Trump "Nominee" Stands Up for Fired Teacher

In writing a national column for Law360, titled “Rating Trump’s Nominees in Employment and Labor Law Cases,” I found the following, which I feature for readers of this blog:

Judge William Riley (8th Circuit Court of Appeals): In Gibson v. Caruthersville School Dist. No. 8, 336 F.3d 768 (8th Cir. 2003), this conservative judge wrote an impassioned dissent in support of a probationary teacher who was denied reappointment after a student alleged that this instructor grabbed him by the throat. The teacher exercised his right to a name clearing hearing in a public proceeding. However, after adjournment in the hearing, the school district refused to allow him to continue with his public defense. The lower court denied the teacher’s petition for a hearing on his non-renewal; and the appeals court affirmed.

Judge Riley put a heavy emphasis on procedural due process for public employees in this closely reasoned dissent: “The majority rejects what can be reasonably inferred from the facts: the District had no intention of giving Gibson the opportunity to tell his side of the story, and used available procedural means to effectuate its goal. Following the opening hearing round, the District tried to obtain a settlement and a release from Gibson. When that attempt failed, the District closed a critical portion of the public hearing. When Gibson resisted and filed a petition for writ of prohibition to keep the hearing open, the school board voted against renewing Gibson’s teaching contract. . . . Once the school year ended, the District advised Gibson’s attorney that the termination issue was moot and completion of the hearing was unnecessary.”

Framing this in constitutional terms, Judge Riley reasoned: “The Supreme Court has declared the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed [and] ... the denial of procedural due process [is] actionable for nominal damages without proof of actual injury.”

More generally, I wrote: “The question I pose is: How do Trump’s nominees rate in employment and labor law cases? But first, some caveats. I will not vote for Trump. Second, my research sample is preliminary and focuses on five of the eleven nominees. With these disclaimers, I find that these judges are thoughtful, pragmatic, and somewhat libertarian in the following employment and labor cases. In these opinions, they appear more temperate than Justice Scalia….

Assessment: It is easy to see why conservatives would support these judges. Even in this brief survey, they evince skepticism of administrative rulings; favor the free operation of labor markets in contrast to judicial or administrative regulation; and one case demonstrates a high regard for personal liberties—even when it means siding with a probationary teacher over his school district employer. In sum, at this early juncture, these erudite judges appear to have little or nothing in common with their political patron, a bombastic loudmouth who defies ideological classification.”