NEA Brief - Weaver 11th Amendment

No. 13-14624-FF

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

MICHAEL WEAVER, Plaintiff-Appellee

v.

MADISON CITY BOARD OF EDUCATION, et al. Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA (NO. 5:11-cv-03558-TMP)

BRIEF FOR PLAINTIFF-APPELLEE MICHAEL WEAVER

Edward Still 130 Wildwood Parkway, STE 108 PMB 304 Birmingham, AL 35209 Telephone: (205) 320-2882 [email protected] Kathryn S. Piscitelli P.O. Box 691166 Orlando, FL 32869-1166 Telephone: (407) 491-0143 [email protected]

Alice O’Brien Philip A. Hostak NATIONAL EDUCATION ASSOCIATION 1201 16th Street, NW, Suite 820 Washington, DC 20036 Telephone: (202) 822-7035 [email protected] [email protected]

Attorneys for Michael Weaver

Case: 13-14624 Date Filed: 03/14/2014 Page: 1 of 115

mailto:[email protected]




No. 13-14624-FF Weaver v. Madison City Board of Education

C-1 of 2

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

1. Alabama Association of School Boards, Amicus Curiae for Appellants 2. Alabama Education Association

3. Alabama Risk Management for Schools

4. Bartlett, Ranae, Madison City Board of Education Member

5. Bishop, Colvin, Johnson & Kent, LLC, counsel for Appellants

6. Dimsey, Dennis J, counsel for United States as Intervenor

7. Fowler, Dr. Dee, Appellant

8. Gross, Mark L., counsel for United States as Intervenor

9. Hergenroeder, David, Madison City Board of Education Member

10. Hopkins, Honorable Virginia, United States District Court Judge

11. Hostak, Philip, counsel for Appellee

12. Johnson, Carl, counsel for Appellants

13. Johnson, Terri, Madison City Board of Education Member

14. Madison City Board of Education, Appellant

15. National Education Association

16. O’Brien, Alice, counsel for Appellee

17. Piscitelli, Kathryn, counsel for Appellee

18. Pollock, Nathaniel S., counsel for United States as Intervenor


No. 13-14624-FF Weaver v. Madison City Board of Education

C-2 of 2

19. Putnam, Honorable Michael, United States District Court Magistrate Judge

20. Samuels, Jocelyn, Acting Assistant Attorney General, Civil Rights Division

21. Spears, Connie, Madison City Board of Education Member

22. Steverson, Carolyn W., counsel for United States as Intervenor

23. Still, Edward, counsel for Appellee

24. United States Department of Justice, Intervenor

25. Vance, Joyce White, United States Attorney for the Northern District of Alabama

26. Weaver, Michael, Appellee

27. White, Ray, Madison City Board of Education Member

28. Williams, Jayne Harrell, counsel for Amicus Curiae Alabama Association of School Boards

/s/ Philip A. Hostak Philip A. Hostak


STATEMENT REGARDING ORAL ARGUMENT

At issue in this appeal is whether a local school board defendant is an arm of

the State entitled to Eleventh Amendment immunity and, if so, whether the State

has Eleventh Amendment immunity against suits brought pursuant to legislation

enacted under Congress’s War Powers. While the former issue is controlled by

settled precedent, the Defendant-Appellant Madison City Board of Education asks

this Court to overturn or abrogate that settled precedent. And, should the Court do

so and reach the latter issue, that issue involves complex questions of statutory

interpretation and constitutional law that are of substantial consequence to

members and veterans of the United States Armed Forces. All this being so,

Plaintiff-Appellee Michael Weaver submits that oral argument will be likely to

substantially assist the Court.


i

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ..................................................... C-1 TABLE OF CONTENTS ............ ............................................................................... i

TABLE OF CITATIONS ......................................................................................... iv

STATEMENT OF THE ISSUES............................................................................... 1

STATEMENT OF THE CASE .................................................................................. 1

1. Statement of facts ............................................................................................ 1

2. Course of proceedings and disposition below ................................................ 2

STANDARD OF REVIEW ....................................................................................... 5

SUMMARY OF THE ARGUMENT ........................................................................ 5

ARGUMENT ............................................................................................................. 8

I. LOCAL SCHOOL BOARDS IN ALABAMA DO NOT ACT AS ARMS OF THE STATE FOR THE PURPOSES OF ELEVENTH AMENDMENT STATE SOVEREIGN IMMUNITY WHEN THEY CARRY OUT PERSONNEL FUNCTIONS ................................................... 8

A. Under binding precedent, local school boards in Alabama are not “arms of the State” for the purposes of Eleventh Amendment state sovereign immunity. ........................................... 10

1. State sovereign immunity under the Eleventh Amendment protects the State and arms of the State but does not

extend to political subdivisions of the State. ............................ 10


ii

2. This Court’s decision in Stewart v. Baldwin County Board of Education followed the Supreme Court’s decision in Mt. Healthy City Board of Education v. Doyle to hold that local school boards in Alabama are not arms of the State, and that decision is dispositive here. ........................................ 12

3. No intervening changes in controlling federal or state

law have abrogated or in any way undermined this Court’s decision in Stewart. ..................................................... 23

(a) Federal law governing the arm-of-the-State

inquiry has not changed in any way that undermines Stewart’s force as binding precedent. ........ 23

(b) State law relevant to the arm-of-the-State inquiry

has not changed in any way that undermines Stewart’s force as binding precedent. ............................. 37

II. EVEN IF THE BOARD WERE AN “ARM OF THE STATE,” IT HAS NO IMMUNITY FROM A PRIVATE SUIT UNDER USERRA ................. 43

A. Congress enacted USERRA pursuant to its War Powers. ............... 43

B. Congress can subject states to private suits pursuant to its War

Powers. ............................................................................................. 45

C. Congress validly exercised its war powers in authorizing private suits against states under USERRA. ................................................ 50

D. Even if the Board were properly considered an arm of the State, federal jurisdiction still would lie over Weaver’s claims. ............... 52

1. Section 4323(b)(3) grants federal jurisdiction over the Board . 52

2. Even if Section 4323(b)(2) were applicable, federal jurisdiction should remain. ........................................................ 55


iii

CONCLUSION ........................................................................................................ 59 ADDENDUM ................................................................................................... Add-1


iv

TABLE OF CITATIONS

CASES

Abusaid v. Hillsborough County Board of Commissioners, 405 F.3d 1298 (11th Cir. 2005) .................................................................... 30, 35

Adams v. Rankin Cnty. Bd. of Educ., 524 F.2d 928 (5th Cir. 1975) ................. 15, 16

Ala. Power Co. v. Davis, 431 U.S. 581 (1977) ........................................................51

Alden v. Maine, 527 U.S. 706 (1999) ......................................................... 10, 26, 45

Bedrossian v. Nw. Mem. Hosp., 409 F.3d 840 (7th Cir. 2005) ................................44

Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) ...................................50

Campbell v. Gadsden Cnty. Dist. Sch. Bd., 534 F.2d 650 (5th Cir. 1976) ..............15

Cannon v. Univ. of Chi., 441 U.S. 677 (1979) ........................................................57

Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219 (4th Cir. 2001) ......................27

Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356 (2006) ................................................45

Chance v. Dallas Cnty. Hosp. Dist., 176 F.3d 294 (5th Cir. 1999) .........................58

City of Lafayette v. La. Power & Light Co., 435 U.S. 389 (1978) ..........................11

Colbert Cnty. Bd. of Educ. v. James, 83 So.3d 473 (Ala. 2011) .............................33

Diaz-Gandia v. Dapena-Thompson, 90 F.3d 609 (1st Cir. 1996) .................... 51, 52

Edelman v. Jordan, 415 U.S. 651 (1974) ......................................................... 10, 26

Ex parte Hale Cnty. Bd. of Educ., 14 So. 3d 844 (Ala. 2009) .......................... 37, 38

Ex parte Madison County Board of Education, 1 So. 3d 980 (Ala. 2008) ....... 32, 33


v

Federal Maritime Commission v. South Carolina Ports Authority, 535 U.S. 743 (2002) ...................................................................................... 25, 26

Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006) .................57

Gordon v. Wawa, Inc., 388 F.3d 78 (3d Cir. 2004) .................................................58

Hardy v. Birmingham Bd. of Educ., 954 F.2d 1546 (11th Cir.1992) ............... 16, 34

Hattaway v. McMillian, 903 F.2d 1440 (11th Cir. 1990) ........................................23

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994) .............. 12, 24, 25, 27

Hill v. Michelin N. Am., Inc., 252 F.3d 307 (4th Cir. 2001) ....................................57

In re Tarble, 80 U.S. 397 (1871) ...................................................................... 48, 49

Jennings v. Ill. Office of Educ., 589 F.2d 935 (7th Cir. 1979) ................................51

Kendrick v. Jefferson Cnty. Bd. of Educ., 932 F.2d 910 (11th Cir. 1991) ........ 16, 34

Larkins v. Dep't of Mental Health & Mental Retardation, 806 So. 2d 358 (Ala. 2001) ..................................................................................55

Lichter v. United States, 334 U.S. 742 (1948) .........................................................49

Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).................................. 11, 28, 29, 35

Maxfield v. Cintas Corp. No. 2, 427 F.3d 544 (8th Cir. 2005) ................................58

McGuire v. United Parcel Serv., 152 F.3d 673 (7th Cir. 1998) ..............................58

McIntosh v. Partridge, 540 F.3d 315 (2008) ...........................................................58

Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm'n, 226 F.3d 1226 (11th Cir. 2000) ...........................................................................28

Missouri v. Jenkins, 495 U.S. 33 (1990) ........................................................... 13, 14

Moore v. Tangipahoa Parish Sch. Bd., 594 F.2d 489 (5th Cir. 1979) ....................15


vi

Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977) .......... 9, 12, 13

N. Ins. Co. v. Chatham Cnty., 547 U.S. 189 (2006) ................................................11

Ohio Cas. Ins. Co. v. Bazzi Constr. Co., 815 F.2d 1146 (7th Cir. 1987) .............................................................................39

Peel v. Fla. Dep't of Transp., 600 F.2d 1070 (5th Cir. 1979) ........................... 50, 51

Petty v. Metro. Gov't of Nashville-Davidson Cnty., 538 F.3d 431 (6th Cir. 2008) ...............................................................................57

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425 (1997) .......................................26

Reopell v. Commonwealth of Mass., 936 F.2d 12 (1st Cir. 1991) ...........................51

Sandoval v. City of Chi., 560 F.3d 703 (7th Cir. 2009) ...........................................53

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) ..................................... 45, 55

Shands Teaching Hosp. & Clinics v. Beech St. Corp., 208 F.3d 1308 (11th Cir. 2000) ...........................................................................35

Smith v. GTE Corp., 236 F.3d 1292 (11th Cir. 2001) ................................. 20, 21, 40

Stewart v. Baldwin Cnty. Board of Education, 908 F.2d 1499 (11th Cir. 1990) ................................................................... passim

Townsend v. Univ. of Alaska, 543 F.3d 478 (2008) .................................................58

Travelers Indem. Co. v. Sch. Bd. of Dade Cnty., 666 F.2d 505 (11th Cir. 1982) ....15

United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739 F.3d 598 (11th Cir. 2014) .......................................................... 12, 27, 29, 34

United States v. Ala. Dep't of Mental Health & Mental Retardation, 673 F.3d 1320 (11th Cir. 2012) .......................................................................5, 51

United States v. Chubbuck, 252 F.3d 1300 (11th Cir. 2001) ...................................23


vii

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ......................46

United States v. Steele, 147 F.3d 1316 (11th Cir. 1998) ........................................21

Velasquez v. Frapwell, 160 F.3d 389 (7th Cir. 1998), .............................................52

Velasquez v. Frapwell, 165 F.3d 593 (7th Cir. 1999) ....................................... 52, 58

Versiglio v. Board of Dental Examiners of Alabama, 651 F.3d 1272 (11th Cir. 2011), vacated and superseded on panel rehearing, 686 F.3d 1290 (11th Cir. 2012)................................................... 30, 31

Versiglio v. Board of Dental Examiners of Alabama, 686 F.3d 1290 (11th Cir. 2012) .................................................................... 30, 32

Vega-Colón v. Wyeth Pharm., 625 F.3d 22 (1st Cir. 2010) .....................................58

Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll., Fla., 421 F.3d 1190 (11th Cir. 2005) ...........................................................................34

Wood v. Florida Atl. Univ. Bd. of Trustees, 432 F. App’x 812 (11th Cir. 2011) ....59

STATUTES AND REGULATIONS

38 U.S.C. § 4301, et seq. ........................................................................................... 3

38 U.S.C. § 4301(a) .......................................................................................... 44, 50

38 U.S.C. § 4311(a) .................................................................................................44

38 U.S.C. §§ 4312-4314 ..........................................................................................44

38 U.S.C § 4316(a) ..................................................................................................44

38 U.S.C § 4316(b) ..................................................................................................44

38 U.S.C § 4316(c) ..................................................................................................44

38 U.S.C § 4316(d) ..................................................................................................44


viii

38 U.S.C § 4317 .......................................................................................................44

38 U.S.C § 4318 .......................................................................................................44

38 U.S.C § 4323(b) ..................................................................................................53

38 U.S.C § 4323(b)(2)........................................................................... 53, 54, 55, 57

38 U.S.C § 4323(b)(3)..............................................................................................53

38 U.S.C. § 4323(d)(3).............................................................................................57

38 U.S.C. § 4323(i) ..................................................................................................53

Ala. Code § 1-1-13 ...................................................................................................54

Ala. Code § 13A-10-1(2) .........................................................................................54

Ala. Code § 16-1-26(a) ............................................................................................19

Ala. Code § 16-4-8 ...................................................................................................41

Ala. Code § 16-6B-4 ................................................................................................42

Ala. Code § 16-6E-2 ................................................................................................42

Ala. Code § 16-11-2(b) ..................................................................................... 18, 53

Ala. Code § 16-11-3 .................................................................................................19

Ala. Code § 16-11-3.2 ..............................................................................................19

Ala. Code § 16-11-9 .......................................................................................... 18, 54

Ala. Code § 16-11-9.1 ..............................................................................................54

Ala. Code § 16-11-12 ...............................................................................................54

Ala. Code § 16-11-13 ...............................................................................................54


ix

Ala. Code § 16-11-16 ...............................................................................................18

Ala. Code § 16-11-17 ...............................................................................................36

Ala. Code § 16-12-16 ...............................................................................................36

Ala. Code § 16-13-37 ...............................................................................................54

Ala. Code § 16-13-37(a) ..........................................................................................18

Ala. Code § 16-13-70 ...............................................................................................54

Ala. Code § 16-13-70(a) ..........................................................................................18

Ala. Code § 16-13-145 ...................................................................................... 18, 54

Ala. Code § 16-13-211 ...................................................................................... 18, 54

Ala. Code § 16-13-260(2) ........................................................................................54

Ala. Code. § 16-13A-4 .............................................................................................54

Ala. Code § 16-13A-4(c) .........................................................................................36

Ala. Code § 16-24C-3(4) .........................................................................................54

Ala. Code § 36-28-1(5) ............................................................................................54

Ala. Admin. Code r. 290-1-2-.03 ...................................................................... 36, 42

CONSTITUTIONS AND LEGISLATIVE MATERIAL

Articles of Confederation, art. 6 ..............................................................................46

Articles of Confederation, art. 9 ..............................................................................46

H.R. Rep. No. 105-448 (1998) .................................................................................56

The Federalist No. 23, at 149-50 (Alexander Hamilton) (Clinton Rossiter ed., 1961) .................................................................................48


x

The Federalist No. 32, at 149-50 (Alexander Hamilton) (Clinton Rossiter ed., 1961) .......................................................................... 47, 48 U.S. Const. art. I, § 8, cl. 1 .......................................................................................44

U.S. Const. art. I, § 8, cl. 11 .....................................................................................44

U.S. Const. art. I, § 8, cl. 12 .....................................................................................44

U.S. Const. art. I, § 8, cl. 13 .....................................................................................44

U.S. Const. art. I, § 8, cl. 14 .....................................................................................44

U.S. Const. art. I, § 8, cl. 18 .....................................................................................44

U.S. Const. art. I, § 10, cl. 3 .....................................................................................47

70 Fed. Reg. 75,246 (Dec. 19, 2005) .......................................................................53

144 Cong. Rec. H1397-99 (daily ed. Mar. 24, 1998) ....................................... 55, 56


STATEMENT OF JURISDICTION

In this action, Michael Weaver brings a claim under the Uniformed Services

Employment and Reemployment Rights Act of 1994, as amended, 38 U.S.C. §

4301, et seq., and therefore invokes the District Court’s federal question

jurisdiction. (Doc 1.) On August 14, 2013, the district court denied the

defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction,

holding that the Madison City Board of Education (the Appellant in this Court)

was not an “arm of the State” for purposes of Eleventh Amendment immunity.

