Procedural Due Process
The issues: What constitute protected "liberty" or "property" interests under the Due Process Clause? When the government deprives a person of a protected interest, what process is due?
The most obvious requirement of the Due Process Clause if that states afford certain procedures ("due process") before depriving individuals of certain interests ("life, liberty, or property").
Although it is probably the case that the framers used the phrase "life, liberty, or property" to be a shorthand for important interests, the Supreme Court adopted a more literal interpretation and requires individuals to show that the interest in question is either their life, their liberty, or their property--if the interest doesn't fall into one of those three boxes, no matter how important it is, it doesn't qualify for constitutional protection. Thus, for example, the Court has ruled that the government may severely damage an individual's reputation (by, for example, putting his name on a list of "known shoplifters") without affording process.
The Due Process Clause serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the government has treated them fairly by, say, listening to their side of the story.
The Due Process Clause is essentially a guarantee of basic fairness. Fairness can, in various cases, have many components: notice, an opportunity to be heard at a meaningful time in a meaningful way, a decision supported by substantial evidence, etc. In general, the more important the individual right in question, the more process that must be afforded. No one can be deprived of their life, for example, without the rigorous protections of a criminal trial and special determinations about aggravating factors justifying death. On the other hand, suspension of a driver's license may occur without many of the same protections.
The cases on this page demonstrate the Supreme Court's approach to key questions concerning procedural due process. Board of Regents v Roth shows how the Court has defined "property" interests for purposes of the due process clause. The case involved the decision of a public college not to renew the contract of an untenured professor. The Court concluded that the professor had no "liberty" interest in any specific teaching job, and that he had no "property" interest in his job because he lacked "a legitimate claim of entitlement" under state law to his job. The Court noted that he would have had such a claim of entitlement had he been tenured, because then the college would have had to make a specific showing of poor performance in order to sustain its dismissal. Without a legitimate claim of entitlement to his job, the Court reasoned, there is nothing to have a hearing about. Property interests, the Court stressed, must be found in the statutory or common law of the jurisdiction.
Unlike property interests which have their source in state law, the Court sees "liberty" interests as having their source in the Constitution. Deprivations of certain basic liberties (such as the freedom to travel, the freedom to live with and raise children, the freedom from incarceration, or the freedom to not be subjected to physical violence or forced medical treatment) will trigger a requirement that the government afford due process. But not every serious injury inflicted by the government is necessarily a deprivation of a liberty interest, according to the Court. In 1971, in Constantineau v Wisconsin, a case involving a governmental posting of the names of "excessive drinkers," the Court concluded that some sort of hearing had to be afforded before such a list of names could be sent out--an individual has a protected liberty interest in her good name and reputation, the Court said. However, five years later in Paul v Davis, a case involving the government's distribution of a list of "active shoplifters," the Court reversed course and held that damage to an individual's reputation--standing alone--is not deprivation of a protected liberty interest. The Court distinguished Constantineau, now finding that the individual's additional loss of a right to purchase alcohol was a key element in the outcome of that earlier case. In Vitek v Jones (1980), the Court found that due process must be afforded before an inmate in solitary confinement was transferred from a state prison to state mental hospital, where he would be forced to undego behavioral modification. The Court rejected the state's argument that inmates had already lost their liberty, so that transfer from one state institution to another shouldn't trigger a requirement of due process.
The last two cases demonstrate how the Court has balanced individual interests against government interests to determine how much process is due in specific contexts.
In Mackey v Montrym, the Court considered whether the state can suspend for 90 days without a prior hearing the driver's license of a motorist who refused to take a breathalyzer test following a motor vehicle accident. The Court, voting 5 to 4, held that the state could immediately suspend licenses in such cases. The majority gave considerable weight to the state's asserted interests in removing drunk drivers from highways as soon as possible and in providing drivers with a strong incentive to take the test. Although the Court recognized that people today have a "substantial" interest in keeping licenses to drive, it also stressed that the risk of erroneous deprivation was low because only rarely will there be a real dispute as to whether the motorist refused or did not refuse to take the breathalyzer test. The dissenters saw a greater likelihood of factual disputes (e.g., did the refusal follow a clear demand with a warning of the consequences?) and noted that the state's argument about getting drunks off the road fast was undercut by the fact that a person who failed the breathalyzer test would be allowed to continue to drive until his trial date.
In Cleveland Board of Education v Loudermill (1985), the Court considered whether two school district employees could be suspended without pay until hearings were held to determine whether they had, in fact, violated school district rules as the district had alleged. The Board of Education argued that since it never had to give its employees ANY right to a hearing, it should have the flexibility to give them a right to a hearing, but allow a pre-hearing suspension without pay. The Court rejected this "bitter-with- the-sweet" approach, and said that the minimum process due is determined as a matter of federal constitutional law, not state statutory law.
