Procedural Due Process

When government deprives a person of a protected life, liberty or property interest (Board of Regents v. Roth, 1972), it must give fair procedure; Goldberg v. Kelly (1970) required a hearing before welfare benefits end, and Mathews v. Eldridge (1976) weighs the private interest, the risk of error and the government's interest.

Note: This is an educational course, not legal advice.

The Due Process Clauses (Fifth Amendment for the federal government, Fourteenth for the states, and both limit only state action) say government may not deprive a person of "life, liberty, or property, without due process of law." Courts read that in two ways. Procedural due process asks whether the government used fair procedures. Substantive due process, the rest of this unit, asks whether some deprivations are forbidden no matter the procedure.

A procedural claim has two steps: (1) Is there a protected life, liberty or property interest? (2) If so, what process is due?

Why it works

Why tie property to rules? Because government gives many things that people come to rely on: jobs with tenure, licenses, benefits. If the rules say you keep the benefit unless there is cause to end it, you have an entitlement, and taking it away is a deprivation. Goldberg v. Kelly (1970) treated welfare benefits that way and required an evidentiary hearing before they end, because a family that loses its food money cannot wait for a later hearing. Six years later Mathews v. Eldridge (1976) gave the general test, and it held that a person whose Social Security disability benefits were ending did not need a hearing beforehand: written evidence, a chance to respond, and a full hearing afterward were enough.

The Mathews v. Eldridge balance (1976).
Mathews factor	The question	In Mathews
1. The private interest	How much does the person lose, and how badly?	disability benefits, but not the last line of support (unlike welfare in Goldberg)
2. The risk of error and the value of more process	How likely is a mistake under current procedures, and how much would an added step help?	decisions rested on medical reports, so an oral hearing would add little
3. The government's interest	What would the added procedure cost in money and administration?	pre-termination hearings for all would be costly

Key idea

Procedural due process: first find a protected interest (property = a legitimate claim of entitlement under rules, as in Roth); then decide what process is due by weighing the private interest, the risk of error and the value of added safeguards, and the government's interest (Mathews). Often notice and a chance to respond are enough.

Worked example: Tenure

A state university professor with tenure, who may be dismissed only "for cause," is fired without notice or any chance to respond. Step one?

The tenure rules create a legitimate claim of entitlement to continued employment.
So she has a property interest, and due process applies.
Step two would weigh the Mathews factors; at minimum, notice of the reasons and a chance to respond before dismissal.

Answer: She has a property interest; she is owed notice and a chance to respond.

Worked example: A one-year contract

A city hires a lifeguard for one summer with no promise of rehiring. Next year it does not rehire him. Is a hearing required?

Ask whether rules or understandings gave him an entitlement to rehiring.
None did; like Roth, his contract simply ended.

Answer: No property interest, so no hearing is constitutionally required.

Common mistake

Thinking due process always means a full trial. The process due is flexible. Under Mathews, the more serious the loss and the higher the risk of error, the more process is due; for many decisions, notice and a chance to respond are enough, and some hearings may come after the action.

Is there a protected interest?

Procedural Due Process

Practice

Builds on

Leads to

Sources and further reading