I am posting this internal email by RBA’s Senior Policy Analyst Dr. Erik Root because I felt others would be interested in the one-two smack-down of the State Board of Education by the NC Supreme Court. – Baker Mitchell
Here is your “for what it is worth” summary and my two cents on the two recent decisions from the North Carolina State Supreme Court (NCSC). If you do not want to read the entire summary here, the bottom line is that, generally (with a big caveat) the State Board of Education (SBE) was dealt a one-two punch blow. I mean, they really got it handed to them.
The power of the SBE was curtailed in both of these decisions. It’s a big loss for them. As a result, those on the SBE who supported what amounts to a lawless position at the expense of the remaining constitutional branches might consider resigning.
Read more below this for the detail.
SBE v. State of NC & NC Rules Review Commission – 11PA16-2
Question: Should the SBE be required to send rules and regulations they create to the Rules Review Commission (RRC) for review and approval?
Ruling: The General Assembly (GA) acted lawfully by requiring the RRC to review rules passed by the SBE.
Why does this matter? The SBE wanted to BYPASS the RRC and do what it wanted as acting as its own legislature and executive body—passing laws and enforcing them on their own without oversight of the other branches of government. Indeed, according to their pleadings, the SBE asserted it would no longer abide by the requirement/law from the GA to send their rules and regulations to the RRC and would, “independently deem its rules to have the force and effect of law.” The NCSC rejected SBE’s argument, which now curtails their power and authority greatly (with significant caveat I will note below). This is a complete smackdown of the SBE and its bad legal arguments.
Reasoning: The court went through a nice history of the SBE that I produced some time ago for us. In essence, the SBE has been and is subject to the GA. The state of North Carolina established an Administrative Procedure Act (APA) in 1973 after the United States Supreme Court gave its assent to an administrative court in order to respond to bureaucratic actions. This allowed for administrative hearings and due process. NC established the RRC thereafter. The RRC is like an administrative court with full review, “due process,” and hearings.
While the plain language of the NC Const. states that the SBE does not have the requirement to submit its rules and regulations to the RRC, the GA delegated its authority to the RRC, and the SBE is SUBJECT to the GA under Art 9, sec. 5
The SBE complained the GA was, like in past history, trying to diminish the power of the SBE. However, the court stated no they are not. Other agencies are subject to the APA/RRC, and hence, this is about uniformity of the law not about diminishing the SBE. The SBE may have a point if the RRC reviewed laws on their SUBSTANCE, the court stated. However, the RRC does not do that. Therefore, since the SBE is subject to the GA, and the GA is not trying to prevent it from administering the public school system. The SBE must submit their rules and regulations to the RRC.
Justice Martin had a weak dissent in this decision, so it’s not worth recounting here.
Caveat: While the SBE certainly got smacked down, the substantive problem with the APA and the RRC it seems to me are part of a larger problem associated with the growth of bureaucracy and the diminishment of freedom we face today on both the federal and state levels. In other words, the administrative courts create a dual legal/justice system and the GA has given away its authority to another body. Political debate over “what is just, ot the just thing to do” is harmed by this voluntary transfer of political power. But even more so, those regulated are harmed—both federally and locally. Take Hillsdale College which lost administrative court hearings because administrative courts seldom overturn an agency decision. The same applies here: any business or entity—like a school—will find the regulations and the dual nature of our court system add to their overall cost. To battle the administrative courts only to then LOSE and then have to APPEAL to district courts is so onerous, it is prohibitive to even try to mount a challenge.
The GA also gives up its lawmaking authority here, as the administrative courts are hidden from the light of day. A legislative body is supposed to deliberate, the RRC circumvents that process and increases the bureaucratic swamp.
SBE v State of NC & Mark Johnson – 333PA17
Question: Is HB 17 legal in delegating authority to the Superintendent of Public Instruction (SPI)?
Why does this Matter? The SBE has been maintaining that the GA cannot subject them to its laws. They believed the transfer of power from the SBE to the SPI made them an “empty shell.” This laughable argument was rejected in total. The duties and relationship between the SPI and the SBE has “changed over time” pending on what the GA thinks in any given session. It is not the place of the NCSC to decide a precise boundary of where the responsibilities should be drawn. The GA has actual oversight of the SBE and may assign duties accordingly as long as the SBE maintains its constitutional duties. In other words, this is another rebuke of the SBE and it affirms the GA has the constitutional right to subject the SBE to its laws. This is a BIG WIN for the state Superintendent of Public Instruction, Mark Johnson. It also sets the separation of powers more aright.
Reasoning: The court spends a lot of time in this decision disseminating the legal argument of the SBE. From what they quote, whoever wrote the SBE legal briefs did so in a most incompetent way—for example, claiming that constitutions are meant to limit the state legislature, when in fact constitutions are to limit government. The court lifts some of the material we provided to SPI in my legal overview of the state constitution and development of the SBE, etc.
The other argument the SPI Johnson brilliantly made was that the SPI is a constitutional officer on EQUAL FOOTING with the other branches. Johnson argued that the basic of constitutional thought is bi-cameral in nature. Therefore, the GA is the authority that the other branches, including the SBE, are subject to as per the constitution.
The State’s argument is complimentary to Johnson’s, but no less important or brilliant. The State of NC contended that the changes to statute were minimal, and that the SBE wants to take constitutional power from the GA. The GA has the authority over the schools that is prior to the SBE and is the “sturdiest leg” of education policy in the state. The GA may thus limit even further the SPI AND SBE authority over education in the state should they choose.
The court notes that ALL THREE—GA, SPI, & SBE—have a constitutional role in education. However, the GA possesses the “ultimate educational policy” authority in this state. This is a significant statement. The SBE is made from this part of the decision (p. 18) into an administrator and that pretty much is it. They cannot decide matters of policy, and the court has ensured it here. Again, the GA sets POLICY! The GA could add/remove/alter whatever they want so long as the SBE is the administrator is how I read this.
The court notes the SBE is sore about losing their basic veto on the SPI’s actions, and they really want control over the office. The SPI now has full authority to hire and fire, and manage those funds the GA deems fit for the office to have.
It is here (p.28) that the court notes the APA/RRC and “rules and regulations.” Any rule the SBE passes that effects a third party has to go to the RRC. Any rule that is internal to the SBE, and between the SPI and the SBE is exempt. I know some did not like this part of the decision, and Orr touted it as a victory, but he shouldn’t BECAUSE the SPI and the SBE are SEPARATE CONSTITUTIONAL figures. If the SBE passes something that the SPI objects to, there is a bit of a looming question that we’d have a constitutional/political question that the courts could not solve. This means that the SPI could tell the SBE to pound sand—that is the office does not have to abide by its regulation of the office—and there is nothing the SBE can do about it. At any rate, the court asserts that internal rules and regulations (how the SPI and SBE govern their own operations between each other) do NOT have to go through the RRC. I see a constitutional clash coming here, but one the SPI will likely win because the office is an ELECTED position and he/she is an executive officer.
OK, that’s it. I am sure others will have a different take on this, especially those far more versed in the elements of the law. So, take this for what it is worth. The SBE really got knocked on its can last week, and they only have themselves to blame for overreaching (usurping?) by stepping on the authority of not only the legislature, but the executive branch.
Dr. Erik Root is Senior Policy Analyst with The Roger Bacon Academy. Dr. Root’s Ph.D. is in Political Science and he has held positions with the John Locke Foundation and was Professor of Political Science at West Liberty University. Dr. Root also advises on authoring curricula in civics and government for the Academy