threatened the fairness of students’ due process hearings while powerful, was not accompanied by
the empirical data for consequences to school exclusion that is now widely known and available.
However, scarce commentary can be found since Goss that has picked up on Buss’ constitutional
fairness arguments with the same force.
In the recent era, those commentators who have argued normatively for thicker impartiality
protections have recommended more robust safeguards without confronting the issue head-on
through the lens of legal mandate from constitutional due process.223 Educational practitioner
David Doty, for example, emphasizes the importance of districts providing thick impartiality
protections by using independent decision-makers not involved in prosecuting roles without
recognizing a constitutional mandate to do so.224 Likewise, in their wide-ranging survey on post-
Goss due process requirements for short and long-term school discipline cases, Larry Bartlett and
James McCullagh argue against allowing prosecution team members into post-hearing
deliberations if the student and his attorney are excluded, while also stressing that “not all of the
foregoing elements of due process are required.”225 Rather than arguing from a constitutional due
process requirement lens, commentators like Bartlett, McCullagh, and Doty encourage efforts at
providing neutral decision-makers neutrality through a best practices approach.226 This approach
offers suggestions for more benevolent procedures to avoid “legal challenge,” to increase the
chances of school district success in ensuing due process claims,227 and to call educators to act
ethically in order to “model valuable lessons to students that will have a positive impact on the
future of the country.”228
While the best practices approach typified by the scholarship above presents school
districts with incentives to provide heightened due process protections, the approach falls short of
advocating for the type of thick safeguards against the appearance of bias that have long been
afforded individuals in other comparable administrative settings. 229 In doing so, the approach
stops short of arguing that constitutional protections require thick impartiality protections, such as
a decision-maker free from the appearance of bias or the existence of unduly influential ex parte
communications with administrators playing multiple roles in disciplinary functions.
This best practices approach—aimed at local school officials rather than state
legislatures—has at its foundation, litigation prevention strategies and moral reasoning that
suggests administrators should police their own behavior out of a sense of educational duty, rather
than by constitutional mandate.230 In this way, the approach proceeds where Goss left off, using
223 See Bartlett & McCullagh, supra note 35, at 57; Doty, supra note 34, at 358.
224 See Doty, supra note 34, at 358 (pointing out potential impartiality issues where a hearing officer’s neutrality may
be undermined by her involvement in the investigation and prosecution of the student’s disciplinary charges) (“[t]he
importance of avoiding even the appearance of impropriety during expulsion proceedings cannot be overstated”).
225 Bartlett & McCullagh, supra note 35, at 57.
226 Id.; Doty, supra note 34, at 358.
227 Bartlett & McCullagh, supra note 35, at 55.
228 Id. at 57.
229 See generally Goldberg, 397 U.S. at 271; Morrissey, 408 U.S. at 491.
230 Doty, supra note 34, at 359 (while the normative methods encouraged are not all required by legal mandate, “[t]hey
merely represent the items of due process that public school officials should observe for better decision making, being
a role model, fairness, exhibiting good educational principles, and lessening the likelihood of being in or losing a
lawsuit”). Some lower courts strike a similar tone, emphasizing reliance on the “honor and good judgment” of
administrators to police themselves for bias. See, e.g., Alex v. Allen, 409 F. Supp. 379, 388 (W.D. Pa. 1976) (allowing
school board attorneys and school administrators to serve multiple roles while also serving as tribunal decision-makers
even though such practices present possibilities “for abuse and prejudice”).