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
still@votelaw.com

Kathryn S. Piscitelli
P.O. Box 691166
Orlando, FL 32869-1166
Telephone: (407) 491-0143
kpiscitelli1@cfl.rr.com

Alice OBrien
Philip A. Hostak
NATIONAL EDUCATION
ASSOCIATION
1201 16th Street, NW, Suite 820
Washington, DC 20036
Telephone: (202) 822-7035
aobrien@nea.org
phostak@nea.org

Attorneys for Michael Weaver
Case: 13-14624 Date Filed: 03/14/2014 Page: 1 of 115
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. OBrien, 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 Congresss 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 Courts decision in Stewart v. Baldwin County Board
of Education followed the Supreme Courts 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
Courts decision in Stewart. ..................................................... 23

(a) Federal law governing the arm-of-the-State
inquiry has not changed in any way that
undermines Stewarts force as binding precedent. ........ 23

(b) State law relevant to the arm-of-the-State inquiry
has not changed in any way that undermines
Stewarts 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 Weavers 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-Coln 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. Appx 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 Courts 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 Congresss War
Powers.
STATEMENT OF THE CASE
1. Statement of Facts
1

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 Boards 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 Boards one-paragraph statement of factsapart 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,
Appellants Brief at 3is 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 Weavers 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 USERRAs 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 Congresss War Powers. (Doc 32 - Pg 24-37.)
The United States intervened in order to defend Congresss 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 Boards 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 USERRAs constitutionality be
avoided. (Doc 41 - Pg 1.)

4
On the District Courts referral, Magistrate Judge T. Michael Putnam issued
a thorough, 27-page report and recommendation explaining that that the Boards
motion to dismiss should be denied. (Doc 50.) Judge Putnams report and
recommendation reasoned that binding circuit precedentnamely, 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 decisions 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 Boards non-
existent Eleventh Amendment immunity. On August 14, 2013, District Judge
Virginia Emerson Hopkins approved Judge Putnams report and recommendation
and denied the Boards 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 Courts decision is reviewed de novo. See
United States v. Ala. Dept 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 Courts decision in Stewart, which followed the Supreme Courts
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 autonomygiven 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 Boards contention that Stewart was wrongly decided fails at the threshold,
even if it is assumed that the Boards contention is accurate, because this Circuits
prior precedent rule prohibits a panel of this Court from overruling an earlier, on-
point panel decision. And the Boards 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 Boards contention that intervening changes in federal and state law
have abrogated Stewart is equally meritless. There is no support for the Boards
assertion that this Court no longer looks to an entitys 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 Courts test to this day. Nor is there any substance
to the Boards 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 Courts 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 entitys 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 Boards 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 Courts task to
sift through the Boards 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 Boards 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 Congresss War Powers, which, properly
understood in light of the history of the War Powers Clauses 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 Weavers 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
Congresss 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 Boards 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 Courts 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 Boards brief ends, but where any cogent
analysis of the issue should commencewith this Courts on-point precedent
demonstrating in Part I.A below that the Boards appeal is foreclosed by this
Courts 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 decisions 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 entitiesthat
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] Courts 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] Courts 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 States 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 States purse as the most salient factor in making
arm-of-the-State determinations. Hess, 513 U.S. at 48.
2. This Courts decision in Stewart v. Baldwin County Board of
Education followed the Supreme Courts 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 States 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. Healthys 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 boards 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
entitys fiscal autonomyi.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 boards 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 boards 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 boards 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 Courts
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 Stewarts 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
Stewarts 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 Boards

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 herecontrol over
such day-to-day personnel matters as employee assignmentsis considered. We
address this point more fully at pp. 34-37 below.

