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 stress, 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. |
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.