(Doc 69.) On September 12, 2013, Appellants filed a timely notice of appeal.

(Doc 72.) Jurisdiction in this Court over this interlocutory appeal lies under the

collateral order doctrine. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

Inc., 506 U.S. 139, 147 (1993).


1

STATEMENT OF THE ISSUES

1. Whether a local board of education in Alabama acts as an “arm of the

State” for purposes of the state sovereign immunity recognized under the Eleventh

Amendment to the U.S. Constitution when carrying out personnel functions.

2. In the alternative, whether, even if the Madison City Board of Education

were an “arm of the State,” it has no Eleventh Amendment state sovereign

immunity from a private suit under the Uniformed Services and Reemployment

Rights Act (“USERRA”) because USERRA was enacted under Congress’s War

Powers.

STATEMENT OF THE CASE

1. Statement of Facts1

Plaintiff-Appellee Michael Weaver has served in the U.S. Army Reserve

(“the Reserve”) since 1994. (Doc 1 - Pg 3.) In 1998, Weaver was hired by the

Madison City Board of Education (“the Board”) to serve as the Board’s Executive

Director of Finance and Business. (Doc 1 - Pg 5.) From that point to the present

1 The facts set forth in this statement are, as is appropriate in an appeal from the resolution of a motion to dismiss, drawn from the well-pleaded allegations of the Complaint, which must be accepted as true for the purposes of this appeal. We note at the outset that the Board’s one-paragraph statement of facts—apart from its first, and unobjectionable sentence stating that “[a]t all times pertinent, appellee Michael Weaver has been employed by the Madison City Board of Education,” Appellant’s Brief at 3—is not a statement of facts at all but a series of unsupported legal conclusions. Accordingly, they should be disregarded.


2

Weaver remained an employee of the Board and continued to work for the Board

under various titles, except in those periods during which he was called to active

service by the Reserve. (Doc 1 - Pg 5.)

In September of 2005, the Reserve called Weaver to active duty supporting

the United States’ war effort in Afghanistan. (Doc 1 - Pg 5.) This tour of duty

lasted approximately two years. When Weaver returned from this tour of service

in 2007, the Board declined to reinstate him to his prior position, and instead

reduced his responsibilities, status, and pay and assigned him the title of Chief

School Financial Officer (“CSFO”). (Doc 1 - Pg 7.)

In November of 2007, the Reserve again called Weaver to active duty.

Weaver returned from that tour of duty in in May of 2009 and continued working

as the CFSO, with the same reduced responsibilities, status, and pay as before.

(Doc 1 - Pg 8.) The Reserve called Weaver to active duty yet again in February of

2010, this time in support of the United States’ war effort in Iraq. (Doc 1 - Pg 8.)

Weaver sustained injuries during this tour of duty. At the time the Complaint was

filed, Weaver was assigned to active duty in Ft. Benning, Georgia while being

treated for the injuries he sustained in Iraq. (Doc 1 - Pg 8.)

2. Course of proceedings and disposition below

Weaver filed this action against the Board and Dr. Dee Fowler, solely in his

official capacity as Superintendent of Education of Madison City Schools. (Doc 1.)


3

Weaver alleged the Board violated the Uniformed Services and Reemployment

Rights Act (“USERRA”), 38 U.S.C. § 4301, et seq., by failing to reemploy him

after military service in a position required by USERRA and instead assigning him

to a position of inferior status and pay. (Doc 1 - Pgs 1, 6-9.)

The Board moved to dismiss Weaver’s complaint for alleged lack of subject

matter jurisdiction, arguing that it was an “arm of the State” entitled to Eleventh

Amendment immunity and that it was a state agency “not amenable to suit brought

under USERRA by an individual” in federal court. (Doc 17.) Weaver filed an

opposing brief, contending that the Board was neither an arm of the State under the

Eleventh Amendment nor a state employer under USERRA’s jurisdictional

provision. (Doc 32 - Pgs 11-20, 38-64.) Weaver further argued even if the Board

were an arm of the State, it would have no immunity because USERRA was

enacted under Congress’s War Powers. (Doc 32 - Pg 24-37.)

The United States intervened in order to “defend Congress’s constitutional

authority, pursuant to its War Powers, to subject state employers to private claims

under [USERRA].” (Doc 37 - Pg 1.) After the District Court granted the motion to

intervene, the United States filed a brief arguing that the Board’s motion should be

denied on the grounds that the Board was not an arm of the State for Eleventh

Amendment purposes, and that any questions as to USERRA’s constitutionality be

avoided. (Doc 41 - Pg 1.)


4

On the District Court’s referral, Magistrate Judge T. Michael Putnam issued

a thorough, 27-page report and recommendation explaining that that the Board’s

motion to dismiss should be denied. (Doc 50.) Judge Putnam’s report and

recommendation reasoned “that binding circuit precedent”—namely, Stewart v.

Baldwin County Board of Education, 908 F.2d 1499, 1511 (11th Cir. 1990)—“has

determined the question the defendant Board wants to assert.” (Doc 50 - Pg 10.)

Moreover, Judge Putnam concluded that even beyond the binding effect of the

Stewart decision’s holding, “analyzing the status of a city school board, when

performing an employment function, under the four-factor test [governing arm-of-

the-State determinations] still results in a finding that local school boards are

sufficiently autonomous as to be political subdivisions of the state, not an ‘arm of

the State.’” (Id.) Given that conclusion, Judge Putnam declined to reach the

alternative question presented as to the impact of USERRA on the Board’s non-

existent Eleventh Amendment immunity. On August 14, 2013, District Judge

Virginia Emerson Hopkins approved Judge Putnam’s report and recommendation

and denied the Board’s motion, finding that “the opinion of the Eleventh Circuit

Court of Appeals in Stewart” is “on point,” “binding,” and “dispositive.” (Doc 69 -

Pg 7.) This appeal followed. (Doc 72.)


5

STANDARD OF REVIEW

Because this case involves issues of state sovereign immunity under the

Eleventh Amendment, the District Court’s decision is reviewed de novo. See

United States v. Ala. Dep’t of Mental Health & Mental Retardation, 673 F.3d

1320, 1324 (11th Cir. 2012) (“Issues of Eleventh Amendment immunity are

questions of law, which we review de novo.”).

SUMMARY OF THE ARGUMENT

I. This Court’s decision in Stewart, which followed the Supreme Court’s

arm-of-the-State analysis in Mt. Healthy, concluded that local school boards in

Alabama are not arms of the State for the purposes of Eleventh Amendment

immunity. There are no material differences between county boards of education

in Alabama and city boards of education like the Board. Like the county board of

education considered in Stewart, city boards of education have considerable

financial autonomy—given that a significant amount of their funding comes from

local revenues and they have the ability to raise and spend funds independently—

as well as considerable operational autonomy. Stewart is thus fully on point,

binding and dispositive here.

The Board has not attempted to distinguish Stewart. Nor has the Board

shown that Stewart has been overruled by any decision of the U.S. Supreme Court

or this Court sitting en banc. The Board instead urges, erroneously, that Stewart


6

was wrongly decided at the time this Court issued the decision and that in any

event it has been abrogated sub silentio by more recent decisions of this Court.

The Board’s contention that Stewart was wrongly decided fails at the threshold,

even if it is assumed that the Board’s contention is accurate, because this Circuit’s

prior precedent rule prohibits a panel of this Court from overruling an earlier, on-

point panel decision. And the Board’s contention that Stewart was wrongly

decided in the first instance is not accurate, as it is based on charges that are

unsupported or supported by distorted interpretations of the decision.

The Board’s contention that intervening changes in federal and state law

have abrogated Stewart is equally meritless. There is no support for the Board’s

assertion that this Court no longer looks to an entity’s source of funding or the

potential that a judgment would be paid out of the State treasury. To the contrary,

those factors relate to one of the principal purposes of the Eleventh Amendment

and have remained part of this Court’s test to this day. Nor is there any substance

to the Board’s assertion that this Court now treats state-court conclusions as to

state-law immunity as controlling for the purposes of the Eleventh Amendment.

This Court has repeatedly held that state-court determinations regarding state-law

immunity do not compel the same result under the Eleventh Amendment.

While the factors this Court applies have remained the same, to the extent

that this Court’s arm-of-the-State analysis has evolved since Stewart at all, it has


7

done so in a way that makes it all the more clear that the Board is not an arm of the

State. Since Stewart was decided, this Court has used a functional approach to

applying its multifactor arm-of-the-State test, meaning that the analysis does not

look to the entity’s status in an “all or nothing” manner, but instead looks to

whether the entity was acting as an arm of the State when carrying out the function

at issue. On this application of the multifactor test, it is all the more clear that the

Board was not acting as an arm of the State in carrying out the basic, day-to-day

personnel functions at issue here: State law makes it clear that such personnel

functions are matters of local, not State, control.

The Board’s contention that the relevant state law regulating local boards of

education has fundamentally changed in ways that undermine Stewart is equally

meritless. As an initial matter, the Board has failed to identify the statutes enacted

after Stewart was decided that supposedly abrogate its holding or to explain how

those post-Stewart enactments supposedly do so. As it is not this Court’s task to

sift through the Board’s brief in an effort to guess at the basis for this argument,

this is reason enough to reject the argument. But even so, we have undertaken to

review the statutes cited in the Board’s brief in support of its contention that the

State pervasively controls local school boards and found that a substantial number

of those statutes pre-date Stewart and that in any event they are generally irrelevant


8

to the question whether the State controls the day-to-day personnel decisions of

local school boards.

II. USERRA was enacted under Congress’s War Powers, which, properly

understood in light of the history of the War Powers Clause’s adoption, include

authority to subject States to private suits. As a result, States have no Eleventh

Amendment immunity from private suits to enforce USERRA, and thus the Board

could not validly claim immunity from Weaver’s suit even if it were an “arm of the

State.” Inasmuch as the Board is a political subdivision of the State, USERRA

expressly provides for jurisdiction in federal court. But even if the Board were

considered to be a state employer under USERRA, but not immune under the

Eleventh Amendment, federal court jurisdiction should remain because otherwise

Congress’s intent that servicemembers be afforded a remedy for USERRA

violations would be frustrated.

ARGUMENT

I. LOCAL SCHOOL BOARDS IN ALABAMA DO NOT ACT AS ARMS OF THE STATE FOR THE PURPOSES OF ELEVENTH AMENDMENT STATE SOVEREIGN IMMUNITY WHEN THEY CARRY OUT PERSONNEL FUNCTIONS

The Board’s lengthy opening submission (a full 82 pages) is devoted in its

entirety to the proposition that local school boards such as itself are arms of the

State of Alabama and thus entitled to state sovereign immunity under the Eleventh

Amendment to the U.S. Constitution. Yet the Board does not even address until


9

page 64 of its brief the binding and dispositive decision of this Court in Stewart v.

Baldwin County Board of Education, 908 F.2d 1499 (11th Cir. 1990), which

applied the U.S. Supreme Court’s analysis in Mt. Healthy City Board of Education

v. Doyle, 429 U.S. 274 (1977), to hold that a local school board in Alabama is not

an arm of the State for the purposes of Eleventh Amendment state sovereign

immunity.

We therefore begin where the Board’s brief ends, but where any cogent

analysis of the issue should commence—with this Court’s on-point precedent—

demonstrating in Part I.A below that the Board’s appeal is foreclosed by this

Court’s holding and reasoning in Stewart (see Parts I.A.1 and I.A.2), that Stewart

is fully consonant with binding precedent not only from this Court but also from

the U.S. Supreme Court, and that no post-Stewart developments in pertinent

federal or state law have in any way undermined the decision’s binding force (see

Parts I.A.3(a) and I.A.3(b)). Indeed, we further show that even if this were not the

case, and this panel were somehow free to revisit the question anew, the analysis

that this Court is bound to apply makes all the more clear today that local school

boards in Alabama do not act as arms of the state when carrying out day-to-day

personnel decisions such as the one at issue here (see Part I.A.3(a) at 34-37).


10

A. Under binding precedent, local school boards in Alabama are not “arms of the State” for the purposes of Eleventh Amendment state sovereign immunity.

1. State sovereign immunity under the Eleventh Amendment protects the State and arms of the State but does not extend to political subdivisions of the State.

As interpreted by the U.S. Supreme Court, the Eleventh Amendment reflects

the Framers’ understanding that States retain “the sovereignty which the States

enjoyed before the ratification of the Constitution … (either literally or by virtue of

their admission into the Union upon an equal footing with the other States) except

as altered by the plan of the Convention or certain constitutional Amendments.”

Alden v. Maine, 527 U.S. 706, 713 (1999). A key feature of that retained

sovereignty is the States’ sovereign immunity, id., which shields an unconsenting

state “from suits brought in federal courts by her own citizens.” Edelman v.

Jordan, 415 U.S. 651, 662-63 (1974).

Critically, however, the principle of state sovereign immunity is subject to

the “important limit … that it bars suits against States but not lesser entities”—that

is to say, it “does not extend to suits prosecuted against a municipal corporation or

other governmental entity which is not an arm of the State.” Alden, 527 U.S. at

756. Indeed, it is a direct “consequence of th[e] Court’s recognition of

preratification sovereignty as the source of immunity from suit … that only States


11

and arms of the State possess immunity from suits authorized by federal law.” N.

Ins. Co. v. Chatham Cnty., 547 U.S. 189, 193 (2006).

Consequently, counties, municipalities, and other local political subdivisions

of States “are not themselves sovereign; they do not receive all the federal

deference of the States that create them.” City of Lafayette v. La. Power & Light

Co., 435 U.S. 389, 412 (1978) (plurality opinion). It follows that a non-State

governmental entity can successfully invoke state sovereign immunity only in

those instances where “it was acting as an arm of the State, as delineated by [the

Supreme] Court’s precedents, in [performing the function at issue].” Chatham

Cnty., 547 U.S. 189 at 194. See also Manders v. Lee, 338 F.3d 1304, 1308 n.8

(11th Cir. 2003) (en banc) (holding that the question whether an entity is an arm of

the State “must be assessed in light of the particular function in which the

defendant was engaged when taking the actions out of which liability is asserted to

arise”). Importantly, all this holds “true even when … such entities exercise a slice

of state power,” Chatham Cnty., 547 U.S. at 193-94 (quotation marks and citation

omitted).

