Process in Common Contexts

The Mathews test does not announce a single package of procedures. It supplies a method, and the method yields different results as the facts it weighs change. The three factors are the private interest affected, the risk of an erroneous deprivation together with the value of added safeguards, and the government's interest in the function involved and the burden of extra process.¹ Applied by the Court, those factors have required an oral evidentiary hearing before AFDC benefits end, a written exchange of data and views before Social Security disability benefits end with an oral hearing available afterward, and only a brief informal meeting with a school official before a public school student is suspended.² Those outcomes lie along a spectrum, with the trial-like hearing of Goldberg at one end and informal discussion at the other. A setting's place on it follows from how each factor comes out. The private interest weighs more as the loss grows more serious and the claimant's fallback resources shrink. Added safeguards earn more value when the dispute turns on whose account to believe, and they earn less when it turns on documents. The government's interest pulls the other way, and it grows when decisions are frequent, the deprivation is brief, and the agency must keep running.

What stays constant across the spectrum is the baseline of notice and an opportunity to be heard, so the work in a new setting lies in comparing the facts with those of decided cases and asking which decided case the setting most resembles.³ Public employment and school discipline are the two settings that exams return to most often, because each puts a different set of stakes and a different kind of dispute in front of the same three factors. A public employee dismissed from a job that can be lost only for cause has a livelihood at stake, while the employer is a government with a real interest in removing a worker who cannot be trusted with the position. A student facing a short suspension loses far less, the facts are usually simple and narrowly disputed, and the school's interest in discipline and order is substantial, which is why the process due there falls near the informal end of the range. Goss v. Lopez, decided one year before Mathews, shows the same weighing at work: the Court began with the student's interest in avoiding unfair or mistaken exclusion and then asked how much risk of error remains when disciplinarians act on the reports of others.⁴

Each context is therefore best analyzed in the same order. First identify the interest, then ask what the dispute actually turns on, then weigh the cost of added process, and finally place the result on the spectrum between Goldberg and the informal meeting. The first context, Public Employment, takes up what a public employee with a property interest in the job is owed before termination.

Public Employment

A public employee's claim to process starts with the gatekeeper question that opened this chapter. The clauses protect a job only if the job is property, and whether it is property depends on what the employer's own law has promised. A government worker who has been given assurances of continued employment, or of dismissal only for specified reasons, holds a legitimate claim of entitlement to the position, and the assurance may come from a statute, from formal contract terms, or from the acts of a supervisor with authority to set the terms of employment.⁵ In practice the protection reaches employees covered by civil-service laws, officers appointed for a fixed term, officials who hold their positions for good behavior, and any other officer or employee who can be dismissed only for cause under a relevant law or contract.⁶ The for-cause limit also gives the later hearing real work to do. Cause means a substantial fault or shortcoming in the worker that bears a substantial relation to the impairment of public service, so an employee facing dismissal can dispute both whether the fault occurred and whether it is serious enough to matter.⁷

The same analysis explains why an at-will employee has no procedural due process claim. A person hired for a position that is clearly terminable at the will of superiors has no property interest that calls for a fair procedure before removal.⁸ Employees with no statutory, charter, or contract rights in their jobs can be dismissed without notice or hearing, and that is not a violation of procedural due process.⁹ In Bishop v. Wood an employee was fired without any hearing under a law that seemed to call him a permanent employee dismissible only for failing to perform competently, but the Court accepted the lower court's reading of state law that he held the job at the will and pleasure of city officials, and it held that the state may define the terms of employment so as to preclude a claim of entitlement.¹⁰ The variable that separates Bishop from a for-cause case is whether state or local law, as authoritatively read, limits the reasons for dismissal, and a title such as permanent does not supply that limit if the law reads otherwise. An at-will employee is not left with nothing. A dismissal may not rest on the employee's exercise of constitutional rights.¹¹ A dismissal that publicly stigmatizes the employee can also support a liberty claim to a name-clearing hearing, as the discussion of liberty interests earlier in this chapter explained.¹²

