Kim et al v. Board of Education of Howard County

Filing 42

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/18/2022. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:

LISA M.F. KIM, et al.,

:

v.

:

BOARD OF EDUCATION OF HOWARD
COUNTY

Civil Action No. DKC 21-0655

:
:

MEMORANDUM OPINION
Plaintiffs Lisa M.F. Kim and William F. Holland filed this
action against the Howard County Board of Education (“the Board”)
to challenge the selection process for the Student Member of the
Board.

They

claim

that

the

process

violates

the

Fourteenth

Amendment’s Equal Protection Clause and the First Amendment’s Free
Exercise Clause.

(ECF No. 1).

Mr. Holland is an adult resident

of Howard County whose two children attend Howard County public
schools.

(ECF No. 1, at 3).

Ms. Kim is also a Howard County

resident; she is suing both as an individual and on behalf of her
middle-school-age son, who attends a private Catholic school in
the County.

(ECF No. 1, at 3).

Plaintiffs seek to represent a

class “of all persons in Howard County who are in malapportioned
school-board districts and who are prevented from voting for the
Student Member . . . because they are not students in the Howard
County Public Schools System in grades 6-11.”
2).

(ECF No. 6-1, at

Currently

pending

are

Defendant’s

motion

to

dismiss

Plaintiffs’ complaint, (ECF No. 18), and Plaintiffs’ motion for
class certification. (ECF No. 6).

The issues have been briefed

and the court now rules, no hearing being necessary.
105.6.
because

Local Rule

Because the Student Member is not popularly elected, and
the

Student

Member

statute

is

neutral

applicable, the motion to dismiss will be granted.

and

generally

The motion for

class certification will be denied. 1
I.

Background
Under Maryland law, the Board of Education for Howard County

consists of seven “elected members” and one Student Member.
Code Ann., Educ. § 3-701(a)(1).

Md.

The seven elected members are

chosen through popular votes open to the County’s qualified voters:
Two are chosen at-large by a county-wide vote and the other five

When the Defendant’s motion to dismiss is granted,
Plaintiff’s motion for class certification becomes moot. While a
court must decide class certification issues “[a]t an early
practicable time after a person sues,” F.R.C.P. 23(b)(1), a
defendant may “moot” the class certification issue by moving for—
and obtaining—a favorable decision “before the district judge
decide[s] whether to certify the suit as a class action.” Cowen
v. Bank United of Tex., FSB, 70 F.3d 937, 941 (7th Cir. 1995).
Indeed, federal courts often deny class certification motions as
moot after granting a motion to dismiss. See, e.g., Smallwood v.
Yates, 235 F.Supp.3d 280, 282 (D.D.C. 2017) (“[T]he Court concludes
that it must grant the defendants’ motion to dismiss and thus deny
the plaintiff’s motion [for class certification] as moot.”); Longo
v. Campus Advantage, Inc., 588 F.Supp.3d 1286, 1290 (M.D.Fl. 2022)
(same).
Here, Defendant moved to dismiss (ECF No. 18) before
opposing class certification (ECF No. 19), and it does not ask the
court to decide the class certification motion before granting the
motion to dismiss.
1

2

are chosen by district-wide votes to represent the County’s five
councilmanic districts.

Md. Code, Educ. § 3-701(a)(2).

These

seven elected members are adult County residents who serve twoyear terms and earn taxpayer-funded compensation.
Educ.

§§

Education,

3-701(b)(1);
they

are

3-703(a).

As

vested

the

with

part

of

Md. Code Ann.,
the

authority

Board
to

of

decide

“educational matters that affect the count[y],” Md. Code Ann.,
Educ. § 4-101(a), including issues related to the administration
of the Howard County Public School System, which educates around
60,000 students in 77 schools.

(ECF No. 1, at 2).

The Board’s eighth member—the Student Member—is different.
The Student Member is a “regularly enrolled junior or senior year
student from a Howard County public high school.”
Educ. § 3-701(f)(1).

Md. Code Ann.,

The Student Member serves a one-year term

starting each year in July and receives no compensation.

Md. Code

Ann., Educ. § 3-701(f)(1)-(8). The Student Member holds some power
over the County’s education policy, but the powers are far more
limited than those of the Board’s elected members.

Unlike the

rest of the Board, the Student Member is barred from voting on
certain

issues,

construction,”
property,”

the

including

“budgetary

“[a]cquisition

“donations,”

the

and

matters,”
disposition

“[a]ppointment

and

“school
of

promotion

real
of

staff,” “collective bargaining,” “employee discipline,” “[s]tudent
suspension,” the “consolidation of schools,” “transportation of
3

students,”

and

several

701(f)(7)(i)-(xiv).

others.

Md.

Code

Ann.,

Educ.

§

3-

The Student Member also may not attend a

closed board meeting “addressing a matter on which [the student
member] is prohibited from voting,” unless a majority of the
elected members “affirmative[ly]” invite the student member to do
so.

