The legal foundation for due process in the U.S. is the 5th Amendment which stipulates that the infringement of certain rights of citizens with respect to life, liberty, and property will not be permitted without due process of law. The two fundamental aspects of due process are notice and hearing. The processes themselves have evolved over time, but they are manifestations of the idea that deleterious legal action is not to be taken without notice to those impacted, and that deleterious legal action is not to occur -- even when notice has been given -- without sufficient consideration and evidence that the action is appropriate under the law.
However, due process has been found by the courts to be adequate in both a pre-termination and a post-termination, as determined by a three-part test. In the first test, the impact on the person and the nature of the private interest are considered. The second test considers the risk that an erroneous decision imposes on the parties. Finally, the third test considers the necessary balance between the government and the individual, especially as it applies to further cases and interpretation of policies and laws. Discussion is focused here on deprivation of liberty and property and the imposition of unwarranted discrimination.
In Board of Regents v. Roth (1972), property as a form of employment was found to be dependent upon a contractual relationship between an employee and an employer in which the expected continuation of employment is contractually established. Without tenure, Roth did not have a reasonable expectation of continued employment, which would be considered property in a position as an employee of a public organization. It follows that Roth could not be deprived of a property he did not possess. Further, despite some negative comments about his employer, Roth's dismissal was private and did not afford opportunity for any harm to his reputation, such that future job-seeking would be damaged. The court also found that Roth's constitutionally protected rights to freedom of speech and association had not been infringed, rendering Roth's complaint about his liberty interest insubstantial.
In Pickering v. Board of Education (1968) the court found that a teacher was wrongfully terminated by the school district for writing a letter to the editor of the local paper that expressed his public concern about the actions of the school board. The manner and form o Pickering's speech was protected by the 1st Amendment since the teacher made a public statement that pertained to an issue reasonably considered to be of public importance. Further, since Pickering did not work with the school board, no opportunity existed to destroy a working relationship between the employee and the employer in the form of the school district administration.
A liberty interest can be established after the appearance of threat, as in the case of Hale v. Walsh (1987). When Hale was in jeopardy of being fired from his non-tenured position for not comprising integrity, he joined a union and became a vocal and visible leader -- after which he was terminated. The district court found that Hale's leadership in the union supported his liberty interest claim and he received some severance as a result of his membership and activity.
Clearly, tenure establishes a category in public employment that is associated with certain rights and the expectation of certain rights. Public organizations are free to establish employee categories that permit the states to treat people differently according to the categories in which they are included. However, the Supreme Court has established that the creation of these categories must not be arbitrary and must be reasonable. Categorical distinctions are subject to a rationality test that is not evenly applied for all distinctions. For instance, the lesser basis for distinctions in policies and laws merely calls for assurance that categories are based on legitimate governmental objectives. If, however, policies and laws are made distinct based on race, a compelling interest for the policy or law must be demonstrated under strict scrutiny. Affirmative action policy is implemented according to categorical distinctions based on race, and cases involving affirmative action may address issues of discrimination in public employment. The Court determined that the manner in which race was considered in affirmative action cases was substantive. In Gratz v. Bollinger (2003), the University of Michigan quantified race in their admission policy, which was found by the Court to be unconstitutional. In Gutter v.…