Fair Hearing

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In numerous contexts the Constitution requires the state to afford its citizens due process, which frequently includes an adversarial voicing of opposed contentions. "Fair hearing" in this broadest sense could thus include both the specific constitutional guarantees that attach to criminal trials and the more general requirement that civil litigation meet minimal standards of fairness. Among lawyers, however, the term more narrowly refers to the procedure that must be afforded to persons involved not in judicial trials but in some less formal dispute with the state. Speaking to that issue, the Supreme Court has asked when the Constitution requires any process and what that process should be. For some time the Court focused on the first question, assuming that if any process was due, it would resemble a formal trial; later decisions emphasized the flexibility of appropriate process.

For due process requirements to attach to any proceedings, they must, by involving governmental action that threatens life, liberty, or property, fall within the requirements of the Fifth and fourteenth amendments. Following in the wake of the welfare state, the Court has expanded its definition of property to include entitlements to various government benefits (for example, welfare and disability payments, tenured positions in state employment). Many threatened deprivations of such benefits consequently require due process, and the question becomes what that process must be. The Court has never answered that question in categorical terms, insisting that each situation calls for a rather individualized judgment. It has, however, suggested some minimal criteria and a set of factors to be considered in striking the balance from case to case. In deciding what process is due, one must consider "first, the private interest … affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail" (mathews v. eldridge, 1976). These factors represent an attempt to arrive at conclusions about two aspects of process: timing and elaborateness.

At a minimum, due process requires notice that tells the person threatened with deprivation the reason for the action and how he can challenge its factual and legal bases. Usually notice and such an opportunity must precede the deprivation, but even this proposition is not invariable; thus in a case of a threat to public health or other emergency situation, a seizure could occur first and notice and hearing afterward.

More difficult than the question of the timing of the required process is its nature. Because the Court has been unable to articulate guidelines applicable to all situations, it defines appropriate processes on a case-by-case basis. Consequently one can fully understand the requirements of due process only by sampling a large number of cases. It is, however, possible to suggest some rough guidelines and some distinctions. The first might be the line between situations requiring formal adjudicatory hearings, as for the termination of welfare benefits in goldberg v. kelly (1970), and those that do not: the more serious the deprivation, the more likely the Court is to require a trial-type hearing. Even when such a hearing is not required, one can further differentiate situations according to the formality of the process required: the state must provide a written statement of reasons for ending disability benefits and give the recipient a chance to respond (Mathews v. Eldridge), but a school official need engage only in a brief oral conversation before suspending a student, as in goss v. lopez (1975). Indeed, the Court has approved procedures that are not even adversarial in the normal sense, for example, an expulsion proceeding in which a medical student has an opportunity to demonstrate her medical skills to several local doctors over several days. (See board of curators v. horowitz.)

The consequence of such flexibility is that a constitutionally "fair hearing" need not entail a hearing at all, and even if it does that hearing may occupy various points along a continuum of adjudicatory formality. Such flexibility results from the Court's attempts, once it has concluded that due process attaches, to tailor the process to the situation at hand, taking some account of the stakes for the adversaries and of the goals of process. Some commentators have criticized the Court for the narrowness of its focus, arguing that the goals of process include the dignity of the participants as well as the accuracy of the result; the Court has seemed unpersuaded of this point.

The constitutional focus on fair hearings in administrative law has drawn attention to a number of areas presenting similar profiles—to which, however, due process does not apply, either because the institutions involved are private or because life, liberty, or property is not threatened. Nevertheless, under the influence of the constitutional cases many institutions (such as private schools or trade associations) have adopted processes that resemble those that might be required if due process did apply. Some of these procedures have resulted from legislation or regulation and an occasional judicial decision using common law; others have come voluntarily. In either case the consequence has been a softening of the lines between the practices of public and private institutions; there is thus a sense in which one can speak of a fair hearing as a practice (though not a constitutional requirement) of many areas of institutional life.

If fairness does not always require a hearing, it is nevertheless true that the constitutional ideal described by the term has permeated many areas of life where neither fairness nor a hearing is constitutionally required. The result, in a society of large institutions and sometimes uncertain responsibility for decisions, has been a requirement taking many forms but having at its basis the idea that persons about to be adversely affected have the right to know why and to respond.

Stephen C. Yeazell


Friendly, Henry 1975 Some Kind of Hearing. University of Pennsylvania Law Review 123:1267–1317.

Mashaw, Jerry L. 1976 The Supreme Court's Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value. University of Chicago Law Review 44:28–59.

Verkuil, Paul 1975 The Ombudsman and the Limits of the Adversary System. Columbia Law Review 75:845–861.