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Student school board members will face high court challenge

An attorney for Howard County public school parents seeking the resumption of in-class learning plans to seek expedited Maryland high court review of a judge’s decision that having a high school student serve as a voting member on the county school board is constitutional.

“No Maryland appellate court has ever considered whether a minor can hold elected office,” Anthony M. Conti said Monday of his plan to seek direct review by the Court of Appeals. “We’re kind of in no-man’s land.”

Conti’s comments followed Howard County Circuit Judge Richard S. Bernhardt’s ruling Thursday that the student member of the board’s election by fellow pupils does not violate the state’s constitutional mandate that voters be at least 18 years old.

Bernhardt’s decision essentially upheld the board’s recent rejection — by a 4-4 vote – of a plan to return students gradually to in-class learning. The decisive, gridlock-creating vote was cast by the student member, who opposed a return to the classroom.

Conti filed a notice of appeal to the intermediate Court of Special Appeals on Friday. However, filings with that court will be accompanied with a request that the Court of Appeals hear the case directly, he said.

“We’re not going to waste any time,” added Conti, of Conti Fenn LLC in Baltimore.

He said he hopes the high court will quickly agree to hear the appeal and deem the school board member’s seat unconstitutional, thus enabling a newly configured board to approve a full return to school in the fall.

Many Maryland county school boards, like Howard’s, have a student member authorized by state law, elected by fellow pupils and possessing varying degrees of voting authority. Supporters of the “Student Member of the Board” movement view it as providing a practical lesson in civics and citizenship and encouraging youngsters to become voting members of the public.

But opponents, such as the Howard County parents, say student board members – who are either high school seniors or juniors — serve in defiance of the state constitution because they are not elected by qualified voters. Specifically Article 1, Section 1 of the Maryland Constitution provides that “every citizen of the United States, of the age of 18 years or upwards, who is a resident of the state … shall be entitled to vote in the ward or election district in which the citizen resides.”

Bernhardt, in holding the student board member’s position constitutional, distinguished what he characterized as their lawful selection by their peers from the election of the other board members by registered voters.

“The General Assembly knows how to establish an elective office and has chosen a different method of selection in the case of student members of the various boards of education who exercise voting authority,” Bernhardt wrote.

“It appears that the General Assembly’s decision to qualify the seven adult members with the term ‘elected,’ but not the student member, was deliberate and establishes an alternative selection process for the student member, thereby avoiding any constitutional challengers,” Berhnardt added. “The court believes that the General Assembly used the words ‘election’ and ‘vote’ in a non-technical manner and as a way to efficiently describe the process whereby the student stakeholders express their opinion and select their representative.”

Mark Blom, who defended the school board on behalf of the Howard County Public School System, did not immediately return a telephone message Monday seeking comment on Bernhardt’s decision.

Conti stated in the parents’ lawsuit, filed in December, that but for the student’s unconstitutional presence on the panel the school board would have voted 4-3 to permit students to return slowly to the classroom while respecting the risks and need for social distancing associated with COVID-19.

He cited studies on the importance of in-class learning to the socialization of children as well as health advisories stating how a return to the classroom could be safely accomplished to prevent the spread of the virus.

“Howard County residents have elected seven members to serve as their representatives on their school board,” Conti wrote.

“These board members committed to establishing and following objective, science and health-based metrics to guide their decisions to return students to in-person instruction,” Conti added. “The residents deserve a decision from these seven representatives on an issue that is so fundamental that it defines the board’s very existence. Unfathomably, the decision is being blocked by a SMOB whose statutory existence violates Maryland’s Constitution.”

The case was docketed in circuit court as Traci Spiegel and Kimberly Ford v. Board of Education, C-13-CV-20-000954.

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