Board's Motion For Temporary Stay and Petition For Writ of Supersedeas

No.
________ TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
************************************************
NORTH CAROLINA STATE BOARD )

OF EDUCATION, )
)
Plaintiff, )
)
v. From Wake County
)
No. 16-CVS-15607
)
THE STATE OF NORTH CAROLINA, and )
MARK JOHNSON, in his official capacity, )
)
Defendants. )
************************************************
PLAINTIFFS MOTION FOR TEMPORARY STAY AND

PETITION FOR WRIT OF SUPERSEDEAS
************************************************
INDEX
TABLE OF AUTHORITIES...................................................... ii
INTRODUCTION ...................................................................... 1
FACTUAL AND PROCEDURAL BACKGROUND ............... 4
ARGUMENT.............................................................................. 8
I. A stay of the trial courts decision during the

Boards appeal is necessary to preserve the North
Carolina Constitutions nearly 150-year-old status
quo. ................................................................................... 8
A. The Board has managed North Carolinas
public schools for nearly 150 years. ...................... 9
B. The Transfer Legislation unconstitutionally
transfers the Boards constitutional powers
and duties to the SPI. ........................................... 12
C. The need to preserve the status quo pending
appeal warrants a temporary stay and writ of
supersedeas. ......................................................... 16
CONCLUSION ........................................................................ 18
CERTIFICATE OF SERVICE ................................................. 21
VERIFICATION ...................................................................... 22
ATTACHMENTS
Exhibits A-M .................................................................. 23

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TABLE OF AUTHORITIES
Cases Page(s)
City of Asheville v. North Carolina,

No. 391PA15, 794 S.E.2d 759 (N.C. Dec. 21,
2016) ........................................................................... 15
Craver v. Craver,
298 N.C. 231, 258 S.E.2d 357 (1979) .................... 8, 15
Guthrie v. Taylor,
279 N.C. 703, 185 S.E.2d 193 (1971) ........................ 12
King v. Hunter,
65 N.C. 603 (1871) ..................................................... 13
Lane v. Stanly,
65 N.C. 153 (1871) ..................................................... 10
State v. Camacho,
329 N.C. 589, 406 S.E.2d 868 (1991) ........................ 12
Wilmington, C. & A. R. Co. v. Board of Commrs,

72 N.C. 10 (1875) ....................................................... 12
Statutes
N.C. Gen. Stat. 115C-19 .............................................. 14
N.C. Gen. Stat. 115C-21 .............................................. 14
Constitutional Provisions
1868 N.C. Const. art. I, 15 ..............................................9
1868 N.C. Const. art. IX, 2 .............................................9
1868 N.C. Const. art. IX, 7 .............................................9
1868 N.C. Const. art. IX, 8 .......................................... 11
1868 N.C. Const. art. IX, 9 .............................................9

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N.C. Const. art. IX, 4 ................................................... 11
N.C. Const. art. IX, 5 ............................................ passim
Rules
N.C. R. App. P. 8 ...................................................... passim
N.C. R. App. P. 23 .................................................... passim
Other Authorities
1995 Op. N.C. Atty Gen. 32 ........................................... 13
John V. Orth and Justice Paul M. Newby, The North

Carolina State Constitution (2d ed. 2013) ................ 10
Patrick C. McGinley, Separation of Powers, State

Constitutions & the Attorney General: Who
Represents the State?,
99 W. VA. L. REV. 721 (1997) ..................................... 13
Thomas M. Cooley, A Treatise on Constitutional

Limitations (5th ed. 1883) ......................................... 13
Thomas M. Cooley, A Treatise on Constitutional

Limitations (8th ed. 1927) ......................................... 13
No. ________ TENTH DISTRICT
NORTH CAROLINA COURT OF APPEALS
************************************************
NORTH CAROLINA STATE BOARD )

OF EDUCATION, )
)
Plaintiff, )
)
v. From Wake County
)
No. 16-CVS-15607
)
THE STATE OF NORTH CAROLINA, and )
MARK JOHNSON, in his official capacity, )
)
Defendants. )
************************************************
PLAINTIFFS MOTION FOR TEMPORARY STAY AND

PETITION FOR WRIT OF SUPERSEDEAS
************************************************
Pursuant to Rules 8 and 23 of the North Carolina Rules of Appellate
Procedure, Plaintiff respectfully moves the Court for a temporary stay and
writ of supersedeas during the pendency of its appeal.
INTRODUCTION
For nearly 150 years, the State Board of Education has supervised and
administered the States public schools, as the North Carolina Constitution
expressly requires. In December 2016, however, the General Assembly
passed a law stating that the Board would no longer supervise and
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administer the public schools, and that the Superintendent of Public
Instruction would do so instead.
This law used essentially the same language from the North Carolina
Constitution stating that the Board must supervise and administer the public
schools, only it replaced the words State Board of Education with
Superintendent of Public Instruction, as this comparison shows:
Article IX, Section 5 of the N.C. Sess. Law 2016-126 4

North Carolina Constitution
It shall be the duty of the It shall be the duty of the

State Board of Education . . Superintendent of Public
. [to] supervise and administer Instruction . . . to have under
the free public school system. his or her direction and control,
all matters relating to the
direct supervision and
administration of the public
school system.
The Board immediately challenged the law, and the trial court issued a
temporary restraining order preventing the law from going into effect.
Months later, a three-judge panel was appointed to hear the case. At a
hearing on the merits, at least one member of the three-judge panel
recognized that the text of the law was very troubling. Nevertheless, the
three-judge panel upheld the law, concluding that it was unnecessary to
consider the Boards primary argument: that when a constitution expressly

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confers powers and duties on a specific entity, those powers and duties cannot
be transferred to someone else without a constitutional amendment.
The Board immediately appealed and, shortly thereafter, moved for a
stay of the decision during the pendency of the appeal. At the hearing on the
motion, at least one member of the three-judge panel acknowledged that the
law represented a sea change, and that allowing the law to take effect
before the appeal is resolved would be akin to cutting down treesin other
words, it would be exceptionally difficult to restore the status quo if the
appellate courts reversed on the merits. The State did not even oppose the
Boards request for a stay.
Nevertheless, the three-judge panel declined to issue a stay, and it gave
the Board 30 days to seek a stay in the appellate courts before the law goes
into effect.
The Board now seeks a temporary stay and writ of supersedeas from
this Court while the Boards appeal is pending. For the reasons that follow,
the Court should issue a temporary stay and writ of supersedeas to preserve
the North Carolina Constitutions nearly 150-year old status quo while the
appeal is pending.
-4-
FACTUAL AND PROCEDURAL BACKGROUND1
This constitutional challenge involves a bedrock principle of
constitutional law: that when a constitution expressly confers powers and
duties on a specific entity, those powers and duties cannot be transferred to
someone else without a constitutional amendment.
Article IX, Section 5 of the North Carolina Constitution expressly
confers certain powers and duties on the Board. Those constitutional
powers and duties include:
the power and duty to supervise . . . the free public school
system;
the power and duty to administer the free public school system;
the power and duty to supervise . . . the educational funds
provided for [the free public school systems] support; and
the power and duty to administer . . . the educational funds
provided for [the free public school systems] support.
The Board has exercised those powers and fulfilled those duties since
its creation in 1868. For the first time in North Carolina history, however,
1 For brevity, the Board has provided only the most relevant facts in this
filing, which includes a verification by the Boards counsel as required by
Rule 23. In addition, the Board incorporates by reference the verified factual
allegations of the amended complaint. Ex. A, Amended Complaint (without
exhibits) 11-26.
-5-
the General Assembly passed legislation in December 2016 that attempted to
transfer the Boards constitutional powers and duties to a single individual:
the Superintendent of Public Instruction (SPI).
Without an opportunity for input from the Board, the education
community, or the public, the General Assembly introduced this legislation
(hereinafter the Transfer Legislation) in a special legislative session
intended to address disaster relief. Less than 48 hours after the Transfer
Legislation was first introduced, it passed both the House and the Senate.
Three days later, it was signed into law. Ex. B, Session Law 2016-126.
On 29 December 2016, the Board brought this constitutional challenge.
Ex. A. The Board sought a temporary restraining order, a preliminary
injunction, and a permanent injunction. Id.
The Trial Courts Decisions
On the same day that the Board filed the complaint, Judge Donald W.
Stephens held a hearing on the Boards TRO motion. At the hearing, Judge
Stephens remarked that the Boards entitlement to relief was
straightforward, that he [did not] see any ambiguity, and that the law is
significantly likely to be unconstitutional on its face. Ex. C, TRO Hearing
Transcript at 6, 13, 24. That same day, Judge Stephens issued a TRO
enjoining the Transfer Legislation. Ex. D, Temporary Restraining Order.

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After the TRO was entered, a three-judge panel was appointed to hear
the parties cross-dispositive motions. At the hearing on those motions, one
member of the panel acknowledged that the General Assemblys cutting and
pasting of the text of the North Carolina Constitution into legislation and
replacing the words State Board of Education with Superintendent was
very troubling.2
Nevertheless, the three-judge panel issued a decision on 24 July 2017
upholding the Transfer Legislation. Ex. E, 14 July 2017 Order and
Memorandum Opinion. The decision did not address the majority of the
Boards argumentsmost notably, the Boards primary contention that the
legislature cannot transfer express constitutional powers and duties without
a constitutional amendment. Id. Instead, the three-judge panel concluded
that the Transfer Legislationincluding the copied-and-pasted language
abovedoes not transfer the State Boards power. Id. at 5.
The Board on 20 July 2017 gave notice of appeal. Ex. F, Notice of
Appeal.
2 Three judge panel hears arguments on education governance authority,

available at www.ednc.org/2017/06/29/three-judge-panel-hears-arguments-
education-governance-authority/ (last visited September 18, 2017).
-7-
The Trial Courts Decisions on a Temporary Stay
In its 14 July 2017 order, the trial court temporarily stayed its decision
for a period of 60 days pending further orders of this court or any appellate
court having jurisdiction over this matter so as to allow any motions by any of
the parties herein requesting additional stays or dissolution of this stay
pending appeal of this matter. Ex. E at 1.
The Board did not immediately seek a temporary stay pending the
appeal, however, because within hours of the Courts July 14, 2017 decision,
counsel for both the Board and the SPI began a series of discussions about
whether they could join in a motion to this Court for a temporary stay on
agreed-upon terms that both parties could accept. By August 29, 2017,
however, the parties had determined that they would not be able to come to
an agreement on the terms of a temporary stay pending the Boards appeal.
Immediately thereafter, the Board filed a motion for temporary stay
with the trial court. Ex. G, Boards Motion for Temporary Stay (without
exhibits). Notably, the State did not oppose the Boards motion at all. Ex. H,
Email from States Counsel. Only the SPI opposed the Boards motion. Id.
On 14 September 2017, the trial court issued an order staying its
decision for another 30 days to allow the Board the opportunity to pursue a
temporary stay and writ of supersedeas from the appellate courts. Ex. I,
Order on Motion for Temporary Stay.

-8-
The Board now seeks a temporary stay and writ of supersedeas to stay
the trial courts decision during the pendency of the Boards appeal.
ARGUMENT
I. A stay of the trial courts decision during the Boards appeal is

necessary to preserve the North Carolina Constitutions nearly
150-year-old status quo.
The purpose of a temporary stay and writ of supersedeas is to preserve
the status quo while cases are on appeal. See Craver v. Craver, 298 N.C. 231,
23738, 258 S.E.2d 357, 362 (1979) (explaining that the purpose of the writ of
supersedeas is to preserve the status quo pending the exercise of appellate
jurisdiction) (citing New Bern v. Walker, 255 N.C. 355, 121 S.E.2d 544 (1961)
(per curiam)).
The standard for issuing a temporary stay and writ of supersedeas is
flexible: The Rule asks only whether the writ should issue in justice to the
applicant, and, therefore, confers broad discretion on the appellate courts to
protect the rights of litigants while a case is on appeal. N.C. R. App. P. 23(c)
(emphasis added).
Here, a stay of the trial courts decision during the appeal is warranted
because it is necessary to preserve the Boards constitutional power and duty
to supervise and administer the States public schoolsa nearly 150-year-old
responsibility.
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A. The Board has managed North Carolinas public schools

for nearly 150 years.
In 1868, the North Carolina Constitution proclaimed that [t]he people
have a right to the privilege of education, and it is the duty of the State to
guard and maintain that right. 1868 N.C. Const. art. I, 15. These words
have remained unchanged in the North Carolina Constitution since 1868,
and they are unique to North Carolina. No other state constitution includes
these words or includes any right to education in its citizens bill of rights.
To ensure that the State lived up to this promise to guard and
maintain the right to public education, the people of North Carolina in their
1868 Constitution established the public school system and created the
Board.
Article IX, Section 2 of the 1868 Constitution required the General
Assembly to provide by taxation and otherwise for a general and uniform
system of Public Schools, wherein tuition shall be free of charge to all the
children of the State. Ex. J, 1868 N.C. Const. art. IX. In turn, Article IX,
Section 7 conferred broad, sweeping power on a State Board of Education
composed of [t]he Governor, Lieutenant Governor, Secretary of State,
Treasurer, Auditor, Superintendent of Public Works, Superintendent of
Public Instruction and Attorney General. Under Article IX, Section 9, the
people conferred on the Board the full power to legislate and make all
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needful rules and regulations in relation to Free Public Schools, and the
Educational Fund of the State.
In sum, the people of North Carolina in their 1868 Constitution
establishe[d] the public school system, then required that the General
Assembly provid[e] for it and the State Board of Education . . . manage it.
Lane v. Stanly, 65 N.C. 153, 157 (1871). For the past 148 years, this
constitutional structure has remained unchanged. Since 1868, the Board has
supervised and administered all facets of public education in North Carolina.
Today, the North Carolina Constitution continues to confer these
broad, sweeping powers and duties on the Board. The current North
Carolina Constitution was ratified by the voters in 1971. Article IX, Section 5
of the current North Carolina Constitution states:
The State Board of Education shall supervise and administer the

free public school system and the educational funds provided for
its support, except the funds mentioned in Section 7 of this
Article, and shall make all needed rules and regulations in
relation thereto, subject to laws enacted by the General
Assembly.
Ex. K, 1971 N.C. Const. art. IX.
That constitutional provision means exactly what it says: The State
Board of Education is in charge of the public school system. John V. Orth
and Justice Paul M. Newby, The North Carolina State Constitution, at 180
(2d ed. 2013).

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The weight of this constitutional responsibility to the people is reflected
in the Boards composition. Under Article IX, Section 4 of the North Carolina
Constitution, the Board is composed of the Lieutenant Governor, the
Treasurer, and eleven members appointed by the Governor, subject to
confirmation by the General Assembly in joint session. Article IX, Section 4
requires that these Board members serve overlapping terms of eight years.
These lengthy, overlapping terms ensure that the Board maintains its
institutional knowledge and expertise in public education.
In addition, Article IX, Section 4 requires that eight of the Governors
eleven appointments must be made from each of the eight educational
districts. This geographic diversity ensures that the Board is representative
of the people.
In stark contrast to the broad, sweeping powers and duties that the
North Carolina Constitution confers on the Board, the North Carolina
Constitution has always confined the SPI to a limited role. Article IX,
Section 8 of the 1868 Constitution established the SPI as a member of the
Board who served as the Boards Secretary. 1868 N.C. Const. art. IX, 8
(emphasis added). Today, Article IX, Section 4 of the North Carolina
Constitution clarifies that the SPI is not even a voting member of the Board,
and serves only as the secretary and chief administrative officer of the State
Board of Education. N.C. Const. art. IX, 4(2) (emphasis added).

