Constitutional Concerns about the Creation of an Independent Charter School Board


Jun 5th, 2013
by Jeanette Doran

this paper.

Constitutional Concerns about the Creation of an Independent Charter School Board

North Carolina Institute for Constitutional Law[1]

www.ncicl.org

June 5, 2013

Since their creation in 1995, North Carolina’s public charter schools have been regulated and supervised by the State Board of Education pursuant to Title 115C, Article 16 of the General Statutes.  Proposed legislation filed this year, Senate Bill 377 and the substantially similar House Bill 453, would alter this supervisory relationship. SB337 would remove all charter school-related supervisory, rulemaking, and assistance duties from the State Board of Education and place this authority into a newly created board, the “North Carolina Public Charter Schools Board.”[2] While administratively housed within the Department of Public Instruction this board would operate “independently” from the State Board of Education and the Department of Public Instruction. The State Board of Education could only overturn the newly-created board’s decisions with what the bill describes as a “veto vote,” requiring a three-fourths majority, within forty-five (45) days of the new board’s decision. An independent charter school board, as proposed by SB337, raises serious legal concerns and likely violates the State Constitution.

 

I.               Charter schools are within the scope of the State Board of Education’s constitutional authority over the public education system.

 

Article IX, section 5 of the North Carolina Constitution provides that the State Board of Education “shall supervise and administer the free public school system” and make “all needed rules and regulations in relation thereto”. N.C. Const. art. IX, sec. 5. Below is an explanation of the scope of this authority and its applicability to charter schools.

 

A.    Charter schools are part of the public school system subject to the State Board’s supervisory authority under the State Constitution.

 

Article IX of the State Constitution sets out the constitutional framework for education in North Carolina. Two different phrases are used to denote the public education architecture and must be explained at the outset. Section 2 requires: “The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools[.]” (emphasis added). Section 5 requires: “The State Board of Education shall supervise and administer the free public school system….” (emphasis added). Section 2 requires the creation of a general and uniform system in order to satisfy constitutional minimums; however, the State Board must supervise and administer not just the general and uniform system but also the entire system of free public schools.

There is no genuine issue about whether charter schools constitute public education. These schools were created in 1995 by the General Assembly as “deregulated schools under public control.”  Charter Schools Act of 1996, ch. 731, House Bill 955, 1995 N.C. Sess. Laws. Charter schools are also free and public schools in the plain meaning of the words; public charter schools are free of tuition, receive public funds, and are required to admit members of the public on a nondiscriminatory basis. See generally G.S. § 115C-29. The North Carolina Court of Appeals has stated that charter schools are “undoubtedly public schools.” Sugar Creek Charter Sch., Inc. v. State, ___ N.C. App. ___, 712 S.E.2d 730, 742 (2011.) Furthermore, relevant statutory language describes them as “in the public school system.” G.S. 115C-238.29A(a)(5). The General Statutes also specify that “charter schools are public schools” and that each charter school is to be considered “a public school within the local school administrative unit in which it is located.” See G.S. § 115C-238.29E; G.S. § 115C-238.29F(e)(4).

The sole precedential basis for stating that charters are not in the system of public education would be a misapplication of unclear dicta from a 2011 decision of the N.C. Court of Appeals. In Sugar Creek Charter Sch., Inc. v. State, 712 S.E.2d 730, 742 (N.C. Ct. App. 2011), the court opined that charter schools could be considered either: “(1) a component of the uniform system of public schools, created in addition to those schools required to provide access to a sound basic education and subject to different statutory guidelines and funding options than traditional public schools, or (2) as an optional educational program created outside of and in addition to the uniform system of public schools.” Sugar Creek, 712 S.E.2d at 742. This language has caused some advocates to overlook the distinction in the terminology used in Section 2 and 5 of Article IX.

The Sugar Creek court declined to answer whether charters were part of the “general and uniform system”, not whether charters were part of public education. Sugar Creek 712 S.E.2d at 742.  Even if it had decided that charters were “outside of and in addition to the uniform system”, this would not establish that charters schools are outside of the authority of the State Board of Education, because the modifying language at issue in Sugar Creek, “general and uniform,” is not present in any description of the State Board of Education’s authority.  Instead, these words—“general and uniform”-- describe the system which must be provided by the General Assembly as a constitutional minimum. N.C. Const. art. IX, sec. 2, 5. Although charter schools differ from traditional schools in various aspects and so might not be part of the “general and uniform system of free public schools,” the authority of the State Board of Education extends to the “public school system,” which would include schools both within the uniform school systems and those outside the uniform system.

