NC legislative proposal would dramatically overhaul how North Carolina governs its public schools

By: - July 20, 2022 12:56 pm

Rep. Hugh Blackwell (R-Burke) explains the merits of House Bill 1173 to members of the House Education Committee.

Rep. Hugh Blackwell (R-Burke) explains the merits of HB 1173 to members of the House Education Committee.

GOP sponsors push for an elected state school board, but Democrats warn against further politicizing public education

A bill that would require State Board of Education members to be elected is a “horrible idea” that could exacerbate the state’s growing partisan divide over public schools, says June Atkinson, a former state Superintendent of Public Instruction.

Atkinson’s remarks are in response to questions about House Bill 1173, Republican-backed legislation that would put the question of whether to elect state board members before voters as part of a referendum. Currently, North Carolina is one of 11 states in which the governor and legislature appoint all or most state board members and the state superintendent is elected, according to the Education Commission of the States, a nonprofit, nonpartisan education think tank based in Denver, Colorado.

“No. 1, it [HB 1173] makes education more political than what it is today,” Atkinson, who served three terms, told Policy Watch. “No. 2, it would require a great deal of work on behalf of people to know who the people are running for state board of education; and it has the potential of minimizing the board working as a cohesive body.”

Last month, HB 1173 was approved by the House Education Committee along party lines, with Republicans voting in favor of the bill and Democrats against it. The bill was ultimately removed from the House calendar and sent to the House Rules Committee, where it is likely to be revived later this year.

Under the proposal, the state superintendent would become the head of the state board. Supporters contend the move would end constitutional and historical confusion about who’s in charge of North Carolina’s public schools.

“This is designed to put that leadership role in clear hands and to make the superintendent the person running the board so that we don’t have that conflict between the head of the state board and the superintendent,” Rep. Hugh Blackwell, a Burke County Republican and one of the bill’s primary sponsors, said last month at a House Education Committee.

Atkinson, though, favors the current arrangement. “I believe it’s in the best interest of the state and children for the state superintendent to continue as the secretary of the board and not be a voting member,” Atkinson said, explaining that it would be difficult for a state superintendent to vote against a policy approved by the board, then faithfully implement it.

In North Carolina, the state superintendent serves as the secretary and chief administrative officer of the State Board of Education, as well as the administrative head of the Department of Public Instruction, and a member of the Council of State. Meanwhile, the State Board sets policy and general procedures for public school systems.

An advantage of having the superintendent lead the board, say supporters, is that the person in such a position would be able to control the state’s education agenda.

“If you have an outstanding, wonderful state superintendent, then that may be advantageous to the state, but we don’t always have outstanding, wonderful superintendents, so you have to think in the long term,” Atkinson said.

Former state Superintendent June Atkinson

As a former president of the Council of Chief State School Officers, a nonpartisan, nonprofit organization of officials who lead the nation’s public schools, Atkinson worked closely with appointed and elected school leaders from across the country.

“My experience has been that where you have elected state board of education members, you have turnover and you have more political conversations rather than the top conversation, which should be what is best for kids in the state,” Atkinson said.

Blackwell told House colleagues that allowing state board members to be elected would give parents a greater say in their child’s education. “If anything has become clear the last few years, it’s that parents and voters feel like they need to have more say in what is happening in our schools, what kind of instruction is being delivered, what kind of leaders we have, and this is designed to give them that voice,” Blackwell said.

During the COVID-19 pandemic, angry parents have had plenty to say about how schools are run. Some gathered at local board meetings to protest school closings, remote learning and mask mandates, while others advocated loudly for such policies to remain in place.

Since then, many of the same parents who protested school closings have, in tandem with Republican elected officials, gone on to attack local boards about books they deemed inappropriate for school children and to protest critical race theory. The latter is an obscure academic discipline that examines how racism has shaped public policy. Most educators say critical race theory isn’t taught in K-12 schools.

A unique system of shared governance

North Carolina is the only state in which the state constitution authorizes the state board to administer and supervise the public education system, according to Evergreen Solutions, a consulting firm hired by the General Assembly’s Program Evaluation Division in 2008 to prepare a report examining school governance in North Carolina.

Click here to see the ECS Education Governance Dashboard.

“This is a critical distinction, and therefore is the controlling element regarding State Board governance and the role of the State Superintendent,” the consultants wrote.

The governor and other state officials, such as House and Senate leaders, appoint board of education members in 38 states. Board members are elected in Alabama, Colorado, District of Columbia, Kansas, Michigan, Nebraska, Texas and Utah. Meanwhile, Louisiana, Nevada, and Ohio use a combination of appointed and elected seats to fill their boards.

