When we are children, our parents and relatives urge us to “play by the rules.” Typically, violating the rules triggers consequences that correspond to the severity of the violation. But that is how it works in the real world. In the world of state government, some agencies act as if the rules do not apply to them.
Aside from the laws and statutes themselves, the most important set of rules in state government is the Administrative Procedure Act. The APA is a set of uniform procedures that state agencies must follow to adopt rules and policies. A small number of agencies, committees, and policy areas are exempt from these rules. Others, including the N.C. State Board of Education, are not.
Nevertheless, since 2005 the state board largely has ignored the APA. The board created, approved, and implemented numerous rules and policies that did not follow procedures mandated by law. This has enormous implications for education policy.
Simply put, state education officials may not be able to enforce a slew of substantive policies that address issues including testing, curriculum, and charter school governance.
In 1985, the General Assembly established the Office of Administrative Hearings to carry out the APA. The OAH may sound like another superfluous regulatory entity. And there may be aspects of the APA process that are overly bureaucratic. But the process is essential for those of us those who believe that government should be open and accountable to its citizens.
A rule or rule change proposed by a state agency must be published in the North Carolina
Register, a bimonthly publication that is available online. At least two weeks after publication, the agency may begin conducting public hearings on the rule, and at least 60 days must elapse until the agency takes action on the rule. An approved rule goes before the Rules Review Commission within 30 days after adoption and will become effective the first day of the month following approval, unless the commission receives at least 10 written objections to it.
Lawmakers designed a slow and deliberate APA process for a reason. It ensures that citizens have an opportunity to review and comment on rules and policies proposed by state agencies. In addition, the APA empowers citizens, who may petition an agency to adopt a rule or object to existing rules that they find burdensome or unnecessary.
In this way, the APA process is a reasonable way to maintain transparency and accountability within state government. It ensures that state agencies do not overstep their authority and/or trample on the rights and well-being of the citizens of North Carolina.
State education officials contend that the State Board of Education must bypass the APA process because they make rules and policies in response to state and federal mandates. They claim that these mandates come with deadlines that necessitate an expedited review and approval of their policies.
Jeanette Doran, executive director and general counsel for the N.C. Institute for Constitutional Law, recently responded to the board’s claim. In a legal analysis of the issue, she concluded, “Thus, attempts to label SBE/[Department of Public Instruction] rules as policies do not remove these measures from the requirements of the APA and any policies or procedures approved in contravention of the APA would be illegal.”
In other words, the State Board of Education has no legal basis to enforce rules and policies that did not go through the APA process. It does not matter whether the numerous rules and policies adopted independently of the APA process were necessary, harmless, or detrimental. The State Board of Education is likely operating outside of the law.
Terry Stoops (@TerryStoops) is director of research and education studies at the John Locke Foundation.