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Courts can’t resolve every political dispute

john hood

John Hood

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Monday, June 18, 2018

In the long-running dispute between State School Superintendent Mark Johnson, a Republican elected in 2016, and the State Board of Education, which currently has a majority of Republican appointees, the North Carolina Supreme Court has sided 6-0 with Johnson (Chief Justice Mark Martin didn’t participate in the case).

Thus, justices with both Democratic and Republican pedigrees rejected the state board’s assertion that a law passed by the Republican-majority General Assembly right after the 2016 election to transfer certain day-to-day responsibilities to the newly elected state superintendent, Johnson, violated the State Board’s constitutional authority over public schools.

I’ve just listed lots of institutions and party affiliations. But in its decision, the high court expressed a nonpartisan — and welcome — consensus about the limits of judicial power.

Although the state board currently has a majority appointed by former Republican Gov. Pat McCrory, that’s not a permanent condition. GOP lawmakers were likely responding to the prospect that a Republican state superintendent would eventually be subject to a state board populated mostly by appointees of Democratic Gov. Roy Cooper (the members’ terms don’t precisely line up with gubernatorial ones).

What did the legislature do? It gave Mark Johnson the authority to hire staff at the Department of Public Instruction even if the state board didn’t agree or wanted to hire others. It also gave Johnson more control over the department’s finances and operations.

You might be surprised to learn that, until the passage of this 2016 law, an elected superintendent couldn’t make such decisions without approval from an appointed board. But North Carolina’s constitution, while requiring the statewide election of the superintendent and the other executive officers who make up the Council of State, does not offer many specifics about their powers.

Indeed, the section authorizing the election of the executives other than governor and lieutenant governor addresses this with a single sentence: “Their respective duties shall be prescribed by law.” In other words, the General Assembly assigns duties to these officers. In theory, voters could elect, say, a commissioner of agriculture who is not by statute given the authority to run the Department of Agriculture — or anything else.

For educational officers, however, the state constitution does provide additional guidance. In Article IX, governing education, the state superintendent is described as “the secretary and chief administrative officer of the State Board of Education,” which is itself granted the power to “supervise and administer the free public school system and the educational funds provided for its support.” This power includes making “all needed rules and regulations in relation thereto, subject to the laws enacted by the General Assembly.”

That last phrase is critically important, and forms the basis of what the North Carolina Supreme Court just ruled. The justices noted that, according to past practice and precedent, the general division of labor between the state board and superintendent was that the former had “constitutionally based responsibility for the general supervision and administration of the public-school system” while the latter had “constitutionally based responsibility for directly administering the operations of the public-school system.”

The state board, then, has primarily a policymaking role. The state superintendent is the day-to-day administrator. How exactly should the dividing line be drawn between these roles? The Supreme Court concluded that the legislature gets to draw that line, provided that its statutes don’t try to give the superintendent the power to supersede the board on matters of policy.

You may think the General Assembly redrew the line in the wrong place. If so, the Court is saying, your proper remedy is to elect lawmakers who agree with you.

Not every dispute can or should be resolved by lawsuits and judicial intervention. While I don’t think courts should be afraid to strike down laws that conflict with constitutional provisions and rights — “judicial restraint” has been interpreted too broadly by many conservatives, in my opinion — North Carolina’s constitution clearly gives legislators some latitude when it comes to defining the powers of executive officers. Don’t like that? Amend the constitution.

John Hood (@JohnHoodNC) is chairman of the John Locke Foundation and appears on “NC SPIN,” broadcast statewide at 7:30 p.m. Friday and 12:30 p.m. Sundays on UNC-TV.

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