Lawyer: Swapping who runs NC schools would have wide impact
By EMERY P. DALESIO
Feb. 07, 2018
RALEIGH, N.C. (AP) — A fight over who will control North Carolina public schools that educate 1.5 million students landed Wednesday before the state's highest court, which must decide whether legislators can mix and match powers seemingly spelled out in the state constitution.
The state Supreme Court quizzed lawyers over whether state's government's most basic ground rules allow lawmakers to shift powers including control of about $10 billion a year in education spending from the appointed state school board to the elected schools superintendent.
"So what we have before us is, what are the core constitutional duties of the two groups and what flexibility does the General Assembly have?" in making changes, Justice Sam Ervin IV summarized.
The state constitution states the school 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 schools Superintendent Mark Johnson, most legislators, the school board's majority and lawyers on both sides of the case are all Republicans. But GOP lawmakers have championed Johnson's 2016 election, even giving him $700,000 to hire staffers loyal to him.
Andrew Erteschik, an attorney representing the state school board, said only voters can amend the constitution and thus the General Assembly overstepped its powers by suddenly adopting the law a month after Johnson's election.
The cut-and-paste of the law called House Bill 17, swapping the description of the school board's powers with the superintendent's powers, is a bald attempt "to replace the General Assembly's chosen officer, who shares the General Assembly's political priorities, with the constitutional body that has been in charge of the public school system," Erteschik said.
The constitution states "the school board is in charge of the public school system. HB17 says that the board is not in charge of the public school system," he said. It's not a situation "where the General Assembly can just rearrange the constitutional seating chart."
If the court upholds this change, Erteschik said, legislators could next decide to expand the lieutenant governor's limited role, put the secretary of state in charge of agriculture, or even diminish the Supreme Court's oversight of the state's judiciary.
A lawyer for Johnson didn't entirely back away from that claim.
"The General Assembly has significant power to revise and to limit even the expressed powers granted in the constitution," Johnson attorney E. Hardy Lewis said. "The people have put into the constitution that the state board shall exist and it shall perform these duties, subject to the laws enacted by the General Assembly."
The legal arguments were heard less than two weeks after the state's high court placed limits on the General Assembly's ability to reshape government operations. That case ruled unconstitutional a law eroding Democratic Gov. Roy Cooper's control of appointments to state and county elections boards. The court divided 4-3 along party lines, with all Democrats siding with Cooper.
On Wednesday, Chief Justice Mark Martin, a Republican who sided with lawmakers in the elections board case, recused himself from the case because his wife works for the state education agency that Johnson heads.
Martin did participate in a second case Wednesday filed long before Johnson's election. That lawsuit challenges whether a state commission that oversees agency rules can invalidate regulations that the state school board adopts.
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