[00:00:00] Speaker 04:
25-4013.

[00:00:01] Speaker 04:
And I know I'm going to butcher the appellant's name, so I'll say it anyway.

[00:00:14] Speaker 04:
Simikowski versus Utah High School Activities Association, 25-4013.

[00:00:24] Speaker 04:
Council for Appellant, you can correct me on the name of pronunciation and then proceed, please.

[00:00:31] Speaker 02:
Sure, Your Honor.

[00:00:33] Speaker 02:
I think you are quite close.

[00:00:36] Speaker 02:
My understanding is that Zachary Schimkowski, but in any event, I'm Craig Perry and I represent the appellants and defendants below the Utah High School Activities Association and its Board of Directors.

[00:00:49] Speaker 02:
Now this case involved a high school sports and two students who are restricted from varsity competition.

[00:00:56] Speaker 02:
The emotion of the rush to let an Australian punter play one game led to a decision that the UHSAA was discriminating against foreigners.

[00:01:05] Speaker 02:
With no such finding by the district court, appellees nevertheless devoted entire sections of their brief to arguing that the rule emanates from xenophobic animus and fails rational basis review.

[00:01:17] Speaker 02:
The mere fact that appellees found such positions worthy of two sections of their brief perhaps tells us that even they think rational basis standard is the correct adjudication.

[00:01:27] Speaker 02:
And that is what the UHSAA seeks here.

[00:01:29] Speaker 02:
We ask the court to reverse the district court's decision and remand the case for further proceedings consistent with the appropriate standard of review.

[00:01:39] Speaker 00:
I'd like to- Just to clarify, if we think that the district court

[00:01:44] Speaker 00:
incorrectly applied strict scrutiny, but should have applied intermediate scrutiny, you lose.

[00:01:53] Speaker 00:
Because your position is only rational basis can we support.

[00:01:59] Speaker 02:
Well, our position is the rational basis is correct.

[00:02:04] Speaker 00:
Now the court... I'm asking if we disagree with that, what is the result?

[00:02:09] Speaker 02:
Well, if you would agree that strict scrutiny applies, then I think you just affirm the lower court.

[00:02:16] Speaker 00:
What about intermediate scrutiny?

[00:02:18] Speaker 02:
Yeah, it's a little bit more complicated because the court held that it applied strict scrutiny, and that's what it said.

[00:02:26] Speaker 00:
I understand.

[00:02:26] Speaker 02:
And there was also statements that said the record does not show that the rule survives heightened scrutiny, but alone strict scrutiny.

[00:02:36] Speaker 00:
So I'm just asking I read your brief is just basically arguing only that you survive only if we agree with you that it's a rational basis standard.

[00:02:48] Speaker 02:
I think even if you were to.

[00:02:51] Speaker 02:
apply a heightened scrutiny, an intermediate, that it should still be remanded because I think it was more in passing and dicta that the court said, I don't even think it would be intermediate.

[00:03:03] Speaker 02:
So I still think the court should make findings that say this fails intermediate.

[00:03:08] Speaker 02:
But clearly, if you feel strict scrutiny is appropriate, then that's the end of the story.

[00:03:13] Speaker 02:
I understand.

[00:03:13] Speaker 04:
And by court making findings, you're talking about the district court, right?

[00:03:17] Speaker 02:
Yes, yes.

[00:03:18] Speaker 02:
All we're asking this court to do is determine the level of scrutiny and determine whether or not it violates, and we're asking that it does not violate, it's not preempted, it doesn't violate the Supremacy Clause.

[00:03:32] Speaker 02:
And so I think first I'll turn to the Supremacy Clause and just give you an overview of our arguments there.

[00:03:38] Speaker 02:
The lower court and appellee's almost exclusive reliance on one sentence from the De Canis and Toll case, that any state enactment that imposes a burden on aliens not contemplated by Congress is preempted, is misplaced.

[00:03:54] Speaker 02:
Neither of those cases purports to create a new category of preemption, what appellees seem to call the additional burden.

[00:04:02] Speaker 02:
Indeed, the analysis of both of those cases framed the additional burden analysis in terms of a conflict between state and federal law, which, as the Court knows, along with express preemption and filled preemption, are the three types of preemption recognized by the Supreme Court in this circuit.

