Could South Carolina’s Education Oversight Committee review and approve state education decisions?

Plain-English summary

A state senator asked whether South Carolina's 1998 Education Accountability Act could give an appointed Education Oversight Committee authority to review or approve work by the State Board of Education, Department of Education, and elected State Superintendent of Education. The act assigned the committee monitoring, reporting, and recommendation duties. It also required committee review or approval of certain statewide assessments and the committee's advice and consent for new standards and assessments.

The Attorney General concluded that the act was constitutionally valid. The opinion said the state constitution gave the General Assembly broad discretion to organize and support public education and allowed it to specify the State Board's powers and duties. The elected superintendent's constitutional status did not, in the AG's view, bar the Legislature from assigning these oversight and approval functions to the committee. The office also found no unlawful delegation of legislative lawmaking power in the duties it examined.

The opinion stressed that statutes are presumed constitutional and that only a court could declare the act invalid. Its conclusion addressed the 1998 act as described in the opinion, rather than later amendments or a particular committee decision.

Currency note

This opinion was issued in 1998. 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.

Common questions

Could the committee approve state education assessments under the 1998 act? A: The opinion identified review and approval duties for certain assessments and concluded that assigning those duties to the committee did not violate the state constitution.

Did the elected superintendent's status make the committee unconstitutional? A: The AG said no. It found no constitutional bar to placing some supervisory and approval responsibilities with the committee even where the superintendent was involved.

Could the Legislature give the committee lawmaking power? A: The opinion distinguished making laws from assigning administrative duties under a law. It found no unlawful legislative delegation in the act's committee responsibilities.

Could the AG itself strike down the accountability act? A: No. The opinion said a statute remained effective until a court declared it unconstitutional and concluded that this act would pass constitutional review.

Background and statutory framework

Act No. 400 of 1998 established a performance-based school accountability system and revised the committee's membership and duties. The opinion described its work on assessment standards, program monitoring, funding recommendations, and the committee's Accountability Division. It read those assignments against the constitution's public-school provisions and the Legislature's authority to define the State Board's duties.

Citations and references

The opinion discussed Act No. 400 of 1998, § 59-6-10, and Section 59-18-100. The official PDF contains the full account of the committee's statutory duties and the constitutional analysis.

Official title

Asking about “the constitutionality of the General Assembly placing an appointed board in the position to have authority over the State Board of Education, the State Superintendent of Education, and/or the State Department of Education.”

Requester

The Honorable Mike Fair, Senator, District No. 6

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-24-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/98nov24fair.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
::HARLES M. CONDON
AITORNEY GENERAL

November 24. 1998

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The Honorable Mike Fair
Senator, District No. 6
P. 0. Box 14632
Greenville, South Carolina 29610

Re: Informal Opinion
Dear Senator Fair:
You have asked about "the constitutionality of the General Assembly placing an appointed board in the position to have authority over the State Board of Education, the State Superintendent of Education, and/or the State Department of Education. You note that the "General Assembly passed an accountability act that appears to have given the Education Oversight Committee the authority to direct the State Superintendent of Education and the State Board of Education to do certain things." Your question is whether this violates the Constitution of South Carolina.

Law I Analysis
The issue you have presented concerns the "South Carolina Education Accountability Act of 1998", enacted by Act No. 400 of 1998 and codified as part of Chapter 18 of Title 59 of the South Carolina Code (1976 as amended). The Act took effect on June I 0, 1998. The General Assembly found, in enacting the Accountability Act, that
... South Carolinians have a commitment to public education and a conviction that high expectations for all students are vital components for improving academic achievement. It is the purpose of the General Assembly in this chapter to establish a

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Senator Fair
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November 24, 1998

performance based accountability system for public education
\Vhich focuses on improving teaching and learning so that students are equipped with a strong academic foundation. Accountability, as defined by this chapter, means acceptance of the responsibility for improving student performance and taking actions to improve classroom practice and school performance by the Governor_ the General Assembly, the State Department of Education, colleges and universities, local school boards, administrators, teachers, parents, students, and the community. Section 59-18-100. Section 59-18-20 defines the Oversight Committee as the Education Oversight Committee established in§ 59-6-10 of the Code. Act No. 400 amends § 59-6-10 to compose the Education Oversight Committee of the following persons:

