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
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.