as its starting point a school discipline landscape occupied by benign administrators rather than
the adversarial landscape research shows it has become.231 Other recent commentators seem to go
further toward recognizing the constitutional necessity of thicker protections, but still stop short of
asserting that their recommended procedures are required by due process.232 To be fair, the
commentary normatively prescribing solutions to the question of what constitutes an impartial
tribunal cited above is often a component part of larger scholarly works addressing procedural
questions and defects presented by Goss’ progeny, and the purpose of their discussions generally
lay outside the purview of the constitutionality of the current impartiality standard.233
Further, the best practices approach lacks a realistic vision for thicker impartiality
protections. By limiting the source of its normative impartiality recommendations to educational
best practices and litigation prevention, it does not generally envisage an in-depth, realistic
approach of how the goal of providing independent, uninvolved decision-makers above the
appearance of bias and beyond undue influence might be conceivably achieved. It thus fails to
address one of the main arguments in favor of construing impartiality thinly—namely, the
argument that thick impartiality protections require unreasonable expenditures of public
While appreciating that others have identified issues and offered up potential normative
solutions, this Note goes further by arguing that the impartial tribunal guaranteed to students
through due process requires independent and uninvolved decision-makers who are free from the
appearance or influence of bias. In this way, this Note seeks to revive the more cautious, thicker
approach to impartiality on which Professor Buss struck ground in his pre-Goss scholarship,
drawing parallels to other administrative hearing contexts and appropriately adjusting the due
process balancing scheme using evidence from the school-to-prison pipeline research.235 Further,
this Note offers on-the-ground illustrations of (1) the appropriate standard for impartiality as seen
in some lower court decisions presented above, (2) some ways state legislatures have complied
with the standard through effective school discipline procedures, and (3) some provisions for use
in model legislation to afford thicker impartiality protections.
IV. A THICKER APPROACH FROM CONSTITUTIONAL AND ADMINISTRATIVE LAW
A fuller approach to impartiality would go beyond the Fifth Circuit’s “actual bias” test, instead
opting for the nature of a standard chosen by the Gonzales decision, which recognizes the ability
of bias to slip in unnoticed or unproven by discoverable evidence.236 In that approach, the provision
of a decision-maker free from the appearance of bias is not simply a best practice for school
231 See supra Part II.A.
232 See Doty, supra note 34, at 358–59 (“it behooves districts to employ a truly independent individual as the hearing
officer, particularly where school administrators and attorneys are integrally involved in the investigation, and
prosecution, of serious misconduct”).
233 See, e.g., Doty, supra note 34.
234 See C.B. by & Through Breeding, 82 F.3d at 388 (“always requiring an impartial decisionmaker to be educated on
the facts would render the process too complex”); Gorman, 837 F.2d at 14–15 (providing heightened impartiality
safeguards would represent an “undue judicialization” that would require “unjustifiable” expenditures and “improper
allocation of resources”).
235 See Buss, supra note 148.
236 See Gonzales, 435 F. Supp. at 465.