Three states — Minnesota, New Mexico, and Wisconsin — do not have state boards.

Rep. Cecil Brockman

Nathan James, deputy executive director of the Tennessee State Board of Education, noted new legislation in that state that gives three state board appointments each to the House Speaker, lieutenant governor and governor. Prior to July 1, the governor made all nine appointments.

“The three members appointed by the lieutenant governor are subject to Senate confirmation, the three members appointed by the House Speaker are subject to House confirmation and three appointed by the governor are subject to confirmation in both houses,” James said.

James, who once served as a policy advisor to former Republican Louisiana governor, Bobby Jindal, said that that state’s system of appointing some board members and electing others can be a tough one, especially for candidates seeking office. “First of all, they’re not paid, then you have to run a race in a congressional district, and that’s a tough business,” James said. “I think appointed members are a very good thing as long as there are mechanisms in place to keep everyone independent.”

Rep. Cecil Brockman of Guilford County, the ranking Democrat on the House K-12 Education Committee, said it would be unfair to force state board members to raise money to fund campaigns. “I have no idea on God’s green Earth why we would make our officials who are supposed to be nonpartisan have to raise money and become partisan because of having have to raise money,” Brockman said.

Under the proposed legislation, state board members would be elected from districts established for members of the U.S. House of Representatives — districts that have repeatedly been the subject of lawsuits alleging illegal political gerrymandering. Brockman said electing state board members might work if congressional districts were drawn by a nonpartisan commission.

Rep. Kandie Smith (D-Pitt) expressed her own concerns the shift could place minority representation on the state board in jeopardy.

Ultimately, James said, state boards are designed to provide oversight. Education, roads and jurisprudence are the three things that bind the citizens of each state, he said.

“There is nobody who isn’t touched by the efficacy of the school system,” James said. “It’s important to have a board that is solely not focused on advocating for a profession or just for business or just for teachers; but that they’re all focused on what works the best to turn kids into critical thinkers that can keep this republic going.”

A perennial subject of debate

Atkinson, a Democrat, was first elected state superintendent in 2004 and served three terms before being unseated by Republican Mark Johnson in the 2016 general election.

During their reigns as superintendents, both Atkinson and Johnson, a one-term superintendent who did not seek reelection in favor of an unsuccessful run for lieutenant governor, filed lawsuits over the duties and powers of the superintendent.

Atkinson’s lawsuit pitted her against then-Democratic Gov. Bev Perdue after she hired a chief executive officer to run the day-to-day operations of NCDPI. The move was applauded by some who believed it brought long sought-after clarity about who was in charge at NCDPI.

“There was uncertainty about who was in charge. Was the state board in charge? Was the superintendent in charge? Was the deputy state superintendent in charge? There was uncertainty about who to go to,” Ed Dunlap, former executive director of the North Carolina School Boards Association told WFAE in January 2009.

Prior to the lawsuit, Atkinson said, she served as little more than a cheerleader for the state’s public schools.

“I had nothing to say about who was hired, not hired; what would be our priorities, what would be our strategic plan to carry out the policies of the State Board,” Atkinson said. “I was regulated to being a person who, to use the governor’s [Perdue] words, an ambassador for public education.”

The court sided with Atkinson. “After my case, I had the authority to run the Department of Public Instruction, do employee evaluations; appoint a leadership team,” Atkinson said.

Both Johnson and the State Board claimed victory in a subsequent case brought after the General Assembly approved legislation broadening the state superintendent’s powers. A three-judge panel of the state Supreme Court ruled that the superintendent has the authority to manage the day-to-day operations of the state school system; the new legislation did not usurp the constitutional authority of the state board to supervise and administer the public school system, according to the ruling.

Dylan Blackburn, a law student at UNC Chapel Hill who previously interned at NCDPI, is writing an article examining the state’s K-12 education governance for the North Carolina Law Review, a student-led journal.

Blackburn said the constitutional question that has challenged North Carolina’s public schools is whether the constitution grants the superintendent power outside of the board’s supervision.

“The courts have said ‘yes’ and taken on the impossible task of defining the superintendent’s inherent powers from vague text,” Blackburn said. “This bill [HB 1173] does nothing to answer that question— even as chair of the board, future elected superintendents will claim some exclusive powers and future elected boards will disagree, leaving the governance of North Carolina’s public schools in limbo once again.”

Blackburn said there is a good case to be made for allowing the state board to appoint a superintendent to ensure accountability.

“There is no hard power or check against the superintendent that is supposed to be carrying out the board’s policies,” Blackburn said.

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Greg Childress
Greg Childress

Education Reporter Greg Childress covers all aspects of public education in North Carolina, including debates over school funding, curricula, privatization, and teacher pay and licensing.