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State Justices Field Arguments Over Roles, Powers of State Board of Education, Superintendent
Publisher's note: The author of this post is Lindsay Marchello, who is an associate editor for the Carolina Journal, John Hood Publisher.
The fate of the state's public education system is now in the hands of the North Carolina Supreme Court after justices heard two cases regarding the constitutional authority of the State Board of Education.
The morning of Feb. 7, the Supreme Court justices heard North Carolina State Board of Education v. The State of North Carolina and North Carolina State Board of Education v. Mark Johnson.
The first case involved a dispute between the state board and the Rules Review Commission.
RRC has been around since 1986. Most state agencies have to submit regulations to the commission for approval, but in 2014 the state board filed a lawsuit, arguing it was not constitutionally bound to submit policies. The board also said the review process violated separation of powers.
Representing the state board, former state Supreme Court Justice Bob Orr argued the lawsuit is not a challenge to either the commission's or the General Assembly's overall authority, but is an attempt to find a narrow interpretation of the law.
"Can the General Assembly punt to this third-party commission, which reviews everything from barber rules to massage therapists?" Orr asked.
Orr said the state board cannot implement rules until the RRC has reviewed them for approval. Fellow SBE attorney Andrew Erteschik described the process of submitting rules to the commission as gelatinous.
"The Constitution requires that the board, not the RRC, but the board shall make all needed rules," Erteschik said. "Yet, the RRC gets to decide whether rules get made and whether rules are needed."
Representing the state, Special Deputy Attorney General Olga Vysotskaya de Brito argued the SBE's attorneys were wrong in suggesting the state board's rules were subject to legislative oversight. Instead, she argued the state board's rulemaking power is subject to legislative review.
Attorney Christopher Browning, representing the Rules Review Commission, argued the commission exists to ensure consistency throughout the administrative code. If the state board disagrees with a decision from the RRC, then they have legal recourse by appealing to Superior Court.
Browning said the State Board of Education should undergo the same legislative scrutiny as other agencies, boards, and commissions, so that a board "can't go rogue."
The justices repeatedly questioned whether any records existed of the RRC impeding the SBE's authority.
"Is it your position that we have to ignore the 25 years that we have and think theoretically it could be possible that the rules commission could violate some power of the State Board?" Justice Paul Newby asked.
Browning said the answer is clearly no.
"There really is no record here to show that the Rules Review Commission has done anything wrong," Browning said.
Erteschik argued the commission has objected to and modified rules. He disputed the RRC's argument that its modifications were not substantive.
During the second hearing, lawyers representing the state board and State Superintendent Mark Johnson grappled over the constitutional role of superintendent plays in setting public education policy.
Chief Justice Mark Martin recused himself from the case because his wife works for the state education agency.
The conflict began when the General Assembly passed House Bill 17 during a 2016 special legislative session. H.B. 17 transferred power from the state board to Johnson, including the authority to manage the state's $10 billion education budget. Johnson also would have gained more oversight in senior staffing decisions and managing hundreds of contracts.
The state board argued H.B. 17 violated the N.C. Constitution and took the issue to court.
Orr, once again representing the board, argued H.B. 17 was a sweeping and unprecedented decision allowing the General Assembly to transfer constitutionally granted power from the board to Johnson.
Orr said the state constitution outlines the responsibilities of the state superintendent as a secretary and a chief administrative officer, whose job is to take the decisions of the state board and work with it to govern the education system.
Justice Barbara Jackson asked what kind of platform a candidate for state superintendent could devise if the duties and positions are determined by the state board. Unlike the state superintendent, who is elected in a statewide contest, most members of the state board are appointed by the governor and confirmed by the legislature.
"They run and they say, 'I want to be superintendent of public instruction and my platform is whatever the board decides it's going to be?" Jackson asked.
"Well, certainly, a superintendent or any candidate can set out a vision of public education, can set out areas for reform, and has an opportunity to meet with the public and teachers and administrators," Orr answered.
Jackson questioned whether the state superintendent could even enact that vision considering Orr's description of the state superintendent's role.
"It seems like, under the argument you're making, all those teeth are with the Board of Education," Jackson said.
Orr said the constitution gives the board the authority.
Attorney Hardy Lewis, who represented Johnson, questioned the limits of the board's power.
"I think the question that really is before the court is who is the ultimate authority with regard to public education in North Carolina?" Lewis asked. "Is it the state board? Are they a fourth branch of government?"
Justice Sam Ervin IV asked whether the state board has core constitutional powers the General Assembly couldn't take away. Lewis said the General Assembly could limit and revise powers.
Vysotskaya, arguing again for the state, made a similar argument. The state's attorney said the General Assembly doesn't have the power to abolish the state board's authority but it could revise it.
Erteschik took issue with this line of argument, posing a theoretical situation in which the General Assembly gave the Court of Appeals power over the Supreme Court.
"If we allow that kind of flexibility, as the state is offering here, this perceived middle ground, the problem with that is, why have a constitution at all?" Erteschik asked.
