PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-2294

LISA M.F. KIM, Individually and as Parent and Next Friend of J.K., a minor; WILLIAM F. HOLLAND, and on behalf of all those similarly situated,

Plaintiffs - Appellants,

v.

BOARD OF EDUCATION OF HOWARD COUNTY,

Defendant - Appellee.

-----------------------------------

YOUNG AMERICA’S FOUNDATION,

Amicus Supporting Appellants,

FORMER STUDENT MEMBERS OF MARYLAND BOARDS OF EDUCATION,

Amicus Supporting Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Deborah K. Chasanow, Senior District Judge. (1:21-cv-00655-DKC)

Argued: December 8, 2023 Decided: February 28, 2024

Before DIAZ, Chief Judge, QUATTLEBAUM, Circuit Judge, and Roderick C. YOUNG, United States District Judge for the Eastern District of Virginia, sitting by designation. USCA4 Appeal: 22-2294 Doc: 55 Filed: 02/28/2024 Pg: 2 of 27

Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Chief Judge Diaz and Judge Young joined.

ARGUED: Michael Francis Smith, SMITH APPELLATE LAW FIRM, Sykesville, Maryland, for Appellants. Amy L. Marshak, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellee. ON BRIEF: J. Christian Adams, Maureen S. Riordan, Kaylan L. Phillips, PUBLIC INTEREST LEGAL FOUNDATION, INC., Alexandria, Virginia, for Appellants. Joseph W. Mead, Institute for Constitutional Advocacy and Protection, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellee. J. William Eshelman, CLARK HILL PLC, Washington, D.C., for Amicus Young America’s Foundation. Mitchell Y. Mirviss, Emily J. Wilson, Elizabeth A. Sines, Baltimore, Maryland, William G. Bolgiano, VENABLE LLP, Washington, D.C., for Amici Former Student Members of Maryland Boards of Education.

2 USCA4 Appeal: 22-2294 Doc: 55 Filed: 02/28/2024 Pg: 3 of 27

QUATTLEBAUM, Circuit Judge:

This case concerns the constitutionality of a process for picking a student member

of a county school board. The Board of Education of Howard County, Maryland, has eight

members. Seven are adults elected by the county’s qualified voters in general elections.

One is a high-school student chosen by the county’s public-school students from the sixth

through eleventh grades—in theory, that is. In practice, while the students get to “vote” for

one of two final candidates, the school system’s employees shepherd students through a

multistage selection process, and the board ultimately must confirm the winner. Two

parents sued the board, bringing claims under the federal constitution. They assert that

letting public-school students pick the student member diminishes adults’ voting power in

violation of principles derived from the Equal Protection Clause. And one parent claims

that the student-member selection process contravenes the Free Exercise Clause since it

excludes students who forgo public schools, including those who do so for religious

reasons. The district court dismissed the equal protection claim after determining that the

student member is not elected in a constitutional sense. At the same time, the district court

dismissed the free exercise claim, in part because the process for choosing the student

member excluded