The Key Clauses: The Impact of the Due Process

Introduction
The Fourteenth Amendment has arguably had a greater impact than any other provision
of the U.S. Constitution on state and local government. This impact derives from the
amendment’s incorporation of the protections afforded by the Bill of Rights, its establishment
of national and state citizenship, and the protections afforded by two critical clauses: the due
process clause and the equal protection clause. This essay will explain how these two clauses
have affected the operations of state and local governments, explaining the Supreme Court’s
interpretation and application of each clause as well as how state and local governments have
responded to these rulings.

Due Process: Substantive and Procedural
The due process clause of the Fourteenth Amendment states simply that no “State [shall]
deprive any person of life, liberty, or property, without due process of law.” In interpreting
this clause, the Supreme Court has recognized two types of due process: procedural due
process and substantive due process.

Substantive due process, the more complex concept, addresses whether there are certain
areas where government action or regulation is inherently “undue,” a quality of action that
government simply cannot undertake. In the first three decades of the twentieth century the
Court occasionally ruled unconstitutional certain state regulations on businesses because
it felt they were outside the “due” scope of governmental powers. Some commentators
use this same line of reasoning today to argue that certain private behaviors, such as
reproductive issues and sexual orientation and behavior, are also outside the realm of
appropriate (or “due”) government powers. However, because this complex concept is one
the Court has largely eschewed, this essay focuses on the more obvious and commonly
applied concept of procedural due process.

Procedural due process is understood to mean that when a state or local government seeks
to take some sort of action against an individual that adversely affects that individual (their
life, liberty, or property), the state must follow certain procedures to protect the individual’s
rights. The most obvious example is in criminal proceedings. In order to deprive someone
of his or her liberty (through incarceration), property (through fines or forfeitures), or life
(by capital punishment), states must abide by certain procedures. The accused person must
be provided an attorney, cannot be subject to unreasonable searches, does not have to testify
against himself or herself, must be given the option of a trial by jury, is protected against
double jeopardy, and is protected against cruel or unusual punishments (among other
protections).

However, state and local governments are responsible for more than just criminal
proceedings. Institutions such as public universities, parks, school districts and individual
schools, and public libraries are all considered forms of state “government.” This means
that the due process clause applies to them as well. As a result, these bodies must provide
procedural due process in their actions against individuals, whether that action is to
dismiss a tenured professor or teacher, terminate welfare benefits, or revoke parole or
probation.

An example relevant to high school students is a school district’s power to suspend or
expel students. The Supreme Court has ruled that a child has a property interest in a public
education (in other words, a public education has a material benefit to children), and so
depriving a student of access to public education is “a serious event in the life of a suspended
child.”2 Even if a student is to be suspended for 10 days or fewer, the Court has held that
due process requires “that the student be given oral or written notice of the charges against
him (or her), and if he (or she) denies them, an explanation of the evidence the authorities
have and an opportunity to present his (or her) side of the story.”3 However, the Supreme
Court has also recognized that schools need to maintain order, and it would be impractical
to require a school district to go to court every time it sought to suspend or expel a student,
or to provide an attorney to students. Instead, school districts must create and abide by
processes that give a student notice of the charges against him or her and the ability to
respond to those charges. School boards are then responsible for determining the guilt or
innocence of the student and the appropriate punishments. In short, the due process clause protects individuals from the arbitrary adverse actions of state or local governments by ensuring that procedural safeguards are followed.

Critical Questions on Due Process for Classroom Discussion
1. While many states and school districts have banned corporal punishment, the Supreme
Court did not require the same procedural due process requirements for corporal
punishment as it did to suspensions and expulsions. What disciplinary actions should
schools be allowed to impose on students without providing procedural due process to
the student? What elements of due process should students always be entitled to? How
would these procedural protections affect school order?

2. How fair or effective are the due process rights defendants receive today? Is it enough
that defendants be provided with a free attorney if they cannot afford one, or do they
have a right to expect the same quality of legal representation that persons who can
afford the best attorneys receive? Should taxpayers pay the defendant’s costs for tools
such as DNA testing, psychological or psychiatric evaluation, or expert witnesses?