Md. Code Ann., Educ. § 3-701(f)(6).
The Code contemplates that the process for filling the Student

Member seat be overseen and approved by the Board and that “any
student in grades 6 through 11 enrolled in a Howard County public
school” be allowed to vote to elect the Student Member.
Ann., Educ. § 3-701(f).

Md. Code

Pursuant to the Code, the Board has issued

a policy specifying the procedures through which the Student Member
is to be nominated and elected: through a school-run selection
process that incorporates the preferences of school principals,
school advisors, and certain students.

(ECF No. 1-2).

Any

interested student must apply to his or her school and undergo a
school advisor’s review.
selection

committee

Each school’s principal convenes a

comprised

of

the

principal,

a

student

government advisor, and three students chosen by the principal.
The principal’s committee then reviews student applications and
selects a handful of students to attend a county-wide convention
at which the chosen students vote to narrow the field to two
finalists.

(ECF No. 1-2, at 3).

4

After

the

convention,

the

two

finalists

submit

their

“campaign materials” to school employees, who “arrange[]” for the
students to “view” them.

(ECF No. 1-2, at 4).

Toward the end of

the school year, 6th through 11th grade students throughout the
Howard

County

finalists.

Public

School

System

(ECF No. 1-2, at 2).

vote

between

these

two

Once those votes are tallied,

the Superintendent decides whether to “certify” that the finalist
who

received

the

most

votes

complied

with

all

selection

“procedures” and “rules,” which themselves are created by school
employees “as necessary.”

(ECF No. 1-2, at 4).

The student who

both obtains the most votes and receives the Superintendent’s
certification becomes the Student Member. (ECF No. 1-2, at 4).
Around the same time this suit was filed, a different set of
plaintiffs sued the Board in Maryland state court, alleging that
the

Student

Member

selection

process

violated

the

Maryland

Constitution. Spiegel v. Bd. of Ed. of Howard Cnty., Circuit Court
for Howard County, Case No. C-13-CV-20-000954.
case reached the Court of Appeals of Maryland.

An appeal in that
Noting that the

“decision in that case . . . may well affect the analysis” in this
one, (ECF No. 32), this court stayed proceedings until the Court
of Appeals of Maryland rendered a decision.

(ECF No. 37).

Several

months ago, that court held that “the provisions of section 3-701
of the Education Article concerning the student member position on
the Howard County Board of Education do not run afoul of the
5

Maryland Constitution.”

Spiegel v. Bd. of Ed. of Howard Cnty.,

480 Md. 631, 650 (2022). In reaching that conclusion, the court
reasoned that Maryland law created two classes of Board members,
one called “member” and the other called “student member,” that
the General Assembly chose not to use the general election process
to

select

the

student

member,

discretion in doing so.

and

that

Id. at 643-650.

it

acted

within

its

Both parties have since

filed supplemental briefs addressing the impact of the state court
decision on this case.
II.

(ECF Nos. 40, 41).

Standard of Review
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the

sufficiency of the complaint.

Presley v. City of Charlottesville,

464 F.3d 480, 483 (4th Cir. 2006).

“[T]he district court must

accept as true all well-pleaded allegations and draw all reasonable
factual inferences in plaintiff’s favor.”
F.3d 295, 299 (4th Cir. 2021).

Mays v. Sprinkle, 992

A plaintiff’s complaint need only

satisfy the standard of Fed.R.Civ.P. 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief.”

A Rule 8(a)(2) “showing” still requires

more than “a blanket assertion[] of entitlement to relief,” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007), or “a
formulaic

recitation

of

the

elements

of

a

cause

of

action.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations
omitted).

“A claim has facial plausibility when the plaintiff
6

pleads factual content that allows the court to draw the reasonable
inference that defendant is liable for the misconduct alleged.”
Mays, 992 F.3d at 299-300 (quoting Iqbal, 556 U.S. at 663).
III. Analysis
Plaintiffs claim that the Student Member selection process
violates (1) the Fourteenth Amendment’s Equal Protection Clause
and (2) the First Amendment’s Free Exercise Clause.
A.

Equal Protection Clause

Plaintiffs’ Equal Protection Clause claims fall into two
categories: (1) claims resting on the “one[-]person, one[-]vote”
principle, see Reynolds v. Sims, 377 U.S. 533, 558 (1964), and (2)
claims resting on the Supreme Court’s holding in Bush v. Gore, 531
U.S. 98 (2000).

Plaintiffs fail to state a plausible Equal

Protection Clause claim under either theory.
1.

One-Person, One-Vote

First, Plaintiffs allege that the Student Member selection
process “grant[s] greater voting strength” to students than to
adults

and

that

the

Student

Member

effectively

represents

a

“malapportion[ed]” electoral district comprised of Howard County
public

school

students.

(ECF

No.

