Further, the modern adversarial landscape of school discipline cases presents reasons to
insist that due process requires thicker impartiality protections.205 According to the flexible
principles of due process,206 where the school discipline tribunal operates less like the “informal
give-and-take” envisioned by Goss207 and more like an adversarial, administrative hearing, as the
research suggests, courts should adapt by applying thicker impartiality protections. The benign
administration relationship is no longer present. Rather than urging its continued presence208, or
mourning its loss, courts should recognize the necessity of providing the same impartiality
protections in school discipline cases that are applied in other administrative contexts.209
B. The Best Practices Approach and its Inadequacy
Many commentators have adeptly examined student due process questions left open by
Goss, and there are simply too many cogent challenges of ineffectual due process protections
afforded students to name here. However, this Section will mention a few notable resources that
may be used for further insight. In an early, pre-Goss outline of student discipline due process,
Professor Buss provides a comprehensive approach to the open due process issues, many of which
remained open after Goss was decided.210 His article, titled Procedural Due Process for School
Discipline: Probing the Constitutional Outline, begins with a lucid and foretelling description of
the “mystique” surrounding school issues that is the foundation of judicial reluctance to import
due process principles into the school discipline context.211 Professor Black, in his excellent article
discussing the ambitions and failures of Goss, points out the need for a more robust substantive
due process regime for students facing long-term discipline, especially in light of the rise of zero-tolerance discipline policies and the trend of disciplinary matters being handled in the courtroom
instead of the principal’s office.212 Commentators have confronted procedural due process defects
with persistence, with voices emerging from the fields of legal and education scholarship, as well
as from the emerging field of education law advocacy.213 As an attorney representing families in
student discipline cases, Brent M. Pattison, argues convincingly for students’ right to confront and
205 See supra Part II.A.
206 Matthews, 424 U.S. at 334.
207 Goss, 419 U.S. at 584.
208 See, e.g., C.B. by & Through Breeding, 82 F.3d at 388 (opportunities for student to “discuss” her concerns with the
imposition of a nine-day suspension adequate procedural due process) (citing Goss, 419 U.S. at 584).
209 See infra Part IV for examples of non-judicial administrative hearing contexts where courts provide adequate
impartiality consistent with due process.
210 See Buss, supra note 148.
211 Buss, supra note 148, at 570 (“Transcending all of the particular reasons…to explain the refusal to hear student
due process claims is a…reluctance by the courts to intrude into educational matters. Educational institutions seem to
be enshrouded with a mystical immunity from judicial interference”).
212 See generally Black, supra note 17.
213 The emergence of a niche practice area filling a demand in the legal market for attorneys representing students in
discipline and special education hearings and attorneys representing districts themselves—a practice area not widely
in existence until recent years—is itself further evidence for the increasingly adversarial nature of school discipline
issues. See, e.g., Diane E. Millet, Back to School Education Law, 23 G.P. SOLO 24 (2006); Lori Tripoli, A Marketing
Ploy That’s Worked…Law Firm Commitments to Industry Niche Practices Reap Benefits, 18 OF COUNSEL 1, 13 (1999)
(noting defensive education law as a profitable emerging niche practice alongside nuclear power, airport law, mining,
and insurance tax law).