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Despite this clear delineation, however, the Transfer Legislation
attempts to flip flop the Boards and the SPIs constitutionally mandated
roles, as described below.
B. The Transfer Legislation unconstitutionally transfers the

Boards constitutional powers and duties to the SPI.
It is a bedrock principle of constitutional law that when a constitution
expressly confers certain powers and duties on an entity, those powers and
duties cannot be transferred to a different entity without a constitutional
amendment. See, e.g., Guthrie v. Taylor, 279 N.C. 703, 712-13, 185 S.E.2d
193, 200 (1971) (explaining that Article IX, Section 5 is a direct delegation
by the people, themselves, in the Constitution of the State, of [a] portion of
their power, and, therefore, we look only to the Constitution to determine
what power has been delegated); State v. Camacho, 329 N.C. 589, 597, 406
S.E.2d 868, 871 (1991) (holding that when the North Carolina Constitution
expressly confers powers and duties on a constitutional officer, any
encroachment by the other branches invade[s] the province of an
independent constitutional officer and violates the North Carolina
Constitution); Wilmington, C. & A. R. Co. v. Board of Commrs, 72 N.C. 10, 13
(1875) (holding that the General Assembly could not legislatively transfer
local officers constitutional powers to Governor, Auditor and Treasurer
because [s]uch power is by the Constitution vested in the [local officers]

- 13 -
alone, and cannot be taken away from them); King v. Hunter, 65 N.C. 603,
612 (1871) (holding that the General Assembly could not legislatively
transfer sheriffs constitutional powers).3 In short, constitutional powers and
duties cannot be transferred by statute.
As described in the amended complaint, however, the Transfer
Legislation transfers the Boards constitutional powers and duties to the SPI.
The Transfer Legislation does so in two ways:
First, the Transfer Legislation attempts to transfer the powers and
duties of the Board to supervise and administer the public schools. Ex. A
25(a)-(b). Most notably, Section 4 of the Transfer Legislation states: It
shall be the duty of the Superintendent of Public Instruction . . . to have
under his or her direction and control, all matters relating to the direct
3 Secondary authority also supports the voluminous case law on this

point. See 1995 Op. N.C. Atty Gen. 32 at 5 (quoting Thomas M. Cooley, A
Treatise on Constitutional Limitations 215 (8th ed. 1927) ([I]f powers are
specifically conferred by the constitution upon [a] specified officer [or
authority], the legislature cannot require or authorize [those powers] to be
performed by any other officer or authority.); Patrick C. McGinley,
Separation of Powers, State Constitutions & the Attorney General: Who
Represents the State?, 99 W. VA. L. REV. 721, 760 (1997) (stating the
fundamental proposition that when a state constitution creates a
constitutional office, the legislature may not by mere statute alter the core
functions of that office); Thomas M. Cooley, A Treatise on Constitutional
Limitations 136 (5th ed. 1883) (stating that when powers . . . are specially
conferred by the constitution upon . . . [a] specified officer, the legislature
cannot require or authorize [those powers] to be performed by any other
officer or authority).
- 14 -
supervision and administration of the public school system. Ex. B 4
(amending N.C. Gen. Stat. 115C-21(a)(5)). Thus, the Transfer Legislation
attempts to transfer to the SPI the same powers and duties that the people
expressly conferred on the Board in their Constitution.
Second, the Transfer Legislation attempts to transfer the powers and
duties of the Board to supervise and administer the educational funds
provided for the public school systems support. Ex. A 25(c)-(d). Most
notably, the Transfer Legislation states that it shall be the duty of the
Superintendent of Public Instruction to . . . administer funds appropriated for
the operations of the State Board of Education and for aid to local school
administrative units. Ex. B 4 (amending N.C. Gen. Stat. 115C-21(b)(1b)).
Likewise, Sections 3 and 4 state that the SPI, as the head of the Department
of Public Instruction, will administer the funds appropriated for [the
Departments] operation. Id. 3 (amending N.C. Gen. Stat. 115C-19); id.
4 (amending N.C. Gen. Stat. 115C-21(a)(1)). Thus, the Transfer
Legislation attempts to transfer to the SPI the same powers and duties that
the people expressly conferred on the Board in their Constitution.
These constitutional conflicts are readily apparent. As described above,
the General Assembly essentially copied and pasted the constitutional text
into the Transfer Legislation, then replaced the words State Board of
Education with Superintendent of Public Instruction. See supra at 2.

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As Judge Stephens noted at the TRO hearing, this constitutional flaw
makes this case straightforward. Ex. C, TRO Hearing Transcript at 6.
After all, [i]f there is a conflict between a statute and the Constitution, [the]
Court must determine the rights and liabilities or duties of the litigants
before it in accordance with the Constitution, because the Constitution is the
superior rule of law in that situation. City of Asheville v. North Carolina,
No. 391PA15, 794 S.E.2d 759, 766 (N.C. Dec. 21, 2016).
Yet the trial court upheld the Transfer Legislation, as described above.
Then the trial court declined to grant a stay of its decision pending the
Boards appeal, even after one member of the three-judge panel (correctly)
noted that allowing the law to take effect before the appeal is resolved would
be akin to cutting down trees, and would amount to a sea change.
This Court, however, has broad discretion under Rules 8 and 23 to
preserve the status quo for the States $10 billion public school system and its
1.5 million children while the appeal is pending. See, e.g., Craver v. Craver,
298 N.C. at 23738, 258 S.E.2d at 362 (explaining that the purpose of the
writ of supersedeas is to preserve the status quo pending the exercise of
appellate jurisdiction). As described below, the circumstances here warrant
such a stay.
- 16 -
C. The need to preserve the status quo pending appeal

warrants a temporary stay and writ of supersedeas.
As described above, the Board has supervised and administered the
states public schools since 1868. While the General Assembly has attempted
in the past to delineate the relationship between the Board and the SPIin
ways that were unconstitutional, but went unchallengednever has the
Board been completely written out of the constitutional governance of the
public schools, as the Transfer Legislation attempts to do here.
Without a stay of the trial courts decision pending appeal, however, the
Transfer Legislation will move the entire $10 billion public school system
under the control of a single individual for the first time in North Carolina
history. Ex. L, 1/4/17 Cobey Affidavit 9. This seismic shift will generate
enormous disruption for our States public schools. Id. Worse, this seismic
shift would occur overnight, without any transition period whatsoever. Id.
As part of this disruption, the SPI would be immediately empowered to
take drastic actions that could not be undone. Under the new law, the SPI
could immediately and unilaterally designate up to 140 of the public school
systems key senior policymaking and managerial leaders as exempt from
the State Personnel Act, then fire them at will. Ex. B 3-4, 7-8; Ex. M,
9/1/17 Cobey Affidavit 5-11. The affected policymaking and managerial
leaders include the Deputy State Superintendent, the Chief Financial Officer,
- 17 -
the Chief Academic Officer, the Director of Communications, the Director of
Human Resources, the Chief Information Technology Officer, the Internal
Auditor, the Executive Director of the Office of Charter Schools, and the
Superintendent of Innovative School Districts. Ex. M 5-11. These senior
policymaking and managerial leaders could not realistically be unfired, of
course, if this Courts decision is later reversed on appeal. Id.
The SPI would also be immediately empowered to unilaterally take
other drastic actions. For example, the SPI could immediately and
unilaterally reorganize the Department of Public Instruction. Ex. 4. The
SPI could also execute new statewide contracts for the public school system,
and jeopardize the Boards ability to manage more than 150 existing
contracts involving tens of millions of dollars. Ex. L, 1/4/17 Cobey Affidavit
10. These actions would be impossible to undo after the fact. Id.
Simply put, if the trial courts decision is reversed on appeal but is not
stayed during the appeal, it will be virtually impossible in the instances
described above to unring the bell. Sparing the litigantsand here, the 1.5
million public school childrenfrom this situation is precisely why the
appellate rules provide for a temporary stay and writ of supersedeas to stay
trial court decisions pending appeal. N.C. R. App. P. 8, 23.
Lastly, a balancing of the equities weighs heavily in favor of a stay
pending appeal. The State even conceded as much at the TRO hearing:
- 18 -
[THE COURT]: And that [would be] a fairly easy balancing test,
wouldnt it? A theoretical harm to the State and a real, practical
harm to an agency thats constitutionally mandated to care for
the public school children of the state.
[THE STATES COUNSEL]: Yes, sir.
Ex. C at 34.
This concession makes sense, because a temporary stay pending the
Boards appeal would not harm Defendants at all. The Board has exercised
its constitutional powers and fulfilled its constitutional duties for nearly a
century and a half. Surely Defendants would not be harmed by maintaining
this longstanding status quo during the comparatively brief period of months
that it will take for the appellate courts to resolve this dispute.
Notably, the State did not even oppose the Boards request for a stay.
Ex. H. Presumably, the State does not oppose this motion and petition
either.
For all of these reasons, the need to preserve the status quo pending
appeal warrants a temporary stay and writ of supersedeas.
CONCLUSION
The Board respectfully requests that the Court issue a temporary stay
and writ of supersedeas staying the trial courts 14 July 2017 decision during
the pendency of the Boards appeal.

- 19 -
Respectfully submitted the 19th day of September, 2017.
ROBERT F. ORR, PLLC
By: s/ Robert F. Orr

Robert F. Orr
N.C. State Bar No. 6798
[email protected]
3434 Edwards Mill
Suite 112-372
Raleigh, NC 27612
Telephone: (919) 608-5335
COUNSEL FOR PLAINTIFF

NORTH CAROLINA STATE
BOARD OF EDUCATION
N.C. R. App. P. 33(b) Certification:

I certify that all of the attorneys listed
below have authorized me to list their
names on this document as if they
had personally signed it.
- 20 -
POYNER SPRUILL LLP
By: s/ Andrew H. Erteschik

Andrew H. Erteschik
[email protected]
Saad Gul
[email protected]
John M. Durnovich
[email protected]
P.O. Box 1801
Raleigh, NC 27602-1801
Telephone: (919) 783-2895
Facsimile: (919) 783-1075

BOARD OF EDUCATION
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing document
was served by e-mail and U.S. Mail to the following:
Amar Majmundar
Olga E. Vysotskaya de Brito
N.C. Department of Justice
114 W. Edenton Street
Raleigh, NC 27603
Counsel for the State of North Carolina
Philip R. Isley
Philip R. Miller, III
E. Hardy Lewis
Blanchard, Miller, Lewis & Isley P.A.
1117 Hillsborough Street
Raleigh, NC 27603
Counsel for The Honorable Mark Johnson,
Superintendent of Public Instruction
This the 19th day of September, 2017.
s/ Andrew H. Erteschik
Andrew H. Erteschik
VERIFICATION
The undersigned attorney for Plaintiff, after being duly sworn, says
that the material allegations of this motion and petition are true to his
personal knowledge, except those matters stated upon information and belief
and, as to those matters, I believe them to be true.
Saad Gul
Wake County, North Carolina
Sworn to and subscribed before me: MELISSA T. HILl.

NOTARY PUBLIC
WAKE COUNTY, N.C.
My CommiSsion Explrtll716-2019

ff\lA,wO.o.....T ~.,Notary Public ' ' I
; '
My Commission Expires: --z \ \tO I~(I \Cj

Exhibit A
/
NORTH CAROLINA r- 1L :? j}ENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
WAKE COUNTY 16-CVS-15 607
Zill1 r n 0 => I ,..
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I ~ ~
NORTH CAROLINA STATE . ~...~~]
' 1' -
BOARD OF EDUCATION, '" t.#
Jt,;t\ _ -::("'\ I ....... -.
I I , V -' ..J ,
Plruntiff,
-.......__, .... __ VERIFIED AMENDED COMPLAINT
. F0R DECLARATORY AND
v. INJUNCTIVE RELIEF AND
MOTION FOR PRELIMINARY
THE STATE OF NORTH CAROLINA and INJUNCTIVE RELIEF
MARK JOHNSON, in his official capacity,
Defendants.
INTRODUCTION
1. This declaratory judgment action seeks a judicial determination on whether the
North Carolina Constitution prohibits the General Assembly from attempting to transfer the State
Board of Education's constitutional powers and duties to the Superintendent of Public Instruction
("the SPI").
2. Article IX, Section 5 of the North Carolina Constitution expressly confers certain
"powers and duties" on the Board. Those constitutional powers and duties include:
the power and duty to "supervise ... the free public school system";
the power and duty to " administer the free public school system";
the power and duty to "supervise ... the educational funds provided for [the free
public school system's] support"; and
the power and duty to "administer ... the educational funds provided for [the free
public school system's] support."
3. On December 16, 2016, for the first time in the Board's 148-year history, the
General Assembly attempted to transfer these powers and duties from the Board to a single
individual: the SPI.

4. The constitutional conflict caused by this attempted transfer is readily apparent:
Article IX, Section 5 of the House Bill 17, Section 4

North Carolina Constitution (N.C. Sess. Law 2016-126 4)
It shall be the duty of the State It shall be the duty of the

Board of Education . . . [to] supervise Superintendent of Public Instruction .
and administer the free public school . . to have under his or her direction and
system. (Emphasis added). control, all matters relating to the direct
supervision and administration of the
public school system. (Emphasis
added).
5. The members of the Board swore an oath to support and maintain the North
Carolina Constitution. They also swore an oath to faithfully discharge the duties of their office,
which include supervising and administering North Carolinas $10 billion public school system
in the best interests of its 1.5 million students. Compelled by those duties to the people of North
Carolina, the Board brings this action for declaratory and injunctive relief.
PARTIES
6. The Board is a constitutional body that derives its powers and duties directly from
the people through the North Carolina Constitution. This makes the Board unique among state
government entities in North Carolina.
7. The State of North Carolina, through its General Assembly, enacts legislation,
including the legislation described in this complaint.
8. Mark Johnson is a resident of Winston-Salem and the current SPI. As reflected in
the Courts March 1, 2017 order, SPI Johnson has indicated his intent to intervene as a party to
this action. The Board has no objection to SPI Johnsons intervention, and agrees with SPI
2
Johnson that he is a person . . . whose rights, status or other legal relations are affected under
N.C. Gen. Stat. 1-254. Accordingly, SPI Johnson is named as a party to this declaratory
judgment action in his official capacity pursuant to N.C. Gen. Stat. 1-254.
JURISDICTION AND VENUE
9. This Court has subject matter jurisdiction over this action because the Board seeks
declaratory and injunctive relief pursuant to the North Carolina Constitution, N.C. Gen. Stat. 1-
253, and N.C. Gen. Stat. 7A-245. The purpose of a declaratory judgment is to settle and
afford relief from uncertainty and insecurity, with respect to rights, status, and other legal
relations. Nationwide Mut. Ins. Co. v. Roberts, 261 N.C. 285, 287, 134 S.E.2d 654, 657 (1964).
In a declaratory judgment action, [i]f there is a conflict between a statute and the Constitution,
[the] Court must determine the rights and liabilities or duties of the litigants before it in
accordance with the Constitution, because the Constitution is the superior rule of law in that
situation. City of Asheville v. North Carolina, No. 391PA15, slip op. at 13 (N.C. Dec. 21,
2016).
10. Venue is proper in Wake County Superior Court pursuant to N.C. Gen. Stat. 1-
77 because the Board seeks a declaratory judgment regarding legislation enacted by the General
Assembly in Wake County.
FACTUAL ALLEGATIONS
The Constitutional Powers and Duties of the Board
11. Article I, Section 15 of the North Carolina Constitution states that [t]he people
have a right to the privilege of education, and it is the duty of the State to guard and maintain that
right. These words first appeared in the 1868 North Carolina Constitution, and they have
remained unchanged. These words are unique to North Carolina: No other state constitution
includes these words or includes any right to education in its citizens bill of rights.
3
12. To ensure that the State lived up to this promise to guard and maintain the right
to public education, the people of North Carolina in their 1868 Constitution established the
public school system and created the Board. Article IX, Section 2 of the 1868 Constitution
required the General Assembly to provide by taxation and otherwise for a general and uniform
system of Public Schools, wherein tuition shall be free of charge to all the children of the State.
In turn, Article IX conferred broad, sweeping power on a State Board of Education composed of
[t]he Governor, Lieutenant Governor, Secretary of State, Treasurer, Auditor, Superintendent of
Public Works, Superintendent of Public Instruction, and Attorney General. Article IX, Section
9 of the 1868 Constitution, entitled Power of Board, conferred on the Board the full power to
legislate and make all needful rules and regulations in relation to Free Public Schools, and the
Educational Fund of the State.
13. Thus, the people of North Carolina in their 1868 Constitution establishe[d] the
public school system, then required that the General Assembly provid[e] for it and the State
Board of Education . . . manage it. Lane v. Stanly, 65 N.C. 153, 157 (1871). For the past 148
years, this constitutional structure has remained unchanged. Since 1868, the Board has
supervised and administered all facets of public education in North Carolina.
14. Today, the North Carolina Constitution continues to confer these broad, sweeping
powers and duties on the Board. The current North Carolina Constitution was ratified by the
voters in 1971. Article IX, Section 5 of the current North Carolina Constitution states:
The State Board of Education shall supervise and administer the