[00:04:20] Speaker 02:
No case, neither toll nor decanis, that includes that statement they rely on, concludes its analysis with a simple determination of whether state statutes constitute an additional burden.

[00:04:35] Speaker 02:
So this is a conflict preemption case.

[00:04:37] Speaker 02:
And as this court held in the Choate case in 2000, conflict preemptions are where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to accomplishment and execution of the full purpose and objectives of Congress.

[00:04:58] Speaker 02:
And this court continued in that case, conflict preemption requires that the state or local action be a material impediment to the federal action or thwart the federal policy in a material way.

[00:05:12] Speaker 02:
Now, a law affecting F-1 visa students' participation in the extracurricular activity of varsity sports does not conflict with federal law.

[00:05:23] Speaker 02:
Federal law on F-1 visa holders says nothing about participating in extracurricular activities.

[00:05:29] Speaker 02:
Rather, an F-1 visa provides non-immigrant aliens the right to temporarily enter this country solely for the purpose of pursuing a full course of study, which the regulations define as study in a curriculum to consist of class attendance for a number of weeks to make normal progress towards graduation.

[00:05:49] Speaker 02:
And the ordinary meaning of curriculum is the course is offered by an educational institution.

[00:05:56] Speaker 02:
Participation in extracurricular activities, including varsity athletics, is simply not part of the congressionally defined course of study.

[00:06:05] Speaker 02:
The word extracurricular itself denotes that it is outside the curriculum.

[00:06:11] Speaker 02:
The second point is on equal protection.

[00:06:14] Speaker 02:
In the last summer's holding by the Supreme Court in Skirmetty, I believe, ends the discussion about whether F-1 visa rule classifies on the basis of alienage and is therefore subject to strict or heightened scrutiny.

[00:06:28] Speaker 02:
The UHSAA rule classifies on the basis of visa status, not alienage.

[00:06:33] Speaker 01:
Well, isn't that just trying to play with the words?

[00:06:39] Speaker 02:
No, it's not because it's... Come on.

[00:06:44] Speaker 01:
F1 is only for aliens, and the educational experience clearly includes extracurricular activities, whether it's specifically said or not.

[00:07:00] Speaker 01:
And to say that we're going to keep all foreigners out of here who have F1 visas,

[00:07:07] Speaker 01:
is clearly, as one of your coaches said, I want to be able to read the names of the players.

[00:07:15] Speaker 01:
That was the big problem.

[00:07:18] Speaker 02:
Well, two things.

[00:07:22] Speaker 02:
One is in Scrimetti, as this court knows, the only people affected by the law were transgender youth.

[00:07:32] Speaker 01:
Not even closely analogous.

[00:07:35] Speaker 02:
But in this case, the only people offended, excuse me, the only people affected by the law are aliens.

[00:07:43] Speaker 01:
Foreign aliens.

[00:07:45] Speaker 02:
F1 visa students.

[00:07:47] Speaker 02:
That's right.

[00:07:50] Speaker 02:
And in the Gale Doug case from California, the only people affected by the law were women.

[00:07:56] Speaker 02:
But the court in Geldudig and the court in Skrimeti said that because there's not an identity of interest, in other words, in the California welfare case that denied welfare benefits to certain pregnancy conditions, the court said that the law created two classes of individuals, pregnant persons and non-pregnant persons.

[00:08:22] Speaker 02:
And because women were in both groups, it was not a law targeting women and therefore rational basis applied.

[00:08:30] Speaker 02:
In Skirmetti, even though the law affected only transgender individuals,

[00:08:37] Speaker 02:
there was transgender individuals seeking certain types of puberty blockers, and then there were all other people.

[00:08:46] Speaker 02:
And transgender people fell on both sides of the law, therefore there was no identity of interest, and therefore it did not classify on the basis of sex.

[00:08:56] Speaker 02:
In our case, you have one group that is F1 visa students, and the other group is all other foreign students.

[00:09:04] Speaker 02:
J1s, H1s, everyone else is not affected by the rule.

[00:09:09] Speaker 02:
So you have aliens in both classifications.

[00:09:13] Speaker 02:
And under the Supreme Court holding, the conclusion of that is that the law does not classify on the basis of race, on alienage, excuse me.

[00:09:23] Speaker 01:
As far as I'm concerned, you're taking on the high school students and you're saying that

[00:09:31] Speaker 01:
Because you're from out of the country and you're here on an F1 visa and you kick good field goals, we're going to prevent you from playing.

