Lim­its of Ho­gan’s power

Our view: Case law may be murky on whether the gov­er­nor can re­quire a post-La­bor Day school start, but the leg­is­la­ture’s abil­ity to over­ride him is crys­tal clear

Baltimore Sun - - FROM PAGE ONE -

The ex­haus­tive anal­y­sis by At­tor­ney Gen­eral Brian E. Frosh’s of­fice into Gov. Larry Ho­gan’s ex­ec­u­tive or­der man­dat­ing a post-La­bor Day school start reaches no firm con­clu­sion about whether the gov­er­nor’s ac­tion was le­gal for the sim­ple rea­son that no case law bears di­rectly on such a ques­tion. No gov­er­nor has tried some­thing like this be­fore, and for good rea­son. A cen­tury of law, tra­di­tion and prece­dent has sought to sep­a­rate ed­u­ca­tional pol­icy from pol­i­tics to the ex­tent pos­si­ble in Mary­land — a prin­ci­ple that Gov­er­nor Ho­gan’s of­fice be­lieved in as re­cently as this spring, when it fought (quite rightly) against an at­tempt in the Gen­eral Assem­bly to in­ter­fere with the se­lec­tion of a new state schools su­per­in­ten­dent.

A spokesman for the gov­er­nor de­rided the opin­ion as a po­lit­i­cal hatchet job and mocked it as tak­ing 24 pages to reach the con­clu­sion, “I don’t know.” But any­one who both­ers to read it would have to con­clude that it is thor­ough and intellectually hon­est, ac­knowl­edg­ing the ar­gu­ments on both sides of the ques­tion. What the mat­ter essen­tially comes down to is a con­flict be­tween the gov­er­nor’s gen­er­ally broad pow­ers to is­sue or­ders reg­u­lat­ing the con­duct of ex­ec­u­tive agen­cies and the state Board of Ed­u­ca­tion’s sim­i­larly broad power to reg­u­late ed­u­ca­tion pol­icy, as im­ple­mented by lo­cal boards of ed­u­ca­tion. There is no clear line de­mar­cat­ing where one power ends and the other be­gins, but the opin­ion pro­vides good rea­son to sur­mise that Mr. Ho­gan over­stepped his bounds in this case.

Mary­land’s con­sti­tu­tion, state code and case law clearly vest gover­nors with broad au­thor­ity to reg­u­late the af­fairs of the prin­ci­pal ex­ec­u­tive branch de­part­ments. But the state Board of Educ­tion isn’t a prin­ci­pal “ex­ec­u­tive branch” depart­ment; it’s a prin­ci­pal “state govern­ment” depart­ment. That’s a dis­tinc­tion that cor­re­sponds to dif­fer­ent treat­ment un­der state law, which rec­og­nizes the state board as the ar­biter of dis­putes over state ed­u­ca­tion pol­icy and the in­ter­preter of statutes re­lated to ed­u­ca­tion. Inas­much as elected of­fi­cials have a role in set­ting ed­u­ca­tion pol­icy, it is through the gov­er­nor’s power to ap­point mem­bers to the state board and the Gen­eral Assem­bly’s power to leg­is­late. (It is worth not­ing that the state con­sti­tu­tion’s re­quire­ment to pro­vide a “thor­ough and ef­fi­cient sys­tem of free pub­lic schools” falls on the leg­is­la­ture, not the gov­er­nor.)

The ques­tion is whether Mr. Ho­gan’s or­der amounts to ed­u­ca­tion pol­icy or the reg­u­la­tion of state work­ers. The opin­ion ac­knowl­edges both sides of the ar­gu­ment. Mr. Ho­gan’s or­der is couched gen­er­ally in none­d­u­ca­tional terms — it points to the op­por­tu­nity for more fam­ily leisure time, po­ten­tial ben­e­fits to the tourism econ­omy and the lack of air pol­lu­tion from school buses dur­ing times of the year when ground ozone lev­els are high, among other things. But the or­der clearly also has ed­u­ca­tion pol­icy im­pli­ca­tions — re­lated, for ex­am­ple, to the num­ber of in­struc­tional days be­fore stan­dard­ized test­ing is ad­min­is­tered in the spring, the de­gree of sum­mer learn­ing loss and the abil­ity to fit fall se­mes­ter fi­nal ex­ams in be­fore the win­ter break. Gov. Larry Ho­gan holds a copy of his ex­ec­u­tive or­der man­dat­ing a post-La­bor Day school start.

Adam Sny­der, the at­tor­ney gen­eral’s chief coun­sel for opin­ions and ad­vice who wrote the opin­ion, did find a prece­dent from Mary­land ap­pel­late courts that speaks to that ques­tion. A 1986 case from Mont­gomery County cen­tered on whether the school cal­en­dar was an ap­pro­pri­ate mat­ter for col­lec­tive bar­gain­ing. The teach­ers union ar­gued that it should be be­cause it re­lated to “wages, hours and other work­ing con­di­tions,” but the state Board of Ed­u­ca­tion agreed with the lo­cal board that it was a ques­tion of ed­u­ca­tion pol­icy. The Court of Ap­peals sided with the state board, cit­ing a hear­ing of­fi­cer’s ra­tio­nale that the teach­ers’ in­ter­est in the cal­en­dar “was slight when weighed against the in­ter­ests of par­ents, stu­dents, other em­ploy­ees and the smooth op­er­a­tion of the school sys­tem.”

Would the same logic ap­ply in this case? We can’t know for sure. Per­haps the Court of Ap­peals would find a slight boost in Ocean City tourism rev­enue vastly more com­pelling than the views of 23 of Mary­land’s 24 lo­cal boards of ed­u­ca­tion, which chose to open be­fore La­bor Day this year. We doubt it, though. Lo­cal boards that want to re­tain au­ton­omy over their sched­ules could prob­a­bly safely ig­nore the gov­er­nor and let him sue if he wants.

But there’s no rea­son that it should go that far. The leg­is­la­tors who re­quested the opin­ion from Mr. Frosh’s of­fice ac­tu­ally asked two ques­tions, and the sec­ond one — whether the leg­is­la­ture could over­turn Mr. Ho­gan’s or­der — did not re­quire 24 pages of anal­y­sis and con­text. It mer­ited six sen­tences but could be summed up in a word: “yes.” It can and it should. The prin­ci­ple here is whether the gov­er­nor should be dic­tat­ing how Mary­land’s stu­dents are ed­u­cated. With Mr. Ho­gan, it’s the ab­surdly picayune is­sue of school start dates. With a fu­ture gov­er­nor, it could be a ban on sex ed­u­ca­tion or a man­date to teach cre­ation­ism. It’s best to nip that in the bud.

CAITLIN FAW/BAL­TI­MORE SUN

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