NC education board to sue over power transfer

The Republican-dominated State Board of Education will sue over a new law transferring many of its powers to newly-elected Republican state Superintendent of Public Instruction Mark Johnson.

The board discussed legal action in closed-door meetings for about three hours over the past week, including for nearly an hour on Wednesday. Members did not speak publicly after the meeting but issued a statement saying, “The State Board of Education today authorized its attorneys to move forward with a constitutional challenge to the provisions of” the law “that attempt to transfer the State Board of Education’s constitutional powers and duties to the State Superintendent of Public Instruction.”

During a special session two weeks ago, the GOP-led legislature consolidated hiring powers at the Department of Public Instruction with Johnson, removing the need for state board approval of administrative and supervisory staff appointments. The law removes the need for board approval of contracts. The head of the state charter school office and a new superintendent of a special state school district to be made up of charter schools would work for Johnson rather than the board.

Johnson, a lawyer from Winston-Salem, defeated longtime Democratic Superintendent June Atkinson in the election. The state superintendent is responsible for running the state Department of Public Instruction. Many of DPI’s top administrators remained with the department after control of the board shifted from Democrats to Republicans more than three years ago.

Johnson praised the new law in a statement after the legislature approved it. He called the changes “straight-forward, common-sense reforms” that clarify the relationship between the superintendent and the board. He could not be reached Wednesday.

Board of Education Chairman Bill Cobey, a former GOP congressman and former chairman of the state Republican Party, could not be reached after the announcement. Cobey questioned the constitutionality of the law before it passed, raising the possibility of a lawsuit.

Senate leader Phil Berger, an Eden Republican, said in a statement that the board should stop wasting money on a lawsuit that it will lose.

“This law returns to the Superintendent of Public Instruction – who was just elected by 2.3 million voters to lead our state’s public schools – the basic administrative powers granted by the constitution that were stripped away by Democrats for political reasons in 1994, and it is incredibly disappointing that an appointed board would divert tax dollars meant for our students and teachers into a lawsuit that re-litigates a court case they’ve already lost once before,” Berger said in a statement. “The board should immediately drop this lawsuit, stop fighting to maintain a course that has been rejected by North Carolina voters, and instead start working with the elected Superintendent to improve our public schools.”

Johnson did not raise the issue of consolidating power in his campaign.

Conflicts over divisions of power between the state board and the superintendent go back decades.

The constitution says the state board “shall supervise and administer the free public school system,” and the superintendent is the board’s “secretary and chief administrative officer.”

In 1995, the legislature passed a bill sponsored by House Republicans that put the board in charge of the Department of Public Instruction. Republicans controlled the state House and Democrats held a majority in the state Senate. Democrat Jim Hunt was governor and Democrat Bob Etheridge was state superintendent.

In 2009, Atkinson sued Democratic Gov. Bev Perdue and the board over Perdue’s appointment of then-board Chairman Bill Harrison as education CEO. Atkinson won in Superior Court and Perdue did not appeal.

This story was originally published December 28, 2016 at 7:01 PM with the headline "NC education board to sue over power transfer."