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Constitutional – Board of Education – Rulemaking Authority – Rules Review Commission

Since N.C. Const. art. IX, § 5 makes the state Board of Education’s rulemaking authority “subject to laws enacted by the General Assembly,” the General Assembly can require the Board to have its rules reviewed by state Rules Review Commission, which was created by the General Assembly.

We affirm the Court of Appeals’ decision, which reversed and remanded the trial court’s order granting summary judgment in favor of the Board.

The rule-review procedure was statutorily enacted by the General Assembly. The Board’s proposed rules which are subject to this mandated submission to the Commission for review and approval are those which fall within the purview of the Administrative Procedure Act in order to ensure compliance with the provisions of this legislative enactment.

Furthermore, the General Assembly properly delegated authority to the Commission to review the Board’s rules. The Commission is tasked only with the responsibility to review the Board’s rules from a procedural perspective for clarity and to ensure that the rules are adopted in compliance with the APA. If the Board disagrees with a decision of the Commission, the Board may challenge the Commission’s exercise of its delineated duties by filing a declaratory judgment action in superior court.



(Mark Martin, C.J.) The phrase “subject to laws enacted by the General Assembly” does not mean “subject to determinations by the Rules Review Commission.” Furthermore, this not a delegation of authority case because it does not concern our state constitution’s delegation provision. In any event, the constitution delegates rulemaking authority in the education realm to the Board.

Finally, Art. IX, § 5 does not draw any distinction between procedural and substantive restrictions on the Board’s rulemaking power.

North Carolina State Board of Education v. State (Lawyers Weekly No. 010-062-18, 33 pp.) (Michael Morgan, J.) (Mark Martin, C.J., joined by Robin Hudson, J., dissenting) Appealed from Wake County Superior Court (Paul Gessner, J.) On appeal from the Court of Appeals. Robert Orr, Andrew Erteschik, Saad Gul and John Durnovich for plaintiff; Olga Vysotskaya de Brito, Amar Majmundar and Christopher Browning Jr. for defendants; Christopher Smith, Taylor Dewberry, P. Andrew Ellen and J. Michael Carpenter for amici curiae. N.C. S. Ct.


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