The Line Between Rulemaking and Adjudication: An Overview

This semester, we have learned the difference between legislative rulemaking and non-legislative guidance. We also learned that, sometimes, it’s hard to determine whether an agency action is rulemaking or a mere interpretation or statement of policy that doesn’t bind regulated entities. 

We are now going to learn how to differentiate between agency actions that are legislative rulemaking and agency actions that are adjudicative (quasi-judicial). Before we learn about the differences between rulemaking and adjudication, we will learn what adjudication is, as well as the APA’s requirements for adjudication procedures.

1. Introduction to Adjudication

According to the APA, when an agency’s final disposition is not rulemaking, it is an “order.” Put another way, an '“order” covers every final agency action that is not rulemaking." Jellum at 72. 

APA Section 551(6) defines order as “a final disposition [...] of an agency matter other than rulemaking but including licensing.” This definition divides agency’s final decisions into two categories: quasi-legislative rules (rulemaking), and quasi-judicial orders (adjudication). Of course, agencies do other things, including investigating and information gathering, and issuing guidance. But agencies make binding decisions by promulgating rules and issuing orders.

APA Section 551(7) defines “adjudication” as the “agency process for the formulation of an order.” Adjudications cover a wide range of activity. Some adjudications look like simple bureaucratic decisions while other adjudications look a lot like courtroom proceedings. 

For example, if Priya’s application for Supplemental Security Income* (SSI)—SSI is a federal entitlement program designed to provide supplemental income to disabled adults and children who fall below a certain income (likely living below the federal poverty level)—is denied, a few adjudications take place. 

First, Priya’s initial SSI (and any subsequent request for a determination on reconsideration of that denial) is a form of an adjudication. Meaning, the state agency that runs the SSI program reviewed Priya’s medical information, income, and other criteria and determined that she did not qualify for SSI. This decision is a form of an adjudication: the agency looked at all the facts of Priya’s case and determined whether she met the legal standards to receive SSI benefits. 

Second, Priya can then ask for a de novo hearing in the state agency that contracts with the Social Security Administration). This is usually called a “fair hearing,” which takes on many characteristics of a court proceeding. When Priya requests a fair hearing, she then has a right to receive all of the information (evidence) that the state agency relied on to make the determination to deny her SSI application. 

On the day of her hearing, Priya will  appear before an Administrative Law Judge (ALJ) at the fair hearing. Priya can present testimony and witnesses as to why her SSI application should be granted. Priya can also cross-examine any agency representative who provided information that is detrimental to her case. A decision is made by the ALJ based on the record presented at the hearing and a final written decision of the decision is issued.  In ALJ proceedings, the Federal Rules of Evidence do not apply. The agency also does not have an attorney to represent its interests, but generally uses an agent representative to present the evidence used to make the challenged determination. 

Other adjudication proceedings can look more prosecutorial with agency attorneys who prosecute people that violate laws seeking agency orders conferring penalties before administrative law judges (ALJs). 

And some adjudication hearings don't feel like hearings, but just bureaucratic handlings. For example, when people apply for benefits, such as Medicaid, federal student loans, or unemployment, an agency order is made without a hearing, attorneys, or judges (similar to Priya’s initial SSI determination).

In many instances, agency adjudications are routine, and they occur in great numbers, when agencies evaluate whether an employer’s action is an unfair labor practice or whether an industrial plant exceeded a pollution threshold, agencies work to achieve “mass justice.” They administer a huge number of claims every year, and work to do so as efficiently as possible. 

Agency adjudications follow many different procedures that are either described in the agency’s enabling statutes, or codified by agencies themselves in their regulations.

In sum, “Courts are our model for making law through individual decisions; when agencies make “law” through individual cases we call that process adjudica­tion. Legislatures are our model for making law through general rules; when agencies make “law” through general rules we call that process rulemaking [...].” Jellum at 29

“Hence, correctly classifying any given agency action is an essential skill. Usually, you will have little difficulty identifying the correct category; however, sometimes this determination will be more difficult. When in doubt, you should begin with the idea that if the action is more like what a court does, then the action is adjudication. If the action is more like what a legislature does, it is rulemaking. Then confirm your catego­rization by consulting the relevant statutory definitions in the Administra­tive Procedure Act (APA), 5 U.S.C. § 551.” Jellum at 29.  

2. Formal or Informal Adjudication?

Like rulemaking, the APA recognizes procedures for both formal and informal adjudication. The difference between “formal” and “informal” adjudication isn’t as cut and dry as it is in the rulemaking context. 

Section 554 is triggered only in cases of (1) adjudication – as defined by the APA – where (2) Congress expressed its clear intent in the agency’s statute that the adjudication must be “determined on the record” and “after opportunity for an agency hearing.” This language should sound familiar (remember, in agency rule making, courts have interpreted APA Section 553(c), to trigger APA Sections 556 and 557 requirements only when enabling statutes passed by Congress mandate rules be made “on the record” and “after opportunity for an agency hearing.” See, e.g., Allegheny-Ludlum Steel Corp. and Florida East Coast Railway Co.).

When applied together (§§ 554, 556, and 557), results is a formal adjudicatory proceeding that resembles a court proceeding. Referred to in Administrative law as “formal adjudications.” In summary, Section 554 governs agency adjudications “required by statute to be determined on the record after opportunity for an agency hearing,” except as otherwise listed. Collectively, the requirements in Sections 554, 556, and 557 require procedures like those in a court trial without a jury and with an Administrative Law Judge (ALJ) presiding. Priya’s SSI hearing, as described above, is an example of a formal adjudication.

Below is a chart showing what APA Sections apply to formal and informal rulemaking and adjudication. For another helpful chart, see Jellum, page 71. 

