Attorneys for Board of Ed, Superintendent clash over transfer of power

By: - June 30, 2017 10:07 am

Lawmakers either had no authority to transfer constitutional powers and duties from the state Board of Education to Superintendent of Public Instruction Mark Johnson or full authority to do so, and both arguments presented to a three-judge panel yesterday hinge on Article IX, Section 5 of the North Carolina Constitution. The provision reads as follows:

“The State Board of Education shall supervise and administer the free public school system and the educational funds provided for its support, except the funds mentioned in Section 7 of this Article, and shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.”

Attorneys for the Board argued that lawmakers, in crafting House Bill 17, encroached on the Board’s constitutional authority by copying and pasting its powers and duties and transferring them to Johnson.

Attorneys for Johnson, who defeated Democratic incumbent June Atkinson, argued that the General Assembly had authority to transfer power because of the constitutional language that the Board’s power is “subject to laws enacted by the General Assembly.”

Bob Orr, an attorney for the Board and former state Supreme Court justice, explained the historical context of the constitutional amendment in question. He said a constitutionally authoritative Board was created as a solution to the challenges of a growing free public education system.

By the opponents’ interpretation, he said, the General Assembly could do anything it wanted without regard for the Constitution, which would ultimately create chaos in the governance of that education system.

“Whatever ‘subject to’ may mean, it is clear it could not have been the intent of the framers to give the General Assembly a blank check to turn right around and undo everything that the constitutional amendment had just sought to accomplish,” said Orr.

The three-judge panel had questions right off the bat.

Judge Martin B. McGee said in reviewing everything, it appears all the parties have a role in the free public education system: the General Assembly, the Board and the Superintendent — much like a three-legged stool.

“What do you think the role of the Superintendent is?,” he asked Orr. “Does the General Assembly have the power to move the line in terms of where the authority ends?”

Orr said the General Assembly has the power to assign a wide variety of statutory duties to the Superintendent, but they cannot encroach on the constitutional duties assigned to the Board.

McGee said the Constitution reads the way Orr interprets it but that the language “supervise and administer” was abstract and creates a challenge for the judges in the context of Johnson being the chief administrative officer of the Board.

“What are the specific powers and duties and where does one end and the other begin; what is allocated to the Superintendent, and is it allocated by the Constitution, by the Legislature or by the State Board?” McGee asked.

Orr said he understands the need for clarity, but that Johnson’s role was not a question before the court — the crux of the case is whether or not the General Assembly can take clear constitutional authority of an entity and give it to, essentially, anyone they want to.

He described the Board as the ultimate entity responsible for the administration and the supervision of the school system.

“The Superintendent, and I don’t mean this in any way to diminish the accordance and value of the elected Superintendent, but that role is subservient from an administration standpoint to the Board’s constitution,” Orr said.

Johnson’s attorney, Hardy Lewis, argued that it is not the Board, but the General Assembly, that has supreme authority over the free public school system per the Constitution.

He discussed some of the changes to the Constitution with regard to education said the framers’ intent was flexibility.

“It’s a pretty black and white statement of policy that the number one authority is the General Assembly,” Lewis said.

When pressed by the judges, Lewis said he did not believe that lawmakers’ power is unlimited. Pressed even further, he conceded that the boundary for when lawmakers go too far is the point at which a constitutional office is left an empty shell.

The Department of Justice’s Olga Vysotskaya, who represented North Carolina, agreed but said since HB17 doesn’t render the Board powerless, it was not unconstitutional. She pointed to a state law and said it preserves a lot of the Board’s powers.

Vysotskaya added that it was her interpretation that the General Assembly had the power to legislate the relationship between the Board and the Superintendent. The case, she said, is an opportunity for the court to correct a misconception of the Board about its own powers.

“My personal opinion is that the plaintiffs did not meet their burden of persuasion in what’s right and what’s wrong here; our position as [the state] is that the General Assembly’s enactment should be left intact,” she said.

Ultimately, Judge Forrest Donald Bridges asked the parties to focus on the General Assembly’s boundaries in making changes with regard to the Constitution. He said the panel also wanted to know what the fundamental characters of the Board and the Superintendent are.

Another of the Board’s attorneys, Andrew Erteschik of Poyner Spruill, said the panel didn’t have to go as far as determining the character of each entity because legislators copied and pasted powers from the Constitution and transferred them.

“At the end of the day, we’re supported by the text [of the Constitution], 150 years of history, the framers’ intent [and] every case in the country that’s ever looked at this issue, including three North Carolina Supreme Court cases, and the defendants in this case are supported by quote, ‘political issues.'”

Erteschik added that the judges must strike down all of HB17 because anything else would be legislating from the bench.

“These laws typically rise and fall as a whole,” he said. “It’s difficult for judges … to hang up their robes and to simply act like legislators and craft this complicated [legislation], and so your honors, what I would say if you’re feeling that struggle, that difficulty in putting this law back together, it’s because it can’t be put back together.”

Lewis argued that the General Assembly only crosses the constitutional line when the Board no longer has anything to talk about or when they take away all the Board’s duties.

McGee told each party that the challenge for the panel would be making a decision based on the attorneys’ “all or nothing” arguments about the power of the General Assembly.

Bridges agreed and drove the point home that what seems like a simple question to them poses a great struggle for the panel.

“It’s not as obvious to us as it is to you, obviously,” he said.

Each of the judges thanked the attorneys as said they would take their arguments under advisement and decide the case at a later time.

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