The state Supreme Court will tackle this week a case that will decide who’s in charge of overseeing North Carolina’s K-12 public schools, which have 1.5 million students and a $10 billion annual state budget.
Supreme Court justices will hear arguments Wednesday in a lawsuit challenging a 2016 state law that shifts more control over public education from the State Board of Education to State Schools Superintendent Mark Johnson. The decision will determine whether the day-to-day operations of public schools will be managed by Johnson, an ally of the Republican-led state legislature, or remain under the state board, which has been critical of the General Assembly.
The law gave more power to Johnson, “an individual who shares the General Assembly’s political priorities, and whose experience consists of a few years of teaching and service on a local school board,” attorneys for the state board wrote in a court filing to the Supreme Court.
Johnson’s attorneys counter in a legal filing that the state board is trying “to subvert” the superintendent’s legitimacy. Johnson, 34, a Republican lawyer from Winston-Salem, defeated longtime Democratic Superintendent June Atkinson in 2016.
“The voters of North Carolina elected me to implement the changes on which I campaigned,” Johnson said in a statement. “The State Board has sought to protect the status quo for our school system and avoid the will of the voters.”
Johnson has charted a different path than his predecessors. He’s been a vocal supporter of the state’s taxpayer-funded school choice programs that help families attend charter schools and private schools instead of traditional public schools.
At the same time Johnson became the first Republican elected to superintendent in more than 100 years, Democratic challenger Roy Cooper defeated Republican Gov. Pat McCrory. Republicans make up a majority of the state board, but the terms for six of the 11 members appointed by the governor will expire by 2019. State lawmakers haven’t taken action on Cooper’s nominees for the state board.
A month after the 2016 election, state legislators shifted some of the powers of the state board to Johnson, including control of high-level hiring and spending at the Department of Public Instruction. For instance, the new law says the superintendent is the head of the Department of Public Instruction and that the Office of Charter Schools reports to him.
Johnson’s attorneys argue that the legislation simply undid much of a 1995 law that moved control of DPI from the superintendent to the state board. The state board says lawmakers are trying to strip it of its powers that were given in the state constitution.
Both sides say it matters who wins the case.
Johnson’s attorneys argue that unless the 2016 law is upheld the superintendent’s position is “little more than a spokesman’s role.” Johnson say a legal victory would allow him to transform DPI so it’s better run, more accountable and focused on better supporting schools.
“We will address issues largely neglected by the State Board for years, including reforming how we provide educators with their licenses to teach and utilizing previously unused state funds to better support early childhood literacy efforts,” Johnson said in a statement. “Unfortunately, an election and state supreme court case have been required to start these reforms, but I will make sure they are done.”
The state board says a win for Johnson would create a “dangerous precedent” that lets the legislature revise the state constitution without a constitutional amendment to give powers to “individuals who better suit its political agenda, and effectively remake state government in its image.”
In addition to this case, the Supreme Court will hear arguments Wednesday in a lawsuit filed by the state board that challenges a state law requiring it to submit its rules and regulations to the Rules Review Commission for approval. If the state board loses both lawsuits, it will be reduced “to an empty shell that serves little purpose,” according to a legal filing.
“These are extraordinarily important state constitutional issues dealing with the core constitutional powers of the State Board of Education and how the governance of the public school system is supposed to operate,” said Bob Orr, an attorney for the state board.
State lawmakers have backed Johnson through the case, budgeting money for him to defend the lawsuit and to hire his own staff, some of whom have been former McCrory staffers. Legislators barred the state board from using taxpayer money in the legal fight.
A three-judge panel of Superior Court judges sided in July with Johnson and legislators. But the law has been on hold with the Supreme Court agreeing to the board’s request to expedite the appeal and hear the case. Chief Justice Mark Martin, a Republican, won’t hear the case because his wife works at DPI, so Democrats have a 4-2 majority for the case.
Court documents filed over the past year have shown some of the animosity that’s occasionally leaked out at meetings between Johnson and board members.
The state board’s legal filings say that letting the law go into effect would “generate enormous disruption for our State’s public schools” and empower Johnson to unilaterally fire up to 1,000 DPI employees. But Johnson has said in his affidavits that the state board is preventing him from hiring the people he wanted for some top positions.
“The State Board has frequently ignored my recommendations and instead selected individuals who worked for my predecessor and her vision for North Carolina schools,” Johnson said in a statement.