When formal adjudication is not triggered by Section 554 (magic language: "on the record after opportunity for an agency hearing") or otherwise required by statute or regulation, the minimal procedural requirements in APA Section 555 apply. Section 555 of the APA applies to all adjudications, but plays an important role in informal proceedings since the APA is silent on what (if any) further procedure is due in informal hearings. 

Section 555 applies to all agency proceedings and provides: 

• The right to be represented by counsel in any proceeding or, another qualified representative if allowed by the agency
• The right to appear before an agency “so far as the orderly conduct of public business permits”
• The right to have an agency matter concluded within a “reasonable time”
• The right to obtain copies of materials required to be submitted to an agency
• The right to utilize agency subpoena power when relevant, so long as the scope of evidence sought is reasonable
• The right to receive prompt notice when an agency denies your request, accompanied by a brief statement of the grounds for denial

Agencies often supplement these minimal APA Section 555 procedural requirements with additional procedures through regulations. Additionally, Congress sometimes imposes procedures for specific types of enforcement and other adjudicative actions through statutes. 

The terms formal and informal adjudication can be misleading in practice. Some informal adjudications are quite “formal” (highly proceduralized). Procedures can be added through enabling statutes passed by Congress or procedural rules made by the agencies themselves. Rather than differentiating between formal and informal adjudication, some administrative law guides refer to APA adjudication and non-APA adjudication (since the APA provides minimal guidance for informal adjudications). 

 Choice of Procedures: Rulemaking or Adjudication

If an agency has the authority to engage in both rulemaking and adjudication, it gets to determine which procedures it will use to make decisions. The agency can make rules that have future effect and bind large groups, or they can make decisions on a case-by-case basis that primarily affect only the parties involved. Each choice, rulemaking and adjudication, has its pros and cons:

Rulemaking provides for public participation and puts all regulated entities on notice about what is permissible by law. Rulemaking is also efficient because it binds all stakeholders to the same, uniform obligations. When an agency makes a rule, that rule settles debate between competitors about what is allowed and what is prohibited. A bright-line policy brings clarity and conclusiveness, avoiding a series of ad hoc decisions through drawn out, punitive adjudicative proceedings.

Adjudication, on the other hand, allows agencies to be more flexible and to resolve issues and questions that the agency did not foresee. Sometimes, agencies have to solve problems they did not contemplate in rulemaking processes. Adjudication also avoids rigid rules in situations where case-by-case evaluations are a better fit than a hard and fast rule.

The debate is complex, and in a few cases, regulated parties have tried to push courts to tell agencies that they must use one form of decisionmaking or another. As we see in National Labor Relations Board (“NLRB”) v. Bell Aerospace Co., courts generally defer to agencies’ choice of rulemaking or adjudication so long as Congress authorizes the agencies to utilize those decisionmaking methods.

National Labor Relations Board v. Bell Aerospace Co.
416 U.S. 267 (1974)

1. JUSTICE POWELL delivered the opinion of the Court.

This case presents two questions: first, whether the National Labor Relations Board properly determined that all “managerial employees,” except those whose participation in a labor organization would create a conflict of interest with their job responsibilities, are covered by the National Labor Relations Act; and second, whether the Board must proceed by rulemaking rather than by adjudication in determining whether certain buyers are “managerial employees.” We answer both questions in the negative.

I

Respondent Bell Aerospace Co., Division of Textron, Inc. (company), operates a plant in Wheatfield, New York, where it is engaged in research and development in the design and fabrication of aerospace products. On July 30, 1970, Amalgamated Local No. 1286 of the United Automobile, Aerospace and Agricultural Implement Workers of America (union) petitioned the National Labor Relations Board (Board) [to unionize] the 25 buyers in the purchasing and procurement department at the company’s plant. The company opposed the petition on the ground that the buyers were “managerial employees” and thus were not covered by the Act.

The relevant facts adduced at the representation hearing are as follows. The purchasing and procurement department receives requisition orders from other departments at the plant and is responsible for purchasing all of the company's needs from outside suppliers. Some items are standardized and may be purchased ‘off the shelf’ from various distributors and suppliers. Other items must be made to the company's specifications, and the requisition orders may be accompanied by detailed blueprints and other technical plans. Requisitions often designate a particular vendor, and in some instances the buyer must obtain approval before selecting a different one. Where no vendor is specified, the buyer is free to choose one.

Absent specific instructions to the contrary, buyers have full discretion, without any dollar limit, to select prospective vendors, draft invitations to bid, evaluate submitted bids, negotiate price and terms, and prepare purchase orders. Buyers execute all purchase orders up to $50,000. They may place or cancel orders of less than $5,000 on their own signature. On commitments in excess of $5,000, buyers must obtain the approval of a superior, with higher levels of approval required as the purchase cost increases. For the Minute Man missile project, which represents 70% of the company's sales, purchase decisions are made by a team of personnel from the engineering, quality assurance, finance, and manufacturing departments. The buyer serves as team chairman and signs the purchase order, but a representative from the pricing and negotiation department participates in working out the terms.

After the representation hearing, the Regional Director transferred the case to the Board. On May 20, 1971, the Board issued its decision holding that the company's buyers constituted an appropriate unit for purposes of collective bargaining and directing an election. 190 N.L.R.B. 431. Relying on its recent decision [], the Board first stated that even though the company's buyers might be ‘managerial employees,' they  were nevertheless covered by the Act and entitled to its protections. The Board then rejected the company's alternative contention that representation should be denied because the buyers' authority to commit the company's credit, select vendors, and negotiate purchase prices would create a potential conflict of interest between the buyers as union members and the company.

