A lawsuit filed by two Howard County parents that challenged the voting rights of the school board’s student member failed in Howard County Circuit Court.
Judge Richard S. Bernhardt wrote in his opinion that the student member position is not in violation of the Maryland constitution.
“It is not for this court to determine whether it is prudent to have students with voting power on boards of education. Rather, this court merely must determine whether it is legal,” Bernhardt wrote in his 18-page opinion filed on Thursday.
“The court finds that the General Assembly’s decision to create a selection process whereby students choose the student member of the board is not violative of the Maryland constitution,” he later wrote.
The lawsuit, filed in mid-December by Howard County Public School System parents Traci Spiegel and Kimberly Ford, argued that giving a high school student the right to vote on school board decisions violates Maryland’s constitution because that member is not 18 years old and is not eligible to vote in elections or to hold an elected office.
Ford wrote in an email Friday that she and Spiegel are “incredibly disappointed” by the judge’s decision.
“The dysfunction of gridlock votes by an eight-member board may continue to fail our children,” she wrote. “We have never wanted to stifle a student voice, but we still do not believe an unelected minor should be voting on $1 billion dollar budgetary decisions.”
Howard County school board Chairperson Chao Wu praised Bernhardt’s decision, saying the student member performs a “crucial role” for the school board.
“The Board of Education has operated with the firm belief that our student member of the board position is in compliance with the law, and it is gratifying to have that vindicated,” Wu wrote in an email Friday. “I believe it is important to listen to our students’ voices on issues that impact them directly.”
Tony Conti, the lawyer representing the parents, said he plans to appeal the decision because he believes Bernhardt “felt constrained” by what the General Assembly has decided in regards to minors holding office.
“While we are disappointed in the court’s decision, we are not surprised,” wrote Conti in an email. “... Our only hope is that the Court of Appeals will recognize the urgency and decide the case before our children lose out on another year of education.”
Eighteen of the 25 Maryland school boards don’t allow students to vote. However, most school boards in the Baltimore region, including the state board, have one student member who can vote on most topics.
The student — a junior or senior — is chosen by middle and high school students and serves a one-year term. In Howard, the student member can vote on most topics except those involving redistricting, personnel, legal issues, the budget and “other restricted matters,” according to the school system’s website. Howard High School senior Zach Koung is the board’s 2020-21 student member.
Bernhardt wrote that the parents’ arguments fail because the student member is not an “elected position,” as defined by the General Assembly, and is subject to provisions that are “uncharacteristic of elections,” such as the requirement for the student to be a junior or senior and the selection process occurring on a different schedule than the normal electoral cycle.
“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 challenges,” he wrote in his opinion after he granted the board’s request for summary judgment, which led to a court decision without a trial.
Therefore, since Bernhardt determined the student member isn’t elected, the argument over the member’s age isn’t valid since no age requirement exists for “nonelected members” in the Maryland constitution or state law.
While the board won the lawsuit, Bernhardt didn’t agree with its argument that the student member is an “appointed position,” which is the other classification, aside from “elected position,” that the General Assembly has defined for school board members. Instead, he believes the student member is “occupying its own role” separate from what is explicitly defined in state law.
“The court finds that the General Assembly intended to create a third method of selection, specific to student members, whereby students hold the position and are selected in some fashion by other students,” he later wrote.
The impetus for the lawsuit, which had its virtual court hearing on March 16, was a number of tied votes by the Howard County Board of Education last fall regarding the school reopening process amid the coronavirus pandemic. In November and December, the board tied on multiple votes that could have led to an earlier return of students to classrooms. Koung voted against the motions.
Following the votes, some on social media — mostly in community Facebook groups — criticized the board’s student member, which prompted school system Superintendent Michael Martirano to speak out against the online “bullying” of Koung.
“The student member of the board position provides critical advocacy for all students as part of the elected decision-making body of the school system,” wrote Martirano in an email Friday in response to the court’s decision. “I have been extremely impressed by the value that our student members provide in informing the functions and decisions of school system leadership.”
In January, then-newly appointed Del. Reid Novotny introduced legislation in the General Assembly to strip student school board members in Maryland of their vote if it is a “deciding vote” on a motion. He said he filed the legislation to end the “gridlock” happening with the Howard County school board. However, the bill died in committee last month.
A month later, 128 former student school board members in Maryland weighed in on the lawsuit in an amicus brief submitted to the court, saying it the lawsuit is an “egregious attack” on student representation.
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The brief, filed by Washington, D.C.-based law firm Venable LLP in hopes of influencing the court’s decision, argued the lawsuit was invalid because the student member is not elected, which was the same reasoning Bernhardt used in his opinion Thursday.
“What this affirms is the role of the student member in Howard County is alive and well and is constitutional under the Maryland constitution,” said Emily Wilson, one of Venable’s lawyers who filed the amicus brief.
“... People in the community are sometimes dissatisfied with actions that their boards of education take collectively. When they’re unhappy with those decisions, they go to who they perceive [is] the weakest member of the board, which is the student. It’s really quite counterintuitive to my clients, because if there’s anybody we should be listening to and respecting their opinion, it’s the student member who represents the best interests of students.”
The list of former student members included people who have served on boards all across the state since 1975 — including Baltimore County Executive Johnny Olszewski Jr., who served as Baltimore County’s student member in 1999-2000, and Wilde Lake High School Principal Marcy Leonard, who was Howard County’s first student member in 1988-89.
The top amicus — the legal term used for the person filing the brief — was Anthony Clark Arend, who was the state’s first student board member to have voting rights when he served in the role for the Anne Arundel Board of Education in the 1975-76 school year.
Arend, who also testified in front of the House of Delegates Ways and Means committee against Novotny’s bill, commended Bernhardt’s opinion and said the court’s decision is “very important.”
“The student sees the side of education that nobody else sees,” said Arend, who is chair of Georgetown University’s Department of Government. “He or she is behind a desk every day in the classroom, and the reason you’d want to have a student on the Board of Education is because of this perspective.”