districts as commentators have suggested.237 Rather, constitutional principles require this practice
under the Supreme Court’s traditional balancing test for the implementation of additional
procedural safeguards to prevent an erroneous deprivation of a property or liberty interest.238
Further, the practice of providing a decision-maker free from the appearance of bias is not limited
to the judicial setting, and has been implemented in certain administrative settings that compare
favorably to school discipline hearings.239
A. Balancing Interests: Providing a Decision-Maker Free from the Appearance of Bias
As Goss instructed, when a public school district excludes a student from school, it
deprives a student of a property right guaranteed by the state’s constitutional provision of public
education and delegated to the local district for administration.240 Such a deprivation triggers the
state’s burden to proceed under procedural due process consistent with the Fourteenth
Amendment.241 A deprivation that involves a suspension of more than ten days or expulsion from
the school will require greater due process, including a formal hearing presided over by hearing
officers who are free from bias or its appearance.242 This approach might allow a school
disciplinary hearing to reflect the same due process in administrative contexts afforded individuals
facing severe consequences from deprivation. Such a standard would demand that an “uninvolved
person” hear the case, requiring that person to be uninfluenced and independent from the inner
workings of the student’s discipline case, so that “complete objectivity” may be afforded. 243 A
challenge to the Fifth Circuit’s approach, which presumes an absence of bias and allows
administrators and school board attorneys to perform multiple roles in the “prosecution” and
hearing process, would argue that providing such an impartiality standard is more than “best
practice” for a school district, but instead is constitutionally required.
The on-the-ground realities of the public school setting suggest that caution and a
willingness to presume bias from prior involvement in a student’s case is not over-reaching
because an administrator who investigates a student’s disciplinary matters possesses at least a
modicum of interest in the outcome of the case.244 Indeed, if the administrator did not, that
individual would be hard-pressed to explain to her supervisors, conscious of the time scarcity of
public resources, why she so intently prosecuted or investigated the charges in the first place. In
the criminal law setting, a detective or prosecutor would never be permitted to serve as an
adjudicator of the defendant’s charges, though they be free from any form of actual bias toward
the subject of their investigations. This is because we assume that the role they play is dissonant
with making an adjudication on the evidence, and because we are interested in a certain standard
237 See supra Part III.B.
238 See Matthews, 424 U.S. at 323 (in order to determine whether additional safeguards are necessary to prevent an
erroneous deprivation of a constitutionally-recognized property or liberty interest, a court must weigh the private
interest that will be affected by the official action, the risk of erroneous deprivation, and the probable value of any
239 See, e.g., Morrissey, 408 U.S. at 486 (applying the presumption of impartiality to administrative parole hearings).
240 See Goss, 419 U.S. at 573.
241 Black Coal. v. Portland Sch. Dist. No. 10, 484 F.2d 1040, 1045 (9th Cir. 1973).
242 See id. at 1044 (“[t]he requirement of a prior hearing will depend primarily on the nature of the penalty imposed”).
243 Morrissey, 408 U.S. at 486.
244 Matthews, 424 U.S. at 334 (“[d]ue process is flexible and calls for such procedural protections as the particular
situation demands”) (quoting Morrissey, 408 U.S. at 481.). See also Pattison, supra note 17, at 51.