Maryland AG Questions Governor's Authority on School Start Time

by | September 20, 2016

By Liz Bowie

Maryland's attorney general believes Gov. Larry Hogan may have exceeded his authority when he issued an executive order this month requiring all public schools to start after Labor Day and finish by June 15.

Several lawmakers had asked the attorney general's office for a ruling after Hogan made his announcement on the Ocean City boardwalk last month. The governor declared that there would be a longer summer break, starting next year, for most school children in the state.

The letter of advice from the attorney general's office was made public Friday evening.

"I cannot say unequivocally that the Labor Day executive order exceeds the governor's authority, but I believe it is likely that a reviewing court, if presented with the issue, would conclude that it does," wrote Adam D. Snyder, a lawyer in the office of Attorney General Brian E. Frosh.

Local school boards and superintendents had criticized the governor's order, saying they would likely have to take away most of spring break to squeeze in 180 school days while complying with his constraints.

The governor's office immediately dismissed the attorney general's advice as political.

"Even by lawyer standards, taking 24 pages to reach a 'I don't know,' is unprecedented," Hogan spokesman Doug Mayer said in a statement. Snyder's "unsolicited prediction of a hypothetical court case seems more politically influenced than an opinion based on legal precedence."

Hogan had argued that Maryland businesses, especially in Ocean City, would profit from the later start date, and that it would give families more time together.

In writing the letter of advice, Snyder said that while the governor has broad power to direct the actions of the executive branch of state government, he does not have the power to direct the state and local school boards, which are independent bodies.

State education laws are generally passed by the General Assembly or proposed by the Maryland State Board of Education as policy and later approved by the legislature.

In addition, Snyder wrote that executive orders should not directly regulate the public, but that in this case the order affects 800,000 students and their parents.

"Delaying the start of the school year until after Labor Day thus seems more like making law than executing it," Snyder wrote.

The Maryland Association of Boards of Education convened a group of attorneys and school board members Monday to look at the legal arguments that supported the right of local school boards to decide their school calendars.

They forwarded those arguments to the attorney general's office, said John Woolums, a spokesman for the association.

The attorney general's advice is likely to throw into disarray the process for deciding next year's school calendar. That planning is taking place this month and next in most of the state's 24 school districts. In addition, the letter opens up the possibility of a court challenge by a local school board or parent.

"Clearly this opinion will inform the work of local school systems and school boards, which may want to take a wait-and-see approach to the legality of the order and what the legislature may do," Woolums said.

In Baltimore County, the school system is putting together two calendars -- one that starts school before Labor Day, and one after. Woolums said other school systems are taking similar action.

The two legislators who sought the advice said they would review it carefully. Sen. Paul Pinsky, a Democrat from Prince George's County, suggested he would urge school systems to plan as though the executive order didn't exist.

"I want to suggest to the 24 superintendents to ignore the executive order," Pinsky said. He said if 24 jurisdictions ignore the order, the governor would then have to decide whether to sue them all.

Del. Anne Kaiser, a Montgomery County Democrat, said that "my understanding is that the law is not on the governor's side, but it is not certain."

Asked whether she thought legislation would be introduced to reverse the executive order or whether legal action would be considered, she said, "I think all the options remain on the table." She said legislators should step back and take a look at everything in the letter.

State lawmakers have voted down proposals to mandate starting school after the September holiday at least twice, saying that the decision was better left to local governments. Kaiser said educators have always made the argument that it was not good for schoolchildren.

The letter "makes clear that the executive order is in the gray zone at best, and likely unlawful," said Sen. Bill Ferguson, a Baltimore Democrat. "But more importantly, it's proof that the governor is putting political gain over good policy and legal execution of the laws."

Mayer, the governor's spokesman, said the letter raised issues of propriety. He said House Speaker Michael E. Busch and other lawmakers have engaged in "partisan lobbying" of the attorney general's office.

"We hope it isn't having undue influence on the ability to render impartial legal analysis," Mayer said. "The attorney general's office has a lot of political opinions and we agree with almost none of them, including this halfhearted one."

Baltimore Sun reporters Erica L. Green and Erin Cox contributed to this article.

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