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Publication Date

4-3-2026

Document Type

Casenote

Abstract

The Bill of Rights established a series of fundamental American individual rights, from the freedom of speech to the right to a fair trial, that the federal government cannot violate. Yet, across a conceptual divide lies a landscape of other crucial rights the Framers never enumerated. Substantive due process is one legal mechanism that bridges that gap: extending the Constitution’s protection to these other fundamental rights. Grounded in the Fifth and Fourteenth Amendments, substantive due process enables plaintiffs to sue for government violations of rights that, though unenumerated in the Constitution, are long-recognized by common law and essential for American liberty.

In Littlejohn v. School Board of Leon County, decided in March 2025, the United States Court of Appeals for the Eleventh Circuit erected a new obstacle for substantive due process plaintiffs. In that case, the Littlejohns asserted a substantive due process claim against a school for violating their parental rights. The Eleventh Circuit dismissed their claim, holding that the Littlejohns must allege facts that “shock the conscience” to sue the school.

The Eleventh Circuit’s application of the “shocks-the-conscience” standard as a threshold barrier in Littlejohn jeopardizes fundamental rights protection. Typically, when a government action violates fundamental rights, that action must survive strict scrutiny review. Under strict scrutiny, the government has the burden to prove that its action was narrowly tailored to a compelling government interest. The Littlejohn ruling inserts a preliminary burden on plaintiffs: requiring them to show that the government’s conduct shocks the conscience. Under this framework, plaintiffs who cannot meet this initial burden automatically lose, even when the government’s action would not survive strict scrutiny review. This test even applies to fundamental rights claims, as it did in Littlejohn, effectively imposing a new hurdle for substantive due process plaintiffs seeking to vindicate their fundamental rights.

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