what procedures are required for students facing long-term discipline137 remains open. 138 This
vacuum forms a basis for the question this Note seeks to address—namely, what constitutes a fair
and impartial tribunal, consistent with “full and fundamental fairness,” 139 for students facing long-term discipline? 140 As this Note discusses below, few commentators have addressed the question
directly, and lower courts vastly disagree when faced with the issue. Similarly, state legislatures
have drafted differing figurations of impartiality into their respective education codes, presenting
a widely varying tapestry of state-by-state legislation on the topic. 141
III. THE INADEQUACY OF CURRENT SOLUTIONS
Lower courts have necessarily formulated solutions to the variety of approaches on what
constitutes impartiality, with a majority opting for thin protections. 142 Additionally, commentators
have identified the issue in light of the increasingly adversarial nature of school discipline cases,
and those identifications have in some cases led to academic approaches to the impartiality
question that focus on best practices. 143 This Part reviews approaches to impartiality protections
137 For ease of language, the phrase “long-term discipline” is used in this Note to indicate disciplinary consequences
resulting in a student’s exclusion from school for more than ten days.
138 See generally Pattison, supra note 17 (addressing the question of whether students facing long-term discipline are
required to confront and cross-examine witnesses); Dolores J. Cooper, Long-Term Suspensions and Expulsions after
Goss, 57 EDUC. L. REP. 29, 30-34 (supporting the notion that c29 (“Courts have continued to define notice and hearing
requirements after Goss for long-term suspensions); Simone Marie Freeman, Note, Upholding Students’ Due Process
Rights: Why Students are in Need of Better Representation at, and Alternatives to, School Suspension Hearings, 45
FAM. CT. REV. 638, 640 (recommending that due process safeguards include entitlement to counsel at discipline
tribunals); Rivkin, supra note 34.
139 Goss, 419 U.S. at 574.
140 Though the Court did not specifically require that hearings be impartial, that requirement is of course imported by
the decision’s use of the Fourteenth Amendment due process clause to address the deprivation it held to be significant.
Id.; Hill v. City of Clovis, 2012 WL 787609, at *8 (E.D. Cal.) (“as expulsion is a significant deprivation, the Fourteenth
Amendment due process clause requires inter alia that a student receive an impartial adjudicator for expulsion
proceedings”); Morrissey v. Brewer, 408 U.S. 471, 485 (1972) (requiring an uninvolved, independent hearing officer
for parole revocation hearings to ensure fair and impartial hearing); Arnett v. Kennedy, 416 U.S. 134, 197 (1974) (“the
right to an impartial decision-maker is required by due process”); Gibson v. Berryhill, 411 U.S. 564, 579 (1973)
(finding that members of an administrative hearing board who possessed a personal interest in the case should be
disqualified to ensure impartiality, which is a requisite of due process). Prior Supreme Court due process jurisprudence
also emphasizes the long-standing common law requirement of impartiality in ensuring a fair hearing. See, e.g., Arnett,
416 U.S. at 197 (“no man shall be a judge in his own cause”) (quoting Bonham’s Case, 77 ENG. REP. 646, 652 (1610));
Murchison, 349 U.S. at 136 (“our system of law has always endeavored to prevent even the probability of
unfairness…. To this end, no man can be a judge in his own case and no man is permitted to try cases where he has
an interest in the outcome”); Goldberg, 397 U.S. at 271 (requiring an impartial decision-maker for the determination
of welfare benefits—namely, an individual who has not made “the determination under review”).
141 See Freeman, supra note 138, at 642 (Goss has left state legislators to decide what process should be afforded, who
have in turn failed to develop adequate procedures or have delegated the development of procedures to local school
districts, resulting in widespread due process violations at the local level); infra Part III.D.
142 See, e.g., Brewer, 779 F.2d at 264; Newsome, 842 F.2d at 921; Lamb v. Panhandle Cmty. Unit Sch. Dist., 826 F.2d
526, 528 (7th Cir. 1987); Jennings, 397 F.3d at 1124; Hillman v. Elliott, 436 F. Supp. 812, 817 (W.D. Va. 1977); C.B.
by & Through Breeding, 82 F.3d at 383.
143 See, e.g., Rutz v. Essex Junction Prudential Comm., 457 A.2d 1368, 1380 (Vt. 1983) (finding that the student
suffered prejudice by the departure from established due process procedures where his parents “determined not to
bring an attorney to the hearing because of their understanding that the hearing would be a ‘family-type affair’”
without attorneys while the school’s attorney was in fact present at the hearing).