1,

at

8-11,

13-14).

As

Plaintiffs later explain in their response to Defendant’s motion
to dismiss, (ECF No. 20-1, at 22-29), these claims rest on the
Fourteenth

Amendment’s

one-person,

one-vote

principle,

which

requires any law creating unequal “voting power” in a popular
7

election to survive “careful judicial scrutiny.”
U.S. at 558, 581.

Reynolds, 377

These claims will be dismissed because one-

person, one-vote applies only to school board members chosen by
popular election, and the Student Member selection process is not
a popular election.
The Constitution does not confer a right to vote for “local
officers” such as county school board members.
Ed. of Kent Cnty., 387 U.S. 105, 108 (1967).

Sailors v. Bd. of
A school board is a

“subordinate . . . instrument[] created by the [s]tate to . . .
carry[] out . . . state governmental function[s],” and a state
“has vast leeway in the management of its internal affairs.”
at 108-09.

Id.

Because a state need not hold a school board election

in the first place, the one-person, one-vote principle applies to
a school board seat only when the state chooses to fill that seat
through a “popular election.”

Hadley v. Junior Coll. Dist. of

Metro. Kan. City, 397 U.S. 50, 56 (1970). 2
In a popular election, a local officer is chosen “by the
people”—that is, by the county’s “qualified voter” base.
55-56.

Id. at

A state or local government may hold a “direct[]” popular

election, see Sailors, 387 U.S. at 109 n.6, in which “all . . .
qualified

voter[s]”

“participate

individually

by

ballot,”

see

See also Vander Linden v. Hodges, 193 F.3d 268, 272, 275
Cir. 1999) (noting the “general rule” that the one-person,
one-vote principle applies to a local office only when a state
holds a “popular election”) (internal quotations omitted).
(4th

2

8

Hadley, 397 U.S. at 54-55, or where the ballot is otherwise open
to “all” such voters “with some exceptions,” see Salyer Land Co.
v. Tulane Lake Basin Water Storage Dist., 410 U.S. 719, 730 (1973).
Or

it

may

hold

an

“indirect[]”

popular

election,

in

which

representatives of the qualified voters choose the local officer
“in accord with the [qualified voters’] expressed preferences.”
See Sailors, 387 U.S. at 109 n.6.
By contrast, if a state or local government does not hold a
popular

election—that

is,

if

a

local

officer

is

effectively

appointed by a governmental entity rather than “the people”—then
one-person, one-vote does not apply.

Id. at 107 n.2, 109 n.6,

111. For example, one-person, one-vote does not apply when a local
officer is appointed by the governor or the legislature.
109.

Id. at

It also does not apply when the government selects a group

of “delegates” who in turn vote to fill the school board seat
themselves.
is

Id. at 109 n.6.

“basically

appointive

This choice-by-state-delegate system
rather

than

elective”

because

the

delegates are not meant to represent the “preferences” of the
county’s qualified voter base, but rather to “carry[] out” the
“state governmental function” of filling the school board.
id. at 106, 109 n.6.
because

the

local

See

Thus, one-person, one-vote does not apply
officer

is

“basically”

selected

by

the

governmental entity (through its chosen delegates) rather than
“the people.”

Id. at 107 n.2, 109 n.6.
9

Here, one-person, one-vote does not apply because the Student
Member is not popularly elected: The two Student Member candidates
are chosen by delegates and the candidate who receives the most
votes from students in grades 6 through 11 enrolled in the public
schools becomes the Student Member.

The Student Member selection

process is not a direct popular election because the Student Member
is not chosen through a vote “open to all . . . qualified voter[s]”
in Howard County, see Hadley, 397 U.S. at 54-55, or to “all” such
voters

“with

some

exceptions,”

see

Salyer,

410

U.S.

at

730.

Rather, certain middle and high school students—nearly all of whom
are not qualified voters—select the Student Member through a
process that is itself tightly controlled by the Board.

The

process is also not an indirect popular election because the
students “need not cast their votes in accord with the expressed
preferences” of Howard County’s qualified voter base. See Sailors,
387 U.S. at 109 n.6.
The Board’s ample control over the selection process likewise
shows that the Student Member is effectively chosen by the Board
rather than “the people.”

While students in certain grades may

eventually vote between two finalists, the Board (through its
school

employees)

handpicks

the

candidates

who

may

become

finalists, chooses the subgroup of students that decides who those
finalists are, controls the distribution of campaign messages, and
decides whether to approve the winner.
10

(ECF No. 1-2, at 3-4).

Indeed, as Plaintiffs themselves assert, school employees “control
every aspect of determining who obtains the nomination for the
Student Member seat.”

(ECF No. 1, at 13).