20
only acknowledgment ofand only attempt to blunt the force ofStewarts 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 Boards discussion: In the first, the Board
asserts in a conclusory fashion that Stewart was wrongly decided. See Appellants
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 Boards 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 panels
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
panels decision] is wrong, United States v. Steele, 147 F.3d 1316, 1317-18 (11th
Cir. 1998) (en banc). Thus, the Boards contention that the panel decided Stewart
in erroreither 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, Appellants Brief at 64-65is 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 Boards brief is quite long on
conclusory and overheated charges but remarkably short on specifics. See
Appellants 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. Appellants 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 courts 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
Boards assertion that it was wrongly decided is not only ineffective under the
prior precedent rule but unsupportedand unsupportableas well. Consequently,
Stewart remains binding, and hence dispositive of this appeal.

4
Likewise substance-free is the Boards rather puzzling charge that the Stewart
court improperly relied on circuit court decisions applying other states laws.
Appellants 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
Alabamas statutes, as is implied at p. 71 of Appellants 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
Alabamas 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 Courts
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 Stewarts 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 Courts 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 entitys source of funding and the potential exposure of the States treasury

24
have vanished completely and the entitys 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 entitys funding and whether a
judgment against the entity would be satisfied with state fundsare no longer
relevant to the arm-of-the-State inquiry. See Appellants 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 Stewarts 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 Boards position is that it runs headlong into the
Supreme Courts 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 States
treasury, id. at 48, cited with approval seven court of appeals cases that
recognized the vulnerability of the States 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 Hesss 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. Appellants 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 Amendments 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 Courts 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 Amendmenta
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 Amendments 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
Amendmenti.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 suitare reflected in that courts 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 States 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 Circuits 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 entitys concernswhether local or statewidewith
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 Boards contention that this Courts
post-Stewart decisions have jettisoned any inquiry as to an entitys source of funds
and into whether a judgment would be paid from the States 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 entitys fiscal autonomyi.e., where the entity derives its funds and who is
responsible for judgments against the entity. 908 F.2d at 1510. In subsequent
decisionse.g., Miccosukee Tribe of Indians of Fla. v. Fla. State Athletic Commn,
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 Boards argument. Rather, the Court left the operative language
of the test the same, but split the last factor from Stewarts 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 Boards assertions that this Court no longer
asks who pays the judgment or inquires into the source of funds, Appellants
Brief at 9, or that federal law can no longer be reconciled with Stewarts
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 Courts 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 Courts arm-of-
the-State analysis, the Board at the same time distorts the first factorhow the
state defines the entity, Manders, 338 F.3d at 1309by conflating it with the
question whether the States courts consider the entity immune as a matter of state
law and urging that this Courts post-Stewart decisions now treat such state-law
immunity determinations as all but controlling, Appellants 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 Courts precedent. In Abusaid v. Hillsborough
County Board of Commissioners, 405 F.3d 1298, 1314 (11th Cir. 2005), this Court
rejected a countys 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 Courts post-Stewart case law is thus entirely consistent with Stewarts
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 courts determination that an entity was entitled to state-law
immunity, by itself, to conclusively resolve the question of the entitys immunity

31
under the Eleventh Amendment. Appellants 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 Courts decision.
In Versiglio I, this Court applied this Courts four-factor arm-of-the-State
test and concluded that all of the factors strongly supported the defendant boards
claim to be an arm of the State except onehow 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 [defendants] 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 courts conclusion that the board was not
entitled to state-law immunity, but instead was moved by the state courts
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 Courts 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
[defendants] 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 Stewartor of any of the myriad other decisions from this Court
applying the four-factor arm-of-the-State testin favor of a one-factor test that
assigns, in the Boards words, controlling significance to state-court conclusions
concerning state-law immunity.
Indeed, while the Boards brief is something of a paean to state-court
conclusions regarding state-law immunitywhich this Court, in both Stewart and
Abusaid, has held irrelevant to Eleventh Amendment immunityit is telling that
the Board balks (Appellants Brief at 79-80) at crediting the Alabama Supreme
Courts 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 Courts
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 courts 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 Courts arm-of-the-State cases simply leave no room for the
Boards contention that this Court has somehow repudiated the Stewart decisions
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 Courts
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 (Appellants 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 Courts approach
to the arm-of-the-State inquiry has been refined since this Court decided Stewart.
But this post-Stewart refinement of the inquirywhich the Board does not
mentionin 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 appliedwhich alone puts paid to the notion that it
represents a break from Stewartit bears noting that, contrary to the Boards
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 themincluding, notably the
fact that the state would be regarded as the judgment debtor for the college, 421
F.3d at 1194favored 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
entitys] 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. Commrs, 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 boards function as an employerits personnel
function. More specifically, the function at issue is the Boards 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
matterssuch as hiring and firing employees, setting employee salaries, and
making employee assignments and transfersare, 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 particularthe position that Weaver holdsthe 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 Courts 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 Boards function as an employer in hiring, assigning duties to,
and determining the pay of its employees, as this Courts 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 (Appellants
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 Stewarts 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 Boards heavy
reliance on the Alabama Supreme Courts 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 (Appellants Brief at 14-24) is fruitless. Hale

