cross-examine witnesses at discipline tribunals.214 Meanwhile, Alicia Insley’s note, authored as a
law student at Washington College of Law, criticizes zero-tolerance discipline policies because
they apply harsh punishments that can only be reviewed by courts applying highly deferential
standards.215 Professor Perry A. Zirkel, an education and law professor, and Youssef Chouhoud, a
graduate student, examine post-Goss due process empirically, comparing procedural due process
outcomes in state and federal courts finding in favor of students to those finding in favor of
districts.216 The student discipline procedural due process commentary is thus rife with well-researched and persuasive scholarship.
Commentators have focused to a much lesser extent on the open question of what
constitutes impartiality for students facing long-term discipline. Though much commentary has
identified the question, such as Professor Kern Alexander’s preeminent volume on school law, 217
and Professor Kirp’s cogent and predictive analysis of due process in the school discipline context
immediately following Goss,218 few commentators have addressed the question normatively.219
Some earlier commentary that has done so distinguished the school discipline setting from other
For instance, in early, pre-Goss commentary encouraging fuller impartiality protections
against institutional bias in administrative law settings, Professor McCormack rejects the need for
per se bias in the school exclusion setting, holding ranks with what has become the majority
approach as outlined above.221 Pre-Goss commentary was not all in favor of limited impartiality
protections; Professor Buss includes a persuasive section in his outline of constitutional processes
on the need for a different approach to the right of an impartial tribunal more akin to protections
provided in comparable administrative law settings.222 Buss’ insistence that institutional biases
214 See generally Pattison, supra note 17; see also Brent M. Pattison, Can What You Don’t Know Hurt You?:
Substantive Due Process, Weapon Possession, and Zero Tolerance Policies, 50 AM. U. L. REV. 1039 (2001).
215 See generally Insley, supra note 81.
216 Youssef Chouhoud & Perry A. Zirkel, The Goss Progeny: An Empirical Analysis, 45 SAN DIEGO L. REV. 353, 370
(2008) (local districts won “conclusive victories” in 74% of cases studied).
217 See KERN ALEXANDER, ET AL., AMERICAN PUBLIC SCHOOL LAW 459 (6th ed. 2005) (lower courts including the
fifth and sixth circuits will not disqualify an administrator from serving as a decision-maker at the student’s
disciplinary tribunal without a showing of pre-existing animus or actual bias); Pattison, supra note 17, at 52, n. 26
(lower court decisions have required an impartial hearing officer and have at times questioned the impartiality of a
tribunal that has relied on district counsel as advisor of procedures and prosecutor of the student’s disciplinary charges)
(citing Gonzales, 435 F. Supp. at 460–65).
218 David L. Kirp, Proceduralism and Bureaucracy: Due Process in the School Setting, 28 STAN. L. REV. 841, 862
(1976) (recognizing likelihood that due process requirements in the public schools could transform into perfunctory
affairs, which could lead to the importation of biased decision-making).
219 See Cooper, supra note 138, at 40 (surveying student discipline due process decisions involving, among other
issues, claims of partiality); Frances P. Solari & Julienne E.M. Balshaw, Outlawed and Flawed: Zero Tolerance and
Second Generation Race Discrimination in Public Schools, 29 N.C. CENT. L. REV. 147, 167 (2007); Sam A. Mackie,
Proof That School Board Improperly Expelled Student From School, 55 AM. JUR. PROOF OF FACTS 3d 313 (2000)
(pointing out the many unsuccessful partiality and bias claims of suspended and expelled students); David
Rosborough, Left Behind, and Then Pushed Out: Charting a Jurisprudential Framework to Remedy Illegal Student
Exclusions, 87 WASH. U. L. REV. 663, 689 n. 166 (2010) (identifying varying degrees of impartiality protections in
lower court decisions).
220 See, e.g., Wayne McCormack, The Purpose of Due Process: Fair Hearing or Vehicle for Judicial Review, 52 TEX.
L. R. 1257 (1974).
221 Id. at 1287–89 (bias at in school discipline cases “should disqualify only if it is so strong that it prevents the
compilation of an adequate record for review”).
222 See Buss, supra note 148, at 618–30.