The State Board of Education on Tuesday convened a special meeting to discuss the constitutionality of House Bill 17, but members adjourned without saying what they talked about or revealing their next move, if they have one.
The substance of the meeting was held in closed session.
H.B. 17, which Gov. Pat McCrory signed into law late Monday, presents a constitutional dilemma to the SBE, which is locked in a debate over whether to take legal action against the legislation, which would expand the powers of Mark Johnson, North Carolina’s new school superintendent and head of the Department of Public Instruction.
While much of the media focus on H.B. 17 has centered around provisions limiting the governor’s power to appoint agency officials and trustees to University of North Carolina campuses, the portion of the law dealing with K-12 education may be the most problematic constitutionally.
The law overhauls the role of the superintendent, stripping the SBE of much authority while expanding Johnson’s administrative role. Such legislation is unconstitutional and may merit legal action, SBE members said Dec. 15, after the law was introduced.
“H.B. 17 An Act to Clarify the State Superintendent’s Role… raises constitutional concerns and eliminates checks and balances that are important to the students of North Carolina,” wrote SBE Chairman Bill Cobey in an official statement. “For these reasons, State Board of Education Vice-Chair A.L. “Buddy” Collins and I oppose H.B. 17. The bill is not in the best interest of public schools and public charter schools in North Carolina.”
But while Cobey and Collins push for court action, other board members remain divided on the issue. Lt. Gov. Dan Forest, a member of the SBE, presided over the Senate when the bill passed.
The SBE will continue to debate its next move, Cobey wrote in a statement, which it released about an hour after Tuesday’s meeting.
“Today, the State Board of Education directed its attorneys to continue to analyze House Bill 17 and review the constitutional implications of the legislation,” he said. “We anticipate convening another meeting of the Board before Jan. 1 to decide how to proceed.”
Cobey declined to speak with the press after the closed meeting. Before exiting the public area to confer in private, members told the press they would return to adjourn in open session, but they ultimately ended the meeting in a separate conference room. They left the door cracked for media members to hear the final proceedings, which were barely audible.
Under Article IX of the N.C. Constitution, the SBE’s role is to “supervise and administer the free public school system, and the educational funds provided for its support. …” The superintendent is “the secretary and chief administrative officer of the State Board of Education.”
H.B. 17 shifts many supervisory duties to the superintendent. For example, the legislation allows Johnson to hire and fire SBE staffers. It also allows him to select the SBE’s local superintendent and student advisers, a task now left to the governor. Johnson defeated incumbent Democrat June Atkinson in November.
A portion of the legislation allows Johnson to appoint the new superintendent of North Carolina’s Achievement School District and would not need SBE approval.
The bill, introduced in the state House on Dec. 14, has stirred more controversy during an already contentious special session at the state legislature, Cobey told Carolina Journal during a Dec. 15 interview, before the board’s closed session meeting.
“I had a hint [a couple of days prior] that this might be coming, but no one in the General Assembly conferred with me, or with anyone else on the board that I know of,” Cobey said. “You would think that they would confer with us, but they didn’t, and it makes for a very difficult situation with a new superintendent coming in. Frankly, if I was the new superintendent, I wouldn’t want them to do this because it complicates the job.”
Cobey doesn’t disagree with all aspects of the legislation, but he finds much of it problematic, especially a provision that allows the superintendent, rather than the SBE, to select staffers that will serve the state board, he said.
“We [don’t like] the fact that we would have nothing to say about the top of administrators in the department,” Cobey said. “We believe we have the right to determine that, since the superintendent is our chief administrative officer, and we are charged in the constitution with supervising and administering a free public school system.”
North Carolina’s constitution says the SBE “shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.”
But the SBE is on strong footing to challenge the constitutionality of the bill, Cobey said.
“I anticipate that the local education agencies and the school board will not like this, and I think that there’s a misconception that they will,” he concluded. “Yes, we’re a service organization, we have to implement laws and rules, but [our schools] really depend on us being competent from day-to-day. This threatens the competency of the agency.”
This isn’t the first tangle between the SBE and the DPI, says Terry Stoops, director of education studies at the John Locke Foundation. In 1995, the legislature, alongside Gov. Jim Hunt, passed Session Law 1995-72, a bill that enhanced the state board’s power over the superintendent and DPI.
H.B. 17 essentially reverses course on that legislation, shifting responsibility back to the superintendent, he added.
In another legal clash in 2009, Superintendent June Atkinson sued former Gov. Bev Perdue after Perdue tried to transfer administrative power from Atkinson to then-SBE Chairman Bill Harrison, for whom Perdue created the position of chief executive officer of DPI.
Harrison held both positions briefly. But Atkinson, with the help of former North Carolina Supreme Court Justice Bob Orr, took Perdue to Superior Court and won. Harrison stepped down from the CEO slot while remaining chairman of the state board. The controversy ended when Perdue chose not to appeal the court decision.
Orr, who now represents the SBE on the North Carolina Rules Review Commission, declined to comment on H.B. 17, but he told CJ that Atkinson’s case does not set precedent for the current situation, as the superintendent was contesting regulatory and statutory authority, not constitutional compliance.
“I do think [these cases] are different in that the current legislation attempts to transfer authority from the state board to the superintendent, whereas June’s case was an attempt to transfer authority from the superintendent to a newly created position,” Orr said.
Ultimately, Stoops said, H.B. 17 digs a tough road for Johnson, who hasn’t moved into his DPI office but already has placed himself at odds with the state board.
“Johnson has, to put it mildly, strained the relationship between him and the entity that largely controls policymaking for public education,” he said. “He may be a ‘defendant’ before he’s ‘superintendent.’”