Once the job is property, state and local law has done its work, and the question of how much process is due belongs to federal law. Because the employers in these cases are typically states, cities, and school boards, the claim arises under the Fourteenth Amendment, while a federal agency employer is governed by the Fifth.¹³ In Cleveland Board of Education v. Loudermill the government admitted that the employee had a property interest in his job, and local law gave him no hearing before termination, only a chance to have the dismissal reviewed later.¹⁴ Justice White's opinion treated local law as relevant only to whether an entitlement exists, and it rejected the idea that a legislature could push the procedures for dismissal below the constitutional minimum by deciding that the employee deserved few safeguards.¹⁵ The reason is structural. If the body that creates an entitlement could also define the process for taking it away, it could grant a job that is protected in name and remove it through a procedure of its own design, and the Due Process Clause would check nothing. A state may therefore specify the procedures for terminating an entitled employee only if they meet or exceed what due process requires.¹⁶ What process is due remains a question of federal law, and it is not necessarily limited to the process set out in the relevant state or local law.¹⁷

Hypothetical Illustration

A county employs two clerks in the same office. The first is covered by a civil-service ordinance that permits dismissal only for cause and provides only for review after a dismissal takes effect. The second was hired under a charter provision that lets the appointing officer remove clerks at pleasure. On the same morning the county discharges both, with no notice or hearing, for the same alleged mishandling of cash receipts. The first clerk holds a property interest, and the county cannot defend itself by pointing to an ordinance that offers only later review, because local law does not lower the constitutional minimum. The second clerk holds no property interest, so the identical dismissal raises no procedural due process claim, although a separate claim could arise if the dismissal punished protected speech or came with public charges that stigmatized the clerk.

What the Constitution requires for the entitled employee is less than a hearing in the sense of Goldberg v. Kelly. The Court held that such an employee is entitled before termination only to an opportunity to respond to the charges, followed by a post-termination hearing that reviews the decision made through the informal or summary early process.¹⁸ The opportunity to respond has three components: oral or written notice of the charges, an explanation of the employer's evidence, and a chance to present the employee's side of the story.¹⁹ The response may be written or in person, so the employer controls the format.²⁰ Loudermill's version is a slightly more elaborate form of the informal oral hearing approved in Goss v. Lopez for a short school suspension.²¹ Each component does a different job. Notice of the charges tells the employee what to answer, the explanation of the evidence lets the employee test the employer's version against what the employee knows, and the chance to respond puts the employee's account in front of the decisionmaker before the decision is final.

The Court reached that package by applying the three Mathews factors, and each shows up in the result. On the first factor, the interest of an employee who holds an entitlement to the job is significant.²² On the second, terminations often involve factual disputes or difficult questions about whether discharge is appropriate or necessary, so a chance to respond before the decision helps avoid erroneous or unjustified dismissals.²³ The response has value even when the underlying facts are not in doubt, because a for-cause standard leaves a judgment to be made about whether the fault is serious enough to justify losing the job, and that judgment is one an employee's explanation can influence. On the third, the employer's interest in avoiding the cost and delay of pre-termination proceedings did not outweigh the employee's claim to fair treatment before the job is lost, but the interest was strong enough to establish that the pre-termination step is necessary without being elaborate.²⁴

The early step can be brief because it is only the first of two stages. The Court upheld a Goss-type consultation before the initial termination of a tenured employee, relying in part on the employee's opportunity for a trial-type administrative hearing after the termination, and it treated the pre-termination process as essentially a reasonable-cause check on the charges.²⁵ Bare-bones pre-termination procedures that give notice of the factual basis for the decision and a chance to respond, in writing or in person, can therefore satisfy due process when a more robust post-termination hearing follows.²⁶ The stages divide the work. The early step screens out mistakes cheaply and keeps the employer from acting on an accusation no one has answered, while the later hearing supplies the thorough testing of the evidence. Loudermill therefore sits between the informal give-and-take of Goss and the near-trial of Goldberg, because the Court has given government employees some pre-termination rights without requiring the formal proceedings it required before subsistence welfare benefits end.²⁷

The post-termination hearing completes the structure, and its remedy explains why a short early step is tolerable. When review of a dismissal finds that the employer lacked adequate cause to remove an employee who could be dismissed only for cause, courts order reinstatement with back pay.²⁸ The employee's uncompensated loss is then the interim wait, which echoes the point from the private-interest factor that retroactive relief shrinks a deprivation without erasing it. That is also why the later hearing cannot replace the early one. A dismissed employee who must wait for review has already lost the job and the paycheck, and an employer that fires first has already acted on a charge no one has tested.