free public school system and the educational funds provided for
its support, except the funds mentioned in Section 7 of this Article,
and shall make all needed rules and regulations in relation thereto,
subject to laws enacted by the General Assembly.
4
15. Today, the Boards composition continues to reflect the weight of the Boards
constitutional responsibility to the people. Under Article IX, Section 4 of the North Carolina
Constitution, the Board is composed of the Lieutenant Governor, the Treasurer, and eleven
members appointed by the Governor, subject to confirmation by the General Assembly in joint
session. Article IX, Section 4 requires that these Board members serve overlapping terms of
eight years. These lengthy, overlapping terms ensure that the Board maintains its institutional
knowledge and expertise in public education. In addition, Article IX, Section 4 requires that
eight of the Governors eleven appointments must be made from each of the eight educational
districts. This geographic diversity ensures that the Board is representative of the people.
16. In contrast to the broad, sweeping powers and duties conferred on the Board, the
North Carolina Constitution has always confined the SPI to a limited role. Article IX, Section 8
of the 1868 Constitution established the SPI as a member of the Board (emphasis added), who
served as the Boards Secretary. Today, Article IX, Section 4 of the North Carolina
Constitution clarifies that the SPI is not even a voting member of the Board, and serves only as
the secretary and chief administrative officer of the State Board of Education. (Emphasis
added).
17. In short, the constitutional powers and duties of the Board are fixed by the North
Carolina Constitution. It is a bedrock principle of constitutional law that when a constitution
expressly confers certain powers and duties on an entity, those powers and duties cannot be
transferred to someone else without a constitutional amendment.
The Transfer Legislation
18. In 2004, June Atkinson was elected SPI. She was re-elected in 2008 and 2012.
19. On November 8, 2016, Mark Johnson was elected SPI.
5
20. On December 14, 2016, House Bill 17 was introduced in the General Assembly.
Within two days, it passed both the House of Representatives and the Senate.
21. Three days later, on December 19, 2016, House Bill 17 was signed into law as
Session Law 2016-126. A copy of Session Law 2016-126 is attached as Exhibit A.
22. Part I, Sections 1-6 and 8-32 of Session Law 2016-126 have an effective date of
January 1, 2017. The remaining portions of Session Law 2016-126 became effective when it
was signed into law on December 19, 2016.
23. As described above, the North Carolina Constitution expressly confers certain
powers and duties on the Board: to supervise and administer the free public school system
and the educational funds provided for its support. N.C. Const. art. IX, 5. Session Law 2016-
126 contains provisions, however, that attempt to transfer those powers and duties from the
Board to the SPI (the Transfer Legislation).
24. The Transfer Legislation appears in Part I, Sections 1-12, 14-17, 24-25, and 28-30
of Session Law 2016-126, which amend existing statutes. Historically, these statutes stood as a
legislative recognitionalbeit an unnecessary onethat the North Carolina Constitution
expressly confers certain powers and duties on the Board. The Transfer Legislation amends
these statutes with precision, however, to replace the words State Board of Education with
Superintendent of Public Instruction. Thus, the Transfer Legislation attempts to use the same
statutes that recognize the Boards constitutional powers and duties as a vehicle for transferring
those powers and duties away.
25. The Transfer Legislation attempts to accomplish two unconstitutional objectives:
(a) First, the Transfer Legislation attempts to transfer the powers and duties of the
Board to supervise and administer the public schools. Most notably, Section 4 of Session Law
6
2016-126 states: It shall be the duty of the Superintendent of Public Instruction . . . to have
under his or her direction and control, all matters relating to the direct supervision and
administration of the public school system. N.C. Sess. Law 2016-126 4 (amending N.C. Gen.
Stat. 115C-21(a)(5)). Thus, the Transfer Legislation attempts to transfer the same powers and
duties that the people expressly conferred on the Board in their Constitution.
(b) In addition to this full transfer, the Transfer Legislation includes other provisions
that attempt to transfer the powers and duties of the Board to supervise and administer the public
school system. Those provisions include:
N.C. Sess. Law 2016-126 1 (creating N.C. Gen. Stat. 115C-11(i));
N.C. Sess. Law 2016-126 1 (creating N.C. Gen. Stat. 115C-11(j));
N.C. Sess. Law 2016-126 2 (amending N.C. Gen. Stat. 115C-12);
N.C. Sess. Law 2016-126 4 (amending N.C. Gen. Stat. 115C-21(a)(1));
N.C. Sess. Law 2016-126 4 (creating N.C. Gen. Stat. 115C-21(a)(8));
N.C. Sess. Law 2016-126 4 (creating N.C. Gen. Stat. 115C-21(a)(9));
N.C. Sess. Law 2016-126 4 (amending N.C. Gen. Stat. 115C-21(b));
N.C. Sess. Law 2016-126 4 (amending N.C. Gen. Stat. 115C-21(b)(2));
7
N.C. Sess. Law 2016-126 7 (amending N.C. Gen. Stat. 126-5(d));
N.C. Sess. Law 2016-126 8 (amending N.C. Gen. Stat. 126-5(d)(2));
N.C. Sess. Law 2016-126 8 (amending N.C. Gen. Stat. 126-5(d)(2a));
N.C. Sess. Law 2016-126 9 (amending N.C. Gen. Stat. 143-745(a)(1));
N.C. Sess. Law 2016-126 10 (amending N.C. Gen. Stat. 143A-44.1);
N.C. Sess. Law 2016-126 11 (repealing N.C. Gen. Stat. 143A-44.2);
N.C. Sess. Law 2016-126 14 (amending N.C. Gen. Stat. 115C-75.5(4));
N.C. Sess. Law 2016-126 15 (amending N.C. Gen. Stat. 115C-75.6);
N.C. Sess. Law 2016-126 28 (amending Section 8.37(a) of S.L. 2015-241);
8
N.C. Sess. Law 2016-126 29; and
N.C. Sess. Law 2016-126 30.
(c) Second, the Transfer Legislation attempts to transfer the powers and duties of the
Board to supervise and administer the educational funds provided for the public school systems
support. Most notably, Session Law 2016-126 states that it shall be the duty of the
Superintendent of Public Instruction to . . . administer funds appropriated for the operations of
the State Board of Education and for aid to local school administrative units. N.C. Sess. Law
2016-126 4 (amending N.C. Gen. Stat. 115C-21(b)(1b)). Likewise, Sections 3 and 4 state
that the SPI, as the head of the Department of Public Instruction, will administer the funds
appropriated for [the Departments] operation. Id. 3 (amending N.C. Gen. Stat. 115C-19);
id. 4 (amending N.C. Gen. Stat. 115C-21(a)(1)). Thus, the Transfer Legislation attempts to
transfer the same powers and duties that the people expressly conferred on the Board in their
Constitution.
(d) In addition to this full transfer, the Transfer Legislation includes other provisions
that attempt to transfer the Boards constitutional powers and duties to supervise and administer
the educational funds provided for the public school systems support. Those provisions include:
N.C. Sess. Law 2016-126 1 (creating N.C. Gen. Stat. 115C-11(i));
N.C. Sess. Law 2016-126 1 (creating N.C. Gen. Stat. 115C-11(j));
N.C. Sess. Law 2016-126 4 (creating N.C. Gen. Stat. 115C-21(b)(1b));
9
N.C. Sess. Law 2016-126 5 (amending N.C. Gen. Stat. 115C-408(a));
N.C. Sess. Law 2016-126 7 (amending N.C. Gen. Stat. 126-5(d));
N.C. Sess. Law 2016-126 14 (amending N.C. Gen. Stat. 115C-75.5(4));
N.C. Sess. Law 2016-126 28 (amending Section 8.37(a) of S.L. 2015-241);
N.C. Sess. Law 2016-126 28 (amending Section 8.37(b) of S.L. 2015-241);
N.C. Sess. Law 2016-126 28 (amending Section 8.37(c) of S.L. 2015-241);
N.C. Sess. Law 2016-126 29; and
N.C. Sess. Law 2016-126 30.
26. In sum, the Transfer Legislation attempts to transfer the Boards constitutional
powers and duties to the SPI. This transfer is in direct conflict with Article IX, Section 5 of the
North Carolina Constitution. The Board seeks a judicial determination resolving this conflict.
COUNT 1 DECLARATORY AND INJUNCTIVE RELIEF

Article IX, Section 5 of the North Carolina Constitution
27. The Board re-alleges and incorporates by reference all preceding paragraphs.
28. Article IX, Section 5 expressly confers on the Board the power and duty to
supervise . . . the free public school system. N.C. Const. art. IX, 5. As described above,
10
however, the Transfer Legislation attempts to transfer that power and duty from the Board to the
SPI.
29. Accordingly, the Board is entitled to a declaratory judgment and permanent
injunction on the grounds that the Transfer Legislation violates Article IX, Section 5 of the North
Carolina Constitution.

administer the free public school system. N.C. Const. art. IX, 5. As described above,
however, the Transfer Legislation attempts to transfer that power and duty from the Board to the
SPI.

supervise . . . the educational funds provided for [the free public school systems] support.
N.C. Const. art. IX, 5. As described above, however, the Transfer Legislation attempts to
transfer that power and duty from the Board to the SPI.
11

administer . . . the educational funds provided for [the free public school systems] support.
N.C. Const. art. IX, 5. As described above, however, the Transfer Legislation attempts to
transfer that power and duty from the Board to the SPI.
MOTION FOR PRELIMINARY INJUNCTIVE RELIEF
40. As described above, the Transfer Legislation violates the North Carolina
Constitution. As a matter of law, this constitutional violation constitutes per se irreparable harm.
Thus, no further showing of irreparable harm is required.
41. Moreover, even if a further showing of irreparable harm were required, the
Transfer Legislation threatens to cause irreparable harm to the Board, the employees of the
public school system, andmost importantlyNorth Carolinas 1.5 million public school
students. That irreparable harm includes:
12
uncertainty over whether the Board will continue to supervise and administer the
public school systems $10 billion budget, or whether the SPI-Elect, Mark
Johnson, will do so instead;
uncertainty in employment status for dozens of state employees;
uncertainty for the nearly 1,000 state employees whose job responsibilities will be
implicated by the Transfer Legislation;
the harm to North Carolinas 1.5 million students caused by the uncertainties
described above.
42. On December 29, 2016, the Court issued a temporary restraining order enjoining
the effectiveness, implementation, and enforcement of the Transfer Legislation. On January 6,
2017, by consent of the parties, the Court extended that temporary restraining order until a
decision on the Boards motion for preliminary injunction. The Board now seeks a preliminary
injunction enjoining the effectiveness, implementation, and enforcement of the Transfer
Legislation.
REQUEST FOR RELIEF
The Board respectfully requests that the Court:
(a) declare that the Transfer Legislation violates Article IX, Section 5 of the North
Carolina Constitution and issue a permanent injunction enjoining its
implementation or enforcement;
(b) grant the Boards motion for preliminary injunction and enjoin the Transfer
Legislation during the pendency of this action;
(c) assess costs against the State pursuant to N.C. Gen. Stat. 1-263;
(d) award reasonable attorneys fees to the Board, as permitted by law; and
13
(e) grant the Board any and all other relief which the Court deems just and proper.
Respectfully submitted the 1Oth day of March, 2017.
ROBERT F. ORR, PLLC POYNER SPRUILL LLP
By:{t;,y ~
Robert F. Orr ~4-tflf ..J.: tf',,.n ~c~
By:
N.C. State Bar No. 679S r 1 Andrew H. Erteschik

[email protected] [email protected]
3434 Edwards Mill, Suite 112-372 Saad Gul
Raleigh, North Carolina 27612 N.C. State Bar No. 35320
Telephone: (919) 608-5335 [email protected]
P.O. Box 1801
COUNSEL FOR PLAINTIFF Raleigh, NC 27602-1801
NORTH CAROLINA STATE Telephone: (919) 783-2895
BOARD OF EDUCATION Facsimile: (919) 783-1075
John M. Durnovich
N.C. State BarNo. 47715
301 S. College St., Suite 2300
Charlotte, NC 28202
Telephone: 704.342.5250
Facsimile: 704.342.5264
[email protected]

BOARD OF EDUCATION
14
The undersigned hereby certifies that a copy of the foregoing document was served by
U.S. Mail and e-mail to the following :
Amar Majmundar
Raleigh, NC 27603
Counsel for the State ofNorth Carolina
Philip R. Isley
E. Hardy Lewis
Raleigh, NC 27603
Superintendent ofPublic Instruction
This the 1Oth day of March, 2017.
15
STATE OF NORTH CAROLINA
VERIFICATION
COUNTYOFW.AK:Er 'D\lr\--OII1"\
William W. Cobey, Jr., being first duly sworn, deposes and says:
That he is the Chairman of the State Board of Education, the Plaintiff in this action; that
he has read the foregoing Verified Amended Complaint for Declaratory and Injunctive Relief and
Motion for Preliminary Injunctive Relief and knows the contents thereof; that the allegations
therein are true of his own knowledge, except as to those things therein stated upon information
and belief; and that as to those matters and things stated upon information and belief, he believes
them to be true.
This the 1Oth day of March, 2017.
WAKE COUNTY, NORTH CAROLINA
Sworn to and subscribed before me this the 1Oth day of March, 2017.
K?f.h
Notary Public
s_~
My commission expires: /o - 21 :- :;2.02,1
KATHY $ AUS,TIN
[SEAL] Nollrv Publle North Carolina
Durham Coulltv
Mv Col!lml..lon;Eplr" Jun 21, 2021
Exhibit B
GENERAL ASSEMBLY OF NORTH CAROLINA
FOURTH EXTRA SESSION 2016
SESSION LAW 2016-126

HOUSE BILL 17
AN ACT TO CLARIFY THE SUPERINTENDENT OF PUBLIC INSTRUCTION'S ROLE

AS THE ADMINISTRATIVE HEAD OF THE DEPARTMENT OF PUBLIC
INSTRUCTION, TO CHANGE THE APPOINTMENTS PROCESS FOR THE BOARDS
OF TRUSTEES FOR THE CONSTITUENT INSTITUTIONS OF THE UNIVERSITY OF
NORTH CAROLINA, TO MODIFY THE APPOINTMENT OF HEADS OF PRINCIPAL
STATE DEPARTMENTS, AND TO ESTABLISH TASK FORCE FOR SAFER
SCHOOLS.
The General Assembly of North Carolina enacts:
PART I. CLARIFY ROLES/DPI/SBE

SECTION 1. G.S. 115C-11 reads as rewritten:
" 115C-11. Organization and internal procedures of Board.

(a1) Student advisors. The Governor Superintendent of Public Instruction is hereby
authorized to appoint two high school students who are enrolled in the public schools of North
Carolina as advisors to the State Board of Education. The student advisors shall participate in
State Board deliberations in an advisory capacity only. The State Board may, in its discretion,
exclude the student advisors from executive sessions.
The Governor shall make initial appointments of student advisors to the State Board as
follows:
(1) One high school junior shall be appointed for a two year term beginning
September 1, 1986, and expiring June 14, 1988; and
(2) One high school senior shall be appointed for a one year term beginning
September 1, 1986, and expiring June 14, 1987. When an initial or
subsequent term expires, the GovernorThe Superintendent of Public
Instruction shall appoint a stagger the appointments of the two student
advisors so that a high school junior for is serving in the first year of a
two-year term and a high school senior is serving in the second year of a
two-year term simultaneously. The appointment of a high school junior shall
be made beginning June 15 of that each year. If a student advisor is no
longer enrolled in the public schools of North Carolina or if a vacancy
otherwise occurs, the Governor Superintendent of Public Instruction shall
appoint a student advisor for the remainder of the unexpired term.
Student advisors shall receive per diem and necessary travel and subsistence expenses in
accordance with the provisions of G.S. 138-5.

(a3) Superintendent Advisor. The Governor Superintendent of Public Instruction shall
appoint a superintendent of a local school administrative unit as an advisor to the State Board
of Education. The superintendent advisor shall serve for a term of one year. The superintendent
advisor shall participate in State Board deliberations and committee meetings in an advisory
*H17-v-7*
General Assembly Of North CarolinaFourth Extra Session 2016
capacity only. The State Board may, in its discretion, exclude the superintendent advisor from
executive sessions.
In the event that a superintendent advisor ceases to be a superintendent in a local school
administrative unit, the position of superintendent advisor shall be deemed vacant. In the event
that a vacancy occurs in the position for whatever reason, the Governor Superintendent of
Public Instruction shall appoint a superintendent advisor for the remainder of the unexpired
term. The superintendent advisor to the State Board shall receive per diem and necessary travel
and subsistence expenses in accordance with the provisions of G.S. 138-5.

