't comply they would have to start complying yep and they could only stay in that nps assuming the state put provisions are uh have run their course um the child wouldn't be could only be in a certified nps

[00:36:04] Speaker 01:
And the question is, and NPSs have an obligation to work to transition the kid back.

[00:36:09] Speaker 01:
The goal is not to have kids in NPSs, right?

[00:36:11] Speaker 01:
Right.

[00:36:12] Speaker 01:
And so your point that all the other five children go to a private religious school, the parents, both in their complaint and in their direct declarations, have made it abundantly clear that they believe their free exercise rights are infringed

[00:36:26] Speaker 01:
because they're not able to obtain religious education.

[00:36:30] Speaker 03:
I fully appreciate that, which is why my hypothetical is different than Judge Bennett's hypothetical.

[00:36:35] Speaker 03:
What I'm positing is it seems like there is a skinnier version of this that doesn't require biting all of that off.

[00:36:43] Speaker 03:
And I wanted to give you an opportunity to tell me why you think I'm wrong.

[00:36:48] Speaker 01:
In Carson, which is the only case that the district court relied on to find standing for the families,

[00:36:53] Speaker 01:
the plaintiffs, if the challenged law were struck down, would be able to unilaterally and immediately point to a private religious school that qualified and obtained a private religious education.

[00:37:07] Speaker 01:
In this case, if the challenged law were struck down, it is unlikely that anything related to their IEP would change, and it is certain

[00:37:20] Speaker 01:
that they would not receive a religious education in a private religious school, which is the very thing they sued.

[00:37:26] Speaker 01:
And they said, this is the religious exercise that's being infringed.

[00:37:32] Speaker 04:
So I think your argument that it's not being infringed.

[00:37:36] Speaker 01:
Or the schools.

[00:37:38] Speaker 04:
or the parents.

[00:37:40] Speaker 04:
I don't think the schools have standing.

[00:37:43] Speaker 01:
For the families, you're unable to obtain a religious education if you choose the state's public education system.

[00:37:55] Speaker 01:
They have said the religious exercise that is being infringed is our ability to obtain a religious education.

[00:38:02] Speaker 01:
That's clear in the allegations of the complaint and in their preliminary injunction papers.

[00:38:07] Speaker 01:
Don't know what the religious exercise is to receive the touching therapy that la USD may not May not be providing the service that they say that they would like to be part of their IEP that We've already we've already kind of talked about how that's not I think your answer to judge Ward's last question is you think they haven't made the claim that I'm positing the skinnier what I'm calling this that's the skinnier claim and you think that they have really have only sued for the

[00:38:34] Speaker 03:
larger claim that they're being denied a fate because they're not allowed to advocate for an orthodox school, to place their child in an orthodox school.

[00:38:44] Speaker 01:
If I followed that, I believe that's correct.

[00:38:46] Speaker 01:
The public benefits for ID?

[00:38:49] Speaker 03:
Because if that's right, sir, forgive me for interrupting, but we are trying to communicate with you.

[00:38:54] Speaker 03:
Because if that's right, why wouldn't we allow them, remand with direction to allow them to amend?

[00:39:04] Speaker 01:
They've had all these opportunities to say what other religious exercise.

[00:39:09] Speaker 01:
They're saying, and they've made it clear, our religion requires us to provide a religious education, which independent, unchallenged law prohibits if you choose the state's public education system.

[00:39:22] Speaker 01:
And there's been no articulation that there's some other religious exercise that's being infringed by this nonsectarian NPS requirement.

[00:39:32] Speaker 04:
So so you said something earlier that I want to go back to.

[00:39:36] Speaker 04:
They if they ended up going through the fake.

[00:39:46] Speaker 04:
And when they choose vape and then it turns out that.

[00:39:52] Speaker 04:
They.

[00:39:53] Speaker 04:
They think they'd be better served by another school and the state district degrees.

[00:40:01] Speaker 04:
Do they get full tuition or do they only get partial payments or payments for this?