Hypothetical Illustration

A state agency learns from an audit that a for-cause analyst appears to have falsified travel claims. A supervisor hands the analyst a letter describing the claims at issue, shows the analyst the receipts the audit relied on, and allows three days to reply in writing or in person. The analyst replies, the agency dismisses the analyst, and a full evidentiary hearing before a hearing officer is scheduled for the following month. Every element of the Loudermill process is present. Change one fact: the supervisor instead announces that employment ends today, without describing the charges or showing the receipts, and points to the later hearing as the place to contest the matter. The later hearing may be adequate in itself, but the missing notice, explanation, and chance to respond before the decision means the early check against mistake never occurred.

Exam Analysis Steps

Because the claim has a threshold question about the job and then two layers of process, a public employment problem is best worked in a fixed order. The steps are these:

Ask whether the employee holds a property interest, which is true when a statute, civil-service rule, contract, or authoritative assurance allows dismissal only for cause or for specified reasons, and false when the employee serves at will.
If the interest exists, ask whether the employer gave oral or written notice of the charges and an explanation of its evidence before terminating, remembering that a local rule offering only later review cannot lower this requirement.
Ask whether the employee had an opportunity to respond, in writing or in person, before the decision was made, and treat the response as sufficient even though it is far less than a trial-type hearing.
Ask whether a full post-termination hearing is available to review the decision, because the thin first stage depends on it.
If the employer acted before any hearing because the employee had been charged with a serious crime, ask whether a prompt post-suspension hearing followed.

The last step marks the one setting in which the employer may act first and respond later. Loudermill's logic recognizes the government's occasional need to act promptly with process to follow, as where an employee is suspended upon facing a serious criminal charge.²⁹ The criminal process matters because it stands in the place of agency pre-deprivation process and supplies at least some basis for concluding that the initial deprivation is warranted.³⁰ The Court applied that reasoning in Gilbert v. Homar, where a university suspended without pay a police officer who had been arrested and formally charged with a felony, and then provided a prompt hearing.³¹ Two ingredients make the exception work. The employer has a significant reason not to keep the employee on the job while a felony charge is pending, and a neutral process outside the employer has already found grounds for the charge. The postponed hearing must still arrive promptly, as when a state suspended a horse trainer's license without a prior hearing and the Court required a prompt post-suspension hearing to verify the charge.³²

Several errors recur on exam problems in this area. The first is to demand a trial-type pre-termination hearing for a for-cause employee, which confuses Loudermill with Goldberg, because the employee is owed an opportunity to respond early and a full hearing later. The second is to treat a post-termination hearing alone as sufficient, which overlooks that the early opportunity to respond is itself required. The third is to accept the employer's argument that its own ordinance or charter fixes the process, when local law answers only whether the entitlement exists. The fourth is to find a property interest in any public job, when an employee who serves at will has none and the analysis ends at the threshold. On a fact pattern with a for-cause employee, check the three early elements, then the later hearing, and treat a pending felony charge as the fact that lets the employer suspend first.

School Discipline and Dismissal

Public school discipline sits near the informal end of the range that the Mathews factors produce, and the decision that fixed its position, Goss v. Lopez, came one year before Mathews itself.³⁵ The plaintiffs were Ohio high school students suspended for ten days during a period of widespread student unrest, and none received a hearing before the suspension began.³⁶ One alleged that he was an innocent bystander to a lunchroom disturbance for which at least 75 other students were suspended, and another allegedly was present at a demonstration at a school other than her own.³⁷ The first question was whether the suspensions took a protected interest, and the Court found two. Ohio law gave the students a legitimate claim of entitlement to a public education, which is property in the sense developed earlier in this chapter, and a suspension also reached liberty because it could damage a student's standing with classmates and teachers and interfere with later opportunities for education and employment.³⁸

