A lawsuit challenging the voting rights of student members of the Howard County Board of Education continued Friday, with oral arguments beginning in the United States Court of Appeals for the 4th Circuit in Richmond, Virginia.

Both sides of the issue debated in court Friday whether Howard’s school board is in violation of the 14th Amendment’s equal protection clause and the First Amendment’s free exercise clause in granting a student member voting rights. A panel of three judges will next decide whether the case will proceed.

The suit, filed in March 2021, argues that students who attend religious schools are wrongfully not included in the voting process for the Howard County Public School System’s student board member. The plaintiffs lost the case in November 2022 but appealed to the United States Court of Appeals for the 4th Circuit in May.

Howard County’s student body representative is among eight voting members of the school board charged with making decisions and administering policies pertaining to public schools in the county. Adult members of the school board are elected by the general public; the student member is selected by a vote of public school students in grades six through 11. The student member may vote on all school board issues except those pertaining to budgets, personnel or other restricted matters.

The initial complaint was filed by Lisa M. F. Kim, a parent of a student attending a religious school, and William F. Holland, a parent of two Howard County public school students. Kim and Holland are represented by attorneys at Public Interest Legal Foundation, Inc., a nonprofit focused on election integrity, and The Smith Appellate Law Firm in Sykesville.

Michael Smith, of the Smith Appellate Law Firm, argued Friday morning that federal law prohibits Maryland from administering an elective process that does not provide equal representation. Under the current system, an 18-year-old public school student could be eligible to vote for a student representative as well as in the regular school board election, which he said grants that person disproportionate and unfair voting power.

In addition, families who choose a religious education are penalized by virtue of their child being denied a vote, Smith said during his oral argument.

Amy Marshak, an attorney representing the Howard school board, argued Friday morning that the process used to select a student representative is not an election. The 14th Amendment only applies to popular elections, and no voting rights are infringed upon if the student board member is selected by appointment. The entire school board could legally be selected by the same process used to select a student representative, she said, which makes the process legitimate.

Whether the process for selecting a school board member constitutes an election will likely be the most significant factor in determining an outcome, judges affirmed.

“If it quacks like an election, it’s an election,” said John Christian Adams, president and general counsel for the Public Interest Legal Foundation. Adams said existing U.S. legal precedent will be important in determining the case’s outcome, which should set a precedent statewide.

“This case is not just about Howard,” Adams said. “It’s about student members getting more power than regular school board members. In other words, being elected by a smaller number of people.”

The losing party may appeal to the U.S. Supreme Court. Adams said he would appeal to the Supreme Court, which he believes would be likely to accept the case.

Howard County’s student member of the school board has gained other legal attention in recent years. In 2020, two parents aimed to strip the student board member’s voting rights after the student was the deciding vote that prevented a return to in-person learning during the coronavirus pandemic. Last year, the parents lost their suit, which was referenced in Kim and Holland’s litigation.

In Howard County, the student member has had voting rights since 2007. Lamia Ayaz, a senior at Howard High School, is the county’s current student member of the board and will serve until next June. Student members of Howard County’s school board receive a $5,000 scholarship as payment for their service.

Local student board members have voting rights in Anne Arundel, Baltimore, Charles, Harford, Howard, Montgomery and Prince George’s counties, as well as Baltimore City, so more than 75% of Maryland public school students are represented by a local voting student member. Additionally, a student board member, Howard County’s own Abisola Ayoola, votes as the student member of the Maryland State Board of Education.

Anne Arundel is the only county in which the student member of the board of education may vote on all matters, Marshak said.

A total of 103 former student board members who served from 1974 to 2023 came together to submit an amicus brief, filed July 24. The brief asserts that the original decision should be upheld.

“Student members have voted on Maryland boards of education for nearly 50 years thanks to bipartisan state legislative efforts, and they have shown themselves to be an integral component of effective educational policymaking at the state and local levels,” Emily Wilson, an attorney representing the former student members, said in a statement. “Given this rich and well-settled legislative history, it could not be farther from controversial that the Howard County student member is chosen in part based on input from other students or votes on certain matters that come before the Board.”

Baltimore Sun reporter Sabrina LeBoeuf contributed to this report.