After the 1995 General Assembly passed House Bill 7 making the State Superintendent's duties 'subject to the direction, control, and approval' of the State Board of Education, can the State Board override the Superintendent on staff direction, contract signing, meeting attendance, and policy implementation? Or does the Superintendent's status as a constitutionally elected officer protect those duties from State Board override?
Plain-English summary
A major piece of education legislation passed in 1995 (House Bill 7, codified at N.C.G.S. §§ 115C-19 and 115C-21) shifted authority within North Carolina's public-education governance structure. The State Superintendent of Public Instruction, an elected statewide constitutional officer, had previously been understood to have substantial independent authority over the day-to-day operation of the Department of Public Instruction. HB 7 stripped many of those historic duties and either gave them to the State Board of Education or subordinated them to the State Board's direction.
State Superintendent Bob Etheridge wrote to the AG asking what the new framework meant in practice. He understood that policy authority was now with the Board, but believed his role as "chief administrative officer for the State Board of Education" gave him independent authority over staff direction, contract signing, attendance at top administrative meetings, and being kept abreast of policy directions. The AG's task was to interpret the new statutory language: were any of those rights protected from State Board override?
The AG answered no. Chief Deputy AG Andrew Vanore worked through three legal layers.
Constitutional text. Article IX, § 5 makes the State Board "supervise and administer the free public school system . . . subject to the laws enacted by the General Assembly." That qualifier puts the legislature on top of the State Board, even within the Board's enumerated constitutional powers. Article III, § 7(2) says the Superintendent's "duties shall be prescribed by law." So both offices are constitutionally subordinate to the legislature on the question of what each one does.
Supreme Court doctrine. Two NC Supreme Court cases settled the principle.
- Guthrie v. Taylor, 279 N.C. 703 (1971), held that the State Board's constitutional powers are subject to limitation and revision by the General Assembly. The court was clear: in the silence of the General Assembly, the State Board has wide authority, but once the legislature speaks, the Board must follow.
- State v. Whittle Communications, 328 N.C. 456 (1991), held that the State Board is bound by the General Assembly's policy determinations and acts in excess of its authority when it takes actions contrary to statute. Whittle struck down a State Board rule blocking local school districts from contracting with Whittle's "Channel One" program because § 115C-98(b) placed selection of supplementary materials with local school boards.
The Whittle case is especially helpful because it confirms that "subject to" language in the constitution and statutes is not boilerplate; it is the central rule of the relationship.
The 1995 statutory text. N.C.G.S. § 115C-19 restates the constitutional designation of the State Superintendent as chief administrative officer of the State Board, "subject to the direction, control, and approval of the State Board of Education." Section 115C-21 designates the administrative and secretarial duties of the State Superintendent, also "subject to the direction, control, and approval of the State Board of Education." The AG noted that the General Assembly used three of the strongest authority words available: direction, control, and approval. Black's Law Dictionary definitions show direction is governing, management, command; control is restraining, regulating, dominating; approval is confirming, ratifying, sanctioning, or consenting.
Putting all three layers together, the AG concluded that the State Board has the authority to determine and control the duties and responsibilities of the State Superintendent. If the State Board decided that the day-to-day operation of DPI should be the responsibility of someone other than the State Superintendent, the State Board could make that call. The AG closed with a hopeful note that the State Board and Superintendent would work together for the good of the public, and a reminder that the State Superintendent remains a constitutional officer (so his existence and salary are constitutionally protected, even if specific duties are not).
Currency note
This opinion was issued in 1995. 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 relationship between the State Superintendent and the State Board of Education has been a recurring source of legal dispute and legislative attention since 1995. Subsequent legislation (including reorganization bills in the 2000s and 2010s) has changed the specific assignment of duties; some duties shifted back toward the Superintendent, then shifted again toward the Board. Anyone analyzing the current relationship should read current Article IX legislation and current statutory text, not rely on this 1995 snapshot.
Background and statutory framework
The State Superintendent / State Board tension is structural and recurring. The Superintendent is elected statewide on the council-of-state ballot. The State Board is appointed (governor appointments confirmed by the legislature, plus the Lieutenant Governor and State Treasurer ex officio). The Superintendent has a popular mandate. The State Board has institutional continuity. The General Assembly has flexibility to adjust the balance.