(i) Administrative Assistance. The Superintendent of Public Instruction shall provide
technical assistance and administrative assistance, including all personnel except as otherwise
provided in subsection (j) of this section, to the State Board of Education through the
Department of Public Instruction.
(j) Certain Personnel Appointed by the State Board. The State Board may appoint
only the following personnel positions to support the operations of the State Board of
Education through the Department of Public Instruction:
Position number Title
(1) 65023576 Attorney I.
(2) 60009384 Attorney II.
(3) 65003194 Paralegal II.
(4) 60095070 Administrative Assistant I."
" 115C-12. Powers and duties of the Board generally.
The general supervision and administration of the free public school system shall be vested
in the State Board of Education. The State Board of Education shall establish policyall needed
rules and regulations for the system of free public schools, subject to laws enacted by the
General Assembly. In accordance with Sections 7 and 8 of Article III of the North Carolina
Constitution, the Superintendent of Public Instruction, as an elected officer and Council of
State member, shall administer all needed rules and regulations adopted by the State Board of
Education through the Department of Public Instruction. The powers and duties of the State
Board of Education are defined as follows:
."
" 115C-19. Chief administrative officer of the State Board of Education.
As provided in Article IX, Sec. 4(2) of the North Carolina Constitution, the Superintendent
of Public Instruction shall be the secretary and chief administrative officer of the State Board of
Education. As secretary and chief administrative officer of the State Board of Education, the
Superintendent manages on a day to day basis the administration of the free public school
system, subject to the direction, control, and approval of the State Board. Subject to the
direction, control, and approval of the State Board of Education, the Superintendent of Public
Instruction As provided in Sections 7 and 8 of Article III of the North Carolina Constitution,
the Superintendent of Public Instruction shall be an elected officer and Council of State
member and shall carry out the duties prescribed under G.S. 115C 21.G.S. 115C-21 as the
administrative head of the Department of Public Instruction. The Superintendent of Public
Instruction shall administer all needed rules and regulations adopted by the State Board of
Education through the Department of Public Instruction."
" 115C-21. Powers and duties generally.
(a) Administrative Duties. Subject to the direction, control, and approval of the State
Board of Education, itIt shall be the duty of the Superintendent of Public Instruction:
Page 2 Session Law 2016-126 House Bill 17

(1) To organize and establish a Department of Public Instruction which shall

include such divisions and departments as the State Board considers
necessary for supervision and administration of the public school
system.system, to administer the funds appropriated for the operation of the
Department of Public Instruction, in accordance with all needed rules and
regulations adopted by the State Board of Education, and to enter into
contracts for the operations of the Department of Public Instruction. All
appointments of administrative and supervisory personnel to the staff of the
Department of Public Instruction are subject to the approval of the State
Board of Education, whichInstruction and the State Board of Education,
except for certain personnel appointed by the State Board of Education as
provided in G.S. 115C-11(j), shall be under the control and management of
the Superintendent of Public Instruction who may terminate these
appointments for cause in conformity with Chapter 126 of the General
Statutes, the North Carolina Human Resources Act.
(2) To keep the public informed as to the problems and needs of the public
schools by constant contact with all school administrators and teachers, by
personal appearance at public gatherings, and by information furnished to
the press of the State.
(3) To report biennially to the Governor 30 days prior to each regular session of
the General Assembly, such report to include information and statistics of
the public schools, with recommendations for their improvement and for
changes in the school law.
(4) To have printed and distributed such educational bulletins as are necessary
for the professional improvement of teachers and for the cultivation of
public sentiment for public education, and to have printed all forms
necessary and proper for the administration of the Department of Public
Instruction.
(5) To manage have under his or her direction and control, all those matters
relating to the direct supervision and administration of the public school
system that the State Board delegates to the Superintendent of Public
Instruction.system.
(6) To create aand administer special fundfunds within the Department of Public
Instruction to manage funds received as grants from nongovernmental
sources in support of public education. Effective July 1, 1995, this special
fund is transferred to the State Board of Education and shall be administered
by the State Boardeducation in accordance with G.S. 115C-410.
(7) Repealed by Session Laws 1995, c. 72, s. 2.
(8) To administer, through the Department of Public Instruction, all needed rules
and regulations established by the State Board of Education.
(9) To have under his or her direction and control all matters relating to the
provision of staff services, except certain personnel appointed by the State
Board as provided in G.S. 115C-11(j), and support of the State Board of
Education, including implementation of federal programs on behalf of the
State Board.
(b) Duties as Secretary to the State Board of Education. Subject to the direction,
control, and approval of the State Board of Education,As secretary to the State Board of
Education, it shall be the duty of the Superintendent of Public Instruction:
(1) To administer through the Department of Public Instruction, the instructional
policies established by the Board.
(1a) Repealed by Session Laws 1995, c. 72, s. 2.
House Bill 17 Session Law 2016-126 Page 3

(1b) To administer funds appropriated for the operations of the State Board of
Education and for aid to local school administrative units.
(2) To keep the Board informed regarding developments in the field of public
education.
(3) To make recommendations to the Board with regard to the problems and
needs of education in North Carolina.
(4) To make available to the public schools a continuous program of
comprehensive supervisory services.
(5) To collect and organize information regarding the public schools, on the
basis of which he or she shall furnish the Board such tabulations and reports
as may be required by the Board.
(6) To communicate to the public school administrators all information and
instructions regarding instructional policies and proceduresneeded rules and
regulations adopted by the Board.
(7) To have custody of the official seal of the Board and to attest all deeds,
leases, or written contracts executed in the name of the Board. All deeds of
conveyance, leases, and contracts affecting real estate, title to which is held
by the Board, and all contracts of the Board required to be in writing and
under seal, shall be executed in the name of the Board by the chairman and
attested by the secretary; and proof of the execution, if required or desired,
may be had as provided by law for the proof of corporate instruments.
(8) To attend all meetings of the Board and to keep the minutes of the
proceedings of the Board in a well-bound and suitable book, which minutes
shall be approved by the Board prior to its adjournment; and, as soon
thereafter as possible, to furnish to each member of the Board a copy of said
minutes.
(9) To perform such other duties as may be necessary and appropriate for the
Superintendent of Public Instruction in the role as secretary to the Board
may assign to him from time to time.Board."
SECTION 5. G.S. 115C-408(a) reads as rewritten:
"(a) It is the policy of the State of North Carolina to create a public school system that
graduates good citizens with the skills demanded in the marketplace, and the skills necessary to
cope with contemporary society, using State, local and other funds in the most cost-effective
manner. The Board shall have general supervision and administration of the educational funds
provided by the State and federal governments, except those mentioned in Section 7 of Article
IX of the State Constitution, and also excepting such local funds as may be provided by a
county, city, or district. The Superintendent of Public Instruction shall administer any available
educational funds through the Department of Public Instruction in accordance with all needed
rules and regulations adopted by the State Board of Education."
" 115C-410. Power to accept gifts and grants.
The Board is authorized to adopt all needed rules and regulations related to the creation and
administration of special funds within the Department of Public Instruction to manage any
funds received as grants from nongovernmental sources in support of public education. In
accordance with the State Board's rules and regulations, the Superintendent of Public
Instruction is authorized to create and administer such special funds and to accept, receive, use,
or reallocate to local school administrative units any gifts, donations, grants, devises, or other
forms of voluntary contributions."
SECTION 7. G.S. 126-5(d) reads as rewritten:
"(d) (1) Exempt Positions in Cabinet Department. Subject to the provisions of this
Chapter, which is known as the North Carolina Human Resources Act, the

Governor may designate a total of 1,500 425 exempt positions throughout

the following departments and offices:
a. Department of Administration.
b. Department of Commerce.
c. Repealed by Session Laws 2012-83, s. 7, effective June 26, 2012,
and by Session Laws 2012-142, s. 25.2E(a), effective January 1,
2013.
d. Department of Public Safety.
e. Department of Natural and Cultural Resources.
f. Department of Health and Human Services.
g. Department of Environmental Quality.
h. Department of Revenue.
i. Department of Transportation.
j. Repealed by Session Laws 2012-83, s. 7, effective June 26, 2012,
2013.
k. Department of Information Technology.
l. Office of State Budget and Management.
m. Office of State Human Resources.
n. Department of Military and Veterans Affairs.
(2) Exempt Positions in Council of State Departments and Offices. The
Secretary of State, the Auditor, the Treasurer, the Attorney General, the
Commissioner of Agriculture, the Commissioner of Insurance, and the Labor
Commissioner may designate exempt positions. The State Board of
Education may designate exempt positions in the Department of Public
Instruction. The number of exempt policymaking positions in each
department headed by an elected department head listed above in this
sub subdivisionsub-subdivision, other than the Department of Public
Instruction, shall be limited to 20 25 exempt policymaking positions or one
two percent (1%)(2%) of the total number of full-time positions in the
department, whichever is greater. The number of exempt managerial
positions shall be limited to 20 25 positions or one two percent (1%)(2%) of
the total number of full-time positions in the department, whichever is
greater. The number of exempt policymaking positions designated by the
State Board of Education shall be limited to 70 exempt policymaking
positions or two percent (2%) of the total number of full-time positions in
the department, whichever is greater. The number of exempt managerial
positions designated by the State Board of Education shall be limited to 70
exempt managerial positions or two percent (2%) of the total number of
full-time positions in the department, whichever is greater.

(2c) Changes in Cabinet Department Exempt Position Designation. If the status
of a position designated exempt pursuant to subsection (d)(1) of this section
is changed and the position is made subject to the provisions of this Chapter,
an employee occupying the position who has been continuously employed in
a permanent position for the immediate 12 preceding months, shall be
deemed a career State employee as defined by G.S. 126-1.1(a) upon the
effective date of the change in designation.
...."
SECTION 8. G.S. 126-5(d), as amended by Section 7 of this act, reads as
rewritten:

"(d) (1) Exempt Positions in Cabinet Department. Subject to the provisions of this
Chapter, which is known as the North Carolina Human Resources Act, the
Governor may designate a total of 425 exempt positions throughout the
following departments and offices:
a. Department of Administration.
b. Department of Commerce.
c. Repealed by Session Laws 2012-83, s. 7, effective June 26, 2012,
2013.
d. Department of Public Safety.
e. Department of Natural and Cultural Resources.
f. Department of Health and Human Services.
g. Department of Environmental Quality.
h. Department of Revenue.
i. Department of Transportation.
j. Repealed by Session Laws 2012-83, s. 7, effective June 26, 2012,
2013.
k. Department of Information Technology.
l. Repealed.
m. Repealed.
n. Department of Military and Veterans Affairs.
(2) Exempt Positions in Council of State Departments and Offices. The
Secretary of State, the Auditor, the Treasurer, the Attorney General, the
Superintendent of Public Instruction, the Commissioner of Agriculture, the
Commissioner of Insurance, and the Labor Commissioner may designate
exempt positions. The State Board of Education may designate exempt
positions in the Department of Public Instruction. The number of exempt
policymaking positions in each department headed by an elected department
head listed above in this sub subdivision, other than the Department of
Public Instruction,sub-subdivision shall be limited to 25 exempt
policymaking positions or two percent (2%) of the total number of full-time
positions in the department, whichever is greater. The number of exempt
managerial positions shall be limited to 25 positions or two percent (2%) of
the total number of full-time positions in the department, whichever is
greater. The number of exempt policymaking positions designated by the
State Board of EducationSuperintendent of Public Instruction shall be
limited to 70 exempt policymaking positions or two percent (2%) of the total
number of full-time positions in the department, whichever is greater. The
number of exempt managerial positions designated by the State Board of
EducationSuperintendent of Public Instruction shall be limited to 70 exempt
managerial positions or two percent (2%) of the total number of full-time
positions in the department, whichever is greater.
(2a) Designation of Additional Positions. The Governor,Governor or elected
department head, or State Board of Educationhead may request that
additional positions be designated as exempt. The request shall be made by
sending a list of exempt positions that exceed the limit imposed by this
subsection to the Speaker of the North Carolina House of Representatives
and the President of the North Carolina Senate. A copy of the list also shall
be sent to the Director of the Office of State Human Resources. The General
Assembly may authorize all, or part of, the additional positions to be

designated as exempt positions. If the General Assembly is in session when

the list is submitted and does not act within 30 days after the list is
submitted, the list shall be deemed approved by the General Assembly, and
the positions shall be designated as exempt positions. If the General
Assembly is not in session when the list is submitted, the 30-day period shall
not begin to run until the next date that the General Assembly convenes or
reconvenes, other than for a special session called for a specific purpose not
involving the approval of the list of additional positions to be designated as
exempt positions; the policymaking positions shall not be designated as
exempt during the interim.
(2b) Designation of Liaison Positions. Liaisons to the Collaboration for
Prosperity Zones set out in G.S. 143B-28.1 for the Departments of
Commerce, Environmental Quality, and Transportation are designated as
exempt.
(2c) Changes in Cabinet Department Exempt Position Designation. If the status
of a position designated exempt pursuant to subsection (d)(1) of this section
is changed and the position is made subject to the provisions of this Chapter,
an employee occupying the position who has been continuously employed in
a permanent position for the immediate 12 preceding months, shall be
deemed a career State employee as defined by G.S. 126-1.1(a) upon the
effective date of the change in designation.
(3) Letter. These positions shall be designated in a letter to the Director of the
Office of State Human Resources, the Speaker of the House of
Representatives, and the President of the Senate by July 1 of the year in
which the oath of office is administered to each Governor unless the
provisions of subsection (d)(4) apply.
(4) Vacancies. In the event of a vacancy in the Office of Governor or in the
office of a member of the Council of State, the person who succeeds to or is
appointed or elected to fill the unexpired term shall make such designations
in a letter to the Director of the Office of State Human Resources, the
Speaker of the House of Representatives, and the President of the Senate
within 180 days after the oath of office is administered to that person. In the
event of a vacancy in the Office of Governor, the State Board of Education
shall make these designations in a letter to the Director of the Office of State
Human Resources, the Speaker of the House of Representatives, and the
President of the Senate within 180 days after the oath of office is
administered to the Governor.
(5) Creation, Transfer, or Reorganization. The Governor,Governor or elected
department head, or State Board of Educationhead may designate as exempt
a position that is created or transferred to a different department, or is
located in a department in which reorganization has occurred, after October
1 of the year in which the oath of office is administered to the Governor. The
designation must be made in a letter to the Director of the Office of State
Human Resources, the Speaker of the North Carolina House of
Representatives, and the President of the North Carolina Senate within 180
days after such position is created, transferred, or in which reorganization
has occurred.
(6) Reversal. Subsequent to the designation of a position as an exempt
position as hereinabove provided, the status of the position may be reversed
and made subject to the provisions of this Chapter by the
Governor,Governor or by an elected department head, or by the State Board

of Educationhead in a letter to the Director of the Office of State Human

Resources, the Speaker of the North Carolina House of Representatives, and
the President of the North Carolina Senate.
(7) Hearing Officers. Except for deputy commissioners appointed pursuant to
G.S. 97-79 and as otherwise specifically provided by this section, no
employee, by whatever title, whose primary duties include the power to
conduct hearings, take evidence, and enter a decision based on findings of
fact and conclusions of law based on statutes and legal precedents shall be
designated as exempt. This subdivision shall apply beginning July 1, 1985,
and no list submitted after that date shall designate as exempt any employee
described in this subdivision."
SECTION 9. G.S. 143-745(a)(1) reads as rewritten:
"(1) "Agency head" means the Governor, a Council of State member, a cabinet
secretary, the President of The University of North Carolina, the President of
the Community College System, the State Controller, and other independent
appointed officers with authority over a State agency. The agency head for
the Department of Public Instruction shall be the State Board of Education."
SECTION 10. G.S. 143A-44.1 reads as rewritten:
" 143A-44.1. Creation.
There is hereby created a Department of Public Instruction. The head of the Department of
Public Instruction is the State Board of Education. Any provision of G.S. 143A 9 to the
contrary notwithstanding, the appointment of the State Board of Education shall be as
prescribed in Article IX, Section (4)(1) of the Constitution.Superintendent of Public
Instruction."
SECTION 11. G.S. 143A-44.2 is repealed.
SECTION 12. G.S. 143A-44.3 reads as rewritten:
" 143A-44.3. Superintendent of Public Instruction; creation; transfer of powers and
duties.
The office of the Superintendent of Public Instruction, as provided for by Article III,
Section 7 of the Constitution, and the Department of Public Instruction are transferred to the
Department of Public Instruction. The Superintendent of Public Instruction shall be the
Secretary and Chief Administrative Officer of the State Board of Education, and shall have all
powers and duties conferred by this Chapter and the Constitution, delegated to him or her by
the Governor and by the State Board of Education, and conferred by Chapter 115C of the
General Statutes,Statutes and the laws of this State."
SECTION 13. G.S. 14-234(d6) is repealed.
SECTION 14. G.S. 115C-75.5(4) reads as rewritten:
"(4) ASD Superintendent. The superintendent of the ASD appointed by the
State Board of EducationSuperintendent of Public Instruction in accordance
with G.S. 115C-75.6(b)."
SECTION 15. G.S. 115C-75.6 reads as rewritten:
" 115C-75.6. Achievement School District.
(a) There is established the Achievement School District (ASD) under the
administration of the State Board of Education.Education and the Superintendent of Public
Instruction. The ASD shall assume the supervision, management, and operation of elementary
schools that have been selected as achievement schools pursuant to this Article.
(b) An ASD Superintendent Selection Advisory Committee shall be established to make
a recommendation to the State Board of Education on appointment of a superintendent to serve
as the executive officer of the ASD. The Committee shall ensure that the individual
recommended has qualifications consistent with G.S. 115C 271(a). The Lieutenant Governor
shall serve as chair of the Committee and shall appoint the following additional members:

(1) Three members of the State Board of Education.