As a matter of analysis, what primarily drives this distinction between arms

of the States that enjoy state sovereign immunity under the Eleventh Amendment,

on the one hand, and political subdivisions of the States that do not, on the other

hand, is what the Supreme Court has recognized to be “the impetus for the


12

Eleventh Amendment: the prevention of federal-court judgments that must be paid

out of a State’s treasury.” Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 48

(1994). See also United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739

F.3d 598, 605-06 (11th Cir. 2014) (noting that the Eleventh Amendment was

“designed to protect state coffers from private citizens.”). Hence, the Court

regards “the vulnerability of the State’s purse as the most salient factor” in making

arm-of-the-State determinations. Hess, 513 U.S. at 48.

2. This Court’s decision in Stewart v. Baldwin County Board of Education followed the Supreme Court’s decision in Mt. Healthy City Board of Education v. Doyle to hold that local school boards in Alabama are not arms of the State, and that decision is dispositive here.

In Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 280 (1977),

the Court confronted the question whether a local board of education in Ohio “is to

be treated as an arm of the State partaking of the State’s Eleventh Amendment

immunity, or is instead to be treated as a municipal corporation or other political

subdivision to which the Eleventh Amendment does not extend.” Based on an

examination of the relative fiscal and operational autonomy of the local school

board, the Court had little difficulty concluding “that a local school board such as

petitioner is more like a county or city than it is like an arm of the State.” Id.

In reaching this conclusion, the Court looked first to “the nature of the entity

created by state law.” Id. On this score, the Court found it significant that Ohio


13

law defined local school districts as “political subdivisions,” while it defined

“State” as excluding such political subdivisions, while at the same time stressing

the fact that the local school board at issue was “but one of many local school

boards within the State of Ohio.” Id. The Court went on to consider the relative

operational and fiscal autonomy of those local school boards, finding that although

they were “subject to some guidance from the State Board of Education” and

“receive[d] a significant amount of money from the State,” they nonetheless

enjoyed a degree of fiscal independence from the state, based on their “extensive

powers to issue bonds, and to levy taxes within certain restrictions of state law.”

Id. Viewing these factors in their totality, the Mt. Healthy Court concluded that the

local school board had no state sovereign immunity under the Eleventh

Amendment. Id.

The Supreme Court reaffirmed Mt. Healthy’s arm-of-the-State holding in

Missouri v. Jenkins, 495 U.S. 33 (1990). There, the Court made short work of the

question whether a local school board in Missouri enjoys Eleventh Amendment

state sovereign immunity, concluding that “the Eleventh Amendment … does not

afford local school boards like [the Kansas City Municipal School District]

immunity from suit” with nothing more than a citation to Mt. Healthy. Id. at 56

n.20. Jenkins thus suggests that the Supreme Court treats Mt. Healthy as making it


14

virtually axiomatic that local school boards are not entitled to Eleventh

Amendment state sovereign immunity.2

In Stewart, this Court applied the Mt. Healthy approach to conclude that a

local school board in Alabama was not an arm of the State of Alabama.

Recognizing that “[t]he Eleventh Amendment protects the sovereignty of the states

by prohibiting suits when recovery would be paid from state funds,” this Court

looked to “the board’s function and character as established by state law in order to

determine whether the school board is an arm of the state and thus protected by

Eleventh Amendment immunity.” 908 F.2d at 1509. In conducting this analysis,

this Court drew on a line of cases “focus[ing] on three factors …: (1) how the state

law defines the entity; (2) the degree of state control over the entity; and (3) the

entity’s fiscal autonomy—i.e., where the entity derives its funds and who is

responsible for judgments against the entity.” Id.

This Court started its discussion by observing that it had previously applied

a Mt. Healthy-style analysis to “reject[] claims by local boards of education in

Florida, Mississippi, and Louisiana that they are entitled to Eleventh Amendment

2 To be sure, the local school board’s entitlement vel non to Eleventh Amendment state sovereign immunity was not one of the central issues in Jenkins. Nevertheless, it was necessary for the Court to decide that question in order to resolve one of the more central issues in the case: whether the school district was covered by an exception, based on Eleventh Amendment state sovereign immunity, to the general rule that a federal court has the power to order “a local government body to levy its own taxes.” Id. at 56 & n.20.


15

protection.” 908 F.2d at 1510 (citing Travelers Indem. Co. v. Sch. Bd. of Dade

Cnty., 666 F.2d 505 (11th Cir. 1982); Moore v. Tangipahoa Parish Sch. Bd., 594

F.2d 489 (5th Cir. 1979); Campbell v. Gadsden Cnty. Dist. Sch. Bd., 534 F.2d 650

(5th Cir. 1976); and Adams v. Rankin Cnty. Bd. of Educ., 524 F.2d 928 (5th Cir.

1975)). This Court stressed that in each of these cases “state law gave the school

boards at issue a substantial amount of control over their own affairs, e.g., the

boards possessed power to contract, to sue and be sued, to purchase and sell

property, to borrow funds, and to levy and collect taxes” and “also placed

considerable significance on the fact that the individual school boards [in these

cases] had the means to raise funds, so that any judgment for the plaintiff could be

paid out of local funding rather than out of the state treasury.” Id..

With those preliminary observations, this Court went on to apply its

multifactor Mt. Healthy analysis to “conclude that the Baldwin County Board of

Education, like the school boards of Florida, Louisiana, and Mississippi discussed

above, is not an arm or an alter ego of the state.” Id.

Addressing the critical question of the school board’s “fiscal autonomy—

i.e., where the [school board] derives its funds and who is responsible for

judgments against [it]”—this Court concluded that “[c]ounty school boards in

Alabama possess a significant amount of flexibility in raising local funding.” Id.

Specifically, this Court pointed out that, by statute, “[t]he board’s authority to


16

manage its own finances includes the ability to raise revenues by selling interest-

bearing tax anticipation warrants”; “the authorization to spend revenues from

county sales and use-tax funds for educational purposes”; “and the authorization to

borrow funds.” Id. (citations omitted). From the foregoing, this Court found it

“clear that Alabama school boards have a degree of fiscal autonomy comparable to

that of the school boards at issue in Mt. Healthy” as well as in this Court’s

decisions in Moore and Adams, supra. “Consequently,” this Court concluded,

“even though the school boards are required to submit their budgets to the state

superintendent for approval, it cannot be said that a judgment against a county

school board will come from state funds.” Id. at 1510-11.

In addition, this Court emphasized that county school boards in Alabama

have considerable operational autonomy as well, having “the power to establish

general education policy for the schools,” “general administration and supervision

responsibility for the schools,” and “the authority to assign teachers and to place

students.” Id. (citations omitted). And, importantly, “the boards are subject to a

significant amount of local control, in that their members “are elected by ‘the

qualified electors of the county,’ and they receive compensation from the public

funds of the county.” Id. at 1511 (citations omitted).

This Court reaffirmed and applied Stewart’s holding that local boards of

education in Alabama are not arms of the State in Kendrick v. Jefferson County


17

Board of Education, 932 F.2d 910, 914 (11th Cir. 1991) (“[W]e held in Stewart

that county boards of education in Alabama are not entitled to eleventh amendment

immunity. Thus, the eleventh amendment cannot serve as the basis for denying

Kendrick back pay.” (Citation omitted)), and in Hardy v. Birmingham Board of

Education, 954 F.2d 1546, 1549 (11th Cir. 1992) (“[T]his Court, applying Mt.

Healthy, held that under Alabama law the county school board therein involved

was not an arm of the state.”) (emphasis in original).

The Stewart decision is on point and dispositive. Like the county board of

education in Stewart, city boards such as the Board here have a “significant

amount of flexibility in raising local funding,” Stewart, 908 F.2d at 1510. As is

true of county boards, a significant portion of city boards’ funding comes from

local sources: Statewide, 48 percent of school funding comes from the State, and

52 percent from non-State sources (i.e., from federal, local, and other revenue).

(Doc. 20-9 - Pg 1.) The Board is no exception: approximately half of its funds

come from the State and half come from federal, local, and “other” sources. (Doc.

34-6 – Pg 20 (for the year ending Sept. 30, 2010, the Board received $42,604,816

in State funds; $34,949,504 in local funds; $7,078,815 in federal funds; and

$415,786 in other funds).

Moreover, as to the principal indicia of fiscal autonomy identified by this

Court in Stewart, city school boards have precisely the same statutory authority


18

county boards have, under the very same statutory provisions. Thus, city boards

and county boards alike have the authority to raise revenues by selling interest-

bearing tax anticipation warrants, see Ala. Code § 16-13-70(a); to spend revenues

from county sales and use-tax funds for educational purposes, see Ala. Code § 16-

13-37(a); and to borrow funds, see Ala. Code §§ 16-13-145 & 16-13-211. It thus

is as clear here as it was in Stewart that “Alabama school boards have a degree of

fiscal autonomy comparable to that of the school boards at issue in Mt. Healthy”

and that “even though the school boards are required to submit their budgets to the

state superintendent for approval, it cannot be said that a judgment against a [city]

school board will come from state funds.” 908 F.2d at 1510-11.

In addition, like the county school board in Stewart, city school boards like

the Board have considerable operational autonomy. City boards of education are

vested with the “power to establish and maintain a system of public schools,” Ala.

Code § 16-11-16, with “general administration and supervision of the public

schools and educational interest of each city,” Ala. Code § 16-11-2(b), and “with

all the powers necessary or proper for the administration and management of the

free public schools within [the] city,” Ala. Code § 16-11-9.

And, like the county board in Stewart, city boards of education “are subject

to a significant amount of local control.” 908 F.2d at 1510. The members of city

boards of education are chosen locally, either through an election “by the qualified


19

electors of the municipality,” Ala. Code § 16-11-3.2, or, as in the case of the

Board, through appointment by the governing body of the municipality, Ala. Code

§ 16-11-3; Doc 34-4 - Pg 1. And city boards have the same authority to

compensate their members that county boards have. See Ala. Code § 16-1-26(a).

The sum of the foregoing is this: With regard to the indicia of fiscal and

operational autonomy that the Stewart court found significant to the arm-of-the-

State inquiry, city boards of education like the Board are not materially

distinguishable from the county board of education that this Court held was not an

arm of the State in Stewart.3 Stewart’s conclusion that county boards of education

in Alabama are not arms of the State therefore applies with equal force to city

boards of education like the Board.

The Board makes no effort to distinguish Stewart. Perhaps recognizing that

any such effort would be futile, the Board spends most of its brief arguing its case

as if the most pertinent decision from this Court did not exist; and in so doing, cites

a plethora of state statutes relating to schools and school boards, a major portion of

which were in force at the time this Court decided Stewart. Indeed the Board’s

3 Indeed, while Stewart found that the general fiscal and operational autonomy of the local board was sufficient to conclude that it was not an arm of the State, the conclusion that local school boards such as the Board here are not an arms of the State is all the more clear when the particular function at issue here—control over such day-to-day personnel matters as employee assignments—is considered. We address this point more fully at pp. 34-37 below.


20

only acknowledgment of—and only attempt to blunt the force of—Stewart’s on-

point holding is consigned to the back of its brief, where the Board launches two

lines of attack against Stewart, which are analytically distinct although

promiscuously intermingled in the Board’s discussion: In the first, the Board

asserts in a conclusory fashion that Stewart was wrongly decided. See Appellant’s

Brief at 64-65 (charging that this Court, variously, “overlooked or misapplied the

law,” “dismissed, discounted, or ignored state statutory and decisional authority

that pointed to a different conclusion,” and engaged in a “cursory review of a

smattering of Alabama statutes”). Second, the Board urges that, regardless of

whether Stewart was correctly decided in 1990, its analysis and outcome have been

abrogated sub silentio by subsequent developments in federal and state law. We

address the latter line of attack separately in Part I.A.3 below and show that it is

meritless. But for now, two brief points about the former assertion are in order.

First, even if, contrary to fact, the Board’s assertion that Stewart

misapprehended applicable law were accurate, it would not be for this panel to

overrule that decision. “Under the well-established prior panel precedent rule of

this Circuit, the holding of the first panel to address an issue is the law of this

Circuit, thereby binding all subsequent panels unless and until the first panel’s

holding is overruled by the Court sitting en banc or by the Supreme Court.” Smith

v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001). This holds true even


21

where the party attacking the prior decision points to matters it believes the panel

overlooked, id. at 1302-03 (rejecting any “overlooked reason” exception to the

prior precedent rule), and even where a subsequent panel is “convinced [a prior

panel’s decision] is wrong,” United States v. Steele, 147 F.3d 1316, 1317-18 (11th

Cir. 1998) (en banc). Thus, the Board’s contention that the panel decided Stewart

in error—either because it supposedly “misapplied the law”; or “dismissed,

discounted, or ignored state statutory and decisional authority that pointed to a

different conclusion”; or engaged in a “cursory review of a smattering of Alabama

statutes,” Appellant’s Brief at 64-65—is foreclosed by the prior precedent rule.

Second, the notion that the Stewart decision was wrongly decided is not

accurate. It is notable that in this regard the Board’s brief is quite long on

conclusory and overheated charges but remarkably short on specifics. See

Appellant’s Brief at 64-65. And in those few instances where the Board attempts

to substantiate its calumnies on the Stewart court, it is readily apparent that they

are without substance. For instance, the Board incorrectly accuses the Stewart

court of having made the “misstatement” that local boards in Alabama have the

“authority to levy or otherwise directly impose taxes.” Appellant’s Brief at 71.

Notably, the Board does not supply any quotation of, or citation to, the Stewart

opinion that would support the charge. Nor could it, as the Stewart court made no

such “misstatement” of Alabama law; rather, in the only passage that could


22

possibly be relevant to this charge, the court stated that “[c]ounty school boards in

Alabama possess a significant amount of flexibility in raising local funding,”

which was fully supported by the court’s references to Alabama statutes

authorizing the board to sell interest-bearing tax anticipation warrants and to

borrow funds, 908 F.2d at 1510 (emphasis added), provisions that remain in force

to this day.4

There is no need to belabor this point further, as the sum of the matter is this:

The Stewart decision is on-point and indistinguishable here, and accordingly the

Board’s assertion that it was wrongly decided is not only ineffective under the

prior precedent rule but unsupported—and unsupportable—as well. Consequently,

Stewart remains binding, and hence dispositive of this appeal.

4 Likewise substance-free is the Board’s rather puzzling charge that the Stewart court improperly “relied on circuit court decisions applying other states’ laws.” Appellant’s Brief at 64. To the extent that this is meant to suggest that the court cited provisions of other states’ laws as if such provisions were identical to Alabama’s statutes, as is implied at p. 71 of Appellant’s Brief, this charge, too, is incorrect. The Stewart court, as noted at pp. 14-15 above, opened its discussion by pointing out that this Court had previously found that local school boards in three other states were not arms of their respective States, and that there are broad similarities between the school boards as constituted in those states, on the one hand, and Alabama school boards on the other, 908 F.2d at 1510, which is certainly relevant and fair commentary. There is no suggestion in the opinion that Alabama’s statutory scheme is identical in every way to those of the three other states the court referenced, and it is simply bizarre to suggest that it is off-limits for a court to even to discuss similar cases even if they are not identical. That is called reasoning by analogy, which is hardly unknown to the law.