While both arguments took a couple of hours, the Supreme Court could take several months to issue a ruling in either case.
Go Back
Attorneys argue over whether Rules Review Commission has oversight of state education board and the powers of state superintendent
The fate of the state's public education system is now in the hands of the North Carolina Supreme Court after justices heard two cases regarding the constitutional authority of the State Board of Education.
The morning of Feb. 7, the Supreme Court justices heard North Carolina State Board of Education v. The State of North Carolina and North Carolina State Board of Education v. Mark Johnson.
The first case involved a dispute between the state board and the Rules Review Commission.
RRC has been around since 1986. Most state agencies have to submit regulations to the commission for approval, but in 2014 the state board filed a lawsuit, arguing it was not constitutionally bound to submit policies. The board also said the review process violated separation of powers.
Representing the state board, former state Supreme Court Justice Bob Orr argued the lawsuit is not a challenge to either the commission's or the General Assembly's overall authority, but is an attempt to find a narrow interpretation of the law.
"Can the General Assembly punt to this third-party commission, which reviews everything from barber rules to massage therapists?" Orr asked.
Orr said the state board cannot implement rules until the RRC has reviewed them for approval. Fellow SBE attorney Andrew Erteschik described the process of submitting rules to the commission as gelatinous.
"The Constitution requires that the board, not the RRC, but the board shall make all needed rules," Erteschik said. "Yet, the RRC gets to decide whether rules get made and whether rules are needed."
Representing the state, Special Deputy Attorney General Olga Vysotskaya de Brito argued the SBE's attorneys were wrong in suggesting the state board's rules were subject to legislative oversight. Instead, she argued the state board's rulemaking power is subject to legislative review.
Attorney Christopher Browning, representing the Rules Review Commission, argued the commission exists to ensure consistency throughout the administrative code. If the state board disagrees with a decision from the RRC, then they have legal recourse by appealing to Superior Court.
Browning said the State Board of Education should undergo the same legislative scrutiny as other agencies, boards, and commissions, so that a board "can't go rogue."
The justices repeatedly questioned whether any records existed of the RRC impeding the SBE's authority.
"Is it your position that we have to ignore the 25 years that we have and think theoretically it could be possible that the rules commission could violate some power of the State Board?" Justice Paul Newby asked.
Browning said the answer is clearly no.
"There really is no record here to show that the Rules Review Commission has done anything wrong," Browning said.
Erteschik argued the commission has objected to and modified rules. He disputed the RRC's argument that its modifications were not substantive.
During the second hearing, lawyers representing the state board and State Superintendent Mark Johnson grappled over the constitutional role of superintendent plays in setting public education policy.
Chief Justice Mark Martin recused himself from the case because his wife works for the state education agency.
The conflict began when the General Assembly passed House Bill 17 during a 2016 special legislative session. H.B. 17 transferred power from the state board to Johnson, including the authority to manage the state's $10 billion education budget. Johnson also would have gained more oversight in senior staffing decisions and managing hundreds of contracts.
The state board argued H.B. 17 violated the N.C. Constitution and took the issue to court.
Orr, once again representing the board, argued H.B. 17 was a sweeping and unprecedented decision allowing the General Assembly to transfer constitutionally granted power from the board to Johnson.
Orr said the state constitution outlines the responsibilities of the state superintendent as a secretary and a chief administrative officer, whose job is to take the decisions of the state board and work with it to govern the education system.
Justice Barbara Jackson asked what kind of platform a candidate for state superintendent could devise if the duties and positions are determined by the state board. Unlike the state superintendent, who is elected in a statewide contest, most members of the state board are appointed by the governor and confirmed by the legislature.
"They run and they say, 'I want to be superintendent of public instruction and my platform is whatever the board decides it's going to be?" Jackson asked.
"Well, certainly, a superintendent or any candidate can set out a vision of public education, can set out areas for reform, and has an opportunity to meet with the public and teachers and administrators," Orr answered.
Jackson questioned whether the state superintendent could even enact that vision considering Orr's description of the state superintendent's role.
"It seems like, under the argument you're making, all those teeth are with the Board of Education," Jackson said.
Orr said the constitution gives the board the authority.
Attorney Hardy Lewis, who represented Johnson, questioned the limits of the board's power.
"I think the question that really is before the court is who is the ultimate authority with regard to public education in North Carolina?" Lewis asked. "Is it the state board? Are they a fourth branch of government?"
Justice Sam Ervin IV asked whether the state board has core constitutional powers the General Assembly couldn't take away. Lewis said the General Assembly could limit and revise powers.
Vysotskaya, arguing again for the state, made a similar argument. The state's attorney said the General Assembly doesn't have the power to abolish the state board's authority but it could revise it.
Erteschik took issue with this line of argument, posing a theoretical situation in which the General Assembly gave the Court of Appeals power over the Supreme Court.
"If we allow that kind of flexibility, as the state is offering here, this perceived middle ground, the problem with that is, why have a constitution at all?" Erteschik asked.
While both arguments took a couple of hours, the Supreme Court could take several months to issue a ruling in either case.
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