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Maryland high court weighs constitutionality of student school board members

Judge Shirley M. Watts voiced concern with whether any student member has authority to vote on budgetary issues. (The Daily Record/File Photo)

Attorneys for public school parents and the Howard County Board of Education battled before Maryland’s top court Tuesday over the constitutionality of having high school students serve as voting members of school boards and having nonvoting-age pupils elect those members.

Anthony M. Conti, pressing the parents’ case, told the Court of Appeals that the student members’ service on the boards and election by fellow pupils violates the Maryland Constitution’s mandates that voters be at least 18 years old and that those in elected office be registered voters.

These constitutional requirements are at their height in instances involving the “direct election” of individuals seeking “a position of general governmental power,” such as a seat on a school board.

The Howard County board’s attorney, Jonathan L. Backer, countered that school boards are creations not of the Constitution but of the General Assembly and therefore the legislature can set qualifications of members and the procedure for their selection.

Judges on the high court appeared divided.

For example,  Judge Brynja M. Booth wondered aloud whether Conti’s argument would render unconstitutional the move by some Maryland municipal governments — which are generally not constitutionally mandated — toward permitting 16 year olds to vote. Judge Shirley M. Watts voiced concern with whether any student member has authority to vote on budgetary issues.

Hanging in the balance at the Court of Appeals could be the composition of the many county school boards that, 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 Conti said the students’ election to boards 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.”

He also cited Article 1, Section 12, 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.”

Because high school students who have not reached 18 cannot vote, they cannot serve on the school board, Conti said.

The General Assembly tried to develop a “very creative way” to foster student participation on school boards but “it is not the legislature’s prerogative” to usurp the state constitution’s minimum age requirement regarding voting and holding office, said Conti, of Conti Fenn LLC in Baltimore.

But Backer, the board’s attorney, said the General Assembly has “broad discretion” to legislate the composition and selection of the school boards they create via statute.

“School boards are creatures of the General Assembly,” said Backer, of Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection. “The General Assembly gets to choose.”

He said the Maryland legislature began passing legislation county-by-county to reserve a seat on school boards for students elected by their peers in an effort to encourage civic engagement at a young age, Backer said.

“States are the laboratories of democracy,” Backer told the high court, quoting the late U.S. Supreme Court Justice Louis D. Brandeis. “Let the experiment continue.”

Attorney Mitchell Y. Mirviss, appearing on behalf of former student members of school boards, urged the high court to uphold the “vital and necessary” program that he said has spurred improvements in public education, including the adoption of high school classes in financial literacy and the history of gay rights.

Mirviss is with Venable LLP in Baltimore.

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.

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 in June.

The Court of Appeals is expected to render its decision by Aug. 31 in the case Traci Spiegel et al. v. Board of Education of Howard County, No. 18, September Term 2021.

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