Was 1993 N.C. House Bill 935 (deleting references to the Department of Public Education from the General Statutes) constitutional under Article IX of the North Carolina Constitution?
Plain-English summary
Superintendent of Public Instruction Bob Etheridge wrote to the Attorney General about a constitutional concern that had been raised against 1993 N.C. House Bill 935. The bill stripped references to the "Department of Public Education" from the General Statutes. The Chairman of the State Board of Education had written to a Senate committee questioning whether the bill was constitutional.
Special Deputy Attorney General Thomas F. Moffitt examined the bill and Article IX of the North Carolina Constitution and concluded that the bill did not alter the constitutional responsibilities of either the State Board of Education or the Superintendent of Public Instruction. The Article IX powers, duties, and offices remained intact regardless of whether the General Statutes used the phrase "Department of Public Education." The AG's office committed to defending the bill in court if it was challenged after enactment.
The opinion is unusually short. It does not walk through Article IX clause by clause. It announces a conclusion and offers the AG's defense commitment, which is typical of advisory letters issued late in a legislative session when speed mattered to the requestor.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The administrative structure of North Carolina public education has been amended several times since 1993, including reorganizations affecting the relationship between the State Board of Education, the Superintendent of Public Instruction, and the Department of Public Instruction. Anyone with a constitutional question about a current education-related statute or reorganization bill should examine present Article IX and the current statutory framework rather than relying on this opinion's bottom-line endorsement of the 1993 bill.
Common questions
Q: What did House Bill 935 do?
A: It deleted references to the "Department of Public Education" from the North Carolina General Statutes. The bill was housekeeping legislation tied to changes in how the department was named or organized. Because the constitutional offices of the State Board of Education and the Superintendent of Public Instruction were untouched, the AG saw no constitutional defect.
Q: Why was constitutionality a concern at all?
A: Article IX of the NC Constitution creates the State Board of Education and the office of the Superintendent of Public Instruction and assigns each certain duties. The Chairman of the State Board worried that deleting statutory references to the Department of Public Education might shrink or alter those constitutional duties. The AG's view was that mere statutory renaming or restructuring did not touch the Article IX offices themselves.
Q: How much analysis did the AG give?
A: Very little, on the face of the letter. The opinion is two paragraphs of substance. It states the bill was reviewed alongside Article IX and announces a conclusion of constitutionality. The brevity reflects the advisory letter format and the legislative-session timing.
Q: What did the AG's commitment to defend the bill mean?
A: The North Carolina Attorney General is statutorily required to defend the constitutionality of state statutes against challenge. The opinion's statement that the AG would defend HB 935 if enacted and challenged was a reassurance to the legislative sponsors that legal defense would be provided, not a binding judicial determination.
Background and statutory framework
Article IX of the North Carolina Constitution covers Education. Section 4 establishes the State Board of Education. Section 5 vests the Board with the power to supervise and administer the free public school system. Section 4 also creates the Superintendent of Public Instruction as a Council of State officer and assigns the Superintendent specific functions, including secretary of the State Board.
The Department of Public Instruction is the staff arm through which the State Board and the Superintendent carry out their constitutional duties. The Department itself is a statutory creation, not a constitutional one. That distinction matters: the General Assembly can rename, reorganize, or even abolish a statutory department without affecting the constitutional offices that the department serves.
1993 HB 935 worked within that boundary. By deleting references to the "Department of Public Education" from the General Statutes (whether to standardize naming, eliminate redundant references, or reflect a reorganization), the bill changed the statutory framework but not the constitutional structure. That is the analytical move the AG's two-paragraph conclusion stands on.
Citations
- 1993 N.C. House Bill 935 (deleting references to the Department of Public Education from the General Statutes)
- N.C. Const. art. IX (Education; powers and duties of the State Board of Education and the Superintendent of Public Instruction)
Source
Original opinion text
July 21, 1993
The Honorable Bob Etheridge Superintendent of Public Instruction
N.C. Department of Public Instruction Education Building Raleigh, North Carolina
Re: Constitutionality of House Bill 935
Dear Bob:
You have requested an opinion from the Attorney General's Office concerning the constitutionality of House Bill 935 ("HB 935") which deletes references to the Department of Public Education from the General Statutes. It is my understanding that the Chairman of the State Board of Education expressed reservations about the constitutionality of the Bill in a letter to a Senate committee where the Bill is being considered.
After examining House Bill 935 and Article IX of the Constitution of North Carolina, I conclude that HB 935 does not alter the constitutional responsibilities of either the State Board of Education or the Superintendent of Public Instruction. It is my opinion that HB 935 is constitutional. If HB 935 is enacted into law, the Attorney General's Office will defend it in court if it is challenged.
If I can be of further assistance, do not hesitate to contact me.
Thomas F. Moffitt Special Deputy Attorney General