Monday, October 4, 2010

Life's not fair, and neither is the due process clause

The due process clause is all about fairness. If the government wants to deprive you of a property or liberty interest, it has to do so fairly. Easier said than done. The courts have interpreted the due process clause in a way that balances the rights of the individual with the government's interest in efficiency. You are entitled to be heard before the government makes its decision, but the government has a lot of leeway.

The case is Faghri v. University of Connecticut, decided on September 17. Faghri lost his First Amendment retaliation claim, described here. He also brought a due process claim because the public college took away his position as Dean of the School of Engineering after, inter alia, his colleagues complained about him. Assuming he has a property interest in the position, his due process rights are minimal, and he loses the case.

The Second Circuit (Leval, Hall and Murtha [D.J.]) notes that while due process entitles you to notice and a hearing prior to the deprivation, that does not mean you get a full-blown evidentiary hearing with a court reporter and neutral judge. The Court says that "the requisite hearing is a minimal one, designed to serve as an initial check against mistaken decisions. It need not be conducted before a neutral decisionmaker, and it is not intended to resolve the propriety of the discharge, but to ensure there are reasonable grounds to find the charges against the employee are true and would support his termination." However, when the plaintiff is demoted and not terminated, his due process rights are even more limited. Here is the crux of the Second Circuit's decision, which affords management significant leeway in efficiently disciplining managers like Faghri:

Faghri (who was not terminated, but merely demoted) received oral notice of the university’s intent to remove him from the deanship, a brief explanation of the university’s evidence, and an opportunity to be heard. Nicholls summoned him to a face-to-face meeting and told him the university’s reason. Faghri had the opportunity in that meeting and immediately afterward to respond. As a sophisticated actor holding a prominent position in the university hierarchy, Faghri was well-equipped and well-positioned to make use of that opportunity. Any significant delay to afford Faghri more time to construct a response, during which time he would remain in his position, would have been detrimental to the university’s interest in its efficient governance. Faghri furthermore did not request additional time to mount a defense or present explanations. No clearly established constitutional law required the university to provide additional predeprivation process to such a management and policymaking employee in these circumstances.

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