Far from inviting the

participation of Howard County’s qualified voter base—as popular
elections

generally

require—nearly

all

qualified

voters

are

removed from the selection process and instead near-dispositive
power is vested in Board employees and certain selected students.
That

end-to-end

Board

control

shows

that

the

Board

has

not

relinquished its inherent authority to choose the Student Member.
Rather, it has exercised that authority to create a “basically
appointive” selection system through which the Board’s preferred
delegates choose the Student Member.
In a similar case, the Supreme Court held that one-person,
one-vote does not apply when County school board seats are filled
by delegates chosen by local boards, rather than through a popular
election meant to capture the qualified voter base’s “expressed
preferences.”

See Sailors, 387 U.S. at 106-111.

The Michigan

public educational system included local school districts, whose
boards were elected by popular votes of the residents of the
districts, and a county school board. The five-member county board
was “elected” by delegates from the local districts, with each
district getting one vote, regardless of size or population.

The

Court held that “the principle of ‘one[-]man, one[-]vote’ ha[d] no
relevancy” because filling the county school board was not an
11

election.
popular

Indeed, the selection process was not a “direct[]”
election

because

it

was

open

only

“delegates,” not to a county-wide “popular vote.”
n.1, 109 n.6.

to

the

chosen

Id. at 106, 107

It was also not an “indirect[]” popular election

because the delegates were not bound to vote “in accord with” the
qualified voting base’s preferences.

Id. at 109 n.6.

Thus, even

though the process technically involved an “electorate” comprised
of delegates that “cast . . . votes,” it was still not a “popular
election[]” subject to the one-person, one-vote principle.

Id. at

106, 107 n.2, 109 n.6 (emphasis added).
The same reasoning applies here.

As in Sailors, the state

has chosen to provide for the filling of a county school board
seat without regard for the “expressed preferences” of the county’s
qualified voter base.

As in Sailors, the state has delegated

certain people to participate in a state-controlled selection
process rather than holding a county-wide popular vote.

Thus,

here, as in Sailors, one-person, one-vote does not apply.
Seeking to evade this conclusion, Plaintiffs seem to suggest
that one-person, one-vote applies because the selection process
bears some hallmarks of an “election” as that term is commonly
understood—i.e.,

a

“body

politic”

office.” (ECF No. 41, at 14).

“votes”

to

fill

That is irrelevant.

“higher

Thus, Plaintiffs argue, the process

fits the “[d]ictionary defin[ition]” of an election.
13-14).

a

(ECF 41, at

That a selection process might be
12

called an “election” in common parlance does not mean that it is
a “popular election” subject to one-person, one-vote, as defined
by Supreme Court precedent.
Sailors

would

no

doubt

meet

Indeed, the selection process in
any

dictionary’s

definition

of

“election”—it involved an “electorate” that “cast . . . votes.”
387 U.S. at 109 n.6.

But the Supreme Court still held that one-

person, one-vote did not apply.

Id. at 109 n.6.

Plaintiffs argue that the Student Member selection process is
more

like

the

electoral

process

that

the

Supreme

Court

held

unconstitutional in Kramer v. Union Free Sch. Dist. No. 15, 397
U.S. 621 (1969).

(ECF No. 41, at 8-10).

That comparison is inapt.

In Kramer, a city chose its entire school board through a “popular
vote”

open

to

all

residents

who

were

“qualified

by

age

and

citizenship” to vote in other state elections, but it created
“additional

requirements”

related

to

property

ownership

excluded “some otherwise qualified” voters from the ballot.
U.S. at 625-26, 627 n.7.

that
397

The Court held that the city violated

the Equal Protection Clause because “the school board positions
[were] filled by [an] election” in which “some otherwise qualified
city electors [were] precluded from voting.”

Id. at 627 n.7.

Thus, while Sailors held that one-person, one-vote does not
apply when a state forgoes a popular election in favor of a choiceby-state-delegate system, Kramer clarified that once a state does
hold an election open to its qualified voters more broadly, it
13

cannot exclude “some” of those voters from the ballot, see 397
U.S. at 627 n.7.

As the Supreme Court explained a few years later,

one-person, one-vote applied in Kramer because the state had
“opened the franchise to all [qualified voters] . . . with some
exceptions.”

See Salyer, 410 U.S. at 730 (citing Kramer, 397 U.S.

at 632-33).
This case is different: Howard County does not choose the
Student Member through a “popular vote” open to all qualified
Howard County voters with some exceptions.

Rather, state law has

provided for a selection process through which chosen delegates—
certain students—decide the Student Member.

Indeed, unlike in

Kramer, where most qualified voters were “franchised” while only
“some” were excluded, 397 U.S. at 627 n.7, Maryland has delegated
selection power to a group comprised almost entirely of people who
are

not

otherwise

qualified

to

vote:

6th

through

11th

grade

students.
Plaintiffs highlight the fact that the selection process is
open to a few people who are qualified voters: any 18-year-old 11th
graders who are “held a grade . . . behind” or who joined local
schools “after living in another country.”