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(1)

Speaker of the House of Representatives or his designee;

(2)

President Pro Tempore of the Senate or his designee;

(3)

Chairman ofthe Education and Public Works Committee
of the House of Representatives or his designee;

(4)

Chairman of the Education Committee of the Senate or
his designee;

(5)

Governor or his designee;

(6)

Chairman of the Ways and Means Committee of the
House of Representatives or his designee;

(7)

Chairman of the Finance Committee of the Senate or his designee;

(8)

Five members representing business and industry who
must have experience in business, management or
policy to be appointed as follows: one by the Governor, one by the President Pro Tempo re of the Senate, one by the Speaker of the House, one by the Chairman of the Senate Education Committee, and one by the Chairman

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Senator Fair
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November 24, 1998

of the House Education and Public Works Committee;
and
(9)

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Five members representing public education teachers
and principals to be appointed as follows: one by the
Governor. one by the President Pro T empore of the
Senate, one by the Speaker of the House. one by the
Chairman of the Senate Education Committee, and one
by the Chairman of the House Education and Public
Works Committee.

General duties of the Education Oversight Committee are entailed in§ 59-6-10. as amended, to include the responsibility to (1)

review and monitor the implementation and evaluation
of the Education Accountability Act and Education
Improvement Act programs and funding;

(2)

make programmatic and funding recommendations to the
General .Assembly;

(3)

report annually to the General Assembly, State Board of Education, and the public on the progress of the programs;

(4)

recommend Education Accountability Act and EIA
program changes to state agencies and other entities as it considers necessary.

In addition, the Act makes the Committee a centerpiece for accountability reform by delegating a number of duties and responsibilities to the Committee throughout the Act. Among these is the review of the statewide assessment program to measure student performance on state standards established by the State Board of Education through the Department of Education pursuant to §59-18-310. Section 59-18-320 requires the Committee to ''review the state assessment program and the course assessments for alignment with state standards, level of difficulty and validity, and for the ability to di ffcrentiate levels of achievement and [to] make recommendations for needed changes. if any." Following "review and approval by the Education Oversight Committee:· the

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November 24, 1998

"standards based assessment of mathematics, English/language arts. social studies and 'science will be administered to all school students .... " Moreover. Subsection (D) of§ 5918-310 mandates that .. [a]ny new standards and assessments required to be developed and adopted by the State Board of Education must be developed and adopted upon the advice and consent of the Education Oversight Committee."
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The Oversight Committee also reviews and approves the ..end of course assessments of benchmark courses'' prior to their being administered to all public school students .... § 5918-320 (B). Throughout the Act, the State Board of Education, as well as the Department of Education, is directed to consult with or work with the Education Oversight Committee with respect to a variety of matters. See,~' §§ 59-18-360; 59-18-500 (F); 59-18-710; 59-18900 (A); 59-18-530 (D); 59-18-1540. In addition the Oversight Committee must approve the guidelines established by the State Board of Education (working vvith the Department of Education) "outlining eligibility for the grant programs and methods of distributing funds which will be in effect until such time as the school ratings in Section 59-18-900 (B) are implemented." Moreover, the Act bestows a number of duties upon the Accountability Division of the Education Oversight Committee, pursuant to § 59-6-100. Section 59-6-100 provides as follows:
[w ]ithin the Education Oversight Committee, an Accountability Division must be established to report on the monitoring, development, and implementation of the performance based accountability system and reviewing and evaluating all aspects of the Education Accountability Act and the Education Improvement Act. Section 59-6-110 authorizes the Division to "examine the public education system to ensure that the system and its components and the EIA programs are functioning for the enhancement of student learning." Furthermore. the Division is empowered to
... recommend the repeal or modification of statutes, policies, and rules that deter school improvement. The division must provide annually its findings and recommendations in a report to the Education Oversight Committee no later than Februarv '-

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Senator Fair
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November 24, 1998

first. The division is to conduct in-depth studies on
implementation, efficiency, and the effectiveness of academic improvement efforts and:

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(1)

monitor and evaluate the implementation of the state
standards and assessment;

(2)

oversee the development, establishment, implementation. and maintenance of the accountability system;

(3)

monitor and evaluate the functioning of the public
education system and its components, programs,
policies, and practices and report annually its findings and recommendations in a report to the commission no later than February first of each year; and

(4)

perform other studies and reviews as required by law.

