Due Process: Civil

CIVIL PROCEDURE

Prisons
Meachum v. Fano (1976); Hewitt v. Helms (1983); Rovella, David “Prison Suits Reduced by Filing Limits,” (1997) NOTE: not on disk see paper copy

Schools
Tinker v. Des Moines School District (1969) NOTE: cross reference to Ch. 2 Expression; Goss v. Lopez (1975); Ingrham v. Wright (1976)


Criminal procedure epitomizes the application of constitutional safeguards to individuals in jeopardy. Most people feel safer because the criminal procedure protections exist, yet they affect relatively few people. Civil due process, or procedure, is different. It is newer, the protections are less dramatic, and its impact, at least quantitatively, is far broader than that of criminal due process. With expansion of the roles and services provided by the government, substantial issues arise outside the criminal sphere to which due process may be applied. Whatever the object of struggle, whether it be an education or a welfare benefit, procedural guarantees set standards for how people are to be treated when government action threatens them with a loss.

Legal concepts evolve in different ways. One way comes from changes in meaning. This was true of due process in the late nineteenth century when the justices, using the concept broadly, offered protection for corporations from legislation concerning such matters as regulating the number of hours for workers in baking and regulating child labor on the basis of "substantive" due process protection. Concepts can also expand their application. This was evident in the "due process revolution" that applied the protections of the federal system to the states in the 1960s. This second kind of change is political and can be described in terms associated with that realm. Due process in such institutional settings is almost imperialistic. When it moves into new settings, the procedure alters the structure of power of the old ways of doing things and of the interests that were served, giving way to new ways and new interests.

C. Herman Pritchett has called due process "perhaps the most expansive and adaptable of the Constitution's many broad phrases" (1948:587). It is an idea that sets the parameters of relations between persons and institutions. Even in its most specific provisions, such as the right to assistance of counsel, due process determines how social institutions will operate. Its requirements change the nature of the institutional setting. Where it is applied to a new institution, it brings with it forms of interaction and authoritative sources of meaning. The degree of procedural imperialism is impressive when considering the range of institutions in which due process has become influential in the last two decades. Beginning with public employment, due process challenged the old distinction between a right and a privilege. The higher federal standard of procedural guarantees fueled early developments in criminal rights, but after a decade of incorporating the Bill of Rights through the Due Process Clause of the Fourteenth Amendment, there followed the application of procedural safeguards to other institutional settings. Due process was accompanied by the recognition of entitlements as a matter of settled expectations. Public assistance was perhaps the most dramatic example. Here the effect was on how decisions were made. In prisons and schools, however, the institutional setting began to look different as it was influenced by new standards.

It is inadequate to look at due process, especially the sort associated with noncriminal situations, without addressing the relationship between constitutional ideas and the institutional settings in which they are applied. Institutions are constituted by people bound together by ideas. New ideas change the substantive nature of that bond. In the area of freedom of expression, the new standard of protection came after the First World War. The result was an expansion of what could be printed by the press or said on the street corner. In the case of the criminal process, the enthusiasm for procedure reached new heights after the Second World War, as part of a nationalizing effort. The result was new police procedures. In the civil setting, where changing norms and reliance on the legal process have swamped family courts with child custody battles, constitutional standards have been invoked to preserve parental rights (Santosky v. Kramer, 1982). The result in all of these cases has been new institutional settings.

Like the specific provisions that transformed the criminal process, a broader due process, associated with fundamental fairness, has been extended to major social institutions. Prisons and schools are two settings with strong institutional commitments that reveal another facet of the interactive transformations that have taken place. Prisons are settings in which little faith in the human spirit exists and where the inhabitants least exemplify those aspects of the ideal citizens that are the foundation for due process. Schools are a good comparison because there greater faith can be found, although the structure of authority is remarkably similar. Due process has changed both areas in fundamental ways.

Prisons
Balancing. Due process governs some prison disciplinary proceedings. In this setting, due process refers to internal (civil) proceedings, rather than the external (criminal) context. This is clearly not a civil setting in the ordinary sense. It is influenced by the larger penal environment. Nevertheless, the due process issues that follow are sufficiently civil to provide the insight into this dimension of the constitutional right. The general ideal of due process applies to administrative hearings affecting those in confinement, although the scope of specific rights enjoyed by inmates is limited. The decisions of the courts, delineating the extent to which traditional due process applies to prisoners, have narrowly interpreted constitutional requirements. In these cases, the search for truth is being balanced against correctional goals and security. Prison due process will therefore be treated as a link. It has a connection to both criminal and civil standards of justice. This angle is unique enough to justify attention here.
Constraints imposed in prison disciplinary cases have traditionally followed from the doctrine that the process due depends on the severity of the sentence and the belief that "one cannot automatically apply [guarantees] designed for free citizens in an open society to the very different situation by a ...prison" (Wolff v. McDonnell, 1974:953). This ruling came in a case where prison officials guarded against contraband by opening mail from an inmate's attorney. The balance struck by the institution and approved by the courts in order to preserve constitutional rights required that the inmate be present when the mail was opened. The courts conceded that imprisonment justifies the denial of certain rights available to free citizens and that the nature of the institution legitimizes restrictions on due process.

