Clinton v. Board of Education

ADKINS, Judge. In this case we shall invoke the doctrine of primary jurisdiction in order to give the Maryland State Board of Education (State Board) the opportunity to consider the issues here presented regarding State-wide educational law, policy, and administration. Generally, these issues arise within the context of § 2-201 (and related provisions) of the Education Article of the Maryland Code. 1 Section 2-201 commands that “[tjhere shall be throughout this State a general system of free public schools____” 2 See also, e.g., § 7-101(a) (“All individuals who are 5 years old or older and under 21 shall be admitted free of charge to the public schools of this State”). It is within this general framework that the litigants in this case raise the question of whether the provisions establishing a system of free public schools entitles children who are residents of one county to attend public schools in another county without payment of tuition by their parents.

I. On or about 11 June 1986, the appellants, Bobby and Joyce Clinton (the Clintons), then residing in Baltimore ⁶⁶⁹ County, Maryland, sought to enroll their three children (subsequently only two were determined to be of school age) at Swansfield Elementary School in Howard County, Maryland. The Clintons were then in the process of arranging the purchase of a new home in Clary’s Forest, Columbia, Howard County. They expected to move in to their new home by early autumn 1986. On 28 July 1986, Dr. Noel T. Farmer, Jr., Associate Superintendent of Schools for Howard County, approved the Out-of-District Enrollment forms for the two school-age minor children, Thandiwe and Abasi.

On each form a move-in date of October 1986 was noted. Each form also indicated that failure to move into the new school district by the date noted would require the child to be transferred to the school district of residence. In September 1986, the Clinton children enrolled at Swansfield Elementary School. Because of circumstances apparently beyond their control, the Clintons did not move into Howard County by October 1986.

In fact, the Clintons did not move into Howard County during the entire 1986-1987 school year. The children, however, continued to attend Swansfield Elementary. From December 1986 through February 1987, it appears that several deadlines for meeting the residency requirements were set, and extensions to those deadlines were sought and granted. Thereafter, the Clintons were notified that if the Howard County residency requirements were not met by 27 March 1987, their children would be excluded from the county public schools.

On 26 March 1987, the Clintons filed a complaint against appellee, the Howard County Board of Education (County Board), and others, in the Circuit Court for Howard County, seeking interlocutory and permanent injunctive relief. On 2 April 1987, the circuit court (Fischer, J.) granted an interlocutory injunction, enjoining the defendants from displacing or reassigning the Clinton children from Swansfield Elementary. This order was amended on 7 May 1987 to ⁶⁷⁰ provide that the interlocutory injunction would expire at the end of the school year, 19 June 1987. Prior to issuance of the amended order, the County Board filed a motion to dismiss the Clintons’ complaint.

Then, on 15 July 1987, the County Board filed a counterclaim for $6,360, representing the Clinton childrens’ 1986-1987 school year tuition. A bill dated 9 July 1987, for the same amount, had previously been sent to the Clintons. 3 On 16 July 1987, the court granted the County Board’s motion to dismiss. Only the counterclaim for tuition remained. On 13 May 1988, following months of legal maneuverings by the parties, the court issued an order for partial summary judgment in favor of the County Board for $4,876. 4 The Clintons appealed. 5 They challenged the lower court decision on statutory and State constitutional grounds.

This Court granted a writ of certiorari prior to argument in ⁶⁷¹ the Court of Special Appeals. 314 Md. 130 , 549 A.2d 752 (1988).

II

Called into question here is Howard County School Board Policy 14412 entitled “Enrollment and Tuition of Students Whose Parent(s) or Legal Guardian(s) Are Nonresidents of Howard County.” It provides, in part, that [a]ll qualified school age minor persons whose parents do not have an established bona fide residence in Howard County or those majority aged students who themselves have not established bona fide residence in Howard County shall be considered nonresident students. Such students may be admitted to the Howard County Public Schools; however, tuition shall be charged and paid unless waived. As a prefatory matter, we note that there are no Maryland statutes or rules, regulations, or bylaws of the State Board which address the validity of the County Board policy. Nor are there any reported opinions of the appellate courts of this State, or reported opinions of the State Board, which address this precise issue.

The Clintons do not deny that they and their children were not residents of Howard County during the time applicable here. The Clintons argue, however, that the County Board’s policy is repugnant to the mandates of § 1-201, which provides for “a general system of free public schools”; § 7-101(a), which establishes that individuals between the ages of 5 and 21 “shall be admitted free of charge to the public schools of this State”; and Article VIII, § 1 of the Maryland Constitution which underpins each of these provisions. See note 2, supra. 6 They concede that ⁶⁷² the General Assembly has the authority to establish county residency requirements as a prerequisite to free public education in a particular county school district. But they contend that such authority rests exclusively with that law making body and cannot be delegated to the State Board or to local school boards.