[00:09:41] Speaker 01:
To boil it right down to the nitty gritty.

[00:09:44] Speaker 01:
Well, that might kick.

[00:09:47] Speaker 01:
It's not a field goal kick, it's on both sides.

[00:09:51] Speaker 02:
I'm sorry.

[00:09:52] Speaker 02:
I understand what you're saying, but to me that just gets to the analysis.

[00:09:57] Speaker 02:
Is there a rational basis for this?

[00:10:00] Speaker 02:
Is there racial animus?

[00:10:01] Speaker 01:
That's the rational basis, is that you want to win more games without foreign students on the other team.

[00:10:12] Speaker 02:
No, because there are many types of foreign students that this rule doesn't even affect.

[00:10:17] Speaker 01:
Oh yeah, those that don't play any sports.

[00:10:20] Speaker 02:
No, this rule affects only one type of visa holder that is particularly susceptible to being recruited.

[00:10:30] Speaker 04:
And so concisely tell us what the rational basis is for this law.

[00:10:37] Speaker 02:
The rational basis is that part of the association's goal for the past hundred years is to create a level playing field and equal opportunities for people to play.

[00:10:51] Speaker 02:
F1 visas, because they allow a school to reach out to a foreign individual,

[00:11:00] Speaker 02:
entice him to come to the school and immediately play sports and play sports through the remainder of his career, make that situation susceptible to recruiting, whereas other students like H1s, J1s, and others, they can't be recruited because they can't pick their school.

[00:11:22] Speaker 04:
Why isn't it still, I thought I heard you refer to a level playing field.

[00:11:27] Speaker 04:
Why isn't it still a level playing field?

[00:11:29] Speaker 04:
Every school in Utah that's within the scope of your organization can recruit, right?

[00:11:35] Speaker 04:
Why can't they recruit like anybody else?

[00:11:38] Speaker 02:
Well, because recruiting is forbidden by our rules.

[00:11:40] Speaker 02:
So we're trying, this is an enforcement mechanism to try and ameliorate

[00:11:46] Speaker 02:
recruiting, but it's also a difference between private and public schools.

[00:11:50] Speaker 02:
Public schools can only have an F1 student attend for one year.

[00:11:55] Speaker 02:
Private schools can have them attend until graduation.

[00:11:58] Speaker 02:
And the other thing to keep in mind, this does not prevent them from playing sports.

[00:12:03] Speaker 02:
It just puts conditions on their varsity.

[00:12:07] Speaker 02:
Eligibility they can play a sub varsity most kids who go to high school don't have the opportunity to play varsity sports for one reason or another academic eligibility.

[00:12:19] Speaker 00:
Who are you trying to create a level playing field for?

[00:12:24] Speaker 00:
Well, it's just for all the non aliens.

[00:12:27] Speaker 02:
No, it's for them too, because like I said, the aliens are allowed to play.

[00:12:33] Speaker 02:
And in fact, J1 aliens have fewer restrictions than local students.

[00:12:39] Speaker 00:
If the schools are going to recruit, which I understand is prohibited, but you're suggesting that's what they're doing and you're trying to enforce it in this way,

[00:12:48] Speaker 00:
Don't they recruit?

[00:12:50] Speaker 00:
Don't private schools recruit all the time from out of state?

[00:12:53] Speaker 00:
They get somebody to come move into Utah and bring their family there.

[00:12:58] Speaker 00:
And then they've got some out of state folks that aren't Utahns either.

[00:13:04] Speaker 00:
I mean, I'm just wondering who it is you're trying to protect in this level playing field.

[00:13:08] Speaker 02:
Well, we're trying to, again, this is the rational basis analysis.

[00:13:14] Speaker 02:
I think this should be conducted by the district court, but- Are you trying to protect the public schools?

[00:13:19] Speaker 00:
We're trying to- Or private schools?

[00:13:20] Speaker 00:
Because private schools, if they're recruiting, I mean, they may be recruiting from a lot of places, not just F1 visas.

[00:13:29] Speaker 02:
They are, but it's a purpose, a goal of the association to minimize, to deter recruiting.

[00:13:38] Speaker 02:
To keep to be, I'm sorry, go ahead.

[00:13:41] Speaker 02:
No, to keep athletics in perspective and in regards to the other functions of.