Court involvement with prisoners' rights has swung from a "hands off" policy to an interventionist approach in the last two decades. Historically, the courts found that a prisoner's "fate is by law in the hands of administrators whose acts...may be presumed legal" (Landman v. Royster, 1971:643). As early as 1899, however, extreme cases evoked judicial intervention. In that year, a prisoner, chained at night by the neck so that he could neither sit nor lie down, was found to have had his constitutional rights violated (In re Birdsong, 1899). This ruling came from a lower federal court. It would be over 50 years before widespread constitutional supervision of the rights of prisoners would develop. This is at least in part due to the uniqueness of this sphere, where the person in jeopardy has already forfeited some of his or her rights.

The mid 1960s saw a dramatic increase in the application of constitutional protection to prisoners' rights (Cole, Hanson, and Silbert, 1981). Since Cooper v. Pate (1964), in which statutory protection under the Civil Rights Act of 1871 was accorded to prisoners, the number of suits rose from 218 in 1966 to 13,000 in 1980 (Cole, Hanson, and Silbert, 1981:1). A 1997 Bureau of Justice Statistics report showed the total number of prisoner petitions in 1980 to be 23,230, while those in 1996 were 68,235—38,252 of those were civil rights suits (Berkman 1997, Rovella 1997). Interestingly, the number of civil rights suits declined from 42,144 in 1995. This may be due to the Prison Litigation Reform Act signed by President Clinton in 1996, which makes it more difficult for prisoners to evade filing fees while making it easier for judges to throw out suits they see as frivolous. But many civil rights suits were for injunctive and compensatory relief over a variety of issues- from the brutality of guards and abuses by other prisoners to inadequate care and the loss of personal property. Although the attention reflects a concern for prisoner’s rights, the outcomes have not always been in the prisoners' favor. In cases where the courts have intervened, the decisions generally reflect a pro institution stance. In assessing the application of constitutional standards to institutional proceedings, the courts consider the feasibility of due process rights and the impact that certain provisions could have on prison administrations. This is the institutional balance: "...that a prisoner retains rights under the Due Process Clause in no way implies that this right is not subject to restrictions imposed by the nature of the regime to which he has been lawfully committed...there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application" (Wolff v. McDonnell, 1974).

Early judicial intervention in the administration of prisons was closely tied to physical brutality and the degradation of being stripped, beaten, and exposed to severe and threatening conditions (Jordan v. Fitzharris, 1966; Wright v. McMann, 1967; Jackson v. Bishop, 1968). Occasionally, deprivations of more general "civil" rights in prison, such as correspondence privileges, have been viewed as cruel and unusual. More often, however, challenges have raised less sweeping due process claims. Recent due process cases in prison conditions address three questions: Has the discipline imposed on the inmate violated a constitutional right? Does the state have a legitimate charge? Did the inmate's actions warrant the punishment meted out (Hirschkop and Millerman, 1969)?

Hearings. The processes by which administrative hearings are conducted in prisons can be compared to the constitutional protections outside the walls. There is a parallel since accuracy and legitimacy are still issues, although in the prison context the process is limited by punitive and security considerations. The due process right to a hearing includes a timely and adequate notice of the action and charge, an opportunity to present a defense, and an impartial decision maker. In 1979, in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, the Supreme Court reviewed the process by which Nebraska determined eligibility for parole on the basis of a constitutionally protected "conditional liberty" interest held by the inmates. The Court found that a reasonable entitlement to due process is not created whenever a state provides for the possibility of parole and that the procedure provided by statute which included notice and hearing was adequate. However, in Hewitt v. Helms (1983) Justice Rehnquist reaffirmed the tradition whereby a liberty interest requiring due process considerations can be created by a state through legislative supervision of its prisons. The interests range from systems of good time credits to freedom from solitary confinement.

