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Md. high court upholds constitutionality of student school board members

Maryland’s counties and Baltimore City may continue having a high school student serve as a voting member on their school boards and enabling non-voting-age pupils to elect that member, the state’s top court unanimously ruled Wednesday in rejecting a constitutional challenge to state laws that established the “student member of board” program.

The General Assembly’s broad constitutional authority under Article VIII Section 1 to establish a public school system includes the power to create local education boards and the manner in which their members are elected or otherwise chosen, the Court of Appeals said in its 7-0 decision.

The legislature’s authority regarding school board members trumps the constitutional requirement in Article 1 Section 1 that voters be at least 18 years old and, in Article 1 Section 12, that those in elected office be registered voters, the court added in rejecting a challenge to Howard County’s SMOB program.

“(T)he plain text of Article VIII Section 1, the historical context in which it was adopted, and almost a century of precedent from this court, all confirm that the General Assembly has broad discretion to control and modify the composition of local boards of education, which includes the creation and selection process of student members as it sees fit,” Judge Steven B. Gould wrote for the Court of Appeals. “That being the case … the General Assembly had the constitutional authority to create a student member for the Howard County board, establish a process for the election of such member by students in the Howard County public school system, and grant such student member voting rights.”

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 SMOB movement view it as providing a practical lesson in civics and citizenship and encouraging youngsters to become voting members of the public. Critics say electing and serving on school boards are community functions too important to be an extracurricular activity for high school students.

“I am disappointed that the court did not address the significance of boards of education holding a position of general governmental power,” said attorney Anthony M. “Tony” Conti, who represented two Howard County public school parents challenging their local SMOB program.

“I believe that boards of education in Maryland are creatures of our constitution, not our legislature,” Conti, of Conti Fenn LLC in Baltimore, added via email Thursday. “The court’s decision makes clear the make-up of local boards, and even their existence, is not entitled to any constitutional protection.”

The Howard County board was represented at the high court by Georgetown University’s Institute for Constitutional Advocacy and Protection, which has praised the General Assembly’s SMOB program for enhancing youngsters’ understanding and appreciation of civic life.

“It’s a win for students,” Joseph Mead, the institute’s senior counsel, said Thursday of the court’s decision.

“This is a policy choice by the state legislature,” Mead added. “There is nothing in the state constitution that prohibits the state legislature from making that choice.”

Attorney Emily J. Wilson, who filed a brief on behalf of former student members, said Thursday that the high court’s decision ensures students will continue to serve on the school boards whose decisions affect them “first and foremost.”

“It (the SMOB program) really works to safeguard the students’ voice,” added Wilson, of Venable LLP in Baltimore.

Wilson was joined on the brief by Venable colleagues Mitchell Y. Mirviss and Elizabeth A. Sines.

The constitutional challenge to Howard County’s program followed the board’s rejection in 2020 – 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.

Parents Traci Spiegel and Kimberly Ford filed suit in December 2020, stating 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.

In March 2021, Howard County Circuit Judge Richard S. Bernhardt said the student’s presence was constitutional and upheld the board’s decision.

Conti, the parents’ attorney, 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.

The Court of Appeals rendered its decision in Traci Spiegel et al. v. Board of Education of Howard County, No. 18, September Term 2021.