lower courts and legal commentators have adopted, concluding that neither of these adequately
comport with due process. However, a few courts have applied robust impartiality protections
consistent with the thick view of impartiality for which this Note argues.
A. Divisions in the Lower Courts
Because the Goss decision’s procedural requirements were limited to short-term
suspensions of ten days or less, lower courts have been left to formulate their own interpretations
of what process is due for students facing long-term discipline. 144 These formulations by necessity
address the question of who is eligible to adjudicate disciplinary hearings to ensure the “more
formal procedures” required by the Court for long-term discipline. 145 Though courts agree that the
formal hearing prescribed by Goss must be impartial to satisfy procedural due process, most courts
interpret that requirement thinly, recognizing a violation only where a student can show actual bias
on the part of the decision-maker presiding at the tribunal. Other circuits employ a more cautious
approach through a thicker definition of “impartial tribunal.” 146 These courts presume bias in
certain circumstances in which a hearing officer has served in dual roles and prohibit individuals
from serving as decision-makers who have an appearance of bias even where students have not
demonstrated actual bias. 147
i. The Majority Approach: Thin Impartiality Protections
Most courts employ a thin definition of what constitutes an impartial tribunal required by
Goss. 148 Under this approach, an impartial tribunal may include, or consist solely of, an
administrator who has played other roles in the application of the discipline prior to the hearing. 149
144 See Newsome, 842 F.2d at 923 (“Without the aid of Supreme Court authority directly on point, we are left with
resolving the procedural due process issues presented in this appeal under the more general rubric of Matthews v.
Eldridge”) (citing Matthews v. Eldridge, 424 U.S. 319 (1976)); Aguirre v. San Bernardino City Unified Sch. Dist.,
170 Cal. Rptr. 206, 211 (Cal. Ct. App. 1980) (“The question we must decide is whether the additional safeguards
contemplated by [Goss’] phrase ‘more formal procedures’ include confrontation and cross-examination”) (quoting
Goss, 419 U.S. at 584). See also Pattison, supra note 17, at 51 (“Although the Supreme Court has not fully defined
the contours of procedural due process in the context of long-term suspensions or expulsions, it has given lower courts
the tool to do so with the Matthews test”).
145 Pattison, supra note 17, at 51. See also Brown v. Univ. of Kansas, 599 F. App’x. 833, 837 (10th Cir. 2015) (“Goss
simply noted that severe disciplinary action could require ‘more formal procedures,’ not. . . …the equivalent of a
trial”) (quoting Goss, 419 U.S. at 584); Cooper, supra note 138, at 29 (courts are not in complete agreement as to what
constitutes adequate notice for longer suspensions and expulsions); Gonzales, 435 F. Supp. at 465 (there is doubt as
to what an “impartial tribunal” means in practice).
146 See, e.g., Gonzales, 435 F. Supp. at 465; Everett v. Marcase, 426 F. Supp. 397, 402 (E.D. Pa. 1977).
147 Supra note 143; see also infra Part III.A.2.
148 See William G. Buss, Procedural Due Process for School Discipline: Probing the Constitutional Outline, 119 U.
PA. L. REV. 545, 618 (1971) (“[a] strong case must be made to establish personal bias. Combinations of functions also
rarely succeeds as a constitutional argument”); Brewer, 779 F.2d at 264; Newsome, 842 F.2d at 921; Lamb, 826 F.2d
at 528; Jennings, 397 F.3d at 1124; Hillman, 436 F. Supp. at 817 (W.D. Va. 1977); C.B. by & Through Breeding, 82
F.3d at 383.
149 Brewer, 779 F.2d at 264 (administrator involved in the initiation and investigation of disciplinary charges is not by
those roles disqualified from operating as an impartial decision-maker at the student’s disciplinary hearing); Newsome,
842 F.2d at 927 (“[w]e cannot say that, as a general matter, it is a violation of due process for investigating
administrators to participate in the deliberation process”); John A., 654 P.2d at 247 (no due process violation where
teachers sat on student’s tribunal hearing panel because plaintiff showed no evidence of actual bias).