Of equal import are rights which are not generally believed to be constitutionally guaranteed to prisoners. These include the rights to cross examine and confront adverse witnesses, to remain silent without unfavorable inferences being drawn, to representation by appointed or retained counsel, and to knowledge of reasons for denial. Due process in administrative proceedings outside prisons requires that defendants have the right to cross examine and confront adverse witnesses. This right is important in cases where people challenge a charge as "resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases" (Goldberg v. Kelly, 1970). This contributes to fair adjudication and a means for finding the truth. Lower courts, since 1971, held that in prison disciplinary cases, "the right to confront and cross examine witnesses is essential..." and that "the ultimate decision be based on evidence presented at the hearing, which the prisoner has the opportunity to refute" (Landman v. Royster, 1971). But in Wolff, the Supreme Court virtually nullified the Landman decision by offering the view that cross examination of adverse witnesses was not constitutionally required and could jeopardize the security of institutions and unnecessarily burden administrations. Since guards are usually the witnesses against inmates, the Court held that cross examination would place guards on equal terms with inmates and thus threaten the officers' authority. Furthermore, the Court worried that institutions would require larger staffs to monitor cells during hearings. In some institutions, inmates are permitted to confront adverse witnesses; however, if the administrators choose to rescind this right, they are constitutionally compelled to provide an explanation for such a denial (Baxter v. Palmigiano, 1976). In 1983, the Court limited the protection even further when it held that anything more than a written statement from a prisoner contesting charges that he was a security threat and needed to be segregated would be at the discretion of the prison administration (Hewitt v. Helms, 1983).

The self incrimination provision of the Fifth Amendment does not apply to prisoners who refuse to testify during disciplinary proceedings. Adverse inferences may be drawn from the refusal to testify, contrary to the Miranda ruling applicable in criminal cases (Baxter, 1976:821). Similarly, the Court adjudged in Wolff that inmates do not have the right to appointed or retained counsel during disciplinary hearings. If the administration identifies an inmate as being incompetent, however, another prisoner may assist the defendant in preparing evidence for the hearing; but otherwise, inmates are not guaranteed the right to assist one another. After this decision, a rehearing of Clutchette v. Procunier (1974) was held to amend the original decision in accordance with the provisions outlined in Wolff. Judge Shirley Hufstedler, sitting on a three judge panel, refuted the Wolff standard, claiming that "any guarantee of process due is empty if the particular inmate is incompetent to avail himself of it" (Clutchette, 1975). Finally, even in cases where a disciplinary infraction violates state law, inmates do not have a right to appointed or retained counsel at disciplinary hearings (Baxter, 1976).

Administrative Impartiality. The courts place limitations not only on testimony and the right to counsel but also on the type of adjudicator. Although prisoners have the right to an impartial decision maker, the only stipulation ensuring impartiality is that "the hearing be conducted by some person other than the one initially dealing with the case" (Morrissey v. Brewer, 1972). In practice, correctional administrators, serving as adjudicators, decide disciplinary cases. In fact, in Hewitt v. Helms (1983), the prisoner's only opportunity to respond to charges and influence an administrative decision must be addressed to the official making that decision. Outside institutional settings, this would be a clear violation of the neutrality provision, but as we will see in looking at schools, due process does have a different meaning in institutions. The restrictions on specific due process rights affect the ability of arbitrators to determine the truth "beyond reasonable doubt." Instead, the disposition of inmate cases is made by weighing the evidence presented and deciding which side has a more valid case. The fact that inmates are rarely allowed to cross examine witnesses, coupled with the fact that correctional officers with a stake in the outcome act as judges, diminishes the likelihood that truth will surface, no matter what standard for weighing the evidence is employed.

After hearing officers make determinations, prisoners do not have a right to administrative appeal. An impediment to appellate review stems from the holding in the Wolff case that inmates need not be given a written statement as to the evidence relied upon in determining the disciplinary action. Without this knowledge, inmates have difficulty finding grounds for appeal.

The courts have established guidelines for internal prison hearings. Many of these guidelines remain subject to revocation, however, if administrators feel that their implementation could threaten the security of the institution. This qualification, and the fact that the courts consistently defer to prison administrators in disciplinary hearings, emphasizes the difference in the scope of specific due process inside these institutions. Although the level of deference to administrative expertise in prisoners' rights cases has changed in the last two decades, the Supreme Court showed its hesitation to transgress administrative authority in Meachum v. Fano (1976) in writing that:
To hold...that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of disciplinary actions that traditionally have been the business of prison administrators rather than of the federal courts.
As a consequence of such judicial deference, the capacity of due process for determining truth in prisons is limited.

When courts apply the Constitution to cases involving prisoners, the right to due process is considered, although it is balanced by the concern for institutional efficiency. Justice Byron White, writing for the Court in Wolff, accounted for the establishment of specific rights as representative of a “reasonable accommodation between the interests of the inmates and the needs of the institution” (Wolff, 1974). This opinion is in part a function of the notion that prisoners have given up some of the rights of citizenship—and it is from the notion of citizenship that due process guarantees flow. As such, procedural guarantees are more circumscribed in the realm of the prison. But it is due to the spirited application of procedural formalism that civil liberties protections were introduced into prisons. This is a development that is, as we have seen, not simply a charitable response to the less fortunate, but one of the ways in which procedural protections present the authority of the government in a humane light.