In essence, the company argued that buyers would be more receptive to bids from union contractors and would also influence ‘make or buy’ decisions in favor of ‘make,’ thus creating additional work for sister unions in the plant. The Board thought, however, that any possible conflict was ‘unsupported conjecture’ since the buyers' ‘discretion and latitude for independent action must take place within the confines of the general directions which the Employer has established’ and that ‘any possible temptation to allow sympathy for sister unions to influence such decisions could effectively be controlled by the Employer.’ 

On June 16, 1971, a representation election was conducted in which 15 of the buyers voted for the union and nine against. On August 12, the Board certified the union as the exclusive bargaining representative for the company's buyers. That same day, however, the Court of Appeals for the Eighth Circuit denied enforcement of another Board order in NLRB v. North Arkansas Electric Cooperative, Inc., 446 F.2d 602, and held that ‘managerial employees' were not covered by the Act and were therefore not entitled to its protections.³ Id., at 610.

Encouraged by the Eighth Circuit's decision, the company moved the Board for reconsideration of its earlier order.  The Board denied the motion, 196 N.L.R.B. 827 (1972), stating that it disagreed with the Eighth Circuit and would adhere to its own decision in North Arkansas. In the Board's view, Congress intended to exclude from the Act only those ‘managerial employees' associated with the ‘formulation and implementation of labor relations policies.’ Id., at 828. In each case, the ‘fundamental touchstone’ was ‘whether the duties and responsibilities of any managerial employee or group of managerial employees do or do not include determinations which should be made free of any conflict of interest which could arise if the person involved was a participating member of a labor organization’. Ibid. Turning to the present case, the Board reiterated its prior finding that the company had not shown that union organization of its buyers would create a conflict of interest in labor relations.

The company stood by its contention that the buyers, as ‘managerial employees,’ were not covered by the Act and refused to bargain with the union. An unfair labor practice complaint resulted in a Board finding that the company had violated ss 8(a)(5) and (1) of the Act, 29 U.S.C. ss 158(a)(5) and (1), and an order compelling the company to bargain with the  union. 197 N.L.R.B. 209 (1972). Subsequently, the company petitioned the United States Court of Appeals for the Second Circuit for review of the order and the Board cross-petitioned for enforcement. The Court of Appeals denied enforcement. […]

Turning to the merits of the present case, the court acknowledged that there was substantial evidence that the company's buyers were not sufficiently high in the managerial hierarchy to constitute true ‘managerial employees.’ Nevertheless, the court denied enforcement for two reasons. First, it was not certain that the Board's decision rested on a factual determination that these buyers were not true ‘managerial employees' rather than on ‘its new, and in our view, erroneous holding that it was free to regard all managerial employees as covered by the Act unless their duties met’ the conflict-of-interest touchstone. Id., at 494—495. Second, although the Board was not precluded from holding that buyers, or some types of buyers, were not ‘managerial employees,’ the court thought that, in view of the Board's long line of cases holding the contrary, it could not accomplish this change of position by adjudication. Rather, the Board should conduct a rule-making proceeding in conformity with s 6 of the Act, 29 U.S.C. s 156. The court therefore remanded the case to the Board for such a proceeding.

We granted the Board's petition for certiorari. 414 U.S. 816, 94 S.Ct. 47, 38 L.Ed.2d 49.

II

We begin with the question whether all ‘managerial employees,’ rather than just those in positions susceptible to conflicts of interest in labor relations, are excluded from the protections of the Act. […] [We] conclude, as did the Court of Appeals, that Congress intended to exclude from the protections of the Act all employees properly classified as ‘managerial.’

[…]

The Court of Appeals also held that, although the Board was not precluded from determining that buyers or some types of buyers were not ‘managerial employees,’ it could do so only by invoking its rulemaking procedures under s 6 of the Act, 29 U.S.C. s 156. We disagree.

At the outset, the precise nature of the present issue must be noted. […] [T]he present question is whether on remand the Board must invoke its rulemaking procedures if it determines, in light of our opinion, that these buyers are not “managerial employees” under the Act. The Court of Appeals thought that rulemaking was required because any Board finding that the company’s buyers are not “managerial” would be contrary to its prior decisions and would presumably be in the nature of a general rule designed “to fit all cases at all times.”

A similar issue was presented to this Court in its second decision in SEC v. Chenery Corp., 332 U. S. 194 (1947) (Chenery II). There, the respondent corporation argued that in an adjudicative proceeding the Commission could not apply a general standard that it had formulated for the first time in that proceeding. Rather, the Commission was required to resort instead to its rulemaking procedures if it desired to promulgate a new standard that would govern future conduct. In rejecting this contention, the Court [...] concluded that “the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.”

And in NLRB v. Wyman-Gordon Co., 394 U. S. 759 (1969), the Court upheld a Board order enforcing a [...] requirement first promulgated in an earlier adjudicative proceeding [recognizing] that “[a]djudicated cases may and do . . . serve as vehicles for the formulation of agency policies, which are applied and announced therein,” and that such cases “generally provide a guide to action that the agency may be expected to take in future cases” [...] 

The views expressed in Chenery II and Wyman-Gordon make plain that the Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board’s discretion. Although there may be situations where the Board’s reliance on adjudication would amount to an abuse of discretion or a violation of the Act, nothing in the present case would justify such a conclusion. Indeed, there is ample indication that adjudication is especially appropriate in the instant context. 

As the Court of Appeals noted, “[t]here must be tens of thousands of manufacturing, wholesale and retail units which employ buyers, and hundreds of thousands of the latter.” 475 F. 2d, at 496. Moreover, duties of buyers vary widely depending on the company or industry. It is doubtful whether any generalized standard could be framed which would have more than marginal utility. The Board thus has reason to proceed with caution, developing its standards in a case-by-case manner with attention to the specific character of the buyers’ authority and duties in each company. The Board’s judgment that adjudication best serves this purpose is entitled to great weight.

