State Action and Procedural Due Process

Question 1

State Action

Answer 1

Authority - 13A (outlaws slavery and involuntary servitude) applies directly to private parties and individuals but is narrow in its focus

14A- other individial rights apply to state and localities through the 14A which requires state action

“State Action” - government action, whether state or local (ex: city firing a sheriff, county denying a permit)

Further Test - when unclear, government cannot be significantly involved in private discrimination; signficant statement involvement:

1. government cannot fasciliitate private discrimination
2. government cannot profit from private discrimination
3. government cannot enforce a private agreement to discriminate
4. but government is not required to prevent private discrimination

TL;DR - government acts constitutionally so long as its own conduct is neutral and even handed (trespass laws, liquor licenses for private clubs)

Anti Discrimination Statutes - state action is required to show a violation of the constitution and is irrelevent if there is anti-discrimination legislation

Question 2

Procedural Due Process - Right to Notice and a Hearing p1

Answer 2

Consists of Two Questions :

1. Is life, liberty, or property being taken?
2. If life, liberty, or property is being taken, what process is due?

Life - death penalty requires procedural due process

Liberty - physical confinement (arrest), probation and parole, physical injury (school spanking), restriction on legal rights (punishment for free speech); injury to reputation is not a loss of liberty

Property -house or car; you have a property interest in your government job/benefit whenever you have a legitamate entitlement to continued enjoyment of the job or benefit; mere expectation of continued emplyoment/benefit does not suffice but an entitlement does

Entitlement v Expection - government jobs are entitlements only when gov says so, such as by providing a contractual term or discharge only “for cause”

Deprivation - requires the intentional taking away of a life, liberty, or property; notice and a hearing are not required when there is an accident; random negligence by a state employee does not constitute deprivate of LLP;

Note - property is most heavily tested

Question 3

Procedural Due Process - Right to Notice and a Hearing p2

Answer 3

If LLP is being taken by the government, what process is due?

General - types of hearings range from casual to elaborate

Factors - to decide what kind of process is due, courts balance three factors

1. The individual interest at stake (life, liberty, property)
2. The value of the procedure in protecting that interest
3. The governments interest in efficiency and cost

Time -

sometimes a hearing must occur before the deprivation (ex: termination of welfare benefits, non emergency revoactions of drivers license)

sometimes hearing can occur after action so long as the hearing is prompt and fair (ex: terminating disability benefits, dismissing students for academic reasonas)

Public Employees - public employees who can be fired only “for cause” must be given opportunity to be heard prior to discharge unless there is a significant reason not to keep the employee on the job; if significant reason not to keep person on job, then may dischange and have hearing after