The Equal Protection Clause and Strict Scrutiny
While the Declaration of Independence states as a self-evident truth that “all men are created
equal,” it took nearly a century after Thomas Jefferson penned those words for the concept
of equality to find its way into the U.S. Constitution. The equal protection clause of the
Fourteenth Amendment, the first place in the U.S. Constitution in which the fundamental
equality of individuals is acknowledged, states that “no state shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” This clause has become a powerful
tool in striking down discriminatory state laws, but it raises the question: what does “equal
protection” mean?

Importantly, the equal protection clause does not mean that everyone must be treated equally
by the state. Rather, it means that a state government must provide “equal protection”; that
is, when a state government treats people differently, it must have reasonable—and in some
cases compelling—reasons for doing so.

An effective way to convey these different levels of scrutiny is to describe three hurdles of
varying height. The highest hurdle that state laws need to clear in order to be upheld is the
“strict scrutiny” standard. This standard requires that the government show that it has a
compelling reason for the law in question, and that that compelling reason also advances a
legitimate end of government. In equal protection cases, compelling reasons are necessary
when different treatment by the government is based on race or national origin. These
categories are called “suspect” classifications because of the history of de jure discrimination
minority groups have experienced from state governments. Put differently, laws that treat
people differently based on their race or national origin are considered to be the most
suspect, and the courts use the “strict scrutiny” standard to determine whether they violate
the equal protection clause. The state government must show that there is a compelling need
for the law, and that the differing treatment based on race or national origin is necessary to
achieving that compelling need. As a result of this strict standard, most laws that treat people
differently because of their race or national origin have been struck down by the courts.
This standard was stated particularly clearly in a case that upheld a race-based restriction.
Soon after the Japanese attack on Pearl Harbor in December 1941, the U.S. government
ordered that citizens of Japanese descent be “excluded” from large areas of the country
near the Pacific Ocean. In Korematsu v. United States (1944) the Supreme Court upheld
the constitutionality of this policy while still applying the strict scrutiny standard for equal
protection claims. In the majority decision of the Court, “Legal restrictions which curtail the
civil rights of a single racial group are immediately suspect. That is not to say that all such
restrictions are unconstitutional. It is to say that courts must subject them to the most rigid
scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions;
racial antagonism never can.” Importantly, while the Court in Korematsu found a compelling
reason to segregate Japanese Americans, it should be stressed that few constitutional scholars
today agree with the Court’s reasoning, and in 1988 Congress awarded every formerly
interned Japanese American $20,000 in reparations. Each also received an apology on behalf
of the American people signed by President Ronald Reagan. Nonetheless, Korematsu is a
clear example of the application of the strict scrutiny standard for Equal Protection claims.
A useful example of a case when the Court used the strict scrutiny standard to strike down a
law comes from 1966. In Katzenbach v. Morgan the Court struck down a New York election
law that required that voters be able to read and write English.5 In the just-enacted Voting
Rights Act of 1965, however, Congress had declared that no person could be denied the right
to vote in any election because of his or her inability to read or write English. In invalidating
the New York law the Supreme Court contended that New York violated the equal protection
clause by denying equal treatment to non-English speakers because of their national origin.
As a result of this ruling, local election jurisdictions are required by the Voting Rights
Act to provide ballots in multiple languages whenever five percent of the people in their
jurisdiction belong to a “language minority.”

Intermediate Scrutiny and Legitimate State Purposes
The second highest hurdle for laws to clear in equal protection cases is for laws based
on gender (sex). State governments have passed many laws that treat men and women
differently, but unlike race-based laws, the courts have adopted an “intermediate strategy”
to determine if these laws are constitutional. The logic underpinning this determination is
that there are more legitimate reasons to treat people differently based on their gender than
on their race, but that the long history of gender-based discrimination means that we must
be initially skeptical about those reasons. The states thus have a higher hurdle to clear with
gender-based laws than with other laws, but not so high a hurdle to clear as with race-based
laws.