23

3. No intervening changes in controlling federal or state law have abrogated or in any way undermined this Court’s decision in Stewart.

It is common ground that the prior precedent rule gives way in those rare

instances in which “intervening on-point case law from either this Court en banc,

the United States Supreme Court, or the [State] Supreme Court,” United States v.

Chubbuck, 252 F.3d 1300, 1305 n.7 (11th Cir. 2001), is inconsistent with the prior

precedent. See also Hattaway v. McMillian, 903 F.2d 1440, 1445 n.5 (11th Cir.

1990) (“[I]f subsequent decisions of the United States Supreme Court or the [the

relevant state] courts cast doubt on our interpretation of state law, a panel would be

free to reinterpret state law in light of the new precedents.”). The Board urges that

this narrow exception applies here, with respect to both the federal-law test for

determining whether an entity is an arm of the State and the Alabama law that is

relevant to that test. The Board is wrong on both scores.

(a) Federal law governing the arm-of-the-State inquiry has not changed in any way that undermines Stewart’s force as binding precedent.

With respect to federal law, the Board contends that the multifactor test for

assessing whether an entity is an arm of the State has been fundamentally altered

by this Court’s post-Stewart decisions. Indeed, the Board urges that the four-factor

test has collapsed into a one- or two-factor test, pursuant to which questions as to

the entity’s source of funding and the potential exposure of the State’s treasury


24

have vanished completely and the entity’s immunity as a matter of state law has

taken on controlling significance. This contention could hardly be more wrong.

The Board first asserts that the last two factors of the Manders test (or the

last factor of the Stewart test)—i.e., the source of an entity’s funding and whether a

judgment against the entity would be satisfied with state funds—are no longer

relevant to the arm-of-the-State inquiry. See Appellant’s Brief at 9 (“The Eleventh

Circuit no longer asks who pays the judgment or inquires into the source of the

funds from which the judgment may be satisfied.”); id. at 12-13 (“[T]he

comparative significance of a potential threat to the state treasury has been eclipsed

and supplanted ….”); id. at 65 (“[F]ederal law has evolved in a way that can no

longer be reconciled with Stewart’s misplaced emphasis on the availability of

locally generated revenues to pay any judgment that might be rendered and thereby

protect the ‘state treasury’ from attack.”). These assertions are demonstrably

untrue.

The initial problem with the Board’s position is that it runs headlong into the

Supreme Court’s decision in Hess v. Port Authority Trans-Hudson Corp., 513 U.S.

30 (1994). There, the Court placed substantial weight on the “financial

independence [of the entity at issue]—its long history of paying its own way” in

concluding that it was not an arm of the State. Id. at 50. And, in reaching that

conclusion, the Court held that “the impetus for the Eleventh Amendment” was


25

“the prevention of federal-court judgments that must be paid out of a State’s

treasury,” id. at 48, cited with approval seven court of appeals cases that

“recognized the vulnerability of the State’s purse as the most salient factor in

Eleventh Amendment determinations,” id., and further quoted with approval a

party brief for the proposition that “the vast majority of Circuits ... have concluded

that the state treasury factor is the most important factor to be considered ... and, in

practice, have generally accorded this factor dispositive weight,” id. at 49

(quotation marks and citation omitted).

While ignoring Hess’s holding and reasoning, the Board plucks out from its

context a passage from Federal Maritime Commission v. South Carolina Ports

Authority, 535 U.S. 743 (2002), stating “the United States Supreme Court has

declared (in a post-Stewart decision) that ‘the primary function of sovereign

immunity is not to protect state treasuries … but to afford states the dignity and

respect due sovereign entities.’” Appellant’s Brief at 13 (quoting 535 U.S. at 769).

But what the Board does not acknowledge about the Federal Maritime

Commission case is that, while finding the “sovereign dignity” interest to be the

Eleventh Amendment’s primary purpose, the Court also acknowledged that “state

sovereign immunity … serves the important function of shielding state treasuries

and thus preserving ‘the States’ ability to govern in accordance with the will of


26

their citizens.’” 535 U.S at 765 (quoting Alden v. Maine, 527 U.S. 706, 750-51

(1999)) (emphasis added).

Thus, the most that could possibly be said is that there might be some

tension in the Court’s cases on the rather narrow and esoteric question as to

whether protecting state treasuries is “the primary purpose” of the Eleventh

Amendment or else “an important function” of the Eleventh Amendment—a

distinction of no consequence here. What cannot be said is that protecting state

treasuries from monetary judgments is a matter of indifference to the Eleventh

Amendment in general and to the arm-of-the-State inquiry in particular. To the

contrary, the protection of State treasuries from monetary judgments has long been

recognized to be an abiding concern in Eleventh Amendment jurisprudence. See,

e.g., Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430 (1997) (“Of course, the

question whether a money judgment against a state instrumentality or official

would be enforceable against the State is of considerable importance to any

evaluation of the relationship between the State and the entity or individual being

sued.”); Edelman v. Jordan, 415 U.S. 651, 663 (1974) (tracing the evolution of

“the rule that a suit by private parties seeking to impose a liability which must be

paid from public funds in the state treasury is barred by the Eleventh

Amendment”). The Supreme Court has pointed out that as an historical matter, a

prominent reason for the Eleventh Amendment’s adoption was the fear that states


27

would be held liable in federal courts for their revolutionary war debts. See Hess,

513 U.S. at 39 (“Adoption of the Amendment responded most immediately to the

States’ fears that ‘federal courts would force them to pay their Revolutionary War

debts, leading to their financial ruin.’” (Citation omitted)). And so has this Court,

as recently as this year. See United States ex rel. Lesinski v. S. Fla. Water Mgmt.

Dist., 739 F.3d 598, 606 (11th Cir. 2014) (“In 1795, the United States adopted

the Eleventh Amendment largely in response to the States’ fears that federal courts

would require them to repay their Revolutionary War debts to private, individual

creditors, which could have led to their financial ruin.”).5

5 As the Fourth Circuit has recognized, “the twin reasons for the Eleventh Amendment”—i.e., “the States’ fears that federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin,” and “the integrity retained by each State in our federal system, including the States’ sovereign immunity from suit”—are reflected in that court’s formulation of the four-factor arm-of-the-State test. Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 223 (4th Cir. 2001). Accordingly, “[t]he principal factor, upon which courts have virtually always relied, is whether a judgment against the governmental entity would have to be paid from the State’s treasury,” as it reflects the first of the two reasons. Id. at 224. Because the State treasury factor is “‘the most salient factor in Eleventh Amendment determinations,’ a finding that the State treasury will not be affected by a judgment against the governmental entity weighs against finding that entity immune.” Id. (citation omitted). In the Fourth Circuit’s formulation, the remaining “three additional factors”—“(1) the degree of control that the State exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) the scope of the entity’s concerns—whether local or statewide—with which the entity is involved; and (3) the manner in which State law treats the entity” constitute the “‘sovereign dignity’ inquiry.” Id.


28

Equally to the point, the four-factor test that this Court uses in arm-of-the-

State cases to this day flatly contradicts the Board’s contention that this Court’s

post-Stewart decisions have jettisoned any inquiry as to an entity’s source of funds

and into whether a judgment would be paid from the State’s treasury.

As noted above, in Stewart, this Court looked to “three factors …: (1) how

the state law defines the entity; (2) the degree of state control over the entity; and

(3) the entity’s fiscal autonomy—i.e., where the entity derives its funds and who is

responsible for judgments against the entity.” 908 F.2d at 1510. In subsequent

decisions—e.g., Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Comm’n,

226 F.3d 1226, 1231-34 (11th Cir. 2000), and Manders v. Lee, 338 F.3d 1304 (11th

Cir. 2003) (en banc)—this Court subtly re-articulated the test, but not in any way

that supports the Board’s argument. Rather, the Court left the operative language

of the test the same, but split the last factor from Stewart’s articulation of the test

into two distinct factors, thereby making it a four-factor test. So modified, the test

is as follows:

In Eleventh Amendment cases, this Court uses four factors to determine whether an entity is an “arm of the State” in carrying out a particular function: (1) how state law defines the entity; (2) what degree of control the State maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for judgments against the entity.


29

338 F.3d at 1309 (emphasis added). And that is precisely the test that this Court

employs in 2014. See Lesinski, 739 F.3d at 602 (quoting the Manders articulation

of the test verbatim).

There is thus no merit to the Board’s assertions that this Court “no longer

asks who pays the judgment or inquires into the source of funds,” Appellant’s

Brief at 9, or that “federal law … can no longer be reconciled with Stewart’s

misplaced emphasis on the availability of locally generated revenues to pay any

judgment,” id. at 65. The test this Court applies to this day plainly looks to both

“where the entity derives its funds” and “who is responsible for judgments against

the entity.” Lesinski, 739 F.3d at 602 (quoting Manders, 338 F.3d 1309). Indeed,

if anything, this Court’s post-Stewart cases give these considerations more

prominence by separating them out into two distinct factors.

While trying to wish away the third and fourth factors in this Court’s arm-of-

the-State analysis, the Board at the same time distorts the first factor—“how the

state defines the entity,” Manders, 338 F.3d at 1309—by conflating it with the

question whether the State’s courts consider the entity immune as a matter of state

law and urging that this Court’s post-Stewart decisions now treat such state-law

immunity determinations as “all but controlling,” Appellant’s Brief at 14-15, or

even “assign[] [them] controlling significance,” id. at 66-67, in determining


30

whether Eleventh Amendment immunity applies as a matter of federal arm-of-the-

State doctrine.

This purported change in federal law, too, not only finds no support in the

cases but is contradicted by this Court’s precedent. In Abusaid v. Hillsborough

County Board of Commissioners, 405 F.3d 1298, 1314 (11th Cir. 2005), this Court

rejected a county’s argument that it is entitled to Eleventh Amendment immunity

precisely because it sought to “confuse[] the state law doctrine of sovereign

immunity with the doctrine of Eleventh Amendment immunity governed by federal

law and applicable only in federal court,” squarely holding that “state sovereign

immunity law [does not] bar … § 1983 claims against the County.” Id. at 1314-15.

This Court’s post-Stewart case law is thus entirely consistent with Stewart’s

holding that the decision of the “Alabama state courts [to] provide county boards

of education with sovereign immunity in state tort law actions does not require a

similar treatment under the Eleventh Amendment.” Stewart v. Baldwin Cnty. Bd.

of Educ., 908 F.2d 1499, 1510 n.6 (11th Cir. 1990).

The Board nonetheless urges that in Versiglio v. Board of Dental Examiners

of Alabama, 651 F.3d 1272 (11th Cir. 2011) (Versiglio I), vacated and superseded

on panel rehearing, 686 F.3d 1290 (11th Cir. 2012) (Versiglio II), this Court

considered a state court’s determination that an entity was entitled to state-law

immunity, by itself, to conclusively resolve the question of the entity’s immunity


31

under the Eleventh Amendment. Appellant’s Brief at 17-18. This is a misreading

of the Versiglio decisions, which must be read as a whole for a complete

understanding of this Court’s decision.

In Versiglio I, this Court applied this Court’s four-factor arm-of-the-State

test and concluded that all of the factors strongly supported the defendant board’s

claim to be an arm of the State except one—“how state law defines the entity”—

which, the Versiglio I Court found, “weigh[d] heavily against” sovereign immunity

given a recent State intermediate appellate court decision that “conducted the first

substantial analysis by a state court of the [defendant’s] status as a state agency.”

651 F.3d at 1276. Although that state-court decision was in fact a decision

concerning whether the board in question was entitled to state-law immunity, this

Court did not simply rely on the state court’s conclusion that the board was not

entitled to state-law immunity, but instead was moved by the state court’s

“analysis” and “findings” regarding its examination of the statutes governing the

board” concerning its relationship with the State. Id.

Having denied Eleventh Amendment immunity where three out of four of

this Court’s factors had militated in favor of immunity, and the one factor that

weighed against was based on “the first substantial analysis by a state court of the

[defendant’s] status as a state agency,” id., this Court was then confronted with the

fact that the Alabama Supreme Court promptly reversed the state court decision


32

containing the analysis that it found persuasive, Versiglio II, 686 F.3d at 1292.

This Court thus faced the unusual situation in which it had denied Eleventh

Amendment immunity where the one factor that weighed against immunity was

derived from judicial analysis that had just been repudiated by the highest court of

the State. It is unsurprising that, after this extraordinary turn of events, this Court

vacated its earlier opinion and found the board immune under the Eleventh

Amendment. Id. at 1293.

Although the circumstances of the Versiglio I and Versiglio II decisions are

certainly complicated and unusual, the decisions cannot sensibly be read as a

repudiation of Stewart—or of any of the myriad other decisions from this Court

applying the four-factor arm-of-the-State test—in favor of a one-factor test that

assigns, in the Board’s words, “controlling significance” to state-court conclusions

concerning state-law immunity.

Indeed, while the Board’s brief is something of a paean to state-court

conclusions regarding state-law immunity—which this Court, in both Stewart and

Abusaid, has held irrelevant to Eleventh Amendment immunity—it is telling that

the Board balks (Appellant’s Brief at 79-80) at crediting the Alabama Supreme

Court’s decision in Ex parte Madison County Board of Education, 1 So. 3d 980

(Ala. 2008), which is the only decision of that court that actually considers the

issue here: whether a local school board in Alabama is an arm of the State for the


33

purposes of Eleventh Amendment immunity from a federal claim. In that case, the

Alabama Supreme Court, in a thorough opinion, independently applied this Court’s

four-factor arm-of-the-State test in considering whether a county school board acts

as an arm of the State while exercising personnel functions; and it concluded, with

particular attention to the first two factors (i.e., how the State defines the entity and

the degree of control that the State exercises over the entity), that the board does

not qualify as an arm of the State entitled to Eleventh Amendment immunity. Id.

at 987-89.6 While the Alabama Supreme court’s resolution of this federal-law

issue in Madison County does not of course bind this Court, if any state-court

decision concerning local school boards’ immunity is to be given weight here, it

should be the one that actually addresses the question of Eleventh Amendment

immunity. As the District Court observed, “[t]here can be few clearer statements

of how the Alabama state courts treat local school boards when they exercise the

particular functions of being an employer.” (Doc 50 - Pg 24.)

In sum, this Court’s arm-of-the-State cases simply leave no room for the

Board’s contention that this Court has somehow repudiated the Stewart decision’s

multi-factor approach to analyzing the arm-of-the-State question. Not only has this

Court repeatedly reaffirmed Stewart itself (see Kendrick, 932 F.2d at 914, and

6 It also bears noting that in a more recent decision, the Alabama Supreme Court observed that a local school board has no state-law immunity from federal-law claims. See Colbert Cnty. Bd. of Educ. v. James, 83 So. 3d 473, 481 (Ala. 2011).


