Rights Privileges

1. Rights & Privileges Part 1 Due Process Protections

2. Right vs Privilege Right Constitutionally protected. Require strict scrutiny--compelling state interest to overcome. Liberty interests should be afforded minimum due process. Right to pretermination vs post-termination hearing. Protected procedurally and substantively by due process and equal protection from unreasonable gov. intrusion. Privilege Conferred by statute or contract Government may impose conditions on individual entitlements or eligibility. Can give rise to a property or liberty entitlement which then imposes minimum due process requirements Notice, hearing, and decision on record in adjudication Property rights conferred by statute or contract Issues affect limitations imposed upon privileges . Fundamental Rights are constitutionally protected and require strict scrutiny--compelling state interest to overcome 1. Liberty interests arise from constitution and should be afforded minimum due process requirements. 2. Rights are protected procedurally and substantively by due process and equal protection from unreasonable gov. interference. e.g. citizenship, residency, privacy, speech, political assoc. (Most challenges do not involve rights) B. Privileges are not enforceable rights except as conferred by statute. State or government may impose conditions on individual entitlements or eligibility. e.g. welfare benefits, employment. Most statutes can confer privileges which give rise to a property entitlement which then imposes min. requirements, e.g., notice, hearing and reason, in order to take away. Property rts. require legitimate claim of entitlement per contract or statute. 1. Privileges are enforceable rights by virtue of statute. Possible to create an entitlement which gives rise to a property interest or liberty for which min. due process and/or equal protection should be afforded. 2. Most issues affect limitations imposed upon privileges 3. state or fed gov. may impose conditions on benefits it provides, however, those conditions cannot result in invidious discrimination, e.g. welfare benefits, employment -ask whether condition involves suspect classification and if it is reasonable basis for condition (balance test) 4. Impermissible conditions for which law will protect: cannot limit public speech, political beliefs unless it bears substantially upon function or responsibility, legal alienage v. citizenship.. Fundamental Rights are constitutionally protected and require strict scrutiny--compelling state interest to overcome 1. Liberty interests arise from constitution and should be afforded minimum due process requirements. 2. Rights are protected procedurally and substantively by due process and equal protection from unreasonable gov. interference. e.g. citizenship, residency, privacy, speech, political assoc. (Most challenges do not involve rights) B. Privileges are not enforceable rights except as conferred by statute. State or government may impose conditions on individual entitlements or eligibility. e.g. welfare benefits, employment. Most statutes can confer privileges which give rise to a property entitlement which then imposes min. requirements, e.g., notice, hearing and reason, in order to take away. Property rts. require legitimate claim of entitlement per contract or statute. 1. Privileges are enforceable rights by virtue of statute. Possible to create an entitlement which gives rise to a property interest or liberty for which min. due process and/or equal protection should be afforded. 2. Most issues affect limitations imposed upon privileges 3. state or fed gov. may impose conditions on benefits it provides, however, those conditions cannot result in invidious discrimination, e.g. welfare benefits, employment -ask whether condition involves suspect classification and if it is reasonable basis for condition (balance test) 4. Impermissible conditions for which law will protect: cannot limit public speech, political beliefs unless it bears substantially upon function or responsibility, legal alienage v. citizenship.

3. Bill of Rights-First 10 Amendments States have same 5th amendment requirement under 14th Amendment.States have same 5th amendment requirement under 14th Amendment.

4. What are Examples of Rights & Privileges? Rights Privileges

5. What are Examples of Rights & Privileges? Rights citizenship, residency, privacy, speech, political assoc. vs. unreasonable search & seizure vs. cruel & inhuman punishment vs. discrimination on basis of race, gender, nationality Focus on Bill of Rights Privileges Welfare benefits Unemployment compensation Social Security Driver�s license Privileges + Voting Public education Conferred by Statute

6. Permissible vs Impermissible Conditions Impermissible conditions, e.g. limit right without substantial government interest Permissible conditions can be imposed: private speech, sexuality, caps on welfare benefits, personal searches on gov. property, e.g., school ok if reasonable. (But see State laws)

7. Property Interests?Due Process Substantive due process- refers to the limits on what government can regulate; Procedural due process- refers to procedures by which gov. may affect individuals rights. Focus on procedural due process in admin law. Procedural safeguard of liberty and property in lawmaking is the political process. Due process was required only when a relatively small number of persons was concerned, generally in adjudication Property v. Liberty Interests A. General Protections 1. Fed gov and federal agencies are subject to 5th Amendment-provides no person shall be deprived of life, liberty, or property without due process. States subject to identical due process. 2. Substantive due process- refers to the limis on what government can regulate; 3. Procedural due process- refers to procedures by which gov. may affect individuals rights. Focus on procedural due process in admin law. -- Procedural safeguard of liberty and property in lawmaking is the political process. Due process was required only when a relatively small number of persons was concerned, generally in adjudication 4. Only deliberate decisions of gov officials trigger due process concerns. Relief to citizens is in the form of tort action. 5. At will employment does not require due process. Person can be hired or fired. Property v. Liberty Interests A. General Protections 1. Fed gov and federal agencies are subject to 5th Amendment-provides no person shall be deprived of life, liberty, or property without due process. States subject to identical due process. 2. Substantive due process- refers to the limis on what government can regulate; 3. Procedural due process- refers to procedures by which gov. may affect individuals rights. Focus on procedural due process in admin law. -- Procedural safeguard of liberty and property in lawmaking is the political process. Due process was required only when a relatively small number of persons was concerned, generally in adjudication 4. Only deliberate decisions of gov officials trigger due process concerns. Relief to citizens is in the form of tort action. 5. At will employment does not require due process. Person can be hired or fired.