With that gatekeeper question answered, the Court turned to how much process was due, and its reasoning previews the three Mathews factors. The student's interest is in avoiding unfair or mistaken exclusion from school, and an unwarranted suspension disserves the state's interest as well as the student's.³⁹ The risk of error is real, because disciplinarians, even when acting in utmost good faith, frequently rely on the reports and advice of others, and the controlling facts are often disputed. In the Court's words, "[t]he risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the educational process."⁴⁰ The school's interest is also substantial, since large and complex schools need some modicum of discipline and order, disciplinary events are frequent and sometimes demand immediate action, and a suspension is a valuable educational device.⁴¹ Those weights favor a safeguard that costs almost nothing and takes little time, and they leave no room for a proceeding that would burden every suspension with the machinery of a trial.

The safeguard the Court prescribed has three parts. A student facing a short suspension must receive "oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story."⁴² The Court described this as an "informal give-and-take between student and disciplinarian," and it allowed notice and hearing to follow immediately after the misconduct, so a disciplinarian may talk with the student minutes after an incident, provided the student is first told the accusation and its basis.⁴³ Even a disciplinarian who personally saw the conduct must offer the conversation, because things are not always as they seem, and the student can at least characterize the conduct and put it in what the student considers the proper context.⁴⁴ Each part does one job. Notice tells the student what to answer, the explanation of the evidence lets a denial be tested against what the school actually has, and the chance to speak puts the student's account before the decisionmaker while the decision can still change. The whole exchange takes minutes, which is why it fits the school's need for speed.

Procedures beyond those three are not required for a suspension of this length. The Court held that the ten-day suspensions did not call for the opportunity to secure counsel, to confront and cross-examine the witnesses supporting the charge, or to call witnesses to verify the student's version, although a disciplinarian may choose to give more.⁴⁵ Those omitted elements are the ones Goldberg v. Kelly required when a welfare cutoff threatened subsistence and eligibility turned on witness credibility, and adding them to a brief suspension would impose delay and formality out of proportion to the loss. The Court has stated the general lesson directly: it is reluctant to impose the full panoply of trial-type procedures when a reasonable likelihood exists that less burdensome oral proceedings will adequately protect the individual's interest.⁴⁶

Hypothetical Illustration

A public high school suspends a student for eight days for fighting. Before the suspension takes effect, the assistant principal tells the student what he is accused of doing, describes the two teacher reports on which the accusation rests, and listens while he explains that the other student threw the first punch. The student's request that a lawyer attend is refused, and no witnesses are called. The process meets the Goss requirements, because the student had notice, an explanation of the evidence, and a chance to tell his side. Change one fact: the assistant principal hands the student a suspension slip reading "fighting" and sends him home without describing the evidence or asking for his account. The suspension is the same length, but the student never had an opportunity to respond, so the process falls short.

Timing follows the same pattern. In the ordinary case the informal give-and-take must come before the suspension, but a student whose presence poses "a continuing danger to persons or property or an ongoing threat of disrupting the academic process" may be removed immediately, with process to follow "as soon as practicable."⁴⁷ The reason is that the removal itself protects people and the school's work, and a conversation held first would leave the danger in place while it took place. This is the emergency idea from the timing section applied to the classroom, and the Mathews framework accommodates it because it does not require schools to give dangerous or unruly students a hearing before removing them.⁴⁸ The exception is confined to danger and disruption, so an ordinary rule violation gives no ground to suspend first and talk later.

The Goss conversation is a floor for short suspensions and does not cap the process due in every school case. The Court's acceptance of a minimal exchange depended in part on the suspension being short, and it recognized that longer suspensions or other unusual situations may require something more formal.⁴⁹ Where the student's interest weighs more heavily or the need for accuracy is greater, an oral consultation alone will not suffice.⁵⁰ Recent court of appeals decisions on university discipline show the direction of the adjustment. Where a student charged with serious misconduct establishes a protected interest, the hearing must be more formal than Goss's give-and-take yet less formal than a full Goldberg hearing, and the circuits have divided over whether cross-examination is required.⁵¹ The first Mathews factor explains the movement, since a dismissal or a finding of serious misconduct carries lasting consequences that a ten-day suspension does not.