Under the intermediate scrutiny standard, the Supreme Court has upheld a state law that
punished men but not women for sexual intercourse if the woman was younger than 18.6 It
upheld a federal law requiring males to register for the draft but not women,7 while striking
down another law that awarded widows a survivor’s benefi t but not widowers. However, it
also required Mississippi University for Women, a state-supported all-female institution, to
admit men to its nursing program.

The Impact of the Due Process and Equal Protection Clauses on State and Local Governments Special Focus: The Incorporation Doctrine
Finally, the lowest and easiest hurdle for laws to clear exists for laws treating people
differently for reasons other than their race or gender. According to judicial doctrines,
these need only have a “rational basis” for their existence and be linked to a “legitimate state
purpose.” For example, the progressive income tax used by the federal government and
34 states treats people unequally: Wealthier taxpayers are assessed a higher tax rate than
poorer taxpayers. Advocates of progressive taxes justify this nominally unequal treatment by
pointing out there is a rational basis for such unequal treatment in that wealthier individuals
have greater discretionary income than poor individuals, and can thus afford to pay more.
Raising revenue to fund its operations and activities is also clearly a legitimate state function.
Progressive income tax rates are thus acceptable under the equal protection clause. However,
were a state to impose a higher income tax rate on men than on women, or a tax on whites
but not on blacks, it would be a clear violation of the clause.

In short, if a state passes a law that treats people differently because of their race or national
origin, it must have a compelling reason for doing so; if it passes a law based on gender, it
must have a very good reason for doing so. Finally, if it treats people diff erently for reasons
other than race, national origin, or gender, it must merely have a reasonable (or good) reason
for doing so.

The Equal Protection Clause and Court Decisions
The equal protection clause is the underpinning of some of the most momentous and
controversial Supreme Court decisions in American political history, as it is the metric
against which school segregation and affirmative action programs have been measured.
In Plessy v. Ferguson (1896) the Supreme Court ruled that state laws segregating the races
in public facilities did not violate the equal protection clause so long as those facilities were
equal, even if they were separate. This “separate but equal” doctrine protected so-called
“Jim Crow” laws throughout the South for over half a century. In 1954, however, the
Supreme Court famously ruled that separate facilities were inherently unequal,9 and hence
a violation of the equal protection clause. This started an avalanche in which countless
segregationist laws were struck down or repealed, but also raised new dilemmas for state and
local governments.

In many areas, not only did state laws or local rules segregate children into white and black
schools, business practices also effectively segregated the races residentially. As a result, even
if rules creating separate schools for each race were eliminated, the schools would still be
effectively segregated because the neighborhoods surrounding them and feeding into them
were segregated.

In order to integrate the races into their schools, school districts have tried many different
approaches. One strategy was to bus students who lived in one area to a school in a different
area. This generally meant taking black or Hispanic students from their largely minority
neighborhoods and busing them to largely white schools in largely white neighborhoods.
Another strategy was to create magnet schools in minority neighborhoods. These magnet
schools would offer special programs to attract white students to the largely minority
neighborhoods. Yet another strategy was to abandon the concept of neighborhood schools
and instead assign families to schools based on the racial makeup of that school.10
Equally controversial for state and local governments has been the issue of affirmative action.
One of the key unresolved issues in constitutional law—and hence in state and local diversity
eff orts—has been whether laws or ordinances intended to correct discrimination against
one group can violate the equal protection clause by discriminating in turn against another
group. How far can public colleges and universities go in trying to admit more African
American and Hispanic students (or fewer white and Asian students)? What can local
governments due to try to steer or reserve contracts for minority-owned businesses without
discriminating against white-owned businesses?

In the end, the equal protection clause has proven to be a powerful tool not in promoting
equality, which is neither the clause’s intent nor function, but in reducing discriminatory
acts by government. Coupled with the power of the due process clause, the equal protection
clause has undoubtedly expanded the protections individuals have from capricious or
arbitrary government actions.

Critical Questions on Equal Protection for Classroom Discussion
1. What are some compelling reasons to treat people differently because of their race or
ancestry?

2. In creating an intermediate standard for gender-based laws, the Supreme Court has
essentially argued there are sometimes good reasons for treating men and women
differently. What are some of the reasons to treat men and women differently?