Facts in Santa Fe

[Douglas Laycock]

        I went on vacation for two weeks and missed most of your no doubt
enlightening discussion of Santa Fe ISD v. Doe.

        I for one do not agree with Rob Weinberg that the Court spent too much
time on the facts.  That case was intensely factual in both lower courts,
with no distinction between facial and as-applied challenges, we used those
facts in our brief, and we never acquiesced in Santa Fe's claim in the
Supreme Court that the case presented only a facial challenge.  Of course
the case in the lower courts was about much more than just football, and
when it narrowed to a sliver of its former self by the time of the cert
grant, then there was not as much in the record as we would have liked
about that one sliver.  But that is no reason for the Court to disregard
what was in the record.

        A related problem with factual development is that the trial judge
aggressively discouraged the introduction of more evidence.  He thought he
knew enough to decide, and he was not going to let the lawyers waste his
time proving things he already knew or didn't want to know, however
interesting they might have been to the appellate courts.  Some of what he
already knew was not in the record, although he knew it perfectly well.  In
any event, there was no real opportunity to prove up the workings of the
policy after Santa Fe amended it for the last time.  This is a function of
crowded dockets and judicial personality; I doubt that it is unique to this
case.  But it is a real problem for appellate review.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu