Goldberg v. Kelly

Goldberg v. Kelly

Goldberg v. Kelly is the high-water mark of procedural due process. It required a hearing that closely approximates a judicial trial, and it required that hearing before a state could terminate welfare benefits.¹ Later decisions treat it as the end of the spectrum of required process, because the Court has since described it as the only case in which a hearing closely approximating a judicial trial was held necessary.² Anyone who wants to place a procedure on that spectrum has to know what Goldberg demanded and why, and the balancing test taken up after this section is built as a response to it. Because New York State and New York City officials administered the programs, the claim arose under the Due Process Clause of the Fourteenth Amendment, which restrains the states, rather than the Fifth Amendment that governed the federal agency in Mathews.³

The dispute concerned timing and form together. New York's revised procedure gave a recipient notice of the reasons for a proposed termination and a chance to submit a written statement to a higher official before aid stopped, and the question was whether that review was enough or whether the Constitution required an evidentiary hearing first.⁴ The Court's answer came in two stages, and the stages organize this section. The first part presents the facts and explains why a hearing had to come before termination instead of after it. The remaining parts take up what that hearing had to include, in three groups: notice and oral presentation, then confrontation and counsel, then an impartial decision resting on the record. Together those elements come very close to an administrative trial.⁵ The next subsection, The Prior Hearing Requirement, begins with the facts of the case and the reasoning behind the prior hearing.

The Prior Hearing Requirement

The facts of Goldberg v. Kelly describe a procedure that gave recipients a good deal before aid stopped, and the case turns on what that procedure left out. The plaintiffs were residents of New York City who received aid under the federally assisted Aid to Families with Dependent Children program (AFDC) or under New York State's general Home Relief program. They sued the state and city officials who administered those programs for terminating, or preparing to terminate, their aid without prior notice or hearing.⁶ When the suits were filed, no notice or hearing of any kind preceded a termination. The State and the city then adopted notice and hearing procedures, and the plaintiffs challenged the constitutional adequacy of those new procedures.⁷

Under the city's Procedure No. 68-18, a caseworker who doubted a recipient's continued eligibility first discussed the doubts with the recipient and, if still convinced, recommended termination to a unit supervisor. If the supervisor concurred, the recipient received a letter stating the reasons and explaining that within seven days the recipient could ask a higher official to review the record and could support the request with a written statement. If the reviewing official affirmed, aid stopped immediately.⁸ The letter also told the recipient that a post-termination "fair hearing" was available before an independent state hearing officer, where the recipient could appear personally, offer oral evidence, confront and cross-examine the witnesses, and have a record made. A recipient who prevailed was paid all funds erroneously withheld, and a recipient who lost could seek judicial review.⁹ The procedure contained no provision, before aid stopped, for the recipient to appear before the reviewing official, to present evidence orally, or to confront and cross-examine adverse witnesses.¹⁰

The District Court held that only a pre-termination evidentiary hearing would satisfy the Constitution. It rejected the argument that the informal review together with the later fair hearing answered every due process claim, and the Supreme Court affirmed.¹¹ The Court framed the issue narrowly, as whether the Fourteenth Amendment's Due Process Clause requires an evidentiary hearing, meaning a proceeding at which evidence is presented and contested, before benefits are terminated.¹² Whether procedural due process applies at all was not in dispute, because welfare benefits are a statutory entitlement for persons qualified to receive them, and an argument that public assistance is a privilege rather than a right could not answer the challenge.¹³ The remaining question was how much process the entitlement carries. The Court answered that the amount depends on whether the recipient's interest in avoiding a grievous loss outweighs the government's interest in summary adjudication, which means prompt decision without a prior evidentiary hearing.¹⁴ Weighing the two, the Court held that for eligible recipients only a pre-termination evidentiary hearing satisfies due process.¹⁵

The weight on the recipient's side of that balance comes from what welfare is for. For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care.¹⁶ The Court identified this as the crucial factor, one absent for the discharged government employee, the taxpayer denied an exemption, or virtually anyone else whose governmental entitlements are ended: terminating aid while an eligibility dispute is pending may deprive an eligible recipient of the very means by which to live during the wait.¹⁷ A recipient with no independent resources is immediately in a desperate position, and the effort to find daily subsistence in turn undermines the ability to seek redress from the welfare bureaucracy.¹⁸ These two harms explain why a later hearing, however thorough, cannot substitute for an earlier one. Back payment restores the money after the hearing, but it cannot give back the weeks without food or housing, and the desperation the cutoff creates weakens the very person who must mount the challenge that would end it.

The Court also found important governmental interests on the recipient's side of the scale. The Nation's commitment to the dignity and well-being of all persons within its borders shaped the public assistance system, and welfare, by meeting basic demands of subsistence, helps the poor take part in the life of the community. The same interests that counsel providing welfare therefore counsel its uninterrupted provision to those eligible, and pre-termination hearings are indispensable to that end.¹⁹ A state that wants its programs to reach eligible families has no interest in cutting off a family that meets the statutory criteria, so the hearing serves the program's own purpose as well as the individual's.

The appellant's answer was that fiscal and administrative interests outweigh these considerations. Summary adjudication protects the public treasury by stopping payments as soon as there is reason to believe a recipient is ineligible, and because most terminations are accepted without challenge, it also spares the cost of holding many hearings.²⁰ The Court agreed with the District Court that these interests are not overriding in the welfare context, since a prior hearing doubtless costs more and benefits paid to ineligible recipients pending the hearing probably cannot be recouped because those recipients are likely judgment-proof, yet the State can contain the cost by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities.²¹ New York's own provision for a post-termination hearing in the Home Relief program was "cogent evidence" that the State recognizes the primacy of the public interest in correct eligibility determinations.²² On the Court's accounting, the eligible recipient's interest in uninterrupted aid, joined to the State's interest in not terminating payments erroneously, clearly outweighed the State's concern about added burdens, because the stakes were "simply too high" and the possibility of "honest error or irritable misjudgment" too great to allow termination without a chance to contest the case.²³

The prior hearing the Court required is a limited one. The Court agreed with the District Court that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial, because the statutory fair hearing will supply full administrative review.²⁴ The early hearing has one function only, which is to produce an initial determination of the validity of the department's grounds for discontinuing payments and so to protect the recipient against an erroneous termination. A complete record and a comprehensive opinion, which serve mainly to facilitate judicial review and guide future decisions, therefore need not be provided at that stage.²⁵ The Court added that welfare authorities and recipients both want relatively speedy resolution of eligibility questions, that they are used to dealing with one another informally, and that some departments carry burdensome caseloads. Those considerations justify limiting the pre-termination hearing to minimum procedural safeguards.²⁶ The design is a sequence. The early hearing screens out mistakes quickly while payments continue, and the later hearing supplies thoroughness, so requiring a trial at the first stage would add the cost of a trial to a step whose only job is a first look. The next three subsections set out the minimum safeguards that first look must contain.

The holding is framed for recipients who have been found eligible, since only those have a property interest in continued receipt of benefits.²⁷ That framing matters because the subsistence reasoning presupposes a household already living on the aid.

Justice Black's dissent supplies the counter-view, and it attacks the decision at two points. The first is the premise that welfare is property: he found it a strain on credulity to say that the government's promise of charity belongs to an individual as property when the government denies that the individual is honestly entitled to the payment.²⁸ The second is the method. In his view, the Court's weighing of the recipient's interest against the government's interest in summary adjudication rested on the majority's collective judgment about what would be a fair and humane procedure, and nothing indicated what "tomorrow's balance will be."²⁹ The majority met the first objection with its entitlement reasoning and the second by tying the outcome to subsistence. The complaint about open-ended balancing proved durable, however, because the same weighing of interests became the framework for later cases, and the test that grew out of it was criticized on similar grounds.³⁰

Goldberg's reasoning is tied to subsistence, which is why later cases treat it as the outer end of the range of required process. In Mathews v. Eldridge the Court applied a similar weighing and held that a worker whose Social Security disability benefits were ending was owed no evidentiary hearing before the cutoff, in part because eligibility for disability benefits is not based on financial need.³¹ Mathews left Goldberg standing and treated it as a limiting case, observing that only in Goldberg had the Court required an evidentiary hearing before a temporary deprivation and stressing that welfare goes to persons on the very margin of subsistence.³² The practical effect was to retire the presumption that trial-type hearings are the due process norm.³³ The Mathews sections below develop that reframing.

The usual exam error runs in two directions. One is to treat a full post-termination hearing with back pay as sufficient for an eligible welfare recipient, which is the position New York defended and the Court rejected. The other is to read the case as demanding a trial before every benefit is reduced, which overlooks both the subsistence reasoning and the limited function of the pre-termination hearing. A fact pattern that offers a need-based benefit, an eligible recipient, and a cutoff before any evidentiary hearing points to a Goldberg violation, while a fact pattern involving a different benefit calls for the weighing taken up in the Mathews sections.

Notice and Oral Presentation

The pre-termination hearing that Goldberg required is easiest to learn as a list of separate procedural elements, which a later opinion catalogued as six: timely and adequate notice detailing the reasons for a proposed termination; an effective opportunity to defend by confronting adverse witnesses and presenting arguments and evidence orally; retained counsel if the recipient wants one; an impartial decisionmaker; a decision resting solely on the legal rules and evidence adduced at the hearing; and a statement of the reasons for the decision and the evidence relied on.³⁶ This subsection covers the first group, notice and the oral presentation of the recipient's own case. The two subsections after it take up confrontation and counsel, and then the decision itself.

The elements in this group apply the general principle that a hearing must come at a meaningful time and in a meaningful manner. The Court translated that principle for welfare in a single sentence: the context requires that a recipient have "timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally."³⁷ The Court explained that these rights matter where recipients challenge proposed terminations as resting on incorrect or misleading factual premises, or on a misapplication of rules or policies to the facts of particular cases.³⁸ Both elements therefore exist for one purpose, which is to let the recipient contest facts in a form the recipient can actually use.

Notice comes first because a recipient cannot answer a doubt that no one has described, yet in Goldberg the notice was not what the Court found wanting. The Court saw no constitutional deficiency in the content or form of New York's notice. The city used both a letter and a personal conference with a caseworker to inform the recipient of the precise questions raised about continued eligibility, so the recipient was evidently told the legal and factual bases for the department's doubts, and the Court considered that combination probably the most effective way of reaching recipients.³⁹ The timing of the notice also survived. The Court was not prepared to say that the seven-day period New York City provided was constitutionally insufficient per se, although it allowed that fairness might require a longer time in some cases.⁴⁰ Content matters most because the stated reasons are the issues the recipient will be answering. A recipient who knows the department believes household income has risen can bring pay records or a letter from a landlord to disprove it, while a recipient told only that eligibility is under review must guess what to prepare. That is why notice and oral presentation work as a pair, and it matches the Mullane analysis earlier in this chapter, which tested notice for content, timing, and means.

What New York's procedure omitted was any chance for the recipient to be heard in person by the person who decides. Under Procedure No. 68-18, a recipient could ask a higher official to review the record and could support the request with a written statement, but nothing allowed the recipient to appear before that official and speak.⁴¹ The Court put the consequence directly: the city's procedures did not permit recipients to appear personally, with or without counsel, before the official who finally determines continued eligibility, so a recipient could not present evidence to that official orally, and "[t]hese omissions are fatal to the constitutional adequacy of the procedures."⁴² The procedure did promise a later oral proceeding, since the letter told the recipient that a post-termination fair hearing was available, where the recipient could appear personally, offer oral evidence, and cross-examine the witnesses.⁴³ That hearing came after aid had stopped, however, so it could not serve as the oral presentation the Court required, for the reasons given in the preceding subsection.

The Court gave several reasons why a written statement could not stand in for oral presentation, and each identifies a different way a paper process fails a person in the recipient's position. The first concerns capacity. Written submissions are an unrealistic option for most recipients, who lack the educational attainment to write effectively and cannot obtain professional assistance, so the right to submit a statement exists on paper for a person who cannot use it.⁴⁴ The second concerns flexibility. Oral presentation lets the recipient shape the argument to the issues the decisionmaker appears to regard as important, while a writer must guess in advance which of the department's doubts will matter to the reader and gets no second chance once the guess proves wrong.⁴⁵ The third concerns credibility, and it does the most work. Where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision, because a decisionmaker reading a page can neither watch the person explain nor ask the follow-up question that tests the explanation.⁴⁶

Presentation through the caseworker fares no better. The caseworker usually gathers the facts on which the charge of ineligibility rests, so the presentation of the recipient's side of the controversy cannot safely be left to the caseworker.⁴⁷ The incentive problem is visible in the structure of the procedure. The person asked to carry the recipient's account has already built the department's file around one conclusion and recommended termination on it, and a recipient who says the records are wrong is in effect attacking that employee's own work. Even a conscientious relay also filters the account, because a detail that seems unimportant to the person relaying it may be the one that changes the result. For these reasons the recipient must be allowed to state a position orally, in the recipient's own words, to the decisionmaker.⁴⁸

The oral presentation the Court required is a modest one. Informal procedures suffice, and due process does not require a particular order of proof or mode of offering evidence.⁴⁹ That limit follows from the same tailoring principle that rules out paper, which holds that the opportunity to be heard must be fitted to the capacities and circumstances of those who are to be heard.⁵⁰ A recipient who cannot write effectively also cannot be expected to organize testimony into a prescribed sequence or to offer evidence under formal rules, so a demand for formality would rebuild at the oral stage the same obstacle the written option posed. Informality also fits the function of the hearing at this stage, which is a quick first look at whether the department's grounds are valid, with fuller review to follow.

The two poles can be seen against the same program. A recipient who is allowed to appear before the official who finally decides eligibility, and to explain orally why the department's facts are wrong, has received the oral presentation that Goldberg requires. A recipient confined to a written statement and a caseworker's relay has not, which is the defect that sank New York City's procedure.⁵¹

The preference for oral presentation depends on the kind of factual question at stake. In Mathews the Court accepted a paper hearing before disability benefits were cut off, because that inquiry turned on routine medical reports that doctors could communicate effectively in writing, and the opportunity to give evidence orally added little value there.⁵² Disability claimants could also get help completing the forms from the local Social Security office, which removed the capacity problem that made writing unrealistic for welfare recipients.⁵³ The variables that moved the answer were whether credibility was likely to be in dispute and whether the claimant could realistically use a written channel. Later sections develop that comparison under the Mathews factors.

The usual exam error is to attack the notice, either its seven-day period or its form, when Goldberg upheld both. The winning argument on welfare facts is that the recipient had no chance to present arguments and evidence orally to the official who finally decides eligibility. A second error is to demand courtroom formality at that oral stage, although informal procedures suffice. Cross-examination of adverse witnesses is a separate element and belongs to the next subsection.

Confrontation and Counsel

The oral presentation described in the previous subsection lets the recipient tell the decisionmaker a side of the story, but the department's side of the dispute usually reaches the decisionmaker through other people. Goldberg adds two further elements aimed at that problem. The first is that the recipient must be given an opportunity to confront and cross-examine the witnesses on whom the department relies.⁵⁵ The second is that the recipient must be allowed to retain an attorney if the recipient wants one, although the state is not required to appoint one.⁵⁶ The two elements rest on different reasons, since the first follows from the kind of question being decided and the second from what a lawyer contributes to a hearing, so this subsection takes them in turn.

The cross-examination requirement reaches well beyond welfare. The Court stated the principle in general terms: in almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.⁵⁷ That statement ties the right to a feature of the dispute, namely whether the outcome depends on factual findings that someone's testimony supplies. The Court found the same idea especially apt in Greene v. McElroy, which says that when governmental action seriously injures an individual and the reasonableness of the action depends on fact findings, the evidence used to prove the government's case must be disclosed so that the individual can show it is untrue.⁵⁸

The reasoning in that passage has two steps, and each does separate work. Disclosure comes first, because a person who has not been shown the evidence cannot rebut it. The second step explains why testimony deserves more protection than paper: disclosure matters for documents, but it matters even more when the evidence is the testimony of people whose memory "might be faulty" or who may be "persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy."⁵⁹ A document can be checked against other records, but a witness's account depends on what the witness actually perceived, how well it is remembered, and what reason the witness has to shade it, and none of those features shows on the face of a repeated statement. Cross-examination puts those questions to the witness in front of the decisionmaker, who can watch the answers, so it tests testimony in a way that disclosure alone cannot. The Court described confrontation and cross-examination as the formal expression of these protections, with roots in the Sixth Amendment, and noted that it has guarded them in administrative cases as well as criminal ones.⁶⁰

The reasoning has particular force in welfare terminations. The department's case typically rests on facts gathered by a caseworker or reported by third parties, and eligibility questions often turn on patterns of behavior, such as whether the beneficiary is living with a man who is capable of supporting her children, so the veracity of witnesses matters a great deal.⁶¹ A neighbor, a former landlord, or an acquaintance who reports such a fact may be mistaken or may carry a grudge, and the recipient is the person best placed to know which. A recipient who can speak to the decisionmaker but cannot question the department's witnesses has therefore answered only half of the case against the recipient.

New York City's procedure lacked this element. Under Procedure No. 68-18, the recipient had no way, before aid stopped, to appear before the reviewing official, to present evidence orally, or to confront and cross-examine adverse witnesses.⁶² The Court treated those omissions as fatal to the constitutional adequacy of the procedures.⁶³ The procedure did promise confrontation later, because the post-termination fair hearing allowed the recipient to cross-examine the witnesses, but that hearing came after aid had already stopped, so it could not supply what the pre-termination stage lacked.⁶⁴

The right follows the kind of dispute, which is why the Court treated it differently when it later decided Mathews. There the Court accepted a paper process before disability benefits ended, because the decision was likely to turn on medical reports from treating physicians and on statistical evidence about available jobs, questions that can be aired effectively through an exchange of documents.⁶⁵ Disability claimants could also get help with the forms from the local Social Security office, so the written channel was realistic for them.⁶⁶ In that setting no witness's veracity was in play, and cross-examination would have added little. The variable that moved the result was the kind of question being decided: where the question is a routine medical one, a written exchange tests the evidence, and where the question is a person's credibility, only live questioning does. The Mathews sections below return to that comparison.

The second element concerns lawyers. The Court grounded it in a principle from Powell v. Alabama: "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel."⁶⁷ Applied to welfare hearings, that principle yields a modest rule, which is that the recipient must be allowed to retain an attorney if the recipient so desires.⁶⁸ The Court listed what counsel contributes: a lawyer can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination, and generally safeguard the recipient's interests.⁶⁹ The third item connects the two elements of this subsection, since questioning a witness is a skill, and a recipient who lacks the education to write effectively, as the previous subsection noted, may well lack the skill to question one. The Court did not expect this assistance to prolong or encumber the hearing unduly, and it observed that the federal welfare agency's own regulations evidently reached the same conclusion.⁷⁰

The rule is a permission, and the Court was explicit that it went no further: it did not say that counsel must be provided at the pre-termination hearing.⁷¹ That boundary follows from the function of this stage. The early hearing is a quick first look at whether the department's grounds are valid, with a fuller fair hearing to follow, so a duty to supply and pay for a lawyer in every termination would add expense and delay to the step whose value depends on speed. Permission costs the agency nothing, which is why the Court could require it without disturbing that design. The procedures the Court left out of the pre-termination hearing include the assignment of counsel, a complete record, and formal findings of fact.⁷² The practical result is that a recipient who has a lawyer cannot be turned away, while a recipient who cannot pay for one has no constitutional claim that the state furnish one, so the value of the right depends on whether the recipient can find a lawyer.

Two errors recur on exams. One reads Goldberg as entitling an indigent recipient to a state-paid lawyer, when the holding is that the recipient must be allowed to retain one. The other treats cross-examination as a fixed feature of every administrative hearing, when the Court tied it to settings where important decisions turn on the testimony of witnesses, which is why paper review of medical reports was acceptable in Mathews. On welfare facts that show a termination resting on someone's disputed statement, the missing opportunity to question that person is the argument to make. The last group of Goldberg elements concerns the decision itself, and the next subsection takes up the requirement that it rest on the hearing record and come from an impartial official.

