A three judge panel of the 11th Circuit Court of Appeals has sent the case back down to the District Court, finding that the records of the trial proceedings are so incomplete as to preclude a ruling on the merits of the appeal.
We have concluded that the unfilled gaps in the record, coupled with the problematic nature of some of the district court’s factfindings, prevent proper appellate review of the merits of the important constitutional issues raised in this
case. For reasons we will explain, we have decided the best thing to do is remand
the case to the district court in order for it to conduct new evidentiary proceedings and enter a new set of findings based on evidence in a record that we will be able to review.
The panel, which included long-filibustered Bush nominee William Pryor, left it up to the lower court judge as to whether to conduct an entirely new trial:
it to the district court whether to start with an entirely clean slate and a completely new trial or to supplement, clarify, and flesh out the evidence that it has heard in the four days of bench trial already conducted.
I think that it’s hard to predict how the panel will rule when it has a complete record before it. (I was amazed, on reading the opinion, as to how many problems there were in reassembling the evidence that apparently was before the trial judge.) In any event, the trial judge’s opinion (which ruled that the textbook stickers describing evolution as a theory, not a fact, "endorsed" religion, thereby violating the Establishment Clause) turned in large part on the sequence of events leading to the School Board’s adoption of the sticker. When I wrote about this decision before, I wasn’t impressed by the district judge’s opinion, which seems to take any outcome favored by religiously-motivated people as an impermissible endorsement of religion. For him, the question is simply whether the Board responded to their pressure in adopting the sticker. If they’re accommodating in anticipation of objections, that may be O.K., but if they’re responding to objections, that’s apparently not O.K. His opinion assumes the latter set of facts, but the record currently available doesn’t seem to support it. That the appellate court wants to have the facts straight does not mean that it will necessarily support his reasoning, assuming that the facts (as he understands them) can be established or reestablished.
If you want more, you can go here, here, here, and here. The pro-evolution folks at Panda’s Thumb anticipate an opportunity for the district court judge to apply the Dover ruling, which I criticized here. One of the commenters offered this nice little bit of bigotry:
Actually, I would welcome it if the Georgia crackers decided to allow the stickers. It would mean a Supreme Court case, which would kill ID once and for all, nationwide.