December 14, 1995
Bob Etheridge, State Superintendent
N.C. Department of Public Instruction Education Building 301 North Wilmington Street Raleigh, North Carolina 27601-2825
RE: Advisory Opinion; Authority of the North Carolina General Assembly and the State Board of Education to Supervise and Control the Administrative and Secretarial Duties of the State Superintendent of Public Instruction; Article IX of the North Carolina Constitution; N.C.G.S. §§115C-19, and 115C-21
Dear Superintendent Etheridge:
We reply to your letter dated December 12, 1995 requesting our opinion on the following, which I quote directly from your December 12 letter: Among the legislation approved by the 1995 General Assembly were House Bill 7 and other statutes [Chapter 72 of the 1995 Session Laws, codified as N.C.G.S. §§115C-19, and 115C-21] that stripped the State Superintendent of Public Instruction of many historic duties and gave those duties to the State Board of Education.
I fully understand the legislation was designed to transfer to the State Board the responsibility for making educational policy for North Carolina schools. However, that same legislation specified that the State Superintendent was to be the chief administrative officer for the State Board of Education, with responsibility for implementing policy. Nowhere in the legislation do I find any stipulations that could be used to ignore the State Superintendent’s chief administrative officer duties or lawfully pass those duties on to others, including the chairman of the State Board of Education or any other administrative officer appointed by the State Board. Therefore, I formally request that you issue in writing your interpretation of the language of the recent legislation affecting this office, with particular emphasis on those that constitute my duties as chief administrative officer. I ask that you deal with my rights to direct staff, to be notified of top administrative staff meetings, to sign contracts, and to be kept abreast of policy directions mandated by the State Board of Education.
The major change made by the General Assembly in House Bill 7, Chapter 72 of the 1995 Session Laws was to subordinate the statutorily designated duties of the State Superintendent of Public Instruction as chief administrative officer and secretary to the State Board of Education "to the direction, control, and approval of the State Board of Education." See, N.C.G.S. §115C19, which restates Article IX, Section 4(2) of the Constitution that the State Superintendent is the secretary and chief administrative officer of the State Board of Education "subject to the direction, control, and approval of the State Board of Education;" and N.C.G.S. §115C-21, which designates the administrative and secretarial duties of the State Superintendent "subject to the direction, control, and approval of the State Board of Education."
The Constitution gives the State Board the responsibility generally to supervise and administer the public school system. N.C. Constitution, Article IX, §4. Responsibility for the day-to-day operation of the public school system is given to the State Superintendent — a constitutional officer elected by the people — by making him the chief administrative officer of the State Board, as well as its secretary. N.C. Constitution, Article IX, §5. Most importantly, the Constitution expressly makes the authority and responsibilities of both the State Board and the State Superintendent subject to laws passed by the General Assembly. Article IX, §5 provides that the State Board "shall supervise and administer the free public school system . . . subject to the laws enacted by the General Assembly." Article III, §7(2) provides that the Superintendent’s "duties shall be prescribed by law." (Emphasis added). Unquestionably, the framers of the Constitution intended for the State Superintendent’s powers and duties to be adjusted from time to time by the General Assembly.
Moreover, our Supreme Court has recognized the General Assembly’s power in this regard and established several very important and pertinent doctrines concerning the constitutional powers of the State Board, which doctrines equally apply to the constitutional powers of the State Superintendent. Our Supreme Court has made crystal clear; (1) that the State Board’s constitutional powers are subject to limitation and revision by acts of the General Assembly, (2) that the State Board is bound by the General Assembly’s policy determinations, and (3) that the State Board acts beyond its authority when it attempts to take actions contrary to statute. Guthrie
- v.
- Taylor, 279 N.C. 703, 710, (1971), cert. denied, 406 U.S. 920, (1972). State v. Whittle Communications, 328 N.C. 456, 466, 468, 470-71, (1991). Although neither of these Supreme Court decisions directly addresses the constitutional powers of the State Superintendent, the rationale and conclusions reached by our Supreme Court in each decision apply with equal force to the constitutional authority of the General Assembly to change, extend or limit the responsibility and duties of the State Superintendent.
- I.
- In Guthrie v. Taylor, 279 N.C. 703 (1971), cert. den., 406 U.S. 920 (1972), the Supreme Court held that the State Board’s powers are subject to limitation and revision by the General Assembly.
In the Guthrie case, a teacher attacked a State Board regulation that required teachers to renew their teaching certificates every five years by earning credits based on college courses completed at their own expense. The case arose under Article IX of the former Constitution which provided, in pertinent part, that:
Sec. 8: "State Board of Education. – The general supervision and administration of the free public school system . . . shall . . . be vested in the State Board of Education . . . ."
Sec. 9: "Powers and duties of the board. – The State Board of Education shall . . . have power . . . to regulate the grade, salary, and qualifications of teachers . . . and generally to supervise and administer the free public school system of the State and make all needful rules and regulations in relation thereto. All the powers enumerated in this section shall be exercised in conformity with this Constitution and subject to such laws as may be enacted from time to time by the General Assembly. Guthrie, 279 N.C. at 709-10, (emphasis added).