38
County extended state-law immunitywhich had previously applied only to tort
actionsto 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 boards
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 Courts
analysis in Stewart such that it is no longer binding. Appellants Brief at 65-67.
This contention, too, is meritless.
Although the Boards 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
(Appellants Brief at 65), nowhere in the Boards brief does it specifically identify
the statutory changes on which it relies for this contention. Neither in the section
at the end of the Boards brief where it first makes this rather consequential claim
9

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 educationwill carry all this freight. As it is not this Courts task to
sift through the hundreds of statutory citations throughout the Boards sprawling
submission in an effort to guess at which particular statutes the Board might have
in mind, this is reason enough to reject the Boards 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. Appellants 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 partys
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 Addendums
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 Boards 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 States 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, Appellants Brief at 27 & n.55, but the
statute defines the Superintendents 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 provisions
authority, which makes clear that the State Superintendents 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 boards 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 narrowand gravecircumstances defined in the statute.
Appellants 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
basisfor 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 Courts 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 Courts 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
Courts 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 Congresss 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 Weavers
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 Acts
purposes are military relatedto 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 Acts
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
43124314, 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.
Congresss 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 Congresss 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 Constitutions 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 Constitutions 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 Congresss 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 Constitutions 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 Constitutions 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
Congresss 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 Congresss 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
Congresss War Powers. See, e.g., Lichter v. United States, 334 U.S. 742, 781
(1948) ([Congresss 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
(Congresss war powers are plenary and exclusive).
Lichters pronouncement that no amendment to the Constitution can impair
or destroy Congresss War Powers is particularly significant. It shows the Court
considers the Eleventh Amendment inapplicable to Congresss 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 Congresss authority under the War Powers, the
states enjoyed no immunity from Congresss War Powers in the design of the
Constitution. Therefore, states cannot validly claim sovereign immunity from
private suits to enforce laws enacted under Congresss War Powers, including
USERRA.
C. Congress validly exercised its War Powers in authorizing private
suits against states under USERRA.
USERRAs authorization for private suits against states is a valid exercise of
Congresss 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 Congresss power to raise armies. Peel v. Fla. Dept 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 USERRAs predecessors, Peel and
Davis remain precedents for USERRA cases. See United States v. Ala. Dept 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 Congresss 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 Congresss 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 Tribes
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 Circuits 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 Weavers 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 Weavers 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, USERRAs text, rather than Eleventh Amendment arm-of-the-State
analysis, would govern jurisdiction over Weavers suit.
USERRAs text shows Section 4323(b)(3), not Section 4323(b)(2), applies
to Weavers 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 citys 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 Boards qualification as a political subdivision, the fact that the
Board, and not Alabama, is Weavers employer decisively renders 4323(b)(2)
inapplicable to Weavers 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. Weavers workplace is on Board, not state,
property. (Doc 32-1 - Pg 2.) The Boards superintendent, not the State, supervises
Weavers work. (Id. at 2-4.) The Board, not Alabama, sets and pays Weavers
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 Weavers 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 Weavers employer, and because the
Board is treated as a private employer under Section 4323(b)(3), Section
4323(b)(3) applies to Weavers 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 Weavers 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
Alabamas courts have no jurisdiction over such suits. Larkins v. Dept of Mental
Health & Mental Retardation, 806 So. 2d 358, 363-64 (Ala. 2001).
In amending USERRAs 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).
Congresss 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 USERRAs
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) USERRAs 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. Govt 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 USERRAs
provisions liberally, in favor of the service member.); Vega-Coln 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 Weavers claims.
CONCLUSION

