Poll Finds Two-Thirds Of Marylanders Support Post-Labor Day Start, While AG Opines Court Would ‘Likely’ Find Governor Exceeded Authority

Poll Finds Two-Thirds Of Marylanders Support Post-Labor Day Start, While AG Opines Court Would ‘Likely’ Find Governor Exceeded Authority
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OCEAN CITY — The results of a recent poll released this week indicate a decided majority of Maryland residents continue to support Gov. Larry Hogan’s Executive Order for a post-Labor Day School start, while the state’s Attorney General’s office has concluded the governor “likely” overstepped his bounds with the mandate.

The Goucher College Sarah T. Hughes Field Politics Center released the results this week of a recent poll gauging Maryland residents’ support of a mandated post-Labor Day school start, which revealed 68 percent supported the initiative. Meanwhile, in the wake of Hogan’s announcement, two state lawmakers asked the Maryland Attorney General’s opinion of the validity of the Executive Order and last week received a letter from Deputy Attorney General Adam Snyder suggesting he did not believe it would pass a judicial challenge.

On Aug. 31, Hogan announced from the Ocean City Boardwalk an Executive Order requiring all public schools in Maryland to start classes after Labor Day beginning with the 2017-2018 school year. In the executive order, Hogan stated it would preserve the Labor Day holiday weekend and the days that precede it as an extended opportunity to relax and enjoy time with family and friends, but there is also a considerable economic element. For example, Hogan stated a post-Labor Day school start would result in an additional $74.3 million in direct economic activity, including $3.7 million in new wages and $7.7 million in state and local tax revenue that could be reinvested in classrooms across Maryland.

Almost immediately after Hogan’s announcement, educators across Maryland decried the mandate and called into question the validity of the Executive Order. Critics have claimed a later school start, although the required 180 days will be preserved, would cut down on valuable teaching time. Perhaps more importantly, some school jurisdictions have claimed the governor’s mandate undermines the autonomy of the various school districts and ties the hands of superintendents to make decisions on what they believe is best for their schools.

Throughout the process, various polls have indicated state residents support the move to a mandated post-Labor Day school start across Maryland and one of the first significant polls taken after the governor’s announcement in August reveals that has not changed. This week, the Goucher University Sarah T. Hughes Field Politics Center released the results of a larger poll on Hogan’s current approval rating along with other important statewide issues including the executive order mandating a post-Labor Day school start.

Poll respondents were randomly assigned different versions of a question gauging public opinion toward a mandated post-Labor Day school start. One version informed the respondent that the official move to a post-Labor Day start was the result of an Executive Order and the second one did not.

However, there was no real statistical difference in the results of the two questions. According to the Goucher Poll, 67 percent of respondents support the Executive Order that moves the official start date for Maryland public schools until after the Labor Day weekend. By comparison, 68 percent of those polled support the move of the official start date to Maryland public schools until after Labor Day.

Goucher Poll respondents were somewhat divided over the issue of executive orders in general. For example, 54 percent of those polled believe governors should rarely or never use executive orders to put regulations into effect without approval from the state legislature, while 41 percent believe governors should use executive orders “sometimes” or “frequently.” Nonetheless, the Goucher Poll concluded the majority of the state’s residents continue to support a post-Labor Day school start, even if some lawmakers and the school board and various administrations do not.

“Nearly a month after Governor Hogan’s executive order and heightened public criticism from key lawmakers and education advocates, as well as recent questions concerning the legality of the executive order from the Maryland Attorney General’s Office, a post-Labor Day start for Maryland public schools remains popular with the general public,” said Dr. Mileah Kromer, director Goucher’s Sarah T. Hughes Field Politics Center, which conducted the poll. “This issue highlights larger questions concerning executive control and power during a time of divided government in Maryland.”

In terms of the judicial and legislative challenge of Hogan’s executive order mandating a post-Labor Day school start, two state lawmakers- Senator Paul Pinsky (D-Prince George’s) and Delegate Anne Kaiser (D-Montgomery)- requested an opinion from the Maryland Attorney General’s Office. Last week, Adam Snyder, chief counsel of opinions and advice for Attorney General Brian Frosh, penned a letter to Pinsky and Kaiser essentially opining Hogan likely exceeded his authority with the school start mandate, but stopped short of saying the governor went too far.

Essentially, Pinsky and Kaiser asked for the Attorney General’s opinion on two fronts. The legislators asked if Hogan’s post-Labor Day mandate was a permissible exercise under the governor’s executive order authority, while the second question asked if the General Assembly could enact legislation overriding or negating the order. In Snyder’s opinion, the answer to the second question as a firm yes, while the answer to the first question was less clear.

“In the absence of controlling judicial precedent discussing the interplay between the governor’s executive order authority and the state board’s visitatorial powers, I cannot say unequivocally that the Labor Day executive order exceeds the governor’s authority, but I believe it likely that a reviewing court, if presented with the issue, would conclude that it does,” the letter reads. “As to your second question, yes, the General Assembly may enact legislation overriding the effect of an executive order.”

Snyder’s response was clearer on the issue of the validity of the governor’s executive order, however, opining the authority to set the school calendar fell with the state board and its individual school districts and not with the governor.

“Nevertheless, I conclude from all of this that the governor may not set educational policy or direct the administration of public schools through the mechanism of an executive order and that a reviewing court would likely find that the establishment of the school calendar is a matter of educational policy or public school administration,” the letter reads. “If so, it would fall within the state board’s exclusive power to determine that policy. Although the governor could influence that policy through his appointments to the state board, he could not do so by executive order.”

While a potential judicial review of the governor’s mandate would “likely” not pass muster, Snyder said in his letter to Pinsky and Kaiser it would not come without its challenges.

“In my view, there is some risk that a reviewing court would conclude the Labor Day executive order does not control executive action so much as legislate on matters of public concern,” the letter reads. “Arguably, the order’s primary effect is not on the public school employees, but on the approximately 800,000 public school students and their parents, who will have to delay their return to school and thus revisit decisions about vacations and child care arrangements. Delaying the start of the school year until after Labor Day thus seems more like making law than executing it.”

In conclusion, Snyder’s letter asserts the school board, and not the governor, should have the authority to set the public school calendar across Maryland.

“The governor has broad constitutional and statutory authority to direct the actions of the executive branch of state government through the issuance of executive orders,” the letter reads. “The Labor Day executive order, however, purports to direct the state and local boards of education, which are independent bodies that are not directly answerable to the governor, and directs them on a topic, the school calendar, that likely falls within the state board’s power over educational policy and public school administration — a power that the Court of Appeals has described as ‘comprehensive’ and ‘exclusive.’”

To read the full letter, click 1-ag-advice-letter-on-governor-s-executive-order

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.