(2) One teacher or retired teacher.
(3) One principal or retired principal.
(4) One superintendent or retired superintendent.
(5) One parent of a student currently enrolled in a low performing school, as
defined in G.S. 115C 105.37.
(c) The State Board of Education shall consider the recommendation of the ASD
Superintendent Selection Advisory Committee and Superintendent of Public Instruction shall
appoint a superintendent to serve as the executive officer of the ASD. The ASD Superintendent
shall serve at the pleasure of the State Board of EducationSuperintendent of Public Instruction
at a salary established by the State Board of EducationSuperintendent of Public Instruction
within the funds appropriated for this purpose. The ASD Superintendent shall have
qualifications consistent with G.S. 115C-271(a) and report directly to the State Board of
Education.Superintendent of Public Instruction.
(d) By January 15 annually, the State Board of EducationEducation, Superintendent of
Public Instruction, and the ASD Superintendent shall report to the Joint Legislative Education
Oversight Committee on all aspects of operation of ASD, including the selection of
achievement schools and their progress."
SECTION 16. G.S. 115C-150.11 reads as rewritten:
" 115C-150.11. State Board of Education as governing agency.
The State Board of Education shall be the sole governing agency for the Governor
Morehead School for the Blind, the Eastern North Carolina School for the Deaf, and the North
Carolina School for the Deaf. The DepartmentSuperintendent of Public Instruction through the
Department of Public Instruction shall be responsible for the administrationadministration,
including appointment of staff, and oversight of a school governed by this Article."
" 115C-218. Purpose of charter schools; establishment of North Carolina Charter
Schools Advisory Board and North Carolina Office of Charter Schools.

(b) North Carolina Charter Schools Advisory Board.
(1) Advisory Board. There is created the North Carolina Charter Schools
Advisory Board, hereinafter referred to in this Article as the Advisory
Board. The Advisory Board shall be located administratively within the
Department of Public Instruction and shall report to the State Board of
Education.
(2) Membership. The State Superintendent of Public Instruction, or the
Superintendent's designee, shall be the secretary of the Advisory Board and a
nonvoting member. The Chair of the State Board of Education shall appoint
a member of the State Board to serve as a nonvoting member of the
Advisory Board. The Advisory Board shall consist of the following 11
voting members:
a. Three members appointed by the Governor, including the chair of the
Advisory Board.
b. ThreeFour members appointed by the General Assembly upon the
recommendation of the President Pro Tempore of the Senate, in
accordance with G.S. 120-121.
c. ThreeFour members appointed by the General Assembly upon the
recommendation of the Speaker of the House of Representatives, in
d. One memberTwo members appointed by the State Board of
Education who isare not a current membermembers of the State

Board of Education and who is aare charter school

advocateadvocates in North Carolina.
e. The Lieutenant Governor or the Lieutenant Governor's designee.
(3) Covered board. The Advisory Board shall be treated as a board for
purposes of Chapter 138A of the General Statutes.
(4) Qualifications of members. Members appointed to the Advisory Board
shall collectively possess strong experience and expertise in public and
nonprofit governance, management and finance, assessment, curriculum and
instruction, public charter schools, and public education law. All appointed
members of the Advisory Board shall have demonstrated an understanding
of and a commitment to charter schools as a strategy for strengthening public
education.
(5) Terms of office and vacancy appointments. Appointed members shall
serve four-year terms of office beginning on July 1. No appointed member
shall serve more than eight consecutive years. Vacancy appointments shall
be made by the appointing authority for the remainder of the term of office.
(6) Presiding officers and quorum. The Advisory Board shall annually elect a
chair and a vice-chair from among its membership. The chair shall preside
over the Advisory Board's meetings. In the absence of the chair, the
vice-chair shall preside over the Advisory Board's meetings. A majority of
the Advisory Board constitutes a quorum.
(7) Presiding officers and quorum. Meetings. Meetings of the Advisory
Board shall be held upon the call of the chair or the vice-chair with the
approval of the chair.
(8) Expenses. Members of the Advisory Board shall be reimbursed for travel
and subsistence expenses at the rates allowed to State officers and
employees by G.S. 138-6(a).
(9) Removal. Any appointed member of the Advisory Board may be removed
by a vote of at least two-thirds of the members of the Advisory Board at any
duly held meeting for any cause that renders the member incapable or unfit
to discharge the duties of the office.
(10) Powers and duties. The Advisory Board shall have the following duties:
a. To make recommendations to the State Board of Education on the
adoption of rules regarding all aspects of charter school operation,
including time lines, standards, and criteria for acceptance and
approval of applications, monitoring of charter schools, and grounds
for revocation of charters.
b. To review applications and make recommendations to the State
Board for final approval of charter applications.
c. To make recommendations to the State Board on actions regarding a
charter school, including renewals of charters, nonrenewals of
charters, and revocations of charters.
d. To undertake any other duties and responsibilities as assigned by the
State Board.
(11) Duties of the chair of the Advisory Board. In addition to any other duties
prescribed in this Article, the chair of the Advisory Board, or the chair's
designee, shall advocate for the recommendations of the Advisory Board at
meetings of the State Board upon the request of the State Board.
(c) North Carolina Office of Charter Schools.
(1) Establishment of the North Carolina Office of Charter Schools. There is
established the North Carolina Office of Charter Schools, hereinafter

referred to in this Article as the Office of Charter Schools. The Office of

Charter Schools shall be administratively located in the Department of
Public Instruction, subject to the supervision, direction, and control of the
State Board of Education.Instruction. The Office of Charter Schools shall
consist of an executive director appointed by the State Board of
EducationSuperintendent of Public Instruction and such other professional,
administrative, technical, and clerical personnel as may be necessary to
assist the Office of Charter Schools in carrying out its powers and duties.
(2) Executive Director. The Executive Director shall report to and serve at the
pleasure of the State Board of EducationSuperintendent of Public Instruction
at a salary established by the State BoardSuperintendent within the funds
appropriated for this purpose. The duties of the Executive Director shall
include presenting the recommendations of the Advisory Board at meetings
of the State Board upon the request of the State Board.
(3) Powers and duties. The Office of Charter Schools shall have the following
powers and duties:
a. Serve as staff to the Advisory Board and fulfill any task and duties
assigned to it by the Advisory Board.
b. Provide technical assistance and guidance to charter schools
operating within the State.
c. Provide technical assistance and guidance to nonprofit corporations
seeking to operate charter schools within the State.
d. Provide or arrange for training for charter schools that have received
preliminary approval from the State Board.
e. Assist approved charter schools and charter schools seeking approval
from the State Board in coordinating services with the Department of
Public Instruction.
f. Other duties as assigned by the State Board.Superintendent of Public
Instruction.
(4) Agency cooperation. All State agencies and departments shall cooperate
with the Office of Charter Schools in carrying out its powers and duties as
necessary in accordance with this Article."
SECTION 18. G.S. 115C-218.20(b) reads as rewritten:
"(b) No civil liability shall attach to the State Board of Education, the Superintendent of
Public Instruction, or to any of their members or employees, individually or collectively, for
any acts or omissions of the charter school."
SECTION 19. G.S. 115C-238.73(g) reads as rewritten:
"(g) There shall be no liability for negligence on the part of the board of directors, or its
employees, or the State Board of Education, the Superintendent of Public Instruction, or itsany
of their members or employees, individually or collectively, arising from any act taken or
omission by any of them in carrying out the provisions of this section. The immunity
established by this subsection shall not extend to gross negligence, wanton conduct, or
intentional wrongdoing that would otherwise be actionable. The immunity established by this
subsection shall be deemed to have been waived to the extent of indemnification by insurance,
indemnification under Articles 31A and 31B of Chapter 143 of the General Statutes, and to the
extent sovereign immunity is waived under the Tort Claims Act, as set forth in Article 31 of
Chapter 143 of the General Statutes."
SECTION 20. G.S. 115C-332(g) reads as rewritten:
"(g) There shall be no liability for negligence on the part of a local board of education, or
its employees, or the State Board of Education, the Superintendent of Public Instruction, or
itsany of their members or employees, individually or collectively, arising from any act taken

or omission by any of them in carrying out the provisions of this section. The immunity
extent sovereign immunity is waived under the Tort Claims Act, as set forth in Chapter 31 of
SECTION 21. G.S. 115C-333(e) reads as rewritten:
"(e) Civil Immunity. There shall be no liability for negligence on the part of the State
Board of EducationEducation, the Superintendent of Public Instruction, or a local board of
education, or their members or employees, individually or collectively, arising from any action
taken or omission by any of them in carrying out the provisions of this section. The immunity
SECTION 22. G.S. 115C-333.1(g) reads as rewritten:
"(g) Civil Immunity. There shall be no liability for negligence on the part of the State
Board of EducationEducation, the Superintendent of Public Instruction, or a local board of
education, or their members or employees, individually or collectively, arising from any action
SECTION 23. G.S. 115C-390.3(c) reads as rewritten:
"(c) Notwithstanding any other law, no officerofficer, member, or employee of the State
Board of EducationEducation, the Superintendent of Public Instruction, or of a local board of
educationeducation, individually or collectively, shall be civilly liable for using reasonable
force in conformity with State law, State or local rules, or State or local policies regarding the
control, discipline, suspension, and expulsion of students. Furthermore, the burden of proof is
on the claimant to show that the amount of force used was not reasonable."
" 115C-521. Erection of school buildings.

(b) It shall be the duty of the local boards of education of the several local school
administrative school units of the State to make provisions for the public school term by
providing adequate school buildings equipped with suitable school furniture and apparatus. The
needs and the cost of those buildings, equipment, and apparatus, shall be presented each year
when the school budget is submitted to the respective tax-levying authorities. The boards of
commissioners shall be given a reasonable time to provide the funds which they, upon
investigation, shall find to be necessary for providing their respective units with buildings
suitably equipped, and it shall be the duty of the several boards of county commissioners to
provide funds for the same.
Upon determination by a local board of education that the existing permanent school
building does not have sufficient classrooms to house the pupil enrollment anticipated for the
school, the local board of education may acquire and use as temporary classrooms for the

operation of the school, relocatable or mobile classroom units, whether built on the lot or not,
which units and method of use shall meet the approval of the School Planning Division of the
State Board of Education,Department of Public Instruction, and which units shall comply with
all applicable requirements of the North Carolina State Building Code and of the local building
and electrical codes applicable to the area in which the school is located. These units shall also
be anchored in a manner required to assure their structural safety in severe weather. The
acquisition and installation of these units shall be subject in all respects to the provisions of
Chapter 143 of the General Statutes. The provisions of Chapter 87, Article 1, of the General
Statutes, shall not apply to persons, firms or corporations engaged in the sale or furnishing to
local boards of education and the delivery and installation upon school sites of classroom
trailers as a single building unit or of relocatable or mobile classrooms delivered in less than
four units or sections.

(f) A local board of education may use prototype designs from the clearinghouse
established under subsection (e) of this section that is a previously approved and constructed
project by the School Planning Division of the State Board of Education,Department of Public
Instruction and other appropriate review agencies. The local board of education may contract
with the architect of record to make changes and upgrades as necessary for regulatory approval.
."
" 115C-535. Authority and rules for organization of system.
The State Board of EducationSuperintendent of Public Instruction is hereby authorized,
directed and empowered to establish a division to manage and operate a system of insurance for
public school property.property in accordance with all needed rules and regulations adopted by
the State Board of Education. The Board shall adopt such rules and regulations as, in its
discretion, may be necessary to provide all details inherent in the insurance of public school
property. The BoardSuperintendent of Public Instruction shall employ a director, safety
inspectors, engineers and other personnel with suitable training and experience, which in itshis
or her opinion is necessary to insure and protect effectively public school property, and ithe or
she shall fix their compensation consistent with the approvalpolicies of the PersonnelState
Human Resources Commission."
SECTION 26. G.S. 116-239.12(g) reads as rewritten:
"(g) There shall be no liability for negligence on the part of the board of trustees, or its
employees, or the State Board of Education,Education, the Superintendent of Public
Instruction, or itstheir members or employees, individually or collectively, arising from any act
SECTION 27. G.S. 143B-146.16(g) reads as rewritten:
"(g) There shall be no liability for negligence on the part of the Secretary, the
Department of Health and Human Services or its employees, a residential school or its
employees, or the State Board of EducationEducation, Superintendent of Public Instruction, or
itstheir members or employees, individually or collectively, arising from any act taken or
omission by any of them in carrying out the provisions of this section. The immunity

SECTION 28. Section 8.37 of S.L. 2015-241, as amended by Section 8.30 of S.L.
2016-94, reads as rewritten:
"BUDGET REDUCTIONS/DEPARTMENT OF PUBLIC INSTRUCTION
"SECTION 8.37.(a) Notwithstanding G.S. 143C-6-4, the State Board of Education
Department of Public Instruction may, after consultation with the Office of State Budget and
Management and the Fiscal Research Division, reorganize the Department of Public
Instruction, if necessary, to implement the budget reductions for the 2015-2017 fiscal
biennium. Consultation shall occur prior to requesting budgetary and personnel changes
through the budget revision process. The State BoardDepartment of Public Instruction shall
provide a current organization chart for the Department of Public Instruction in the consultation
process and shall report to the Joint Legislative Commission on Governmental Operations on
any reorganization.
"SECTION 8.37.(b) In implementing budget reductions for the 2015-2017 fiscal
biennium, the State Board of EducationDepartment of Public Instruction shall make no
reduction to funding or positions for (i) the North Carolina Center for Advancement of
Teaching and (ii) the Eastern North Carolina School for the Deaf, the North Carolina School
for the Deaf, and the Governor Morehead School, except that the State BoardSuperintendent of
Public Instruction may, in its discretion, reduce positions at these institutions that have been
vacant for more than 16 months. The State BoardDepartment of Public Instruction shall also
make no reduction in funding to any of the following entities:
(1) Communities in Schools of North Carolina, Inc.
(2) Teach For America, Inc.
(3) Beginnings for Parents of Children who are Deaf or Hard of Hearing, Inc.
"SECTION 8.37.(c) In implementing budget reductions for the 2016-2017 fiscal year, the
Department of Public Instruction shall do all of the following:
(1) In addition to the prohibition on a reduction to funding and positions for the
items listed in subsection (b) of this section, the Department shall make no
transfers from or reduction to funding or positions for the following:
a. The Excellent Public Schools Act, Read to Achieve Program,
initially established under Section 7A.1 of S.L. 2012-142.
b. The North Carolina School Connectivity Program.
(2) The Department shall transfer the sum of fifty thousand dollars ($50,000) to
the Office of Administrative Hearings to be allocated to the Rules Review
Commission, created by G.S. 143B-30.1, to pay for any litigation costs
incurred in the defense of North Carolina State Board of Education v. The
State of North Carolina and The Rules Review Commission, Wake County
Superior Court, File No. 14 CVS 14791 (filed November 7, 2014). These
funds shall not revert at the end of the 2016-2017 fiscal year but shall remain
available during the 2017-2018 fiscal year for expenditure in accordance
with the provisions of this subdivision."
SECTION 29. By May 15, 2017, the State Board of Education shall revise, as
necessary, any of its rules and regulations to comply with the provisions of this Part.
SECTION 30. The Department of Public Instruction shall review all State laws and
rules and regulations governing the public school system to ensure compliance with the intent
of this Part to restore authority to the Superintendent of Public Instruction as the administrative
head of the Department of Public Instruction and the Superintendent's role in the direct
supervision of the public school system. By April 15, 2017, the Department of Public

Instruction shall report to the 2017 General Assembly on the results of its review, including any
recommended legislation.
SECTION 31. Notwithstanding G.S. 115C-11, as amended by this act, the current
student advisor and the local superintendent advisor members serving on the State Board of
Education as of the effective date of this Part shall serve the remainder of their terms.
Thereafter, as terms expire, or when a vacancy occurs prior to the expiration of a term, the
student advisor and local superintendent advisor members on the State Board shall be
appointed by the Superintendent of Public Instruction in accordance with G.S. 115C-11, as
amended by this act.
SECTION 32. Notwithstanding G.S. 115C-218, as amended by this act, the current
members serving on the North Carolina Charter Schools Advisory Board as of the effective
date of this Part shall serve the remainder of their terms. For the two terms appointed by the
Governor expiring in 2017, one member shall be appointed by the General Assembly upon the
recommendation of the Speaker of the House of Representatives, in accordance with
G.S. 120-121, and one member shall be appointed by the State Board of Education in
accordance with G.S. 115C-218. For the one term appointed by the Governor expiring in 2019,
that member shall be appointed by the General Assembly upon the recommendation of the
President Pro Tempore of the Senate, in accordance with G.S. 120-121. As terms expire
thereafter or as vacancies occur prior to the expiration of a term, the members on the North
Carolina Charter Schools Advisory Board shall be appointed in accordance with
G.S. 115C-218, as amended by this act. If a vacancy occurs in a seat appointed by the
Governor, the State Board of Education shall fill that vacancy for the reminder of that term.
Upon expiration of that term, the member shall be appointed in accordance with
G.S. 115C-218.
SECTION 33. Sections 1 through 6 and Sections 8 through 32 of this Part become
effective January 1, 2017. The remainder of this Part is effective when it becomes law.
PART II. MODIFY APPOINTMENT OF UNC BOARDS OF TRUSTEES

SECTION 35. G.S. 116-31 reads as rewritten:
" 116-31. Membership of the boards of trustees.
(a) All persons who, as of June 30, 1972, are serving as trustees of the regional
universities and of the North Carolina School of the Arts, redesignated effective August 1,
2008, as the "University of North Carolina School of the Arts," except those who may have
been elected to the Board of Governors, shall continue to serve for one year beginning July 1,
1972, and the terms of all such trustees shall continue for the period of one year.
(b) Effective July 1, 1972, a separate board of trustees shall be created for each of the
following institutions: North Carolina State University at Raleigh, the University of North
Carolina at Asheville, the University of North Carolina at Chapel Hill, the University of North
Carolina at Charlotte, the University of North Carolina at Greensboro, and the University of
North Carolina at Wilmington. For the period commencing July 1, 1972, and ending June 30,
1973, each such board shall be constituted as follows:
(1) Twelve or more persons elected prior to July 1, 1972, by and from the
membership of the Board of Trustees of the University of North Carolina,
and
(2) The president of the student government of the institution, ex officio.
(c) If any vacancy should occur in any board of trustees during the year beginning July
1, 1972, the Governor may appoint a person to serve for the balance of the year.
(d) Except as provided in G.S. 116-65, effective July 1, 1973, each of the 16 institutions
of higher education set out in G.S. 116-2(4) shall have board of trustees composed of 13
persons chosen as follows:
(1) Eight elected by the Board of Governors,Governors.

