Facts in Santa Fe

[Michael MASINTER]

The state of the record is certainly not unique to Santa Fe; Adler has an
even sparser record. In Adler and the predecessor litigation, the lack of
record arose from the refusal of the trial court to hold an evidentiary
hearing in either case.

Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

On Wed, 28 Jun 2000, Douglas Laycock wrote:

>         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
>
>