upon the freedom of action and expression of the Board.” 188 The court’s rejection of the district’s
argument here represents the court’s sensitivity to facts showing an appearance of bias even in the
absence of actual bias, forming the basis for an entirely different impartiality standard than courts
following the Fifth Circuit approach. 189
Other courts have adopted a similar standard. 190 In Butler v. Franklin Oak Creek School
District, a student was charged with misconduct for violating a provision of the district’s athletic
code.191 He faced the possibility of a twelve-month suspension from participation in student
athletics. Consistent with the district’s procedures, the student was afforded a hearing before the
Coaches’ Council, a decision-making body comprised of various school administrators including
the athletic director who had recommended the student’s removal.192 After the hearing, the
Coaches’ Council voted to suspend the student.193 As a threshold matter, the court determined that
the removal from participation in school athletics constituted a deprivation of a property interest
guaranteed by state law and district regulations.194 The court found the athletic director’s role as
both initiator of discipline and decision-maker unconstitutional, reasoning that the athletic
director’s role was not merely investigatory, but required him to make an initial recommendation
of discipline.195 According to the court, a tribunal reviewing the athletic director’s discipline
recommendation could not be impartial where the director cast a vote in the adjudication of his
own decision.196 Thus, in absence of actual evidence of bias, the court found the dual roles of
initiator of discipline and member of decision-making tribunal to be constitutionally
The concern for impartiality emphasized by the Gonzales court and those following its
approach represent a distinct departure from the thin interpretation used by courts taking the Fifth
Circuit’s approach. Cases like Gonzales and Butler acknowledge a constitutionally intolerable risk
of bias when an individual serving as a hearing officer or on a disciplinary hearing panel has been
involved in initiating or prosecuting a student’s case.198 By contrast, the Fifth Circuit approach
recognizes no presumption of bias and grants express approval of the use of hearing officers who
188 Gonzales, 435 F. Supp. at 465.
189In doing so, the court employed the Ninth Circuit’s standard for impartiality used in administrative tribunals, a
standard rejected in the school context by courts taking the majority Fifth Circuit approach. See Stivers v. Pierce, 71
F.3d 732, 748 (9th Cir. 1995) (“[w]e therefore hold that where one member of a tribunal is actually biased, or where
the circumstances create the appearance that one member is biased, the proceedings violate due process”) (emphasis
190 See, e.g., Everett, 426 F. Supp. at 402 (precluding the “principal of the school who holds the first informal hearing
and recommends” the discipline from operating as an impartial hearing officer because such an individual would not
be “fair and impartial”).
191 Butler v. Oak Creek-Franklin Sch. Dist., 172 F. Supp. 2d 1102, 1107–08 (E.D. Wisc. 2001).
192 Id. at 1107.
193 Id. at 1108.
194 Id. at 1110 (as a matter of state law and the school district’s own student handbook, student-athletes have right to
continued participation in school athletics and may not be suspended from such without good cause).
195 Id. at 1116 (“[t]hese adjudicative and decision-making functions far exceed mere investigation”).
197 Butler, 172 F. Supp. at 1116.
198 See Gonzales, 435 F. Supp. at 465 (finding that students’ due process was violated where the superintendent, as
“chief of the ‘prosecution’ team,” was present in the school board’s closed deliberation session “whether he did or did
not participate [because] his presence to some extent might operate as an inhibiting restraint upon the freedom of
action and expression of the board”); Butler, 172 F. Supp. 2d at 1115-16 (finding that the initiator of the student’s
discipline could not constitutionally serve on the adjudicatory council because of the inherent risk of bias).