Judges side with NC education chief and legislature over control of department

N.C. State Superintendent of Public Instruction Mark Johnson
N.C. State Superintendent of Public Instruction Mark Johnson

State Superintendent Mark Johnson should have more control over public education operations as allowed under a new law, a three-judge panel ruled Friday.

The judges ruled against the State Board of Education in its lawsuit trying to hold on to powers that give it control of high-level hiring and spending at the state Department of Public Instruction.

In its lawsuit, the board said the legislature was trying to take away responsibilities conferred by the state constitution and give them to the superintendent.

In its ruling, the panel of Superior Court judges said the board had failed to prove that any part of the law was unconstitutional. The ruling said the law does not transfer power to Johnson, but lets him manage daily operations with board oversight. The law puts limits on the superintendent’s powers, and maintains the board as the ultimate authority to supervise and administer the public school system, the ruling said.

The judges anticipated appeals, so they put on hold for 60 days any actions based on the ruling.

Bob Orr, the board’s lawyer, said the board has scheduled a meeting next week to discuss a possible appeal. In some ways, the judges affirmed the board’s position, Orr said.

Johnson hailed the ruling.

“For too long, the lack of clarity about DPI leadership has fostered a system of non-accountability,” Johnson said in a statement. “While this system is great for shifting blame and avoiding responsibility, non-accountability at DPI hurts North Carolina students. Last December, the General Assembly addressed this problem by clarifying the parameters set forth in the NC Constitution. Their efforts offered greater transparency to educators and parents across the state seeking to engage with DPI and greater accountability at DPI.

“Today, the Superior Court has affirmed the constitutionality of the General Assembly’s actions and I look forward to, belatedly, working for more and better change at DPI.”

Senate leader Phil Berger, an Eden Republican, said in a statement that the judges are right.

“Voters elected Superintendent Mark Johnson based on his platform of strengthening our state’s public schools, and I’m pleased the court recognized the constitutionality of the law and that our superintendent should be able to execute the platform voters elected him to do,” Berger said.

The fight over the new law was an intra-party disagreement, with the Republican-dominated board disagreeing with a law passed by the GOP-controlled legislature that gives more powers to Johnson, a Republican in his first term.

The law gives Johnson the power to hire and fire top staff. The board has been approving some new hires, and some high-level staff members report to both Johnson and the board.

In an affidavit, Johnson said he was not able to hire people he wanted for top jobs, and that the board took too long to find new staff.

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 state House Republicans that put the board in charge of the Department of Public Instruction. Republicans controlled the House and Democrats held a majority in the state Senate. Democrat Jim Hunt was governor and Democrat Bob Etheridge was state superintendent.

In 2009, former Superintendent June Atkinson, a Democrat, 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.

Lynn Bonner: 919-829-4821, @Lynn_Bonner