Bernstein v. Board of Education

Oppenheimer, J., delivered the opinion of the Court. Parents of children living in the Hy-View Terrace Apartments in Prince George’s County, on behalf of themselves and other Maryland citizens similarly situated, sought an injunction against the Board of Education of Prince George’s County to restrain the transfer of their children from the Forestville Elementary School, which they formerly attended, to the Arrowhead Elementary School. 1 After a full hearing in the Circuit Court for Prince George’s County, Judge Powers, in a well-reasoned and lucid oral opinion, dismissed the bill. We advanced the hearing of the appeal because of the importance of the case to the children involved. After the oral argument, by per curiam order on January 5, 1967, we affirmed Judge Powers’ decree.

The reasons for our decision follow. The order of the Board of October 7, 1966 attacked by the appellants, reads in part as follows: ⁴⁶⁹ “whereas, the school population in the present Forest-ville, North Forestville, and Arrowhead Elementary Schools are greatly out of proportion to their respective capacities, and whereas, a fourth elementary school is being planned, east of Donnell Drive, and whereas immediate relief for the Forestville Elementary School is necessary, and whereas, it is impractical at this point to establish new bus routes for children presently walking to their respective schools, now, therefore, be it resolved that the following immediate steps be taken to relieve the overcrowding: 1. that effective Friday, October 7, 1966-, the attendance area of the Arrowhead Elementary School is to include the Phelps subdivision, 2. that effective Friday, October 7, 1966, the HyView Terrace Apartments shall be included in the Arrowhead Elementary School attendance area until the new building proposed in the Donnell Drive area is available * * *” .Approximately 175 children were affected by the action. Of these, about 75 lived in the Hy-View Apartments; the other 100, whose parents have not joined in the appellants’ suit, lived in individual homes in the Phelps Subdivision. The appellants contend: that the Board is an agency subject to the provisions of the Maryland Administrative Procedure Act; that the Board failed to give proper notice of its proposed hearing regarding the transfer of students in midterm from one elementary school to another, much farther away ; that the law requires the Board to hold a hearing, and that it consult and advise with interested citizens prior to changing the mid-term attendance of school children; that the purported hearing given by the Board was contrary to the principles of due process of law; that the bias and prejudice of one of the Board members rendered the entire proceedings a nullity; that the Board’s actions, inasmuch as they were a usurpation of the powers and duties of the County Superintendent of Schools, were illegal; that the Board’s refusal to provide appellants with any record of the purported hearing denied them an oppor ⁴⁷⁰ tunity to prepare for the trial below, and denied the court sufficient background material from which properly to consider the merits of the cause; and that the Board’s actions, being motivated by racial considerations, were illegal.

These contentions can best be discussed after a determination of the legal status of the Board and of the scope of judicial review of the action of which the appellants complain. I The statutory provisions in respect of county boards of education are contained in Chapter 5 of Code (1957), Article 77. Section 50 states that the boards are bodies “politic and corporate.” Section 55 reads as follows: “Control and supervision of system. “The county board of education shall exercise, through its executive officers, the county superintendent, and his professional assistants, control and supervision over the public school system of the county. The board shall consult and advise, through its executive officer and his professional assistants, with the boards of district trustees, principals, teachers and interested citizens, and shall seek in every way to promote the interests of the schools under their jurisdiction.” Section 56 provides that the boards “shall divide the county into appropriate school districts.” The county superintendent and the school principals of the schools involved are empowered, under Section 130, to determine “to which school pupils shall be admitted.” The first part of Section 150 provides that: “The county superintendent of schools shall explain the true intent and meaning of the school laws, and of the by-laws of the State Board of Education.

He shall decide, without expense to the parties concerned, all controversies and disputes involving the rules and regulations of the county board of education and the proper administration of the public school system in the county, and his decision shall be final, except that an appeal may be had to the State Board of Education if taken in writing within thirty days.” ⁴⁷¹ The appellants’ contentions that, under the statutory provisions, it was the duty of the County Superintendent, rather than that of the Board, to decide questions as to the transfer of students from one school to another is without merit. The Superintendent, with the school principal, determines the school to which pupils shall be admitted, but all the pupils here involved had been admitted prior to the Board’s order. That action was in effect a redivísion of the county into school districts, and, under Section 56, that determination is to be made by the Board. 2 The redivision did not involve a controversy or dispute under Section 150 but was an exercise of the legislative discretion entrusted to the Board. The contention of the appellants that the Board is a State agency, within the meaning of the Administrative Procedure Act, is of interest not because we find substance in the contention but because it brings into focus the legal nature of the Board’s action.

Under the Act, an agency is defined as “any State board * * * authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches,” with certain specified exceptions. Code (1957), Article 41, Section 244. It is the State Board of Education to which educational matters affecting the State and the general care and supervision of education are entrusted. Code (1957), Article 77, Chapter 3.

It is the State Board which is to determine the educational policies of the State, and which is authorized to enact by-laws for the administration of the public school system, which have the force of law. Article 77, Section 21. A county board of education has control of educational matters affecting only the county, subject to the by-laws and policies of the State Board. Article 77, Sections 3 and 54; Wilson v. Board of Educ. of Montgomery County, 234 Md. 561 , 200 A. 2d 67 (1964).