The responsibilities of the division do not include fiscal audit functions or funding recommendations except as they relate to accountability. It is not a function of this division to draft legislation and neither the director nor any other employee of the division shall urge or oppose any legislation. In the performance of its duties and responsibilities, the division and staff members are subject to the statutory provisions and penalties regarding confidentiality of records as they apply to students, schools, school districts, the Department of Education, and the Board of Education. Section 59-6-120 requires the State Department of Education, the State Board ofEducation, and the schools to "work collaboratively with the Division of Accountability to provide information needed to carry out the responsibilities and duties ofits office." Finally, Section I 0 of the Act requires the Education Oversight Committee to appoint a task force to review current state programs and policies for parent participation in their children's education. The gist of your question is whether the delegation of these various duties and functions in the Act (as well as others not enumerated herein) to the appointed Education Oversight Committee and to the Accountability Division of the Committee violates the state

Senator Fair
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November 24, 1998

Constitution. Your concern is whether the General Assembly can, by statute. place authority in the Committee to review and approve decisions or recommendations made by the State Board of Education and/or the Department of Education, the latter. of course. which is under the auspices and direction of the Superintendent of Education, a constitutional officer elected by the people.

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Of course, the South Carolina General Assembly possesses full power to enact any law not inconsistent with the Constitution. Rilev v. Martin, 274 S.C. 106. 262 S.E.2d 404 ( 1980). It bears repetition that any Act of the General Assembly must be presumed valid and constitutional. No statute will be deemed to infringe the Constitution unless its constitutionality is clear beyond any reasonable doubt. Thomas v. Macklen, 186 S.C. 290. 195 S.E 539 (1937); Townsend v. Richland County, 190 S.C. 270. 2 S.E.2d 777 (1939). Every doubt regarding the constitutionality of an Act of the General Assembly must be resolved favorably to the statute's constitutional validity. More than anything else. only a court, and not this Office may declare an Act to be void for unconstitutionality. A statute "must continue to be followed until a court declares otherwise.'' Op. Attv. Gen., June 11, 1997 (Informal Opinion). Art. XL § 3 of the South Carolina Constitution (1985 as amended) provides that
[t]he General Assembly shall provide for the maintenance and support of a system of free public schools open to all children in the State and shall establish, organize and support such other public institutions of learning, as may be desirable. In Richland County v. Campbell, 294 S.C. 346, 364 S.E.2d 470 (1987), our Supreme Court, in construing Art. XI, § 3, stated that such provision
. . .is similar to a section contained in the South Carolina Constitution in 1946 which required the General Assembly "... to provide for a liberal system of free public schools .... " See, Article XI, Section 5, Constitution of South Carolina, repealed by Act 653, Acts and Joint Resolutions of South Carolina, 1954. The trial court noted that in 1946, the South Carolina Supreme Court made the following comments about the provision which are applicable to Article XI, Section 3:
[t]he Constitution ... places very few restrictions

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November 24, 1998

on the powers of the General Assembly in the
general field of public education. It is required
to 'provide for a liberal system of free public
schools,' but the details are left to its discretion ... Hildebrand, et al.. v. High School District No. 32, et al., 138 S.C. 445, 136 S.E. 757 [ (1927)].

The development of our school system in South
Carolina has demonstrated the wisdom of the
framers of the Constitution in leaving the General
Assembly free to meet changing conditions.
Moseleyv. Welch, 209 S.C. 19, 33-34, 39 S.E.2d
133, 140 (1946). Similarly, under Article XI,
Section 3, the framers of the Constitution have
left the legislature free to choose the means of
funding the schools of this state to meet modem
needs. In the EFA and related laws, the General
Assembly has chosen a valid means of providing
for education in this State through the use of the
shared funding plan.
364 S.E.2d at 472.
Applying this standard, it is my opinion that Act No. 400 would pass constitutional muster. Nothing in the State Constitution appears to preclude placing certain supervisory and approval responsibility in the Education Oversight Committee, even where such involved the elected Superintendent of Education. While Art. XI,§ 2 of the Constitution designates the Superintendent of Education as the "chief administrative officer of the public education system of the State", and Art XI, § 1 creates the State Board of Education, the latter provision also states that the State Board "shall have such powers and duties as the General Assembly shall specify by law." Moreover, Art. XII,§ 1 provides that
[t]he health, welfare, and safety of the lives and property of the people of this State and the conservation of its natural resources are matters of public concern. The General Assembly shall

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November 24, 1998

provide appropriate agencies to function in these areas of public concern and determine the activities. powers, and duties of such agencies.

