- Associated Press - Friday, July 14, 2017

RALEIGH, N.C. (AP) - A panel of judges has upheld a new North Carolina law shifting many powers to run the public schools away from the State Board of Education to the elected superintendent, saying it stayed within the division of education responsibilities set in the state Constitution.

The three judges sided with Superintendent Mark Johnson, ruling the board failed to provide the proof needed to strike down the General Assembly’s law last December giving him more control over day-to-day operations. The law in part also let Johnson administer some education funds, oversee charter schools and hire senior-level aides.

The law, approved by the GOP-controlled legislature just before Johnson - also a Republican - took office, was the latest pull in a decades-long tug of war over the balance of power between the superintendent and the board, whose voting members are appointed by the governor. Democratic Gov. Roy Cooper also was about to take office when the law was approved.

Johnson said the changes upheld in the ruling released Friday provide more transparency to the public and educators about who is responsible for the Department of Public Instruction.

“For too long, the lack of clarity about DPI leadership has fostered a system of non-accountability,” Johnson said in a statement, and “I look forward to, belatedly, working for more and better change at DPI.”

The State Board of Education challenged the law, pointing to constitutional language that it “shall supervise and administer the free public school system” and “make all needed rules and regulations” related to that responsibility. The superintendent, the state Constitution says, is the “secretary and chief administrative officer” of the board.

A portion of the law gave the superintendent “direction and control” for all matters related to the school system’s “direct supervision and administration.” The superintendent and state attorneys defending the law argued the board’s powers are still subject to General Assembly laws.

In their opinion, the judges wrote that the law doesn’t violate the Constitution because the board is still tasked with supervising and administering the schools and the superintendent remains subject to the board’s general oversight.

The law “is not such a pervasive transfer of powers and authorities so as to transfer the inherent powers of the state board to supervise and administer the public schools, nor does it render the state board an ‘empty shell,’” the opinion dated July 6 read.

Many other changes in the law, the judges wrote, simply transfer day-to-day operations and “appear to fall well within the constitutional authority of the General Assembly to define specifics” of that relationship.

The panel - Superior Court Judges James Ammons, Donald Bridges and Martin McGee - blocked enforcement of the ruling and law through August because of potential appeals and requests to stay its order longer.

Bob Orr, a private lawyer and former state Supreme Court justice representing the state board, said Friday evening that he and the panel would discuss the ruling next week before deciding on any appeal. There were aspects of the opinion “that we certainly strongly disagree with,” Orr said in an interview.

Senate leader Phil Berger, a Rockingham County Republican, said in a news release he was “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.”

North Carolina is one of about a dozen states in which voters elect a state schools superintendent. The position has been relatively weak in North Carolina compared to the board.

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