(2) Four appointed by the Governor, and

(2a) Four members appointed by the General Assembly under G.S. 120-121, two
of whom shall be appointed upon the recommendation of the President Pro
Tempore of the Senate and two of whom shall be appointed upon the
recommendation of the Speaker of the House of Representatives.
(3) The president of the student government ex officio.
The Board of Trustees of the North Carolina School of Science and Mathematics shall be
established in accordance with G.S. 116-233.
(e) From and after July 1, 1973, theThe term of office of all trustees, except the ex
officio member, shall be four years, commencing on July 1 of odd-numbered years. In every
odd-numbered year the Board of Governors shall elect four persons to each board of trustees
and the Governor General Assembly shall appoint two persons one person upon the
recommendation of the President Pro Tempore of the Senate and one person upon the
recommendation of the Speaker of the House of Representatives to each such board.
(g) From and after July 1, 1973, anyAny person who has served two full four-year
terms in succession as a member of a board of trustees shall, for a period of one year, be
ineligible for election or appointment to the same board but may be elected or appointed to the
board of another institution.
(h) No member of the General Assembly or officer or employee of the State, The
University of North Carolina, or any constituent institution shall be eligible for election or
appointment as a trustee. No spouse of a member of the General Assembly, or of an officer or
employee of a constituent institution may be a trustee of that constituent institution. Any trustee
who is elected or appointed to the General Assembly or who becomes an officer or employee of
the State, The University of North Carolina, or any constituent institution or whose spouse is
elected or appointed to the General Assembly or becomes an officer or employee of that
constituent institution shall be deemed thereupon to resign from his or her membership on the
board of trustees.
(i) No person may serve simultaneously as a member of a board of trustees and as a
member of the Board of Governors. Any trustee who is elected or appointed to the Board of
Governors shall be deemed to resign as a trustee effective as of the date that his or her term
commences as a member of the Board of Governors.
(j) From and after July 1, 1973, wheneverWhenever any vacancy shall occur in the
membership of a board of trustees among those appointed by the Governor,General Assembly,
it shall be the duty of the secretary of the board to inform the Governor General Assembly of
the existence of such vacancy, and the Governor shall appoint a person to fill the unexpired
term, vacancy shall be filled as provided in G.S. 120-122, and whenever any vacancy shall
occur among those elected by the Board of Governors, it shall be the duty of the secretary of
the board to inform the Board of Governors of the existence of the vacancy, and the Board of
Governors shall elect a person to fill the unexpired term. Whenever a member shall fail, for any
reason other than ill health or service in the interest of the State or nation, to be present for
three successive regular meetings of a board of trustees, his or her place as a member shall be
deemed vacant."
SECTION 36. G.S. 116-233 reads as rewritten:
" 116-233. Board of Trustees; appointment; terms of office.
(a) Notwithstanding the provisions of G.S. 116-31(d), there shall be a Board of Trustees
of the School, which shall consist of up to 30 members as follows:
(1) Thirteen members who shall be appointed by the Board of Governors of The
University of North Carolina, one from each congressional district.
(2) Four members without regard to residency who shall be appointed by the
Board of Governors of The University of North Carolina.

(3) Three members, ex officio, who shall be the chief academic officers,
respectively, of constituent institutions. The Board of Governors shall in
1985 and quadrennially thereafter designate the three constituent institutions
whose chief academic officers shall so serve, such designations to expire on
June 30, 1989, and quadrennially thereafter.
(4) The chief academic officer of a college or university in North Carolina other
than a constituent institution, ex officio. The Board of Governors shall
designate in 1985 and quadrennially thereafter which college or university
whose chief academic officer shall so serve, such designation to expire on
June 30, 1989, and quadrennially thereafter.
(5) Two Three members appointed by the General Assembly upon the
recommendation of the President Pro Tempore of the Senate in accordance
with G.S. 120-121.
(6) Two Three members appointed by the General Assembly upon the
recommendation of the Speaker of the House of Representatives in
(7) Two members appointed by the Governor.
(8) The president of the student government, ex officio, who shall be a
nonvoting member.
(9) Up to two additional nonvoting members selected at the discretion of the
chancellor and the Board of Trustees, with terms expiring June 30 of each
year.
(b) Appointed members of the Board of Trustees shall be selected for their interest in
and commitment to public education and to the purposes of the School, and they shall be
charged with the responsibility of serving the interests of the whole State. In appointing
members, the objective shall be to obtain the services of the best qualified persons, taking into
consideration the desirability of diversity of membership, including men and women,
representatives of different races, and members of different political parties.
(c) No member of the General Assembly or officer or employee of the State, the
School, The University of North Carolina, or of any constituent institution of The University of
North Carolina, shall be eligible to be appointed to the Board of Trustees except as specified
under subdivision (3) of subsection (a) of this section. No spouse of a member of the General
Assembly, or of an officer or employee of the school may be a member of the Board of
Trustees. Any appointed trustee who is elected or appointed to the General Assembly or who
becomes an officer or employee of the State, except as specified under subdivision (3) of
subsection (a) of this section, or whose spouse is elected or appointed to the General Assembly
or becomes such an officer or employee of the School, shall be deemed thereupon to resign
from his or her membership on the Board of Trustees. This subsection does not apply to ex
officio members.
(d) Members appointed under subdivisions (1) or (2) of subsection (a) of this section
shall serve staggered four-year terms expiring June 30 of odd numbered years.
(d1) Only an ex officio member shall be eligible to serve more than two successive
terms.
(d2) Any vacancy in the membership of the Board of Trustees appointed under
G.S. 116-233(a)(1) or (2) shall be reported promptly by the Secretary of the Board of Trustees
to the Board of Governors of The University of North Carolina, which shall fill any such
vacancy by appointment of a replacement member to serve for the balance of the unexpired
term. Any vacancy in members appointed under G.S. 116-233(a)(5) or (6) shall be filled in
accordance with G.S. 120-122. Any vacancy in members appointed under G.S. 116 233(a)(7)
shall be filled by the Governor for the remainder of the unexpired term. Reapportionment of

congressional districts does not affect the right of any member to complete the term for which
the member was appointed.
(e) Of the initial members appointed under G.S. 116 233(a)(5), G.S. 116-233(a)(5) in
1985, one member shall serve a term to expire June 30, 1987, and one member shall serve a
term to expire June 30, 1989. Subsequent appointments shall be for four-year terms. The initial
members appointed under G.S. 116 233(a)(6),G.S. 116-233(a)(6) in 1985 shall be appointed for
terms to expire June 30, 1987. Subsequent appointments shall be for two-year terms. The initial
members appointed under G.S. 116 233(a)(7) shall be appointed for terms to expire January 15,
1989. Successors shall be appointed for four year terms.terms until January 15, 2017, at which
point subsequent appointments shall be for four-year terms.
(e1) The initial members appointed under G.S. 116-233(a)(5) and (6) in 2017, and
successors of those members, shall serve four-year terms.
(f) Whenever an appointed member of the Board of Trustees shall fail, for any reason
other than ill health or service in the interest of the State or nation, to be present at three
successive regular meetings of the Board, his or her place as a member of the Board shall be
deemed vacant."
SECTION 37. This Part is effective when it becomes law and applies to (i)
vacancy appointments made on or after that date and (ii) appointments to fill terms expiring
January 15, 2017, and thereafter. A vacancy by any board member appointed by the Governor
to any board affected by this Part shall be filled by joint recommendation of the Speaker of the
House of Representatives and the President Pro Tempore of the Senate, as provided in
G.S. 120-121. The terms of members holding office as of the effective date of this Part shall not
be affected.
PART III. SENATE CONFIRMATION OF CABINET APPOINTEES

SECTION 38. G.S. 143B-9 reads as rewritten:
" 143B-9. Appointment of officers and employees.
(a) The head of each principal State department, except those departments headed by
popularly elected officers, shall be appointed by the Governor and serve at his the Governor's
pleasure. The salary of the head of each of the principal State departments shall be set by the
Governor, and the salary of elected officials shall be as provided by law.
For each head of each principal State department covered by this subsection, the Governor
shall notify the President of the Senate of the name of each person to be appointed, and the
appointment shall be subject to senatorial advice and consent in conformance with Section 5(8)
of Article III of the North Carolina Constitution unless (i) the senatorial advice and consent is
expressly waived by an enactment of the General Assembly or (ii) a vacancy occurs when the
General Assembly is not in regular session. Any person appointed to fill a vacancy when the
General Assembly is not in regular session may serve without senatorial advice and consent for
no longer than the earlier of the following:
(1) The date on which the Senate adopts a simple resolution that specifically
disapproves the person appointed.
(2) The date on which the General Assembly shall adjourn pursuant to a joint
resolution for a period longer than 30 days without the Senate adopting a
simple resolution specifically approving the person appointed.
(b) The head of a principal State department shall appoint a chief deputy or chief
assistant, and such chief deputy or chief assistant shall not be subject to the North Carolina
Human Resources Act. The salary of such chief deputy or chief assistant shall be set by the
Governor. Unless otherwise provided for in the Executive Organization Act of 1973, and
subject to the provisions of the Personnel Human Resources Act, the head of each principal
State department shall designate the administrative head of each transferred agency and all
employees of each division, section, or other unit of the principal State department."

SECTION 39. This Part is effective when it becomes law.
PART IV. ESTABLISH TASK FORCE FOR SAFER SCHOOLS; TRANSFER CENTER
FOR SAFER SCHOOLS
SECTION 41.1.(a) Effective December 15, 2016, the Center for Safer Schools is
hereby moved to the Department of Public Instruction, Division of Safe and Healthy Schools
Support. This transfer shall have all of the elements of a Type I transfer, as defined in
G.S. 143A-6.
SECTION 41.1.(b) Article 8C of Chapter 115C of the General Statutes is amended
by adding two new sections to read:
" 115C-105.55. Establish Task Force for Safer Schools.
(a) Task Force Established. There is hereby created the Task Force for Safer Schools
within the North Carolina Department of Public Instruction.
(b) Membership. The Task Force shall consist of 25 members. The composition of the
Task Force shall include all of the following:
(1) The Secretary of the Department of Public Safety or the Secretary's
designee.
(2) The Secretary of the Department of Health and Human Services or the
Secretary's designee.
(3) A member of the State Board of Education appointed by the Governor.
(4) Two local school board members appointed by the Chair of the State Board
of Education.
(5) A representative from the North Carolina Department of Public Safety,
Division of Emergency Management, appointed by the Secretary of the
Department of Public Safety.
(6) A representative from the North Carolina Justice Academy appointed by the
Attorney General.
(7) A member of the Governor's Crime Commission appointed by the Governor.
(8) Two local law enforcement officers appointed by the Governor.
(9) Two public school administrators appointed by the Chair of the State Board
of Education.
(10) A public school teacher appointed by the Chair of the State Board of
Education.
(11) A public school psychologist appointed by the Governor.
(12) A public school resource officer appointed by the Governor.
(13) Two high school students currently enrolled at public high schools appointed
by the Governor.
(14) A parent of a currently enrolled public school student appointed by the
Governor.
(15) A juvenile justice professional appointed by the Governor.
(16) A North Carolina licensed social worker appointed by the Governor.
(17) A North Carolina licensed school counselor appointed by the Governor.
(18) An expert in gang intervention and prevention in schools appointed by the
Governor.
(19) Three at-large members appointed by the Governor.
(c) Appointment of Chair and Vice-Chair. The Governor shall appoint a Chair and
Vice-Chair from among the membership of the Task Force. The Chair and Vice-Chair shall
serve at the pleasure of the Governor.
(d) Terms; Vacancies. Effective December 1, 2016, all members shall be appointed
for a term of four years. Members may be reappointed to successive terms. Any appointment to

fill a vacancy on the Task Force created by the resignation, dismissal, death, disability, or
disqualification of a member shall be for the balance of the unexpired term.
(e) Removal. The Governor shall have the authority to remove any member of the
Task Force for misfeasance, malfeasance, or nonfeasance, pursuant to the provisions of
G.S. 143B-13.
(f) Per Diem, Etc. Members of the Task Force may receive necessary per diem,
subsistence, and travel allowances in accordance with G.S. 120-3.1, 138-5, or 138-6, as
appropriate.
" 115C-105.56. Task Force for Safer Schools; powers and duties.
The Task Force shall have all of the following duties:
(1) To serve as an advisory board to the Center for Safer Schools.
(2) To provide guidance and recommendations to the Governor, Superintendent
of Public Instruction, and the General Assembly to improve statewide policy
to enhance statewide and local capacities to create safer schools.
(3) To encourage interagency collaboration among State and local government
agencies to achieve effective policies and streamline efforts to create safer
schools.
(4) To Assist the Center for Safer Schools in collecting and disseminating
information on recommended best practices and community needs related to
creating safer schools in North Carolina.
(5) Other duties as assigned by the State Board of Education."
PART V. SEVERABILITY CLAUSE AND EFFECTIVE DATE

SECTION 42. If any provision of this act or its application is held invalid, the
invalidity does not affect other provisions or applications of this act that can be given effect
without the invalid provisions or application, and to this end, the provisions of this act are
severable.
SECTION 43. Except as otherwise provided, this act is effective when it becomes
law.
In the General Assembly read three times and ratified this the 16th day of December,
2016.
s/ Daniel J. Forest
President of the Senate
s/ Tim Moore
Speaker of the House of Representatives
s/ Pat McCrory
Governor
Approved 4:30 p.m. this 19th day of December, 2016

Exhibit C
12/29/2016
NC State Board Of Education vs. State of North Carolina
1 STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

2 COUNTY OF WAKE 16-CVS-15607
3
NORTH CAROLINA STATE )
4 BOARD OF EDUCATION, )
)
5 Plaintiffs, )
)
6 vs. )
)
7 THE STATE OF NORTH )
CAROLINA, )
8 )
Defendant. )
9 )
)
10
11
12
BEFORE: THE HONORABLE DONALD STEPHENS
13
14
15
TRANSCRIPT OF HEARING
16
TRANSCRIBED FROM A VIDEOTAPED PROCEEDING
17
DECEMBER 29, 2016
18
RALEIGH, NORTH CAROLINA
19
20
21
22
23
24 Reported in Stenotype by
Lauren M. McIntee, RPR
25 Transcript produced by computer-aided transcription
CaseWorks, Inc. www.caseworksonline.com 800.955.0541

12/29/2016
NC State Board Of Education vs. State of North Carolina Page 6
1 MS. VYSOTSKAYA: That is fine.