Schools
In schools, the relationship between students and administrators has also come to be affected by the due process guaranteed by the Constitution. Here the right follows from the liberty and property interests associated with an education. As with prisons, the institutional situation goes a long way in determining the nature of individual rights and the due process required. In public secondary schools, for instance, random drug testing of students has been upheld for similar reasons as random automobile searches. But in this section, the focus will be on college students. Their rights involve procedural guarantees that shield students from the arbitrary exercise of administrative power (see Van Alstyne, 1977). With these issues, the context in which the rights are applied is as crucial as it is in other due process cases.
Since we will be approaching constitutional rights in a sphere where they have only recently been applied, it is instructive to look at the prior models in order to illuminate the nature of institutional incorporation. Since the colonial period, and well before the development of our present system of public schools, there have been essentially three models of administrative authority: (1) the in loco parentis model; (2) the contract or market model; and (3) the due process, or rights model.

In Loco Parentis Model. The earliest model, in loco parentis, stemmed from analogy to parental authority. Its manifestation in legal doctrine came to symbolize the perception administrators had of the nature and limits of their authority. The doctrine developed out of tort law, the law of private conflicts, for those suits brought in behalf of minors seeking damages from teachers for assault and battery resulting from corporal punishment. Parental authority was the standard and the model back to the early part of this century, when state courts held that whether rules or regulations were wise, or their aims worthy, was a matter left to the discretion of the authorities or parents. Cases from state courts throughout the country have held that courts have no more authority to interfere than they have to control the domestic discipline of a father in his family.2 The legal principle resulted in extreme deference by the courts to academic administrators out of respect for the challenges they were thought to face in running the schools.

This governing principle grew as a model for general academic authority. Thus, the validity of rules prohibiting students from spending time and money in certain ways, living in certain places, or associating with particular people was tested by analogy with whether parents could maintain such a rule. Often, even the substance of the model reflected that of a rather strict and protective parent. As an example, there was a time, up until the late 1960s, when women were allowed in male dormitories for only a few hours on Sunday afternoons. During that highly charged period, doors had to be kept open and the occupant and visitor had to keep three feet on the floor at all times, epitomizing the rule of in loco parentis in residential institutions. It may come as no surprise that this was also a period in which the authorities were more protective of girls than "men." Women had curfews, 10:30 P.M. on week nights, 12:30 A.M. or 1:00 A.M. on weekends. In some places of course they still do, but no longer at the state universities. In the 1960s, men could stay out as long as they wanted. This represented a difference in attitude toward men and women that appears in related forms today, as in the much more frequent prosecution of men, but not women, for statutory rape. In four states, only men can be prosecuted for this offense—this was true in all fifty states until the 1970s, when feminist groups began to lobby for “gender-neutral” laws and so no longer codify the notion of females as always being sexual victims (See Chapter 6).

Contract Model. Standards began to change in the 1970s, and the impetus came from both the courts and the culture. The U.S. Supreme Court directed a dramatic period of liberal activism that raised awareness of rights and expanded protection to the powerless. At a cultural level, especially in higher education, it became evident that institutions of 30,000 students or more had little of the warmth and hominess of the family. Moreover, in 1970, students had gotten older; the average college student was likely to be an adult. The old standards differentiating faculty from students began to break down out of the pressure to be treated as equals. By the late 1960s, courts showed signs of abandoning in loco parentis. As an Alabama court cautiously put it in 1968, "college does not stand, strictly speaking, in loco parentis to its students".
In each of these models, the historical period is an approximation and there is considerable overlap between models. The standard for this period during which students began to see themselves as mature individuals is the "contract" model. Contract is associated with common law protection for business agreements. As a model for institutional responsibility, it has even less substance than in loco parentis and holds that the obligations of an administrator stem from the terms of the relationship that existed when a student entered the institution. There would be little recourse to notions of justice and fairness if they were not stipulated. The issue to come before the courts would be whether there was a rule in effect and whether the student had followed it. This, of course, suggests a propensity to "go by the book" in order to remain relatively safe from the litigation that inevitably followed a model derived from economic exchange.

The doctrine can also be associated with "consumerism" among college students. In this sense, it reflects the inclination to consider education a product. Administrators are seen in the role of managers responsible for efficiency and quality control. Some results from operating in this fashion were greater dissemination of rules and regulations, and publication of student guides to teacher quality. At some institutions students even began to relate the quality of the course to the salary a professor earned. Although the model and the movement which spawned it had some impact, one serious problem with this attitude was that it reinforced the ideas that students were not responsible for getting educated, and that they would receive a product for their tuition much like buying a bag of chips at the market.

