of propriety at the hearing that is discordant with the possibility of bias. Likewise, in the school
discipline context, a prosecutor or investigator, no matter how well intentioned, should be excluded
from the adjudication process because of her role in earlier stages of the proceeding.
Advocates of the Fifth Circuit’s more lenient approach toward impartiality would counter
by asserting that providing adjudicators who are absolutely uninvolved in the proceeding in any
other way unduly “judicializes” the proceeding and is not required to ensure an impartial
hearing.245 They would argue that the educational process is harmed through such judicialization.
However, the proper test of whether a safeguard is constitutionally required is whether the private
interest outweighs the burden to the government.246 Here, because of the nature of the public-school context, the student’s interest in having an uninvolved adjudicator overseeing his or her
hearing outweighs the district’s burden of providing one. Regarding the student’s interest, where
an adjudicator has been involved in the charges in an investigatory or prosecutorial role, the threat
of bias, and in turn, an erroneous exclusion of the student from school, is substantial. This is
because school discipline becomes an adversarial process immediately once an allegation is
entered.247 An administrator who initiates discipline against a student is in a position of authority
and has often already been involved in instituting prior discipline against the student (especially
in serious suspension or expulsion cases). The disciplinary history alone indicates the appearance
To satisfy the due process requirement of providing an impartial tribunal without the
existence of bias, a proper resolution would align with Gonzales’ approach presented above.248
Specifically, it would guarantee that an administrator or counsel who has initiated charges,
prosecuted the case, advised the school board, or recommended the disciplinary consequence at
issue would not serve as an adjudicator over the student’s disciplinary due process hearing.249 Such
a safeguard would ensure that the student’s constitutional rights are afforded and would limit the
attention federal courts are required to give to claims of impartiality.
B. Lessons from Administrative Law: Impartiality in Parole Revocation Hearings and the
APA’s Separation of Functions Doctrine
Both the Administrative Procedure Act250 and federal court common law doctrines have
recognized the need for the provision of impartial decision-makers to claimants facing
administrative hearings where a deprivation is at stake.251 Within the jurisprudential realm of the
APA, the separation of functions doctrine is the best example of thick impartiality protections in
245 See, e.g., C.B. by & Through Breeding, 82 F.3d at 388, n. 3.
246 Matthews, 424 U.S. at 335.
247 See supra Part II.A.
248 See supra Part III.A.
249 See Gonzales, supra note 47, at 464–66.
250 The Administrative Procedure Act [hereinafter APA] is the federal statute that governs rulemaking and adjudicative
functions of federal agencies. See 5 U.S.C. §§ 551-59.
251 See, e.g., Finer Foods, Inc. v. U.S. Dep’t of Agric., 274 F.3d 1137, 1140 (7th Cir. 2001); Morrissey, 408 U.S. at