Tuesday, July 19, 2005

In-Clement decisions

The buzz in Washington is that 5th Circuit Judge Edith Brown Clement will be nominated to the Supreme Court tonight when President Bush takes to the airwaves at 9 p.m. EST. Most believe herenomination will sail through because she isn't particularly controversial. Some of the far right will oppose her because she doesn't have conservative bonafides like the other Edith (Jones, also of the 5th Circuit), and some on the far left will likewise oppose her because she doesn't have moderate bonafides like Albert Gonzalez.

But Clement is expected to get a near unanimous nod from the Senate anyway.

There's not much out there on her, related to education or anything else (which is one reason why she's a smart choice for Bush vis a vis the confirmation, but a dangerous one in the long run, e.g., David Souter), but I did find this dissent in a case involving the firing of a teacher in Texas without a due process hearing. From People for the American Way:

Coggin v. Longview Independent School District, 337 F.3d 459 (5th Cir. 2003) (en banc), cert. Denied, 124 S. Ct. 579 (2003): constitutionality of firing a public school teacher without a hearing

Clement was one of six dissenting judges in the court’s 8-6 en banc affirmance of the district court’s ruling that the defendant school board was liable for the due process violation that resulted when it terminated the plaintiff-teacher’s employment without a hearing. Under Texas law, the state Commissioner of Education was, upon the teacher’s timely request, required to assign a hearing examiner to conduct a hearing into the board’s proposed termination of the teacher’s contract. The Commissioner refused to assign an examiner, erroneously thinking that the teacher had failed to request a hearing in a timely manner. The board then went ahead and terminated the teacher’s contract without a hearing, although the board had “actual knowledge” that the teacher had timely requested a hearing.

The district court, the panel majority, and the en banc majority all heldthat the teacher’s due process rights had been violated, and that the board was responsible, since it had terminated his contract without giving him the hearing to which he was entitled. The dissenters disagreed, and would have held that the teacher should have been required to bring a case in state court challenging the Commissioner’s refusal to appoint a hearing examiner. The majority opined that such right to appeal had been mooted by the board’s summary termination of the teacher’s employment. Three separate dissents were written (by Judges Jolly, Jones, and Garza) and Clement joined each of them. Had the view of the dissenters, including Clement, prevailed, the teacher would not have been given relief from the unlawful termination of his contract.

I wouldn't say this constitutes grounds for taking to the streets if Clement is in fact Bush's pick, but it's mildly interesting nonetheless.

Anyone know of any voucher cases that made it to the 5th Circuit?


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