Legal scholars also pointed out that the model's protection for students had been minimal from its inception because the institution set the terms of the contract. This was evident in a 1923 case involving Bryn Mawr College. There the courts upheld a clause in the college rules and procedures that said "the college reserves the right to exclude at any time students whose conduct or academic standing it regards as undesirable." Because the contract model had little substance, students were expelled and disciplined with minimal attention to their rights and even where the institutions had written rights and obligations into their codes of student conduct, such rights were often ignored. The contract model did, however, produce some unusual challenges to teacher competence.

Due Process Model. The third model is derived from civil liberties, and its greatest impact is in the area of due process. This model is a recent phenomenon that stems from the demise of in loco parentis and from the due process revolution since the 1960s. The sources of the law are, for the first time, clearly outside the institutional context. Yet, in all cases, the context has influenced the form that due process has taken. The early civil liberties applied to schools were actually statutory protections, such as those of the Civil Rights Acts. First employed in 1961 (Dixon v. Alabama, Fifth Circuit), they signaled a shift to new substantive conceptions of how institutions should operate. This decision ordered that students be reinstated if they had been dismissed without written specification of the charges and a hearing. The privacy and freedom of information acts also significantly altered the context of students' rights in the schools. Other major sources in this area have been constitutional rights such as equal protection- with its concern for discrimination, and freedom of expression- with its unique association to the school environment. In one expression case, for example, students wearing black arm bands in opposition to the war in Vietnam had been summarily suspended by school authorities, but they were vindicated in appeal to the Supreme Court (Tinker v. Des Moines School District, 1969).

In 1975, in Goss v. Lopez, due process rights were provided to students who had been temporarily suspended from their high schools without a hearing. Having found that the state of Ohio promised the students an education, Justice Byron White held that this benefit could not be taken away without due process. The process "due" (Morrissey v. Brewer, 1972) came to be treated as a function of the right in jeopardy. In this case, due process would apply because the guaranteed education was threatened. Basing his argument on Cafeteria and Restaurant Workers Union v. McElroy (1961), White emphasized the practical nature of the procedural requirement. The minimal standard was "the opportunity to be heard" (Grannis v. Ordean, 1918) or "notice and opportunity for hearing appropriate to the nature of the case" (Mullane v. Central Hanover Trust Co., 1950). As White summed it up, the students had to be given "some kind of notice and afforded some kind of hearing."

In this decision, the Court considered the burdens that due process required in relation to the interests of school authorities in carrying out their institutional functions. The requirement for suspensions of 10 days or less was "an informal give and take between the school authorities and the student in order to preserve the essence of due process, an opportunity to get at the truth while respecting the individual.” Although confrontation in a high school corridor has few of the trappings of formal hearings, it does reflect the twin functions evident in the concept employed by Justice Frankfurter in Anti Fascist Refugee Committee v. McGrath (1951). In addition, Justice White wrote that if the student denies the charges, he or she deserves an explanation and an opportunity to present his or her side of the story (Goss, 1975). This might help keep the exchange open, although White did not require any delay between the notice and the opportunity to respond.

As with due process in other institutional settings, Goss linked the procedure to the weight of the deprivation. This pragmatic approach was evident again in Board of Curators of the University of Missouri v. Horowitz (1978), where the fact situation produced a distinction between disciplinary and academic judgments. Horowitz demonstrates the extent to which civil due process in the academy has been influenced by a penal model resulting in considerable deference to institutional functions. In the Horowitz case, a medical student had been dismissed on the basis of "erratic attendance at clinical sessions, poor performance around patients and poor personal hygiene" (Horowitz, 1978). She claimed that she had been unconstitutionally deprived of liberty and property. Justice Rehnquist considered the claim in his opinion for the majority on the Supreme Court. According to Rehnquist, the liberty interest that Horowitz was entitled to invoke was the opportunity to continue her medical education and gain employment as a doctor. Rehnquist deferred to faculty and administrative prerogatives where educational evaluations were at stake. Since the school had informed her of its dissatisfaction and the final decision was to be "careful and deliberate,” the disappointed medical student was found to have been awarded "at least as much due process as the 14th Amendment requires." Because there had been "deliberation," the Court found that the institution met the minimal requirements due when the issue is purely academic. In the justice's words, it was "[l]ike the decision of an individual professor as to the proper grade for a student in his course...and is not readily adapted to the procedural tools of judicial or administrative decision making" (Horowitz, 1978). His concern was over transforming the situation into an adversarial one. The distinction may have broad consequences. By recognizing the liberty interest, but requiring little because of the setting, the Court diluted the value of due process itself in deference to the traditional prerogatives of the academy.