For the foregoing reasons, the District Courts denial of the Boards motion
to dismiss should be affirmed.
Respectfully submitted,

Alice OBrien
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. Appx 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
aobrien@nea.org
phostak@nea.org

Kathryn S. Piscitelli
P.O. Box 691166
Orlando, FL 32869-1166
Phone: (407) 491-0143
kpiscitelli1@cfl.rr.com

Edward Still
130 Wildwood Parkway, STE 108
PMB 304
Birmingham, AL 35209
Phone: (205) 320-2882
still@votelaw.com

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

Stewart?
No. and purpose
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

Stewart?
No. and purpose
Ala. Code
16-3-19
State Board of
Education/Scho
ol 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

Stewart?
No. and purpose
Ala. Code
16-3-27
State
Superintendent
of Education
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
State Superintendent
explains the meanings of
education laws to local
school officials
power to interpret and
enforce state education law
state superintendent may
None.
Addendum - 5

Stewart?
No. and purpose
initiate proceeding to any
person appointed under the
Education Code for cause
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.
state regulates allocation of
state funds to city board
None.
Addendum - 6

Stewart?
No. and purpose
Ala. Code
16-4-7
State
Superintendent
of Education
superintendents duty
includes examining local
school systems expenditures
and supervising their
business methods
None.
Addendum - 7

Stewart?
No. and purpose
Ala. Code
16-4-8
State
Superintendent
power to investigate, review,
or set aside actions of local
education authorities
None. The State Superintendents
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

Stewart?
No. and purpose
Ala. Code
16-4-10
State
Superintendent
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
State
Superintendent
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

Stewart?
No. and purpose
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.
subjects
None..
Ala. Code
16-9-22
County
Superintendent
of Education
Responsibilities
subjects
None. Statute concerns county
superintendents duty and authority to
grade and standardize public schools
of his/her county
Addendum - 10

Stewart?
No. and purpose
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
federal grants.
None.
Addendum - 11

Stewart?
No. and purpose
Ala. Code
16-13-6
School Finances No -35 n.92 for proposition that
federal grants.
None.
Addendum - 12

Stewart?
No. and purpose
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 boards
annual budgeting
meeting which
weighs in favor
of the boards
autonomy.
local school systems
budgeting process is subject
to detailed requirements
promulgated by the State
Department of Education
local boards may borrow
money, but only in
accordance with statutory
restrictions
None.
Ala. Code
16-13-
140 to 16-
13-144
School Finances
Budget
System
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 boards
annual budgeting. The amendments
also require the state board to prepare
proposed annual budget forms.
Addendum - 13

Stewart?
No. and purpose
Ala. Code
16-13-
144
School Finances
Budget
System
Yes (1995, 1996)
but amendments
insignificant.
local budgets may not
exceed projected revenues
for the budget year
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

Stewart?
No. and purpose
Ala. Code
16-13-
145
School
Finances-
Budget System
Yes ( 1995) but
amendments
insignificant.
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

Stewart?
No. and purpose
Ala. Code
16-22-6
Payroll
Deduction
Yes (2001) but
amendments
insignificant.
subjects
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
certification.
Requires state certification for
superintendents, assistant
superintendents, principals, teachers,
and attendance officers
Ala. Code
16-23-2
Teacher
Training and
Certification
certification.

Addendum - 16

Stewart?
No. and purpose
Ala. Code
16-23-3
Teacher
Training and
Certification
certification.