(ECF No. 20-1, at 26).

But the Supreme Court has never held that one-person, one-vote
applies to a choice-by-state-delegate system in which the group of
delegates happens to include some qualified county voters. Indeed,
if that were true, the Court likely would have reached a different
14

result in Sailors.

There, the delegates who chose the county-wide

school board were selected from “local school boards” across the
county.

387 U.S. at 106.

Because those delegates already held

county government positions, it is possible—perhaps likely—that
they were qualified county voters themselves.
correctly

points

out,

the

Court

never

Yet, as Defendant

analyzed

whether

the

delegates resided in the county or were qualified to vote there.
(ECF No. 22, at 10). 3 Thus, when the so-called “electorate” tasked
with choosing a local officer includes only a narrow pool of statechosen delegates, as in Sailors, and not the county’s entire
“qualified voter” base with some exceptions, as in Kramer, a
delegate’s status as a qualified voter is not relevant in deciding
whether one-person, one-vote applies. 4
See also Butts v. Aultman, No. 4:18CV001-NBB-JMV, 2018 WL
6729987, at *4 (N.D.Miss. Dec. 21, 2018) (“The Court in Sailors
did not analyze the residency of the appointed members to determine
whether the structure of the board was one[-]person, one[-]vote
compliant.”), aff’d, 953 F.3d 353 (5th Cir. 2020).
3

Several federal courts have also held that one-person, onevote does not apply when a state delegates selection power to a
group of citizens that happens to include some qualified voters.
See Benner v. Oswald, 444 F.Supp. 545, 560-61 (M.D.Pa. 1978) (oneperson, one-vote did not apply when a public university trustee
was chosen by a vote of 14,000 school alumni across the state
because the state did not open the vote to all or most people
within “a certain geographical district who were otherwise
qualified to vote in a general election”), aff’d, 592 F.2d 174,
183 (3d Cir. 1979) (affirming that the alumni vote was not “a
general public election”); Bradley v. Work, 916 F.Supp. 1446, 1456
(S.D.Ind. 1996) (one-person, one-vote did not apply when a county
judicial nomination commission was chosen by a vote of licensed
attorneys in the county because the vote was not “a popular
4

15

The recent decision of the Court of Appeals of Maryland
upholding the Student Member statute against a challenge under the
Maryland

constitution

also

supports

this

result

and

renders

irrelevant Plaintiffs’ argument that some state statutes, state
documents, and state employees have called the Student Member an
“elected” official.

(ECF No. 20-1, at 14-17).

In Spiegel, the

court held that the Student Member is not an elected official under
the Maryland constitution.

480 Md. at 643-45.

In so holding, the

court relied on and applied federal precedent: It noted that the
federal constitution permits a state to choose school board members
without holding a “popular election.”
(quoting Hadley, 397 U.S. at 58-59).

Spiegel, 480 Md. at 644-45
The court thus reasoned that

Maryland did not violate “constitutional protections of voting
rights” because the state chose “not to use the general election
process to select the student member,” “as expressly permitted by”
Supreme

Court

precedent.

Id.

“A

State’s

highest

unquestionably the ultimate expositor of state law.”
Kennedy, 553 U.S. 406, 425 (2008) (cleaned up).

court

is

Riley v.

Thus, it does not

now matter what state lawmakers and employees called the Student
Member before the Court of Appeals weighed in.

Assuming it is

relevant under the federal constitution whether a local official
is considered “elected” under state law, Maryland has decided that
election,” which generally occurs where “all registered voters
meeting the age and residency requirements may vote”).
16

the Student Member is “not . . . elect[ed].”

Spiegel, 480 Md. at

644-45.
Plaintiffs are also wrong to argue that one-person, one-vote
applies to the Student Member simply because the school board’s
other seven members are elected.

Indeed, the Constitution permits

a school board with “combined . . . elective and appointive
systems.”

Sailors, 387 U.S. at 111.

And when a state adopts this

“blended school board structure,” “Supreme Court precedent does
not compel the court to scrutinize the relative power” of the
elected and non-elected seats.
360 (5th Cir. 2020).

Butts v. Aultman, 953 F.3d 353,

Rather, the elected members must be chosen

through a process compliant with one-person, one-vote, while the
appointed members need not be.

Id.

Plaintiffs do not allege that the elected school board members
are chosen in a way that violates one-person, one-vote.

Rather,

they claim that the Student Member’s addition to the board causes
malapportionment by giving students more “representation” than
adults.

(ECF No. 1, at 13-14).

But a local official who is not

popularly elected does not “represent” anyone—rather, the official
is “basically appoint[ed]” by the governmental entity.
387 U.S. at 109.

Sailors,

And because “the voters d[id] not select” the

official, it is unclear which voters the official “is supposed to
represent” in the first place.

