Yeager, Amanda, Democrats push through changes to school board nominations, Capital, March 11, 2016.
Snider Comment & Reply Comment
The next step should be a 14th Amendment Equal Protection lawsuit in federal district court to uphold the principle of one-person, one-vote in general purpose elections such as school board elections. Until now, no one had an incentive to bring an equal protection lawsuit against the democratic (small “d”) travesty represented by the SBNC, which subcontracts democracy to private interest groups. There are many types of public bodies, especially advisory and highly specialized ones, where such subcontracting is okay. The SBNC is indeed a borderline case, but especially with the proposed amendments it’s moving farther across the border.
The big question is: will anyone have an incentive to seek an injunction, assuming that the law as it is presently written passes the Maryland General Assembly? The culture in our legislature and press and even among the public is to treat the law as a joke unless someone has both the means and incentive to enforce it. Now that someone might have that incentive, the debate over school board governance could quickly take a very different turn–one more in keeping with the core democratic norm of political equality as embodied in the 14th Amendment.
@Snider The problem with an Equal Protection lawsuit is that it is likely the proposed statute relates to an administrative body, the School Board. It would only have to pass muster under rational basis, not strict scrutiny. The proponents will argue there was a rational basis, to promote diversity. That would likely prevail.
The only real solution to the blatant power grab here is to keep fighting for an elected school board. This is just another example where my fellow Democrats are more interested in thumbing their noses at parents who want to see accountable real representation on the School Board.
Reply Comment #1
@steveholcomb1 I would like to make five observations in response to your generally sound legal argument.
First, an election would indeed generally cure any equal protection defects (although under the Civil Rights Act of 1964 there are some notable exceptions that could apply to an elected school board).
Second, the school board is not a purely administrative entity. All candidates nominated by the governor must be subject to a retention election administered by the Board of Elections. Despite popular parlance that our current school board is an appointed body, legislative leaders in 2007 claimed they were creating an elected body because of their novel retention election addition to the previous conventional appointment process. School board members have publicly described themselves as elected, not appointed.
Third, even appointment to administrative bodies has significant constitutional limitations. For example, at a federal level, only the president, not Congress, is allowed to appoint. When Congress has tried to do the nominations, the courts have struck this down. Similarly, Congress cannot delegate the appointment power to a private party.
Fourth, a school board is not just any type of public body; the courts have held it to be a general purpose public body. Here the equal protection argument and strict scrutiny would apply. When a fundamental democratic right is at stake (such as political equality), strict scrutiny does apply.
Fifth, a wild card is that the Anne Arundel AACPS electoral system is unique among the more than 14,000 public school systems in the U.S. No court cases specifically deal with its novel mix of electoral ingredients.
For more detail on the Baker v. Carr line of court cases as applied to local governments, see eLighthouse.info.
@Snider I like your arguments, but for the fact that a federal district court in Maryland has already determined that there is no fundamental right to a certain type of school board. See http://law.justia.com/cases/federal/district-courts/FSupp/477/959/1418327/
Therefore, it is at least doubtful that strict scrutiny would apply.
My point is that there is no guarantee that a federal lawsuit would be successful. If anything, it would be expensive and would be defended on the other side by State resources. That being the case, this really is a matter to be resolved in the General Assembly, not the courts (state or federal).
Reply Comment #2
@steveholcomb1 I agree that there is no guarantee that a lawsuit would be successful. But absolute certainty in a constitutional law case is setting a very high bar.
I disagree that the case you cite, Welch v. Board of Education of Baltimore City, is apt here. The facts in that case involved a board appointed by duly elected officials, which is the way appointed school boards have traditionally been appointed. Here the fact case would involve a board largely appointed by non-government interest group. Plus, there is a retention election. That’s a very, very different situation.
Imagine if Congress delegated its duties to Big Labor and Big Business. The Supreme Court would never agree to that, as it would be recognized as a corruption of representative government.
Two cases that I believe would be much more apt are Kramer v Union Free School District No. 15 and Fumarolo v Chicago Board of Education. In Kramer, for example, the court invalidated the Chicago School Reform Act, which provided for the creation of local school councils in the Chicago school system. Each council was to consist of ten members, with parents of children enrolled in the local school to elect six of their number, community residents to elect two residents, and local school teachers to elect two teachers. In invalidating the exclusion of non-parent residents from the electorate for most council seats, the Illinois Supreme Court determined that the councils’ role in local education mandated the application of strict scrutiny.
I’m not saying that these school board cases are perfectly apt, but I think they are closer to the mark than Welch v. Board of Education of Baltimore City.
@Snider Welch v Board of Education of Baltimore County cites Sailors v. Board of Education of Kent County. There, the U.S. Supreme Court held that “There is no constitutional reason why nonlegislative state or local officials may not be chosen otherwise than by elections. The functions of appellee school board are essentially administrative, and the elective-appointive system used to select its members is well within the State’s latitude in the selection of such officials. Pp. 387 U. S. 107-111.”
My guess is that, like most legislation, Speaker Busch already vetted his change in the Nominating Commission for constitutionality with the Attorney General’s Office of Maryland. I just respectfully disagree with your argument that litigation is a solution here.
(Of course, the real problem is that Busch and Miller have instituted one of the most gerrymandered states in the nation. Until the composition of the county delegation changes, apparently, the county school board will remain a pawn of a select few, and not the voters of Anne Arundel County).
Reply Comment #3
@steveholcomb1 Some years ago I checked into that question regarding the legal vetting of the SBNC and was told that if it happened, it didn’t happen in writing. Remember that passing the SBNC was a rush job in 2007. The bill creating it was a slapdash affair that has required numerous AG opinions just to figure out what was originally intended. After failing to locate a written opinion, I asked a General Assembly delegate to request a legal opinion, which she did. The result was a political hack job–an embarrassment for an agency that purports to provide impartial legal advice. Your questions, for example, are much more sophisticated than the questions asked there.
A critical point regarding the case you cite is the date: early 1967. This line of equal protection cases was launched by Reynolds v. Sims (1965), which applied Baker v. Carr (1962) equal protection principles to state government. The court’s position apparently evolved regarding conceptualizing the nature of a school board, and the cases I cited were from later: 1969 and 1990. I agree that a school board is an intermediate case between a strictly administrative agency and a legislative entity created via a constitutional home rule provision. The tendency, as I understand it, has been to treat it more like a county council than, say, a liquor or cemetery board. Alas, my election law textbooks are several decades out of date, so I cannot tell you the present status of the law. But if you’re interested in pursuing this line of cases, I’d recommend a textbook like Election Law by Lowenstein and Hasen.
Cited Legal Cases
A Maryland case finding that the equal protection requirement doesn’t apply to appointed school boards.
A Federal case finding that strict scrutiny doesn’t apply to school boards.
Applies the equal protection requirement to state legislatures.
Avery v. Midland County (1968) (see also Wikipedia entry; this case would have been more relevant than Reynolds v. Sims to cite in my reply comment above because Reynold v. Sims related to state gov. whereas Avery v. Midland County relates to local gov.)
Applies the equal protection requirement to local governments.
Applies the equal protection requirement to school boards.
Applies the equal protection principle to school boards.