- Associated Press - Tuesday, September 19, 2017

RALEIGH, N.C. (AP) - Regulations approved by North Carolina state education leaders are subject to review by a commission like most other government agencies, a split appeals court panel ruled Tuesday in another legal setback for the State Board of Education.

The board, which administers the public school system based on the laws of the General Assembly, argued having to send its regulations and policies to the Rules Review Commission delays them for months and conflicts with powers the state constitution grants to it.

In 2015, a Wake County trial court judge sided with the education board. But two of three judges on the Court of Appeals panel reversed that decision, saying the legislature acted within the scope of its own constitutional authority by creating the commission and having board rules scrutinized by it.

“The General Assembly has by statute ensured that the commission is unable to create and impose rules, and has made clear that the commission does not have the authority to review the substantive efficacy of rules proposed by the board,” Judge Lucy Inman wrote in the majority opinion, also agreed to by Chief Judge Linda McGee.

The Rules Review Commission, created in the 1980s by the legislature, which also appoints its members, can approve or disapprove rules. But it’s not supposed to act based on the merits of the regulations, instead rather on more procedural matters, such as whether the proposals are unambiguous.

Lawyers for the education board said the board is exempt because the constitution says it “shall make all needed rules and regulations in relation” to supervising the schools and keeping tabs on money received. The board found support in the dissenting opinion from Judge John Tyson.

“The authority of the state board to promulgate its own rules and regulations to establish educational policy are constitutionally established and cannot be ‘delegated by the General Assembly,’” Tyson wrote, citing another state law.

An appeal to the state Supreme Court is likely - justices must take up split rulings by the Court of Appeals if requested. The board and its attorneys are reviewing the ruling, Board Chairman Bill Cobey said.

“This case is critically important to whether the Board can fulfill its 150-year-old duty to supervise, administer and make rules for the benefit of our public schools,” Cobey said in a prepared statement.

Other litigation pitting the board against the state schools superintendent is pending. A panel of trial court judges in July determined the board failed to provide enough proof to strike down a law approved last December giving Superintendent Mark Johnson more control over day-to-day operations. Enforcement has been delayed pending appeal.

Johnson, who was elected statewide, is Republican, as are legislative leaders. Eleven of the 13 voting board members are appointed by the governor, subject to legislative confirmation.

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