Academic judgments have traditionally involved deference to expertise. It would be odd to call a jury to find out whether a student would make a good doctor or would deserve an A in a civil liberties class. Discrimination on the basis of sex and religion, however, such as Horowitz claimed, taint any evaluation process. Charges of bias are exactly the sort of thing for which neutral adjudication and procedural safeguards were developed. To dismiss them as "substantive," in the fashion of Justice Rehnquist, is to ignore the tradition of procedural fairness. Due process emerged as a hedge against arbitrary state action, for the purpose of honoring the individual and getting at the truth. The requirement of a fair hearing historically would include a procedural protection against bias. This "political" due process becomes operative when some claim, about which the society is particularly sensitive, is made. Because of such claims, due process may be appropriate when ordinarily "expert" judgment could not be challenged. For instance, when hiring or promotion decisions are made, the articulated criteria are inevitably job related, no matter what the "real" reasons. In the university, judgments about grades always involve expertise, yet it is now recognized that racism and sexism can affect expertise. It is in this regard that sexual harassment, as an emerging political issue, is closely connected to due process.

Hybrid Model. Thus far we have discussed three models of administrative authority that have bee operative in educational institutions. Since the early 1980s, with attention to sexual harassment in schools, we have witnessed the formation of what we might call a “hybrid model” of administrative authority, wherein multiple theories of due process are put into play at varying stages of grievances and response to them. In the narrowest sense, sexual harassment is a social phenomenon that amounts to the abuse of power for personal sexual pleasure. More broadly, it is also a pattern of behavior through which current class and gender hierarchies are reaffirmed. Like such abuses in pursuit of financial gain, sexual harassment is an activity of long standing. Unlike abuses that have money as the object, such abuse has not been publicly sanctioned until recently. Because an early demand in the battle against sexual harassment was for "grievance procedures" and because the response from those charged with harassment is invariably a call for procedural protection, this area is fertile ground for discussion of different forms of due process. This has been particularly true in the academic environment in the early 1980s and 1990s. On the one hand, the volatility presents the classic challenge to due process: the confrontation between an outraged and single minded public and the object of their scorn and fear. On the other hand, the current attention to this issue serves as an opportunity for examining the impact of legal and formal structures in traditional spheres like colleges. In these environments, conventional modes of proceeding have sometimes been out of phase with the law. Although the issue has become a significant one on college campuses, however, it is of course not limited to this realm.

The tactical moves in the battle over sexual harassment have also not been limited to due process protection, and the protection itself has not always been attributed to the constitutional protections (see Chapter 8, Equality, pp.xxx). Some of the initial energy, stimulated by the women's movement, raised issues of equality and equal protection based on the treatment of women in the workplace. Similarly, the right against sexual harassment is not a procedural due process right. In fact, it probably does not make much sense to see that right as a constitutional right at all. Rather, the right to be protected against sexual harassment is a social and moral right that derives from the way we define appropriate behavior in particular institutional settings and in society more generally. The due process right is a response to harassment and, in that sense, it is a strategic consideration for those who would minimize such activity. Like due process generally, the appeal to due process in this context is a resource in a political struggle, a tool that is provided by the state to maintain its own position of authority.

The most common definition of sexual harassment comes from Equal Employment Opportunity Commission (EEOC) regulations (45 Federal Regulation 74676 77, November 10, 1980), and it emphasizes the setting that makes unwelcome sexual advances a problem of this sort.3 There are broader definitions of the conduct that include "sexist remarks about a woman's clothing, body or sexual activity, unnecessary touching, patting or pinching, leering or ogling a woman's body, constant brushing against a woman's body..." (American Association of University Professors, 1980). Part of raising consciousness concerning a problem consists of describing it; such description necessarily results in a broad definition. The context is also a matter of debate, with questions arising as to whether sexual harassment can occur between persons of the same status, such as two students. The most likely response to this is the part of the EEOC guidelines that addresses unreasonable interference and creation of an intimidating atmosphere. In such cases, even people of the same status are capable of abuses of power. Although it is generally portrayed as a condition where men are the aggressors, this is at least partly a function of their greater access to positions of power in the past.

Many universities have instituted formal grievance procedures for victims of sexual harassment; Yale University’s policy, for instance, places the burden of proof on the accused faculty member. But in late 1997 the University went one step further in an effort to constrain sexual feelings between people who are generally of unequal status—in reaction to a harassment claim against a professor and a subsequent review of procedures concerning its policy, the school banned all sexual relationships between students and faculty as jeopardizing the educational process, regardless of whether or not they are consensual.

There is nothing new about employers or faculty members responding to the sexual tension that exists because of our very humanity. Without a degree of such tension, the human race is clearly less likely to perpetuate itself (given present technology anyway), and such a degree of tension is the happy product of physical relations, which many of us quite enjoy. It is the abuse of power, not sex (just as it was violence and not sex when we discussed pornography), that presents a social problem.