See Cunningham v. Municipality of

Metro. Seattle, 751 F.Supp. 885, 894 (W.D.Wash. 1990).
17

Thus, a

non-elected member “should not be counted” in deciding whether a
school board over-represents certain voters.

See Butts, 953 F.3d

at 360 (internal quotation omitted). 5
Nor are Plaintiffs right that granting the Board’s motion to
dismiss would make it easier for states to engage in invidious
discrimination against disfavored voters, (see ECF No. 20-1, at
18-19), as Texas once did in the White Primary Cases.
Nixon v. Herndon, 273 U.S. 536, 540 (1927).

See, e.g.,

The popular election

requirement is merely a prerequisite for a one-person, one-vote
Even

claim—it is not a hurdle to other constitutional claims. 6

when a state forgoes a popular election, it still “cannot . . .
manipulate” its political rules “so as to defeat a federally
protected right.”
A

selection

Sailors, 387 U.S. at 108.
process

that

discriminates

based

on

an

impermissible factor can be challenged under the Constitution
whether or not a popular election occurred.

Indeed, in a case

where a state created an appointive school board system for the
Cf. Fahey v. Laxalt, 313 F.Supp. 417 (D.Nev. 1970) (3-judge
court) (holding that a school board violated one-person, one-vote
because the board’s six elected members represented unequal
constituencies, and not considering the board’s two non-elected
members in the one-person, one-vote analysis).
5

See also Butts, 2018 WL 6729987, at *4 (“Sailors and its
progeny do not stand for the position that appointive systems
‘automatically’ pass muster under all federal laws–simply that
they do not implicate one[-]person, one[-]vote . . . [such a]
system conceivably could run afoul of constitutional principles
if, say, a plaintiff could establish . . . an impermissible
discriminatory purpose, for example, racial animus.”).
6

18

alleged purpose of diluting Black voting power, the United States
Court

of

Appeals

for

the

Fourth

Circuit

applied

the

Protection Clause to examine the system’s constitutionality.

Equal
See

Irby v. Va. State Bd. of Elections, 889 F.2d 1352 (4th Cir. 1989).
2.

Bush v. Gore

Plaintiffs also raise an Equal Protection Clause claim based
on Bush v. Gore, 531 U.S. 98 (2000).

They contend that “Bush v.

Gore instructs that . . . whatever action constitutes a fully
effective vote for one voter in one part of a jurisdiction must
likewise fully effectuate a vote for another voter in that same
jurisdiction.”

(ECF No. 20-1, at 13).

Thus, they argue, the

statute here violates the Equal Protection clause because the
Student Member selection process is “vastly different” than the
election procedures for the elected school board members.

ECF No.

20-1, at 10). 7
Bush v. Gore does not apply here.

That case involved “the

special instance of a statewide recount under the authority of a

Plaintiffs do not mention Bush v. Gore in their complaint—
they merely allege that the Equal Protection Clause has been
violated because “County Employees Control [the] Nomination
Process of an Elected Official” and the “Student Member Election
Procedures Are Contrary to State Election Statutes,” without
specifically articulating to which Equal Protection Clause
precedents those allegations relate. (ECF No. 1, at 11-13). In
their response to Defendant’s motion to dismiss, Plaintiffs
clarify that these allegations are meant to show that the County
has created “differing election procedures” in violation of the
rule set out in Bush v. Gore. (ECF No. 20-1, at 10, 12-13).
7

19

single state judicial officer” within a state whose electors would
decide a contested presidential election.

531 U.S. at 109.

In

that unique context, the Court reasoned that the Equal Protection
Clause

requires

some

“recount procedures.”

“rudimentary”
Id.

“uniformity”

in

statewide

The Court also clarified that its

holding was “limited to the present circumstances” because “the
problem

of

equal

protection

presents many complexities.”

in
Id.

election

processes

generally

And it reaffirmed that, to

address those complexities, “local entities . . . may develop
different systems for implementing elections.”

Id.

That is what Howard County has done: It has implemented a
“different system[]” for choosing the Student Member than the
system used for choosing the rest of the Board.

It makes sense

that the Student Member is chosen differently because the student
member’s role differs from that of other Board members in numerous
ways: The student member is paid less, has far less authority,
attends fewer meetings, and serves a shorter term, just to name a
few.

See Md. Code Ann., Educ. § 3-701.

Adopting Plaintiffs’

position would require extending Bush’s “uniformity” principle
beyond its unique facts to a new context—and that is exactly what
the Court instructed lower courts not to do when it “limited” its
holding to that case’s “special . . . circumstances.”

Id.

An en banc panel of the United States Court of Appeals for
the Fourth Circuit recently read Bush the same way.
20

See Wise v.

Circosta, 978 F.3d 93, 100 n.7 (4th Cir. 2020) (en banc).

In Wise,

the

“limited

Fourth

Circuit

precedential

value”

explained

that

because

the

Bush

v.

Court

has

cabined

its

“consideration . . . to the . . . circumstances” before it.

