take the superintendent’s proffer, he was expelled for the remainder of the fall term.12 Newsome
appealed for a second hearing before the local board of education.13
At Newsome’s second hearing before the board, the principal and school superintendent
acted as adverse parties in testifying against Newsome.14 Both advocated in support of the decision
the superintendent had made at the initial hearing with input from the principal’s investigation of
the matter.15 Newsome’s attorney, who was also present at the board’s hearing, requested
permission to cross-examine the principal and superintendent.16 This request was denied.17
At the conclusion of this hearing, the school board deliberated in an executive session, a
private meeting from which members of the public are excluded.18 No parties from Newsome’s
side of the case were permitted to participate in the executive session.19 Though adverse parties,
and not adjudicators, the principal and superintendent were permitted to join in the school board
session while the board deliberated about the evidence presented at the hearing.20 Agreeing with
the principal and superintendent’s findings below, the board affirmed the expulsion, holding that
Newsome was not permitted back at Batavia High School until late January of the following year.21
The progression of Arthur Newsome’s case through various levels of the student
disciplinary process illustrates how the composition of a disciplinary tribunal can have profound
impacts on the outcome of that student’s case. The facts in Newsome’s case present some major
concerns regarding the impartiality of those adjudicating his hearings, especially when Newsome’s
situation is analogized to a traditional criminal courtroom setting. At the superintendent’s hearing,
12 Newsome, 842 F.2d at 921.
14 Id. at 922.
15 Id. at 921-22.
17 The school board’s denial of Newsome’s right to confront and cross-examine the students who testified against him
was upheld by the Circuit Court. Id. at 926. Though beyond the scope of this article, the inability to cross-examine
students and administrators testifying against the student facing school exclusion raises its own due process issues.
See Derek W. Black, The Constitutional Limit of Zero Tolerance in Schools, 99 MINN. L. REV. 823, 879 (2015); see
generally Brent M. Pattison, Questioning School Discipline: Due Process, Confrontation, and School Discipline
Hearings, 18 TEMP. POL. & CIV. RTS. L. REV. 49 (2008). Courts are divided on whether confrontation and cross-examination are constitutionally required at school discipline hearings. See also Carey v. Maine Sch. Admin. Dist.
No. 17, 754 F. Supp. 906, 919–20 (D. Maine 1990) (confrontation and cross-examination of witnesses not required
where student admitted to the misconduct of which he was accused); B.S. ex rel. Schneider v. Bd. of Sch. Trustees,
255 F. Supp. 2d 891, 899 (N.D. Ind. 2003) (student expelled for on-campus sex not entitled to call as witness alleged
partner); John A. v. San Bernardino Unified Sch. Dist., 654 P.2d 242, 251 (Cal. 1982) (finding a due process violation
where a student was expelled without testimony from accusing witnesses); Stone v. Prosser Consol. Sch. Dist. No.
116, 971 P.2d 125, 128 (Wash. Ct. App. 1999) (finding a violation of due process where a student was kept from
calling a witness at his disciplinary hearing); Colquitt v. Rich Twp. High Sch. Dist. No. 227, 699 N.E.2d 1109, 1116
(Ill. App. Ct. 1988) (cross-examination of witnesses allowed in school discipline hearing because it is fundamental
element of a fair hearing).
18 See, e.g., Trib Total Media, Inc. v. Highlands Sch. Dist., 3 A.3d 695, 697 (Pa. Commw. Ct. 2010); United Indep.
Sch. Dist. v. Gonzalez, 911 S.W.2d 118, 122 (Tex. Ct. App. 1995).
19 Newsome, 842 F.2d at 922.
20 Id. Newsome prevailed on one issue, which was raised by the superintendent’s presence at the school board’s
deliberations. Specifically, the superintendent disclosed new evidence to the board during the deliberations that was
not presented at the hearing itself. The court found this violated Newsome’s due process right to notice of the charges
and evidence against him. However, as has been cogently pointed out, this served as a “narrow victory” in light of the
impartiality Newsome was shown throughout the school’s disciplinary procedures. See Black, supra note 17, at 856.
21 Newsome, 842 F.2d at 922.