Board of Regents of State Colleges v. Roth

No. 71-162. Argued January 18, 1972. Decided June 29, 1972. Certiorari to the United States Court of Appeals for the Seventh Circuit. Judgment reversed and the case remanded (446 F.2d 806, reversed and remanded). Opinion of the Court by Justice Stewart; Chief Justice Burger filed a concurring opinion; Justice Douglas filed a dissenting opinion; Justice Brennan filed a dissenting opinion in which Justice Douglas joined; Justice Marshall filed a dissenting opinion; Justice Powell took no part in the decision of the case.

Editorial note. Roth was hired to teach for a fixed term of one academic year at Wisconsin State University-Oshkosh. Wisconsin law provided that university teachers were employed initially on probation and acquired tenure only after four years of continuous service; a probationary teacher had no statutory entitlement to reasons or a hearing on nonretention. Roth was informed, without explanation and without any opportunity to be heard, that he would not be rehired for the following year. He sued, contending that the failure to give reasons and a hearing violated procedural due process. The District Court and the Court of Appeals ruled in his favor.

Editorial note. The question decided was whether a nontenured public employee whose fixed-term appointment simply expired held an interest in liberty or property that the Due Process Clause protects. The Court held that he did not. To have a property interest in a benefit a person must have more than an abstract need, desire, or unilateral expectation of it; he must have a legitimate claim of entitlement. Roth's appointment terminated on its own terms, and nothing in the appointment or in state law created any entitlement to re-employment. The rule that follows is that property interests protected by procedural due process are defined by independent sources such as statute, contract, ordinance, or established mutual understanding — not by the Constitution, which secures interests already acquired.

Editorial note. Justice Stewart separated the two protected interests. No liberty interest was implicated because the State neither charged Roth with dishonesty or immorality nor foreclosed his freedom to seek other employment; a nonretention without stigma is not a deprivation of liberty. As to property, the Court reasoned that the purpose of the constitutional right to a hearing is to protect the security of interests a person has already acquired in specific benefits, and that such security comes from the rules and understandings that define the benefit. Because Wisconsin conferred no tenure, no de facto expectancy, and no procedural entitlement on a first-year probationary teacher, there was nothing for due process to protect.

Editorial note. Roth supplies the working definition of property as a constitutional interest and is therefore foundational to the treatise's account of what property is. Its 'legitimate claim of entitlement' test extends the concept of property well beyond the traditional estates in land — to statutory benefits, licences, and other entitlements — while simultaneously making state property law the measure of the federal right. For the property lawyer the case establishes the structural point on which the Takings and Due Process Clauses both depend: constitutional protection attaches to interests that positive law has already created.

Editorial note. Followed and applied. Perry v. Sindermann, 408 U.S. 593 (1972), decided the same day, applied Roth's test and found that an unwritten but established institutional understanding could itself supply the entitlement. Later takings decisions rely on the same premise that the interest asserted must originate in an independent source of law, as in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) (trade secrets recognised as property under state law), and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (background principles of state property law).

Editorial note. Read with U.S. Const. amend. XIV, § 1 (Due Process Clause) and U.S. Const. amend. V.