Id.

(quoting Bush, 531 U.S. at 109).

Supreme

Gore

The Fourth Circuit noted it would

“treat[] [Bush] as binding” so that it could deny an injunction
requested by a party raising a Bush v. Gore claim.
n.7, 103 (emphasis added).

See id. at 100

Several other federal courts have

likewise either questioned Bush’s precedential value or refused to
extend it beyond its facts.
317

(5th

Cir.

precedential

2020)
value”

See LULAC v. Abbott, 951 F.3d 311,

(questioning
given

the

whether
Supreme

“Bush

v.

Court’s

Gore

has

“express

pronouncement” that its “consideration was limited to the present
circumstances”) (cleaned up); Stein v. Thomas, 672 Fed.App’x 565,
569 (6th Cir. 2016) (calling Bush v. Gore “non-precedential”);
Wyatt v. Dretke, 165 Fed.App’x. 335, 340 (5th Cir. 2006) (“[O]n its
face, the Bush v. Gore holding is limited to the facts at issue
there—the 2000 presidential election.”). 8

At best, Bush applies

only in “special . . . circumstances” not present in this case.

See also United States v. Nosal, 844 F.3d 1024, 1053 n.8
(9th Cir. 2016) (Reinhardt, J., dissenting on other grounds)
(calling Bush v. Gore “a ticket for one train only”) (quoting Linda
Greenhouse, Thinking About The Supreme Court After Bush v. Gore,
35 Ind. L. Rev. 435, 436 (2002)).
8

21

531 U.S. at 109.

Thus, Plaintiffs’ claim based on Bush v. Gore

will be dismissed.
B.

Free Exercise

Plaintiffs argue that the Student Member selection process
violates the First Amendment’s Free Exercise Clause because it
bars certain students from voting for the Student Member “solely
because they attend a religious school or are homeschooled for
religious reasons.”

(ECF No. 1, at 15).

This claim will be

dismissed because Plaintiffs have not plausibly alleged that the
Student Member statute burdens religion—and even if it did, the
law is neutral and generally applicable.
As an initial matter, the Free Exercise Clause does not apply
when the government does not “burden[] . . . religious exercise.”
Fulton v. City of Philadelphia, 141 S.Ct. 1868, 1876 (2021).
government

burdens

religious

exercise

when

it

The

directly

“prohibit[s]” or “penal[izes]” religious conduct, see Carson v.
Makin, 142 S.Ct. 1987, 1996 (2022) (internal citations omitted)—
for example, if it “prohibit[s] bowing down before a golden calf,”
see Emp’t Div., Dept. of Human Res. of Ore. v. Smith, 494 U.S.
872, 878 (1990). The government can also burden religious exercise
if it “indirect[ly] coerc[es]” someone into forgoing religious
conduct to obtain a desirable public benefit, see Carson, 142 S.Ct.
at 1996 (internal citations omitted)—for example, if it forces a
church to “renounce its religious character” to qualify for public
22

funds, see Trinity Lutheran Church of Columbia, Inc. v. Comer, 137
S.Ct. 2012, 2024 (2017).
Here, the structure of the Howard County Board of Education
and its Student Member does neither.

It does not prohibit or

penalize religious conduct because it does not bar students from
attending religious schools or punish them for doing so. And while
Plaintiffs argue that the Student Member statute coerces religious
students to “forego their religious education and enroll in [public
school],” (ECF No. 20-1, at 31), it is unclear how it could do so.
Indeed,

nothing

about

the

Student

Member’s

mere

existence

encourages a religious student to choose public school over private
school.
Plaintiffs allege that religious students have an interest in
choosing the Student Member because they “are affected by decisions
of the [Howard County School] Board, such as the transportation of
Catholic school students on school busses operated by the Board.”
(ECF No. 1, at 15).

It may well be true that the elected members

of the School Board sometimes make decisions affecting private
school students.

But the Student Member wields no such power—the

student member is statutorily barred from voting on nearly every
issue that has ramifications outside the public school system (and
even on most issues that are impactful within that system).
Code Ann., Educ. § 3-701(f)(7).

Md.

For instance, while Plaintiffs

allege that the Board makes transportation decisions, the Student
23

Member may not vote on matters related to the “transportation of
students.”
member

Md. Code Ann., Educ. § 3-701(f)(7)(vi).

also

cannot

vote

on

“school

The student

construction,”

the

“[a]cquisition and disposition of real property,” “donations,”
“budgetary

matters,”

“[a]ppointment

and

promotion

of

staff,”

“collective bargaining,” and more than a dozen other issues.

Md.

Code Ann., Educ. § 3-701(f)(7)(i)-(xiv).
Moreover, even if this statute did burden religious exercise,
a law that “incidentally burden[s] religion” does not violate the
Free Exercise Clause if it is “neutral and generally applicable.”
Fulton, 141 S.Ct. at 1876. 9 Indeed, the Fourth Circuit has reasoned
that “generally applicable and religion-neutral laws virtually
never

violate

the

Free

Exercise

Clause.”