Dismissal for academic reasons is a different kind of decision, and Board of Curators v. Horowitz shows how much less process the Court required. A medical student had to earn satisfactory evaluations from faculty doctors for her clinical work in several hospital departments. After a faculty doctor expressed dissatisfaction with her performance in pediatrics, a faculty-student council recommended that she advance only on probationary status, she continued to receive unsatisfactory evaluations, and the Dean notified her of that fact.⁵² The council then recommended that she be dropped unless her performance greatly improved, and she was allowed to challenge that recommendation by taking oral and practical examinations reviewed by seven practicing physicians, only two of whom thought she should graduate on schedule.⁵³ After further low evaluations the council recommended that she not be allowed to re-enroll, and the Dean and a university provost approved that recommendation after reviewing her academic record.⁵⁴ All nine Justices agreed that she had been given all the procedural due process she was owed, although she received no formal hearing.⁵⁵

The Court's reasoning separates academic from disciplinary decisions. It found it unnecessary to decide whether the student held a protected liberty or property interest, because she had received a fair procedure even if she did, and it distinguished Goss as a disciplinary case in which an informal hearing lets a student present a side of the story and so reduces wrongful suspensions.⁵⁶ Even though the severity of an academic dismissal might be greater, the Mathews balance required fewer safeguards because there was less chance of wrongful dismissal, and all that was required was notice to the student and some fair procedure for evaluating and reviewing the academic record.⁵⁷ The mechanism follows from the kind of question each decision asks. A disciplinary charge accuses the student of doing something, a historical fact the student may be able to refute in a few sentences. An academic dismissal judges whether performance meets professional standards, a judgment formed from many evaluations by faculty over time, so no single disputed event exists for a conversation to correct, and an adversarial hearing would put the experts' cumulative assessment on trial before people less able to make it. The Court also observed that the school had followed its own rules, and it added that courts will not review the substance of an academic dismissal under due process unless it is clearly arbitrary or invidious.⁵⁸

The classification can itself be contested. For the majority, the outcome turned on characterizing the dismissal as one for academic failure, while Justice Marshall questioned the weight of that label and pointed to record evidence that the dismissal was disciplinary in nature.⁵⁹ The practical question on an exam is whether the school is accusing the student of conduct, which calls for a chance to answer the accusation, or evaluating how well the student performs, which calls for notice of the deficiency and careful review.

Corporal punishment follows a separate path, because the Court in Ingraham v. Wright held that a damages action against the teacher supplies the process due, as the earlier discussion of post-deprivation judicial remedies explained.⁶⁰

Exam Analysis Steps

Because the process due in a school case depends on what kind of decision the school made and how heavy its consequence is, the problem is best run in a fixed order. The steps are these:

Ask whether the student holds a protected interest, which a public school student ordinarily does through a state-law entitlement to an education, with liberty also engaged when the suspension might limit the student's employment or associational opportunities.⁶¹
Classify the decision as disciplinary, meaning an accusation about the student's conduct, or academic, meaning an evaluation of the student's performance.⁶²
For a disciplinary suspension of up to ten days, ask whether the student received oral or written notice of the charges and, if the student denied them, an explanation of the evidence and a chance to tell the student's side before the suspension began.⁶³
If the school acted first, ask whether the student's presence posed a continuing danger to persons or property or an ongoing threat of disrupting the academic process, and whether process followed as soon as practicable.⁶⁴
For an academic dismissal, ask whether the student was informed of the deficiency and whether the school reached its decision through a fair, careful review of the academic record.⁶⁵
For a longer suspension, a serious misconduct charge, or an unusual situation, ask whether the weight of the interest and the risk of error call for more formality than the Goss conversation.⁶⁶

Two mistakes recur on exams. The first is to carry Goldberg's package into a short suspension by demanding counsel, cross-examination, or a trial-type hearing, when Goss required only an informal conversation. The second is to skip the classification step, applying a Goss conversation to a performance-based dismissal as if it were a misconduct charge, or the reverse, when the first calls for an opportunity to answer an accusation and the second calls for notice of the deficiency and careful review. A related error treats removal before any process as available for every suspension, when that option exists only for a student whose presence poses a continuing danger or an ongoing threat of disruption.