Thursday, February 8, 2018

North Carolina Battle over Education Powers Raises Fundamental Concern about Manipulations of Opportunity

This week, the North Carolina Supreme Court will take up the legality of a statute that transferred certain education powers from the State Board of Education to the State Superintendent.   According to local reports, the statute was passed by the republican controlled legislature as a way of retaining the party's control over education.  A democrat had just been elected governor and would have the power to begin appointing new members to the state board.  The Superintendent, however, was republican.

The drama of the situation has generated a relatively high level of interest in a case that might otherwise look like a bureaucratic battle with low stakes.  The News and Observer frames it as a question of who will be "in charge of North Carolina's schools."  At the micro-level, that is correct.  

The general education provisions of the North Carolina Constitution provide:

Section 1. Education encouraged.

Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.

Sec. 2. Uniform system of schools.

(1) General and uniform system: term. The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.

The more specific and directly relevant provisions provide:

Sec. 4. State Board of Education.

(1) Board. The State Board of Education shall consist of the Lieutenant Governor, the Treasurer, and eleven members appointed by the Governor, subject to confirmation by the General Assembly in joint session. The General Assembly shall divide the State into eight educational districts. Of the appointive members of the Board, one shall be appointed from each of the eight educational districts and three shall be appointed from the State at large. Appointments shall be for overlapping terms of eight years. Appointments to fill vacancies shall be made by the Governor for the unexpired terms and shall not be subject to confirmation.

(2) Superintendent of Public Instruction. The Superintendent of Public Instruction shall be the secretary and chief administrative officer of the State Board of Education.

Sec. 5. Powers and duties of Board.

The State Board of Education shall supervise and administer the free public school system and the educational funds provided for its support, except the funds mentioned in Section 7 of this Article, and shall make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.

The provisions do not provide a crystal clear answer in the case because they do not include any specificity regarding the Superintendent and Board's power.  Both are, in large part, carrying out the laws enacted by the General Assembly.  Yet, the language would appear to treat the Board as superior to the Superintendent.  The Superintendent is the "secretary and chief administrative officer of" the Board.  "Of" could suggest that he does the work of the Board for it.  Moreover, even if one emphasized that he is "chief" of the board, that would only suggest that he is first among equals on the board, but he is still a member of the board, not its superior.

The Supreme Court will surely plumb the text with more depth and history than I.  The issue it could easily miss, however, is the question of why this division of powers between the Board, Superintendent, Governor, and General Assembly exists at all.  This purpose of the division is more important than the precise division itself.  As I explain in the Constitutional Compromise to Guarantee Education, state boards and superintendents were a creation of the post-Civil War era.  While they may appear to serve purely bureaucratic purposes today, they served a much larger purpose then.

The state constitutions enacted immediately before and after the ratification of the Fourteenth Amendment devoted specific attention to the structures through which education would be delivered. Those early constitutions isolated education funding and policymaking from politics, focusing less on the substance of education and more on the political manipulations and challenges that would plague educational opportunity if left to chance. Manipulations in education, second only to potentially voting, posed a fundamental threat to the republican forms of government they were seeking to ensure.

In the immediate aftermath of the Civil War, these threats were at their height. As Senator Morton cautioned when discussing the conditions of southern readmission, “half of the whole voting population [in the South is] unable to read and write” and “we cannot expect the men who own the property voluntarily to tax themselves to provide education for the others.” Until constitutional provisions force states to deliver education to the uneducated masses, “political power will remain almost entirely in the hands of the present rebel-educated classes.” Against this cultural backdrop, states needed to not only adopt education, but to adopt processes and structures that would ward off political manipulations and ensure that education decisions were arrived at through fair processes. If those evils could be avoided and the process of delivering education routinized, educational opportunities that meet the needs of a republican form of government could reasonably be expected to follow.

In the South, where the need was greatest, state constitutional conventions achieved these ends through three mechanisms: statewide school financing, specialized education decision-making at the state rather than local level, and requirements that education systems be uniform across the state. A century and a half later, these constitutional provisions might seem like obvious or inherent aspects of educational bureaucracy. Considered in the context of ensuring a republican form of government, they represented something much more profound. . . .  [T]hey represented an attempt to remove major aspects of education from the normal political process—to place education on its own plane as a basic right of citizenship that cannot be left subject to the whims of a majority.

The paper explores these issues in far more depth, but the basic relevant point for North Carolina (and other states that have recently toyed with these offices) is that education holds a special place in the constitutional structure of all states.  These divisions of power were special precautions to avoid political manipulates and deprivations of education.

This overarching purpose does not answer the question of whether North Carolina's Board or Superintendent should wield the most power.  But it should raise huge red flags for legislative activity that seeks to manipulate or politicize education power, regardless of reaps the benefit of that manipulation.  In fact, I argued that certain manipulations are violation of  the federal constitution, not just the state constitution.  And long before this North Carolina case had made its way to the state supreme court, I had suggested that the facts on the ground in the state, coupled with various educational policies in the state, were potential examples of a constitutional violation.

 

 

http://lawprofessors.typepad.com/education_law/2018/02/nc-draft.html

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