Dispute between NC superintendent, school board heads to court
Posted June 27
Updated June 29
RALEIGH, N.C. — The question spelled out nearly 150 years ago yet repeatedly fought over by politicians over the past quarter century is back: Who runs North Carolina public schools that educate 1.5 million students at a cost of $13 billion a year?
A lawsuit over that question will be heard by a three-judge panel of state judges beginning Thursday. The case involves Republicans on both sides of the dispute and legislators who have steadily diminished the powers of new Democratic Gov. Roy Cooper.
The Republican-appointed State Board of Education sued in December to stop a law passed days earlier by the GOP-dominated General Assembly that would shift powers to new state schools Superintendent Mark Johnson. The Republican defeated Democrat June Atkinson in November. The state school board decided to resist the effort to drain its powers, saying the state constitution forbids it.
"It's all about politics," said John Dornan, an educational consultant and the retired founder of the Public School Forum. The advocacy group for public education is backed by companies and foundations.
North Carolina is one of about a dozen states in which voters elect a state schools superintendent, but for at least a generation the job has been little more than a cheerleader for public education.
The new law would give Johnson some control over the state's education budget, oversight of charter schools and authority to hire senior-level aides. Johnson would be able to hire, fire and set the salary for the person picked to run a new school district to be made up of some of the state's lowest-performing schools. Those powers were previously left to the state school board.
The case hinges on the state constitution declaring the state school board "shall supervise and administer the free public school system and the educational funds provided for its support." The board also "shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly."
The superintendent is described in the constitution only as "the secretary and chief administrative officer of the State Board of Education." That relationship has been in place since the state's post-Civil War constitution of 1868 and repeated in the current 1971 version, essentially favoring gubernatorial appointees on the school board over the choice of North Carolina voters. But its backers say the school board was created to lessen the politics over assigning education tasks and money.
"The people of North Carolina in their constitution mandated that the (superintendent) would be subservient to the Board, not the other way around," the board's attorneys said in a court filing.
The law passed hurriedly in December, two weeks before Johnson and Cooper took office, can't switch the relationship because "a constitutional body's powers and duties cannot be transferred to someone else without a constitutional amendment," the board's attorneys said.
Politicians have tried several times in the past two decades to undercut or sideline the elected superintendent, but voters have never been asked to change their roles in any of the three dozen constitutional changes since 1971. Lawmakers seriously considered a constitutional amendment in 2011 to give the superintendent more authority, but ultimately couldn't agree.
What about that constitutional language that the state school The board shall make all needed rules and regulations related to education, "subject to laws enacted by the General Assembly"? That's why the power shift is constitutional, Johnson's lawyers said.
"I firmly believe that the General Assembly, the elected body closest to the voters, has every right to revise a statute" giving the superintendent day-to-day operating authority at the state education agency, Johnson said in a court document. "If I do not have the authority to direct agency resources, organize agency staff, and manage agency activities, I cannot make the changes the voters of North Carolina elected me to make."
Lawmakers boosted Johnson's role and diminished the state school board in the same law that eliminated Cooper's authority to appoint trustees for the state's 16 public university campuses and required his agency heads to be approved by the GOP-run Senate.
Cooper is scheduled during his term to appoint six out of 11 members of the state school board, which also includes the elected state treasurer and lieutenant governor. Three of those appointees are now awaiting legislative confirmation.
The last time a Democratic governor tried to appoint members of the school board, Republican lawmakers refused for about two years to take up Gov. Beverly Perdue's nominees. Republican Gov. Pat McCrory filled those three slots within weeks of taking office in 2013.
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