[00:40:10] Speaker 04:
I mean, if you go pay, you get full tuition, right?

[00:40:14] Speaker 01:
The LEA is in full control of paying a master contract with the NPS.

[00:40:20] Speaker 01:
The families aren't getting something to pay for tuition.

[00:40:23] Speaker 01:
The payments are pursuant to a master contract.

[00:40:27] Speaker 01:
And the regulations make clear that the amount of that master contract is only supposed to reflect the services that the LEA tells the NPS to provide so that the NPS can properly act as an adjunct to the system.

[00:40:44] Speaker 03:
Right, so their argument is?

[00:40:45] Speaker 01:
And to address your question maybe more better, that amount of compensation should reflect what it costs for that student to go there, to be in the class, and to receive special education services that allow it to make progress in the LEA's public education.

[00:41:04] Speaker 01:
So if the school determines this is our enrollment fee because it covers our cost, that's typically what the master contract will cover.

[00:41:12] Speaker 04:
I was told we it was 1520 and I was told my clock would be 15 I appreciate you taking the time with this case and do you have anything additional to say because he's well over

[00:41:42] Speaker 05:
Okay.

[00:41:43] Speaker 04:
Thank you.

[00:41:52] Speaker 05:
Sue Ann Evans for Los Angeles Unified School District and the point that I wanted to make is really that we're rockin' hard place here.

[00:42:00] Speaker 05:
We are bound by the laws that are put in place by the state of California and by the federal law.

[00:42:05] Speaker 05:
So we're not in a position to be able to meet the

[00:42:12] Speaker 05:
Asks of the appellants in this case when it comes to waiver I know that they have made a big point about the district pursuing waiver on their behalf Waiver is an option, but waiver has to be requested it has not been requested in this matter and the record reflects and really waiver

[00:42:33] Speaker 05:
has to be consistent with a particular matter, particular need of a student as opposed to generally we're going to seek a waiver of the sectarian requirement and ultimately it's not a decision that we make.

[00:42:50] Speaker 05:
Waiver is a decision that is made by the the state superintendent and with that I will submit.

[00:42:56] Speaker 05:
I'm sorry.

[00:42:58] Speaker 04:
Do other states have this provision like the state of California?

[00:43:02] Speaker 01:
I haven't done an exhaustive 50-state survey.

[00:43:06] Speaker 01:
My understanding is that other states have an onset.

[00:43:17] Speaker 01:
Right.

[00:43:19] Speaker 04:
And suppose that we were to say that this statute

[00:43:25] Speaker 04:
does violate the religious clause.

[00:43:31] Speaker 04:
You can come back up.

[00:43:33] Speaker 04:
What actual, I mean, we said that because I think it's plain on its face it does.

[00:43:38] Speaker 04:
If you separate it from the whole IDEA and all the other regulations and how FAPE actually works and the choices the parents have to make when they're sending their kid to public education versus private or religious education.

[00:43:54] Speaker 04:
standing on its own, it's pretty clearly discriminatory.

[00:43:58] Speaker 04:
But if we were to say that, what's the practical implications of that?

[00:44:07] Speaker 01:
I think the question you have to really ask yourself here is did California create the NPS system to serve as a way to benefit all private schools and then we're just leaving sectarian schools out or did California adopt the NPS system

[00:44:25] Speaker 01:
to help undertake.

[00:44:27] Speaker 01:
An enormous complex and delicate task where there's over 1000 school districts and charter schools maybe 1500 different sites across the nation where public officials are going to be handing parents with disabled children at

[00:44:42] Speaker 01:
At their wits end how to provide this child in education saying This is the sectarian school that we're that we're offering our paper, you know our faith offer of placement The parents may say well, you know, we're the guardian.

