decision at the disciplinary hearings. 179 This practice can occur frequently. 180 The courts taking
this approach have found a presumption of bias without requiring the student to show actual bias
on the part of a decision-maker, leading to the conclusion that the procedural due process required
was not afforded. 181 This cautious approach taken by these courts contrasts directly with the
majority Fifth Circuit approach that requires a showing of actual bias in order to disqualify an
individual from serving as a hearing officer or from serving multiple roles in the proceedings. 182
In Gonzales v. McEuen, a federal district court in California presumed bias from the nature
of individuals’ roles in the disciplinary process and their presence at a deliberation session of the
local school board. 183 The court in Gonzales found that the involvement of both the district’s
attorney and its superintendent in a student’s initial disciplinary proceedings rose to the level that
bias could be presumed, regardless of whether actual bias existed. 184 There, the district’s attorney
had both prosecuted the student’s expulsion and advised the school board of its legal obligations
during the hearing. 185 The court presumed bias on the part of the attorney without any actual
evidence, finding that the attorney’s multiple roles violated the student’s right to an impartial
The court also presumed bias from the role the superintendent played, where he served as
both chief of the prosecution team for the expulsion and was present during the school board’s
closed deliberations after the hearing. 187 Significantly, the court rejected the district’s contention
that the superintendent was not actually biased because he did not participate at all in the
deliberations but was merely present to serve refreshments to the board, reasoning that “[w]hether
he did or did not participate, his presence to some extent might operate as an inhibiting restraint
179 Gonzales, 435 F. Supp. at 464-65 (“It is undisputed that attorneys for the District who prosecuted the charges
against the plaintiffs in the expulsion proceedings, also represent the Board members in this action. . . . Counsel for
defendants admit that they advised the Board prior to the hearings with respect to its obligations regarding these
expulsions[.] . . . A reading of the transcript reveals how difficult it was to separate the two roles. Special mention
should be made of the fact that the Board enjoys no legal expertise and must rely heavily upon its counsel. This places
defendants’ attorneys in a position of intolerable prominence and influence.”).
180 See, e.g., id.; Lamb, 826 F.2d at 529; Bd. of Educ. of Arapahoe Cnty. Sch. Dist. No. 6 v. Lockhart, 687 P.2d 1306,
1308 (Colo. 1984) (holding that it was impermissible for the board of education to permit its district attorney to be
present during closed deliberations after teacher termination hearing); English v. North East Bd. of Educ., 348 A.2d
494, 494-95 (Pa. Commw. Ct. 1975) (articulating per se rule in termination hearings against school attorneys acting
as both adversarial counsel and advising the school board of its obligations); Nemi v. Bd. of Educ. of Kearsley Cmty.
Sch. Dist., 303 N. W.2d 905, 907 (Mich. Ct. App. 1981).
181 Gonzales, 435 F. Supp. at 465.
182 Brewer, 779 F.2d at 264; See also Lamb, 826 F.2d at 529 (holding that no violation existed where school board
attorney prosecuted the student’s charges and advised the board during closed-session deliberations, and where
principal and superintendent, who testified against the student, were also present during deliberations because student
presented no evidence of actual bias).
183 See Gonzales, 435 F. Supp. at 464-66.
184 Id. at 464–65.
185 Id. By way of illustration, the trial court cited the transcript of the disciplinary tribunal, at which the school board
attorney served as prosecutor while also alerting the board how to rule on evidentiary questions. Id. at 464 (“[c]ounsel
for defendants admit that they advised the Board prior to the hearings with respect to its obligations regarding these
expulsions, but they deny that they advised the Board during the proceedings themselves. A reading of the transcripts
reveals how difficult it was to separate these roles”).
186 Id. at 464 (calling the dual roles difficult to separate and citing to a dialogue in the hearing transcript in which
counsel for the district objected to a request by counsel for the student and made legal recommendations that the
school board uphold its objection).
187 Id. at 464-65.