- Associated Press - Thursday, June 29, 2017

RALEIGH, N.C. (AP) - Judges deciding a dispute over how North Carolina’s schools are run said Thursday that they face a difficult task in ruling on the power balance between legislators, the state school board and the statewide superintendent.

The three-judge panel heard oral arguments over a new law that would shift power from the state Board of Education to the elected superintendent. The judges indicated that they would issue their ruling at a later date.

The board argues the General Assembly can’t take away powers given to it by the North Carolina Constitution, while the superintendent argues that the document gives legislators the final say.

“For the sake of argument if the constitution gives them the power to readjust the balance of power, can they go too far?” Judge James Ammons asked an attorney for the board, referring to the General Assembly. “What I’m having a problem with is: How far can they go before it breaches constitutionality?”

The changes, on hold while the case is being decided, came among moves by the Republican-led legislature late last year to curtail the power of Democratic Gov. Roy Cooper. Cooper is scheduled to appoint several Board of Education members during his first term.

The law passed in December would give new state schools Superintendent Mark Johnson some control over the state’s education budget, oversight of charter schools and authority to hire senior-level aides. Johnson, a Republican, defeated a longtime Democratic superintendent last year.

A lawyer for the state board, Bob Orr, responded to Ammons’ question by saying the power shift sought by lawmakers can’t be accomplished by simply writing legislation.

“If they want a constitutionally imposed sharing of authority between the superintendent and state board, you submit a constitutional amendment to the people of this state. You don’t get to do it statutorily,” said Orr, a former justice for the North Carolina Supreme Court. “Wherever they attempt to erode those constitutional powers of the state board, then they are in fact running afoul of the constitution.”

Orr said the board’s powers are enshrined in constitutional language that it “shall supervise and administer” the state’s schools. The state constitution describes the superintendent as “the secretary and chief administrative officer” of the board, which Orr says makes him subordinate to the panel.

Orr argued that supplemental documents from the drafting of the constitution, as well as subsequent court cases, support his interpretation.

Attorneys for Johnson cite constitutional language that the board’s powers are “subject to laws enacted by the General Assembly” as evidence that lawmakers can rearrange the balance of power.

“When it comes to the public schools of North Carolina, the number one authority is the General Assembly,” said Hardy Lewis, an attorney for Johnson.

He also said past moves by the legislature to shift certain powers from the statewide panel to local school boards were upheld in court, offering another example of lawmakers altering how schools are run.

North Carolina is one of about a dozen states in which voters elect a state schools superintendent, but for at least a generation the job hasn’t carried significant power. The board and superintendent were part of North Carolina’s post-Civil War constitution of 1868. Their relationship, as spelled out in the current 1971 constitution, essentially favors gubernatorial appointees on the school board over the choice of North Carolina voters.

The current lawsuit, filed in Wake County by the statewide board, is being heard by three state judges. One of the panel members, Judge Forrest Bridges, said details will be difficult to sort out.

“The constitution sets forth a certain relationship between the state board and the superintendent, and then the General Assembly has the power and the authority to tinker with some of the rules and regulations that carry out that overreaching constitutional mandate,” he said. “But here’s the hard part; the question that all of you are asking us to decide is: Which parts of this fall where?”

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