They point out that of all the several county school districts of this State, only the Prince George’s County School District has a statutorily established residency requirement for the use of free public" schools. See § 7-102. 7 The County Board rebuffs these contentions, arguing that the right to free public education must be analyzed within the statutory framework of the Education Article which gives local boards control over educational matters within their respective jurisdictions. In essence, it argues that the history behind Article VIII, § 1 (as set out in Hornbeck, see, note 2, supra) indicates that the structure and organization of Maryland’s free public school system were left to the dictates of the legislature and are now embodied in the Education Article. Significant among these enactments, the County Board notes, is § 5-104 which requires a county to levy and collect tax on real property within the county to meet the appropriations in the annual budget of the county school board.

Also of substantial importance, according to the County Board, is § 4-120 which establishes that students living near a county boundary line are permitted to attend school in the adjoining county, with funding to be provided by the students’ county of residence. Similarly, under § 4-120.1 ⁶⁷³ children who have been placed by a State agency or are under foster care in a particular county are entitled to free public education in that county with the bulk of the cost of the education to be borne by the financially responsible county, i.e., the county in which the parents or legal guardians reside. The County Board contends that §§ 4-120 and 4-120.1 indicate that nonresidents of a county do not possess an inherent right to attend that County’s public schools free of charge.

III

This summary of the arguments presented in this case makes clear that important issues of interpretation of the Education Article are here involved. Furthermore, intertwined with the statutory considerations are questions involving educational policy and the administration of Maryland’s public education system. The implications are Statewide. Some county school districts, like Howard County, have policies under which State residents may be charged tuition if they are not also residents of that county; see e.g., Anne Arundel County, Board of Education, Adm.Reg. 9-21 (revised 1981); Baltimore County, Board of Education, Policy 5150 (approved 1987); Carroll County, Board of Education, Policy JECB (revised 1985); Harford County, Board of Education, Descriptor Code .07.01.020 (reaffirmed 1980); Montgomery County, Board of Education, Policy JED (adopted 1987); and Washington County, Board of Education, Policy JECB (adopted 1975).

Other school boards such as those in Allegany County and St. Mary’s County, for example, have not established similar policies, so far as we are aware. Contrary to the assertion of the Howard County Board, we do not believe that the State Board, in Armour v. Board of Education of Montgomery County, 2 Opinions of the Md. State Bd. of Educ. 123 (1979), authorized the local boards to engage in the practice of charging tuition to State residents who are nonresidents of their counties. That case is not dispositive of the issue. Armour arose out of a case ⁶⁷⁴ initially filed on 25 June 1979 in the Circuit Court for Montgomery County challenging the Montgomery County School Board’s “Nonresident Tuition Policy.” This policy was substantially similar to the Howard County School Board policy now being challenged by the Clintons.

The circuit court, on its own motion, stayed further proceedings pending resort to. the State Board. On 31 July 1979, Armour filed such a proceeding pursuant to § 2-205(e). Then on 20 August 1979, nine days before the issue was to be heard by the State Board, the Montgomery County Board rescinded the policy at issue and adopted a new policy entitled “Enrollment and Tuition for Students Not Domiciled in Montgomery County.” The Montgomery County Board altered the old policy by substituting the phrase “not domiciled in Montgomery County” and “nondomiciled” for “nonresident,” and by swapping the word “residents” for “domiciliaries.” In addition, it added a section defining what was meant by “domicile of student” and therein established a presumption that a noncitizen was a nondomiciliary. 8 Since the policy had been changed prior to hearing, the State Board addressed the new policy rather than the old. Thus, in Armour, the Board reviewed the school district’s right to charge tuition to “nondomiciliaries” of the county rather than the right, under the old policy, to charge “nonresidents” of the county.

The State Board held that the policy was “inconsistent with the free public school laws of this state as found in §§ 1-201 and 7-101(a).” Armour, 2 Opinions of the Md. State Bd. of Educ. at 131 [footnote omitted]. It then concluded that “it is the educational policy in Maryland, consistent with the constitutional and statutory provisions for free public education, that all children within the borders of this State who are bona fide residents, are entitled to free public school privileges.” Id. at 132. ⁶⁷⁵ It is true that the State Board in dicta declared that “county boards of education are empowered to require that students attending their schools be residents of their particular county.” Id. at 126 [footnote omitted]. A county school board’s authority to exclude nonresidents from its public schools is different, however, from the alleged authority to charge nonresidents of the county tuition once permission has been granted to attend a public school within that district. This issue was not one addressed by the State Board in Armour.

All that the State Board there decided was that parents resident in but not domiciliaries of a county could not, simply because they were nondomiciliaries, be charged tuition for their children’s attendance of the county’s schools. The various questions here involved regarding interpretation of the public education law and education policy and administration are within the original jurisdiction of the State Board. See Montgomery Co. Ed. Ass’n v. Bd. of Educ., 311 Md. 303, 309-310 , 534 A.2d 980, 983 (1987); Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774, 788-789 , 506 A.2d 625, 631-632 (1986); Board of Educ. of P.G. Co. v. Waeldner, 298 Md. 354, 359-361 , 470 A.2d 332, 335 (1984); Zeitschel v. Board of