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As well. it should be noted that educational boards and administrative officers have no inherent powers - only those powers granted them by the Constitution and Legislature. State Bd. ofEd. v. Honig, 16 Cal. Reptr. 272, 13 Cal. App. 4th 720 (1993). Moreover. I am unaware of any common law powers of the State Superintendent of Education. Thus, the General Assembly possesses very broad constitutional authority and extremely wide latitude to implement Art. XI, § 3 and to place authority in whatever board or committee it sees fit to fulfill the Legislature's constitutional obligations thereunder. In addition, I cannot see where the Legislature has unlawfully delegated any powers to the Education Oversight Committee. See, Op. Atty. Gen., Op. No. 85-81 (August 8. 1985); Op. Atty. Gen., Jan. 24, 1984. In the latter Opinion, we commented as follows in this regard:
[i]t is well-settled that, pursuant to Art. I, § 8, the Legislature may not delegate its power to make laws. Bauer v. S.C. State Housing Authority, 271 S.C. 219, 246 S.E.2d 869 (1978). However, it is equally axiomatic that ... in enacting a law complete in itself [the Legislature] . . . may authorize an administrative agency or board 'to fill up the details' by prescribing rules and regulations for the complete operation and enforcement of the law within its expressed general purpose ..
. . 'However, it is necessary that the statute declare a legislative policy, establish primary standards for carrying out, or lay down an intelligible principle to which the administrative officer or body must conform, with a proper regard for the protection of the public interests and with such degree of certainty as the nature of the case permits, and enjoin a procedure under which, by appeal or otherwise, both public interests and private rights shall have due consideration' ... 271 S.C., supra at 232. quoting S.C. Highwav Dept. v. Harbin, 266 S.C. 585. 594. 86 S.E.2d 466 ( 1955). See also. Davis v. Query, 209 S.C. 41, 39 S.E.2d 117 ( 1946); State v. Taylor, 223 S.C. 526, 77 S.E.2d 195 (l 953 ); Cole v. Mannint?:, 240 S.C. 260, 125 S.E.2d 621 ( 1962). The Supreme Court of South Carolina has further noted

Senator Fair
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November 24, 1998

that

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The degree to which a legislative body
must specify its policies and standards in order
that the administrative authority granted may not
be an unconstitutional delegation of its own
legislative power is not capable of precise
definition. There are many instances where it is
impossible or impracticable to lay down criteria
or standards without destroying the flexibility
necessary to enable the administrative offices to
carry out the legislative will .... where S. C.
State Hwy. Dept. v. Harbin, 226 S.C., supra at
595.
Especially is great leeway essential
discretion '... is necessary to protect the public .
. . health, safety and general welfare.' Cole v.
Manning, 240 S.C., supra at 265. Accordingly,
the Court has fashioned the following guideline:
a statute '... which in effect reposes an absolute,
unregulated and undefined discretion in an
administrative body bestows arbitrary powers and
is an unlawful delegation of legislative powers.'
Bauer v. S.C. State Housing Authority, 271 S.C.,
supra at 233 quoting, S.C. State Hwy. Dept. v.
Harbin, 86 S.E.2d at 471.
See also, State ex rel. McLeod v. Mcinnis, 278 S.C. 307, 295 S.E.2d 633 (1982) [legislators cannot perform executive functions]. In contrast to Mclnnis, with respect to the Education Oversight Committee, the majority of members of the Education Oversight Committee are not necessarily composed of members of the General Assembly. See, State ex rel. McLeod v. Edwards, 269 S.C. 75, 236 S.E.2d 406 (1977). Based, therefore, upon the foregoing authorities, it is my Opinion that Act No. 400 of 1998 would pass constitutional muster and is constitutionally valid. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney

Senator Fair
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November 24, 1998

General nor officially published in the manner of a formal opinion. With kind regards, I am Very truly yours,

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R·~.~ok
Assistant Deputy Attorney General
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