[00:44:57] Speaker 03:
There's all too many situations where it's a court-appointed guardian That's not my religion answer to judge Wardlaw's question that there's a zillion of these schools and then once a child's placed into one of these schools that the school district defendants

[00:45:12] Speaker 03:
have an obligation to they don't just hand off the child they still have to monitor the education that child is given is that right there's extensive state monitoring not just monitoring but assessment and direction telling the school what it needs to do differently or else its certification is going to get revoked which sounds like a nightmare and and and but it sounds like they've

[00:45:32] Speaker 01:
it sounds like they do that for all of the other private schools but not for sectarian schools am i missing that relationship with works for families choose uh... private religious schools they're getting a religious education just like the other five brothers or sisters of the family did the relationship there is

[00:45:49] Speaker 01:
We are required to consult with you about how to provide special education services with a fully proportionate amount of IDE dollars to you.

[00:45:58] Speaker 01:
The things are different because there's economies of scale.

[00:46:02] Speaker 01:
When people are coming into your schools, you own the buildings, you employ the teachers.

[00:46:06] Speaker 01:
It's one curriculum that you're familiar with.

[00:46:08] Speaker 01:
And you're providing the services.

[00:46:09] Speaker 01:
Families choose all sorts of private schools, and so the services may differ here.

[00:46:14] Speaker 01:
The First Circuit.

[00:46:15] Speaker 03:
The Council Council just would ask a really specific question.

[00:46:18] Speaker 03:
I'm dying to hear the answer.

[00:46:20] Speaker 03:
What's the?

[00:46:20] Speaker 03:
What are the ramifications?

[00:46:22] Speaker 03:
Is it?

[00:46:22] Speaker 03:
Is it the case that the school would have school district would have to do?

[00:46:25] Speaker 03:
What if sectarian schools are involved?

[00:46:27] Speaker 01:
Supervised them in some way?

[00:46:28] Speaker 01:
Or what is it?

[00:46:29] Speaker 01:
If the challenge law were struck down, sectarian entities where the

[00:46:34] Speaker 01:
primary fundamental organizing principle is the advancement of religion, they would say, well, we're still interested in being an NPS.

[00:46:41] Speaker 01:
A government official at the state level, my clients would determine whether it's a good and appropriate way for that sectarian institution to provide faith.

[00:46:49] Speaker 01:
Then, the 1,500 different sites across California, should we enter into a master contract with them?

[00:46:56] Speaker 01:
There's no obligation for a school district to actually enter into a master contract.

[00:47:00] Speaker 03:
And if your school district- Because there's probably many other ways a school may not qualify to serve as an MPS.

[00:47:08] Speaker 03:
It's not- Is that a yes?

[00:47:10] Speaker 03:
Is that a yes?

[00:47:10] Speaker 01:
Yes, it's a yes.

[00:47:11] Speaker 01:
Okay.

[00:47:12] Speaker 01:
And there's no need to just be willy-nilly certifying NPS.

[00:47:14] Speaker 01:
It's not a good way to operate a system to operate, you know, a thousand.

[00:47:18] Speaker 01:
Right.

[00:47:19] Speaker 03:
So the schools we're talking about here, I think it's a given, they would have to otherwise qualify.

[00:47:22] Speaker 03:
No one's suggesting they would just get to be NPSs, right?

[00:47:27] Speaker 03:
Exactly.

[00:47:27] Speaker 03:
Their position is they shouldn't be disqualified from applying to be an NPS to sign that contract simply because they're orthodox schools.

[00:47:37] Speaker 01:
And the state's concern is that even if you're willing to set aside that when there's a primary fundamental organizing principle of an organization, there's mission creeper over time, there could be hesitancy to fully provide the secular education.

[00:47:52] Speaker 01:
The state knows that every year there's monitoring, every year there's state entanglement, and

[00:47:58] Speaker 01:
Whether there's even going to be an Orthodox Jewish NPS in District A or District B isn't up to a person in Sacramento.

[00:48:06] Speaker 01:
It's complete and utter government officials deciding which sect is best to provide faith, where the principles that then someone would question whether that's good or not are so amorphous that it's dangerous.

[00:48:20] Speaker 01:
The NPS system in this nonsectarian requirement assures neutrality.

