case. 116 While many states allow the option of utilizing impartial hearing officers, these states are
mostly silent on the role of the superintendent in the board’s adjudicatory function, 117 and it is
conceivable to envision a high level of advisement and involvement of interested parties, such as
district administrators, in the otherwise “impartial” board’s adjudication. 118 In those states, the
impartiality of a given administrator would remain in the hands of the court upon a fact-based
inquiry of an administrator’s biased decision-making in the initial discipline process, either in the
adjudicatory role, the personal occurrence of discipline, or both. 119
Finally, few states have fashioned procedures to separate the functions of adjudication and
investigation. 120 The states that have done so take distinct approaches, but generally require
districts to hire state-level hearing officers to adjudicate the facts of a case, with the review of that
decision either going back to the local board based solely on the record, 121 or proceeding to a state-level education administrator. 122
Unsurprisingly, in response to the low standard for impartiality adopted by the federal court
jurisprudence that will be discussed below, the majority of states do not adequately safeguard
impartiality in the disciplinary process. 123 A few education codes show signs of hope because of
their allowance or affirmative requirement of the use of independent hearing officers in long-term
discipline cases, but most states leave the question of who adjudicates at disciplinary hearings up
to local boards of education. There is a caveat, though, that a local board, and possibly county
court, will be available to review an appeal, albeit with high deference to the factual record. 124
Such practices often leave the trier of fact role to those administrators who have served the
discipline recommendation in the first place, which is problematic for the many reasons
demonstrated above.125 State legislation must be more robust in protecting impartiality and model
legislation and existing practices employing thicker protections show that this goal is not
116 See e.g., LA. STAT. ANN. § 17:416(A)(3)(c) (2017) (providing for student appeal to hearing before parish
117 See, e.g., MINN. STAT. § 121A.47, subd. 6; ARIZ. REV. STAT. ANN. § 15-843(F)(2)(a) (2017).
118 See, e.g., Gonzales, 435 F. Supp. at 465 (noting the district superintendent’s presence at the school board’s closed
deliberations despite not being permitted to serve an adjudicatory role).
119 See, e.g., Heyne v. Metro. Nashville Pub. Schs., 655 F.3d 556, 568 (6th Cir. 2011) (finding principal who imposed
ten-day suspension was racially biased and thus impartial); Riggan v. Midland Indep. Sch. Dist., 86 F. Supp. 2d 647,
663 (W.D. Tex. 2000) (holding that the building-level administrator’s position as the personal target of a student so
biased the administrator that it should have disqualified him from making a suspension recommendation to the board).
120 See, e.g., GA. CODE ANN. § 20-2-751.6(b) (2004); HAW. REV. STAT. ANN. § 302A-1134(a) (2014).
121 See, e.g., GA. CODE ANN. § 20-2-751.6(b) (2004).
122 See, e.g., HAW. REV. STAT. ANN. § 302A-1134(a) (2014).
123 See infra Part III.
124 See, e.g., COLO. REV. STAT. § 22-33-108(2)–(3) (2013); King v. Beaufort Cty. Bd. of Educ., 704 S.E.2d 259, 260
125 See, e.g., J.M. v. Webster Cnty. Bd. of Educ., 534 S.E.2d 50, 58 (W. Va. 2000) (“If the principal does proceed, at
this ‘principal’s informal hearing,’ the principal is to make a determination by principal determination as to whether
or not the student violated the statute. Thus, the principal becomes the finder of fact at this stage in the process.”)
(citing W. VA. CODE § 18A-5-1a(a)) (providing for determination of violation by principal subject to review by county
board of education).