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Three judge panel hears arguments on education governance authority

In a court case that will decide the power granted the State School Superintendent, the arguments today centered on whether the constitution gives ultimate authority over education in the state to the General Assembly or the State Board of Education. 

A three-judge panel heard arguments from attorneys representing the State Board of Education, the Superintendent of Public Instruction Mark Johnson and the state over powers transferred from the board to the superintendent in House Bill 17 during a surprise special session last December. 

The three judges in the case are Hon. Forrest Bridges, Hon. James Ammons Jr., and Hon. Martin McGee.

While the bill is not in effect pending the results of litigation, it sets up Superintendent Mark Johnson as the head authority of the Department of Public Instruction, a role formerly occupied by the State Board. The change gives the Superintendent the power to administer all rules passed by the State Board. 

It also grants the superintendent direct supervision and administration of the public school system,  a concept that was at the crux of the arguments laid out in court today.  

Speaking for the State Board, attorney Bob Orr said the North Carolina Constitution explicitly grants those powers of supervision and administration of the public school system to the State Board. In transferring authority to the Superintendent, the General Assembly overstepped, Orr said. 

“The General Assembly can’t take the constitutional authority and give it to the superintendent or anyone else,” he said. 

Attorneys for Johnson and the state, Hardy Lewis for Johnson and Olga Vysotskaya de Brito for the state, argued the constitution grants the General Assembly the final say on education matters.  

When the state constitution was adopted in 1868, it gave the General Assembly the power to alter, amend or repeal any rules and regulations created by the State Board, Lewis said. In 1942, an amendment changed the General Assembly’s power from altering regulations established by the State Board to creating its own policies to govern what the State Board is able to do. 

“It is a pretty plain black and white statement of policy that when it comes to the public schools of North Carolina, the number one authority is the General Assembly,” he said. 

Much of the argument in the case came from questions by the three judges about what the General Assembly could do that would be considered going too far. 

Andrew Erteschik, speaking for the State Board, argued that HB 17 was going too far in transferring constitutional powers. He argued that the constitutional powers were copied and pasted from the constitution into HB 17.

Judge Bridges said it did appear as though that is what the General Assembly did, in part, with the legislation. ”That’s very troubling,” he said.

But Vysotskaya argued that while HB 17 changes some of the board’s authority, it left large swaths of power with the board, indicating the legislature did not overreach. Going too far would mean that the General Assembly stripped the board of so many powers that it was, in essence, an empty shell. 

Lewis later said that for the General Assembly to go too far in stripping powers from the State Board, the board would have to be left with nothing to do when they meet. 

The two sides also argued about the constitutional meaning behind supervision and administration of the public school system. The plaintiff’s argued those powers were given to the State Board, while Vysotskaya argued that those powers are not exclusive to the board, but the superintendent shared in the responsibility.

She pointed out that the board meets only once a month, but that the Superintendent had to act on a day-to-day basis.

The judges also tried to get at the purpose of the State Board of Education, asking what characterized the nature of the body. In HB 17, the power of the board to make policy was replaced with language calling it a rule-making body.

Judge Bridges asked if, under HB 17, the State Board is only a rule-making body, but the power to make those rules is subject to General Assembly oversight, then couldn’t the General Assembly make the State Board an empty shell at any time? 

The judges questioned all parties as to what they expected the judges to do with the law. Were the parties in the case expecting them to either uphold or strike down the whole thing? Or were they being asked to parse which parts of the legislation were reasonable and which were not? 

“The question becomes…if you cross that rubicon and say copy and pasting is too much, what do we do with the rest of this law?” Bridges asked. 

Erteschik said that the key piece of the law was the transfer of the board’s constitutional power for administration and supervision of public education.

“These pieces of the law are unconstitutional,” he said of the main transfer of power. “Because this is an intertwined piece of legislation, the whole thing must fall.” 

The defendants argued that the plaintiffs faced the burden of proving that HB 17 was unconstitutional, and Lewis said they had not achieved that goal. He said they only addressed four out of 62 provisions listed in their complaint to the court. 

The judges also struggled with the authority of the General Assembly over the State Board, wondering aloud if there was any need for the constitution to lay out the powers of the State Board if the General Assembly had absolute power over the body. 

Lewis argued that the court was the wrong place for the State Board to seek a solution, saying that Superintendent Johnson is ultimately answerable to the voters, unlike the appointed State Board. 

“The State Board’s remedy here is found in the voting booth and not in this court room,” he said. 

All documents related to the case are here

Alex Granados

Alex Granados is senior reporter for EducationNC.