State education board to appeal court ruling in favor of NC superintendent

"We’re going to ask for the bypass provision so that we go directly to the Supreme Court," said state board Chairman Bill Cobey. "We think this is such an important constitutional issue that we’re hoping it will be dealt with expeditiously."

The board's decision to appeal was not unanimous, Cobey said. He declined to say how the vote split during the closed-session meeting.

State Superintendent Mark Johnson declined to comment and directed all questions to the board.

The state board filed suit in December after Republican lawmakers passed legislation in a special session that provided the newly elected state superintendent more flexibility in managing the state's education budget, more authority to dismiss senior level employees, control of the Office of Charter Schools and the ability to choose the leader of the new Innovation School District, which oversees some of the lowest-performing schools in the state.

The powers in question have been under the State Board of Education's control, and board members said shifting them to the elected superintendent violated the state constitution and threatened the working relationship between the board and the superintendent.

In its ruling Friday, a three-judge panel said the state board "failed to satisfy its burden of proof as to the facial unconstitutionality of any provision of the statute."

Yet, the judges stated that "it appears to be the clear intent of the Constitution that the State Board shall have the primary authority to supervise and administer the free public school system and the educational funds provided for the support thereof … "

"We’re trying to parse out what all that means," said Bob Orr, an attorney for the state board.

In a statement after the ruling, Johnson said he looks forward to, "belatedly, working for more and better change" at the state Department of Public Instruction.

"For too long, the lack of clarity about DPI leadership has fostered a system of non-accountability," Johnson said. "While this system is great for shifting blame and avoiding responsibility, non-accountability at DPI hurts North Carolina students."

On Wednesday, Cobey explained his unhappiness with the judges' ruling.

"Quite frankly, I’m very disappointed in what the three-judge panel did. The best word I’ve heard to describe it is it’s inexplicable what they did," he said. "They tried to have it both ways or split the baby, and we need clarity. And that’s what the appellate courts are all about, they provide clarity."

Johnson, a Republican, ousted longtime Democratic Superintendent June Atkinson last fall and took office in January.

The fight between Johnson and the board, which has a Republican majority, has turned bitter in recent months, with Johnson saying the board "severely limited" his authority and ignored or denied his requests to make staffing changes at DPI.

Lawmakers included $700,000 in the state budget for Johnson to hire 10 staffers without the approval of the state board. The budget also provided him with $300,000 for his legal expenses while barring the state board from using taxpayer money to fund its lawsuit.

Cobey said the board has been working well with the superintendent despite the lawsuit. For example, they have to cut personnel after lawmakers cut $3 million from DPI's budget.

It's unclear how many jobs will be lost, but Cobey said officials hope to make decisions by Monday.

"I know the news media needs to focus or wants to focus on the things that kind of divide us, but there – it's just like over in the General Assembly, there are a lot of things that unite," he said.