The Constitution gives both offices a role. The Superintendent is the "Superintendent of Public Instruction" elected by the people (Article III, § 7, listing council-of-state offices). The State Board has "supervise and administer" authority (Article IX, § 4). The Superintendent serves as the Board's secretary and chief administrative officer (Article IX, § 5). But both roles are textually qualified by the legislature's authority to "prescribe by law" the duties.
The 1995 General Assembly used that qualification aggressively. HB 7 was a substantial transfer of authority, motivated by then-current concerns about coordination and accountability in education administration. The bill subordinated the Superintendent's administrative role to the Board's direction. Superintendent Etheridge's December 12 letter (referenced in this opinion) raised a real but losing argument: that even after HB 7, the chief-administrative-officer role had inherent powers that the Board could not override. The AG's response was that the Constitution itself, by qualifying the Superintendent's duties with "prescribed by law," forecloses an inherent-powers argument.
Guthrie v. Taylor is the foundational North Carolina case on legislative authority over constitutional education offices. The teacher in Guthrie attacked a State Board rule requiring re-certification credits. The court held that the State Board had authority to enact the rule because the legislature had not contradicted it. That sounds like a win for the State Board, but the reasoning was that the State Board's authority is residual: it operates in the space the legislature has not occupied. If the legislature occupies the space, the State Board must yield.
Whittle Communications applied that principle to invalidate a State Board rule. The State Board had tried to block Channel One contracts. The court held that § 115C-98(b) explicitly placed the selection of supplementary instructional materials with local school boards, and that placed Channel One contracts outside the State Board's authority. So Whittle is not about whether the State Board has power; it is about whether legislation has reassigned the power elsewhere.
The 1995 opinion's application of Guthrie and Whittle to the Superintendent is straightforward by analogy. If the State Board's constitutional powers are subject to legislation, so are the Superintendent's. If the State Board cannot override the legislature, neither can the Superintendent. The opinion treats both offices as constitutionally subordinate to the General Assembly, with the State Board (under the 1995 legislation) sitting above the Superintendent on administrative matters.
Common questions
Could the State Board fire the State Superintendent?
No. The Superintendent is constitutionally elected; the Board cannot remove him from office. The opinion makes clear that the Superintendent remains a constitutional officer. What the Board can do is reassign duties, take staff direction away, or even pass day-to-day DPI operations to a different administrator. The Superintendent would still hold the office and draw the salary, but the operational role could be hollowed out.
Did this opinion settle the debate?
No. The State Board / Superintendent tension has flared repeatedly since 1995. The legislature has passed multiple subsequent bills realigning the relationship, sometimes restoring Superintendent authority, sometimes consolidating more authority in the Board. The opinion is good as a 1995 snapshot, not a permanent answer.
Could a future legislature flip the relationship back?
Yes. That is the whole point of the AG's reasoning. The legislature has flexibility to adjust who does what, within the constraint that both offices must continue to exist. The 1995 framework gave the Board the upper hand; a future framework could give the Superintendent the upper hand again. Both are constitutional.
What about local school boards? Where do they fit?
Whittle answers part of this: when the legislature places authority with local school boards (like § 115C-98(b) for supplementary materials), the State Board cannot override. So local school boards have their own statutory roles that are protected from State Board interference, just as the State Superintendent's role can be limited or expanded by the legislature.
Source
Citations
- N.C. Const. art. III, § 7(2)
- N.C. Const. art. IX, §§ 4, 5
- N.C. Gen. Stat. §§ 115C-19, 115C-21, 115C-98(b)
- 1995 N.C. Sess. Laws ch. 72 (House Bill 7)
- Guthrie v. Taylor, 279 N.C. 703 (1971), cert. denied, 406 U.S. 920 (1972)
- State v. Whittle Communications, 328 N.C. 456 (1991)
Original opinion text
Full opinion text unavailable from the official source. See the linked landing page above for the complete text. The opinion is a substantial multi-section analysis covering constitutional structure, the Guthrie and Whittle cases, the 1995 statutory text, and dictionary definitions of "direction," "control," and "approval"; a faithful verbatim reproduction is not practical here.
The complete opinion is available at:
https://ncdoj.gov/opinions/duties-of-the-state-superintendent-of-public-instruction/
The opinion was issued by Andrew A. Vanore, Jr., Chief Deputy Attorney General, on December 14, 1995, to State Superintendent Bob Etheridge. It addresses the post-HB 7 (1995) relationship between the State Superintendent of Public Instruction and the State Board of Education, with the conclusion that the State Board has authority to determine and control the duties of the Superintendent under N.C.G.S. §§ 115C-19 and 115C-21.