[00:48:23] Speaker 01:
It does what we want government to do.

[00:48:25] Speaker 01:
And when the schools have already made it clear in their declarations that they exist for the very purpose of providing a religious education, their religious exercise is not being infringed.

[00:48:39] Speaker 04:
All right.

[00:48:40] Speaker 04:
I think I understand now.

[00:48:42] Speaker 04:
Thank you.

[00:48:42] Speaker 04:
I'll give you a couple minutes.

[00:48:49] Speaker 02:
OK, I think I originally had five.

[00:48:51] Speaker 02:
Maybe I'll get slightly more than that.

[00:48:55] Speaker 02:
In any case, so several points, Your Honors.

[00:48:59] Speaker 02:
One, California is making the same public education argument that Maine did, but with much worse facts.

[00:49:05] Speaker 02:
I mean, let's remember, we're talking about non-public schools that are defined in the state statute as private.

[00:49:11] Speaker 04:
What do you do with his excessive entanglement argument?

[00:49:14] Speaker 02:
So that was the exact same argument that got made by Maine and rejected by the Supreme Court, and it also just proves too much for all other kinds of things.

[00:49:25] Speaker 02:
Think of the foster care agencies in Fulton.

[00:49:28] Speaker 02:
Foster care agencies are under a lot of monitoring, and they are often religious, like the plaintiff in the Fulton case.

[00:49:37] Speaker 02:
We want the child protective services and all the other entities to be deeply involved with that.

[00:49:42] Speaker 02:
But there are foster care agencies that just place kids with Jewish families.

[00:49:46] Speaker 02:
There's ones that are specialized for other religious groups.

[00:49:49] Speaker 02:
We don't back up and say, we're just going to ignore this social fact and decide that there's a problem there.

[00:49:57] Speaker 02:
The entanglement argument, I think, is asking the answer.

[00:50:00] Speaker 02:
It's also just, this is a motion to dismiss stage.

[00:50:03] Speaker 02:
Let's develop those facts.

[00:50:04] Speaker 02:
Right now, this is utter speculation on their part.

[00:50:09] Speaker 02:
Again, I would just point to 56034 of the education code.

[00:50:12] Speaker 02:
They're non-public.

[00:50:13] Speaker 02:
They're private.

[00:50:14] Speaker 02:
It's considered under 56366 of the education code, alternative special education services.

[00:50:21] Speaker 02:
And then they also disclaim that it's state-operated.

[00:50:24] Speaker 02:
Mr. Prouty is not going to get up in court and defend

[00:50:28] Speaker 02:
The schools, if they become MPSs and they get sued, they're going to have their own lawyers.

[00:50:33] Speaker 02:
They're not going to be represented by the state.

[00:50:34] Speaker 02:
They're not going to have sovereign immunity.

[00:50:35] Speaker 02:
They're not going to have qualified immunity.

[00:50:37] Speaker 02:
They're not going to be the state.

[00:50:38] Speaker 02:
They're going to be private entities that are doing something in lieu of what the public schools do.

[00:50:45] Speaker 02:
With respect to this is going to open up this whole world, under 10C, they're already doing that.

[00:50:53] Speaker 02:
So the reimbursement thing, they have to look at that.

[00:50:56] Speaker 02:
They have to monitor it.

[00:50:56] Speaker 02:
It just said that they would be looking at it and incorporating the IEP.

[00:51:00] Speaker 02:
The Bellflower case, currently paying for it.

[00:51:03] Speaker 02:
Or under that case, maybe they're not still doing it.

[00:51:05] Speaker 02:
They're paying for New Harvest Christian Church to provide their full tuition.

[00:51:11] Speaker 02:
under that case.

[00:51:12] Speaker 02:
So if you look at the Belfour case, look at the facts of that case.

[00:51:15] Speaker 02:
There's also a district court case involving a school called Imago Dei, Image of God, 2021 Westlaw 3086146, which does the same thing.

[00:51:25] Speaker 02:
Full tuition for a Christian private school that they're monitoring.