[00:13:47] Speaker 00:
Of a high school to avoid my point is just how will this keep them from recruiting from.

[00:13:53] Speaker 00:
You know.

[00:13:55] Speaker 00:
Other states, other locations, even within this country, how would it possibly go to any other recruiting besides this recruiting?

[00:14:03] Speaker 02:
It doesn't.

[00:14:05] Speaker 02:
It addresses any type of recruiting.

[00:14:07] Speaker 00:
How does it really create a level playing field, which was the one interest that you cited or basis that you cited?

[00:14:13] Speaker 02:
Well, I don't have time to explain all the harms of recruiting.

[00:14:18] Speaker 02:
I mean, level playing field, I guess, is one, but it's also in the way these recruits are treated when they come here.

[00:14:25] Speaker 02:
There was evidence before the district court of their mistreatment that was acknowledged by both the judges.

[00:14:32] Speaker 00:
So rather than have mistreatment, you just won't let them play at all?

[00:14:37] Speaker 02:
No, they're allowed to play.

[00:14:39] Speaker 02:
There's just restrictions on them.

[00:14:41] Speaker 00:
Oh, but they can't be in tournaments and they have to get approval, right?

[00:14:44] Speaker 02:
They can't play at the varsity level.

[00:14:46] Speaker 02:
They can play at the sub-varsity level, or the school can choose to go independent as schools have chosen, or they can choose not to play in a state tournament.

[00:14:55] Speaker 02:
So it does restrict them, but it doesn't prevent them from playing.

[00:15:00] Speaker 04:
Mr. Perry, let me make sure I understand the relief that is being sought here.

[00:15:05] Speaker 04:
Beyond the preemption issue, let's say we find that this particular provision is not preempted.

[00:15:17] Speaker 04:
Beyond that issue, you would just seek our determination that this is not subject to strict scrutiny and then send it back to the district court.

[00:15:27] Speaker 04:
Is that right?

[00:15:29] Speaker 04:
Or should we?

[00:15:31] Speaker 02:
Go ahead.

[00:15:32] Speaker 02:
Seek a determination that is subject to rational basis.

[00:15:35] Speaker 04:
And rational basis and then send it back for the court to work out the rational basis analysis.

[00:15:41] Speaker 02:
Yeah, let them work out all these questions you're asking about whether it's whether it makes sense, whether there's other ways to do it to fit within the rational basis analysis.

[00:15:52] Speaker 02:
That's all we're asking this court to do.

[00:15:54] Speaker 02:
OK, I just want to be clear.

[00:15:55] Speaker 02:
Thank you.

[00:15:56] Speaker 02:
OK, thank you.

[00:15:59] Speaker 04:
We'll hear from Appleley.

[00:16:05] Speaker 04:
Please proceed.

[00:16:07] Speaker 03:
Thank you, Your Honors.

[00:16:09] Speaker 03:
May it please the court?

[00:16:11] Speaker 04:
Yeah, please go ahead.

[00:16:13] Speaker 03:
May it please the court?

[00:16:14] Speaker 03:
My name is Tanner Camp from the law firm of Foley and Lardner.

[00:16:17] Speaker 03:
I represent Zachary Shimakowski and Joanna Uribe on behalf of her son, Felipe Uribe.

[00:16:24] Speaker 03:
If the UHSAA gets its way, no F-1 student attending high school in Utah

[00:16:29] Speaker 03:
will ever play in a postseason game, stand on a championship podium, or hold up a championship trophy.

[00:16:38] Speaker 03:
Fortunately, the Constitution prevents the UHSAA from getting its way.

[00:16:44] Speaker 03:
As this court knows, there are two issues here, preemption and equal protection.

[00:16:49] Speaker 03:
With respect to preemption, plaintiffs are likely to succeed because the UHSAA admitted that the rule imposes burdens upon F1 students

[00:16:59] Speaker 03:
beyond those imposed by Congress.

[00:17:01] Speaker 03:
With respect to equal protection, plaintiffs are likely to succeed because the rule is subject to at least heightened scrutiny and it fails under that standard.

[00:17:14] Speaker 04:
Well, we can start with preemption and opposing counsel pointed out that we have a long history of we and the Supreme Court have defined what preemption means.

[00:17:25] Speaker 04:
And there are three categories of preemption and the one is not added burden.