A county board of education such as the appellee is an administrative agency but it is not a State agency authorized by law to make rules or adjudicate cases. No decisions of this ⁴⁷² Court support the appellants’ contention to the contrary. Cases such as Coddington v. Helbig, 195 Md. 330 , 73 A. 2d 454 (1950), Hanna v. Board of Educ. of Wicomico County, 200 Md. 49 , 87 A. 2d 846 (1952), Board of Educ. of Montgomery County v. Montgomery County, 237 Md. 191 . 205 A. 2d 202 (1964) and Dixon v. Carroll County Bd. of Educ., 241 Md. 700 , 217 A. 2d 364 (1966), deal with the statutory powers of county boards of education vis-a-vis the County Commissioners or the general powers of such boards as administrative agencies. A board is not a State agency under the Act merely because, under its statutory authorization, it has administrative powers in the county to which its jurisdiction is limited.

In any event, the action of the Board of which the appellants complain is not a contested case, within the meaning of the Administrative Procedure Act or an adversary proceeding at common law. Absent a claim of deprivation of equal educational opportunity or unconstitutional discrimination because of race or religion, there is no- right or privilege to attend a particular school. In this case, it is admitted that the educational facilities of the school to which the children were transferred are equal in all respects to those of the school which they formerly attended. The appellants, for reasons hereinafter considered, claim deprivation of due process of law in the Board’s procedure, but the only constitutional right which they invoke insofar as the Board’s substantive action is concerned is under Article 6 of the Maryland Declaration of Rights.

That Article states that “all persons invested with the Legislative or Executive powers of Government are the Trustees of the Public, and, as such, accountable for their conduct * * *” The exhortation of that Article is reflected in the Court’s decisions that, in adversary administrative proceedings, where there is no adequate administrative remedy, or where that remedy does not provide for judicial review of the agency’s action, recourse may be had to the courts. See authorities cited in Poe v. Baltimore City, 241 Md. 303, 308-09 , 216 A. 2d 707 (1966). But the Article does not metamorphize an administrative action essentially legislative in nature into a contested case. That the Board’s proceeding of October 4, 1966 was quasi-legislative and not an adversary proceeding is clear.

Union In ⁴⁷³ vestors, Inc. v. Montgomery County, 244 Md. 585 , 224 A. 2d 453 (1966); Travelers Indemnity Co. v. Nationwide Constr. Corp., 244 Md. 401 , 224 A. 2d 285 (1966); and cases therein cited. The division or redivision of the county into school districts affects the children and their parents as a whole, for the general benefit and the proper administration of the county school system, and is not based on individual factors. When the proceeding involves essentially legislative considerations, a hearing is not a legal requisite, unless the governing statute or an administrative rule provides for it.

Union Investors, Inc., supra. Under Section 55 of Article 77 the Board is required to consult and advise, through its executive officer and his professional assistants, with interested citizens. Mr. W. Carroll Beatty, president of the Board, testified that he had served in that position seven and a half years; during that time, it has been the policy of the Board to hold open meetings, at which parents of children affected by a proposed action, or their spokesmen, are given the right to be heard. The legal effect of that policy may be taken as a Board rule that, before such a matter as redivision of school districts is determined, the Board will have a public hearing open to the persons affected.

Whether that rule has been adopted by the Board because of its interpretation of the statutory provisions or for reasons of wise administration is immaterial. Had the Board departed from its established policy in this case, a serious legal question would have been presented. See Town of Somerset v. Montgomery County Bd. of Appeals, 245 Md. 52 , 225 A. 2d 294 (1966). When a hearing is a part of the administrative process, whether by statutory provision or rule, the hearing must be a fair one.

Travelers Indemnity Co. v. Nationwide Constr. Corp., supra, Part I. II For a hearing to be a fair one, in an administrative agency as in more formal tribunals, adequate notice and opportunity to be heard must be afforded. Cassidy v. Baltimore County Bd. of Appeals, 218 Md. 418, 421-22 , 146 A. 2d 896 (1958) ; Travelers Indemnity Co. v. Nationwide Constr. Corp., supra, Part I, and authorities therein cited.

The proposal to change the school assignments of the children involved in this case was ⁴⁷⁴ set for presentation to the Board on October 4, 1966. On September 27, the children were given letters to take to their parents advising them of the proposal and the date on which it was to be considered by the Board; the letter also stated that staff representatives would be present at the Forestville School, which the children were then attending, on September 29, at 3:00 P.M. to answer questions regarding the proposed change. At the meeting of September 29, five members of the Board’s Staff were present as well as a number of the parents of the children involved. The proposal was explained and debated.

The parents were again advised that the proposal would be considered by the Board at an open meeting on October 4. The scheduled Board meeting was the hearing; the meeting of September 29 was not a hearing, in the legal sense; it was clearly called and conducted pursuant to Section 55 to consult and advise with the interested citizens, and complied with the provisions of that section. The appellants