have also investigated, prosecuted, or handed down charges at earlier stages in the proceeding
absent actual evidence of bias.199 The judicial disparity in what constitutes an impartial tribunal
muddies the waters of a major constitutional doctrine and leads to potential litigants presenting
arguments within that doctrine supported by unreliable federal court precedent and that results in
The majority of federal courts’ approach as detailed above, inadequately safeguards
students’ due process right to an impartial tribunal by rejecting a strict construal of “impartial” in
the school discipline context. The courts have unfairly separated school exclusion from other
deprivations requiring due process because of the increasingly adversarial nature of the school
discipline landscape and the scale of the deprivations students face in being excluded from
mainstream public education. This reality is most popularly conceived in the recent and prolific
school-to-prison pipeline scholarship. Because courts have failed to adequately take into account
the elements at stake for students facing long-term discipline, their due process balancing
calculation, as imposed by the Supreme Court in Matthews v. Eldridge, is discretely unbalanced,
with procedures convenient to the public schools outweighing potential student hardships.200 A
constitutional jurisprudence of due process requires a new calculation that would account for the
modern school discipline landscape and contemporary school exclusion research that shows the
severe consequences of students excluded from school. Constitutional due process requires more
of the federal courts than what protections they have provided, and a Supreme Court challenge to
the majority approach would have strong arguments in its favor.
Courts holding to the Fifth Circuit approach generally reject the importation of judicial
norms into the school discipline context.201 The most common rationale for this approach is that
the school discipline context is far-removed from the consequences and deprivations of civil or
criminal proceedings that justify cautious approaches to biased adjudicators under the Matthews
test.202 However, there is reason to compare the criminal judicial context and the school discipline
context favorably, especially in light of what is at stake for students facing severe disciplinary
charges.203 The extensive research since Goss shows that the deprivations that decision
contemplated—namely, reputational harm and property interest in education itself—fall short of
what students who receive long-term discipline consequences actually suffer.204
199 Brewer, 779 F.2d at 264; Sullivan, 475 F.2d at 1077.
200 Matthews, 424 U.S. at 335.
201 See supra note 198 (collecting cases).
202 See supra note 198 (collecting cases). See also Gorman, 837 F.2d at 14 (holding that a fair hearing in the student
disciplinary context need not mirror the common law adversarial method nor criminal trial procedures); Jennings, 397
F.3d at 1124 (affording full due process protections beyond “trial-type procedures” for students facing long-term
suspensions would be cost-prohibitive and inefficient for school districts) (citing Goss, 419 U.S. at 565). See also id.
at 585 (J. Powell, dissenting); Black, supra note 17, at 845 (positing that one of Goss’ central flaws was its expectations
that “the non-adversarial theory of education would persist naturally, notwithstanding the Court’s intervention,” and
that “administrators would implement and apply due process with good faith and benevolence”). One of Justice
Powell’s law clerks who served a few years before Goss was decidedly against Goss’ holding, objecting to what he
termed the constitutionalizing of the disciplinary process “at a time…when the maximum flexibility may be required
by school officials in different parts of the country to reduce the level of violence in secondary education.” J. Harvie
Wilkinson III, Goss v. Lopez: The Supreme Court as School Superintendent, 1975 SUP. CT. REV. 25, 66 (1975).
203 See supra Part II.B.