Due Process

The U.S. Constitution guarantees every person within the jurisdiction of the United States protection against arbitrary government action through the Due Process Clause. The Due Process Clause that protects against arbitrary action by the federal government can be found in the Fifth Amendment; it states in pertinent part: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” The Due Process Clause applicable to states and state agencies, including school boards, is in the Fourteenth Amendment, which provides in pertinent part: “No State shall . . . deprive any person of life, liberty or property, without due process of law.”

There are two aspects to the Due Process Clause: substantive due process and procedural due process. The Substantive Due Process Clause provides protection for persons within the jurisdiction of the United States against arbitrary deprivation by the federal or state government (including school boards) of any of the following three interests: “life, liberty or property.” The Procedural Due Process Clause is the portion of the amendment that states “without due process of law”; in other words, this clause requires public officials to take certain procedures before persons can be deprived of life, liberty, or property. This entry describes each in more detail, with examples from education.

Substantive Due Process

The approach courts use to evaluate whether the Substantive Due Process Clause is violated depends on whether an alleged violation is a result of a legislative act or an executive action, such as a specific action of a government official. When a legislative act is alleged to be in violation of substantive due process rights, courts first determine if a life, liberty, or property interest is involved under the Substantive Due Process Clause. Substantive due process analysis then requires courts to determine if the life, liberty, or property interest in question is a fundamental right. The U.S. Supreme Court has recognized certain rights as fundamental; the test for determining if a right is fundamental is whether the right is explicitly or implicitly guaranteed by the federal Constitution. Examples of fundamental rights include the right to free speech, the right to privacy, the right to vote, the right to procreate, and the right to interstate travel; the right to education is not a fundamental right. Once the court determines that a fundamental right is involved, it reviews the legislative act using the strict scrutiny standard of review, described below. If a fundamental right is not involved, then a court reviews a legislative act using the rational basis standard of review, also described below.

When an executive action or a specific act of a government official is alleged to be in violation of substantive due process rights, courts first determine if a life, liberty, or property interest is involved under the Substantive Due Process Clause. If so, substantive due process analysis then requires courts to determine if the executive action “shocks the conscience.”

According to the Supreme Court, liberty interests include not only freedom from bodily restraint but also the right to contract and to enjoy the privileges traditionally recognized as important to the orderly pursuit of happiness. Property interest is defined as a right created by contract or statute. By way of illustration, when a state statutorily grants the right to vote for local school boards to its residents, a property interest is statutorily created. Likewise, when a school district contracts with a teacher for employment, the school district has created in such a teacher a property right to the job for the term of the contract, unless the terms of the contract state otherwise.

The strict scrutiny standard of review is applied only when government action “interferes with a fundamental right or discriminates against a suspect class” (Kadrmas v. Dickinson Public Schools, 1988, p. 457). In order to withstand judicial scrutiny under the strict scrutiny standard of review, the burden is on the government to show that the legislative act is narrowly tailored to achieve a compelling interest; this is a very difficult burden for the government. Thus strict scrutiny has often been referred to as strict in theory and fatal in fact.

Suspect classes to which the Supreme Court has held strict scrutiny applicable include race, ethnicity, and national origin; as noted above, fundamental rights include the right to vote and right to interstate travel but not the right to education. Suspect classification is not applicable in determining whether strict scrutiny applies to the review of a Substantive Due Process Clause case; suspect classification is only a factor in determining if strict scrutiny applies to a case under the Equal Protection Clause.

The rational basis standard of review is a very lenient standard of review used by courts for substantive due process analysis. Under this standard of review, the Substantive Due Process Clause is violated only if the legislative act is not rationally related to a legitimate state interest. As noted above, rational basis review applies only when the life, liberty, or property interest a legislative act is alleged to violate is not a fundamental right; the legislative act will be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the [legislative act]” (FCC v. Beach Communications, Inc., 1993, p. 313). A legislative act will withstand rational basis review even if it is “based on rational speculation unsupported by evidence or empirical data. . . . Those attacking the rationality of the legislative [act] have the burden to negative every conceivable basis which might support it” (FCC v. Beach Communications, Inc., 1993, p. 315) (internal quotes omitted).

Procedural Due Process

The Procedural Due Process Clause requirement of “due process of law” has been interpreted by the U.S. Supreme Court as a requirement that notice and an opportunity for a hearing must be provided before the government (including school boards) deprives citizens of life, liberty, or property. If life, liberty, or property interests are not involved in a governmental deprivation, procedural process is not due to the citizen. The opportunity for a hearing provides citizens the chance to defend themselves. A hearing does not have to amount to the formalities of a trial; courts have upheld some informal hearings as adequate procedural due process.

In evaluating what procedures are required in a hearing under the Procedural Due Process Clause, courts consider three factors: (1) the importance of the life, liberty, or property interest impacted by the government action; (2) the likelihood that the procedure in question will reduce the risk of an erroneous deprivation; and (3) the importance of the government interest in the deprivation. These factors are also considered when courts are asked to decide whether a citizen is entitled to a hearing before the deprivation or whether a postdeprivation hearing would suffice. In certain exigent circumstances, such as those involving risk to life or safety, courts might uphold government deprivation of liberty or property before a hearing occurs; clearly, life cannot be deprived before a hearing.

In addition, procedural due process requires that governments and school boards ensure that hearings and decision makers in the hearings are fair and unbiased; even one decision maker with bias could constitute a deprivation of due process. The notice given must state the charges and grounds for the government action taken against the citizen.

When dealing with teachers and students, school boards should always keep in mind that whenever life, liberty, or property interests are implicated, substantive due process as well as procedural due process might be due in order to avoid constitutional violations. As such, if a teacher has a one-year employment contract with a school system, the board has created a property right: The teacher has a property right to employment by the district for the year. If the board chooses to terminate the teacher’s employment during the year provided for in the contract, it must provide the teacher with notice of the termination and reasons for the termination, and it must also provide an opportunity for the teacher to refute the district’s reasons for the termination. To terminate tenured teachers, notice and a hearing must be afforded the teacher, because tenure is a property right. Similarly, when school officials seek to expel students, they must afford the student procedural due process, because education is a property right.

Joseph Oluwole

See also Bill of Rights; Board of Regents v. Roth; Contracts; Due Process Hearing; Due Process Rights: Teacher Dismissal

Legal Citations