Hearing Panel under Section 1 of this Title may be appealed within 21 days of
issuance to the County Trial Court in which the District sits. (C) The Court shall
review the appeal based on the factual record developed at the Hearing. (D) A
Court’s ruling on the appeal allowed by this Section is final.
Section 3 ensures that a student is afforded judicial review over a local board of education
ruling. This Section maintains the flexibility inherent in this model legislation by allowing the
factual record developed below at the disciplinary hearing to serve as the basis for the trial court’s
appeal, thus preventing the re-litigation of disciplinary matters and retaining judicial efficiency.
The higher standards of impartiality this model legislation requires will ensure that a factual record
is developed in full fairness at the administrative level. It is important to note, however, that this
deference may not be preferential in states that do not allow the presence of counsel or the
confrontation and cross-examination of witnesses at the discipline hearing because in the absence
of those safeguards, it is unlikely that a full factual record will have been developed.288 In such
cases, this Note would propose that a reviewing trial court be required to conduct a de novo
evidentiary hearing in lieu of a deferential appeal.
States that do not have a requirement for individuals who may serve as impartial decision-makers should adopt the above legislation in full. States that have already adopted legislation
permitting the selection of an independent hearing officer need only amend those provisions to
affirmatively require the utilization of hearing officers, though those states should provide for de
novo review at the disciplinary hearing and judicial review of possible appeal. In certain
circumstances, those states may also elect to scale back the selection requirements of the individual
who will constitute an “independent hearing officer” to ease districts’ transition from an optional
provision to an affirmative requirement while still maintaining minimum impartiality safeguards.
States already affirmatively requiring the use of independent hearing officers should further
amend those provisions to ensure that none of those hearing officers have served disciplinary roles
in the District, consistent with Section 2 above. States providing a pool of administrative law
judges or officers from which school districts can hire their hearing officers do not face the
constitutional problems inherent in states who leave the practice open to local boards of education.
Those states may choose to continue their constitutionally sound practices, though the strength of
the provisions above include flexibility for the selection of uninvolved board of education
members as hearing officers that is not available to districts in states with an administrative law
judge regime. In short, this Note argues that the Fourteenth Amendment requires greater due
process protections from state legislatures for students facing long-term discipline by providing a
decision-maker free from the appearance of bias. The model legislation presented above provides
a beneficial starting point for doing so.
The school landscape has changed dramatically since Goss v. Lopez was decided in 1975.
Though great strides have been made in due process protections across many adjudicative contexts,
students facing long-term discipline are still left with a mismatched tapestry of procedural rights
that desperately require uniformity and adaptation to the norms of the modern public educational
setting.289 Federal, state, and local governments and federal and state courts have adapted with
288 See generally Black, supra note 17.
289 See supra Part III.