Legal Battle Brews Over New State Superintendent Powers

A legal battle continues over the powers of the newly elected Republican state superintendent. The Board of Education is suing the state, saying Mark Johnson's new authority is unconstitutional. The General Assembly passed the law known at House Bill 17 during a special session shifting control of some education policy decisions, but a temporary restraining order has put the law on hold.

Republican leaders say the law returns powers stripped away by Democrats in the mid-1990's.

Earlier this week, a three-judge panel was assigned to hear the case. A hearing on the matter was scheduled for Friday, Jan. 6 in Wake County Superior Court, but has been postponed.

From our education desk, WFDD's Keri Brown spoke with John Dinan, a politics professor at Wake Forest University, to get a better understanding of what's at stake.

What's behind the lawsuit?

The challenge here [or] the question is, are the laws that were just enacted by the General Assembly last month that basically take away a lot of the power from the State Board of Education and give that power to the state superintendent of public instruction, have those gone too far, have those encroached on some power that rightfully belongs to the State Board of Education in the state constitution?

What does the state superintendent gain under the new law?

Of the various things that are at play here, one is the Office of Charter Schools. Who will decide, determine which charter schools get certified and the supervision of charter schools? Another is last year, the legislature created an Achievement School District, which is made up of the five low-performing school districts around the state, which will be run by a new superintendent of this Achievement District. So we're talking about who is going to run charter schools, who is going to choose the new superintendent of this new Achievement School District? These and other matters are right at the crux of the matter. Will it be the State Board of Education that is making the key decisions in these regards, or will it be the superintendent of public instruction? That is what is at issue in this case.

Is this power struggle anything new?

It's not new at all. It most recently goes back to the 1990's where the legislature at that point took some power away from the state superintendent and rewrote the statutes and gave more power to the State Board of Education.

Then there's 2009. That's when former State Superintendent June Atkinson sued Democratic Gov. Bev Perdue and the board after Perdue appointed an education CEO to oversee matters. That also ended up in court. Atkinson won the case.

This is clearly a case where the legislature has said, we are going to take some power that's currently enjoyed by the State Board of Education and give it to the state superintendent.

How could the changes impact education in North Carolina?

When you look at the things at stake here, one is producing important reports. Some of it also is if there's ever a need for budget cutbacks, who makes these decisions about where budget cuts can be made? And then, there's the crucial issues about charter schools and who is ultimately in control of certification and management of charter schools. And in particular this new Achievement School District. So it really does have a lot of implications on some various aspects of education.

I don't want to overstate this. Most school decisions will be made locally at the county level, but there are some important policy differences that ride on the outcome of this case.

Gov. Cooper has the authority to appoint members to the State Board of Education. How could that change all of this, or will it?

Right now, because of the last four years, former Gov. McCrory had a chance to make some of the appointments to the State Board of Education, therefore adding some Republican-backed members. Members serve eight-year terms on the state board, so it's longer than some aspects of state government. And so, over time, Gov. Cooper will have a chance to make some appointments, as some expiring terms take over. Right now, there is significant Republican representation on the State Board of Education, but presumably that will change as it will change on other boards as Gov. Cooper, a Democratic governor, has a chance to make some appointments.

What's the timeline in this case?

A temporary restraining order has kept the law from going into effect.

A Superior Court Judge is weighing arguments for a preliminary injunction. You will probably get a decision on that pretty quickly. But then there's the other matter of running through the system, actually hearing arguments in full detail on the constitutionality of the law. That would go to a Superior Court three-judge panel that could be appealed all the way up to the State Supreme Court, so it could potentially take a long time to get ultimate resolution on some of these questions.  

*Follow WFDD's Keri Brown on Twitter @kerib_news