[00:17:31] Speaker 04:
And so why is that enough that there's an added burden if that added burden is not deemed to be within the doctrine grounds for preemption?

[00:17:43] Speaker 03:
Your Honor, I agree with the opposing counsel that those are the general categories of preemption and when you're talking about preemption generally and whether federal law preempts state law.

[00:17:53] Speaker 03:
However, none of the conflict preemption cases that opposing counsel cites in their brief deal with regulations that discriminate based on alienage.

[00:18:05] Speaker 03:
And we have a direct case from the Supreme Court that does deal with state regulations

[00:18:11] Speaker 03:
discriminating on the basis of alienage.

[00:18:13] Speaker 03:
And that's what, and this is what that case said.

[00:18:15] Speaker 03:
This is the Tolby Moreno case.

[00:18:17] Speaker 03:
Quote, state regulations not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress.

[00:18:33] Speaker 03:
End quote.

[00:18:33] Speaker 03:
I understand that, that opposing counsel wants to

[00:18:37] Speaker 03:
draw back to other areas of preemption law that don't directly deal with state regulations burdening or discriminating on the basis of alienage.

[00:18:47] Speaker 03:
But the Supreme Court has told us what the burden is here.

[00:18:50] Speaker 03:
And that makes sense, Your Honor, because immigration and naturalization, dealing with aliens, that is an area of law that is constitutionally granted to Congress.

[00:19:03] Speaker 03:
And so when you have a state regulation that is

[00:19:07] Speaker 03:
discriminating on the basis of alienage, and that imposes additional burdens that Congress didn't envision or impose, that is preempted.

[00:19:16] Speaker 04:
Well, any burdens or how severe did the burdens have to be?

[00:19:20] Speaker 04:
What are we talking about?

[00:19:22] Speaker 04:
What renders it unconstitutional or preempted, for a better word?

[00:19:28] Speaker 03:
Right.

[00:19:29] Speaker 03:
I think that the best way to answer that question is to turn to Tolby Moreno itself, Your Honor, and there we had

[00:19:36] Speaker 03:
of G4 visa students, or excuse me, G4 visa holders.

[00:19:42] Speaker 03:
And the court there said that Congress had not imposed domicile restrictions on that set of visa holders, right?

[00:19:55] Speaker 04:
And in fact, Congress had contemplated that they would be able to be domiciled, right?

[00:20:00] Speaker 03:
Contemplate that they would be able to be domiciled by not imposing restrictions on them.

[00:20:05] Speaker 03:
That is exactly the case here, Your Honor.

[00:20:07] Speaker 04:
Well, hit the pause button.

[00:20:09] Speaker 04:
The language of that case spoke of what Congress contemplated, and what it contemplated was that they would be able to be domiciled somewhere in order to fulfill the purposes of the visa.

[00:20:21] Speaker 04:
Is that not right?

[00:20:24] Speaker 03:
Your Honor, I don't think that's exactly right, because I think what happened in Toby Moreno is Congress put restrictions on other types of

[00:20:33] Speaker 03:
non-immigrant aliens and said that they could not satisfy the domicile requirements.

[00:20:40] Speaker 03:
It did not put those same restrictions on holders of G4 visas.

[00:20:44] Speaker 03:
It was silent on that issue.

[00:20:46] Speaker 03:
That's the same thing that we have here, Your Honor.

[00:20:49] Speaker 03:
For F1 students, Congress has allowed those students to enter into the country to study at a high school if they meet certain conditions, those conditions being they have to speak English,

[00:21:00] Speaker 03:
reasonably well.

[00:21:01] Speaker 03:
They have to pay their own way.

[00:21:03] Speaker 03:
They have to intend to return to their home country when they're done.

[00:21:06] Speaker 04:
It says nothing— And pursue a course of study, and it does say nothing about extracurricular activities.

[00:21:12] Speaker 04:
And so why should one assume that in some sense that is not—that the states are not left, as they are on most things in educational matters, to decide how to address that?

[00:21:25] Speaker 03:
Well, Your Honor, I think that when you're saying to pursue a course of study, that's correct.

[00:21:30] Speaker 03:
They are admitted to pursue a full course of study.

[00:21:33] Speaker 03:
But that doesn't mean that they are disallowed from participating in all the other types of aspects that are part of the high school experience.

