Fourth Circuit Ruling on Constitutional Challenge to Howard County School Board Process for Selecting SMOB

Debra Daniel

Kim v. Board of Education of Howard County involves a constitutional challenge brought by two parents to Howard County Board of Education’s process for selecting its student member of the Board. On February 8, 2024, the United States Court of Appeals for the Fourth Circuit issued its decision in the Kim case dismissing the parents’ claims.  A case summary summary and the bases for the Court’s decision appear below.

Kim, et al. v.  Board of Education of Howard County

United States Court of Appeals for the Fourth Circuit

On February 8, 2024, the Fourth Circuit Court of Appeals issued its decision in the Kim case involving a constitutional challenge to the process used by the Board of Education of Howard County for picking a student member of the board (“SMOB”). Two parents sued the board claiming that the method used by the school board for selecting the SMOB violates the Equal Protection Clause because it diminished their voting power by not giving them a vote on the selection. In addition, one of the parents argued that the SMOB selection process violates the Free Exercise Clause since it does not allow students who do not attend public schools, including those who attend private religious schools for religious reasons, to vote on the selection of the SMOB. The Fourth Circuit dismissed both the Equal Protection and Free Exercise claims.

With respect to the Equal Protection claim, the Court found that the selection of the SMOB did not amount to an “election” in the constitutional sense but was more akin to an appointment. In coming to this conclusion, the Court detailed the process for selecting a SMOB and stressed the involvement of the school board and administrators in the process from “beginning to end.” The Court further noted that appointments to the school board have been found to be constitutional and do not trigger the one-person, one-vote principle when an election is not constitutionally required. Notably, the Court found that “Howard County’s process for allowing its young students to participate in selecting the student member does not prematurely enfranchise them; rather, it provides a real-life civics lesson about the democratic process aimed at preparing the schoolchildren for when they will qualify to vote in elections held in Maryland.”

With respect to the Free Exercise claim, the Court found that the law being challenged does not burden religious exercise and is neutral and generally applicable. The law is considered neutral because, to the extent the law has an effect of excluding religious students, it does so “in spite of” and not “because of” those students’ religious reasons for attending a private school. The law is generally applicable because it excludes all non-public-school students from voting, not just some of them. The Court concluded that “limiting the choice of the student member to public school students is a neutral and generally applicable government action.”

The Court held that neither of these claims triggered strict scrutiny[1] and that Howard County’s method of choosing its SMOB survives rational basis review since it is “not ‘wholly irrelevant’ to achieving Maryland’s possible interests in making room for student perspectives on its school boards or providing students with civics training.”

[1] Under Supreme Court jurisprudence, a constitutional claim must be analyzed under one of three levels of scrutiny depending on the type of classification being challenged. If the classification involves a suspect classification (e.g., race, religion) or burdens a fundamental right (e.g., marriage, procreation) then the claim must satisfy strict scrutiny. If the classification involves a quasi-suspect class (e.g., gender, sex), the claim must satisfy intermediate (or heightened) scrutiny. All other classifications must satisfy a rational basis review.

Back to News & Blog