Ala. Code
16-23-5
Teacher
Training and
Certification
Yes (2010) but
amendments
insignificant.
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

Stewart?
No. and purpose
Ala. Code
16-25-1,
et seq.
Teacher
Retirement
System
Yes (1995, 2012)
but amendments
insignificant.
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 states
involvement here is nothing new.
Ala. Code
16-25-
21
Teachers
Retirement
System
Yes (1995, 1998,
2010, 2011,
2012) but
amendments
insignificant.
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

Stewart?
No. and purpose
Ala. Code
16-25A-
1
Public
Education
Employees
Health
Insurance
Yes (2004, 2011)
but amendments
insignificant.
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 Appellants citation, has not
changed significantly. Thus, the
Public Education Employees Health
Insurance is nothing new.
Ala. Code
16-27-1
Transportation
of Pupils
that state controls
transportation operations of
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
Transportation
of Pupils
that state controls
Provides for school bus safety
inspections by state
Addendum - 19

Stewart?
No. and purpose
Ala. Code
16-27-4
Transportation
of Pupils
that state controls
certification.
Provides for school bus driver
licensing
Ala. Code
16-27-5
Transportation
of Pupils
that state controls
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

Stewart?
No. and purpose
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 10
th
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
School Finances
Budget
System
No -32 n.81- for proposition that
local school budgets must be
annually submitted to and
approved by the state
superintendent of education
None.
Ala. Code
41-4-80,
et seq.
Budget &
Financial
Control Act
No -33 noting local boards are
subject to the Budget &
Financial Control Act
None.
Addendum - 21

Stewart?
No. and purpose
Ala. Code
41-5-22
Department of
Examiners of
Public
Accountants/Sc
hool Fiscal
Accountability
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.
Ala. Code
41-19-
10, et seq.

Budget
Management
Act
Yes (1992, 1995)
but amendments
insignificant.
-33 noting local boards are
subject to Budget
Management Act.
None.
Ala. Code
41-22-
3(9)

Administrative
Procedure
Yes (1998) but
amendment
insignificant.
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/Enact
ed since Stewart?
# and purpose
Ala. Code
16-1-
8.1(b)(7)
Classroom
instructional
support
Yes- enacted
1997
that state requires local
boards to adopt policies on
particular subjects
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
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
particular subjects
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
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-1-24.3
Expulsion of
students
possessing
firearms
Yes- enacted
1995
particular subjects
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
particular subjects
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
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
particular subjects
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
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
(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
None. Requires school boards to adopt
comprehensive school safety plans.
Ala. Code
16-3-17.3
Education
State Board
Yes- enacted in
1991
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-6B-2
Education
Accountability
Plan
Yes- Enacted in
1995
that state regulates
curriculum content
curriculum of local
schools.
that state controls
that state controls
graduation requirements at
local schools.
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-6B-3
to 16-6B-5
Education
Accountability
Plan
Yes- enacted
1995
assumes direct managerial
responsibility for the day-
to-day operation of local
boards of education
regulates school safety
None. Statute does not support
Appellants statement. State only
intervenes under certain narrow
circumstances.
Ala. Code
16-6B-5
Education
Accountability
Plan
Yes- enacted
1995
None. Relates to school safety and
discipline accountability.
Education
Accountabi
lity and
Interventio
n Act of
2013 (Ala.
Code
16-6E-1 to
16-6E-7)

School Fiscal
Accountability
Yes enacted
2013
-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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-13-
231
(sometimes
cited as
2012
Alabama
Laws Act
2012-482
(H.B. 360))
Foundation
Program Fund
Yes- enacted
1995
that legislatively
appropriated funds provide
primary financial support
for various school expenses
that local boards 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.
length of the school term.
school calendar.
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/Poli
cy_and_Advocacy/files/Primerrevised.
doc.
-The fact that local boards have to meet
certain requirements to participate in
the fund suggests their autonomy.