[00:21:43] Speaker 04:
Does Congress really care whether I can do debate team as the F-1 visa holder?

[00:21:48] Speaker 04:
I mean, why is that a matter that relates to my course of study?

[00:21:54] Speaker 03:
I think that, Your Honor, the fact that Congress did not preclude these students from being able to participate in those activities shows that, yes, they intended that those students should be able to participate in every type of opportunity that domestic kids can participate in in high school.

[00:22:12] Speaker 03:
And Your Honor, it's interesting to note, where would it end?

[00:22:16] Speaker 03:
If a state can preclude students from participating in high school athletics,

[00:22:22] Speaker 03:
Can they stop these students from going to lunch?

[00:22:25] Speaker 04:
I recall that example, and let me say that that whole question raises another whole constitutional issue.

[00:22:33] Speaker 04:
I mean, there are a whole range of constitutional issues that could arise that they stop some kids on the grounds of alienage from eating lunch and those sorts of things.

[00:22:41] Speaker 04:
And that's not what we're here to talk about now.

[00:22:44] Speaker 04:
What we're talking about is whether this particular provision would be preempted, right?

[00:22:49] Speaker 03:
And the answer to that, Your Honor, is that, again, Congress did not say anything about this.

[00:22:55] Speaker 03:
And in fact, if you look at Appellant's site, the regulations that deal with J-1 visa holders, for example, saying that those students, the regulations say that they can participate in athletics.

[00:23:08] Speaker 03:
That's not exactly what those regulations say.

[00:23:10] Speaker 03:
Those regulations, and there are much more of them with J-1 students,

[00:23:15] Speaker 03:
They say that they can participate in athletics if allowed to do so by the school district and by the state athletic association.

[00:23:23] Speaker 03:
The fact that they did not put that type of restriction on F1 students suggests that they actually didn't want to have any restriction on F1 students for playing and doing athletics and other extracurricular activities.

[00:23:37] Speaker 03:
And that's because F1 students are closer to

[00:23:42] Speaker 03:
regular domestic attending high school students.

[00:23:46] Speaker 03:
J-1 students are limited to two semesters attending school.

[00:23:49] Speaker 03:
And so it would make sense that Congress would have those different regulations.

[00:23:53] Speaker 04:
Mr. Camp, let me just ask two clarifying questions.

[00:23:55] Speaker 04:
One, so are you saying that the traditional framework for preemption does not apply here?

[00:24:03] Speaker 04:
I mean, in other words, are the conflict preemption cases irrelevant to analyzing your claim?

[00:24:11] Speaker 03:
I don't know that I'd go as far to say they're irrelevant, but I would say that we have a more specific case that gives us our direction, and that's Toby Moreno.

[00:24:18] Speaker 04:
So you stand or fall on Toby Moreno, then?

[00:24:23] Speaker 03:
Well, Your Honor, whether you would like to call Toby Moreno a conflict preemption case or not, whether those labels matter, I can't really say.

[00:24:31] Speaker 03:
Oh, they matter.

[00:24:33] Speaker 04:
Historically, they matter.

[00:24:34] Speaker 04:
So what I'm trying to understand is,

[00:24:37] Speaker 04:
Would we be offending your claim if we looked at, at least for guidance, the traditional conflict preemption cases in deciding whether you win or lose?

[00:24:51] Speaker 03:
I guess I would say I don't think those cases will be very helpful because, again, appellants have not cited any of those conflict preemption cases that are dealing with state regulations discriminating on the basis of alienation.

[00:25:02] Speaker 04:
And that leads me back to my initial question then.

[00:25:04] Speaker 04:
Are you saying that if we don't find that toll allows you to win, then you lose, right?

[00:25:12] Speaker 04:
Are you standing and falling on toll then?

[00:25:16] Speaker 03:
I think that toll, yes, I think that toll provides the preemption standard for our situation.

[00:25:22] Speaker 03:
That's okay.

[00:25:23] Speaker 04:
Then the other clarifying question, a little less complicated maybe, is you on the fundamental rights area and in terms of whether there is heightened scrutiny here.

[00:25:36] Speaker 04:
One thing that I wasn't clear about in the briefing is, are you saying that there's, well, is the issue, is there a fundamental right to play varsity sports or is there a fundamental right to play postseason varsity sports?