34

Hardy, 954 F.2d at 1549), but the test applied in Stewart, as rearticulated in the en

banc opinion in Manders (among other decisions), is a mainstay of this Court’s

Eleventh Amendment jurisprudence that has been reaffirmed and applied in a

whole raft of decisions, including one published this year (see Lesinski, 739 F.3d at

602), as well as the very decision that the Board claims (Appellant’s Brief at 74-

76) is especially inconsistent with Stewart (see Williams v. Dist. Bd. of Trs. of

Edison Cmty. Coll., Fla., 421 F.3d 1190, 1192 (11th Cir. 2005)).7

* * * *

All this having been said, there is one respect in which this Court’s approach

to the arm-of-the-State inquiry has been refined since this Court decided Stewart.

But this post-Stewart refinement of the inquiry—which the Board does not

mention—in no way undermines Stewart and in fact it only makes it all the more

clear that local school boards are not arms of the State of Alabama where, as here,

their employment decisions are at issue.

7 Beyond the fact that Williams re-affirms the same traditional multifactor arm-of-the-State test that Stewart applied—which alone puts paid to the notion that it represents a break from Stewart—it bears noting that, contrary to the Board’s suggestion otherwise, Williams represents an unremarkable application of that test to find that Florida community colleges function as arms of the State. There, this Court weighed the four factors and found that all of them—including, notably the fact that “the state would be regarded as the judgment debtor for the college,” 421 F.3d at 1194—favored Eleventh Amendment immunity.


35

As this Court made clear in its en banc opinion in Manders, this Court now

applies the four-factor arm-of-the-State test in a “functional” manner, meaning that

the factors are analyzed with an eye to determining “whether an entity is an ‘arm of

the State’ in carrying out a particular function,” 338 F.3d at 1309, i.e., the function

that is at issue in the lawsuit. “[T]he pertinent inquiry is not into the nature of [an

entity’s] status in the abstract, but its function or role in a particular context.”

Shands Teaching Hosp. & Clinics v. Beech St. Corp., 208 F.3d 1308, 1311 (11th

Cir. 2000). Consequently, the determination whether an entity is an arm of the

State is not made in an “all or nothing” manner, but rather “must be assessed in

light of the particular function in which the defendant was engaged when taking

the actions out of which liability is asserted to arise.” Abusaid v. Hillsborough

Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1303 (11th Cir. 2005), quoting

Manders, 338 F.3d at 1308.

In this case, Weaver alleges that when the Board rehired him following his

tours of active duty in the U.S. military, his duties, responsibilities, pay, and status

were diminished in violation of USERRA. (Doc 1 - Pg 6-8.) Accordingly, the

function at issue here is the school board’s function as an employer—its personnel

function. More specifically, the function at issue is the Board’s hiring of,

assigning duties to, and determining the pay of its employees.


36

Even if this Court were to ignore Stewart and approach the issue anew, an

analysis of local school boards’ authority with respect their personnel function

makes it all the more clear that they are not arms of the State, for personnel

matters—such as hiring and firing employees, setting employee salaries, and

making employee assignments and transfers—are, under the governing statutes,

matters of local control by the school board and its appointed superintendent, not

matters of state control: City school boards have the authority to hire and fire

employees upon the recommendation of the city superintendent. Ala. Code §§ 16-

12-16 & 16-11-17; Doc 32-1 - Pg 1. (With respect to the Chief School Financial

Officer position in particular—the position that Weaver holds—the city board has

unilateral dismissal authority. Ala. Code § 16-13A-4(c).) The salaries of city

school board employees are fixed by the city school boards. Ala. Code §16-11-17.

And the city superintendent is empowered to assign employees, transfer

employees, suspend employees, and recommend employees for promotion. Ala.

Code § 16-12-16. It is thus plain that in its day-to-day personnel functions, a city

school board acts autonomously of the State and is not an arm of the State.8

8 Indeed, an administrative regulation promulgated by the State Board of Education specifically provides that, except in narrow “exigent circumstances” as found upon a full investigation, “[t]he State Superintendent of Education shall not have the authority to review actions and orders of county and city boards of education or county superintendents of education and city superintendents of schools in personnel matters.” Ala. Admin. Code r. 290-1-2-.03.


37

Although the Board urges that this Court should disregard Stewart and

consider the question whether local school boards in Alabama are arms of the State

anew, it does not acknowledge this Court’s post-Stewart case law calling for a

functional application of the four-factor arm-of-the-State test, and thus does not

focus at all on the Board’s function as an employer in hiring, assigning duties to,

and determining the pay of its employees, as this Court’s current approach to

applying the four-factor test demands. Instead, the Board approaches the issue in

the “all or nothing” manner that this Court has held to be inappropriate. Thus,

notwithstanding the litany of statutory citations that the Board sets forth in its

attempt show that the State exercises control over local school boards (Appellant’s

Brief at 24-43), none of them establish that the State controls the particular

function at issue here.

(b) State law relevant to the arm-of-the-State inquiry has not changed in any way that undermines Stewart’s force as binding precedent.

The Board fares no better in contending that state law has changed to such

an extent that Stewart is no longer binding.

As an initial matter, for the reasons just discussed, the Board’s heavy

reliance on the Alabama Supreme Court’s decision in Ex parte Hale County Board

of Education, 14 So. 3d 844 (Ala. 2009), as some kind of watershed event for

Eleventh Amendment purposes (Appellant’s Brief at 14-24) is fruitless. Hale


38

County extended state-law immunity—which had previously applied only to tort

actions—to contract actions. Id. 848-49. As we have just shown, state-court

conclusions regarding state-law immunity do not control the federal question of

whether an entity is an arm of the State for the purposes of the Eleventh

Amendment. Indeed, school boards’ immunity from tort suits under state law was

rejected by this Court in Stewart as a basis for finding Eleventh Amendment

immunity for that very reason. 908 F.2d at 1510 n.6 (holding that school board’s

“attempt to conflate sovereign immunity with respect to a state-created tort with

Eleventh Amendment immunity for a federal cause of action is unavailing”). The

fact that that same state-law immunity doctrine now extends to state-law contract

actions in state courts is simply of no consequence to the federal arm-of-the-State

analysis.

Beyond that, the Board also urges that changes to the statutory scheme

regulating Alabama schools and school boards have undermined this Court’s

analysis in Stewart such that it is no longer binding. Appellant’s Brief at 65-67.

This contention, too, is meritless.

Although the Board’s argument that Stewart has “los[t] its claim to

precedential effect” hinges not only on putative post-Stewart changes in federal

law but also on the idea that post-Stewart changes to the statutes relating to schools

and school boards are so extensive so as to render Stewart an anachronism


39

(Appellant’s Brief at 65), nowhere in the Board’s brief does it specifically identify

the statutory changes on which it relies for this contention. Neither in the section

at the end of the Board’s brief where it first makes this rather consequential claim9

nor anywhere else in its 82-page submission has the Board endeavored to specify

exactly which post-Stewart enactments it contends have changed the landscape so

significantly that this Court should disregard its precedent. (Indeed, its discussion

does not differentiate between pre- and post-Stewart enactments at all.) Much less

does the Board explain exactly what those changes are and how, specifically, they

affect the analysis.

From all that appears, the Board seems to intend that its discussion in a

preceding section of its brief (Part III(c) at pp. 24-43)—contending that the state

constitutional and statutory scheme as a whole supposedly establishes State control

over public education—will carry all this freight. As it is not this Court’s task to

sift through the hundreds of statutory citations throughout the Board’s sprawling

submission in an effort to guess at which particular statutes the Board might have

in mind, this is reason enough to reject the Board’s argument. Cf. Ohio Cas. Ins.

Co. v. Bazzi Constr. Co., 815 F.2d 1146, 1149 (7th Cir. 1987) (A party “is under an

obligation to do more than inundate the … court with arguably applicable …

9 The argument that Stewart is no longer binding appears in Part III(f) and is captioned, “(f) Stewart has been abrogated by subsequent statutory developments and judicial decisions.” Appellant’s Brief at 64.


40

provisions and force the court to wade through the provisions in an attempt to

determine which one might provide an appropriate basis for” the party’s

contention.).

Nevertheless, we have of course undertaken to review those statutory

provisions. But because we do not believe that a provision-by-provision

discussion of each code section within the body of this brief is either necessary or

helpful to the Court, we have set forth the results of our review, in tabular form, as

an addendum following the signature page of this brief. (We have, however,

counted all of the words in the addendum against our word limit.)

Our review discloses, first of all, that the bulk of those statutes were predate

Stewart and have either not been amended or have been amended in a technical or

otherwise insignificant way, as indicated in the third column of the Addendum’s

tables. See Addendum at Add-1 through Add-21. Inasmuch as the prior precedent

rule forecloses any argument based on statues that were in force at the time Stewart

was decided, the Board’s reliance on those statutes is unavailing as a threshold

matter, even if they were relevant. See Smith v. GTE Corp., 236 F.3d 1292, 1302-

03 (11th Cir. 2001) (“‘[T]he mere act of proffering additional reasons not expressly

considered previously ... will not open the door to reconsideration of the question

by a second panel.’”) (Citation omitted).


41

Our review also discloses that the statutes that the Board cites in Part III(c)

of its brief are generally irrelevant to the functional arm-of-the-State analysis that

this Court would be bound to apply if it were to visit this question anew. That is,

none of those statutes establish that the State as a matter of course controls local

school boards’ day-to-day hiring, work assignment, and compensation decisions,

which, as we have shown, are statutorily committed to local school boards. See

Addendum at Add-1 through Add-37, fifth column. Indeed, the only provisions

cited by the Board that even arguably relate to the question of the State’s exercise

of any kind of direct control over the day-to-day operations of a local school board

militate against a finding of such control. We offer the following by way of

example:

First, the Board cites Ala. Code § 16-4-8 for the proposition that the State

Superintendent of Education is authorized to “investigate, review, or set aside the

actions of local educational authorities,” Appellant’s Brief at 27 & n.55, but the

statute defines the Superintendent’s review authority narrowly as applying only to

“matters relating to finance and other matters seriously affecting the educational

interest,” Ala. Code § 16-4-8. Moreover, the Board fails to cite the administrative

regulation promulgated by the State Board of Education under this provision’s

authority, which makes clear that the State Superintendent’s authority does not

extend to “review[ing] actions and orders of county and city boards of education or


42

county superintendents of education and city superintendents of schools in

personnel matters” except in narrow and exigent circumstances. Ala. Admin.

Code r. 290-1-2-.03 (emphasis added). The fact that the State Superintendent is

barred from intervening in a local school board’s personnel matters in the ordinary

course simply confirms that in the ordinary course school boards administer their

personnel functions autonomously.

Similarly, the Board cites two schemes that empower the State

Superintendent of Education to intervene in the affairs of a local board of

education under certain narrow—and grave—circumstances defined in the statute.

Appellant’s Brief at 30 & n.70, 38.10 Needless to say, these statutes actually

confirm the fact that in ordinary circumstances, local school boards administer

their day-to-day functions, including their personnel functions, on an autonomous

basis—for if the State were always in control of the various school systems to the

10 The first scheme, entitled “Education Accountability Plan,” empowers the State Superintendent of Education, when a local board of education “is in an unsound fiscal position,” to appoint an advisor to “advise the day-to-day financial operations of the local board of education”; if the local board continues to be financially distressed, the State Superintendent is authorized to seek approval from the State Board of Education to appoint a “chief financial officer to manage the fiscal operation of the local board of education.” Ala. Code § 16-6B-4. The other scheme authorizes “the State Superintendent of Education to assume and exercise direct and comprehensive control over the decision making and operational functions of city and county boards of education when the demonstrated inability of such boards of education to discharge administrative, operational, or instructional functions threatens to deprive students of essential educational services.” Ala. Code § 16-6E-2.


43

degree that the Board asserts it is, then there would be no need for a statute

empowering the State to appoint advisors to school boards or to take over and

essentially establish receiverships over school boards in narrow circumstances.

* * * *

The sum of the foregoing is this: This Court’s decision in Stewart is fully on

point, binding and dispositive here. The Board has not shown that Stewart is in

conflict with any decision of the U.S. Supreme Court or this Court sitting en banc,

has not shown that this Court’s arm-of-the-State decisions have altered the four-

factor test in any way that undermines Stewart, and it has not shown that

intervening state-law developments have abrogated Stewart. Moreover, even if

this Court were to ignore Stewart and decide the question anew, application of this

Court’s functional analysis of the four-factor test would all the more clearly yield

the conclusion that local boards of education like the Board are not arms of the

State.

II. EVEN IF THE BOARD WERE AN “ARM OF THE STATE,” IT HAS NO IMMUNITY FROM A PRIVATE SUIT UNDER USERRA

As we detail below, USERRA was enacted under Congress’s War Powers,

which include authority to subject nonconsenting states to private suits. As a

result, States have no Eleventh Amendment immunity from private suits to enforce

USERRA, and thus the Board could not validly claim immunity from Weaver’s

suit even if it were an “arm of the State.”


44

A. Congress enacted USERRA pursuant to its War Powers.

The Constitution authorizes Congress “[t]o make all Laws which shall be

necessary and proper for carrying into Execution the [War] Powers” granted by

Article I of the Constitution. U.S. Const. art. I, § 8, cl. 18. Those powers include

the power to “provide for the common Defence,” id., cl. 1; “declare War, id., cl.

11; “raise and support Armies,” id., cl. 12; “provide and maintain a Navy,” id., cl.

13; and “make Rules for the Government and Regulation of the land and naval

Forces,” id., cl. 14.

Congress enacted USERRA under its constitutional War Powers. See

Bedrossian v. Nw. Mem. Hosp., 409 F.3d 840, 843 (7th Cir. 2005) (noting that

“USERRA was enacted in 1994 pursuant to the War Powers Clause”). The Act’s

purposes are military related—to encourage service in the uniformed services “by

eliminating or minimizing the disadvantages to civilian careers and employment

which can result from such service”; “minimize the disruption to the lives of”

servicemembers by providing for prompt reemployment after military service; and

protect servicemembers from discrimination. 38 U.S.C. § 4301(a). The Act’s

rights and protections accrue to servicemembers and veterans. See 38 U.S.C. §

4311(a) (banning service-related employment discrimination); id. §§ 4316(b) and

(d), 4317 (granting rights and benefits to employees during military service); id. §§


45

4312–4314, 4316(a) and (c), 4318 (providing reemployment rights and benefits to

employees returning from military service).

B. Congress can subject states to private suits pursuant to its War Powers.

Congress’s War Powers include authority to subject States to private

lawsuits without their consent. While Congress cannot override States’ sovereign

immunity in legislation enacted under its Article I power to regulate interstate

commerce, see, e.g., Alden v. Maine, 527 U.S. 706 (1999) (Fair Labor Standards

Act); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) (Indian Gaming

Regulatory Act), Congress is not so constrained in exercising its War Powers.

Although some language in Seminole Tribe suggested that Article I power

cannot be used to override states’ Eleventh Amendment immunity, see 517 U.S. at

72-73, the Court subsequently held that that language was dicta based on an

“assumption” that “was erroneous,” Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356,

363 (2006). Significantly, Katz went on to hold that Congress’s power under

Article I to enact bankruptcy laws included authority to subject states to

bankruptcy proceedings. Id. at 379.

An Article I power confers on Congress authority to subject nonconsenting

states to private suits if the expectation at the time of the Constitution’s adoption

was that that power included such authority. See Katz, 546 U.S. at 362-63 (finding

that “[t]he history of the Bankruptcy Clause, the reasons it was inserted in the


46

Constitution, and the legislation proposed and enacted under its auspices

immediately following ratification of the Constitution demonstrate that it was

intended . . . to authorize limited subordination of state sovereign immunity in the

bankruptcy arena.”).

