Court gives school board another month to prevent reorganization

By: Lindsay Marchello - Carolina Journal

RALEIGH — A three-judge panel in Wake County Superior Court granted an extended 30-day stay requested by the State Board of Education in the lawsuit between the board and State Superintendent Mark Johnson while appeals are pending.

The board filed a lawsuit last December over the General Assembly’s decision to shift power from the board to Johnson, arguing the law violated the state constitution. In July the Superior Court ruled the board failed to prove the law was unconstitutional and granted a 60-day stay of the ruling, anticipating appeals.

The stay expired this week, and would have allowed Session Law 2016-126 to go into effect, but the board convinced the court to grant an additional stay pending appeal. The stay expires Oct. 16.

Attorneys Bob Orr and Andrew Erteschik, representing the school board, argued that denying their motion to extend the stay would result in massive disruption to the public school system.

“If the legislation at issue goes into effect, for all practical purposes, the governance via the administration and supervision of the public school system as this court has acknowledged is the primary constitutional responsibility of the State Board of Education will be virtually eliminated,” Orr argued.

Orr and Erteschik outlined some of the concerns presented in the motion to extend the stay. They argued if the law went into effect, then Johnson would have sole control over the hiring and firing of thousands of employees.

“Under the existing law the State Board of Education either has a direct role or a dual reporting role or a final say so in the context of these personnel decisions,” Orr said. “Under the legislation at issue the decision making involvement of the State Board of Education … is shifted in its entirety to the superintendent.”

Erteschik explained the stay would allow the appellate court the opportunity to rule on an extended stay or a writ of supersedeas.

“I have heard no reason articulated on why this court’s decision must go into effect in the next several weeks and frankly I cannot imagine with a long standing status quo that would happen,” Erteschik said. “This case was filed in December. We have a 150-year-old status quo. What is another few weeks to give the appellate courts the space and the time to reach results?”

Attorney Philip Isley, representing Johnson, argued the board’s claims are entirely speculative and offered no facts justifying a stay.

“The plaintiffs have done a fantastic job apparently of convincing this panel that all Hell will break loose if Mark Johnson is able to take control of the Department of Public Instruction,” Isley said. “The affidavits that have been filed in this matter are completely hypothetical.”

Isley told the judges the world would not stop turning if Johnson took more control over DPI.

“They make my client out to be this bogeyman who is going to come with an axe and start swinging heads and everyone is going to be fired,” Isley argued. “That could not be farther from the truth.”

Despite Isley’s arguments to allow the law to go into effect, the Superior Court judges decided to grant the 30-day stay.

After the hearing, Johnson and State Board Chairman Bill Cobey issued statements.

“I am disappointed by the court’s ruling today. Chairman Cobey and Vice Chair [Buddy] Collins are vigorously defending the status quo for our education system at the expense of students, educators, and taxpayers. I am confident I will eventually be able to lead the positive transformation for our schools that the people of North Carolina voted for over 10 months ago,” Johnson said.

Cobey, conversely, applauded the stay. “We are pleased the court has blocked this law for another month to allow the appellate courts to consider the case.”

Lindsay Marchello

Carolina Journal