2 THE COURT: I apologize. That's not
3 something that I would normally do. At least we'll
4 know who I'm talking to. Otherwise, it might be
5 confusing.
6 All right. I read the complaint. Looks kind
7 of straightforward to me. So I don't know, I kind
8 of had more questions about the specific injunctive
9 relief that the Plaintiffs seek today, and whether
10 or not this Court has jurisdiction to do anything in
11 view of the past legislation that sort of gives the
12 senior resident judge in the county of which an
13 action like this is filed, the administrative use of
14 notifying the Chief Justice that such a lawsuit is
15 filed, that it is a claim that facially challenges
16 the constitutionality of an act of the General
17 Assembly, and to request the Chief Justice to
18 appoint three judges to a panel of superior court to
19 hear and consider the constitutional challenge.
20 The law is unclear as to what the presiding
21 or senior resident judge in the county in which the
22 action is filed has the authority to do beyond that.
23 However, the law does not specifically say the court
24 shall not, may not, cannot restrain legislation of
25 the General Assembly that's challenged as

YVer1f
12/29/2016
1 statute that may be, significantly likely to be,

2 unconstitutional on its face.
3 I mean what happens in the middle of all that
4 void? And why -- and that's, well, the first
5 question. The second question is in terms of the
6 immediacy of this law taking effect. What is the
7 immediacy of this law needing to take effect from
8 the interest of the people of North Carolina and the
9 State of North Carolina? What is it about that,
10 this law?
11 It will change dramatically the whole concept
12 of how education is handled. And if it turns out
13 the legislature got it wrong and we find out 6, 8,
14 9, 10, 12 months later, just think about the
15 disruption that that would cause. What is it that
16 is so important about having this law put into
17 effect on January the 1st of 2017?
18 MR. MAJMUNDAR: As to your first question,
19 the General Assembly was silent as to what to do in
20 these circumstance of -- situation, factual
21 situation.
22 THE COURT: Sure.
23 MR. MAJMUNDAR: And so we can only infer from
24 what the General Assembly did say and what they
25 meant and who, which court would be responsible for

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12/29/2016
1 MR. ORR: -- the irreparable harm when you're

2 ready.
3 THE COURT: Let me talk about, let me see,
4 let me talk -- just a moment. Still got to decide
5 you're right.
6 MR. ORR: Sure.
7 THE COURT: I see a lot of these challenges,
8 alleged unconstitutional passages. Most of them,
9 when you look at them it's clear on their face
10 there's no basis to it at all, period. Period.
11 Someone just trying to make a statement, trying to
12 make a point, trying to show objection, but they
13 don't have any place in a, in a court.
14 I don't see any ambiguity here. I don't know
15 why all of a sudden one arose, and I don't know how
16 it arose or where in the constitution that something
17 would suggest that it arose. Can you help me
18 understand this?
19 MR. MAJMUNDAR: I'll try, your Honor. The,
20 the constitution does vest the Board of Education
21 with authority, but the extent of the authority is
22 subject to the laws in the General Assembly. The
23 General Assembly has its own constitution.
24 THE COURT: Where?
25 MR. MAJMUNDAR: In Article IX, Section 5.

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12/29/2016
1 THE COURT: Okay. And that's a fairly easy

2 balancing test, wouldn't it? A theoretical harm to
3 the State and a real, practical harm to an agency
4 that's constitutionally mandated to care for, care
5 for the public school children of the state.
6 MR. MAJMUNDAR: Yes, sir.
7 THE COURT: So we're going to balance the
8 harm to the public school children of this state
9 based upon potential harm to them or the theoretical
10 harm that the, would be caused by a declaration
11 that, a potential declaration that the legislature
12 built a bridge too far.
13 MR. MAJMUNDAR: That is the balancing test,
14 your Honor. I would draw your attention to Page 12
15 of the complaint.
16 THE COURT: All right.
17 MR. MAJMUNDAR: The damages cited by
18 Plaintiffs on Page 12 relate to uncertainties
19 associated with the making this portion of the
20 statutes effective. There is no firm, fixed
21 identifiable harm, but what might happen. And the
22 Court of Appeals has said, you know, illusory-type
23 damages are not sufficient with the TRO standards.
24 THE COURT: Well, sometimes when you close
25 down an agency, it is almost impossible to quantify

YVer1f
12/29/2016
1 STATE OF NORTH CAROLINA
2 COUNTY OF WAKE
4 REPORTER'S CERTIFICATE
5 I, LAUREN M. MCINTEE, Registered Professional
6 Reporter and Notary Public for the State of North
7 Carolina, certify that I was authorized to and did
8 stenographically transcribe the foregoing proceeding
9 from a video recording, and that the transcript is a
10 true and accurate record of the testimony to the best of
11 my ability.
12 I further certify that I am not a relative,
13 employee, attorney, or counsel of any of the parties,
14 nor am I a relative or employee of any of the parties'
15 attorneys or counsels connected with the action, nor am
16 I financially interested in the action.
17
18 Dated this 3rd day of January, 2017.
19
20 LAUREN McINTEE, RPR, Notary Public

Notary Number: 201616600044
21
22
23
24
25

Exhibit D
F.nED
ut ... ~
NORTH CAROLINA GENERAL COURT OF JUSTICE
WAKE COUNTY 1016 DEC 29 Pl1 3: Stl SUPERI?~g$~t~~JVISION
NORTH CAROLINA STATE WAI<E COUI\1) C.S.C.
BOARD OF EDUCATION, BY...-...-----(~~-------
Plaintiff,
v. TEMPORARY RESTRAINING ORDER
THE STATE OF NORTH CAROLINA,

Defendant.
THIS MATTER is before the Court on the Plaintiff North Carolina State Board of
Education's motion for temporary restraining order.
The Court has considered the verified complaint and the arguments and submissions of
counsel in attendance at the hearing on this motion. The Board's counsel were present at the
hearing, and advised the Court that they had given the Defendant, the State of North Carolina,
notice of the Board's intent to seek a temporary restraining order. The State's counsel were
present at the hearing.
IT APPEARS to the Court that good cause exists to grant the motion.
First, the Board has shown that it is 1ikely to succeed on the merits. It is well-settled that
when a constitution expressly confers certain powers and duties on an entity, those powers and
duties cannot be transferred to someone else without a constitutional amendment. Article IX,
Section 5 of the North Carolina Constitution expressly confers certain "powers and duties" on
the Board. Those constitutional powers and duties include:
the power and duty to "supervise ... the free public school system";
the power and duty to "administer the free public school system";
the power and duty to "supervise ... the educational funds provided for [the free
public school system's] support"; and
the power and duty to "administer ... the educational funds provided for [the free
public school system's] support."
The provisions of Session Law 2016-126 challenged in the verified complaint
(hereinafter "the Transfer Legislation") attempt to transfer these constitutional powers and
duties, however, from the Board to the Superintendent of Public Instruction. Thus, the Board is
likely to succeed on the merits of its claims that the Transfer Legislation is unconstitutional.
Second, the Transfer Legislation will cause irreparable harm if not immediately enjoined.
As a matter of law, violations of the North Carolina Constitution constitute per se irreparable
harm. As described above, the Board is likely to succeed on the merits of its claims that the
Transfer Legislation is unconstitutional. Therefore, no further showing of irreparable harm is
required. Even if a further showing of irreparable harm were required, moreover, the Transfer
Legislation threatens to cause irreparable harm to the Board, the employees of the public school
system, and-most importantly-North Carolina's 1.5 million public school students unless the
status quo is preserved. Thus, there is sufficient irreparable harm to warrant immediate
injunctive relief.
Third, the balance of equities also favors granting immediate injunctive relief. As
described above, without immediate injunctive relief, the Transfer Legislation will cause
irreparable harm. Conversely, immediate injunctive relief will not result in any harm. The
Board has exercised its constitutional powers and fulfilled its constitutional duties for the past
148 years. Allowing the Board to continue doing so while this case is resolved only preserves
this longstanding status quo.
2
WHEREFORE, the Board's motion for temporary restraining order is GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that until a
decision on the Board's motion for preliminary injunction:
(a) The State is restrained and enjoined from taking any action to implement or
enforce the Transfer Legislation.
(b) Under Rule 65(d) of the North Carolina Rules of Civil Procedure, the State's
"officers, agents, servants, employees, and attorneys, and . . . those persons in
active concert or participation with them who receive actual notice in any manner
of [this] order by personal service or otherwise" are likewise enjoined from taking
any action to implement or enforce the Transfer Legislation.
Counsel for the Board shall serve copies of this order on the Chief Deputy Attorney
General, the President Pro Tempore of the North Carolina Senate, the Speaker of the North
Carolina House of Representatives, and the Superintendent of Public Instruction-Elect.
Unless the State consents to an extension of this temporary restraining order, the Board's
motion for preliminary injunction shall ~e heard before the undersigned Superior Court Judge
So ordered the 29th day of December at ~Vp.m.
The Honorable Donald W. Stepliens

Senior Resident Superior Court Judge
Wake County Superior Court
3
' '
The undersigned hereby certifies that a copy of the foregoing document was served by
hand-delivery to the following:
State ofNorth Carolina

c/o Grayson G. Kelley
Chief Deputy Attorney General
North Carolina Attorney General's Office
114 W Edenton Street
Raleigh, North Carolina 27603
The Honorable Philip E. Berger

President Pro Tempore of the North Carolina Senate
Legislative Building
16 W. Jones Street, Room 2007
The Honorable Timothy K. Moore

Speaker of the North Carolina House of Representatives
Legislative Building
16 W. Jones Street, Room 2304
Mark Johnson
2680 Arbor Place Ct.
Winston-Salem, North Carolina 27104
This the 30th day ofDecember, 2016.
4
Exhibit E
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
COUNTY OF WA~~ .JUL I Ll PH 2: 27 SUPERIOR COURT DIVISION
FILE NO: 16 CVS 15607
vVt~.KE. COUhJT\~ C.S.C.
r.'\1
NORTH CAROLINA STATBBGARD- )
OF EDUCATION, )
Plaintiff, .)
)
vs. ) ORDER
)
THE STATE OF NORTH CAROLINA )
AND MARK JOHNSON, in his official )
capacity, )
Defendants. )
This cause came on for hearing before the undersigned three-judge panel
presiding at the 29 June 2017 special setting of the Wake County Superior Court upon the
tnotion for summary j~dgment filed by the North Carolina State Board of Education
("State Board"), the 1notion to distniss filed by the State of North Carolina, and the
n1otion for sutntnary judgment filed by the Notth Carolina Superintendent of Public
Instruction, Mark Johnson ("Superintendent"). Given that the Court has considered
tnatters outside the face of the pleadings with regard to each of the parties' arguments,
and therefore upon its own motion convetts the state's motion to dismiss into a n1otion
for sun1mary judgment pursuant to Rule 56 of the Notth Carolina Rules of Civil
Procedure.
Whereupon, having considered arguments and materials submitted, the Court
concludes that there is no genuine issue as to any tnaterial fact; that the State Board has
failed to satisfy its burden of proof as to the facial unconstitutionality of any provision of
the statute; and that the State of North Carolina and the Superintendent are entitled to
judgment as a matter of law. For that reason, summary judgment is granted to the State of
1
North Carolina and the Superintendent, and the State Board's motion for summary
judgtnent is denied.
This Co uti futiher notes that pending hearing in this matter there has been in
effect a prelitninary injunction whereby the impletnentation and enforcetnent of the
statute has been enjoined. This Court notes that there is a likelihood of appeal from this
order, including likely requests that the effect of this order be stayed pending such
appeals. It is futiher ordered that the effect of this order and the implementation and
entorcetnent ofthe challenged provisions ofS.L. 2016-126 shall be and hereby are
restrained and enjoined for a period of 60 days pending further orders of this court or any
appellate cou11 having jurisdiction over this matter so as to allow any motions by any of
the patties herein requesting additional stays or dissolution of this stay pending appeal of
this tnatter.
This the 30th day of June, 2017.
The Honorable James F. Ammons, Jr.

rt~.#__b-_
The Honorable Mat1in B. McGee
Senior Resident Superior Cout1 Judge
2
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~ '. o Pt - t ~'. .,., '
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

COUNTY OF '2fflJL \ 4 PH 2: 27 . SUPERIOR COURT DIVISION
FILE NO: 16 CVS 15607
NORTH CARO~~A._STAIEJ3..QARD )
OF EDUCATION, )
Plaintiff, )
)
vs. ) MEMORANDUM OF
) OPINION
THE STATE OF NORTH CAROLINA )
AND MARK JOHNSON, in his Official )
Capacity, )
Defendants. )
This cause came on for hearing before the undersigned three-judge panel
presiding at the 29 June 2017 special setting of the Wake County Superior Court, upon
the motion for summary judgment filed by the North Carolina State Board of Education
("State Board"), the motion to dismiss filed by the State ofNorth Carolina, converted on
motion of the Court to a motion for summary judgment, and the tnotion for summary
judgment filed by the North Carolina Superintendent of Public Instruction, Mark Johnson
("Superintendent"). In its Order, filed separately, this Court granted the motions for
summary judgment filed by the Defendants and denied the Plaintiffs motion, for the
reasons explained below.
Acts of the General Assembly are presumed constitutional, and courts will declare
them unconstitutional only when "it [is] plainly and clearly the case." State ex rei. Martin
v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 478 (1989) (quoting Glenn v. Bd. of
Educ., 210 N.C. 525, 529-30, 187 S.E. 781, 784 (1936). The party alleging the
unconstitutionality of a statute has the burden of proving beyond a reasonable doubt that
the statute is unconstitutional. Baker v. Martin, 330 N.C. 331,334-35,410 S.E.2d 887,
1
889 (1991). Where a statute is susceptible of two interpretations, one of which is
constitutional and the other not, the coutts will adopt the fonner and reject the latter.
Wayne County Citizens Association for Better Tax Control v. fVayne County Board or
Commissioners, 328 N.C. 24, 29, 399 S.E.2d 311, 315 (1991 ). Thus, courts afford great
deference to acts of the General Assembly. The Court does not concern itself with
political questions, nor with the wisdom of the legislation at hand. This Court has
attempted to follow each of these principles in arriving at its decision.
This case involves a challenge to statutes which the Plaintiff alleges violate the
following provisions of the North Carolina Constitution:
The State Board of Education shall supervise and administer the free public
school syste~ and the educational funds provided for its support, except the funds
mentioned in Section 7 of this Article, and shall make all needed rules and
regulations in relation thereto, subject to laws enacted by the General Assembly.
N.C. Const. art. IX, 5.
The Superintendent of Public Instruction shall be the secretary and chief

administrative officer of the State Board of Education.
N.C. Const. art. IX, 4(2).
The legislation in question, Session Law 2016-126, transfers a number of powers
and authorities from the State Board to the Superintendent. In addition to other changes,_
particular portions of the legislation provide as follows:
1) That the Superintendent "have under his or her direction and control, all
matters relating to the direct supervision and administration of the public
school system." (amending G.S. 115C-21(a)(5) and replacing prior language
giving the Superintendent the power to "manage all those matters relating to
the supervision and administration of the public school system that the State
Board delegates to the Superintendent of Public Instruction.").
2
2) That the Superintendent has the power to "administer funds appropriated for
the operations of the State Board of Education and for aid to local school
administrative units." (amending G.S. 115C-21(b)(1b). Contemporaneously
with this amendment, the General Assembly amended G.S. 115C-408(a) by
adding the following language to that section: "The Superintendent of Public
Instruction shall administer any available educational funds through the
Department of Public Instruction in accordance with all needed rules and
regulations adopted by the State Board of Education.").
3) That the State Board shall establish "all needed rules and regulations" for the
system of free public schools ... (amending G.S. 115C-12 by substituting the
words "all needed rules and regulations" for "policy" in the previous version.
The Act also adds the following language to the same provisions: "In
accordance with Sections 7 and 8 of Article III of the North Carolina
Constitution, the Superintendent of Public Instruction, as an elected officer
and Council of State member,_ sh~ll administer all needed rules and regulations
adopted by the State Board of Education through the Department of Public
Instruction.").
The State Board contends that these provisions, among others, are in violation of
Article IX, 5, of the North Carolina Constitution, arguing that the powers transferred
are the State Board's constitutional powers to supervise and administer the public school
system. In its filings, the State Board complains of a total of62 provisions ofS.L. 2016-
126, contending that its constitutional powers are diminished by such legislation. The
State of North Carolina and the Superintendent argued that any diminution of authority
3
and powers is allowed by the final clause of Article IX, 5, making the State Board's
powers "subject to laws enacted by the General Assembly." This Court concludes that
many of the provisions ofS.L. 2016-126, particularly those which were not specifically
addressed by the Plaintiffs in their briefs and oral arguments, simply shift the details of
day-to-day operations, such as hiring authority, from the State Board to the
Superintendent. This Court further concludes that those aspects of the legislation appear
to fall well within the constitutional authority of the General Assembly to define specifics
of the relationship between the State Board of Education and the Superintendent of
Public Instruction.
North Carolina's Constitution establishes two entities responsible for the
governance of the public school system: the State Board and the Superintendent. The
allocation of powers and duties between these two constitutional entities has changed
over time such that there has been an ebb and flow of the powers of each entity over the
years, depending on various acts of legislation. Nevertheless, it appears to be the clear
intent of the Constitution that the State Boar4 shall have the primary authority to
supervise and administer the free public school systeJ;n and the educational funds
provided for the support thereof, and that the State Board is empowered to make all
needed rules and regulations related to each of those functions, subject to laws passed by
the General Assembly. It also appears clear that as secretary to the State Board and chief
administrative officer of the State Board, the Superintendent is primarily responsible for
overseeing the day-to-day management and operations of the state's free public school
system.
4
While the parties disagree as to what, if any, limits are placed on the power of the
General Assembly to shift responsibilities back and forth between the State Board and
Superintendent, this Court does not consider it necessary to articulate a precise definition
on that boundary. Suffice it to say, it is at least abundantly clear to this Court that this
action by the General Assembly in enacting S.L. 2016-126 is not such a pervasive
transfer of powers and authorities so as to transfer the inherent powers of the State Board
to supervise and administer the public schools, nor does it render the State Board an
"empty shell," nor does this action, which Plaintiffs contend to be an infringement upon
the constitutional powers and duties of the State Board of Education, operate to
"unnecessarily restrict [the State Board of Education] engaging in constitutional duties."
State v. Camacho, 328 N.C. 24, 29,399 S.E.2d 311,315 (1991).
Because it considers the aforementioned itemized portions of the legislation as
presenting the most serious constitutional challenge, this Court now addresses
specifically each of those three provisions.
First, the State Board challenges the grant of power to the Superintendent under
G.S. 115C-21 (a)(S) to "have under his or her direction and control, all matters relating to
the direct supervision and administration of the public school system." This Court
concludes that this language does not transfer the State Board's power, but rather
empowers the Superintendent to manage the day-to-day operations of the school system,
subject to general oversight by the State Board. Contemporaneously with this
amendment, the General Assembly placed a limit on the Superintendent's authority in
this subsection through the requirement, in S.L. 2016-126 2 (amending N.C. Gen. Stat.
115C-12), that "[t]he State Board of Education shall establish all needed rules and
5
regulations for the system of free public schools, subject to laws enacted by the General
Assembly. In accordance with Sections 7 and 8 of Article III of the North Carolina
Constitution, the Superintendent of Public Instruction, as an elected officer and Council
of State member, shall administer all needed rules and regulations adopted by the State
Board of Education through the Department of Public Instruction." The legislation further
clarifies the Superintendent's role by providing in S.L. 2016-126, 3, that "[t]he
Superintendent of Public Instruction shall carry out the duties prescribed under G.S.
115C-21 as the administrative head of the Department of Public Instruction. The
Superintendent of Public Instruction shall administer all needed rules and regulations
adopted by the State Board of Education[.]" These subsections places a limit on the
Superintendent's power, leaving the ultimate authority to supervise and administer the
public school system with the State Board.
Second, the State Board challenges the grant of authority to the Superintendent to
"administer funds appropriated for the operations of the State Board of Education and for
aid to local school administrative units." Again, ~he statute provides a limiting principle
for this exercise of a1:1thority by the Superintendent, providing in S .L. 2016-126 5 that
"[t]he Superintendent of Public Instruction shall administer any available educational
funds through the Department of Public Instruction in accordance with all needed rules
and regulations adopted by the State Board of Education," thereby leaving the ultimate
authority to supervise and administer the school system's funds with the State Board.
Third, the State Board challenges the removal of"policy," and its replacement
with "all needed rules and regulations" in G.S. 115C-12. This Court concludes that
deletion of the word "policy" does not change the constitutional role of the State Board of
6
.. .,.
Education. The North Carolina Constitution does not provide that the State Board
establish "policy," but rather "rules and regulations" related to its authority to supervise
and administer the schools. This provision does not conflict with the roles of the parties
as defined by the state constitution.
As noted previously, the State Board does not discuss in detail the additional
provisions "vhich it identifies in its complaint, and these provisions represent a
permissible shift of day-to-day authority front the State Board to the Superintendent.
Because the statute continues to provide that the State Board supervise and
administer the public schools and make all necessary rules and regulations to carry out
that function, and because the Superintendent's duties are limited by that power of the
State Board, the plaintiff has not shown that this legislation violates the North Carolina
Constitution. Sumrry judgment is therefore granted in favor of the defendants.
This the_b_day of July, 2017. .
a le Farrest Donald Bridges

