Analysis: Substantive and Procedural Due Process Rights of Educators

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This is an education law and administration article . It briefly reviews NYS Governor Cuomo's actions as they relate to New York State's statutory tenure laws for educatora.

What are the substantive and procedural due process rights of educators? What are the purposes of such? The purpose of this article is to address these questions as they relate to educators.

The due process of law clause gets its authority from both the Fifth and Fourteenth Amendments which assure that no person shall be deprived of “life, liberty, or property without due process of law”. No theory in law is more critical to individual rights and freedoms than due process. Most people assume due process is simply the opportunity to be heard, receive notice, and to have a meaningful hearing. But, due process entails much more. The purpose of this article is to detail the much more.

Foremost, the purpose of due process is to extend justice and fairness to the individual in relationship to government. Due process provides a protection for individuals from the encroachment of the state on individual rights and interests. Above all, due process was established to provide a fundamental balance between the rights of individuals and the exercise of the authority of the state.

Due process is founded in the Magna Carta, signed by King John in 1215. The Magna Carta is an important historical document that took some power away from the king and gave some rights and freedoms to the people. This is a critically important document as it relates to due process because the Magna Carta was the document written specifically to curb the power of the king. It demonstrated that the power of the king could be limited by a written grant.

The most famous passage in the Magna Carta is Clause 39 which is called the grandfather of due process provision. This clause states that: "No free man shall be taken or imprisoned or dispossessed, or outlawed or exiled, or in any way destroyed, nor will we go upon him, nor will we proceed or prosecute him except by the lawful judgment of his peers or by the law of the land."

Please note that the “law of the land” term has become known down through the centuries as due process of law.

With respect to the specific due process rights of educators, there are four aspects of due process. Each one is derived from the authority of the federal Constitution and each one has been challenged in the courts in education litigation. The four aspects of due process are:

Substantive due process

Procedural due process

The vagueness test

The irrationality and presumption test

This article will summarize substantive and procedural due processes as it relates to educators. The next article will review the other two. Educators have a substantive interest in their employment via one’s right to be employed in one’s chosen occupation. This is supposed to be protected under substantive due process.

The U.S. Supreme Court ruled in Board of Regents v. Roth that to deny employment as a teacher may implicate both liberty and property interests under the Due Process Clause. This means that the substance of due process, comes from the words: life, liberty, and property and this includes the implicit and the explicit meanings.

Consequently, governmental intrusion into an educator’s life, liberty and property is limited and can only occur after justification is established by procedural due process. The state cannot deny a substantive right without a fair hearing. This means that when an educator’s life, liberty, reputation and or pay are being slaughtered, a fair hearing must occur under the below conditions.

The Supreme Court emphasized in the above noted Roth case that there are three primary features of substantive due process.

1. Liberty and property interests are not created by the Constitution itself, but they come from employment contracts or state tenure laws. A due process interest is different from an equal protection right which is rooted in the Constitution. Continued employment falls under substantive due process when the state has some formal condition vesting the employee with expectancy of reemployment.

2. If a liberty or property interest in employment is not created by the state, there exists no requirement of procedural due process if employment is terminated.

3. If a teacher possess a liberty or property interest in employment, then procedural due process is required.

The concepts of liberty and property were critical issues to the framers of the Constitution. Madison established that liberty is the counterbalance that holds an overbearing government in check. The intent of the word liberty, with respect to teacher’s employment, can be simply stated as the right to live and work at whatever job he or she desires.

That court further stated that a liberty interest is involved when any action by the state stigmatizes a teacher to the degree that future employability is adversely affected. This is sufficient to invoke due process.

According to the Supreme Court decision in the Roth matter, it was determined that property interests may take many forms. If a teacher has a continuing and unlimited employment status extending for an indefinite amount of time or hold statutory tenure than a property interest in the employment is presumed.

The fact that employment as a teacher comes within the scope of a property interest was encompassed in the original intent of the Bill of Rights. Madison, one of the framers of the Constitution stated that: not only does a man have a right to his property, but he has property in his rights. Madison further asserted that the right of property further guaranteed citizens free use of their faculties and free choice of their occupations. Madison saw individual rights of property as being so broad as to include everything to which a man may attach a value and have a right to.

Due process requires that governmental action not be arbitrary, unreasonable or discriminatory. Fair procedures must be followed by school officials before they carry out any action depriving one of life, liberty, or property.

In essence, a tenured teacher has a reasonable expectancy that his or her position will be continuous. Tenure is an example of a continuous employment contract and the courts have held that this is a sufficient property right to warrant the protection of the due process clause.

Probationary teachers contracts are not considered continuous employment contracts. Consequently, the courts have held that they cannot make a claim to a property right on that basis. However, the courts have held that substantive due process rights may be claimed if the probationary teacher was terminated for unconstitutional purposes and or stigmatizing reasons.

At present, in New York State, there is an attempt to undermine the above due process protections for educators. This legislation is titled: S4629-2011: Relates to tenured teacher disciplinary hearing. While that legislation is pending, there is another attempt to destroy the above discussed due process protections in New York State statutory tenure laws for educators. It is called the NYSED Regulations for Teacher and Principal Evaluation Draft. Please go to the following link to view the pdf of the draft of this fictional administration:

The above two noted due process obstruction acts are in direct conflict with the concepts of liberty and property noted by the framers of the Constitution. The leadership that can stop these types of education due process obstructions is the New York State Senate.

In closing, the very basic purpose of due process for educators is to protect qualified and experienced educators from being discharged for insufficient and inadequate reasons, and to guarantee employment regardless of the vicissitudes of politics. Statutory tenure is the due process clause for experienced educators. It was created to protect educator’s life, liberty, and property interests. Every attempt must be made to enforce the due process principles embedded in statutory tenure for educators.


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1 comment

Dionne Sabbay Thompson
Posted on Apr 28, 2011