In addition to criminal defense, or perhaps as a natural extension thereof, I frequently represent citizens at disciplinary hearings. By “disciplinary hearings” I mean hearings held to determine whether a student may continue their education at a specific public university, or, whether a person may keep a state-issued license (e.g., professional licenses, or driver’s license). The “triggering event”—the event that causes the hearing to be had—is not necessarily a criminal offense, but more often than not is. (A student, for example, might face such a hearing if the student is alleged to have cheated on an exam or disrupted class. Or, if the student is alleged to have committed a criminal offense, such as an assault, or is alleged to have possessed drugs.) In such instances, Constitutional protection comes into play.
When Due Process Comes Into Play
The Fourteenth Amendment to the Constitution of the United States guarantees that no citizen shall be deprived of “life, liberty, or property, without due process of law.” This provision is commonly referred to as the Due Process Clause of the Fourteenth Amendment. Simply put, the Due Process Clause forbids arbitrary deprivations of liberty—the Government (state or federal) cannot take your property, deprive you of your freedom (or kill you) without first affording you due process of law. Thus, “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” the minimal requirements of the Due Process Clause must be satisfied. See Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); and Goss v. Lopez, 419 U.S. 565 (1975). Or put another way, “[w]henever a governmental body acts so as to injure an individual, the Constitution requires that the act be consonant with due process of law.” Dixon v. Alabama, 294 F.2d 150, 155 (5th Cir. 1961)(quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 163 (1951)).
Deprivation
So if the Government (state or federal) is going to take some liberty or property interest away from a person, the person is entitled to Due Process of Law. “Property” includes things like licenses, as well as those thing you might expect: your job, house or car. “Liberty” includes liberty interests, such as your interest in attending school, or keeping your position at your job. What matters as far as Due Process is concerned is that the property or liberty interest is being deprived. So, for example, the Due Process Clause does not require that an alien never be admitted to the United States previously be granted a hearing before being excluded. United States v. Shaughnessy, 338 U.S. 537, 542 (1950). (The executive power to exclude an alien from the United States belongs to Congress.) But, once an alien has been admitted into the United States, he or she cannot be deported without the Due Process Clause being implicated. Kwong Hai Chew v. Colding, 344 U.S. 590 (1953). The difference is that to deport or expel an alien who has previously been admitted is necessarily to take away a right that exists, versus to deny a right where none exists.
Rights v. Privileges
Now, occasionally, the university or your state employer might argue that you don’t have a constitutional right to attend college or to work for the city—that such things are privileges, and not constitutional rights—so Due Process is not implicated. “Rights” are those items contained in (or emanating from) the Constitution—the right to travel freely among the states, the right to bear arms, the right to marry (a consenting adult), the right to family planning, and so on. “Privileges” are things like driving, attending school, and such. This distinction misses the point, though. “One may not have a constitutional right to go to Bagdad [Baghdad], but the Government may not prohibit one from going there unless by means consonant with Due Process of law.” Dixon, 294 F.2d at 156 (citing Cafeteria & Restaurant Workers’ Union v. McElroy, et al., 81 S.Ct. 1743 (1961)). Meaning, the simple assertion that, because one does not have the constitutional right to a job or to attend school one is not entitled to any protection upon suspension or termination, is not the proper focus of whether Due Process is implicated; instead, “the nature of both the private interest which has been impaired and the Governmental power which has been exercised” is the proper consideration in such cases. Dixon, 294 F.2d at 156.
State Actor
Notice that the Fourteenth Amendment requires a “state actor,” as the Fourteenth Amendment protects us from the actions of the State—not from private individuals. But “the State” is defined broadly. Very broadly. The Fourteenth Amendment, as applied to the States, “protects the citizen against the State itself and all of its creatures—Boards of Education not excepted.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 637 (1943). Indeed, “education is perhaps the most important function of state and local governments.” Brown v. Board of Education, 347 U.S. 483, 493 (1954). Meaning, a public university or high school, as part of the large concept of The State, is by no means exempt from the Fourteenth Amendment. When does a public university implicate the protection of the Fourteenth Amendment? When it seeks to deprive a person of his or her property of liberty—say, for example, when a university is going to fire a teacher, or suspend or expel a student. This is so because the student
Thus, because suspension or expulsion seriously damages a student’s reputation within his or her immediate and extended educational and social community, as well as the prospect that the student could successfully transfer to another equally reputable university (and, by extension, thereby effects his or her future employment opportunities), Due Process is implicated wherever a student at a public university faces suspension or expulsion. It is worth noting that this is not necessarily true at private universities: relations between private universities and students are governed by contract law, and thus, students could as a term of that contract be required to waive their rights to Due Process. However, public universities cannot condition attendance on waiving Due Process. The Government cannot condition the granting of even a privilege upon the renunciation of the constitutional right to procedural Due Process. See, e.g., Dixon, 294 F.2d. at 156-7; Slochower v. Board of Education, 350 U.S. 551 (1956); Wieman v. Updegraff, 344 U.S. 183 (1952); United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75 (1947), and Shelton v. Tucker, 364 U.S. 479 (1960).