employed by many states when a student is faced with charges entailing severe discipline.73 This
procedure involves multiple hearings, with differing degrees of formality, for students who face
long-term suspension or expulsion.74 At the first “hearing,” the student and his or her parent will
typically meet with the administrator who has investigated the disciplinary infraction, such as the
principal or another building-level official.75 In some cases, the superintendent may be present at
this meeting, and sometimes the superintendent is the sole school official present. Though
legislatures often refer to this initial meeting as a “conference” rather than a “hearing,” the meeting
operates as a hearing in most cases, since the decision of whether to suspend or expel is made upon
States vary widely in practices, but the overall trend is to allow a second, more formal
hearing after the initial conference. This is especially common in cases carrying expulsion
consequences.77 Though most legislatures provide for a second level of this formal hearing, that
level may take the form of a second fact-finding hearing during which new evidence may be
presented.78 However, another widely held practice is limiting the second level of review to an
appeal before the county board of education, an impartial hearing officer, or an administrative
Beyond the initial conference and hearings, many states allow for judicial inquiry, often by
the county trial court.80 In such cases, a trial court’s review is almost always highly deferential to
the findings and decisions already made by the school.81 States that allow review of an independent
73 Not all states follow this multiple-hearing practice. Some state education codes may only proscribe one level of
formalized hearing, though one might safely assume that some kind of conference-style meeting has taken place before
the formalized hearing. See e.g. CAL. EDUC. CODE § 48918(a)(3) (2016) (providing for only one hearing directly
before local board).
74 See, e.g., Newsome, 842 F.2d at 148 for a general outline of the typical multiple-hearing process, from an informal
hearing before an administrator overseeing the student’s particular school involving only the student and his parents,
to a more formal hearing before the superintendent where the student’s counsel was present, to a final evidentiary
hearing before the school board, serving as an appeal of the lower hearings. Notably, even at this last hearing, student’s
counsel was not permitted to cross-examine administrator-witnesses.
75 See, e.g., Dietchweiler v. Lucas, 827 F.3d 622, 627-28 (11th Cir. 2016) (per curiam) (finding that due process
required, at a minimum, the “opportunity to be heard,” which was satisfied by a meeting with the student and his
parents at which an administrator explained the charges and supporting evidence).
76 See, e.g., Goss, 419 U.S. at 570.
77 See, e.g., Newsome, 842 F.2d at 921; D.C. MUN. REGS. tit. 5-B § 2505(3).
78 See D.C. MUN. REGS. tit. 5-B, § 2506.6 (2017) (“The parent or guardian or adult student shall have the opportunity
to present testimony or documentary evidence, including the opportunity to call any witnesses[.]”).
79 CAL. EDUC. CODE § 48919 (2016) (County board of education, in reviewing the school board’s decision based on a
fact-finding hearing, may elect to conduct a supplemental hearing or simply limit its review to an appeal of the record
below). In such cases, this review is often highly deferential to the findings below. See, e.g., Lee v. Macon Cnty. Bd.
of Educ., 490 F.2d 458, 460 (5th Cir. 1974) (holding that Georgia Board of Education will only overturn a school
district’s expulsion decision if it finds a “shocking disparity between the offense and penalty”). Elsewhere, Georgia’s
Department of Education standard for review of local board decisions is described as articulated as an arbitrary and
capricious standard. See Ransom v. Chattooga Cnty. Bd. of Educ., 242 S.E.2d 374, 376 (Ga. Ct. App. 1978).
80 See, e.g., COLO. REV. STAT. § 22-33-108(2) (2013).
81 See Newsome, 842 F.2d at 149 (conceding a trial court’s “temptation to act as a ‘super’ Board of Education and
make the decision that the Court deems appropriate,” in contravention of the reviewing court’s responsibility to show
high deference to the decision of the institution below) (citing Bell v. Wolfish, 439 U.S. 816 (1979)); Nichols v.
Destefano, 70 P.3d 505, 507 (Colo. Ct. App. 2002) (“The district court has the authority to review an action of a board
of education for an abuse of discretion.”); Alicia C. Insley, Suspending and Expelling Children from Educational
Opportunity: Time to Reevaluate Zero Tolerance Policies, 50 AM. U. L. REV. 1039, 1052 (2001) (courts are highly
deferential to the determinations made by local districts).