 

B.    Charter Schools Cannot be Exempted from State Board Authority by the Creation of a Charter Schools Board.

 

Article IX, section 5 establishes a unique constitutional role for the State Board of Education: Not only is it the only unelected board or commission explicitly granted power by the North Carolina Constitution, but it has a constitutional source for its executive and rulemaking authority over the public education system. See Guthrie v. Taylor, 279 N.C. 703, 712 (1971) (discussing the constitutional source of the State Board of Education’s authority); Ann McColl, The North Carolina State Board of Education: Its Constitutional Authority and Rule-Making Procedures, School of Law Bulletin, UNC School of Government, Fall 1998, 1-11, available at http://sogpubs.unc.edu/electronicversions/slb/mccoll.htm#fn3 (discussing the State Board of Education and its role in the North Carolina constitution).

The State Board’s primary source of authority is Article IX, section 5. But, what does that provision mean? To discover the meaning of a constitutional phrase the courts will look to the intent of the framers of that provision. Mitchell v. N. Carolina Indus. Dev. Fin. Auth., 273 N.C. 137, 143 (1968). The provisions of the 1971 Constitution were intended to be mere editorial revisions of the Constitution of 1868 as it functioned before passage of the new document. North Carolina State Bar v. DuMont, 304 N.C. 627 (1982). The analogous provision to the current Article IX, sec. 5 enumerated several specific duties of the State Board of Education before stating that the State Board of Education was to “generally administer and supervise the free public school system of the state and make all needful rules and regulations in relation thereto.” N.C. Const. of 1868 as amended, art. IX, sec. 9 (Powers and Duties of the Board).

The study commission that proposed the current text of Article IX made clear that the changes between the 1868 and 1971 versions were merely editorial. The commission wrote that the current text simply “restates, in much abbreviated form, the State Board of Education, but without any intention that its authority be reduced.” N.C. St. Const. Study Comm., Report of the North Carolina State Constitution Study Commission to the North Carolina State Bar and the North Carolina Bar Association 34 (1968), available at http://www.ncicl.org/assets/uploads/brief/NC%20Const%20Study%20Commission.pdf. Thus, the framers of the current Constitution intended to maintain the authority of the State Board of Education to have general administrative powers over public education in North Carolina. Since the framers did not intend for this shift in language to indicate substantive change, the only logical conclusion is that the framers intended the State Board of Education’s purview over the public schools “generally” to be synonymous to what it had under the 1868 Constitution.

 

II.             The State Board’s Authority is not Unlimited.

 

The State Board’s constitutional duty to supervise and administer the free public school system is not unfettered, however. Article IX, section 5 requires the State Board to “make all needed rules and regulations in relation thereto, subject to laws enacted by the General Assembly.” The plain language of this provision indicates that the nature of the State Board’s authority is subject to legislation, but this does not suggest that the scope of the supervision may be categorically diminished by legislation. Cases have noted that the State Board’s authority is subject to statutory restriction, but no case has authorized the State to remove whole categories of schools from the clear constitutional mandate that the State Board “shall supervise and administer the free public school system.” An example may help illustrate this distinction. For example, the General Assembly may enact teacher certification standards and the State Board would be required to promulgate rules consistent with and in furtherance of such legislation, but the General Assembly could not carve out an entire subset of public schools, like high schools, and exempt it from the State Board’s constitutional supervisory authority. See Guthrie v. Taylor, 279 N.C. at 703, 710 (1971) (holding State Board’s teacher certification standards subject to statutes under provisions of 1868 Constitution and seeing no difference between 1868 Constitution and similar provision in 1971 amendments). Otherwise the General Assembly could categorically exempt elementary, middle and high schools from the State Board’s authority, effectively neutering Article IX, section 5.

 

III.           Conclusion

 

In essence, even if charter schools are separate from the constitutionally-mandated system of “general and uniform” education, they are undoubtedly public educational institutions, and thus part of the system of North Carolina public education. As part of the system of public education, the State Board of Education has a constitutional source of authority for its supervision of public charter schools. N.C. Const. Art. IX, sec. 5. While the State Board’s constitutional duty to supervise the public school system is subject to the laws enacted by the General Assembly, and those laws may shape the State Board’s exercise of its duty, they cannot, however, remove or exempt an entire class of public schools from the State Board’s supervisory authority.



[1] For more information, please contact Jeanette Doran, executive director, at doran@ncicl.org or 919-838-5313.

[2] SB337 and HB453 are substantially similar. For clarity and convenience, this memorandum cites to SB337.