Not all agree on the extent of this problem. Phyllis Schlafly, leader of the anti Equal Rights Amendment forces, for example, testified at a Senate Labor Committee hearing on sexual harassment in the workplace but reserved most of her ire for feminists in general, "The most cruel and damaging sexual harassment taking place today is the harassment by feminists and their federal government allies against the role of motherhood and the role of the dependent wife." Perhaps best reflecting the belief in stereotypes of men and women that preclude valid sexual harassment claims, she went on to say that, “Men hardly ever ask sexual favors of women from whom the certain answer is 'No'. Virtuous women are seldom accosted by unwelcome sexual propositions or familiarities, obscene talk or profane language.'' She called the EEOC guidelines themselves ''unjust because they penalize the innocent bystander, the employer, for acts over which he has no control, and because they allow unscrupulous persons to file mischievous claims.'' Speaking to the Christian Coalition in 1993, Schlafly pointed to the Anita Hill - Clarence Thomas "episode" as an attempt to use charges of sexual harassment as a "tool that can be used whenever they want to defeat and destroy any man they go after." And along the same lines, she wrote of feminists in 1994, “Want to punish your boss for remarks you didn't like? The Sexual Harassment gestapo will give him a hard time.” Her words represent a viewpoint that trivializes the seriousness of the issue by implying that such treatment is imagined, deserved, or used as a tool for some kind of revenge or power struggle. Yet, it should not be dismissed entirely because the verbal or physical messages that people send can sometimes be misread and are often important.

The issue of sexual harassment was first articulated in the law as a form of sex discrimination (Mackinnon, 1979). Appeal was to the provisions of the 1964 Civil Rights Act. Other avenues of legal response have been considered, such as criminalization, civil actions, and new statutes; but, the most significant is perhaps that of the fundamental right to due process. This is not only the most powerful response because it exists as a constitutional right, but it is the right traditionally employed to stem abuses of power. Taking into account the idea that one’s power is drawn from the position one occupies in an institutional structure, the right to due process is extremely significant because it can serve to almost reconstitute certain power relationships in such institutions and provide those with less power with legal recourse.

Due process, in a sexual harassment case, serves both parties as well as the institution within which the harassment takes place. Its importance to the aggrieved party (the person who has been harassed) is in the chance to be heard and perhaps to focus attention on the conduct as well as the general issue. Due process makes it harder to ignore the conduct; consequently "grievance procedures" have been a major part of the claim. The person charged with doing the harassing has the more traditional claim to due process. The institution within which the harassment has occurred also gains to the extent that a problem that would otherwise poison the work environment can be aired in a regular and more controllable way. But perhaps most importantly, the mere circulation of legal discourses about one’s due process rights in sexual harassment situations can serve to build a rights consciousness in those who may not necessarily have conceived of the problem as a legal one that demands redress, and can possibly serve as a program around which to mobilize in order to secure such rights and assure that they are not violated.

According to the EEOC, the number of sexual harassment claims jumped in 1992. Officials generally attribute this to heightened awareness of sexual harassment issues brought on by the 1991 confirmation hearings of Clarence Thomas to the Supreme Court—a former chairman of the EEOC himself, he was accused of having sexually harassed Anita Hill when she was his employee. Further, the 1991 Civil Rights Act allows plaintiffs to sue for compensatory and punitive damages as well, if they can prove that the behavior in question was malicious and resulted in stress and humiliation. In 1990, there were 6,127 claims filed; in 1992, over 19,000. But in the past few years, the number has leveled off, to 15,342 filed in 1996. And while in 1990, men made up about 8% of the complainants, in 1996 they made up about 10%.

LEGITIMATION
Idealism may not be a requisite for attaining public office, but the law that governs official behavior has its own idealism. Due process is such an ideal, and its importance reaches beyond is application in particular instances. Originally tied to a public promise extending the range of sovereign power by providing superior mechanisms for settling disputes, the twin functions of a search for truth and respect for the individual reflect the interests operative at the "founding" of the American Republic. The constitutional rights to due process are the parts of the larger legal structure that contribute to its authority by guaranteeing fairness and settled procedure. They have become a basis for economic and political relations. Process is not only a central tenet of liberalism, it is the institutional principle on which liberal democratic regimes have been constituted.

