Davin Eldridge—Contributing Writer
The ever-changing face of public education in North Carolina got a new look on Friday, after the state’s Supreme Court ruled in favor of granting additional powers to the Superintendent of Public Instruction. The case was nearly two years in the making, and with its conclusion marks yet another victory for legislators on the right side of the aisle in Raleigh.
The June 8 ruling stems from House Bill 17, crafted by the North Carolina GOP back in 2016, which the Board of Education hotly contested shortly after it was submitted. In essence, the law takes away a number of administrative powers and duties from the board, and hands them over to Republican Mark Johnson, Superintendent of the Department of Public Instruction (DPI).
The ruling also diminishes the Board’s role as the main supervisory body of the department, while ensuring Johnson is now its head. It didn’t take long for the ruling to invoke responses from either party. By midday, Johnson issued the following statement:
“Today’s ruling validates the common-sense proposition that the duly-elected Superintendent of Public Instruction should lead the Department of Public Instruction,” said Johnson. “I am looking forward to putting this lawsuit behind us and working with board members to strengthen public education in North Carolina.
“While it is unfortunate that it took more than a year and hundreds of thousands of taxpayer dollars to resolve this matter, the positive news is that we will be able to utilize the data-driven analysis to reorganize DPI to help the agency focus on its core mission of supporting educators, students, and parents across North Carolina.”
The opposition admitted little, if any defeat in their response, offering instead their “initial observations” of the decision by openly examining some of its verbiage:
“We are pleased with the Supreme Court’s decision, which reaffirms that the State Board of Education — and not the Superintendent of Public Instruction — has the ultimate authority under the Constitution to supervise and administer the state’s public school system,” said Board attorneys Robert Orr and Drew Erteschik. “We are also pleased that, while the Court stopped short of invalidating this particular legislation on its face, the court unanimously declared that the Board has the final say on ‘the mechanics of the relationship between the Board and the Superintendent, as well as how their respective departments will operate internally.’”
Big Man On Campus
This summer’s regime change promises to alter the DPI’s bureaucratic nature in several ways:
- All of the department’s administrative and supervisory appointees—some of whom have served in their official capacities for several years—will now be under the Superintendent’s purview of “control and management.” This includes Board staff. Before today’s ruling, those appointments were subject to Board approval or termination “for cause.” Now, that verbiage no longer exists, and Department staffing falls entirely under Johnson’s discretion.
- The Office of the Superintendent will be limited to 70 exempt policymaking positions and 70 exempt managerial positions.
- Another role Johnson has absorbed is the appointment of the head of the Achievement School District—a brand new position charged with serving students in many of North Carolina’s lowest-performing schools. Before, the Board had the job of making an ASD appointment, pending the recommendations of an advisory committee appointed by Lieutenant Governor Dan Forest.
- Whoever Johnson ends up choosing as the top ASD administrator, that person will report directly to him, serving at the pleasure of the superintendent’s office. The ASD administrator’s salary will also be set by Johnson, according to HB 17. To date, more than 50 candidates have applied for the ASD position. Out of the state’s 2,600 public schools, 505 of them fall into this category—that’s roughly one fifth of all North Carolina schools.
- The superintendent will also be responsible for administering department funds, and executing contracted work from outside the bureau. Before today’s ruling, those duties were performed at the “discretion, control and approval” of the Board. By nixing that language from law, the transfer of those capacities to the superintendent implies that office now has been granted broad, sweeping executive powers. Critics maintain this not only takes the burden of responsibilities once shared by several administrators and places it into far fewer hands—but it also deneutralizes the operational nature of the public school system to a great degree, by consolidating administration into a single office.
- Instead of North Carolina’s governor, the DPI Superintendent now has the power to appoint all local school superintendents, as well as the two high school student advisers to the Board.
- Finally, the superintendent will not only manage any and all state educational grant funding received by outside sources, it now also controls any and all matters related to the direct supervision and administration of North Carolina public schools.
After School Special Meetings
As of 4 p.m., on the afternoon of the decision, Board members were still embroiled in an emergency meeting which eventually dove headfirst into a closed session. Many educators across the Tar Heel State awaited their next announcement.
To the west, outspoken history and philosophy teacher John deVille wasted little time mincing even fewer words on social media.
