By Barry Rascovar
Sept. 26, 2016 – Does Gov. Larry Hogan, Jr. have the power to issue an executive order mandating when the school year begins and ends? It’s not the most pressing question facing Maryland – but the answer could have a dramatic impact on the state’s future governance.
Indeed, there’s an urgent need for someone on either side of this issue to take the matter to court. A constitutional question of enormous consequence is at stake.
Hogan’s claim to executive powers over local school systems appears shaky. They are not part of the executive branch.Similarly, the State Board of Education isn’t beholden to Hogan’s mandates. By law, the governor names board members but it then is up to this independent panel to pick a superintendent and enact statewide school policies without interference.
So how can Hogan claim authority to lay out parameters for the annual school calendar?
Setting a Precedent?
In a state where there’s a yawning gap between the Republican governor and Democratic legislature, Hogan’s action could set a dangerous precedent. In the future, Hogan might decide to rule by executive fiat rather than tangle with a legislature determined to block his moves.
Repeatedly, Hogan has expressed disdain for the legislature and frustration with lawmakers’ refusal to give him 100 percent of what he wants. He has mocked and derided Democratic legislators. In the dispute over when to begin the school year he accused Democrats of being in the pocket of the state teachers union.
In the past, lawmakers have defeated attempts to accommodate Ocean City businesses by commencing school after Labor Day. Opposition has come not just from the teachers union but from statewide groups representing local education boards, PTAs and local school superintendents.
Their argument is based on doing what is best from an education standpoint.
Hogan’s argument is based on doing what is in the best interests of Ocean City and Deep Creek Lake businesses that see a decline in revenue when families can’t extend their vacations through the Labor Day weekend because of early school openings.
Hogan is being a practical, tactical politician seeking to win cheers from parents and his political base. Returning Maryland to an earlier time when all school systems waited till after Labor Day to begin classes is in line with Republican ideology that insists we can, indeed, roll back the clock.
Educators want to be practical, too, but not in a political sense. If you want to keep the current time off for holidays, religious observances and professional training days, then the school year must start before Labor Day or extend nearly till July.
The other concern is that a later school-year start compresses the time students have to prepare for nationwide testing. Educators worry about lower test scores and harming students’ ability to qualify for gifted and talented courses or getting into colleges.
But there’s a much bigger issue at stake.
Can the governor promulgate additional executive orders telling local schools and the state education panel what to do or what they are forbidden from doing?
Can he, for example, prevent a local school system from closing for Muslim holidays? If local school boards truncate spring break to comply with his order, can Hogan then tell them not to eliminate Good Friday and Easter Monday as holidays?
Could he or a future conservative governor require the end to sex education in local schools? Could he overrule school board decisions on the treatment of transgender children?
Could he issue an executive order allowing students to attend local schools without having been vaccinated? Could he decree that the conservative constitutional doctrine of “original intent” be taught in all high school civics classes?
Dividing Line of Power
At the same time, Hogan might decide to issue an executive order requiring Baltimore City and Baltimore County to air-condition all of its schools immediately, regardless of the cost to local governments. He might also use executive orders to fire local superintendents or board members who don’t follow his commands.
What happens if a local school board defies Hogan this time and sets its 2017 calendar with a pre-Labor Day opening? How does Hogan make that board comply? Does he deny the jurisdiction state funds? Does he sue the board?
And where does Maryland’s law-making body come into play? Isn’t that the group given the constitutional power to enact statutes governing local education?
Where, precisely, is the dividing line between executive authority and legislative authority?
Definitive answers are sorely needed. Not off-the-cuff “I’m right” comments from the governor or “we feel strongly both ways” conclusions from the attorney general’s office. Only the Maryland Court of Appeals is in position to deliver a clarifying ruling.
It doesn’t help matters for the General Assembly to reverse Hogan’s school-schedule mandate in January and then pass a law setting out new ground rules for executive orders. This would only produce more bad blood and finger-pointing for political gain.
A court determination, on the other hand, would settle this dispute and resolve a murky area of constitutional law.
All it takes is someone to pursue legal action. So far, no one has had the courage to do so.