The State Board of Education is suing the state and the Rules Review Commission, claiming that authority given the board in the state constitution exempts its policies from commission oversight.
In a lawsuit filed in early November, the board said it would stop submitting its policies to the commission for approval.
The Rules Review Commission is a somewhat obscure but important office in state government created in 1986. It reviews and approves the policies state agencies and occupational licensing boards propose on everything from storage of student records at beauty schools to permits for trapping foxes.
The commission is an executive branch agency, but its 10 members are appointed by the state House speaker and the state Senate leader. Campbell Law School professor Margaret Currin is the commission’s chairwoman. She could not be reached for comment.
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The state Attorney General’s Office is representing the commission. It has not filed a formal response to the suit, a spokeswoman said. The State Board hired former state Supreme Court Justice Bob Orr because the Attorney General’s Office, which usually represents it in legal action, is representing the commission.
State agencies have chafed at the commission’s power, and it has been sued before by other agencies. The law concerning the commission has a list of departments and boards that are exempt from rule making for specific reasons. The State Board of Education has no exemptions.
Membership on the State Board of Education has turned over many times since 1986. But successive boards have frequently questioned whether it should have to submit its policies to the commission for approval, Orr said.
No particular episode instigated the State Board’s suit, he said.
“This issue has been festering literally since the Rules Review Commission process started,” Orr said. “Various boards over the years have questioned the constitutionality of the process.” The school board, many of them appointed by Gov. Pat McCrory, voted unanimously to sue to get the question resolved, Orr said. “It shouldn’t be passed from one board to the next with all this uncertainty.”
Many of the board’s major decisions must become official rules. For example, the commission had to approve of a major rewrite of how school progress is measured, including details on what test scores will be used and how school growth would be calculated.
The legal argument is that the state constitution created the board and gave it the power to “supervise and administer the free public school system” so having a commission that limits its authority by objecting to board rules and striking them down is unconstitutional. The commission is not a substitute for the legislature, which is the only body that can revise or repeal a board rule, the lawsuit says.
The suit says that the commission or its staff has objected to or changed every rule the board adopted. The board didn’t adopt some rules it wanted because the commission would have objected.
“You have this administrative agency being able to review, reject or revise these rules.” Orr said. “It’s inconsistent with constitutional language.”