May 1, 1995
Jay Robinson, Chairman State Board of Education Education Building Raleigh, North Carolina
Re: Advisory Opinion; G.S. 115C-295.1; Power of General Assembly to Assign State Board of Education’s Constitutional Powers to an Independent Body
Dear Mr. Robinson:
Chapter 740 of the 1993 Session Laws, codified in part as G.S. 115C-295.1, was enacted by the General Assembly effective July 13, 1994. That legislation created the Professional Teaching Standards Commission and charged it with the duty to "prepare a plan for how it [the Commission] could establish high standards for teachers and the teaching profession." In preparing the plan, the Commission, among other matters, was directed to "consider . . . constitutional and statutory issues concerning the role of the Commission and its relationship to the State Board of Education."
The Commission submitted its plan on March 20, 1995, and the State Board is now considering its response to the plan. In considering its response, the State Board, by letter dated March 31, 1995 from James O. Barber, requested our opinion whether the Commission’s plan could be enacted into law by the General Assembly without offending the Constitution.
We have examined the Commission’s plan and find that the Commission has recommended the enactment of legislation which would accomplish two principal purposes:
- Create the Commission as an "independent body." See Plan pp 2, 11, 17.
- Empower the Commission to "set clear, precise standards for professional practice," "consolidate the number of licensure areas" and "implement rigorous and appropriate licensure assessments." See Plan pp 2, 12, 13, 17.
From the text of the plan, it is apparent that the Commission intends that legislation implementing these recommendations would effectively grant the Commission the power, independent of the State Board, to establish the State’s principal policies and standards for issuing, renewing and revoking licenses to teach in the public schools; give the State Board the largely ministerial duty of issuing licenses to those persons meeting the policies and standards established by the Commission; and give the State Board the discretionary power to establish licensing policies and standards in addition to, but not in conflict with, the policies and standards established by the Commission. See, e.g., Plan pp 6-7 (the Commission will "design and/or select assessments, set standards, or establish regulations and policies in the areas of initial licensure, continuing licensure, and license renewal"; "The assumption [by the Commission] of licensure tasks associated with standards setting removes most of that burden, albeit not the ultimate right to issue licenses, from the State Board"; "the State Board can extend the requirements for licensure beyond those established to demonstrate competence, but is not obligated to do so.")
The State Board of Education’s broad power under Article IX, Section 5 of the Constitution to "supervise and administer the free public school system . . . and make all needed rules and regulations in relation thereto," N.C. Const. Art. IX, Sec. 5, has been held specifically to include the power to establish policies and standards for the licensing of persons to teach in the public school system. Guthrie v. Taylor, 279 N.C. 703, 710, 185 S.E.2d 193, 199, cert. denied 406 U.S. 902 (1972). This broad power, of course, is not unfettered. In particular, the people in our Constitution have made the exercise of that power "subject to laws enacted by the General Assembly."
We have no doubt that when the people made the State Board’s constitutional powers "subject to laws enacted by the General Assembly" they intended to give, and did give, the General Assembly the power to limit the manner in which the State Board adopts licensing policies and rules (e.g., by requiring it to consider recommendations of study commissions) and the power directly to prescribe those policies and rules (e.g., by enacting legislation requiring that licensure be limited to persons meeting specific standards). See Guthrie, 279 N.C. at 710. The legislation proposed by the Commission, however, goes beyond merely limiting the manner in which the State Board adopts policies and standards for the licensing of teachers and goes beyond direct legislative prescription of those standards. The legislation suggested by the Commission, if enacted, would assign the power to adopt policies and standards — or at least the principal policies and standards — to an independent body other than the State Board of Education.
The courts of this State have not considered whether the General Assembly has this power and only they can finally answer the question. In our opinion, however, the legislation proposed by the Commission, if enacted, likely would be in excess of the powers of the General Assembly, and therefore could be held by the courts to be unconstitutional. By giving the State Board the power to "supervise and administer the free public school system . . . subject to laws enacted by the General Assembly" we think the people intended that the policies and standards for the public school system would be set by the State Board in conjunction with the General Assembly and not by the General Assembly in conjunction with some other body. Our reading of the Constitution is consistent with basic principles of constitutional construction. See Cooley’s Constitutional Limitations, Vol. 1, pp 213-15 (1927) (If powers "are specifically conferred by the constitution upon the governor, or upon any other specified officer, the legislature cannot require or authorize [those powers] to be performed by any other officer or authority"). Our reading is also consistent with the decisions of the courts of other states. See West Virginia Board of Education v. Hechler, 376 S.E.2d 839 (W. Va. 1988) (Holding that a provision of the West Virginia Constitution similar to Article IX, Section 5 of our Constitution prohibited the West Virginia Legislature from assigning to a legislative committee the power to disapprove rules adopted by the West Virginia State Board of Education).
In sum, it is our opinion the plan proposed by the Professional Teaching Standards Commission, if enacted by the General Assembly, is unconstitutional.
Andrew A. Vanore, Jr. Chief Deputy Attorney General
Edwin M. Speas, Jr.
Senior Deputy Attorney General