education guaranteed by the state’s constitution.53 Finally, alternative schools may be subject to
fewer accountability requirements than ordinary public schools, which would lend less public
scrutiny to the question of whether they are providing an appropriate public education.54
Whether the consequence of a disciplinary hearing involves reassignment to an alternative
educational placement or outright removal from the school system, the stakes for a student facing
disciplinary charges at a hearing are very high. The gravity of these consequences undercuts the
argument that disciplinary tribunals do not require the “trial-type procedures” of a criminal
courtroom.55 As discussed above, research supports the notion that the potential consequences for
a student facing disciplinary charges can be the loss of a basic education and dramatically increased
chances of both delinquency and incarceration.56
C. The Lack of Uniformity and Thin Impartiality Protections in State Legislatures
Education is inherently a function of the individual states.57 Each state legislature sets its
own due process for discipline, unlike due process hearings regarding special education, which are
set by federal legislation.58 Because the Supreme Court has not specified due process requirements
for long-term suspensions or expulsions beyond the “some kind of hearing” language in Goss,
states vary widely with how charges involving long-term suspension and expulsion are
adjudicated.59 This Section presents an overview of some trends state legislatures have taken in
addressing the question of who should constitute a student’s disciplinary tribunal or hearing
officer, a choice that indicates the state’s own interpretation of the level of impartiality due to
students facing long-term discipline.
As a preliminary matter, this Section first presents the typical models for the investigation
of a disciplinary matter and the subsequent imposition of charges. A discussion of the more
determinative question of who is allowed to adjudicate and be present at disciplinary tribunals
follows.60 It is beyond the scope of this Note to look into the constitutionality of every state
53 Harris et al. v. Atlanta Independent School System, ACLU (Dec. 18, 2009), https://www.aclu.org/cases/harris-et-al-v-atlanta-independent-school-system?redirect=racial-justice/harris-et-al-v-atlanta-independent-school-system.
54 Evidence for lesser accountability requirements for alternative schools is their lack of requirement to meet or report
Adequate Yearly Progress under No Child Left Behind legislation. See Deborah Gordon Klehr, Addressing the
Unintended Consequences of No Child Left Behind and Zero Tolerance: Better Strategies for Safe Schools and
Successful Students, 16 GEO. J. ON POVERTY L. & POL’Y 585, 595-96 (2010) (noting that relaxed accountability
measures make it “hard for the public to decipher the educational achievements of students in alternative education
55 Jennings v. Wentzville R-IV Sch. Dist., 397 F.3d 1118, 1124 (8th Cir. 2005).
56 See Christle, supra note 45; Losen & Martinez, supra note 36; U.S. Dep’t of Educ., supra note 37; Best, supra note
57 Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (Education is a state’s most important function); Epperson v.
Arkansas, 393 U.S. 97, 104 (1968) (“By and large, public education in our nation is committed to the control of state
and local authorities.”).
58 See 34 C.F.R. § 300.500 et seq. (2006) (mandating due process procedures for special education hearings).
59 Goss, 419 U.S. at 579; 20 U.S.C. § 1415 (2018).
60 At this juncture it may be helpful to point out that where an individual is present during a disciplinary tribunal who
is not a member of the tribunal, the question becomes one of ex parte communications. In other words, what if any ex
parte communications should thick impartiality protections afford? This issue arises frequently with differing
treatment by the lower courts. Compare Newsome, 842 F.2d at 926 (presence of principal and superintendent at closed,
post-hearing deliberations of disciplinary panel did not violate due process) with Gonzales v. McEuen, 435 F. Supp.