Though many circuits taking this approach differ along subtle lines, what unites them all is their
refusal to find per se impartiality, and thus a due process violation, where an administrator has
served in multiple roles in the student’s disciplinary process. 150 The Fifth Circuit approach finds
no due process violation where a decision-maker or advisor to the decision-maker is also: (1) an
employee of the district; 151 (2) an investigator of the discipline matter or other fact-finder; 152 (3)
an initiator or prosecutor of the charges at issue; 153 (4) an administrator who has recommended the
exclusion to the decision-making body; 154 (4) or a school attorney representing the school
Courts that follow the Fifth Circuit’s approach provide both practical and legal reasoning
for their reluctance to recognize per se bias in tribunal hearing officers who have played multiple
roles in a student’s decision process. 156 The courts also point to the practice’s convenience, noting
that it is far more practical to use school officials who may have been involved in the discipline
and have a working knowledge of the details of the case and the particular student. 157 Further, the
practice of hiring outside, independent hearing officials is a drain on the school’s resources as
those officials—often chosen from a pool of approved local attorneys158—must be compensated
for their time. 159
In addition to the convenience of the practice, courts point to legal distinctions that justify
the thinner view of impartiality employed by the Fifth Circuit approach. 160 Specifically, they
distinguish the disciplinary due process hearing for a student enrolled in public school from
hearings requiring a “full-blown administrative appellate process,” finding that less formal hearing
procedures are due in the school discipline context. 161 In their view, the provision of an entirely
150 See Brewer, 779 F.2d at 264; Sullivan v. Houston Indep. Sch. Dist., 475 F.2d 1071, 1077 (5th Cir. 1973); Levitt v.
Univ. of Tex., 759 F.2d 1224, 1233 (5th Cir. 1985); Lamb, 826 F.2d at 529.
151 Hillman, 436 F. Supp. at 816.
152 Jennings, 397 F.3d at 1125 (because no personal animus was presented, the administrator could serve as an
impartial hearing officer even though he investigated details of the case); Butler v. Oak Creek-Franklin Sch. Dist., 172
F. Supp. 2d 1102, 1115 (E.D. Wis. 2001) (“absent evidence of particular bias or prejudgment, the same person or
entity may first investigate and later adjudicate whether proscribed conduct occurred”).
153 Lamb, 826 F.2d at 529 (“the combination of an advisory function with a hearing participant’s prosecutorial or
testimonial function does not create a per se facially unacceptable risk of bias”); Hillman, 436 F. Supp. at 816
(Principal who initiated suspension charges was not thereby disqualified from acting as an impartial hearing officer
without any evidence of principal’s actual bias).
154 See Lamb, 826 F.2d at 529; Butler, 172 F. Supp. 2d at 1115 (extending Supreme Court interpretation of federal
common law interpreting Administrative Procedure Act to the school discipline setting) (citing Withrow v. Larkin,
421 U.S. 35 (1975)); Hillman, 436 F. Supp. at 816 (finding no due process violation where a hearing officer had also
prosecuted the student’s case over which he presided).
155 See generally Alex v. Allen, 409 F. Supp. 379, 388 (W.D. Pa. 1976) (school board attorney may “prosecute the
case against [the student], rule on evidentiary questions, and advise the board as to possible action”).
156 See C.B. by & Through Breeding, 82 F.3d at 388, n. 3.
157 Id. (“[ i]n the school context, it is both impossible and undesirable for administrators involved in incidents of
misbehavior always to be precluded from acting as decision-makers”).
158 See, e.g., Linwood v. Bd. of Educ. of City of Peoria, 463 F.2d 763, 765, n. 4 (7th Cir. 1972). The local district in
that case affirmatively chose to develop procedures that mandated an independent review panel made up of three
outside approved attorneys and was not required to do so, consistent with the Seventh Circuit’s adoption of the
majority approach. See Lamb, 826 F.2d 526.
159 See e.g., Gorman v. Univ. of R.I., 837 F.2d 7, 15 (1st Cir. 1988) (providing outside, independent decision-makers
in the education context will involve an “improper allocation of resources,” and may be “counter-productive”).
160 See, e.g., Newsome, 842 F.2d at 921.
161 See, e.g., Newsome, 842 F.2d at 921.