ii. The Minority Approach: Thick Impartiality Protections
Other courts interpret Goss’ requirement of “some kind of hearing” for long-term
disciplinary consequences more substantively, opting for procedures that are meant to prevent an
appearance or “unacceptable risk of bias.” 173 These courts view impartiality through a different
lens, recognizing that an absence of actual bias may not fully comport with due process, where the
appearance of bias is still present. 174 This approach is not novel to administrative adjudications. 175
However, in the school discipline context, only a few courts take the approach, and these circuits
are often internally inconsistent. 176
Courts favoring a thicker view of impartiality have held that a decision-maker who serves
as the initial recommender of the discipline cannot serve as an impartial decision-maker. 177
Additionally, some of these courts do not permit individuals functioning in prosecutorial or
disciplinary roles to advise the deciding school board or, in some cases, to even be present during
closed deliberations following a hearing. 178 Finally, these courts have found due process violations
where a school district’s attorneys both “prosecuted the charges against the [students] in the
expulsion hearings” and provided counsel to the school board members who made the ultimate
173 See Gonzales, 435 F. Supp. at 465 (noting that where a district did not employ the use of an unbiased hearing
officer, “it would have been more reasonable to provide procedures that insured not only that justice was done, but
also that it appeared to have been done”) (emphasis added).
174 Gonzales, 435 F. Supp. at 464 (“[t]he question before the court is not whether the Board was actually biased, but
whether, under the circumstances, there existed probability that the decision-maker would be tempted to decide the
issues with partiality to one party or the other”) (emphasis added).
175 See, e.g., Morrissey, 408 U.S. at 486 (finding presumed bias where a parole officer overseeing an inmate’s parole
status serves as a decision-maker at the inmate’s parole revocation hearing); Withrow, 421 U.S. at 47 (noting that there
are situations where, in the absence of actual evidence of bias on the part of an adjudicator, the risk of bias is intolerably
high, foreclosing the opportunity for an impartial tribunal); Goldberg, 397 U.S. at 271 (requiring that the decision-maker in a welfare benefits review case should not be the individual who recommended the termination of benefits
under review at the hearing); Procunier v. Martinez, 416 U.S. 396 (1974) (prisoner’s claim that his letter was
wrongfully censored could not be adjudicated by the same officer who censored the letter initially); Gibson v Berryhill,
411 U.S. 564, 579 (1973) (administrative adjudicator with pecuniary interest in case could not impartially adjudicate
dispute even in absence of actual bias); American Cyanimid Co. v. FTC, 363 F.2d 757 (6th Cir. 1966) (Commissioner
who had previously served as counsel for Senate subcommittee investigating company could not serve as impartial
decision-maker at the company’s later regulatory hearing); Greenberg v. Bd. of Governors of Federal Reserve System,
968 F.2d 164, 167 (2d Cir. 1992) (holding that the Administrative Procedure Act prohibits agency prosecutors from
serving adjudicatory function in same matter).
176 For instance, where the Central District of California has presumed bias where a decision-maker initiated or
prosecuted a student’s charges, the Eastern District has no concerns with the practice, instead requiring “significant
evidence” to overcome a presumption of neutrality on the part of any administrator who serves as decision-maker. See
Hill v. City of Clovis, 2012 WL 787609, at *6, *8 (E.D. Cal. 2012) (“due process is not necessarily violated when the
school official who initiates, investigates, or prosecutes charges against a student plays a role in the decision to suspend
the student”) (quoting Heyne, 655 F.3d at 568).
177 Gonzales, 435 F. Supp. at 465 (Superintendent who served as “chief of the ‘prosecution’ team” could not have
constitutionally operated as decision-maker).
178 Id. at 465 (Superintendent’s presence during board’s deliberation after expulsion hearing violated due process
because of risk of bias from superintendent’s role as prosecutor of the student’s charges).