The possible reliance of industry on the Board’s past decisions with respect to buyers does not require a different result. It has not been shown that the adverse consequences ensuing from such reliance are so substantial that the Board should be precluded from reconsidering the issue in an adjudicative proceeding. Furthermore, this is not a case in which some new liability is sought to be imposed on individuals for past actions which were taken in good-faith reliance on Board pronouncements. Nor are fines or damages involved here. In any event, concern about such consequences is largely speculative, for the Board has not yet finally determined whether these buyers are “managerial.”

It is true, of course, that rulemaking would provide the Board with a forum for soliciting the informed views of those affected in industry and labor before embarking on a new course. But surely the Board has discretion to decide that the adjudicative procedures in this case may also produce the relevant information necessary to mature and fair consideration of the issues. Those most immediately affected, the buyers and the company in the particular case, are accorded a full opportunity to be heard before the Board makes its determination.

The judgment of the Court of Appeals is therefore affirmed in part and reversed in part, and the cause remanded to that court with directions to remand to the Board for further proceedings in conformity with this opinion.

***

If you are interested in an updated discussion of the NLRB’s choices between rulemaking and adjudication processes, here is an essay from 2015 discussing a few rules that NLRB promulgated through the APA Section 553 rulemaking process discussing the rationales and pros and cons of adjudication versus rulemaking in an NLRB context: Charlotte Garden, Towards Politically Stable Lawmaking: Rulemaking vs. Adjudication.

Beyond the procedural requirements for agency adjudication that we learned so far this semeseter, there are constitutional requirements that agencies must satisfy. The Due Process Clause of the Fifth Amendment (and the 14th Amendment in state agencies) requires that state and federal agencies provide people notice and the opportunity to be heard by a neutral decisionmaking before being denied life, liberty, or property.

The Due Procress Clause provides certain procedural protections in state and federal informal adjudications.

In LEDP, you learned about substantive due process, which protects certain fundamental rights from government interference. In administrative law (PI), we will discuss procedural due process, which requires that notice and hearing procedures must be available to those being denied life, liberty, or property by the government. A person adversely affected by an agency action could argue that they are being deprived of life, liberty, or property without due process. When a person sues an agency for violating their procedural due process, the court will determine:

1) Whether the agency action is one that triggers procedural due process.

2) Whether the person’s property, liberty (and in very rare cases, life) is at stake due to the agency’s action.

3) Whether the due process clause obligates the agency to use more procedures than it used when it took the action that deprived the person of their interest.

4) If more due process is needed, the court will have to determine how much due process is required to satisfy the constitutional due process requirement.

Procedural due process issues usually arise in administrative law contexts because the  government usually deprives people of liberty and property without adequate procedures through agency actions. Courts follow codes of civil and criminal procedure that ensure procedural due process is satisfied, but when agencies are not obligated to follow formal adjudication procedures described in APA Section 556 and 557, agencies sometimes deprive people of their constitutionally guaranteed procedural due process.

When Is Procedural Due Process Required?

In class, we will learn how to determine whether an agency action triggers procedural due process. Before we evaluate how much due process people are owed, we need to determine whether due process is even required. Over 100 years ago, the Supreme Court determined that procedural due process is only required when the government is engaged in individualized decisionmaking. In the famous Londoner and Bi-Metallic cases, the Court differentiated between individualized deprivations of property  or liberty, which require due process, and policy-based deprivations affecting a class of individuals, which do not require due process.

Londoner v. Denver
210 U.S. 373 (1908)

JUSTICE MOODY delivered the opinion of the court.

The plaintiffs in error began this proceeding in a state court of Colorado to relieve lands owned by them from an assessment of a tax for the cost of paving a street upon which the lands abutted. The relief sought was granted by the trial court, but its action was reversed by the Supreme Court of the State, which ordered judgment for the defendants. The case is here on writ of error. The Supreme Court [of Colorado] held that the tax was assessed in conformity with the constitution and laws of the State, and its decision on that question is conclusive [...]

The tax complained of was assessed under the provisions of the charter of the city of Denver, which confers upon the city the power to make local improvements and to assess the cost upon property specially benefited [...] 

The board of public works, upon the petition of a majority of the owners of the frontage to be assessed, may order the paving of a street. The board must, however, first) adopt specifications, mark out a district of assessment, *376 cause a map to be made and an estimate of the cost, with the approximate amount to be assessed upon each lot of land. Before action, notice by publication and an opportunity to be heard to any person interested must be given by the board.

The board may then order the improvement, but must recommend to the city council a form of ordinance authorizing it, and establishing an assessment district, which is not amendable by the council. The council may then, in its discretion, pass or refuse to pass the ordinance. If the ordinance is passed, the contract for the work is made by the mayor. The charter provides that ‘the finding of the city council, by ordinance, that any improvements provided for in this article were duly ordered after notice duly given, or that a petition or remonstrance was or was not filed as above provided, or was or was not subscribed by the required number of owners aforesaid, shall be conclusive in every court or other tribunal.

[…]

It appears from the charter that, in the execution of the power to make local improvements and assess the cost upon the property specially benefited, the main steps to be taken by the city authorities are plainly marked and separated:

1. The board of public works must transmit to the city council a resolution ordering the work to be done and the form of an ordinance authorizing it and creating an assessment district. This it can do only upon certain conditions, one of which is that there shall first be filed a petition asking the improvement, signed by the owners of the majority of the frontage to be assessed.

2. The passage of that ordinance by the city council, which is given authority to determine conclusively whether the action of the board was duly taken.

3. The assessment of the cost upon the landowners after due notice and opportunity for hearing.

[...]

[The landowner raises] the question whether the assessment was made without notice and opportunity for hearing to those affected by it, thereby denying to them due process of law. The trial court found as a fact that no opportunity for hearing was afforded, and the Supreme Court [of Colorado] did not disturb this finding. The record discloses what was actually done, and there seems to be no dispute about it.