8. Liberty Interests ? Civil Remedy  Tort action: Libel and Defamation, Intentional infliction of emotional distress Due process kicks in where reputational stigma attached to action, but there must be some other interest involved. Reputation alone is usually insufficient. E.G., Gov. takes action and publicly gives reasons to have a deprivation, then due process is required to address reputational interests.

9. Entitlements for Azorians Part 2

10. Plyler v. Doe, 457 US 202 (1982) Held: Texas statute that w/holds from local school districts any state funds for educating kids of undocumented persons and requires that deny enrollment violates the Equal Protection Clause of the 14th Amendment. Rationale: U.P. are �persons� under 14th Amendment and entitled to equal protection under the law. Children not �illegally admitted� cannot affect their status or that of parents. State can�t control conduct of parents by acting against children. No evidence that U.P. impose significant burden on state�s economy. U.P. are indistinguishable from legally resident alien children.

11. U.S. Supreme Court �Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage: the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological well-being of the individual, and poses an obstacle to individual achievement.� Plyler v. Doe, 457 US 202 (1982)

12. U.S. Supreme Court �Serious social costs borne by a nation when select groups are denied the means to absorb the values and skills upon which our social order rests.� Plyler v. Doe, 457 US 202 (1982)

13. Application to UP 14th Amendment applies to �persons within the jurisdiction� of the state and does not distinguish between citizens and strangers. States have no control over the legal status of a person. Left to federal government. There is no national policy to justify denial of support to educating children of U.P. Children of U.P. are not a suspect class. Bottom line: Congress has to act to change presumption that states should support educating all k-12 children.

14. Fourteenth Amendment Extends Bill of Rights to state action: �All persons born or naturalized are US citizens and citizens of the state where they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens', or deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

15. California Tuition Statute U.P. must attend a local high school for 3 years; Graduated or earned a high school equivalency; and Sign an affidavit promising to legalize their immigration status as soon as eligible. Schools treat U.P. in college as �international students� Not usu. reported to INS for deportation.

16. Impact of Law In 2004 nearly 30% of U.P. lived in CA. In-state tuition averaging $5,500 is still out of reach of students who parents make minimum wage. Only a small percentage of U.P. take advantage of program. Under current law, such U.P. can�t legalize their status. 2003 Bipartisan bill called DREAM to solve the problems. Key supporters (Sen. Orrin Hatch) have withdrawn support. Public support has shifted and become very contentious. U.P. have access to emergency medical services.

17. DREAM-Starting Point Brought to US > 5 years of when under 15 years Good moral character Graduate from H.S.? conditional status for 6 years Graduate from 2-4 yr college or serve in military? permanent status after 6 yrs. If still good moral character. States have full authority to provide in-state tuition STATUS: Introduced in 2001 and each Congress since but fail to be brought to floor for vote SO, Need to make some adjustments

18. Proponents of DREAM Labor unions, pro-business Republican, Democrats, immigrants-rights groups Compassion and economic necessity; Social justice; U.P. don�t hurt U.S. jobs, but complement U.S. workers. Demand for one creates need for other. U.P. get unskilled work as laborer, field workers U.S. citizens become supervisors U.S. advantaged because of language, access to network Immigrant labor increases wages for U.S. workers. Those who suffer are previous immigrants who compete with U.P. Source: Public Policy Institute of California

19. Opponents of DREAM Social conservatives, Republican hawks US will become culturally overwhelmed by immigrants, nearly 15% of K-12 population in CA; Increase burden on fiscally-tight education budgets to detriment of U.S. citizens; Take jobs from U.S. citizens (although studies contradict contention); U.P. Create national-security risks; Result in a rise in illegal immigration; All children are receiving a poorer education; Oppose drivers license to U.P.; K-12 school expenditures for U.P. cost states $12 billion annually, CA bears the greatest estimated costs: $3,220 M, plus more for U.S.-born children of U.P. ($4,508.3M) Additional fiscal burden for special ESL programs, feed them (since most are poor) Costs not offset by taxes paid by U.P. Source: Federation for American Immigration Reform (FAIR)