June 23, 1994
Representative Anne Barnes Legislative Office Building Room 419C Raleigh, North Carolina 27602
Re: Advisory Opinion; N.C. Const., Art. IX, §5; Senate Bill 883
Dear Representative Barnes:
Senate Bill 883 creates the North Carolina Professional Teaching Standards Board (hereinafter "Teaching Board") which would exercise all its powers "independently of the State Board of Education." The essential duty of the Teaching Board is to create a plan for it to assume responsibility from the State Board of Education (hereinafter "State Board") for setting standards for licensing teachers and for issuing, renewing and revoking teacher licenses. Apparently, it is intended that this plan would then be ratified by the General Assembly and the Teaching Board would in fact assume independent power for licensing teachers.
By letter dated June 20, 1994 you ask whether the General Assembly has the constitutional authority to confer on the Teaching Board, separate and independent from the State Board of Education, the power for setting standards for the licensing of teachers and for issuing, renewing and revoking those licenses.
For reasons which follow, it is our opinion that S.B. 883, if enacted as presently drafted, may be unconstitutional because it removes completely the State Board from any involvement in one of the most critical areas of education – the licensing of teachers.
The Constitution confers on the State Board the duty "to supervise and administer the free public school system." N.C. Const. Art. IX, § 5. In Guthrie v. Taylor, 279 N.C. 703, 710 (1971), the Supreme Court held that the State Board’s broad constitutional duty to "supervise and administer the free public school system" encompasses the more specific powers conferred on the State Board by our former Constitution. One of those specific powers was to "regulate the grade, salary and qualifications of teachers." Thus, it seems clear that in approving our present Constitution the people intended to give to the State Board the duty to establish standards for the licensing of teachers and to issue, renew and revoke those licenses. These are the precise powers Senate Bill 883, if enacted, would ultimately transfer to the Teaching Board to exercise independently of the State Board.
Article IX, Section 5 of the Constitution makes all the powers conferred on the State Board "subject to laws enacted by the General Assembly." In Guthrie v. Taylor, the Supreme Court held that an essentially identical phrase in our former Constitution ("subject to such laws as may be enacted from time to time by the General Assembly") "was designed to make, and did make, the powers so conferred upon the State Board subject to limitation and revision by acts of the General Assembly." 279 N.C. at 710 (emphasis added). Whether Senate Bill 883 is within the power of the General Assembly to enact thus depends on whether the transfer of the State Board’s constitutional duty to supervise and administer the licensing of teachers to another body to
exercise independently of the State Board is only a limitation or revision of State Board’s
constitutional duty. We think that a legislative act transferring the State Board’s constitutional
power regarding teacher licensing to another agency to be exercised by that agency independently
of the State Board would amount to more than a limitation or revision of the constitutional
powers of the State Board. It would amount to the denial to the State Board of a power conferred
on the State Board by the people. While the General Assembly has the power to limit and revise
the manner in which the State Board exercises its constitutional powers, the General Assembly in
our opinion likely does not have the power to take away completely a constitutionally specified
power of the State Board and give it to another agency.
There are numerous examples of ways in which the General Assembly can exercise its power to
limit or revise the constitutional powers of the State Board regarding certification so long as
some authority remains with the State Board. For example, the General Assembly could enact
legislation directly establishing the licensing standards to be applied by the State Board. In fact,
in 1973 the General Assembly enacted legislation forbidding the State Board from issuing
certificates to any persons who had not achieved a specified score on the National Teachers
Examination. See 1973 Sess. Laws c. 236. The General Assembly could create the Teaching
Board and empower it to make recommendations to the State Board for changes in licensing
standards. Finally, the General Assembly could also empower a Teaching Board to adopt
licensing standards as well as issue, renew and revoke those licenses, subject to some form of
final approval of the State Board.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General
Edwin M. Speas, Jr.
Senior Deputy Attorney General