Historical analysis of the War Powers reveals that the Framers believed

states would have no immunity from War Powers enactments. First, the States did

not have war powers before the Constitution’s adoption. See United States v.

Curtiss-Wright Export Corp., 299 U.S. 304, 316 (1936) (“[S]ince the states

severally never possessed international powers, such powers could not have been

carved from the mass of state powers but obviously were transmitted to the United

States from some other source.”). Even if states had war powers at some point

after independence from Great Britain, the Articles of Confederation necessarily

transferred any such powers from the states to the federal government. See

Articles of Confederation, art. 6 (“No State shall engage in any war without the

consent of the United States” except when “actually invaded by enemies” or in

danger of invasion by Indians “and the danger is so imminent as not to admit of a

delay till the United States in Congress assembled can be consulted . . .”); id., art. 9

(“The United States . . . shall have the sole and exclusive right and power of

determining on peace and war . . .”).


47

Second, the Constitution grants the War Powers exclusively to the federal

government. The exclusivity of Congress’s War Powers is established in Article I,

Section 10, Clause 3, which denies war powers to the states.11 The Framers

believed an exclusive grant of power to the federal government in the Constitution

automatically removed any right of sovereignty over a like power that states

enjoyed before the Constitution’s ratification. As Alexander Hamilton wrote:

[A]s the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant.

The Federalist No. 32, at 194 (Alexander Hamilton) (Clinton Rossiter ed., 1961)

(emphasis in original). The Constitution’s grant of war powers to Congress and

denial of the same to the States would have effected an “alienation” of any

11 Article I, Section 10, Clause 3 provides:

No State shall, without the Consent of Congress, ... keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.


48

potential claim of state sovereignty that a state might attempt to assert against

Congress’s War Powers.

Moreover, for the States to have war powers in their own right “would be

absolutely and totally contradictory and repugnant.” Id. (emphasis in original).

See also In re Tarble, 80 U.S. 397, 408 (1871) (“No interference with the

execution of th[e] power of the National government in the formation,

organization, and government of its armies by any State officials could be

permitted without greatly impairing the efficiency, if it did not utterly destroy, this

branch of the public service.”).

Third, the Framers intended no limitation on Congress’s War Powers.

Hamilton wrote:

The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. . . . . . . [T]here can be no limitation of that authority which is to provide for the defense and protection of the community, in any matter essential to its efficacy that is, in any matter essential to the formation, direction, or support of the national forces.


49

The Federalist No. 23, at 149-50 (Alexander Hamilton) (Clinton Rossiter ed.,

1961) (emphasis in original). In light of such emphasis on unlimited, exclusive

congressional authority under the War Powers, the Framers surely understood

States would have no sovereign immunity from suits under War Powers

legislation.

Last, but not least, the Supreme Court recognizes the predominance of

Congress’s War Powers. See, e.g., Lichter v. United States, 334 U.S. 742, 781

(1948) (“‘[Congress’s war] power explicitly conferred and absolutely essential to

the safety of the Nation is not destroyed or impaired by any later provision of the

constitution or by any one of the amendments.’”) (quoting favorably address by

Hon. Charles E. Hughes) (emphasis added); In re Tarble, 80 U.S. at 408

(Congress’s war powers are “plenary and exclusive”).

Lichter’s pronouncement that no amendment to the Constitution can impair

or destroy Congress’s War Powers is particularly significant. It shows the Court

considers the Eleventh Amendment inapplicable to Congress’s War Powers

enactments.

Given that the states had no sovereign war powers prior to ratification of the

Constitution, that the Constitution granted war powers exclusively to Congress,

that the Framers believed such exclusive congressional powers eclipsed previously

existing rights of state sovereignty, and that the Framers’ intended that no


50

constitutional shackles apply to Congress’s authority under the War Powers, the

states enjoyed no immunity from Congress’s War Powers in the design of the

Constitution. Therefore, states cannot validly claim sovereign immunity from

private suits to enforce laws enacted under Congress’s War Powers, including

USERRA.

C. Congress validly exercised its War Powers in authorizing private suits against states under USERRA.

USERRA’s authorization for private suits against states is a valid exercise of

Congress’s War Powers. As discussed above, USERRA was enacted under the

War Powers, and those powers confer on Congress authority to subject states to

private lawsuits.

Further, USERRA enforces the War Powers. The Act is designed to raise

and support armies by removing disadvantages to civilian careers and employment

that can result from military service; minimizing disruption to the lives of

servicemembers by providing for prompt reemployment after military service; and

prohibiting service-related discrimination. See 38 U.S.C. § 4301(a).

The former Fifth Circuit held: “Providing reemployment rights for those

who have been called to the service of their country is, in our view, a legitimate

exercise of Congress’s power to raise armies.” Peel v. Fla. Dep’t of Transp., 600


51

F.2d 1070, 1084 (5th Cir. 1979).12 Further, the Supreme Court recognized that

granting servicemembers civilian reemployment rights “provides the mechanism

for manning the Armed Forces of the United States.” Ala. Power Co. v. Davis, 431

U.S. 581, 583 (1977). Although decided under USERRA’s predecessors, Peel and

Davis remain precedents for USERRA cases. See United States v. Ala. Dep’t of

Mental Health & Mental Retardation, 673 F.3d 1320, 1329 n.6 (11th Cir. 2012)

(“In passing USERRA, Congress made it clear that the extensive body of case law

under the predecessor statutes would remain in full force and effect to the extent it

is consistent with USERRA.”) (internal quotation marks omitted).

Because USERRA is a legitimate exercise of Congress’s War Powers, and

because the War Powers include authority to make states amenable to private suits,

Congress validly exercised its War Powers in subjecting state employers to private

suits under USERRA.

Prior to Seminole Tribe, federal courts of appeal, including the former Fifth

Circuit, held Congress’s War Powers authorized Congress to subject states to

private suits to enforce veterans’ reemployment legislation. Peel, 600 F.2d at

1081, 1084; Reopell v. Commonwealth of Mass., 936 F.2d 12 (1st Cir. 1991);

Jennings v. Ill. Office of Educ., 589 F.2d 935, 938 (7th Cir. 1979).

12 The Eleventh Circuit adopted as binding precedent all former Fifth Circuit cases decided prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981).


52

In post-Seminole Tribe decisions, the First and Seventh Circuits split on the

issue. Declining to retreat from Reopell, supra, the First Circuit in Diaz-Gandia v.

Dapena-Thompson, 90 F.3d 609 (1st Cir. 1996), ruled that Seminole Tribe’s

“hold[ing] that Congress lacks the power to abrogate the Eleventh Amendment

under the Commerce Clause ... does not control the War Powers analysis.” 90 F.3d

at 616 n.9. Relying on Seminole Tribe, the Seventh Circuit held the Eleventh

Amendment barred a private USERRA suit against a state employer because “no

legislation enacted under any provision of Article I can abrogate the sovereign

immunity of the states.” Velasquez v. Frapwell, 160 F.3d 389, 395 (7th Cir. 1998),

vacated in pertinent part, 165 F.3d 593 (7th Cir. 1999).

The Seventh Circuit’s rationale in Velasquez was erroneous because it rested

solely on the notion, rejected by Katz, that Article I confers no authority to subject

nonconsenting states to private lawsuits.

D. Even if the Board were properly considered an arm of the State, federal jurisdiction still would lie over Weaver’s claims.

If the Court were to conclude that the Board is an “arm of the State” for

Eleventh Amendment purposes but has no Eleventh Amendment immunity under

USERRA, it should hold that federal court jurisdiction remains over Weaver’s suit.


53

1. Section 4323(b)(3) grants federal jurisdiction over the Board.

USERRA uses neither the term “arm of the State” nor any “arm of the State”

test in distinguishing between the grant of jurisdiction over political subdivisions

of states under Section 4323(b)(3) and that over states as employers under Section

4323(b)(2). Consequently, if the Board were an arm of the State for Eleventh

Amendment purposes but the Eleventh Amendment were found inapplicable to

USERRA, USERRA’s text, rather than Eleventh Amendment arm-of-the-State

analysis, would govern jurisdiction over Weaver’s suit.

USERRA’s text shows Section 4323(b)(3), not Section 4323(b)(2), applies

to Weaver’s suit. Section 4323(b)(3) provides that “[i]n the case of an action

against a private employer by a person, the district courts of the United States shall

have jurisdiction of the action.” As used in Section 4323(b), “the term ‘private

employer’ includes a political subdivision of a State.” 38 U.S.C. § 4323(i).

Therefore, Section 4323(b)(3) grants the federal courts subject matter jurisdiction

over USERRA claims against political subdivisions of states. See 70 Fed. Reg.

75,246, 75,286 (Dec. 19, 2005) (noting “[t]he political subdivisions of a State

(counties, municipalities and school districts) . . . are private employers for

enforcement purposes” under USERRA) (emphasis added). By contrast, Section

4323(b)(2) “concerns only suits against states themselves.” Sandoval v. City of

Chi., 560 F.3d 703, 704 (7th Cir. 2009).


54

The Board is a “political subdivision” of a state within the ordinary meaning

of the term. It was formed by the Madison City Council. (Doc 34-4 - Pg 1.) Its

officials were appointed locally. (Doc 34-5 -Pg 14.) It has local governmental

functions of administration and management of public schools in Madison, Ala.

Code § 16-11-2(b), and “is vested with all the powers necessary or proper for the

administration and management of the free public schools within [the] city,” Ala.

Code § 16-11-9. It is empowered to buy and sell real estate, Ala. Code § 16-11-12;

establish and maintain the city’s schools and libraries, id.; enter into contracts, Ala.

Code §§ 16-11-9.1, 16-11-12; bring condemnation proceedings, Ala. Code § 16-

11-13; sell interest-bearing tax anticipation warrants, Ala. Code § 16-13-70; spend

revenues from county sales and use-tax funds, Ala. Code § 16-13-37; and borrow

money, Ala. Code §§ 16-13-145, 16-13-211. Much of its funding is derived from

local sources. (Doc 34-6 - Pg 20.)

Alabama statutes characterize local school boards as “political

subdivisions.” See, e.g., Ala. Code §§ 1-1-13, 13A-10-1(2), 16-13-260(2), 16-

24C-3(4), 36-28-1(5).

Besides the Board’s qualification as a political subdivision, the fact that the

Board, and not Alabama, is Weaver’s employer decisively renders § 4323(b)(2)

inapplicable to Weaver’s suit. Section 4323(b)(2), by its terms, applies only to “an

action against a State (as an employer) by a person.” (Emphasis added.) The


55

Board, not Alabama, hired Weaver and appointed him to all positions he has held

with the Board. (Doc 32-1 - Pg 2.) By statute, Weaver is “an employee of the

board.” Ala. Code. § 16-13A-4. Weaver’s workplace is on Board, not state,

property. (Doc 32-1 - Pg 2.) The Board’s superintendent, not the State, supervises

Weaver’s work. (Id. at 2-4.) The Board, not Alabama, sets and pays Weaver’s

salary and issues his W-2 forms. (Doc 32-1 - Pg 2-3; Doc 32-2 - Pg 1-3.) The state

legislature does not appropriate funds for Weaver’s salary. (Doc 32-1 - Pg 5.) The

Board, not Alabama, made the employment decisions challenged in this suit. (See

Doc 1 - Pg 6-9; Doc 16-4 - Pg 2-7; Doc 32 - Pg 2, 7.)

Because the Board, not Alabama, is Weaver’s employer, and because the

Board is treated as a private employer under Section 4323(b)(3), Section

4323(b)(3) applies to Weaver’s suit.

2. Even if Section 4323(b)(2) were applicable, federal jurisdiction should remain.

In the unlikely event the Board were found to be a state employer under

Section 4323(b)(2), federal jurisdiction over Weaver’s suit should remain because

Section 4323(b)(2) is inoperative in Alabama. Weaver will have no forum to bring

his suit if denied federal court jurisdiction.

Section 4323(b)(2) authorizes a private suit “against a State (as an employer)

… in a State court of competent jurisdiction in accordance with the laws of the

State.” However, no state court of competent jurisdiction exists in Alabama to


56

hear USERRA suits against the state. The Alabama Supreme Court has ruled

Alabama’s courts have no jurisdiction over such suits. Larkins v. Dep’t of Mental

Health & Mental Retardation, 806 So. 2d 358, 363-64 (Ala. 2001).

In amending USERRA’s enforcement provisions in 1998, Congress intended

to ensure suits under USERRA could be brought against states in the wake of

Seminole Tribe. See 144 Cong. Rec. H1397-99 (daily ed. Mar. 24, 1998)

(statements of Reps. Evans and Filner); H.R. Rep. No. 105-448, at 3-5 (1998).

Congress’s primary purpose in amending USERRA was “to assure that the policy

of maintaining a strong national defense is not inadvertently frustrated by States

refusing to grant employees the rights afforded to them by USERRA.” H.R. Rep.

No. 105-448, at 5. See 144 Cong. Rec. H1397-98 (statement of Rep. Evans) (“By

passing this bill, we are fulfilling our Constitutional duty to ‘provide for the

common Defence’ of our nation.”). Congress viewed federal court decisions

applying Seminole Tribe to suits against states as “rais[ing] serious questions about

the United States ability to provide for a strong national defense.” H.R. Rep. No.

105-448, at 5.

Congress did not anticipate Alabama would close its courthouses to state

employees seeking to enforce their USERRA rights. Rather, Congress believed

state employees “would be able to bring enforcement actions in State court.” 144

Cong. Rec. H1398 (statement of Rep. Quinn). Indeed, Congress intended Section


57

4323(b)(2) to “codify existing law that provides state courts have jurisdiction to

hear complaints brought by persons alleging that the State has violated USERRA.”

H.R. Rep. No. 105-448, at 6.

Given that Congress enacted Section 4323(b)(2) to guarantee a forum for

state employees to enforce their rights under USERRA; that Congress considered

the 1998 amendment essential for maintaining a strong national defense; that

Congress believed state courts would hear private suits against states under

USERRA; that Alabama has barred such suits; and that USERRA provides states

“shall be subject to the same remedies ... as may be imposed upon a private

employer under [Section 4323],” 38 U.S.C. § 4323(d)(3), it would be eminently

appropriate to imply federal court jurisdiction over private USERRA suits against

Alabama. See Cannon v. Univ. of Chi., 441 U.S. 677 (1979) (implying cause of

action under Title IX of Education Amendments of 1972). When there is no state

court of competent jurisdiction in which to bring a USERRA claim against a state

employer, the need to imply a federal cause of action is compelling. Congress

intended to guarantee state employees a forum, not deny one.

Nothing in USERRA forecloses allowing federal court jurisdiction over

private suits against states when no state court of competent jurisdiction exists. To

the contrary, the term “may,” rather than “shall,” in Section 4323(b)(2) reveals

state courts are not exclusive fora for such suits. A permissive interpretation of


58

“may” comports not only with the plain meaning of the term, but also the liberal

canon of construction favoring servicemembers that must be accorded USERRA’s

provisions.13

We are mindful other circuits have ruled no federal jurisdiction lies over

private USERRA suits against states after enactment of the 1998 amendments.

