Maryland high court will hear challenge to student school board members

Maryland’s top court will consider whether counties violate the state constitution by having a high school student serve as a voting member on their school boards and having non-voting-age pupils elect that member.

The Court of Appeals last week agreed to hear an appeal by Howard County public school parents of a judge’s decision that the student member’s service and election by fellow pupils do not violate constitutional mandates that voters be at least 18 years old and that those in elected office be registered voters.

The Court of Appeals is expected to hear arguments in the case in November and render its decision by Aug. 31, 2022. The case is docketed at the high court as Traci Spiegel et al. v. Board of Education of Howard County, No. 18, September Term 2021.

“Maryland’s practice of allowing minors to serve in binding voting capacity on school boards is largely unique and unprecedented,” the parents’ attorney, Anthony M. Conti, wrote in their successful request for high court review. “No Maryland appellate court has ruled on the constitutionality of minors holding an office of general governmental power, nor has any Maryland appellate court ever decided whether any minor children aged 11 and older can validly elect or appoint a member to a governmental board possessing general governmental powers.”

Conti stated that the student’s election to the board violates Article 1, Section 1 of the Maryland Constitution, which 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.”

Because high school students who have not reached 18 cannot vote, they cannot serve on the school board, added Conti, of Conti Fenn LLC in Baltimore.

He cited Article 1, Section 12 of the Constitution, which provides that a person is “ineligible” to hold elective office in the state if he or she “was not a registered voter … on the date of the person’s election.”

The Howard County School Board, in its failed effort to convince the high court to deny review, stated that the Constitution “does not require all school board seats to be filled via a formal election of registered voters.”

The General Assembly, which approves students serving on school boards county by county, has “broad authority to fill school board seats through whatever process it chooses,” Mark Blom, the Howard County Public School System’s general counsel, wrote on the board’s behalf. “Insofar as plaintiffs object to the school board structure or selection processes established by the General Assembly, the proper recourse is for them to raise those objections with the General Assembly – not this court.”

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.

The parents’ challenge to Howard County’s program followed the board’s rejection last year – by a 4-4 vote – of a plan to return students gradually to in-class learning pending reductions in the severity of the COVID-19 pandemic. The decisive, gridlock-creating vote was cast by the student member, Zachary Koung, who opposed a return to the classroom.

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. Koung was not named in the lawsuit.

But Howard County Circuit Judge Richard S. Bernhardt held the student board member’s position constitutional. Bernhardt distinguished what he characterized as the member’s lawful selection by his or her 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 in March.

“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.”

Conti then filed a notice of appeal to the intermediate Court of Special Appeals as well as a request that the Court of Appeals hear the case directly in the interest of time. The high court granted Conti’s request without explanation.