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What is due process?

Due process ensures a level of fundamental fairness for the individual from governmental overreach by mandating that officials treat an individual according to rules and procedures. Due process prevents the government from acting arbitrarily, and it does this by providing procedural safeguards the government must meet before it can invade individual life, liberty, or property. It also means that the substance of laws must not directly violate fundamental rights that trigger life, liberty, and property interests.

Due process has evolved over the centuries as a way to ensure that accusatory proceedings produce accurate and truthful results. This is one of the most vital components of a free, decent, and fair society. The accumulated experience of countless cases — dating all the way back to medieval England — has taught us that due process (i.e., the process that is “due” or “owed” to each citizen) is essential to ensure the best chance of learning the truth during the trial process.

Why due process is important

Due process may be the single most important guarantee in the Constitution and the entire legal system to ensure that the government does not run roughshod over individual liberty. In fact, due process is so important that it is mentioned twice in the Constitution — in the Fifth Amendment, which limits the federal government, and the Fourteenth Amendment, which limits state and local governments. Both the Fifth and Fourteenth Amendment Due Process clauses prohibit government officials from depriving an individual of “life, liberty, or property without due process of law.” It also applies in both civil and criminal cases. 

Due process ensures a level of fundamental fairness for the individual from governmental overreach.

Due process rights are important in a wide variety of contexts, such as housing evictions, immigration removal proceedings, termination of governmental benefits, and campus disciplinary proceedings. Think about it — if you are charged with a serious criminal offense that could brand you with a record or serious civil charges that could lead to your expulsion from school, you would want the proceeding to be fair rather than a sham. As FIREexplains in its Guide to Due Process and Campus Justice: 

[T]he notions of due process, fundamental fairness, and fair procedure are as vital and necessary to society as any area of the law. Indeed, they concern the deepest issues of how we have learned to live together as decent human beings. Think about it: If an innocent person is charged with wrongdoing, what protections should that innocent person have against being wrongly or arbitrarily punished and dishonored? If you or a loved one—your brother, sister, father, mother, or friend—had to face a tribunal and its rules, what expectations of fair procedure and an honest search for truth would you truly have? If you would not want yourself or a loved one tried in unjust ways, how could you morally accept seeing other people tried under those conditions?

The level of fair process that we offer to individuals reflects our sense of decency and the depth of our conscience. On campus, as elsewhere, you have a moral right — and often a legal right — to decency and fundamental fairness.

Types of due process — procedural and substantive 

There are two basic types of due process: (1) procedural due process and (2) substantive due process. Procedural due process refers to procedure, the idea that before the government can take away or deprive an individual of a “life, liberty, or property” interest, the government must provide the person with procedural safeguards — often notice and some opportunity in a hearing to contest the governmental action. If a public school principal suspends a student without giving that student a chance to tell her side of the story or later contest the matter in a hearing, the principal has violated the letter and spirit of procedural due process. Justice Felix Frankfurter beautifully captured the essence of procedural due process and its importance, writing: “The history of American freedom is, in no small measure, the history of procedure.”

FIRE's Guide to Due Process and Campus Justice

This FIREGuide informs readers about the appropriate (and inappropriate) methods by which university administrators address issues of academic and non-academic misconduct.

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Substantive due process is much different. It refers to the idea that the underlying substance of the law must not be too arbitrary or unreasonable. Laws that are too vague, too broad, or too unfair can violate substantive due process.

One of the more egregious violations of substantive due process in modern times arose from attempts to ban interracial marriages. The Supreme Court famously ruled in  (1967) that Virginia’s law violated due process, because the law unfairly deprived individuals the right to marry the person of their choosing. 

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” wrote Chief Justice Earl Warren. “To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.” 

The Supreme Court and due process on campus

Due process freedoms are designed to ensure that before public college and university officials — or public school officials at the K-12 level — suspend or expel a student, thus depriving them of their property right to an education, the officials must provide procedural due process protections. Depending on the charges, school officials might also negatively impact a student’s liberty interests. This means that they must provide the students with adequate notice of the charges, give them access to information and evidence in the case, and provide them with a fair hearing where they can meaningfully defend themselves.

Consider the case of  (1975). It involved the suspension of nine different students from different high school and middle schools in the Columbus Public School System. One of those students was Dwight Lopez, who attended Central High School. A disturbance arose in the lunchroom that led to fights and property damage. Lopez contended that he was merely an innocent bystander and did not participate in any fisticuffs or property damage. 

Due Process on College Campuses

FIREat state universities have constitutional due process rights that their universities cannot violate in the course of conducting student disciplinary proceedings.

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Lopez and others sued, because they were summarily suspended 10 days without a hearing. The Supreme Court first explained that because Ohio law provided students with a free public education, the students had “legitimate claims of entitlement to a public education.” In other words, Lopez and the other students had a protected “property” interest that triggered the protections of Due Process. 

Lopez and the other suspended students also had a “liberty” interest in being free from “arbitrary” intrusions upon their reputation. The suspensions accused the students of serious charges that impacted their reputations. “If sustained and recorded, those charges could seriously damage the students' standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment,” the Court wrote.

Thus, the Court held that the actions of the school officials triggered Due Process, because the students had a property right in their education and a liberty interest in their reputations. Then, the Court held that the public school officials in Columbus failed to provide adequate procedural due process protections. “Among other things, the State is constrained to recognize a student's legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause and which may not be taken away for misconduct without adherence to the minimum procedures required by that Clause,” the Court explained.

Due process may be the single most important guarantee in the Constitution.

School officials argued that the suspensions were temporary and did not permanently deprive the students of an education. But, the Court responded that the 10-day suspensions were not “de minimis” and “may not be imposed in complete disregard of the Due Process Clause.”

The Court explained: 

We do not believe that school authorities must be totally free from notice and hearing requirements if their schools are to operate with acceptable efficiency. FIREfacing temporary suspension have interests qualifying for protection of the Due Process Clause, and due process requires, in connection with a suspension of 10 days or less, that the student be given 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. The Clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school. 

The Court identified the minimum procedural safeguards as (1) oral or written notice of the charges, (2) explanation of the evidence against the student; and (3) an opportunity to present the student’s side of the story. The Court also explained that “as a general rule notice and hearing should precede removal of the student from school.” 

The Court in Goss was careful, however, to note: 

We should also make it clear that we have addressed ourselves solely to the short suspension, not exceeding 10 days. Longer suspensions or expulsions for the remainder of the school term, or permanently, may require more formal procedures. Nor do we put aside the possibility that, in unusual situations, although involving only a short suspension, something more than the rudimentary procedures will be required.

Other courts have found due process violations when students are not given an opportunity to cross-examine their accusers, when students do not receive evidence that might exonerate the student, when students do not receive the presumption of innocence in disciplinary proceedings, and when students do not get the chance to put on a full defense.

FIRE has warned in its Spotlight on Due Process reports that many colleges and universities “fail to afford their students due process and fundamental fairness” in their disciplinary proceedings. In fact, some of the disciplinary systems at colleges and universities more closely resemble a “shadow justice system.” 

Similar problems arise at the K-12 public school systems, where critics warn that due process protections are far from consistent. Zero tolerance and other harsh disciplinary processes place students in potentially perilous positions. But, as Derek W. Black writes in "," "constitutional protections are the only absolute checks on abuses in school discipline."

FIRE has publicly led the fight to restore due process on our nation’s campuses by highlighting abuses and bringing the attention of media, lawmakers, and the public to the problem. With this report, we hope to make clear to students, administrators, and due process advocates across the country how badly reform is needed, and what kind of changes could benefit campus communities most.