N.C. Supreme Court sides with superintendent over state school board

The N.C. Supreme Court has ruled in favor of Superintendent of Public Instruction Mark Johnson in his power struggle against the State Board of Education. The state’s highest court also has ruled against the state school board in a separate court fight with the commission that oversees state government rules.

Johnson, a Republican elected to office in 2016, saw his victory over the SBOE emerge from a 6-0 decision issued Friday, June 8. (Chief Justice Mark Martin did not participate in the case.)

The board had challenged a state law assigning Johnson more responsibility over operations within the N.C. Department of Public Instruction.

Writing for the unanimous court, Justice Sam Ervin IV concludes that the law did not violate SBOE’s constitutional role to “generally supervise and administer the public school system.”

“The General Assembly’s reference to ‘direct supervision’ suggests that the Superintendent has been assigned responsibility for managing and administering the day-to-day operations of the school system, subject to rules and regulations adopted by the Board, with this allocation of responsibility between the Superintendent and the Board appearing to us to avoid an invasion of the Board’s constitutionally based authority to generally supervise and administer the public school system while admittedly giving the Superintendent great immediate administrative authority,” Ervin wrote.

The state law enables Johnson to organize the N.C. Department of Public Instruction and its divisions, administer the department’s operating funds, enter into contracts for DPI operations, control and manage DPI and state board administrative and supervisory staff, and “have under his or her direction and control, all matters relating to the direct supervision and administration of the public school system.” Johnson is subject to rules and regulations developed by the state board.

“Today’s ruling validates the common-sense proposition that the duly elected Superintendent of Public Instruction should lead the Department of Public Instruction,” Johnson responded in a prepared statement. “I am looking forward to putting this lawsuit behind us and working with board members to strengthen public education in North Carolina.

“While it is unfortunate that it took more than a year and hundreds of thousands of taxpayer dollars to resolve this matter, the positive news is that we will be able to utilize the data-driven analysis to reorganize DPI to help the agency focus on its core mission of supporting educators, students, and parents across North Carolina.”

The state board’s attorneys, Bob Orr and Drew Erteschik, also responded to the ruling. “We are pleased with the Supreme Court’s decision, which reaffirms that the State Board of Education — and not the Superintendent of Public Instruction — has the ultimate authority under the Constitution to supervise and administer the state’s public school system,” they said in a prepared statement. “We are also pleased that, while the Court stopped short of invalidating this particular legislation on its face, the Court unanimously declared that the Board has the final say on ‘the mechanics of the relationship between the Board and the Superintendent, as well as how their respective departments will operate internally.’ … Beyond those initial observations, we are continuing to study the Court’s decision.”

In a separate 5-2 ruling, the Supreme Court decided that State Board of Education rules are subject to review from North Carolina’s Rules Review Commission. That decision affirmed an earlier ruling from the N.C. Court of Appeals.

The board had argued in court that it was exempt from the commission’s oversight.

“We conclude that the plain language of Article IX, Section 5 of the North Carolina Constitution authorizes the General Assembly to enact laws that delegate authority to the Commission to review rules adopted by the Board,” Justice Michael Morgan wrote for the majority. “Moreover, a review of the history of the relevant amendments to the constitution does not indicate that the document’s framers intended that the Board would have the unbridled power to adopt rules and regulations of its own volition. We therefore conclude that the General Assembly has lawfully required the Board to submit its proposed rules to the Commission for review because this procedure was statutorily enacted and the Board’s prescribed constitutional duties are subject to laws enacted by the General Assembly.”

In dissent, Martin contended that only a state law approved through the normal process could limit the State Board of Education’s authority. “But a determination by the Rules Review Commission — which does not go through this enactment process — is not a law. It follows from this, as sure as spring follows winter, that the phrase ‘subject to laws enacted by the General Assembly’ does not mean — and cannot mean — ‘subject to determinations by the Rules Review Commission.’”

State board attorneys Orr and Berteschik responded. “We are pleased with the clarification that the Supreme Court has provided today on a number of constitutional questions about the relationship between the Rules Review Commission and the State Board of Education that have existed for decades,” they said. “We are particularly pleased that the Court has declared that only the Board’s rules directed ‘toward the activities of parties external to [the public education system]’ need to go through the Commission process, whereas all other rules ‘directed primarily toward the internal governance of the state-level entities responsible for the governance of the public education system’ do not.  Beyond those initial observations, we are continuing to study the Court’s decisions.”