Legislation that transfers power to the incoming superintendent of Public Instruction is on hold. The North Carolina Board of Education filed a lawsuit Thursday to invalidate that legislation. It was scheduled to become law Sunday, but a Wake County judge will hold a hearing on the lawsuit next Friday before deciding whether the law can take effect.
Before we get too far into the weeds, here’s something you need to know: The superintendent of Public Instruction is not the head of the Department of Public Instruction. The state Board of Education is in charge.
Legislation passed by Republican lawmakers this month puts the next superintendent – Republican Mark Johnson – in charge of the agency.
That legislation strikes down a requirement that the board must approve any reorganization of the department.
And it expressly gives the superintendent control of “all matters relating to the direct supervision and administration of the public school system.”
In other words, it strips the state board of nearly all its power, says school board member Eric Davis.
"It transfer our authority to supervise , administer and manage funds of public school system to the state superintendent, as opposed to that authority being vested in the board and we work in partnership with the superintendent in implementation of those duties," Davis says.
And that violates the state constitution, according to the lawsuit filed by the Republican-led board. The lawsuit notes the constitution gives the board power and duties to "supervise and administer the free public school system and the educational funds provided for its support."
The legislation doesn’t strip all authority from the state board. It says the superintendent must administer all "needed" rules and regulations the board adopts, but Davis says that doesn’t mean much with all that’s taken away.
Senate Leader Phil Berger has not responded to specific arguments in the lawsuit. He has issued a statement that says the legislation returns "basic administrative powers" to the superintendent that Democrats stripped away in the 1990s.
The question is whether what he calls "basic administrative powers" amount to an unconstitutional power grab.