As part of Extra Session 4, Republicans in the North Carolina General Assembly introduced House Bill 17: Modify Certain Appointments/Employment.

The bill would grant the incoming Superintendent of Public Instruction, Republican Mark Johnson, powers currently reserved for the appointed members of the State Board of Education and governor.

Some of the proposed changes are benign.  For example, the State Superintendent, rather than the governor, would have the power to appoint certain nonvoting members to the state board.  Other provisions are not.  Under House Bill 17, the state board would no longer have oversight over the Department of Public Instruction (DPI), including the power to make personnel decisions and administer grants, departmental budget allocations, and contracts.  The State Superintendent would also have the authority to appoint and oversee the superintendent of the Achievement School District (ASD), which is currently vacant.

But there are questions about its constitutionality.  Article IX, Section 5 of the N.C. Constitution states,

The State Board of Education shall supervise and administer the free public school system and the educational funds provided for its support, except the funds mentioned in Section 7 of this Article, and shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.

The primary reference to the Superintendent of Public Instruction in the state constitution clearly makes the office subordinate to the board.  Article IX, Section 4 of the N.C. Constitution says, “The Superintendent of Public Instruction shall be the secretary and chief administrative officer of the State Board of Education.”  (I examine these issues is greater detail here.)

One could argue that Johnson and Republican legislative leaders consider House Bill 17 to be the codification of powers informally granted to Superintendent June Atkinson by previous state boards.  In this way, recognizing that the Superintendent of Public Instruction has discretion over DPI operations may be a way to ensure that the incoming state superintendent (and those who succeed him) enjoys the same privileges.

And there is a precedent for allowing the Superintendent of Public Instruction to exercise supervisory and budgetary authority over DPI.  Bill sponsors pointed out that House Bill 17 would restore, presumably constitutional, powers granted to the State Superintendent before 1995.

In 1995, Republican and Democratic legislators, with the support of Governor Jim Hunt, passed Session Law 1995-72. The legislation rewrote state statute to increase the power of the State Board of Education at the expense of then-Superintendent of Public Instruction Bob Etheridge.

Supporters of the change claimed it was part of an effort to reduce bureaucracy and eventually decentralize education governance.  Board chairman and Hunt appointee Jay Robinson told Education Week that the bill would allow the State Board of Education to “free districts from micromanagement by the state if their students meet high standards in the basic skills.”  Etheridge responded, “There are a lot of things that can be done cheaper in a centralized way.”  His conclusion was the most hackneyed one in the business.  “If this keeps up, it may be another nail in the coffin of public education,” Etheridge declared.

That said, tension between State Superintendent Etheridge and the State Board of Education had precipitated the 1995 legislation.  In 1989, he initiated a sweeping reorganization of the Department of Public Instruction.  Two year later, Etheridge and the state board two sued each other over the issue of state agency money used to support the work of the state board.  Etheridge remained the superintendent for two terms and ran for Congress in 1995.

To my knowledge, Superintendent-elect Mark Johnson and the members of the State Board of Education are not at war…at least not yet.  I suspect that passage of the bill would prompt the board to challenge the constitutionality of the law.  Even if House Bill 17 is not approved by the legislature, however, the perception that Johnson worked with lawmakers to orchestrate a power grab will not sit well with the sitting members of the board. We’ll see how that plays out in January.