Procedural guarantees strengthen public authority because they contribute to the structural autonomy of the legal system. A rising middle class in the seventeenth century used law to eliminate the "...arbitrariness and dead weight of ascriptive status distinctions from its profit making activities" (Balbus, 1973:4). This involved separating the prosecutorial from the judicial functions, thereby symbolizing the separation of the law from the immediate influences of politics (Kircheimer, 1961:120; Balbus, 1973:20). Thus, among other things, the promise of procedural due process means that the court proceedings must be isolated from direct interference by political executives and legislatures, and by powerful groups in the society. It also means that judgments must not favor wealthy, well connected, socially prominent, politically powerful litigants over the less favored. Due process also means that no one will be punished except in accord with principles of law that are accepted as legitimate and that are applied even handedly to all. Therefore, we speak of the legal system as having autonomy from the social, political, and economic systems. Only then can litigants expect fair treatment, no matter how much they are disliked by various social and political powers. In other words, procedural due process is extraordinarily appealing in its aims to fairness, universality, equity, and “blind” nonprejudiced justice.

The name given to this rationalization of public authority is "legitimation." The term emphasizes the social function of legal practices beyond the resolution of disputes. A regime that accords its legal system such autonomy is more likely to be considered legitimate by its own citizens than one that does not provide fair legal process. Like the formal rules of which it is a part, due process legitimizes public authority in a society in which there are inequities. Its promise cuts across these inequities to provide a practice more egalitarian than the society generally, and its provisions serve as an ideal to which transformative appeals can be tied. Its promise, however, also perpetuates systemic inequality and minimizes critical attack on the system. In short, differences in wealth and power will appear more acceptable to the poor and powerless in a society that purports to treat everyone fairly and equally in court than in a society that does not. A well publicized acquittal, like access to law books in prison, may make things seem less desperate.

The provision of lawyers for the poor, romanticized in print and film in such productions as Gideon's Trumpet, equalizes the power of people before the law but also provides hope based on an untenable distinction between the legal and the social sphere. Given the different resources of the rich and poor, it seems clear that "if the law is indifferent to the distinction between rich and poor, it follows that the law will necessarily tend to support and maintain this distinction" (Balbus, 1973:5). In the studied indifference to privilege that remains after formal equality before the law has been established, legal autonomy works at cross purposes, preserving privileges while it denies their relevance, and attacking oppression while it serves as its instrument.

Like the pressures on the search for truth and respect for the individual within due process, there are pressures on the whole institutional apparatus. During the uprisings in the inner cities in the 1960s, for instance, less severe penalties were imposed on participants than for comparable offenses in "normal times." This was a practical accommodation for the system under stress. It served the long term interest in the law, but it appeared to go against the immediate interest in maintaining order. Thus, preservation of the procedural promise is necessarily somewhat beyond the control of those with power. Sometimes the powerful must sacrifice their particular interests in order to preserve the larger ideals. For example, when the system of procedural guarantees gives a patient in a mental institution an opportunity to gain release or a minority defendant a more deliberative forum than he or she might otherwise receive, the interests of those in power may not appear to be served. But their place in the system is dependent upon its continuing operation, and these procedures are essential to that continuity. The same procedures give people with less power a reason for hope and an opportunity for change.

Finally, even when a regime perpetuates inequalities in part through procedural guarantees, the fact that the regime must then itself defer to these guarantees in order to maintain its credibility often results in fairer treatment for the powerless. In other words, a government that seeks to gain popular support by claiming to be fair often must actually be fair. Due process sometimes allows citizens to successfully challenge arbitrary government action, and it sometimes even compels more equality of treatment. Because due process insists that all citizens be given the same procedural treatment by government, it is more clearly consistent with a democratic vision than some other traditional liberties, like property, which acknowledge that some citizens are to be far better off than others. In spite of its potential for excusing and legitimating social and economic inequalities, the vision that everyone should have a full, fair, and equal day in court remains a very attractive one.

We now leave the realm of due process, and turn to constitutional liberty. In the next chapter, we will cover application of the right to reproductive privacy and "lifestyle" privacy and to protection for autonomous action.

SUGGESTED READINGS
Baldus, David, George Woodworth, Charles Pulaski, Jr. (1990) in Equal Justice and the Death Penalty: A Legal and Empirical Analysis. Boston: Northeastern University Press.

Feeley, Malcolm M. (1979) “The Lower Courts: Process and Punishment,” in The Process is the Punishment. NY: Russell Sage Foundation

Rovella, David (1997) “Prison Suits Reduced by Filing Limits,” National Law Journal, November 10, 1997, p. A6.

Scheingold, Stuart A. (1991) “Street Crime, Criminology, and the State,” and “The Politicization of Street Crime,” in The Politics of Street Crime: Criminal Process and Cultural Obsession. Philadelphia: Temple University Press.

ENDNOTES
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1 The right to defend oneself was upheld in 1975 in Faretta v. California. Knowledge of the law is central to procedural fairness, but the courts have also realized the importance of participation in one's own defense.
2 See Santosky v. Kramer (1982) for a recent holding on procedural issues concerning the state's power to intervene in family disputes.
3 Unwelcomed sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working or academic environment.