[00:51:31] Speaker 02:
Maybe they're all entangled and they don't know it, but they're already doing it.

[00:51:37] Speaker 02:
On the waiver question.

[00:51:39] Speaker 02:
The LEA is the one who asks.

[00:51:41] Speaker 02:
That's the way the system works.

[00:51:42] Speaker 02:
The LEA asks, and the superintendent of the Department of Education, so it's a little confusing, but it's the superintendent at the state level, says yes.

[00:51:51] Speaker 02:
So that's that dialogue.

[00:51:53] Speaker 02:
On school standing, I would love to convince you, Yavne already provides services to disabled children.

[00:52:01] Speaker 02:
That's at ER 187.

[00:52:02] Speaker 02:
So they're already providing some services.

[00:52:04] Speaker 02:
They just can't do

[00:52:06] Speaker 02:
the full board thing.

[00:52:07] Speaker 02:
You can see some of the facts in this record.

[00:52:10] Speaker 02:
You might have like eight different services.

[00:52:12] Speaker 02:
That's very difficult to just do out of pocket.

[00:52:13] Speaker 03:
Do you ever say that they intend to apply to be an MPS?

[00:52:17] Speaker 02:
I think what I had was seek to qualify.

[00:52:22] Speaker 02:
That's what they've got.

[00:52:23] Speaker 02:
That's what I've got in the record.

[00:52:24] Speaker 00:
I think in paragraph 165, Yavna seeks the ability to qualify as a certified NPS.

[00:52:32] Speaker 02:
Thank you, Your Honor.

[00:52:33] Speaker 03:
Quite different than saying we intend to do it and we're going to do it.

[00:52:36] Speaker 02:
Well, I think that they're ready and able, and they're at this for the reasons that we say in our briefing.

[00:52:44] Speaker 03:
Or at least you could amend to elect as much.

[00:52:47] Speaker 02:
Because I don't see it here, sir.

[00:52:48] Speaker 02:
I don't see it.

[00:52:49] Speaker 02:
Now, the district court did say, oh, the schools can amend in her order.

[00:52:54] Speaker 02:
But we did not, because it was law of the case, and there was also going to be a massive delay to the entire case.

[00:53:02] Speaker 02:
And as you mentioned earlier, Your Honor,

[00:53:04] Speaker 02:
You know, these kids aren't getting any younger.

[00:53:06] Speaker 02:
We need to get relief.

[00:53:07] Speaker 03:
These are two different things.

[00:53:08] Speaker 03:
That's the parents' case, right?

[00:53:11] Speaker 03:
But as far as the schools go, she gave an opportunity to amend.

[00:53:16] Speaker 03:
The district court allowed that opportunity and chose to stand on this complaint.

[00:53:19] Speaker 03:
What do we do about that?

[00:53:20] Speaker 02:
Well, I think it would have held up the whole case.

[00:53:24] Speaker 02:
I think it would have been very hard for us to take the appeal with just the parents and try to take it on two tracks.

[00:53:30] Speaker 02:
And so they do need relief.

[00:53:34] Speaker 02:
I just want to say that Yavna is already doing it, so it's very similar to some of the things like the contractors that were ready and able in the ACG case and in GRATS.

[00:53:48] Speaker 02:
On the other states, we'd love the chance to get into discovery.

[00:53:53] Speaker 02:
about in this case, and we can talk about what happens in other states.

[00:53:56] Speaker 02:
And also whether there's schools in other states.

[00:53:59] Speaker 02:
Because again, California pays for this service for schools out of state.

[00:54:03] Speaker 02:
There are NPSs in Montana and Arizona and other places.

[00:54:07] Speaker 02:
Get that opportunity.

[00:54:09] Speaker 02:
So we would love to get the chance to get into discovery about that.

[00:54:12] Speaker 02:
And then we didn't get to why there was too little on the merits in the district court opinion, but really the district court ruled on the Carson claim and kind of

[00:54:21] Speaker 02:
folded everything else into that claim.