Aspects of Due Process ("Fundamental Fairness")
1. The government must provide notice of the charges against you.
2. The government must be able to show that there is an articulated (non-vague) standard of conduct which you are accused of violating.
3. The government must provide you with an opportunity to rebut their charges against you in a meaningful way and at a meaningful time (the "hearing requirement").
4. In order to sustain its position (i.e., its deprivation of your liberty or property), the government must establish--at a minimum--that there is substantial and credible evidence supporting its charges.
5. The government must provide some explanation to the individual for the basis of any adverse finding.
Some examples of procedural protections that may be required for certain types of deprivations:
1. Elevated burdens of proof that the government must satisfy, such as "beyond a reasonable doubt" (criminal cases) or "clear and convincing evidence" (termination of parental rights).
2. The right to counsel.
3. The right to a pre-deprivation hearing.
4. The right to cross-examine witnesses.
5. The right to have a neutral person review an adverse decision.
6. The right to recover compensation for a wrongful deprivation.
7. The right to be present when adverse evidence is presented to the fact-finder.
Due Process Clause (14th Amendment)
[No State shall] deprive any person of life, liberty, or property, without due process of law.
How to prove a procedural due process violation:
1. Show that the government has deprived* you of a non-trivial protected interest, one that the Supreme Court would recognize as falling into one of the three boxes above.
*The deprivation by the government must not be based on simple negligence (e.g., prison officials losing the personal property of an inmate.)
(Note: Critics of this atomistic approach believe that it would be more consistent with framers' intent (and more sensible) to simply require a showing of a governmental deprivation that caused a serious injury.)
2. Show that your loss of the process you claim is owed you (taking into account the seriousness of your deprivation and including the added risk of an erroneous deprivation) outweighs the government's interests in not affording the process in question.
What is a protected "property" interest?
Board of Regents v Roth (1972)
What is a protected "liberty" interest?
Wisconsin v Constantineau (1971)
Paul v Davis (1976)
Vitek v Jones (1980)
The balancing test: What process is due?
Mackey v Montrym (1979)
Cleveland Bd. of Educ. v Loudermill (1985)
CONSTANTINEAU CELEBRATES HER
SUPREME COURT VICTORY
Norma Constantineau, above, challenged a Wisconsin law that allowed the chief of police to identify her as "an excessive drinker" and deny her the right to buy alcohol. Constantineau successfully argued that the due process clause entitled her to a hearing before the state could post her name on the "excessive drinker" list.
To explore the meaning of procedural due process in the context of student punishment, suspension, and expulsion cases see:
Due Process Rights of Students
Three student procedural due process cases:
Goss v. Lopez (1975)
Ingraham v. Wright (1977)
Horowitz v. Board of Curators, University of Missouri (1978)
UMKC School of Medicine, attended by Charlene Horowitz until her expulsion, which led to a procedural due process challenge decided in Horowitz v Board of Curators, University of Missouri.
1. Who is protected by the Due Process Clause? Does it protect, for example, aliens?
2. How does the Court determine whether an individual interest is a property interest within the meaning of the Due Process Clause? What might create "a legitimate claim of entitlement in law"?
3. How does the Court determine whether an individual interest is a liberty interest within the meaning of the Due Process Clause? Should damage to one's reputation be enough to trigger or due process, or is the Court right in insisting upon a showing of damage to reputation plus the loss of some traditionally recognized right (such as the right to purchase alcohol, in Constantineau)?
4. If a state might create property interests through contracts, why can it not at the same time limit the process it will afford when it takes away those interests it has created?
5. What two factors does the Court look to in weighing an individual interest to determine how much process must be afforded before it is taken away?
6. In weighing an individual interest to determine the amount of process to be afforded, should we look at the importance of the interest in question to the particular litigant before the court, or instead look at the interest's importance to the category of persons who might object to its deprivation by the government?
7. If the government never had to create a property right in the first place, why shouldn't it be free to create the property right ("the legitimate claim of entitlement"), but at the same time limit the amount of process it will extend?
Cities trying to combat prostitution have tried an innovative approach: "John TV." Believing that the potential embarrassment of being identified on local access television as someone who has attempted to solicit a prostitute will discourage persons from seeking prostitution services, some cities have televised mugshots of persons arrested, but not yet convicted, of soliciting prostitution. Is such a scheme consistent with the due process clause?
Exploring Constitutional Conflicts Homepage
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