Below are some questions that have come up, with answers. If you have additional questions, please email me.
UPDATED 10/27
How shall we cite the record for our briefs? R-XX or (R-XX). So, for example:
Mr. Madison's dress had three buttons. R-22. That is highly significant because....It is not, by the way, highly significant that the dress had three buttons.
Is it stipulated that findings of fact are also subject to de novo review? On R-45 it says "the dress was disruptive of the work of the school." It seems arguable that that would get de novo review.It is stipulated that all findings of the district court are subject to de novo review. It is up to you whether you choose to characterize the issue of disruption as factual or legal for whatever purpose in your argument, but the de novo standard is not to be debated.
I hope that answers the question; Please also keep in mind that judges sometimes disregard stipulations and may try to ask you to defend or oppose the propriety of de novo review. In that situation, I would advise participants to reference Stipulation 4, but also be prepared to address basic procedural questions. Additionally, briefs should articulate in the body of their argument that de novo is the appopriate standard of review.
Where do we handle certain issues that seem to fall under both the free speech and equal protection sections, such as the appropriate respect for students' constitutional rights in a school, the standard of review, etc.? Should we just split them up or work on them together or ignore them entirely?Your question about overlapping issues is a very good one. You and your partner should work separately on your argument sections. I encourage you to discuss your ideas and definitely read each other's sections. It will help you a lot to recognize how your issues are related. I would also suggest that you make sure that one of you isn't making any arguments that undermine the other. Ultimately, though, your arguments should stand alone and important broad points about respect for students' rights, etc., should be discussed in both arguments. I understand you don't want to be redundant, but you do not want to be spending too much time on introductory points anyway.
It is typical for both argument sections to include an explanation of summary judgment at the beginning of the argument. Please note, however, that the standard of review is stipulated de novo (Stipulation Number 4).
For the first issue, in several of the cases cited in the Record there are discussions about challenging the school policies at issue themselves on their face for being overbroad or vague. I'm not seeing in the record that the plaintiffs in this case made any sort of similar argument in dist court. Is this something that we are supposed to address or is it excluded along with arguments like qualified immunity, etc.?You are definitely permitted to address the issues of overbreadth and vagueness. However, you will want to also address whether it is appropriate for the Court of Appeals to consider those issues, considering the failure to raise at the district court level/in the pleadings, etc. I will also say that I think declining to include these issues in your brief would not be a problem as long as you felt that they were without substantial merit.
As to the second issue, since infringement of fundamental rights can come under an equal protection analysis as well, should we be considering that also?I think that it would be outside the bounds of the sex discrimination issue to focus on a cause of action deriving from the burden of a fundamental right (to education, etc.). Madison is certainly alleging a suspect class-based equal protection argument. However, you are welcome to discuss the concept of "a fundamental right to be free from sex discrimination," and how that might affect standard of scrutiny, etc., if you so choose. Just ensure that whatever you argue, it stems from Madison's claim that the dress code discriminated against him because he's a guy.'
(NEW) As to the second issue, the claim is brought under the 1st and 14th Amendment. Is this to open the door to a substantive due process claim, or is the 14th amendment there to make it applicable to the states and local schools?The latter. The 14th Amendment is just mentioned for incorporation purposes. No need to make any SDP arguments.
(NEW) On issue #2, how far can I delve into any transgender issues? How strongly can I infer that Jimmy is transgender?
There is no rule or stipulation to keep you from discussing the transgender issues, just keep in mind that Madison is only bringing a "sex discrimination" claim. The door is open to discuss sex vs. gender and so on, but what I would discourage is any claim that Madison has been discriminated against on the basis of his sexual orientation, except insofar as you want to suggest that is part of a sex/gender discrimination claim.
You are limited to the facts in the record and the record does not say that Jimmy is transgender.
Can I get an extension?No, sorry.
