Cobey, NC Board of Education Seem To Be In Denial Over HB 17 Ruling

Last month the North Carolina State Supreme Court ruled to uphold House Bill 17, which assigns more power to the Superintendent for the day to day running of the state’s schools. This ruling concurs with the lower court’s decision from July 2017.

Thus, for the reasons set forth in greater detail above, we hold that the enactment of Session Law 2016-126 does not, at least on its face, contravene Article IX, Section 5 of the Constitution of North Carolina. As a result, the three-judge panel’s decision is affirmed.

– NC Supreme Court Ruling
NC SBC v State of NC and Mark Johnson

While the ruling stated plainly that the NC Board of Education did not make the case that HB 17 violates the state’s Constitution, Chairman of the North Carolina State Board of Education, Bill Cobey, seems to think the Supreme Court is wrong.

Cobey and the State Board of Education issued a press release laying out three reasons why he thinks the State Board of Education actually won the case.

The flavor of Cobey’s press release brings a quote to mind.

The lengthy press release also complains about House Bill 374, which made additional changes to education procedures.

HB 374 covers multiple items, but the State Board of Education is addressed in two sections, one of which is titled “REPEAL STATE BOARD OF EDUCATION POLICIES INCONSISTENT WITH STATE LAW, AS AFFIRMED BY NC SUPREME COURT.”

The other section deals with interim rules being required to go before the Rules Commission per the Supreme Court’s ruling. It also gives the State Board of Education a deadline to get their interim rules codified in the manner prescribed by law or else become null and void.

The NC Supreme Court’s ruling not only points out the Board of Education failed to make the constitutional violation case, but that it also failed to make the case there was a challenge to fiscal authority.

The release spends a good amount of time bashing Superintendent Johnson for ‘not cooperating with the board’. One has to question why any superintendent would be so inclined to ‘cooperate’ after being sued for the first year and a half of his first term by his own board.

Lindsey Wakely, chief of staff and legal counsel to Johnson, accused Cobey of ‘ignoring the will of the General Assembly and state Supreme Court:

“The Supreme Court of North Carolina unanimously and clearly ruled against Chairman Bill Cobey’s lawsuit. Despite losing his lawsuit, Chairman Cobey appears determined to ignore the will of both the General Assembly and the Supreme Court of North Carolina and continue to waste taxpayer dollars on his frivolous lawsuit. The state of North Carolina and Mark Johnson won. Cobey lost. Mark Johnson will manage the N.C. Department of Public Instruction with the full authorities granted to the superintendent per House Bill 17.”

Background on the HB 17 Saga

In 2016, during the 4th special session of the North Carolina General Assembly, substantial changes were made to the educational power structure in the state via House Bill 17 (HB 17).

Governor McCrory signed the bill into law. McCrory also was the one who appointed Bill Cobey to the State Board of Education.

The bill shifts some power from the State Board of Education to the new State Superintendent, Mark Johnson. Specifically, the Superintendent is no longer “Subject to the direction, control, and approval of the State Board of Education.”

HB 17 gives the Superintendent the power to, “create and administer special funds within the Department of Public Instruction to manage funds received as grants from nongovernmental sources in support of public education.”

The State Board of Education (SBE) issued a press release on HB 17 which said the bill raised “constitutional concerns” and eliminated checks and balances. The statement was issued by Chairman Bill Cobey and then-Vice Chair Buddy Collins:

“The State Board of Education and State Superintendent have a strong and productive relationship that works well on behalf of public schools and charter schools in North Carolina. HB 17 An Act to Clarify the State Superintendent’s Role” raises Constitutional concerns and eliminates checks and balances that are important to the students of North Carolina.

“For these reasons, State Board of Education Vice-Chair A.L. “Buddy” Collins and I oppose HB 17. The bill is not in the best interest of public schools and public charter schools in North Carolina.”

The SBE filed for a restraining order to keep the law from going into effect on January 1st of 2017. On the same day that the SBE filed their motion (December 29th, 2016) Superior Court Judge Donald Stephens granted the request.

Lt. Governor Dan Forest, who sits on the NC Board of Education, issued a press release opposing the Board’s lawsuit.

“The State Board of Education, the General Assembly, and our incoming Superintendent of Public Instruction want to see a better education for each child in North Carolina. The result of yesterday’s decision to take this dispute to court is to make these relationships unnecessarily adversarial rather than working together to do what is best for North Carolina’s students,” wrote Forest in the statement. “I opposed the bringing of a lawsuit and will continue to work to see that this issue is resolved how it should be — through collaboration among those of us with the same goals, rather than by a panel of judges.”

There was to be another hearing on the matter on January 6th, however, that ended up being postponed.

In July of 2017, a North Carolina Superior Court 3-judge panel ruled in favor of Superintendent Mark Johnson in his legal battle with the State Board of Education.

The Superior Court judges said in their July 14th, 2017 ruling that the board had failed to prove that any part of the law was unconstitutional.

That ruling stated that the law was not a transfer power to the Superintendent, but instead allows for Johnson to manage daily operations. Additionally, the ruling notes that the Board maintains its advisory capacity and oversight abilities.

Resources and Documentation

View the NCSBE v. The State of NC filings:

View the response filings by Supt Mark Johnson:

North Carolina Supreme Court Ruling:

NC State Board of Education vs The State of North Carolina & Mark Johnson