administrative entity may also provide for an appeal in the county trial court, thereby increasing
the level of review independent of those working in the school district.82
iii. Permitted Decision-Makers at Disciplinary Hearings
Some legislatures have reverted to a laissez-faire approach, delegating the development of
discipline procedures to local boards of education, so long as they are consistent with state and
federal constitutions.83 In the adjudication realm, this practice permits local boards of education to
make their own decisions with regard to who hears a student’s disciplinary case. Other states
delegate all practices to state-level departments of education to establish skeleton regulations, upon
which local boards may develop constitutionally appropriate procedures.84
Many states allow administrators to preside as adjudicators at discipline hearings. The
permitted administrators may be lower level staff, such as principals, or district-level employees,
like a superintendent.85 In states permitting administrators to impose long-term discipline, this
practice is functionally consistent with the Fifth Circuit’s interpretation of impartiality because it
permits those who impose or recommend the discipline to preside over the decisions they made.
Though some legislatures do so by specific provision, other legislatures simply delegate all hearing
procedures to local districts, requiring only that procedures comply with state and federal
constitutional due process.86 In such cases, it would be permissible, and likely convenient, for a
local board to delegate the hearing process to a superintendent, but that decision would lie with
the board. Other states provide specifically for district-level staff, such as superintendents or their
designees, to adjudicate disciplinary hearings. 87 In such cases, a common practice is to allow the
superintendent to preside at a due process hearing to establish a factual record, after which one or
more appellate bodies will preside.88
In states that afford the student a hearing before the local board, the superintendent’s
hearing often precedes the board’s hearing.89 In other states, such as Colorado, the local board is
permitted to delegate its requirement to conduct a hearing to the superintendent subject to a final,
limited review with deference to the factual record developed at the superintendent’s hearing and
an opportunity for the board to ask questions of the student and other hearing participants.90 In
82 See GA. CODE. ANN. § 20-2-1160 (2015); Fulton Cty. Bd. of Educ. v. D.R.H., 752 S.E.2d 103, 104 (Ga. Ct. App.
2013); WIS. STAT. § 120.13(1)(c)(3) (2015) (providing for county circuit court review of state superintendent of
83 ALA. CODE § 16-1-24.1(f)(e)(1) (2016); ALASKA ADMIN. CODE tit. 4, § 07.010 (2016).
84 ARK. CODE ANN. § 6-18-502 (2013).
85 See, e.g., OHIO REV. CODE ANN. § 3313.66(A)(2), (B)(6)(b) (allowing administrator to preside over informal
hearings prior to a student’s suspension or expulsion).
86 See ALA. CODE § 16-1-24.1(f)(3) (2016); ALASKA ADMIN. CODE tit. 4 § 07.010 (2016); DEL. CODE ANN. tit. 14, §
87 See OHIO REV. CODE ANN. § 3301.121(D) (2016).
88 See Moody v. Westerville City Sch. Dist. Bd. Of Educ. (Ohio Ct. App. 2008); Rucker v. Colonial Sch. Dist., 517
A.2d 703, 704 (Del. Super. Ct. 1986).
89 The discipline procedure Ohio afforded Newsome is an example of this practice. See supra Part I.
90 See COLO. REV. STAT. § 22-33-105(2)(c) (2013). Delaware allows the superintendent to hear the initial case to
establish a factual record, after which appeal is allowed to the state board of education, rather than the local board.
See Rucker, 517 A.2d at 705 (holding that “there is no fundamental due process right to a hearing officer who is not
an employee of the school district”).