# Cleveland Board of Education v. Loudermill > Supreme Court of the United States · March 19, 1985 · 470 U.S. 532 URL: https://www.frixlaw.com/law-library/cases/9429946 ## Case - **Full name:** CLEVELAND BOARD OF EDUCATION v. LOUDERMILL Et Al. - **Court:** Supreme Court of the United States - **Decided:** March 19, 1985 - **Citations:** 470 U.S. 532; 1 I.E.R. Cas. (BNA) 424; 53 U.S.L.W. 4306; 118 L.R.R.M. (BNA) 3041; 105 S. Ct. 1487; 84 L. Ed. 2d 494; 1985 U.S. LEXIS 68 - **Precedential status:** Published - **Opinion:** Concurrence by Marshall - **Judges:** White, Burger, Blackmun, Powell, Stevens, O'Connor, Brennan, Marshall, Rehnquist - **Cited by:** 6,561 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9429946 ## How later opinions describe it (automated extraction) - stating that “the Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause… - holding that an Ohio statute that entitled civil service employees to retain their positions unless there was cause for dismissal and set forth certain disciplinary procedures including an opportunity to respond “plainly creates” a property interest, and thus the plaintiff's a… - holding that a public employee threatened with termination is entitled to a very limited pre-termination hearing as "an initial check against mistaken decisions,” and that a hearing that includes oral or written notice of the charges, an explanation of the employer’s evidence,… - finding that the predecisional opportunity for an employee to respond “need not definitively resolve the propriety of the [action]” but rather “should be an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe… - finding that an individualized hearing was required by due process when the reason for the employee's termination was arguable because it "turned not on the objective fact that he was an ex-felon or the inaccuracy of his statement to the contrary, but on the subjective questio… ## Opinion text Justice Marshall, concurring in part and concurring in the judgment. I agree wholeheartedly with the Court’s express rejection of the-theory of due process, urged upon us by the petitioner Boards of Education, that a public employee who may be discharged only for cause may be discharged by whatever procedures the legislature chooses. I therefore join Part II of the opinion for the Court. I also agree that, before discharge, the respondent employees were entitled to the opportunity to respond to the charges against them (which is all they requested), and that the failure to accord them that opportunity was a violation of their constitutional rights. Because the Court holds that the respondents were due all the process they requested, I concur in the judgment of the Court. I write separately, however, to reaffirm my belief that public employees who may be discharged only for cause are entitled, under the Due Process Clause of the Fourteenth Amendment, to more than respondents sought in this case. I continue to believe that before the decision is made to terminate an employee’s wages, the employee is entitled to an opportunity to test the strength of the evidence “by confronting and cross-examining adverse witnesses and by presenting witnesses on his own behalf, whenever there are substantial disputes in testimonial evidence,” Arnett v. Kennedy, 416 U. S. 134, 214 (1974) (Marshall, J., dissenting). Because the Court suggests that even in this situation due process requires no more than notice and an opportunity to be heard before wages are cut off, I. am not able to join the Court’s opinion in its entirety. *549 To my mind, the disruption caused by a loss of wages may be so devastating to an employee that, whenever there are substantial disputes about the evidence, additional predepri-vation procedures are necessary to minimize the risk of an erroneous termination. That is, I place significantly greater weight than does the Court on the public employee’s substantial interest in the accuracy of the pretermination proceeding. After wage termination, the employee often must wait months before his case is finally resolved, during which time he is without wages from his public employment. By limiting the procedures due prior to termination of wages, the Court accepts an impermissibly high risk that a wrongfully discharged employee will be subjected to this often lengthy wait for vindication, and to the attendant and often traumatic disruptions to his personal and economic life. Considerable amounts of time may pass between the termination of wages and the decision in a post-termination evi-dentiary hearing — indeed, in this case nine months passed before Loudermill received a decision from his postdeprivation hearing. During this period the employee is left in limbo, deprived of his livelihood and of wages on which he may well depend for basic sustenance. In that time, his ability to secure another job might be hindered, either because of the nature of the charges against him, or because of the prospect that he will return to his prior public employment if permitted. Similarly, his access to unemployment benefits might seriously be constrained, because many States deny unemployment compensation to workers discharged for cause. * Absent an interim source of wages, the employee might be unable to meet his basic, fixed costs, such as food, rent or mortgage payments. He would be forced to spend his savings, if he had any, and to convert his possessions to *550 cash before becoming eligible for public assistance. Even in that instance “[t]he substitution of a meager welfare grant for a regular paycheck may bring with it painful and irremediable personal as well as financial dislocations. A child’s education may be interrupted, a family’s home lost, a person’s relationship with his friends and even his family may be irrevocably affected. The costs of being forced, even temporarily, onto the welfare rolls because of a wrongful discharge from tenured Government employment cannot be so easily discounted,” id., at 221 . Moreover, it is in no respect certain that a prompt post-deprivation hearing will make the employee economically whole again, and the wrongfully discharged employee will almost inevitably suffer irreparable injury. Even if reinstatement is forthcoming, the same might not be true of back-pay — as it was not to respondent Donnelly in this case — and the delay in receipt of wages would thereby be transformed into a permanent deprivation. Of perhaps equal concern, the personal trauma experienced during the long months in which the employee awaits decision, during which he suffers doubt, humiliation, and the loss of an opportunity to perform work, will never be recompensed, and indeed probably could not be with dollars alone. That these disruptions might fall upon a justifiably discharged employee is unfortunate; that they might fall upon a wrongfully discharged employee is simply unacceptable. Yet in requiring only that the employee have an opportunity to respond before his wages are cut off, without affording him any meaningful chance to present a defense, the Court is willing to accept an impermissibly high risk of error with respect to a deprivation that is substantial. Were there any guarantee that the postdeprivation hearing and ruling would occur promptly, such as within a few days of the termination of wages, then this minimal pre- *551 deprivation process might suffice. But there is no such guarantee. On a practical level, if the employer had to pay the employee until the end of the proceeding, the employer obviously would have an incentive to resolve the issue expeditiously. The employer loses this incentive if the only suffering as a result of the delay is borne by the wage earner, who eagerly awaits the decision on his livelihood. Nor has this Court grounded any guarantee of this kind in the Constitution. Indeed, this Court has in the past approved, at least implicitly, an average 10- or 11-month delay in the receipt of a decision on Social Security benefits, Mathews v. Eldridge, 424 U. S. 319, 341-342 (1976), and, in the case of respondent Loudermill, the Court gives a stamp of approval to a process that took nine months. The hardship inevitably increases as the days go by, but nevertheless the Court countenances such delay. The adequacy of the predeprivation and postdeprivation procedures are inevitably intertwined, and only a constitutional guarantee that the latter will be immediate and complete might alleviate my concern about the possibility of a wrongful termination of wages. The opinion for the Court does not confront this reality. I cannot and will not close my eyes today — as I could not 10 years ago — to the economic situation of great numbers of public employees, and to the potentially traumatic effect of a wrongful discharge on a working person. Given that so very much is at stake, I am unable to accept the Court’s narrow view of the process due to a public employee before his wages are terminated, and before he begins the long wait for a public agency to issue a final decision in his case. See U. S. Dept, of Labor, Comparison of State Unemployment Insurance Laws §§425, 435 (1984); see also id,., at 4-33 to 4-36 (table of state rules governing disqualification from benefits for discharge for misconduct). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9429946. Public record. Not legal advice.