the way, this Note points to some laudable federal court opinions and state legislative provisions
that provide thicker impartiality protections of the kind this Note proposes.
Finally, this Note presents a new approach that comports more fully with due process to
provide thicker impartiality protections. That approach argues that constitutional due process
requires students facing long-term discipline be provided a hearing officer free from the
appearance of bias, consistent with Goss’ proscription that students be given “fundamentally fair”
procedures.30 Such a requirement would replace the actual bias standard adopted by most lower
courts. Instead, the approach this Note proposes would require the disqualification of an individual
from acting as decision-maker in a student’s disciplinary tribunal whose neutrality may be
questioned because of the individual’s role in the student’s case or because of influence of others
involved in the student’s case. In support, this Note presents actual legislation as normative models
drawn from states that have thick impartiality protections, along with suggested model provisions
for a reformed education code.
II. THE PROBLEM
Cases like Arthur Newsome’s illustrate the difficulties faced by students, families, school
districts, and the attorneys representing them in achieving a fair and impartial tribunal consistent
with due process. This Part seeks to illustrate those difficulties in forging a path to a thicker view
of impartiality by first addressing the rising level of adversarial practices in the school discipline
context, a level that may be at full tide because of its resemblance to litigation rather than the
benign system of cooperative family-administration relationships envisioned by professionals,
judges, and justices of an earlier era, including at least one who decided Goss.31 Second, this Part
attempts to resolve the question of why thick impartiality protections are necessary by
demonstrating the high stakes of school exclusion in the well-researched phenomenon of the
school-to-prison pipeline. Third, this Part surveys the lack of uniformity that has led to thin
impartiality safeguards by surveying trends that state legislatures and local districts have taken.
Finally, this Part discusses how the Supreme Court’s ground floor case for due process, Goss32
does not address the thick impartiality protections due process requires for students facing long-term discipline except for the simple requirement that procedures be “fundamentally fair.”33
A. The Adversarial School Discipline Landscape
First, similar to the judicial context, the modern school discipline landscape has become,
at its heart, adversarial.34 Though Goss may have imagined an educational atmosphere of benign
think about the procedural and substantive components of rule of law theories existing on a continuum in which a
particular version is “thin” or “thick” in the sense that it may have few or many requirements) (citing Brian Tamanaha,
ON THE RULE OF LAW: HISTORY, POLITICS, THEORY 91 (2004)).
30 Goss, 419 U.S. at 574.
31 See Black, supra note 17, at 832–35.
32 Goss, 419 U.S. at 565.
33 Id. at 574.
34 See Black, supra note 17, at 846 (emphasizing the increasingly routine nature of adversarial models in school
discipline) (citing JUDITH KAFKA, THE HISTORY OF ZERO TOLERANCE IN AMERICAN PUBLIC SCHOOLING 6 (2011)).
See also David Doty, By the Book: Fuller v. Decatur Public School Board of Education, District 61 and the Essential
Elements of Student Due Process in K-12 Expulsion Proceedings, 151 EDUC. L. REP. 353, 359 (2001); Zachary W.