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State Board to appeal ruling transferring power to Superintendent Johnson

Updated 3:45pm

The State Board of Education decided this morning to appeal the court’s Friday decision in their case against State Superintendent Mark Johnson and the state over control of the Department of Public Instruction (DPI) and the state’s public schools. 

A three-judge panel ruled in favor of Johnson and the state at the end of last week, stating that the State Board did not adequately show the unconstitutionality of a law that gives Johnson powers historically held by the Board. 

Bill Cobey, chairman of the Board, called the panel’s decision “inexplicable” in a phone call with EducationNC Wednesday. He said the ruling did not give a firm answer as to who’s in charge.

“They’re trying to have it both ways,” Cobey said. “They’re trying to split the baby. We need more clarity on this. That’s why we’re going to the appellate court, to get more clarity — hopefully directly to the Supreme Court. This is a constitutional matter that needs to be settled sooner rather than later.”

House Bill 17, which the legislature passed during a special session at the end of last year, would make Johnson the head of DPI and the supervisor of the department’s budget and the state’s public schools. Previously, the superintendent had only the powers delegated to him by the Board. Johnson would also be able to hire and fire top DPI personnel and have control over the Office of Charter Schools.

Attorney Bob Orr, who represents the Board, said in an interview with EducationNC that there is confusion around the memorandum, which says the sole responsibility for the supervision and administration of the school system still falls on the Board. 

“The court, in the memorandum, seemed to say, ‘Well, we don’t read the statute as infringing on these primary constitutional powers of the State Board,’ which is certainly contrary to the way we read them and interpreted them,” Orr said.

He said there are still a lot of questions from an operational standpoint.

“There’s a fundamental difference in running the school system on a day-to-day basis and having the decision-making authority over the administration and supervision of the school system,” he said. “The question would be if the superintendent decided to do “x,” and the State Board decided to do “y,” what do you do?”

In a statement Friday, Johnson said the decision did indeed provide the clarity everyone needed to move forward.

“For too long, the lack of clarity about DPI leadership has fostered a system of non-accountability,” Johnson said. “While this system is great for shifting blame and avoiding responsibility, non-accountability at DPI hurts North Carolina students. Last December, the General Assembly addressed this problem by clarifying the parameters set forth in the NC Constitution. Their efforts offered greater transparency to educators and parents across the state seeking to engage with DPI and greater accountability at DPI.” 

“Today, the Superior Court has affirmed the constitutionality of the General Assembly’s actions and I look forward to, belatedly, working for more and better change at DPI.”

Johnson could not be reached for comment on Wednesday. 

Cobey said, in the meantime, the Board and Johnson are putting the legal battle aside to do their day-to-day jobs. 

“As far as our working relationship with the superintendent, we’re doing what is necessary to work together to get the job done for the children of this state,” he said.

Friday’s decision gave a 60-day extension of the temporary injunction that keeps the law from being implemented. The Board expects to file an appeal within that window. 

Also Wednesday, in the same meeting during which the appeal was decided, the State Board announced its new communications director, Drew Elliot, former spokesperson for the state’s environmental regulatory agency. More recently, Elliot served as the editor of the North State Journal.  

Cobey said picking Elliot was a demonstration of the Board and Johnson’s ability to work together.

“An example of that is we’ve worked with him to reorganize the department,” Cobey said. “We brought forth a consensus candidate, that he was involved in, for a communications director this morning.”

Cobey said the Board also discussed the $3.2 million cuts to DPI in the General Assembly’s finalized budget. Although he could not name specifics, he said positions would be cut, as well as operational cuts “much broader than expenses related to those positions.”

He said the personnel cuts should be finalized by Monday morning but will not be released to the public until a later date. 

Editor’s Note: Bob Orr is a member of EducationNC’s Board of Directors.

Liz Bell

Liz Bell is the early childhood reporter for EducationNC.