[00:25:49] Speaker 04:
What are we talking about?

[00:25:51] Speaker 03:
I don't think we frame it in terms of fundamental rights, Your Honor.

[00:25:54] Speaker 03:
It's a fundamental right not to be discriminated against on the basis of alienage.

[00:26:00] Speaker 04:
Well, the issue is what's the impact?

[00:26:02] Speaker 04:
I mean, what's the impact in terms of what are you being denied the right to do?

[00:26:08] Speaker 04:
And that determines whether there's discrimination on the grounds of alienage.

[00:26:12] Speaker 04:
And I'm not trying to make light of your claim, I'm just trying to understand

[00:26:15] Speaker 04:
Because, you know, because, I mean, theoretically, the F1 visa holders can play varsity sports.

[00:26:24] Speaker 04:
It's just they would forfeit any right to play postseason varsity sports.

[00:26:28] Speaker 04:
So is the ground of concern or grievance the impingement of the ability to play postseason varsity sports?

[00:26:37] Speaker 04:
Or is it varsity sports generally because the schools will just not let you play if you're going to have that impact on their team?

[00:26:45] Speaker 03:
I think it's the latter, Your Honor.

[00:26:46] Speaker 03:
This forces them into a Hobson's choice, right?

[00:26:50] Speaker 03:
A varsity team into a Hobson's choice to choose.

[00:26:53] Speaker 03:
Okay, are we going to let this F1 student play on our team, which would force our entire team to forfeit postseason play?

[00:27:02] Speaker 03:
Or are we going to just say, you know what?

[00:27:04] Speaker 03:
It's not gonna work out.

[00:27:05] Speaker 03:
We're gonna have to go forward because it wouldn't be fair to the rest of the kids on our team.

[00:27:10] Speaker 03:
And functionally, that excludes all F1 students from varsity play.

[00:27:14] Speaker 03:
Got it.

[00:27:15] Speaker 03:
Thank you.

[00:27:17] Speaker 03:
Now, I want to return back to something that Judge Moritz asked Mr. Perry about.

[00:27:24] Speaker 03:
If we disagree that rational basis applies, you lose.

[00:27:28] Speaker 03:
I want to correct something.

[00:27:29] Speaker 03:
The court, the district court did find that strict scrutiny is the correct level of scrutiny.

[00:27:35] Speaker 03:
However, the court applied intermediate scrutiny and applied a heightened scrutiny and found that under the heightened scrutiny,

[00:27:42] Speaker 03:
the law fails or the rule fails.

[00:27:45] Speaker 03:
And that's important to remember.

[00:27:48] Speaker 03:
So let me just talk a little bit more about the equal protection.

[00:27:54] Speaker 03:
State classifications based on alienage like those based on nationality or race are inherently suspect and subject to close judicial scrutiny.

[00:28:05] Speaker 03:
Now in the alienage context, the Supreme Court has recognized two exceptions.

[00:28:11] Speaker 03:
the exceptions that don't apply here, a political and government function exception and regulation of aliens not lawfully admitted to the United States.

[00:28:20] Speaker 03:
State classifications that fit under those exceptions are not subject to strict scrutiny.

[00:28:26] Speaker 03:
As this court knows, there is a circuit split regarding the existence of another exception, the regulation of non-immigrant aliens.

[00:28:36] Speaker 03:
But the Supreme Court has never recognized this exception, and neither did the District Court.

[00:28:42] Speaker 03:
Like I said, it applied a heightened level of scrutiny.

[00:28:45] Speaker 04:
It's a pretty lopsided circuit split, isn't it?

[00:28:47] Speaker 04:
I mean, you have one case, I think the Second Circuit, and everybody else on the other side, in terms of how they deal with non-immigrant aliens, isn't that right?

[00:28:57] Speaker 03:
I wouldn't think it's as not as lopsided as the other side has proposed it to be.

[00:29:01] Speaker 03:
First, they claim that

[00:29:03] Speaker 03:
It's the 6th Circuit, 5th Circuit, and 11th Circuit on one side versus the 2nd Circuit on the other side.

[00:29:09] Speaker 03:
The 11th Circuit case really isn't applicable here, Your Honor, because there it was dealing with DACA students or those who are not lawfully admitted into the United States.

[00:29:18] Speaker 03:
It falls into a recognized exception within the Supreme Court analysis.