[00:54:24] Speaker 02:
And for that reason alone, we would love to get the chance to go back down with all of our plaintiffs and have the court look at all of those five claims, all six claims rather, not just the one Carson claim, which essentially got folded together.

[00:54:38] Speaker 02:
And then the last thing is just that my opponent said that

[00:54:44] Speaker 02:
at the beginning of his remarks, they had a choice.

[00:54:48] Speaker 02:
And we would say this is not a choice that they should be put to.

[00:54:50] Speaker 02:
That is our argument.

[00:54:51] Speaker 04:
Our argument is that they- It puts them to that choice.

[00:54:54] Speaker 04:
It's not the state that puts them to that choice.

[00:54:56] Speaker 04:
It's the IDEA that puts them to that choice.

[00:54:59] Speaker 02:
Well, I would argue that the IDEA, this is the way it's supposed to work, is that you get your unique needs covered.

[00:55:06] Speaker 02:
These are unique needs that are not being met for these children with disabilities.

[00:55:10] Speaker 02:
They need the right to be able to

[00:55:13] Speaker 02:
get that, they have the entitlement to it, really.

[00:55:15] Speaker 02:
They have the entitlement under IDEA to get that, their unique needs met in their own particular situation.

[00:55:22] Speaker 02:
And what they're saying is you can't get that, you can't get the speech therapy for ML because you want to send them to a Jewish school.

[00:55:30] Speaker 02:
That's the choice that I don't think they should have to make.

[00:55:32] Speaker 03:
Is it still your position that a unique need that the IDEA speaks to includes the need to have a disability tended to?

[00:55:42] Speaker 03:
in an orthodox school if there's a public school that allows the same?

[00:55:47] Speaker 02:
Well, we would argue that because part of the unique needs analysis is looking at

[00:55:51] Speaker 02:
you know, all the needs of the child.

[00:55:53] Speaker 02:
So sort of some of the things you were talking about, like siblings, or where are they located, or things like that.

[00:55:57] Speaker 03:
I think that's right, but here's what I'm, I think you're way over time, so if I can just kind of get to it.

[00:56:01] Speaker 03:
Yes, sorry, yes.

[00:56:02] Speaker 03:
Are you claiming that if the school district were otherwise providing a FAPE, but not in an orthodox school, that the school district would have to move the child?

[00:56:15] Speaker 02:
So we would disagree with the premise, but I suppose if you were under the statute, you would

[00:56:20] Speaker 02:
The IDEA would be fulfilled if there wasn't.

[00:56:24] Speaker 02:
But of course, our allegations are that they're not getting a FAPE.

[00:56:27] Speaker 03:
OK, so you're not answering my question, but I probably did a very good job of asking it.

[00:56:31] Speaker 03:
I'm just going to, Judge Wardlaw is going to cut me off.

[00:56:33] Speaker 03:
She's got that hook here under the bench.

[00:56:35] Speaker 03:
In a minute, I'm going to get yanked.

[00:56:38] Speaker 03:
But my question is, to be clear, in this hypothetical, a child of a Jewish faith with a disability

[00:56:47] Speaker 03:
is having that disability met, otherwise has a FAPE that's being delivered.

[00:56:53] Speaker 03:
Is it your position that if that's in the public school and not in a private school that that alone would be a denial of FAPE?

[00:57:03] Speaker 02:
I think our position would be that it does deny it if in this kind of situation with these clients, I don't think it would necessarily be true for all religious school, private schools.

[00:57:13] Speaker 02:
But for this situation, these children need an orthodox Jewish education as it will actually contribute to their well-being as children with disabilities.

[00:57:23] Speaker 02:
That's our position in this case.

[00:57:25] Speaker 04:
All right, thank you very much.

[00:57:27] Speaker 04:
Laughlin versus the California Department of Education will be submitted in the session that the court has adjourned for today.

[00:57:35] Speaker 04:
All rise.

[00:57:37] Speaker 03:
This court for the session.