After the improvement was completed the board of public works, in compliance with § 29 of the charter, certified to the city clerk a statement of the cost, and an apportionment of it to the lots of land to be assessed. Thereupon the city clerk, in compliance with § 30, published a notice stating, inter alia, that the written complaints or objections of the owners, if filed within thirty days, would be “heard and determined by the city council before the passage of any ordinance assessing the cost.” Those interested, therefore, were informed that if they reduced their complaints and objections to writing, and filed them within thirty days, those complaints and objections would be heard, and would be heard before any assessment was made. The notice given in this case, although following the words of the statute, did not fix the time for hearing, and apparently there were no stated sittings of the council acting as a board of equalization. But the notice purported only to fix the time for filing the complaints and objections, and to inform those who should file them that they would be heard before action. The statute expressly required no other notice, but it was sustained in the court below on the authority of Paulsen v. Portland, 149 U.S. 30, because there was an implied power in the city council to give notice of the time for hearing. We think that the court rightly conceived the meaning of that case and that the statute could be sustained only upon the theory drawn from it.

Resting upon the assurance that they would be heard, the plaintiffs in error filed within the thirty days the following paper:

“Denver, Colorado, January 13, 1900.

“To the Honorable Board of Public Works and the Honorable Mayor and City Council of the City of Denver:

“The undersigned, by Joshua Grozier, their attorney, do hereby most earnestly and strenuously protest and object to the passage of the contemplated or any assessing ordinance against the property in Eighth Avenue Paving District No. 1, so called, for each of the following reasons, to wit: 

“That said assessment and all and each of the proceedings leading up to the same were and are illegal, voidable and void, and the attempted assessment if made will be void and uncollectible [...] Wherefore, because of the foregoing and numerous other good and sufficient reasons, the undersigned object and protest against the passage of the said proposed assessing ordinance.”

This certainly was a complaint against and objection to the proposed assessment. Instead of affording the plaintiffs in error an opportunity to be heard upon its allegations, the city council, without notice to them, met as a board of equalization, not in a stated but in a specially called session, and, without any hearing, adopted the following resolution:

“Whereas, complaints have been filed by the various persons and firms as the owners of real estate included within the Eighth Avenue Paving District No. 1, of the city of Denver against the proposed assessments on said property for the cost of said paving, the names and description of the real estate respectively owned by such persons being more particularly described in the various complaints filed with the city clerk; and

“Whereas, no complaint or objection has been filed or made against the apportionment of said assessment made by the board of public works of the city of Denver, but the complaints and objections filed deny wholly the right of the city to assess any district or portion of the assessable property of the city of Denver; therefore, be it.

“Resolved, by the city council of the city of Denver, sitting as a board of equalization, that the apportionments of said assessment made by said board of public works be, and the same are hereby, confirmed and approved.”

Subsequently, without further notice or hearing, the city council enacted the ordinance of assessment whose validity is to be determined in this case. The facts out of which the question on this assignment arises may be compressed into small compass. The first step in the assessment proceedings was by the certificate of the board of public works of the cost of the improvement and a preliminary apportionment of it. The last step was the enactment of the assessment ordinance. From beginning to end of the proceedings the landowners, although allowed to formulate and file complaints and objections, were not afforded an opportunity to be heard upon them. Upon these facts was there a denial by the State of the due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States?

In the assessment, apportionment and collection of taxes upon property within their jurisdiction the Constitution of the United States imposes few restrictions upon the States. In the enforcement of such restrictions as the Constitution does impose this court has regarded substance and not form. But where the legislature of a State, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process of law requires that at some stage of the proceedings before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place of the hearing. It must be remembered that the law of Colorado denies the landowner the right to object in the courts to the assessment, upon the ground that the objections are cognizable only by the board of equalization.

If it is enough that, under such circumstances, an opportunity is given to submit in writing all objections to and complaints of the tax to the board, then there was a hearing afforded in the case at bar. But we think that something more than that, even in proceedings for taxation, is required by due process of law. Many requirements essential in strictly judicial proceedings may be dispensed with in proceedings of this nature. But even here a hearing in its very essence demands that he who is entitled to it shall have the right to support his allegations by argument however brief, and, if need be, by proof, however informal. It is apparent that such a hearing was denied to the plaintiffs in error. The denial was by the city council, which, while acting as a board of equalization, represents the State. The assessment was therefore void, and the plaintiffs in error were entitled to a decree discharging their lands from a lien on account of it [...] 

Bi-Metallic Investment Co. v. State Board of Equalization of Colorado

239 U.S. 441 (1915)

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a suit to enjoin the State Board of Equalization and the Colorado Tax Commission from putting in force, and the defendant Pitcher as assessor of Denver from obeying, an order of the boards increasing the valuation of all taxable property in Denver forty per cent. The order was sustained and the suit directed to be dismissed by the Supreme Court of the State. The plaintiff is the owner of real estate in Denver and brings the case here on the ground that it was given no opportunity to be heard and that therefore its property will be taken without due process of law, contrary to the Fourteenth Amendment of the Constitution of the United States […] 

For the purposes of decision we assume that the constitutional question is presented in the baldest way — that neither the plaintiff nor the assessor of Denver, who presents a brief on the plaintiff's side, nor any representative of the city and county, was given an opportunity to be heard, other than such as they may have had by reason of the fact that the time of meeting of the boards is fixed by law. On this assumption it is obvious that injustice may be suffered if some property in the county already has been valued at its full worth. But if certain property has been valued at a rate different from that generally prevailing in the county the owner has had his opportunity to protest and appeal as usual in our system of taxation, so that it must be assumed that the property owners in the county all stand alike. The question then is whether all individuals have a constitutional right to be heard before a matter can be decided in which all are equally concerned,-- here, for instance, before a superior board decides that the local taxing officers have adopted a system of undervaluation throughout a county, as notoriously often has been the case. The answer of this court in the State Railroad Tax Cases, 92 U.S. 575 (1875), at least as to any further notice, was that it was hard to believe that the proposition was seriously made.

Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meeting or an assembly of the whole. General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule. If the result in this case had been reached as it might have been by the State's doubling the rate of taxation, no one would suggest that the Fourteenth Amendment was violated unless every person affected had been allowed an opportunity to raise his voice against it before the body entrusted by the state constitution with the power […]

There must be a limit to individual argument in such matters if government is to go on. In Londoner v. Denver, 210 U.S. 373, a local board had to determine ‘whether, in what amount, and upon whom’ a tax for paving a street should be levied for special benefits. A relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds, and it was held that they had a right to a hearing. But that decision is far from reaching a general determination dealing only with the principle upon which all the assessments in a county had been laid.

Judgment affirmed.

In our study of procedural due process, we learned that courts determine whether procedural due process is required by considering the following four-part inquiry:

1. Whether the agency action is one that triggers procedural due process (Is it individualized decisionmaking or legislative decisionmaking. Londoner and Bi-Metallic)

2. Whether the person’s property, liberty (and in very rare cases, life) is at stake due to the agency’s action.

3. Whether the due process clause obligates the agency to use more procedures than it used when it took the action that deprived the person of their interest.

4. If more due process is needed, the court will have to determine how much due process is required to satisfy the constitutional due process requirement.

We will next focus on the second question: whether a protected interest is at stake. Procedural due process is only required to protect life, liberty, and property interests, according to the Constitution. If the government is not depriving anyone of their rights to life, liberty, or property, the government does not have to provide procedural due process according to the 5th and 14th Amendments.

Before the Supreme Court’s Goldberg v. Kelly decision, “life, liberty, and property” did not apply to “privileges” government provided like government employment and government welfare payments. We start to learn about due process through Goldberg, which expanded the Due Process Clause to include government services, erasing the line between “rights” and “privileges.”

Property Interests

Over the years, following the holding in Goldberg (which examined a statutory entitlement) courts consider whether there is an entitlement to a benefit that qualifies it as a property interest, and therefore warrants due process protections The following cases demonstrate how the court assesses whether there is a property interest at stake that triggers procedural due process requirements.

The cases following Goldberg further demonstrate how the courts treat some government services and promises as “property rights” afforded procedural due process.

Goldberg v. Kelly introduced the right to procedural due process. This case confronted the issue of what procedures are required before the government can terminate an individual's welfare benefits.  

Goldberg v. Kelly

397 U.S. 254 (1970)

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question for decision is whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the Fourteenth Amendment.

This action was brought in the District Court for the Southern District of New York by residents of New York City receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State’s general Home Relief program. Their complaint alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law. At the time the suits were filed there was no requirement of prior notice or hearing of any kind before termination of financial aid [...] 

I

The constitutional issue to be decided, therefore, is the narrow one whether the Due Process Clause requires that the recipient be afforded an evidentiary hearing before the termination of benefits. The District Court held that only a pre-termination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the state and city officials that the combination of the post-termination “fair hearing” with the informal pre-termination review disposed of all due process claims. The court said: “While post-termination review is relevant, there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. . . . Suffice it to say that to cut off a welfare recipient in the face of . . . ‘brutal need’ without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.” Kelly v. Wyman, 294 F. Supp. 893, 899, 900 (1968). The court rejected the argument that the need to protect the public’s tax revenues supplied the requisite “overwhelming consideration.” “Against the justified desire to protect public funds must be weighed the individual's over-powering need in this unique situation not to be wrongfully deprived of assistance . . . . While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process. Under all the circumstances, we hold that due process requires an adequate hearing before termination of welfare benefits, and the fact that there is a later constitutionally fair proceeding does not alter the result.” 

[...]

It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing. But we agree with the District Court that when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Thus the crucial factor in this context—a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended—is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy,

Moreover, important governmental interests are promoted by affording recipients a pre-termination evidentiary hearing. From its founding the Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty. This perception, against the background of our traditions, has significantly influenced the development of the contemporary public assistance system. Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” The same governmental interests that counsel the provision of welfare, counsel as well its uninterrupted provision to those eligible to receive it; pre-termination evidentiary hearings are indispensable to that end.

Appellant does not challenge the force of these considerations but argues that they are outweighed by countervailing governmental interests in conserving fiscal and administrative resources. These interests, the argument goes, justify the delay of any evidentiary hearing until after discontinuance of the grants. Summary adjudication protects the public fiscal by stopping payments promptly upon discovery of reason to believe that a recipient is no longer eligible. Since most terminations are accepted without challenge, summary adjudication also conserves both the fiscal and administrative time and energy by reducing the number of evidentiary hearings actually held.

We agree with the District Court, however, that these governmental interests are not overriding in the welfare context. The requirement of a prior hearing doubtless involves some greater expense, and the benefits paid to ineligible recipients pending decision at the hearing probably cannot be recouped, since these recipients are likely to be judgment-proof. But the State is not without weapons to minimize these increased costs. Much of the drain on fiscal and administrative resources can be reduced by developing procedures for prompt pre-termination hearings and by skillful use of personnel and facilities. Indeed, the very provision for a post-termination evidentiary hearing in New York's Home Relief program is itself cogent evidence that the State recognizes the primacy of the public interest in correct eligibility determinations and therefore in the provision of procedural safeguards. Thus, the interest of the eligible recipient in uninterrupted receipt of public assistance, coupled with the State's interest that his payments not be erroneously terminated, clearly outweighs the State's competing concern to prevent any increase in its fiscal and administrative burdens. As the District Court correctly concluded, "[t]he stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal." 