Impartial Decision on the Record

The last group of Goldberg elements concerns the decision itself, and it asks three things of the person who decides. The conclusion on eligibility must rest solely on the legal rules and the evidence adduced at the hearing, the decisionmaker should state the reasons for the determination and indicate the evidence relied on, and the decisionmaker must be impartial.⁷⁴ These correspond to the fifth, sixth, and fourth items in the six-part list that Mathews v. Eldridge later used to describe what a Goldberg-type hearing contains.⁷⁵ The earlier elements gave the recipient ways to put a case before the decisionmaker, and these last three determine whether the case put forward actually controls the outcome. Each has its own reason, and they are taken here in an order in which each depends on the one before.

The first requirement is that the decision rest solely on the legal rules and evidence adduced at the hearing.⁷⁶ The reason lies in how the earlier elements operate. Oral presentation and cross-examination test the department's evidence only if the decisionmaker relies on what survives that testing. A reviewing official who also draws on file notes, private conversations with the caseworker, or impressions formed before the hearing has decided on material the recipient never saw, so the recipient had no chance to show it untrue. That chance is exactly what the Court said disclosure of the government's evidence exists to secure, in a passage stressing that testimony needs more protection than documents.⁷⁷ Without a record limit, the hearing becomes a ritual staged in front of a decision made elsewhere, and the rights to present evidence and to confront witnesses lose their effect.

The second requirement supplies the proof that the first was followed. To demonstrate compliance with the record requirement, the decisionmaker should state the reasons for the determination and indicate the evidence relied on.⁷⁸ A decisionmaker who must write down which evidence supports the result cannot comfortably rely on something outside the record, because an outside source or a gap in the support would show on the page. The statement also gives the recipient something specific to contest in later proceedings and gives a reviewing body something to check. The statement is a modest one, however. It need not amount to a full opinion or even formal findings of fact and conclusions of law.⁷⁹ Among the usual features of an administrative trial, the Court left out a complete record or comprehensive opinion, the assignment of counsel, and formal findings.⁸⁰ That omission fits the function of this stage. The pre-termination hearing is an initial check on the department's grounds, and a post-termination fair hearing follows at which the recipient may appear, offer oral evidence, cross-examine witnesses, and have a record made, with judicial review available afterward.⁸¹ A full record and opinion mainly serve that later review, so demanding them at the first stage would duplicate what the later stage supplies and slow the step whose value depends on speed.

The third requirement is an impartial decisionmaker, which the Court called essential.⁸² The mechanism here is an incentive problem. An official who made the determination under review has a stake in vindicating it, because reversing it means finding that official's own earlier work mistaken, and a decisionmaker in that position is unlikely to credit the evidence that reveals the mistake. With no neutral listener, oral presentation and cross-examination cannot change anything, which is the same empty-gesture problem that arose in the discussion of meaningful hearings earlier in this chapter. The line is drawn carefully, though. Prior involvement in some aspects of a case does not necessarily bar a welfare official from acting as decisionmaker, but the official should not have "participated in making the determination under review."⁸³ That line does not demand an outside tribunal, so the first-stage hearing can remain a quick, informal review inside the agency, and it still excludes the one person whose stake in the outcome is greatest. New York's own regulation reflects the same structure, since the reviewing official had to hold a position superior to the supervisor who approved the proposed discontinuance.⁸⁴ A comparable standard governs hearings on transferring a prisoner to a mental hospital, where the decisionmaker must be independent but need not come from outside the prison or the hospital.⁸⁵

The usual exam error takes two forms. One is to insist that the decisionmaker come from outside the agency, or to treat any earlier contact with the case as disqualifying, when the line excludes only a person who participated in making the determination under review. The other is to demand a transcript, formal findings, or a full opinion at the pre-termination stage, when a brief statement of reasons and the evidence relied on suffices.

With these elements in place, the full Goldberg package is on the page: notice, oral presentation, confrontation, counsel, and a decision made impartially on the record. Together they come very close to an administrative trial, and Mathews later used the term evidentiary hearing to mean a hearing generally of that type.⁸⁷ The package was tied to the stakes of a welfare cutoff, so it is the outer end of the range of required process. That leaves a question for every other program. If Goldberg's package is the maximum, something must govern when the interest at stake is less urgent. Mathews answered that finding a protected interest does not settle what process is due, because the requirements of due process are flexible and depend on the circumstances of the particular case.⁸⁸ The next section takes up the test that organizes that inquiry.