Townsend v. Univ. of Alaska, 543 F.3d 478, 482-84 (2008); McIntosh v. Partridge,

540 F.3d 315, 321 (2008); Velasquez v. Frapwell, 165 F.3d 593, 594 (7th Cir.

1999). However, none of those courts was presented with the situation in

Alabama: no available state court to hear a suit under Section 4323(b)(2). Nor did

those courts consider (as they did not mention) USERRA’s mandate that states be

subject to the same remedies as private employers; the national-defense necessity

of the amendment; or the maxim that USERRA must be construed broadly to

13 See Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312-13, 167 (4th Cir. 2001) (“Because USERRA was enacted to protect the rights of veterans and members of the uniformed services, it must be broadly construed in favor of its military beneficiaries.”); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 303 (4th Cir. 2006) (citing and quoting Hill); Petty v. Metro. Gov’t of Nashville-Davidson Cnty., 538 F.3d 431, 446 (6th Cir. 2008) (citing and quoting Francis); Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 551 (8th Cir. 2005) (citing and quoting Hill); Gordon v. Wawa, Inc., 388 F.3d 78, 81 (3d Cir. 2004) (“[W]e construe USERRA’s provisions liberally, in favor of the service member.”); Vega-Colón v. Wyeth Pharm., 625 F.3d 22, 26 (1st Cir. 2010) (citing Hill and Gordon); Chance v. Dallas Cnty. Hosp. Dist., 176 F.3d 294, 297 n.14 (5th Cir. 1999) (“The legislative history does reveal that the USERRA is to be ‘liberally construed.’”); McGuire v. United Parcel Serv., 152 F.3d 673, 676 (7th Cir. 1998) (“[T]he USERRA is to be liberally construed in favor of those who served their country.”).


59

benefit servicemembers. Moreover, to the extent they relied on the notion that

Congress must expressly provide for federal court jurisdiction over states to

override states’ Eleventh Amendment immunity, their reasoning is flawed because,

as argued above, states have no Eleventh Amendment immunity under USERRA.14

Therefore, if the Court rules the Board is an arm of the State but enjoys no

Eleventh Amendment immunity against USERRA claims, it should remand the suit

to the district court for proceedings on the merits of Weaver’s claims.

CONCLUSION

For the foregoing reasons, the District Court’s denial of the Board’s motion

to dismiss should be affirmed.

Respectfully submitted, /s/ Philip A. Hostak Alice O’Brien Phillip Hostak National Education Association 1201 16th Street, N.W. Washington, D.C. 20036

14 In an opinion not designated for publication, a panel of this Court found jurisdiction did not lie over a private USERRA action against a State of Florida employer. Wood v. Florida Atl. Univ. Bd. of Trustees, 432 F. App’x 812, 814-15 (11th Cir. 2011). However, because the decision in Wood is unpublished, it is not binding on the Court. 11th Cir. R. 36-2. Further, the Court was not presented with a circumstance in which the state courts have refused to accept jurisdiction under Section 4323(b)(2) of USERRA. Moreover, the Wood panel did not consider (as it did not mention) the question whether States have no immunity from private suits under USERRA by virtue of the statute being a War Powers enactment.


60

Phone: (202) 822-7035 [email protected] [email protected] Kathryn S. Piscitelli P.O. Box 691166 Orlando, FL 32869-1166 Phone: (407) 491-0143 [email protected] Edward Still 130 Wildwood Parkway, STE 108 PMB 304 Birmingham, AL 35209 Phone: (205) 320-2882 [email protected] Attorneys for Michael Weaver






ADDENDUM


Addendum - 1

Citation Subject Amended since Stewart?

Cited by Appellant : page No. and purpose

Relevance to Question of State Control Over School Boards’ Day-to-Day Personnel Functions?

Ala. Code § 16-1-1

Education – General Provisions

No 42 n.121 for proposition that state controls the length of the school day. 42 n.122 for proposition that state controls the length of the school term.

None. Statute provides that a school day should not be less than 6 hours of actual teaching, “unless otherwise ordered by the county or city board of education.”

Ala. Code § 16-3-11

Powers of the State Board of Education

No 26 n.49 for proposition that state board has general supervision of public schools

None. State boards of education are frequently given general supervisory powers over local boards of education. Additionally, the statute provides that the State Board of Education “shall consult with and advise” local school boards as well as others which suggests that local school boards are not merely a subset of the state board of education.

Ala. Code § 16-3-12

State Board of Education

No - 38 n.108 for proposition that school construction must be approved by state superintendent

None. Statute provides that state board of education shall adopt rules and regulations for the proper construction of school buildings


Addendum - 2




Ala. Code § 16-1-14

Removal of students creating disciplinary problems

Yes (1994) but amendment insignificant. Before amendment, statute provided that local boards “may” prescribe rules and regulations; statute now provides that they “shall” prescribe such rules.

- 27 n.53 for proposition that state requires local boards to adopt policies on particular subjects

None.

Ala. Code § 16-3-16

Education-State Board of Education

Yes (1991) but amendment insignificant. The state had the same basic powers prior to the 1991 amendments.

-42 n.126 for proposition that state controls personnel certification.

None.


Addendum - 3




Ala. Code § 16-3-19

State Board of Education/School Finances

No -34 n.91 for proposition that federal funds must be accepted by the state treasurer “in the name of and for the state of Alabama” -35 n.92 for proposition that the state board is authorized to administer, distribute, and supervise the expenditure of federal grants.

None. The statute authorizes the state board to accept federal funds.

Ala. Code § 16-3-24

State Board and State Superintendent

No - 30 n.72 for proposition that State Superintendent has power to administer oaths

None.

Ala. Code § 16-3-25

State Board No - 31 n.73 for proposition that state board has power to remove appointees for cause.

None. The State Board may remove certain appointees for “incompetency, immorality, misconduct in office or willful neglect of duty.”


Addendum - 4




Ala. Code § 16-3-27

State Superintendent of Education

No - 30 n.70 for proposition that state superintendent has power to review actions and orders taken by local boards of education and superintendents

None. Statute provides the superintendent may exercise this power of review only “in matters relating to finance and other matters seriously affecting educational interest” only.

Ala. Code § 16-4-4

Duties of State Superintendent

No -26 n.52 for proposition that State Superintendent explains the meanings of education laws to local school officials -27 n.54 for proposition that state superintendent has power to interpret and enforce state education law - 31 n.73 for proposition that state superintendent may

None.


Addendum - 5




initiate proceeding to any person appointed under the Education Code for cause - 31 n.74 for proposition that state superintendent may decide all disputes involving the proper administration of the public school system.

Ala. Code § 16-4-5

Apportionment of school funds

Yes (1995) but amendment is insignificant. The 1995 amendment substituted “local boards of education” for “several counties.” Thus, state apportionments were previously made to the counties.

- 28 n.64 for proposition that state regulates allocation of state funds to city board

None.


Addendum - 6




Ala. Code § 16-4-7

State Superintendent of Education

No - 30 n.69 for proposition that superintendent’s duty includes examining local school systems’ expenditures and supervising their business methods

None.


Addendum - 7




Ala. Code § 16-4-8

State Superintendent

No -27 n.55 for proposition that state superintendent has power to investigate, review, or set aside actions of local education authorities

None. The State Superintendent’s power to review under this statute is limited to “matters relating to finance and other matters seriously affecting the educational interest.” Clarified by administrative regulation making clear that the authority does not extend to “review[ing] actions and orders of county and city boards of education or county superintendents of education and city superintendents of schools in personnel matters” except in exigent circumstances. Ala. Admin. Code r. 290-1-2-.03


Addendum - 8




Ala. Code § 16-4-10


No -28 n.60 for proposition that state regulates school construction standards - 38 n.108 for proposition that school construction must be approved by state superintendent

None.

Ala. Code § 16-4-13


No -43 n.130 for proposition that state controls school safety and discipline.

None. Requires the state superintendent to develop and state board to adopt rules and regulations for the protection of the health, physical welfare and physical examination of the school children of the state.


Addendum - 9




Ala. Code § 16-8-12.1

Local boards’ authority to enter into cooperative agreements

No -29 n. 67-68 for proposition that the state statutes and state board of education regulations control over conflicting local policies

None.

Ala. Code § 16-8-26

Personal Leave for teachers

Yes (1995, 1997) but amendments insignificant. This provision required local boards to develop “written policies providing for the uniform administration of personal leave” before Stewart was decided.


None..

Ala. Code § 16-9-22

County Superintendent of Education Responsibilities

No - 27 n.53 for proposition that state requires local boards to adopt policies on particular subjects

None. Statute concerns county superintendents’ duty and authority to grade and standardize public schools of his/her county


Addendum - 10




Ala. Code §16-11-9.1

local boards authority to enter into cooperative agreements

No -29 n. 67-68 for proposition that the state statutes regulations control over conflicting local policies

None.

Ala. Code § 16-13-5

School Finances No -34 n.91 for proposition that federal funds must be accepted by the state treasurer “in the name of and for the state of Alabama” -35 n.92 for proposition that the state board is authorized to administer, distribute, and supervise the expenditure of federal grants.

None.


Addendum - 11




Ala. Code § 16-13-6

School Finances No -35 n.92 for proposition that the state board is authorized to administer, distribute, and supervise the expenditure of federal grants.

None.


Addendum - 12




Ala. Code § 16-13-140

School Finances – Budget System

Yes (1997) but amendments insignificant. The amendments require the state to “prepare proposed annual budget forms.” The amendments also provide for local public influence over the local board’s annual budgeting meeting which weighs in favor of the board’s autonomy.

- 33 n.82 for proposition that local school systems budgeting process is subject to detailed requirements promulgated by the State Department of Education - 33 n.87 for proposition that local boards may borrow money, but only in accordance with statutory restrictions

None.

Ala. Code §§ 16-13-140 to 16-13-144


Yes (to 140 in 1997) (to 144 in 1995, 1996) but amendments insignificant.

-32 n.81- for proposition that local school budgets must be annually submitted to and approved by the state superintendent of education

None. Amendments weigh in favor of school board autonomy in that the amendments require local, public influence over the local board’s annual budgeting. The amendments also require the state board to prepare “proposed annual budget forms.”


Addendum - 13




Ala. Code § 16-13-144


Yes (1995, 1996) but amendments insignificant.

- 33 n.83 for proposition that local budgets may not exceed projected revenues for the budget year - 33 n.84 for proposition that state superintendent may impose fiscal sanctions on local boards for violations

The changes to the statute are not significant. The fiscal sanctions were available to the Superintendent when Stewart was decided. Under the previous statute in force when Stewart was decided, the state superintendent was obligated to reduce funding from the minimum program fund and did not have the option (as he or she does now) to waive the penalty.


Addendum - 14




Ala. Code § 16-13-145

School Finances- Budget System

Yes ( 1995) but amendments insignificant.

- 33 n.87 for proposition that local boards may borrow money, but only in accordance with statutory restrictions

The 1995 amendments inserted “and if for any reason the local boards of education do not have on hand sufficient funds to pay such expenditure” before “then the local boards of education shall have authority upon the recommendation of the local superintendent of education, as the case may be, to borrow money to pay for such expenditures and to pledge therefor the school revenue for the ensuing fiscal year; provided, that such loan must be repaid during that fiscal year for which the school revenue is pledged.” Thus, it adds a requirement that they have to be out of money in order to take out a loan. The other amendments are not significant.


Addendum - 15




Ala. Code § 16-22-6

Payroll Deduction

Yes (2001) but amendments insignificant.


Has not significantly changed since Stewart was decided. This statute requires local boards to adopt policies or regulations provided for payroll deductions.

Ala. Code § 16-23-1

Teacher Training and Certification

No -42 n.126 for proposition that state controls personnel certification.

Requires state certification for superintendents, assistant superintendents, principals, teachers, and attendance officers

Ala. Code § 16-23-2




Addendum - 16




Ala. Code § 16-23-3



Ala. Code § 16-23-5


Yes (2010) but amendments insignificant.

-42 n.126 for proposition that state controls personnel certification.

The amendment changed the state superintendent “shall have authority to revoke any certificate” to “may revoke any certificate.” The amendments also added subsection (b) which provides that the state superintendent “shall immediately revoke” any certification once the holder is convicted of capital murder or any Class A felony. Thus, the state superintendent had the authority to revoke certifications before Stewart was decided.


Addendum - 17




Ala. Code § 16-25-1, et seq.

Teacher Retirement System


-42 n.128 for proposition that state controls local benefits.

Although it has been amended, this statute predates Stewart. Local boards were required to contribute to the State Retirement System before Stewart was decided. The state’s involvement here is nothing new.

Ala. Code § 16-25-21

Teacher’s Retirement System

Yes (1995, 1998, 2010, 2011, 2012) but amendments insignificant.

- 38 n.107 for proposition that local boards must contribute to state sponsored teacher retirement and health insurance programs

This provision predates Stewart. Local boards were required to contribute to the State Retirement System before Stewart was decided.


Addendum - 18




Ala. Code § 16-25A-1

Public Education Employees Health Insurance


-42 n.128 for proposition that state controls local benefits.

Although it has been amended, this provision predates Stewart. And the definition of “employee” covered by the act, which is the relevant portion for Appellant’s citation, has not changed significantly. Thus, the Public Education Employee’s Health Insurance is nothing new.

Ala. Code § 16-27-1

Transportation of Pupils

No -42 n.124 for proposition that state controls transportation operations of local school boards.

Requiring local boards to provide transportation, requires inspection of all vehicles used to transport pupils, and requires special training for drivers.

Ala. Code § 16-27-3



Provides for school bus safety inspections by state


Addendum - 19




Ala. Code § 16-27-4


No -42 n.124 for proposition that state controls transportation operations of local school boards. -42 n.126 for proposition that state controls personnel certification.

Provides for school bus driver licensing

Ala. Code § 16-27-5



Requires local school board to do their own inspection of all vehicles used to transport students once a month

Ala. Code § 16-30-4

Enrollment No -41 n.118 for proposition that state controls enrollment at local schools.

This statute, which applies to both public and private schools, requires certification of immunization before admittance in kindergarten or first grade.

Ala. Code § 16-35-4

Curriculum No -41 n.115 for proposition that state controls the curriculum of local schools.

Gives the state board authority to prescribe the minimum contents of course study for all public schools in addition to the maximum number of courses which are compulsory in elementary schools.


Addendum - 20




Ala. Code § 16-40-1


This statute requires both public and private schools to include physical education in its curriculum.

Ala. Code § 16-40-8

Instruction No -41 n.119 for proposition that state controls instruction at local schools.

Requires health classes for 10th grade public school students to include CPR instruction.

Ala. Code § 16-41-7


None. Statute requires that the state board adopt regulations ensuring drug abuse education for “all pupils” in addition to requiring local boards to include it as part of the curriculum. The statute is not limited to public schools.

Ala. Code § 16-13-143


No -32 n.81- for proposition that local school budgets must be annually submitted to and approved by the state superintendent of education

None.


Budget & Financial Control Act

No -33 noting local boards are subject to the Budget & Financial Control Act

None.


Addendum - 21




Ala. Code § 41-5-22

Department of Examiners of Public Accountants/School Fiscal Accountability

No -35 n.93 for proposition that local boards are subject to audit by the State Examiners of Public Accounts or independent auditors and responsible board officials are subject to repayment requirements and other sanctions resulting from adverse findings

None.


Budget Management Act


-33 noting local boards are subject to Budget Management Act.

None.

Ala. Code § 41-22-3(9)

Administrative Procedure

Yes (1998) but amendment insignificant.

