The North Carolina Supreme Court heard two State Board of Education lawsuits on Wednesday, including the board's yearlong battle with Superintendent of Public Instruction Mark Johnson over control of the state's $10 billion public school system.
At issue was whether Republican lawmakers should have been allowed to transfer the Board of Education's powers to Johnson in December 2016 – a month after the Republican he was elected. Johnson has been blocked from assuming that power as the case has worked its way through the court system, and he and the state board have continued to clash during that time.
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Attorneys representing the state board said the change in power would set a dangerous precedent in North Carolina.
If the Supreme Court allows lawmakers to transfer power to the superintendent, "it would endanger the role of this court" and other executive branch officials, said state board attorney Drew Erteschik. What would stop lawmakers from giving the Court of Appeals more authority than the Supreme Court or expanding the lieutenant governor's limited role or putting the secretary of state in charge of agriculture, he asked.
"If we allow that kind of flexibility, as the state is offering here, this perceived middle ground, the problem with that is, why have a constitution at all?" Erteschik said.
The state constitution states the education board "shall supervise and administer the free public school system and the educational funds provided for its support," except fines and penalties that go to county school districts, "subject to laws enacted by the General Assembly."
The constitution describes the superintendent only as "the secretary and chief administrative officer of the State Board of Education." The superintendent's seemingly lesser role has been the norm since North Carolina's post-Civil War constitution was adopted 150 years ago.
What makes the lawsuit unusual in politically divided Raleigh is that Johnson, most legislators, the school board's majority and some lawyers involved in the case are Republicans. But GOP lawmakers have championed Johnson's 2016 election, even giving him $700,000 to hire staffers loyal to him without needing to get the board to sign off on their hiring.
On Wednesday, Supreme Court Justice Barbara Jackson questioned whether the superintendent has any power without the change in law.
"So, if somebody’s running to be superintendent of public instruction, they basically don’t have a platform. They run and they say, 'I want to be superintendent of public instruction, and my platform is whatever the board decides it’s going to be?'" Jackson asked state board attorney Bob Orr.
"Well, certainly, a superintendent or any candidate can set out a vision for public education, can set out areas for reform, has an opportunity to meet with the public and teachers and administrators," Orr said.
"But do they have any teeth to do that under the argument that you’re making?" Jackson interjected. "It seems like, under the argument you’re making, all those teeth are with the Board of Education."
"Constitutionally, the teeth are with the Board of Education," Orr responded.
Johnson has accused the board of severely limiting his authority as superintendent and ignoring or denying his requests to make staffing changes at the state Department of Public Instruction. He has publicly described the board as a group of complainers who shift blame, lack accountability and avoid responsibility instead of fixing the state's "outdated" school system.
Attorney E. Hardy Lewis, who represents the superintendent, questioned how much power the state board should have.
"I think the question that really is before the court is who is the ultimate authority with regard to public education in North Carolina," Hardy said. "Is it the state board? Are they a fourth branch of government? ... Are they able to operate without checks as they seem to be saying here?"
The Supreme Court could take several months to return a ruling in the case. Chief Justice Mark Martin, a Republican, recused himself from the case because his wife works for DPI.
The court heard another education lawsuit Wednesday in which the state board argued that it should not have to submit rules it makes to a state panel for review.
When the General Assembly passes a law, state agencies must adopt rules to carry out that law's intent. In the case of almost all state agencies, the rules they adopt must be signed off by the Rules Review Commission, an appointed panel designed to make sure state agencies don't overstep their authority.
Chairman Bill Cobey said the education board has not submitted anything to the commission since 2014, when the board filed a lawsuit against the commission and the state after lawmakers declined to give the board an exemption.
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Associated Press reporter Emery P. Dalesio contributed to this report.