Addendum - 28

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-13-
231.1
School
Finances
Yes- enacted
1997
particular subjects
None. Requires local boards to adopt a
local salary schedule which at least
meets the states minimum salary
schedule
Ala. Code
16-13-
281
School
Finances
Teacher
Salaries
Yes- enacted
2010
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
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-13A-1
School Fiscal
Accountability
Yes- enacted
2006
particular subjects
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
School Fiscal
Accountability
Yes- enacted
2006
that legislature adopted
new school fiscal
accountability legislation
in 2006
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-13A-2
School Fiscal
Accountability
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.
Ala. Code
16-13A-3
School Fiscal
Accountability
that local superintendents
must attend training and
pass competency test in
finance, law, and
instruction
None.
Ala. Code
16-13A-4
School Fiscal
Accountability
Yes enacted
2006
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-13A-6
School Fiscal
Accountability
Yes enacted
2006
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.
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-13A-7
School Fiscal
Accountability
Yes- enacted
2006
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
that local boards are
subject to legal compliance
audits and remediation
requirements
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-13A-8
School Fiscal
Accountability
Yes- enacted
2006
particular subjects
None. Statute requires that local board
policy grant local superintendents of
education the power to expend funds
without prior approval of the local
board.
Ala. Code
16-13A-9

School Fiscal
Accountability
Yes- enacted
2006
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
that all boards of education
are required to maintain a
reserve fund equal to a
minimum of one months
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
months 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.
Ala. Code
16-13B-1
Competitive
Bidding
Yes- enacted
2009
authority over how things
are bought in public
schools.
None.

Addendum - 34

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-22-10
to 16-22-
12
Education
Officers and
Employees
Generally
Yes- enacted
1993, 1996
compensation.
None. Merely regulates minimum
salaries.
Ala. Code
16-22-16
Education-
Officer and
Employee
generally
Yes- enacted
1998
compensation.
None. Merely regulates minimum
salaries.
Ala. Code
16-22-18
Education-
Officer and
Employee
generally
Yes- enacted
2006
compensation.
None. Merely requires annual stipend
or supplement required for certified
counselors.
Ala. Code
16-24B-
1, et seq.
Teacher
Accountability
Act
Yes- enacted
2000
administration.
None.
Ala. Code
16-24C-
1, et seq.
Students First
Act
Yes- Enacted
2011
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-25A-8
Public
Education
Employees
Health
Insurance
Yes- amended in
1995, 2003, 2004
contribute to state
sponsored teacher
retirement and health
insurance programs
None.
Ala. Code
16-28-12
School
Attendance
Yes- amended
1993, 1994
particular subjects
None. Subsection (b), requiring local
school districts to write policies, was
added in 1993 amendments.
Ala. Code
16-28A-1
School
Discipline
Yes- enacted
1995
particular subjects
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-28A-3
School
Discipline
Yes- enacted
1995
particular subjects
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
particular subjects
None. Requires local school systems to
adopt certain procedures and policies to
prevent and address student
harassment. The state boards 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
Yes enacted
1993
particular subjects
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

Citation Subject of
Statute or
Regulation
Amended/Enact
ed since Stewart?
# and purpose
Ala. Code
16-28A-3
School
Discipline
None. Requires school boards to
develop written policies on discipline
and behavior
Ala. Code
16-36-60
State
Textbook
Committee
Yes- enacted
1998
that state regulates
textbook selection
textbook selection of local
schools.
None.
Ala. Code
16-36-62
Textbooks Yes- enacted
1998
particular subjects
None.
Ala. Code
16-36-60
et seq.
Textbooks Yes- enacted
1998
None.
Ala. Code
16-39-1,
et seq.
Education of
Exceptional
Children
Yes- amended
1995
authority over what is
taught in public schools.
None.
Ala. Code
16-40A-2
Sex Education Yes-enacted 1992 -41 n.119 for proposition
that state controls
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 Courts 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.

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 Courts CM/ECF
system:
Jayne Harrell Williams
Hill, Hill, Carter, Franco, Cole & Black, P.C.
Post Office Box 116
Montgomery, AL 36101-0116

Philip A. Hostak


NEA Brief - Weaver 11th Amendment

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