II

We also agree with the District Court, however, that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial. We bear in mind that the statutory “fair hearing” will provide the recipient with a full administrative review. Accordingly, the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department’s grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits. Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage. We recognize, too, that both welfare authorities and recipients have an interest in relatively speedy resolution of questions of eligibility, that they are used to dealing with one another informally, and that some welfare departments have very burdensome caseloads. These considerations justify the limitation of the pre-termination hearing to minimum procedural safeguards, adapted to the particular characteristics of welfare recipients, and to the limited nature of the controversies to be resolved. We wish to add that we, no less than the dissenters, recognize the importance of not imposing upon the States or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process.

“The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U. S. 385, 394 (1914). The hearing must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U. S. 545, 552 (1965). In the present context these principles require that a recipient have timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases such as those before us, where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.

We are not prepared to say that the seven-day notice currently provided by New York City is constitutionally insufficient per se, although there may be cases where fairness would require that a longer time be given. Nor do we see any constitutional deficiency in the content or form of the notice. New York employs both a letter and a personal conference with a caseworker to inform a recipient of the precise questions raised about his continued eligibility. Evidently the recipient is told the legal and factual bases for the Department’s doubts. This combination is probably the most effective method of communicating with recipients.

The city’s procedures presently do not permit recipients to appear personally with or without counsel before the official who finally determines continued eligibility. Thus a recipient is not permitted to present evidence to that official orally, or to confront or cross-examine adverse witnesses. These omissions are fatal to the constitutional adequacy of the procedures.

The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard. It is not enough that a welfare recipient may present his position to the decision maker in writing or secondhand through his caseworker. Written submissions are an unrealistic option for most recipients, who lack the educational attainment necessary to write effectively and who cannot obtain professional assistance. Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision. The secondhand presentation to the decisionmaker by the caseworker has its own deficiencies; since the caseworker usually gathers the facts upon which the charge of ineligibility rests, the presentation of the recipient's side of the controversy cannot safely be left to him. Therefore a recipient must be allowed to state his position orally. Informal procedures will suffice; in this context due process does not require a particular order of proof or mode of offering evidence. 

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses [...] Welfare recipients must therefore be given an opportunity to confront and cross-examine the witnesses relied on by the department [...]

Affirmed.

Board of Regents of State Colleges v. Roth

408 U.S. 564 (1972)

MR. JUSTICE STEWART delivered the opinion of the Court.

In 1968 the respondent, David Roth, was hired for his first teaching job as assistant professor of political science at Wisconsin State University-Oshkosh. He was hired for a fixed term of one academic year. The notice of his faculty appointment specified that his employment would begin on September 1, 1968, and would end on June 30, 1969. The respondent completed that term. [Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administration for suspending an entire group of 94 Black students without determining individual guilt. He used his classroom to discuss what was being done about the suspensions and one day, instead of meeting his class, he went to a meeting of the Board of Regents to discuss the suspensions.] He was informed that he would not be rehired for the next academic year.

The respondent had no tenure rights to continued employment. Under Wisconsin statutory law a state university teacher can acquire tenure as a “permanent” employee only after four years of year-to-year employment. Having acquired tenure, a teacher is entitled to continued employment “during efficiency and good behavior.” A relatively new teacher without tenure, however, is under Wisconsin law entitled to nothing beyond his one-year appointment. There are no statutory or administrative standards defining eligibility for re-employment. State law thus clearly leaves the decision whether to rehire a nontenured teacher for another year to the unfettered discretion of university officials.

The procedural protection afforded a Wisconsin State University teacher before he is separated from the University corresponds to his job security. As a matter of statutory law, a tenured teacher cannot be “discharged except for cause upon written charges” and pursuant to certain procedures. A nontenured teacher, similarly, is protected to some extent during his one-year term. Rules promulgated by the Board of Regents provide that a nontenured teacher “dismissed” before the end of the year may have some opportunity for review of the “dismissal.” But the Rules provide no real protection for a nontenured teacher who simply is not re-employed for the next year. He must be informed by February 1 “concerning retention or non-retention for the ensuing year.” But “no reason for non-retention need be given. No review or appeal is provided in such case.”

In conformance with these Rules, the President of Wisconsin State University-Oshkosh informed the respondent before February 1, 1969, that he would not be rehired for the 1969-1970 academic year. He gave the respondent no reason for the decision and no opportunity to challenge it at any sort of hearing.

The respondent then brought this action in Federal District Court alleging that the decision not to rehire him for the next year infringed his Fourteenth Amendment rights. He attacked the decision both in substance and procedure. First, he alleged that the true reason for the decision was to punish him for certain statements critical of the University administration, and that it therefore violated his right to freedom of speech. Second, he alleged that the failure of University officials to give him notice of any reason for nonretention and an opportunity for a hearing violated his right to procedural due process of law [...] The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University's decision not to rehire him for another year. We hold that he did not.

I

The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.

The District Court decided that procedural due process guarantees apply in this case by assessing and balancing the weights of the particular interests involved. It concluded that the respondent’s interest in re-employment at Wisconsin State University-Oshkosh outweighed the University's interest in denying him re-employment summarily. Undeniably, the respondent’s re-employment prospects were of major concern to him—concern that we surely cannot say was insignificant. And a weighing process has long been a part of any determination of the form of hearing required in particular situations by procedural due process. But, to determine whether due process requirements apply in the first place, we must look not to the “weight” but to the nature of the interest at stake. We must look to see if the interest is within the Fourteenth Amendment’s protection of liberty and property.