“I find it interesting that Superintendent Johnson complains about the ‘hundreds of thousands of dollars’ spent on the litigation which pales in comparison to the million dollar plus audit of his own Department of Public Instruction that he commissioned in the evidence-free assumption the audit would uncover millions of dollars of waste,” said deVille. “What the examiners found instead was that DPI was grossly underfunded and understaffed, citing that the department was at least 100 professional employees short to carry out its mission effectively. And yet DPI is being cut another $5 million for fiscal year 2018 – 2019 by this General Assembly. And Superintendent Johnson is silent in regards to that cut. Which is his go-to move whenever the interests of the super-majority, to whom he is so obviously beholden, are in conflict with the best interests of the educational lives of the children of North Carolina.”
Just two days before the ruling, attorney Bob Orr argued passionately on behalf of the Board, claiming the transfer of administrative powers to the superintendent was a violation of the board’s constitutional authority. Moreover, he described his opposing counsel’s position as, more or less, overreaching, by contending state legislators have the power to alter administrative powers granted by the North Carolina constitution.
“This is not about some statutory interpretation,” he said. “This is not about general versus direct. This is a sweeping, unprecedented contention.”
His opponent on the other hand, Hardy Lewis, cited one particular passage in the constitution which outlines the duties of the Board of Education.
“The general supervision and administration of the free public school system shall be vested in the State Board of Education,” he read. “The State Board of Education shall establish all needed rules and regulations for the system of free public schools, subject to the laws enacted by the General Assembly,” the statute states.
It was that last part of the passage which Lewis said granted legislators substantial governmental reach, with regards to altering the functions of state boards.
“That phrase means that the General Assembly can revise and limit even the expressed constitutional powers,” said Lewis.
Board To Tears
But not all is lost for the Board. While the new law grants the Superintendent’s position direct influence and control over all administration of the North Carolina public school system, the Supreme Court’s ruling re-asserted the Board’s grounding as a “general” supervisory role.
While the law was also drafted in an open-ended manner, according to other state counsel, it also maintains and preserves the collaborative spirit that’s historically always been “in play” between the Superintendent and the Board, according to legal critic M.L. Sanders, of Chapel Hill.
“When you really take a good look at it, what [HB 17] does is it strengthens the position of the General Assembly, which has a long history of decapitating ineffective school superintendents,” said Sanders. “Aside from the obvious political maneuvering we see in this, it’s also pretty clear there’s been little attempt at ‘back-dooring’ the language here.”
‘Back-door’ legislative verbiage basically indicates legal flexibility, explained Sanders.
“It’s certainly indicative of the whole … ‘we’re in control now’ attitude that GOP officials seem to have these days here in Raleigh,” said Sanders, originally from Macon County, who is himself a Republican. “They’re either feeling really confident that they’ll hold that office for a while, or they just don’t care to go against their own traditional platform of ‘small government’, by making these administrative changes much harder to repeal down the road.”
“You gotta admire how good lawmakers are at thumbing their noses at democratic process,” he said. “I’ll be the first to admit conservatives have gotten worse at it in recent years. But just like everything else, the Democrats aren’t that far behind us. At the same time, the Board is a bureaucracy. It was established and has remained charged in its duties for a long time now, at the behest of elected officials.”
North Carolina Justice Barbara Jackson, who presided over the case, echoed Sanders.
“That’s counter to what we generally see,” she said, in response to the Board’s argument that HB 17 skirts government overreach and institutional accountability. She pointed out the superintendent’s office hinges entirely on elections being held every four years, rendering the post accountable to the voters.
Justice Sam Ervin chimed in:
“The real issue is: does the board have sufficient ultimate authority to carry out its role as the policy-making head of the system?”
State attorney Olga Vysotskaya clarified the function and intent of HB 17, and emphasized it did anything but leave the Board toothless, which would have been true overreach.
“It preserves the general supervisory role of the board, shows that the superintendent is bound by the directives of the board, and that they are left with a variety of powers not related to direct supervision,” she said.
Whether or not the Board’s fundamental purpose was left strangled by today’s decision, one thing remains perfectly clear, at least as far as some educators are concerned—the state may have won a battle, but not the war. As long as the political climate remains the way it did before today’s decision, teachers like deVille will rally behind an opposition to the agenda that propelled Johnson to office.
“Superintendent Johnson has claimed this NC Supreme Court victory has given him absolute control over the Department of Public Instruction rather than sharing it, as has been the tradition, with the State Board of Education,” said deVille. “Since Superintendent Johnson is happy with his new leadership powers, NC educators are watching to see him wield those powers wisely, because from where we sit in the classroom with our children, we haven’t seen much leadership nor wisdom from him.”