[00:29:23] Speaker 03:
It's not dealing with- DACA students have a legal status, though, do they not?

[00:29:28] Speaker 03:
Well, the students in that case in the court went to say that they were not

[00:29:32] Speaker 03:
aliens who are here lawfully admitted.

[00:29:36] Speaker 04:
And so what do you do with the skirmety argument then?

[00:29:40] Speaker 04:
I mean, the reality is that the argument would be anyway, and the one articulated by opposing counsel is this cannot be discriminating on the class of alienage since there are F1 visa holders on one side and there are all other aliens and citizens on the other side.

[00:29:59] Speaker 04:
And so how can that be a discrimination based upon the class of alienage?

[00:30:05] Speaker 03:
So I think that

[00:30:06] Speaker 03:
What's most telling about opposing counsel's argument is what he did not cite.

[00:30:12] Speaker 03:
And that is Nyquist versus Moslett, a Supreme Court case that is directly on point and dealing with alienage again.

[00:30:20] Speaker 03:
There, there was a New York law that barred certain resident aliens from state financial assistance for higher education.

[00:30:28] Speaker 03:
And the state there argued in part

[00:30:31] Speaker 03:
that the statute did not classify based on alienage because it distinguished, quote, only within heterogeneous class of aliens.

[00:30:38] Speaker 03:
It did not, in other words, it did not distinguish between citizens and aliens.

[00:30:43] Speaker 03:
And the court rejected that argument.

[00:30:44] Speaker 03:
And it said this, you classify based on alienage when the regulation, quote, is directed at aliens and that only aliens are harmed by it.

[00:30:54] Speaker 03:
The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class.

[00:31:00] Speaker 03:
end quote.

[00:31:02] Speaker 03:
That clearly shows that this is discrimination, classification based on alienage.

[00:31:06] Speaker 03:
These other cases dealing with sex, the intersection of sex and medical conditions are not applicable, Your Honor.

[00:31:14] Speaker 04:
All right.

[00:31:16] Speaker 04:
I think the time is up for both of you.

[00:31:19] Speaker 04:
Oh, no, no.

[00:31:20] Speaker 04:
If you have a question.

[00:31:21] Speaker 00:
Well, I just wondered if you could address Plyler, the Plyler case where the Supreme Court applied an intermediate scrutiny to a case involving

[00:31:29] Speaker 00:
undocumented children.

[00:31:31] Speaker 00:
Does that impact your analysis at all as far as what the minimum level of scrutiny might be here?

[00:31:40] Speaker 03:
Yes, Your Honor, I think it does.

[00:31:43] Speaker 03:
I think it's an important observation distinction to make.

[00:31:47] Speaker 03:
As Your Honor said, in Plyler, the court applied a heightened form of scrutiny when dealing with a class of aliens who are undocumented or here illegally.

[00:31:57] Speaker 03:
Now, this is something that the Second Circuit pointed out with the absurdity or the irrationality of what the Sixth and the Fifth Circuits have done, because they've applied a lower level of scrutiny to regulations that are discriminating against lawfully admitted aliens here on a temporary basis.

[00:32:17] Speaker 04:
But an issue in Plyler was the right to be educated at all.

[00:32:21] Speaker 04:
I mean, it seems to me that's different than the right to than any sort of claimed right to play football.

[00:32:28] Speaker 04:
I mean, in in in in during play varsity sports.

[00:32:31] Speaker 04:
I mean, those are two different things, aren't they?

[00:32:34] Speaker 04:
I mean, it's a question of what what is the deprivation?

[00:32:36] Speaker 04:
I mean, what are you being deprived of?

[00:32:39] Speaker 04:
Right.

[00:32:40] Speaker 03:
Well, Your Honor, the UHSAA itself says in their in their handbook,

[00:32:45] Speaker 03:
that these high school sports and extracurricular activities are essential to the high school experience.

[00:32:51] Speaker 03:
That's the words that they use, essential to the high school experience.

[00:32:54] Speaker 03:
And yet, they're denying something to these F1 students that they claim to be essential to this experience.

[00:33:01] Speaker 04:
All right.

[00:33:02] Speaker 03:
Thank you.

[00:33:03] Speaker 03:
Any more questions?

[00:33:05] Speaker 04:
All right.

[00:33:05] Speaker 04:
Thank you, Council.