“Liberty” and “property” are broad and majestic terms. They are among the “[g]reat [constitutional] concepts . . . purposely left to gather meaning from experience. . . . [T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” National Ins. Co. v. Tidewater Co., 337 U. S. 582, 646 (Frankfurter, J., dissenting). For that reason, the Court has fully and finally rejected the wooden distinction between "rights" and "privileges" that once seemed to govern the applicability of procedural due process rights. The Court has also made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money. By the same token, the Court has required due process protection for deprivations of liberty beyond the sort of formal constraints imposed by the criminal process.

Yet, while the Court has eschewed rigid or formalistic limitations on the protection of procedural due process, it has at the same time observed certain boundaries. For the words “liberty” and “property” in the Due Process Clause of the Fourteenth Amendment must be given some meaning.

II

“While this Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fourteenth Amendment], the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U. S. 390, 399. In a Constitution for a free people, there can be no doubt that the meaning of “liberty” must be broad indeed. 

There might be cases in which a State refused to re-employ a person under such circumstances that interests in liberty would be implicated. But this is not such a case.

The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U. S. 433, 437. In such a case, due process would accord an opportunity to refute the charge before University officials. In the present case, however, there is no suggestion whatever that the respondent’s “good name, reputation, honor, or integrity” is at stake.

Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case. For “[t]o be deprived not only of present government employment but of future opportunity for it certainly is no small injury . . . .” Joint Anti-Fascist Refugee Committee v. McGrath, supra, at 185 (Jackson, J., concurring). The Court has held, for example, that a State, in regulating eligibility for a type of professional employment, cannot foreclose a range of opportunities “in a manner . . . that contravene[s] . . . Due Process,” Schware v. Board of Bar Examiners, 353 U. S. 232, 238, and, specifically, in a manner that denies the right to a full prior hearing. In the present case, however, this principle does not come into play.

To be sure, the respondent has alleged that the nonrenewal of his contract was based on his exercise of his right to freedom of speech. But this allegation is not now before us. The District Court stayed proceedings on this issue, and the respondent has yet to prove that the decision not to rehire him was, in fact, based on his free speech activities.

Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprived of “liberty” when he simply is not rehired in one job but remains as free as before to seek another.

III

The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests—property interests—may take many forms.

Thus, the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U. S. 254. Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, and college professors and staff members dismissed during the terms of their contracts, have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle “proscribing summary dismissal from public employment without hearing or inquiry required by due process” also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment.

Certain attributes of “property” interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.

Just as the welfare recipients’ “property” interest in welfare payments was created and defined by statutory terms, so the respondent’s “property” interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment. Those terms secured his interest in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent's employment was to terminate on June 30. They did not provide for contract renewal absent “sufficient cause.” Indeed, they made no provision for renewal whatsoever.

Thus, the terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.

IV

Our analysis of the respondent's constitutional rights in this case in no way indicates a view that an opportunity for a hearing or a statement of reasons for nonretention would, or would not, be appropriate or wise in public colleges and universities. For it is a written Constitution that we apply. Our role is confined to interpretation of that Constitution.

We must conclude that the summary judgment for the respondent should not have been granted, since the respondent has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment. The judgment of the Court of Appeals, accordingly, is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

■ Mr. Justice Douglas, dissenting.

Respondent Roth, like Sindermann in the companion case, had no tenure under Wisconsin law and, unlike Sindermann, he had had only one year of teaching at Wisconsin State University-Oshkosh—where during 1968–1969 he had been Assistant Professor of Political Science and International Studies. Though Roth was rated by the faculty as an excellent teacher, he had publicly criticized the administration for suspending an entire group of 94 black students without determining individual guilt. He also criticized the university’s regime as being authoritarian and autocratic. He used his classroom to discuss what was being done about the black episode; and one day, instead of meeting his class, he went to the meeting of the Board of Regents.

* * *

There may not be a constitutional right to continued employment if private schools and colleges are involved. But . . . when public schools move against faculty members . . . the First Amendment, applicable to the States by reason of the Fourteenth Amendment, protects the individual against state action when it comes to freedom of speech and of press and the related freedoms guaranteed by the First Amendment; and the Fourteenth protects “liberty” and “property” as stated by the Court in Sindermann.

No more direct assault on academic freedom can be imagined than for the school authorities to be allowed to discharge a teacher because of his or her philosophical, political, or ideological beliefs. The same may well be true of private schools, if through the device of financing or other umbilical cords they become instrumentalities of the State.

■ Mr. Justice Marshall, dissenting.

I would go further than the Court does in defining the terms “liberty” and “property.”
The prior decisions of this Court, discussed at length in the opinion of the Court, establish a principle that is as obvious as it is compelling—i.e., federal and state governments and governmental agencies are restrained by the Constitution from acting arbitrarily with respect employment opportunities that they either offer or control. Hence, it is now firmly established that whether or not a private employer is free to act capriciously or unreasonably with respect to employment practices, at least absent statutory or contractual controls, a government employer is different. The government may only act fairly and reasonably.
This Court has long maintained that “the right to work for a living in the common occupation of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the [Fourteenth] Amendment to secure.” Truax v. Raich, 239 U.S. 33, 41 (1915) (Hughes, J.).

* * *

In my view, every citizen who applies for a government job is entitled to it unless the government can establish some reason for denying the employment. This is the “property” right that I believe is protected by the Fourteenth Amendment and that cannot be denied “without due process of law.” And it is also liberty—liberty to work—which is the “very essence of the personal freedom and opportunity” secured by the Fourteenth Amendment.

* * *

Employment is one of the greatest, if not the greatest, benefits that governments offer in modern-day life. When something as valuable as the opportunity to work is at stake, the government may not reward some citizens and not others without demonstrating that its actions are fair and equitable. And it is procedural due process that is our fundamental guarantee of fairness, our protection against arbitrary, capricious, and unreasonable government action.
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