Discussion Questions

Posted: November 26th, 2013

Discussion Questions


Under the Fourteenth Amendment of the Constitution of the United States, unfair deprivation of liberty or property to an individual by the state is prohibited. The function of the Due Process Clause is to prevent arbitrary denial of certain rights to an individual, securing fairness for them. Before an individual can be deprived of his rights to life, liberty and/ property, due process stipulates provides steps to be followed. The process provides a platform upon which legal procedures are done, ensuring that people are listened to before they are judged. Due process may be substantive or procedural based on substantive and procedural law respectively.

Substantive vs. Procedural Due Process

Substantive law spells out the rights. On the other hand, procedural law spells out the manner in which such rights will be protected, and the course of action to be taken in the event of their violation. Substantive rights relate to an individual’s freedom of speech and ownership of property, even if the government if of the contrary opinion. Procedural rights come in when an individual acts in such as a way as to show that the rights should be taken away from him. The procedural due process gives the guidelines of how the government can go about taking these rights way, legally.

In this respect, before execution, imprisonment or fining, an individual is entitled to a fair hearing in a court of law. In guaranteeing basic rights and giving procedures on how they may be taken away, the judicial system acts as a check against abuse of power by the legislature and the executive. For district employees, especially those with security of tenure of their office, substantive due process provides that they cannot be fired without good reason unrelated to their performance. The office they hold is categorized as property; and the security of tenure serves of protection to this property.

Procedural due process lay out the defenses to be used by an employee to prevent the loss of his job. The case of Board of Regents v. Roth is a good illustration. Roth was a professor at a public college, but did not have security of tenure. The professor sought redress against the college’s unwillingness to renew his contract. Because of the untenured security, the court found that he did not have any claim or interest in the job, ruling in favor of the college. Had there been security of tenure, the college would have been required to produce sufficient evidence as to why the professor should not be allowed to continue discharging the duties of his office.

Employees are also entitled to freedom of speech. These employed by private firms do not have much liberty to speak against their employers because of the state’s absence. Public employees however have immense freedom under the First Amendment to speak against the policies of the state as his employer. In Waters v Churchill, the substantive due process afforded Churchill, a state employee, the freedom of speech. However, the procedural process provided the state with the actions to follow if the remarks made by the employee could be proved detrimental to its operations.


Employees are guaranteed to both types of due process. However, the substantive process offers them more protection than the procedural process. An employee with security of tenure has a property interest in his job; this is a substantive provision. In order to be fired, the burden of proof of providing reason for his termination lies with his employer. If enough reason is given, the employee will lose his job. In this way, the procedural process does not act in favor of the employer. If the employer fails to give reason for termination, the employee will have been protected by the procedural process.


Perritt, H. H. (2006). Employee Dismissal Law and Practice. NY: Aspen Publishers Online.

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