- 26 n.52 for proposition that state board regulations are regulations that “implement, interpret, or prescribe law or policy.

None. Statute merely requires that state board regulations be published in the administrative code.


Addendum - 22

Citation Subject of Statute or Regulation

Amended/Enacted since Stewart?

Cited by Appellant : page # and purpose


Ala. Code § 16-1-8.1(b)(7)

Classroom instructional support

Yes- enacted 1997


None. Requires each local board to adopt policies and procedures to insure that each teacher receives his or her full allocated amount for classroom instructional support in conjunction with the approved budget in a timely manner after each order is placed.

Ala. Code § 16-1-18.1

Education-General Provisions

Yes-enacted 1994 -42 n.128 for proposition that state controls local benefits.

None. Regulates for the accrual of sick leave and when it may be taken.

Ala. Code § 16-1-24.1

Safe School and drug free policy

Yes- enacted 1991

- 27 n.53 for proposition that state requires local boards to adopt policies on particular subjects -43 n.130 for proposition that state controls school safety and discipline.

None. Requires school policies that ensure a safe school environment free of illegal drugs, alcohol, and weapons.

Ala. Code § 16-1-24.2

Education General Provisions

Yes- enacted 1994

-41 n.119 for proposition that state controls instruction at local schools.

None. Requires the department of education to develop a statewide violence protection program. It does not appear to be limited to public schools and it does not seem to be regulating instruction.


Addendum - 23





Ala. Code § 16-1-24.3

Expulsion of students possessing firearms

Yes- enacted 1995


None. Requires city and county boards to develop and implement local policies and procedures requiring the expulsion of students.

Ala. Code § 16-1-33

Written Reduction in Force Policy

Yes- enacted 1997


None. Requires local school board to adopt RIF policies; does not mandate particular RIF policy.

Ala. Code § 16-1-40

Education Trust Fund Proration Relief

Yes – enacted 2009

-33 n.88 for proposition that any deviation from an approved flexibility plan in the event of proration triggers automatic revocation and immediate “state intervention”

None. Provision only applies in cases where the governor has declared proration and the local school board has submitted a flexibility plan to the State Superintendent

Ala. Code § 16-1-41

Training for local school board members

Yes- enacted 2009


None. Requires local boards to adopt policies for “the orientation and ongoing training of members of its local board of education.”

2012 Alabama Laws Act 2012-221

Yes- enacted 2012

-43 n.131 for proposition that state controls school governance.

None. The act also provides: “A local board of education is the legally constituted body that governs a local school system, promotes student


Addendum - 24





(H.B. 431) (Ala. Code § 16-1-41.1)

learning, and prepares students to be college and career ready.” 2012 Alabama Laws Act 2012-221 § 1.

Ala. Code § 16-1-44

Education- General Provisions

Yes-enacted 2009 -43 n.130 for proposition that state controls school safety and discipline.

None. Requires school boards to adopt comprehensive school safety plans.

Ala. Code § 16-3-17.3

Education – State Board

Yes- enacted in 1991

-42 n.123 for proposition that state controls the school calendar.

None. he statute provides: “It is the intent of the Legislature that local school systems be permitted to develop flexible school terms extending over the course of the 12 month calendar year.”

Ala. Code § 16-6B-1

Education Accountability Plan

Yes- enacted 1995

-27 n. 56 for proposition that the state board assumes direct managerial responsibility for the day-to-day operation of local boards of education

None. Purpose of the statute is to encourage the state board to assist local boards in the development of strong disciplinary policy and direct the state board to develop a program to monitor student achievement.


Addendum - 25







Yes- Enacted in 1995

- 28 n.58 for proposition that state regulates curriculum content -41 n.115 for proposition that state controls the curriculum of local schools. -41 n.119 for proposition that state controls instruction at local schools. -42 n.120 for proposition that state controls graduation requirements at local schools. -43 n.131 for proposition that state retains ultimate authority over what is taught in public schools.

None. Statute gives the State Board of Education authority to adopt a common core for K-12 that meets certain minimum requirements. Although this statute setting out a core curriculum for Alabama public schools was enacted after Stewart, the state was already involved in influencing curriculum before Stewart was decided. See Ala. Code § 16-35-4, 16-40-1, 16-41-7.


Addendum - 26





Ala. Code § 16-6B-3 to 16-6B-5


Yes- enacted 1995

-27 n. 56 for proposition that the state board assumes direct managerial responsibility for the day-to-day operation of local boards of education -29 n. 66 for proposition that the state board regulates school safety

None. Statute does not support Appellant’s statement. State only intervenes under certain narrow circumstances.



Yes- enacted 1995

-43 n.130 for proposition that state controls school safety and discipline.

None. Relates to school safety and discipline accountability.

Education Accountability and Intervention Act of 2013 (Ala. Code §§ 16-6E-1 to 16-6E-7)

School Fiscal Accountability


-38 for proposition that even more comprehensive and unqualified authority to exercise direct control over virtually all school board operations was granted to the state board and state superintendent by the 2013 Act

None. Statute grants the State authority to intervene and control local boards only “when the demonstrated inability of such boards of education to discharge administrative, operational, or instructional functions threatens to deprive students of essential educational services.” Ala. Code § 16-6E-2; see also id. § 16-6E-4 (providing the terms and condition of when the state may assume general and direct control over all decision making and operation function of a local board).


Addendum - 27





Ala. Code § 16-13-231 (sometimes cited as 2012 Alabama Laws Act 2012-482 (H.B. 360))

Foundation Program Fund

Yes- enacted 1995

- 32 n.79 for proposition that legislatively appropriated funds provide primary financial support for various school expenses - 32 n.79 for proposition that local board’s eligibility for funding is conditioned on compliance with several requirements - 38 n. 106 for proposition that payroll costs is dictated by the state through statutorily prescribed minimum salary schedules. -42 n.122 for proposition that state controls the length of the school term. -42 n.123 for proposition that state controls the school calendar. -42 n.127 for proposition that state controls local compensation.

None. “It is important to note that the Foundation Program is not a ‘state’ program. Rather, it is a state-local partnership that should provide the funds needed for schools to operate.” School Superintendents of Alabama, A Primer on the Foundation Program and School Funding in Alabama (Feb. 2011), available at http://www.aasa.org/uploadedFiles/Policy_and_Advocacy/files/Primerrevised.doc. -The fact that local boards have to meet certain requirements to participate in the fund suggests their autonomy.


http://www.aasa.org/uploadedFiles/Policy_and_Advocacy/files/Primerrevised.doc



Addendum - 28





Ala. Code § 16-13-231.1

School Finances

Yes- enacted 1997


None. Requires local boards to adopt a local salary schedule which at least meets the state’s minimum salary schedule

Ala. Code § 16-13-281

School Finances – Teacher Salaries

Yes- enacted 2010

-42 n.127 for proposition that state controls local compensation.

None. Requires that average salaries for teachers be increased to the national average.

Ala. Code § 16-13-300

School Finances Warrants

Yes- enacted 2011

-34 n. 89 for proposition that recent legislation has streamlined the process of issuing school warrants and has also strengthened the role of the state superintendent in reviewing and approving all forms of borrowing

None. Gives local boards of education the power to sell warrants so long as they get the prior written approval of the state superintendent.


Addendum - 29







Yes- enacted 2006

- 27 n.53 for proposition that state requires local boards to adopt policies on particular subjects -37 n.103 for proposition that local boards must adopt fiscal management policies

None. Requires local boards of education, upon the recommendation of the local superintendent of education, to adopt fiscal management policies

Ala. Code §§ 16-13A-1 to 16-13A-13


Yes- enacted 2006

-35 n.95 for proposition that legislature adopted new “school fiscal accountability” legislation in 2006 -39 n.109 for proposition that state board may withhold legislatively appropriated funds for city or county boards if the city or county board fails to furnish or maintain information and file reports or records required by the state board

None. And does not support proposition. Statue does not address the withholding of information. It also does not list all of the requirements listed. Section 16-13A-6 provides that “[i]f a local school system's financial report is found to be in conflict with generally accepted accounting principles, the State Department of Education shall issue a notice to that school system informing it of such and request that proof of correction of conflict be forwarded to the State Department of Education and approved by the State Superintendent of Education within a reasonable time thereafter.”


Addendum - 30







Yes-enacted 2006 -36 n.96 for proposition that state superintendent is responsible for overseeing the financial integrity of the local boards of education and shall appoint a Chief Financial Education Officer

None.



Yes-enacted 2006 -36 n.97 for proposition that local superintendents must attend training and pass competency test in finance, law, and instruction

None.



Yes –enacted 2006

-36 n.98 for proposition that the new legislation requires the appointment of a chief school financial officer for each school system to perform statutory prescribed duties and to meet certification criteria established by the state board

None. Statute provides that the local board of education, in consultation with the local superintendent, shall appoint a chief school financial officer. It provides that the CFSCO will be an employee of the local board.


Addendum - 31







Yes –enacted 2006

-36 n.99 for proposition that the state board must establish a uniform and standardized system of financial accounting for all local boards that is to be designed, inter alia, for “ease of monitoring by the State Department of Education. - 43 n.131 for proposition that state retains ultimate authority over how things are bought in public schools.

None. Statute says the program is to “collect the information required by this chapter and to provide for ease of input by local boards of education and ease of monitoring by a local board of education, its chief school financial officer, and the State Department of Education.”


Addendum - 32







Yes- enacted 2006

-35 n.93 for proposition that local boards are subject to audit by the State Examiners of Public Accounts or independent auditors and responsible board officials are subject to sanctions resulting from adverse findings -35 n.94 for proposition that local boards are subject to legal compliance audits and remediation requirements -37 n.101 for proposition that financial and legal compliance audits are to be conducted “in the same manner as audits are performed on other agencies and departments of the State of Alabama

None. Statute requires yearly audits of local school boards. The statute also gives local boards the power to request an audit of any school or any school system under its control unilaterally. The statute also gives local boards the power to request an audit of their own system. The repayment requirements and sanctions are provided for in the next statute, Ala. Code § 41-5-22.


Addendum - 33







Yes- enacted 2006


None. Statute requires that local board policy grant local superintendents of education the power to expend funds without prior approval of the local board.



Yes- enacted 2006

- 33 n.86 for proposition that if projected revenues fall below amounts appropriated for the public schools, school system funding is subject to reduction upon a declaration of “proration” by the Governor -37 n.102 for proposition that all boards of education are required to maintain a reserve fund equal to a minimum of one month’s operating expenses

None. The statute does not seem to support the proposition for which it is cited. This statute provides that local boards of education must maintain a minimum reserve fund equal to one month’s operating expenses which may be used if the Governor declares proration or if there is a decrease in funds appropriated by the Legislature from one year to the next.


Competitive Bidding

Yes- enacted 2009

-43 n.131 for proposition that state retains ultimate authority over how things are bought in public schools.

None.


Addendum - 34





Ala. Code § 16-22-10 to 16-22-12

Education – Officers and Employees Generally

Yes- enacted 1993, 1996


None. Merely regulates minimum salaries.

Ala. Code § 16-22-16

Education- Officer and Employee generally

Yes- enacted 1998


None. Merely regulates minimum salaries.

Ala. Code § 16-22-18

Education- Officer and Employee generally

Yes- enacted 2006


None. Merely requires annual stipend or supplement required for certified counselors.

Ala. Code § 16-24B-1, et seq.

Teacher Accountability Act

Yes- enacted 2000

-43 n.129 for proposition that state controls local administration.

None.

Ala. Code § 16-24C-1, et seq.

Students First Act

Yes- Enacted 2011

-43 n.129 for proposition that state controls local administration.

None. One of the items listed under legislative intent is to “Restor[e] primary authority and responsibility for maintaining a competent educational workforce to employers covered by this chapter [i.e., local school boards].” Ala. Code § 16-24C-2(2)


Addendum - 35






Public Education Employees Health Insurance

Yes- amended in 1995, 2003, 2004

- 38 n.107 for proposition that local boards must contribute to state sponsored teacher retirement and health insurance programs

None.

Ala. Code § 16-28-12

School Attendance

Yes- amended 1993, 1994


None. Subsection (b), requiring local school districts to write policies, was added in 1993 amendments.


School Discipline

Yes- enacted 1995


None. Gives teachers authority and immunity to use “appropriate means of discipline up to and including corporal punishment as may be prescribed by the local board of education.” There is no affirmative requirement that local school boards to adopt a particular policy. This section only requires school boards to each teacher who exercises his or her authority consistent with local policy.


Addendum - 36






School Discipline

Yes- enacted 1995


None. Provides that the State Board shall require each local board of education to develop a written policy on student discipline and behavior and to broadly disseminate them following its adoption.

Ala. Code § 16-28B-1 to 16-28B-9

Student Harassment Prevention Act

Yes- enacted 2008


None. Requires local school systems to adopt certain procedures and policies to prevent and address student harassment. The state board’s role is to develop model policies, while it is ultimately the local school districts role to adopt its own policies to carry out the meaning of the act.

Ala. Code § 16-28-41

School Attendance



None. Does not actually affirmatively require local school systems to adopt policies. Requires state board to distribute written guidelines to help with developing local policy regarding the conditioning of driving privileges on school attendance. Only requires the school system to give adequate written information to each student concerning the guidelines and the conditioning of driving privileges on attendance.


Addendum - 37






School Discipline

Yes-enacted 1995 -43 n.130 for proposition that state controls school safety and discipline.

None. Requires school boards to develop written policies on discipline and behavior

Ala. Code § 16-36-60

State Textbook Committee

Yes- enacted 1998

-28 n.57 for proposition that state regulates textbook selection -41 n.116 for proposition that state controls the textbook selection of local schools.

None.

Ala. Code § 16-36-62

Textbooks Yes- enacted 1998


None.

Ala. Code § 16-36-60 et seq.

Textbooks Yes- enacted 1998

None.


Education of Exceptional Children

Yes- amended 1995

-43 n.131 for proposition that state retains ultimate authority over what is taught in public schools.

None.


Sex Education Yes-enacted 1992 -41 n.119 for proposition that state controls instruction at local schools.

None. Includes certain requirements for the contents of sex education classes


CERTIFICATE OF COMPLIANCE

1. I hereby certify that the foregoing Brief of Plaintiff-Appellee complies

with the type-volume limitation of Fed R. App. P. 28.1(e)(2)(B)(i), as modified by

this Court’s Order of December 30, 2013, because it contains 18,478 words,

including the Addendum and excluding those portions exempted by Fed R. App. P.

32(a)(7).

2. This petition complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared using Microsoft Word in a proportionally spaced typeface

2007 and 14-point Times New Roman font.

/s/ Philip A. Hostak Philip A. Hostak


CERTIFICATE OF SERVICE

I hereby certify that on March 14, 2014, I electronically filed the foregoing

Brief with the Clerk of the Court by using the CM/ECF system. I further certify

that on March 14, 2014, I sent a copy of the foregoing Brief by overnight delivery

to the following counsel of record who is not registered with this Court’s CM/ECF

system:

Jayne Harrell Williams Hill, Hill, Carter, Franco, Cole & Black, P.C. Post Office Box 116 Montgomery, AL 36101-0116 /s/ Philip A. Hostak Philip A. Hostak


NEA Brief - Weaver 11th Amendment

Documents

Transcript of NEA Brief - Weaver 11th Amendment