the prison-pipeline research tying first-time school exclusion to dropout rates and criminal
activity.270 Thus, similar to the termination of interests of a parolee facing revocation, the
termination of a student’s ability to participate in public education would be tantamount to a
“grievous loss” for the student271 and likely for society as well.
The state’s interests in having a lower standard of impartiality in Morrissey and in the
school discipline context similarly correspond with the state’s interest in the school discipline
context being arguably lower than those involved in parole revocation hearings. School districts
and college governing bodies have echoed the state’s argument in Morrissey that maintaining a
lower standard of impartiality retains non-adversarial procedures essential to the efficient process
of adjudication already in place.272 The Court rejected this argument, declaring that a state’s
interest in its own discretion over parole procedures would not be interfered with by the
requirement of a hearing before an uninvolved adjudicator.273 Similarly, a school district’s
argument that a requirement of higher standards for impartiality is an unnecessary judicial
interference with uniquely local functions must fail because the interference is minimal.274 Thus,
the corresponding interests and deprivations at stake show Morrissey to be a strong case for the
requirement of a higher standard of impartiality in the school discipline setting that would
guarantee the provision of an independent, “wholly disinterested” decision-maker, free from the
influence or appearance of bias, for a student’s long-term discipline adjudication.275
B. Ways Forward: Laudable State Legislation and Proposed Model Educational Code
As noted above, the asserted burden on a school district of providing an impartial
adjudicator of a student’s disciplinary charges is much slighter than the case law suggests.276 State
legislation and practices that routinely employ the use of independent decision-makers in school
discipline cases provide evidence that the practice is not unfeasible or unreasonably
burdensome.277 At a minimum, a district’s provision of school board members who do not know
the student or have not seen any of the facts of the charges prior to the hearing would not
1073 (2013) (“society as a whole enjoys the benefits of a well-educated population, and it pays the price when the
educational system fails”); Derek W. Black, Charter Schools, Vouchers, and the Public Good, 48 WAKE FOREST L.
REV. 445, 451–52 (2013). See generally Henry M. Levin, 4 ALB. GOV’T L. REV. 394 (2011).
270 See supra Part II.B.
271 Morrissey, 408 U.S. at 481 (citing Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951).
272 C.B. by & Through Breeding, 82 F.3d at 388 n. 3 (calling the disqualification of prosecuting administrators as
decision-makers “impossible,” “undesirable,” and “too complex”); Newsome, 842 F.2d at 926 (“We decline to place
upon a board of laymen the duty of observing and applying common-law rules of evidence”); Wasson v. Trowbridge,
382 F.2d 807, 813 (2d Cir. 1967) (Strictly providing for a separation of investigative and adjudicative functions at all
times is “unduly burdensome”).
273 Morrissey, 408 U.S. at 483.
274 As discussed above, states like Georgia use independent and uninvolved hearing officers routinely as required by
statute. See generally GA. CODE ANN. § 20-2-753 (2004). Other states, like Illinois, employ the practice routinely even
in the absence of statutory requirements to do so. See COLO. REV. STAT. § 22-33-105(2)(c) (2013); 105 ILL. COMP.
STAT. 5/10-22.6(b) (1988).
275 See In re Murchison, 349 U.S. at 137.
276 See, e.g., C.B. by & Through Breeding, 82 F.3d at 388, n. 3.
277 See, e.g., ARIZ. REV. STAT. ANN. § 15-843(F) (2010); CAL. EDUC. CODE § 48918(d) (Deering 2016); COLO. REV.
STAT. § 22-33-105 (2013); GA. CODE ANN. § 20-2-753 (2004); 105 ILL. COMP. STAT. 5/10-22.6(a) (1988); OR. ADMIN.
R. 581-021-0070(2) (2016).