State justices schedule arguments on education board’s constitutional powers

The state Supreme Court in early February will hear arguments in two lawsuits that may finally determine how much authority the constitution gives the State Board of Education.

North Carolina State Board of Education v. The State of North Carolina is scheduled Feb. 7 at 9:30 a.m. North Carolina State Board of Education v. Mark Johnson will be heard at 10:30 a.m. that day.

Both lawsuits address the separation of powers outlined in the N.C. Constitution. The state board argues in both cases that the legislature and other state agencies have stepped on the board’s constitutional powers.

The legal fight between the board and state Superintendent Mark Johnson, who heads the Department of Public Instruction, has generated media attention since it started in December 2016.

During a 2016 special legislative session, the General Assembly passed House Bill 17. It transferred power from the state board to Johnson, including the authority to manage the state’s $10 billion education budget. H.B. 17 also gave Johnson more oversight in senior staffing decisions and managing hundreds of contracts.

The state board filed a lawsuit against the legislature and the state superintendent, arguing H.B. 17 violated the N.C. constitution, which gives the board the authority to “supervise and administer the free public school system.”

A three-judge Superior Court panel in July 2017 sided with Johnson. A few months later, the state Supreme Court approved the board’s motion for a temporary stay, delaying the implementation of H.B. 17 during an appeal. The board then filed a motion to bypass the N.C. Court of Appeals and appeal directly to the state Supreme Court.

“I look forward to the state Supreme Court upholding the lower court’s unanimous decision that allows for a system of great accountability at the Department of Public Instruction,” Johnson said in an email. “It is time to put this issue behind us so we can concentrate completely on the education of the students here in North Carolina.”

The state board’s attorney Bob Orr said the board also looks forward to addressing the higher court.

“The state board is pleased to be able to present its arguments to the N.C. Supreme Court on these extraordinarily important constitutional issues,” Orr said. “Having thoroughly briefed those issues, we are confident about our position in the two cases and look forward to addressing the court’s questions.”

But before the state Supreme Court can hear the lawsuit involving the state board and Johnson, the court will hear the case involving the Rules Review Commission.

The commission has been around since 1986. Most state agencies have to submit rules to the commission for approval, but in 2014 the state board filed a lawsuit, saying it was not constitutionally bound to submit policies. The board also argued the review process violated separation of powers.

A lower court in July 2015 ruled for the board, but in September 2017 the Court of Appeals reversed the trial court. The appellate court argued the commission can review and approve policies from the state board without violating separation of powers. The state board disagreed and appealed the decision.