The Court then focused on the "subject to" language in former Section 9 and concluded that this clause empowered the General Assembly to limit and revise the State Board’s express constitutional powers, including the power to regulate teacher qualifications — a supervisory power expressly included in the Constitution. The Court held that in the absence of legislation to the contrary, the State Board had the authority to enact the challenged regulations:
The last sentence in Article IX, §9, above quoted, was designed to make, and did make, the powers so conferred upon the State Board of Education subject to limitation and revision by acts of the General Assembly. The Constitution, itself, however, conferred upon the State Board of Education the powers so enumerated, including the powers to regulate the salaries and qualifications of teachers and to make needful rules and regulations in relation to this and other aspects of the administration of the public school system. Thus, in the silence of the General Assembly, the authority of the State Board to promulgate and administer regulations concerning the certification of teachers in the public schools was limited only by other provisions of the Constitution itself.
Id., at 710. (emphasis added). The Court noted that the changes made in the 1971 Constitution (during the pendency of the case) retained in §5 of Article IX the provision making the State Board’s powers "subject to the laws enacted by the General Assembly," and the Court concluded that "(t)here is no difference in substance between the powers of the State Board of Education with reference to this matter under the old and the new Constitutions." Id.
Without question, the Supreme Court decided in Guthrie that, even as to powers expressly conferred on the State Board by the Constitution, exercise of the State Board’s enumerated powers is subject to laws enacted by the General Assembly. If the General Assembly may change the State Board’s enumerated constitutional powers and duties, the General Assembly likewise may change, the State Superintendent’s enumerated constitutional powers and duties.
In State v. Whittle Communications, 328 N.C. 456 (1991), the Supreme Court held that the State Board is bound by the General Assembly’s policy determinations.
In State v. Whittle Communications, the State Board attempted to prevent local school districts from contracting with Whittle Communications for receipt of a short video news program known as Channel One. The determination of what type of educational materials could be presented to school children across the State logically comes within the ambit of the State Board’s constitutional power to "supervise and administer" the State’s public school system. That is what the State Board contended in court to support the rules it enacted to prevent local school boards from entering into Channel One contracts. However, the Supreme Court focused on the language in Article IX, §5 that the School Board’s power was "subject to the laws enacted by the General Assembly" and concluded that "we must examiner our statutes to ascertain whether the General Assembly has enacted laws which would limit the power of the State Board in the area of selection of materials such as Channel One which we conclude is a supplementary instructional material." 328 N.C. at 464. The Court then concluded that the General Assembly had enacted a statute — N.C.G.S. §115C-98(b) — that placed the responsibility for selection of supplementary materials in the hands of the local school boards. As a consequence, the Supreme Court held that the State Board acted in excess of its authority by taking actions in contravention of that statute:
. . . Thus, the General Assembly, by adopting [N.C.G.S. §115C-98(b)] placed the decisionmaking process for the selection and procurement of these supplementary instructional materials in the exclusive domain of the local school boards . . . Since Channel One is a supplementary instructional material and since the General Assembly placed the procurement and selection of
supplementary instructional materials under the control of the local school boards, the State Board acted in excess of its authority in enacting this rule because the State Board had no authority to enact a rule on this subject.
Whittle Communications, 328 N.C. at 466. The Whittle case made clear that the General Assembly has the preeminent constitutional power to make policy decisions relating to the public school system which are binding on the State Board and the State Superintendent.
Finally, the intent of the General Assembly to subordinate the State Superintendent to the will and authority of the State Board when it enacted N.C.G.S. §§115C-19 and 115C-21 is beyond question. The General Assembly made all of the statutorily designated duties and responsibilities of the State Superintendent "subject to the direction, control, and approval of the State Board of Education." (emphasis added) Because the General Assembly did not define the words "direction," "control," or "approval," we look elsewhere to see what those words commonly mean. Black’s Law Dictionary, DeLuxe Fourth Edition (1951) defines those words as follows:
Direction – the act of governing; management; superintendence. That which is imposed by directing; a guiding or authoritative instruction; order; command. Control – to exercise restraining or directing influence over; regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern. Approval – the act of confirming, ratifying, sanctioning, or consenting to some act or thing done by another. Although it would have sufficed for the General Assembly to indicate its intent that the State Board would clearly predominate over the State Superintendent in this regard by the use of only one of those three words, it chose three of the strongest expressions indicating authority over another.
Based on the clear language of Article III, §7(2) of the Constitution that the State Superintendent’s "duties shall be prescribed by law," and the clear language of N.C.G.S. §§115C19 and 115C-21 that all of the State Superintendent’s prescribed duties as chief administrative officer and secretary to the State Board are "subject to the direction, control, and approval of the State Board of Education," it is our opinion that the State Board has the authority to determine and control the duties and responsibilities of the State Superintendent. Should the State Board conclude that the day-to-day operation of the Department of Public Instruction should be the responsibility of someone other than the State Superintendent, it is our opinion that the State Board has that authority by virtue of the laws enacted by the General Assembly. In exercising that authority, we are confident that the State Board recognizes that the State Superintendent is a constitutional officer, and that the State Board and the State Superintendent will work together for the good of all our citizens, and especially for our children.
Andrew A. Vanore, Jr. Chief Deputy Attorney General