the principal’s involvement with the superintendent—not only during the hearing but also during
private, closed deliberations—is akin to a prosecutor presenting his case before the judge, then
immediately joining the judge in chambers for an ex parte review of the hearing and evidence. The
same conduct occurred at Newsome’s second hearing on his appeal before the school board, except
that the decision-maker who presided over Newsome’s first hearing joined Newsome’s adversary
(the principal) in advising the school board and reviewing the evidence in the case.22 In the judicial
context, such activity would translate to a prosecutor and trial court judge joining a panel of appeals
judges in their deliberations and advising those judges on how to make a determination on the facts
and the evidence presented. Such conduct would be simply unacceptable in judicial contexts.
Newsome raised multiple issues in his appeal to the Sixth Circuit,23 the most prominent of
which asserted a procedural due process violation due to the lack of an impartial tribunal.24 While
conceding that “participation by the investigating administrators in the deliberation process of the
fact-finders is an open invitation for the administrators to bring up evidence of the student’s guilt
which had not been disclosed to the student as required by Goss,” the court found no violation
from such participation.25
Cases like Newsome’s are not uncommon, and the stakes are high for students in
Newsome’s position.26 The consequences of long-term discipline27 may include total exclusion
from school, long-term or permanent assignment to an alternative education program, and,
according to studies, a much greater risk of ending up in the juvenile and criminal justice systems.
Unfortunately, the law in this area is largely inadequate to provide students facing disciplinary
charges with the appropriate level of procedural due process.28
This Note seeks to address the deprivation of due process that occurs when a student’s
disciplinary hearing is adjudicated by a tribunal whose impartiality is questionable. In so doing,
this Note points to the inadequacy of the majority approach among lower courts, which requires a
finding of actual bias in its determination of whether a disciplinary tribunal was impartial, thereby
adopting a thin view of what constitutes an impartial tribunal consistent with minimal due process.
This Note also presents a brief survey of disciplinary hearing practices among the states to show
how most state legislation codes have failed to provide substantial, or “thick,” impartiality
protections to prevent bias, much like the avenue the majority of federal courts have taken.29 Along
22 Newsome, 842 F.2d at 926.
23 These include the denial of his right to cross-examine witnesses, the denial of his right to an impartial tribunal, and
a denial of notice arising out of the tribunal’s consideration of evidence not made known to him. Id.
24 See Id.
25 Id. at 926–27 (“[W]e cannot say that, as a general matter, it is a violation of due process for investigating
administrators to participate in the deliberation process”) (citing Goss v. Lopez, 419 U.S. 565 (1975)).
26 See infra Part II.A.
27 This Note refers to “long-term discipline” to denote any suspension lasting more than ten days, expulsion, and/or
other removal from mainstream public education. At the outset, it is important to note that disciplinary due process
procedures for students not receiving special education differ substantially from due process provided for special
education students under federal civil rights statutes. See, e.g., Kristy A. Mount, Note, Children’s Mental Health
Disabilities and Discipline: Protecting Children’s Rights While Maintaining Safe Schools, 3 BARRY L. REV. 103
28 See infra Part II.A.
29 This note utilizes the phrases “thick” and “thin” impartiality protections in an effort to both avoid the vague and oft-used “substantial” and “insubstantial” terminology and to offer a more visually demonstrative lexicon for the due
process protections the author proposes. In doing so, the author borrows from E. Thomas Sullivan and Toni M.
Massaro, who coined this terminology in the due process context. See E. THOMAS SULLIVAN & TONI M. MASSARO,
THE ARC OF DUE PROCESS IN AMERICAN CONSTITUTIONAL LAW 5 (2003) (Borrowing terminology, it can be useful to