APLP
I. Adjudication
a. Government Employment
i. Bailey v. Richardson: Bailey was removed from government office after anonymous witnesses accused her of disloyalty to the government (Red Scare). She is given an opportunity to respond to the accusations in writing and then after being fired she was allowed an appeal in person before the Board. She challenges her 3 year bar from government employ as against the Fifth and Sixth Amendments.
1. The court holds that permanent bar from government employ is unconstitutional because it is punishment and punishment by the government requires trial by jury and right to confront witnesses under the Sixth Amendment.
2. Government employ is a privilege and not a right. President has always had the power to select employees for executive positions and to dismiss them without notice or giving reason. Completely at executive discretion unless legislative branch has been given authority to advise and confirm the employee into office.
3. The government is in adversarial relations with the communist party, whose main way of overtaking governments is to get sympathizers into positions in the government.
4. Bailey says there is an exception to the rule of employment at will where the reason for removal from position is disloyalty. She says this carries a stigma like a crime does. Court says that on balance, maintaining executive authority, checks and balances, and national security outweigh the interest in protecting Bailey’s reputation.
5. The job is neither life, nor liberty, nor property, so no process is due.
6. Dissent says removal for disloyalty is punishment and requires the procedural safeguards of the 5th and 6th Amendments.
ii. Board of Regents v. Roth- Roth was not rehired after his one year teaching contract was up. He is suing for deprivation of liberty and property without process. He was not tenured and district rules say teacher needs four consecutive one year contracts before having tenured position. Court says he has no due process claim b/c his job was neither property nor liberty. If government had fired him in a way that would stigmatize, he would have been entitled to relief.
iii. Perry v. Sindermann- Like Roth, but Perry had four years of employment and there was no tenure system but there was a sort of de facto tenure system. The court remanded for further proceedings on Perry’s interest in his employment, saying “A person’s interest in a benefit is a “property” interest for due process purposes if there are suc
efore, the post-deprivation hearing is adequate.
ii. Cleveland Board of Education v. Loudermill- The Court held that due process requires that when a government employee whose employment can be terminated only for cause is going to be terminated he be afforded both notice of the cause for termination and some sort of pre-termination hearing (does not need to be elaborate). Court says strong property interest in employment. The court says the hearing is conducive to accurate determinations of cause for termination. Post-termination procedures such as a right to appeal even if that appeal takes a good bit of time as long as that time is not unreasonable.
Goss v. Lopez- Students who were suspended from public school without some pre-suspension hearing had their property interest in (entitlement to) public education and their liberty interest in not having their reputations besmirched deprived without due process. The court said the only hearing which is necessary is a conversation between the disciplinarian and the accused student
