Determining who prevails in the power struggle between the State Board of Education and the Department of Public Instruction Superintendent will boil down to semantics.
The state Supreme Court heard arguments yesterday in the lawsuit challenging the constitutionality of House Bill 17, a GOP measure that transferred power from the Board to Superintendent Mark Johnson, a newly elected Republican.
There was a lot of discussion about what certain words or phrases in the state constitution and in House Bill 17 meant. Hardy Lewis, attorney for Johnson, hung his hat on the phrase “subject to laws enacted by the General Assembly” to show that lawmakers had power to reallocate power.
“The General Assembly has significant power to revise and limit even the expressed powers in the constitution,” he said.
Bob Orr, a former state Supreme Court justice who represents the Board, said the General Assembly was seeking “unlimited and unprecedented control.”
“The General Assembly cannot give constitutional powers; it cannot reallocate powers,” he said.
Supreme Court justices asked a lot of questions about how far the General Assembly’s powers could go and what the real issue of the case was.
“I think the question that really is before the court is who is really the authority of the public school system?” Lewis said. “Is it the Board, are they the fourth branch of government? Or are there other equal and superior entities?”
Orr said he thought the core constitutional power of the board was to supervise, make rules and administer funds — it delegates to the superintendent, who is the chief administrative officer of the board.
“The whole concept was that the General Assembly couldn’t parcel out to whatever entity it chose or may create the powers that are supposed to be consolidated under the State Board,” he said.
Deputy Attorney General Olga Vysotskaya de Brito argued on behalf of the state and said HB17 didn’t take away the Board’s power. She explained that HB17 gives the Board “general” powers of supervision and Johnson has “direct” day to day powers of administration.
Each of their powers are to be as prescribed by law, she added.
“The General Assembly does not have the power to abolish the core functions of the Board but it does have the power to revise and limit,” she said.
Andrew Erteschik, another attorney for the Board, disagreed and said the HB17 was “not a nuanced piece of legislation.”
“The Board is in charge of the public school system,” he said. “HB17 says that the Board is not in charge of the public school system and that the Superintendent is in charge of the public school system.”
When asked about lawmaker’s legal presumption of constitutionality when it passes laws, Erteschik added that it was “out the window” when they copied and pasted a constitutional statute from one entity to another.
Supreme Court justices will decide the case at a later time. Chief Justice Mark Martin did not hear the case after previously recusing himself.