Skip to content

Televisions, tests, and the Constitution

Televisions seem so – well, at best, 1990s. And yet the issues raised in a court case related to televisions in the classroom are front and center in current education debates.

So first, who knows what Channel One was? I asked this of my class of doctoral and masters students at the UNC School of Education this week – most of whom have been teachers in the public schools. The majority raised their hands. But they knew it as students – not as teachers. I am so old.

In this case, the General Assembly made crystal clear that one of those laws was that local boards could choose their own supplementary materials, including materials with advertising content.

In case you were not part of this milieu, Channel One brought hip civic news to public school classrooms in the 1990s. Whittle Communications, the vendor, made a sweetheart deal with school districts: show our 12-minute program (10 minutes news and 2 minutes advertising) to students during each school day and we’ll give you free televisions for classrooms. School districts – with no funds for technology like this – signed on. The State Board of Education balked. They tried to exert their constitutional authority to declare that classrooms were not for sale. They passed a rule prohibiting these contracts. In this power struggle that made its way to the North Carolina Supreme Court, the State Board lost. Why? The General Assembly sided with school districts that needed the televisions – the latest silver bullet. And the State Board’s constitutional authority to supervise and administer a free public school system is subject to laws enacted by the General Assembly. In this case, the General Assembly made crystal clear that one of those laws was that local boards could choose their own supplementary materials, including materials with advertising content.

That’s 1991. On January 21, 2015, Judge Howard E. Manning, Jr. began a two-day hearing on testing as a part of the ongoing Leandro litigation. Judge Manning questioned why the tests given at the end of the year as “NC Final Exams” were not included in determining whether students were “proficient” – a measure important in determining whether constitutional standards of a sound, basic education are being met. Dr. Rebecca Garland of the Department of Public Instruction provided the answer. To meet requirements of the federal grant Race to the Top, standardized final exams in certain subjects were given so that student growth could be measured and included in the evaluation of teacher effectiveness. The federal grant did not require setting levels of student proficiency and with limitations on testing written into law by the General Assembly, it wasn’t clear that they had the authority to take this additional step.

While the General Assembly can limit the State Board’s authority in some ways, does this include limiting the State Board’s administration of tests that might be a measure of a constitutional right to education?

To recap, the State Board is a constitutionally-created entity. It has broad powers “subject to the laws enacted by the General Assembly.” This tag line carries a punch. After all, it put the State Board on the sidelines on the issue of commercials during instructional time. But testing raises a different kind of issue. Judge Manning expects proficiency data on subjects included in the North Carolina Supreme Court definition of a sound, basic education. While the General Assembly can limit the State Board’s authority in some ways, does this include limiting the State Board’s administration of tests that might be a measure of a constitutional right to education? As the General Assembly returns to its work on Jones Street – which likely will include the subject of assessments – this may shift from a rhetorical question to a constitutional challenge.

This comes at a time when the State Board has gone to court to seek clarification on its constitutional authority to adopt policy. Back to the television case, part of the chain of events was that the Rules Review Commission, a body created by the General Assembly, rejected the State Board rule that sought to stop these local contracts, finding that it did not meet certain statutory standards for rules. The State Board argued to the North Carolina Supreme Court that it should not be subject to the Rules Review Commission. The Supreme Court was able to sidestep this issue and resolve the matter on other grounds. Now the State Board has sued the State, asserting that while it is subject to laws enacted by the General Assembly, it – as a constitutional body – is not subject to the Rules Review Commission. In its complaint, the State Board notes that the Rules Review Commission or its staff has objected to or modified every rule the State Board has submitted to it since its inception in 1986. That’s amazing. The complaint further states that the “Board as currently constituted has made the decision to exercise the full extent of its powers and duties under the North Carolina Constitution without unconstitutional interference by the RRC.” That’s important.

So stay tuned. Whether on your television, iPad, or Twitter account.

 

References

  • N.C. Constitution, Article IX, Section 5
  • N.C. G. S. § 115C-98(b)
  • N.C. G. S. § 115C-174.11(c)
  • State v. Whittle Communications, 328 N.C. 456, 402 S.E.2d 556 (1991)
  • State Board of Education v. State, 14 CVS 014791
  • Leandro v. State, 346 N.C. 336, 488 S.E.2d, 249 (1997)
  • Hoke County Board of Education v. State (Leandro), 95 CVS 1158, Notice of Hearing and Order Re: Hearing (November 14, 2014)
Ann McColl

Ann McColl is an attorney practicing in the field of education law since 1991. She currently serves as co-founder and president of the Innovation Project.