Brzonkala

v.

Va.

Polytechnic Inst. and State Univ., 169 F.3d 820, 881 (4th Cir.
1999) (en banc).

This law is no exception.

Plaintiffs argue that this law does not create an
“incidental burden” because “[t]he denial of the right to vote has
never been described in the history of this country as an
‘incidental burden.’”
(ECF No. 20-1, at 31).
That argument
misunderstands the case law. The incidental burden inquiry asks
whether penalizing religious exercise is “the object of the [law]”
or a mere “incidental effect.” See Smith, 494 U.S. at 878. Thus,
the question is whether the law was intended to burden religion—
and Plaintiffs do not allege that the Student Member statute was
intended to do so.
What is more, the Free Exercise Clause is
concerned with whether a law incidentally burdens religion, not
voting rights. Id. Of course, as explained above, this statute
does not burden voting rights either.
9

24

First, the Student Member statute is neutral.

A law is

neutral if it operates “without regard to whether . . . conduct is
religiously motivated or not.”
F.3d 353, 357 (4th Cir. 1998).

Hines v. S.C. Dept. of Corr., 148
That is true here: The Student

Member statute is neutral because it operates “without regard” for
any student’s or parent’s religious motivations.
at 357.

Hines, 148 F.3d

The law is concerned not with why a student attends a

certain school but with whether the student attends a school within
the Student Member’s jurisdiction.

If the student does, he or she

may help select the Student Member.
or she may not.

If the student does not, he

Religious beliefs are irrelevant.

Second, the Student Member statute is generally applicable.
A statute is generally applicable if it applies the same “acrossthe-board” standard to all people within its scope.
U.S. at 884.

Smith, 494

Meanwhile, a law is not generally applicable if it

creates “a system of individual exemptions,” such as by exempting
certain people from statutory requirements for “good cause” or at
a state official’s “sole discretion.” Fulton, 141 S.Ct. at 1877778.

No such exemptions exist here.

students

participate

and

private

Rather, public school

school

students

regardless of the type of private school they attend.

do

not,

Thus, the

Student Member statute is both neutral and generally applicable,
and whatever incidental burden it may place on religion does not
render it unconstitutional.
25

Resisting this conclusion, Plaintiffs compare this case to
two recent Supreme Court cases involving religious exclusions from
state funding programs: Trinity Lutheran v. Comer, 137 S.Ct. 2012
(2017), and Espinoza v. Mont. Dep’t of Revenue, 140 S.Ct. 2246
(2020).

That comparison is inapt.

In each of those cases, a state

created a public grant program through which qualified applicants
could obtain government funds, but it explicitly barred those funds
from being used by religious entities or for religious purposes.
Trinity Lutheran, 137 S.Ct. at 2021; Espinoza, 140 S.Ct. at 2260.
The laws at issue in those cases violated the Free Exercise Clause
because

they

“expressly

religio[n]”—that

is,

discriminate[d]

they

“disqualif[ied]

on

the

basis

otherwise

of

eligible

[funding] recipients from a public benefit solely because of their
religious character.”

Espinoza, 140 S.Ct. at 2255, 2262 (quoting

Trinity Lutheran, 137 S.Ct. at 2021). But here, the Student Member
statute does not “expressly discriminate” on the basis of religion—
indeed, the law does not even mention religion.

Simply put,

Plaintiffs are not excluded from the Student Member selection
process “solely” (or at all) because of their religious beliefs—
rather,

they

are

excluded

because

they

do

not

attend

public

schools.
At its core, Plaintiffs’ claim seems to rest on the assertion
that the Free Exercise Clause bars a state from opening a program
to

public

schools

and

not

private
26

ones

because

doing

so

discriminates against “religious choices in education.”
20-1, at 30).

(ECF No.

But the Supreme Court has never said that a state

must treat public and private schools identically, or that the
Free Exercise Clause bars a state from differentiating between the
two.

Much the opposite: Just this year, the Court noted that

public and private schools “are different by definition” and that
a “‘a State need not subsidize private education.’”

Carson, 142

S.Ct. at 1997, 1999 (quoting Espinoza, 140 S.Ct. at 2255).

Thus,

a Free Exercise issue arises not when a state opens a program only
to its “public school system,” but when it provides benefits to
“private secular [schools]” and not similarly-situated “private
religious schools.”

Id. at 1994, 1999, 2000 (emphasis added).

Nothing like that has happened here.
C. Conclusion
Because the Student Member is not popularly elected, and
because

the

Student

Member

statute

is

neutral

and

generally

applicable, all of Plaintiffs’ claims fail and the motion to
dismiss will be granted.

/s/
DEBORAH K. CHASANOW
United States District Judge

27