<?;:;;--.. /L .I~,-~.
The Honorable J~. Ammons, Jr.
d~ff~-
The Honorable Martin B. McGee
7
I HEREBY CERTIFY that the foregoing document was served on all parties by serving counsel as
indicated below by U.S. _Mail, postage prepaid, addressed as follows, with a courtesy copy via
electronic mail:
Robert F. Orr
Robert F. Orr, PLLC
3434 Edwards Mill, Suite 112-372
Raleigh, NC 27612
[email protected]
Andrew H. Erteschik
Poyner Spruill, LLP
PO Box 1801
[email protected]
Amar Majmundar
Raleigh, NC 27603
[email protected]
Philip R. Isley
E. Hardy Lewis
Blanchard Miller Lewis & Isley, P.A.
Raleigh, NC 27603
[email protected]
[email protected]
This the \f~ay of July, 2017.
Trial Court Administrator

PO Box 1916, Raleigh, NC 27602
Kellie.Z. Myers@ nccourts.org
Exhibit F
./
STATE OF NORTH CAROLINA FILE LIN THE GENERAL COURT OF JUSTICE
COUNTY OF WAKE 16-CVS-15607
NORTH CAROLINASTAT,E ., ,~,::-:' r -::- C

BOARDOFEDUCATION," :.c.'."''''-' 0
Ey_,"~_,._,,....,._ ~~~--,.~-~-.,..."~. . . . ~- ..
Plaintiff,
v. NOTICE OF APPEAL
THE STATE OF NORTH CAROLINA, and

Defendants.
Plaintiff North Carolina State Board of Education hereby gives notice of
appeal to the North Carolina Court of Appeals from the 14 July 2017 order of the
three-judge panel of the Wake County Superior Court, which denied Plaintiffs
motion for summary judgment and granted summary judgment to Defendants the
State of North Carolina and Superintendent of Public Instruction Mark Johnson.
Respectfully submitted the 20th day of July, 2017.
By:
Andrew H. Erteschik
orr@rforr law .com [email protected]
3434 Edwards Mill, Suite 112-372 P.O. Box 1801
Raleigh, NC 27612 Raleigh, NC 27602-1801
Telephone: (919) 608-5335 Telephone: (919) 783-2895
Facsimile: (919) 783-1075
NORTH CAROLINA STATE COUNSEL FOR PLAINTIFF
BOARD OF EDUCATION NORTH CAROLINA STATE
BOARD OF EDUCATION
The undersigned hereby certifies that a copy of the foregoing document was
served by e-mail and U.S. Mail to the following:
Amar Majmundar
Raleigh, NC 27603
Philip R. Isley
E. Hardy Lewis
Raleigh, NC 27603
This the 20th day of July, 2017.
Andrew H. Erteschik
Exhibit G
/
STATE OF NORTH CAROLINA i lN THE GENERAL COURT OF JUSTICE
. .I

COUNTY OF WAKE 16-CVS-15607
., ~-""' ::.!...!
0
-~~
NO RTH CAROLINA STATE

BOARD OF EDUCATION,
Plaintiff, ---
PLAINTIFF'S MOTION
v.
FOR TEMPORARY STAY
THE STATE OF NORTH CAROLINA, and
MARK JOHNSON, in his official cap acity,
Defendants.
Pursuant to Section 1-500 of th e North Carolina Gener al Statutes and Rules
8(a) a nd 23(c) of the North Carolina Rules of Appellate Procedure, the North
Car olina State Board of Education respectfully moves this Court for a temporary
stay of its July 14, 2017 decision pendin g the Board's appeal.
BACKGROUND
On July 14, 2017, this Court issued a decision denying t he Board's motion for
summary judgment a n d granting summary judgment to the State of North Carolina
and the Superintendent of Public Instruction ("SPI"). The Court temporarily stayed
its decision, however , "for a period of 60 days pending further orders of this court or
any appellate court h avin g jurisdiction over t his matter so as to allow any motions
by any of the par ties herein requesting additional stays or dissolution of this stay
pending appeal of this matter." July 14, 2017 Order at 2.
On July 20, 2017, the Board gave notice of appeal. The Board did not
immediately seek a temporary stay pending the appeal, however, because within
hours of the Courts July 14, 2017 decision, counsel for both the Board and the SPI
began a series of discussions about whether they could join in a motion to this Court
for a temporary stay on agreed-upon terms that both parties could accept. In other
words, before the Board brought the instant motion, it sought to resolve the issue
without Court involvement.
The discussions between the Boards counsel and the SPIs counsel continued
for over six weeks, from July 14, 2017 until August 29, 2017. These discussions
involved dozens of lengthy telephone conferences, multiple face-to-face meetings,
and virtually constant communication between both in-house counsel and outside
litigation counsel for the Board and the SPI.1 The parties could not have tried any
harder to reach an agreement, and the Board commends the SPI, the SPIs in-house
counsel, and the SPIs outside counsel for their diligence and professionalism
throughout the course of these lengthy discussions.
Unfortunately, however, the parties were ultimately unable to come to an
agreement on the terms of a temporary stay pending the Boards appeal. As a
result, unless this Court extends the 60-day stay of its decision, Session Law 2016-
126 will go into effect on September 12, 2017.
In advance of that September 12, 2017 deadline, the Board now seeks a
temporary stay.
1 The substance of those discussions, of course, is protected by Rule 408 of the

North Carolina Rules of Evidence, and will not be disclosed here.
2
ARGUMENT
I. An extension of the July 14, 2017 temporary stay during the Boards
appeal is necessary to preserve the North Carolina Constitutions
nearly 150-year-old status quo.
A trial court has the discretion to temporarily stay its denial of an injunction
on the merits when the injunction is the principal relief sought by the plaintiff and
it appears that denying said injunction will enable the defendant to consummate
the threatened act, sought to be enjoined, before such appeal can be heard, so that
the plaintiff will thereby be deprived of the benefits of any judgment of the
appellate division, reversing the judgment of the lower court . . . . N.C. Gen. Stat.
1-500.2
Section 1-500 is essentially the trial-court version of the writ of supersedeas,
the appellate writ aimed at preserv[ing] the status quo pending the exercise of the
appellate courts jurisdiction.3 City of New Bern v. Walker, 255 N.C. 355, 356, 121
S.E.2d 544, 545-46 (1961). The focus of the Section 1-500 inquiry is not the merits;
after all, in every Section 1-500 situation, the trial court has already ruled against
2 As a matter of logistics, the statute provides that the original restraining

order granted in the case shall in the discretion of the trial judge be and remain in
full force and effect until said appeal shall be finally disposed of. N.C. Gen. Stat.
1-500. Here, the Court issued a temporary restraining order on December 29, 2016
that blocked the challenged provisions of Session Law 2016-126 from taking effect.
See Exhibit A. Thus, as a logistical matter, the relief the Board seeks here (a
temporary stay of the Courts July 14, 2017 decision) would simply involve keeping
the original restraining order granted in the case . . . in full force and effect until
[the] appeal [is] finally disposed of. Id.
3 Even beyond N.C. Gen. Stat. 1-500, this Court has broad authority to enter
a stay to protect the rights of the litigants during the pendency of the appeal. See,
e.g., N.C. R. App. P. 8(a); N.C. R. App. P. 23(c).
3
the plaintiff on the merits. See N.C. Gen. Stat. 1-500. Instead, the focus of the
Section 1-500 inquiry is on preserving the status quo during the pendency of an
appeal. See id. (ensuring that the plaintiff will not be deprived of the benefits of
any judgment of the appellate division reversing the judgment of the lower court)
Section 1-500 is designed for precisely the situation here, as the North
Carolina Supreme Courts decision in GI Surplus Store, Inc. v. Hunter illustrates.
257 N.C. 206, 125 S.E.2d 764 (1962). In Hunter, the trial court ruled against the
plaintiff on the merits of its constitutional challenge, but the trial court temporarily
stayed its decision and enjoined the challenged law under Section 1-500. The
Supreme Court upheld the trial courts temporary stay as proper. Id. at 214, 125
S.E.2d at 770. In hindsight, the trial courts temporary stay was also prudent: the
Supreme Court ultimately reversed the trial court on the merits and struck down
the law as unconstitutional. Id.
Here, Section 1-500 applies in full force because a temporary stay of this
Courts decision pending the Boards appeal is necessary to preserve the North
Carolina Constitutions nearly 150-year-old status quo during the appeal.
Since the 1868 Constitution, the Board has supervised and administered the
states public schools. See Bd. Sum. J. Br. at 6-9 (detailing nearly 150-year history
of managing the states public school system). Throughout its history, the Board
has exercised these powers and carried out these duties without disruption,
regardless of the Boards or SPIs political affiliations at the time.
4
Without a temporary stay pending appeal, however, Session Law 2016-126
will move the entire $10 billion public school system under the control of a single
individual for the first time in North Carolina history. See Exhibit B, 1/4/17 Cobey
Affidavit 9. This seismic shift will generate enormous disruption for our States
public schools. Id. Worse, this seismic shift would occur overnight, without any
transition period whatsoever. Id.
As part of this disruption, the SPI would be immediately empowered to take
drastic actions that could not be undone. For example, the SPI takes the position
that he would be immediately empowered to unilaterally fire over a thousand state
employees, including key senior policymaking leaders. See Exhibit C, 9/1/17 Cobey
Affidavit 5-11. These employees could not realistically be unfired, of course, if
this Courts decision is later reversed on appeal. Id.
The SPI would also be immediately empowered to unilaterally take other
drastic actions. For example, the SPI could immediately decide whether certain
state public school system positions should be exempt from state personnel laws,
execute new statewide contracts for the public school system, and jeopardize the
Boards ability to manage more than 150 existing contracts involving tens of
millions of dollars. See Exhibit B, 1/4/17 Cobey Affidavit 10. These actions would
be impossible to undo after the fact. Id.
As these examples illustrate, a temporary stay pending appeal is necessary to
preserve the North Carolina Constitutions nearly one-and-a-half-century status
quo.
5
These concerns are intensified, moreover, by the fact that the appellate courts
may very well reach a different conclusion than this Court on the meritsespecially
given that the standard of review is de novo.
Indeed, notwithstanding this Courts ultimate decision, at the hearing on the
parties dispositive motions, Judge Bridges acknowledged that the General
Assemblys cutting and pasting of the text of the North Carolina Constitution into
Session Law 2016-126 and replacing the words State Board of Education with
Superintendent was very troubling.4 Prior to this Courts decision, another
Superior Court Judge expressed far greater concerns about the constitutionality of
the challenged legislation.5 As these comments show, it is certainly possible that
the appellate courts could reach a different conclusion than this Court on de novo
review.
Yet if the appellate courts reach a different conclusion and this Courts
decision is not temporarily stayed during the pendency of the appeal, the appellate
courts will be left with the challenges of having to unring the bell. Sparing the
litigants (and the appellate courts) from this situation is precisely why Section 1-
4 Three judge panel hears arguments on education governance authority,

available at www.ednc.org/2017/06/29/three-judge-panel-hears-arguments-
education-governance-authority/ (last visited September 5, 2017).
5 In addition to the conclusions Judge Donald W. Stephens reached in his
temporary restraining order, he remarked at the TRO hearing that the Boards
entitlement to relief was straightforward, that he [did not] see any ambiguity,
and that the law is significantly likely to be unconstitutional on its face. Exhibit
D, TRO Hearing Transcript pp. 6, 13, 24.
6
500 provides for a temporary stay pending appeal in cases, like this one, that are
aimed at injunctive relief. See N.C. Gen. Stat. 1-500.
Lastly, a balancing of the equities weighs heavily in favor of a stay pending
appeal. The State even conceded as much at the TRO hearing:
[THE COURT]: And that [would be] a fairly easy balancing test,
wouldnt it? A theoretical harm to the State and a real, practical harm
to an agency thats constitutionally mandated to care for the public
school children of the state.
[THE STATES COUNSEL]: Yes, sir.
Bd. Sum. J. Br., Ex. D at 34.
This concession makes sense, because a temporary stay pending the Boards
appeal would not harm Defendants at all. The Board has exercised its
constitutional powers and fulfilled its constitutional duties for nearly a century and
a half. Surely Defendants would not be harmed by maintaining this longstanding
status quo during the comparatively brief period of months that it will take for the
appellate courts to resolve this dispute.
For all of these reasons, the Court should temporarily stay its July 14, 2017
decision pending the Boards appeal.
II. At a minimum, a brief extension of the temporary stay is necessary

to allow the appellate courts a sufficient opportunity to issue a
temporary stay or writ of supersedeas.
If the Court is inclined to deny the Boards request above, then the Board will
seek the same relief from the appellate courts in the form of a motion for temporary
stay and petition for writ of supersedeas. See N.C. R. App. P. 8(a) (After a stay
order or entry has been denied or vacated by a trial court, an appellant may apply
7
to the appropriate appellate court for a temporary stay and a writ of supersedeas in
accordance with Rule 23.); see also N.C. R. App. P. 23 (stating procedure for
petitions for writs of supersedeas). Thus, at a minimum, the Court should extend
the temporary stay to afford the appellate courts the opportunity to rule on the
Boards request.
As described above, 46 days of the 60-day stay elapsed during the course of
the Boards and the SPIs attempt to reach an agreement that would have obviated
the need for this Court to resolve the instant motion. To deny even a brief extension
of the original 60-day temporary stay under these circumstances would be to punish
the Board for its efforts to promote judicial economy by obtaining a resolution of
these issues by consent. Under these circumstances, allowing the clock to simply
run out would be unjust, particularly given the speed with which the Board is filing
this motiona mere four business days after the discussions between the Board
and the SPI resulted in an impasse.
For these reasons, the Court should, at a minimum, extend its temporary
stay until the appellate courts have had an opportunity to rule on the Boards
motion for temporary stay and petition for writ of supersedeas.
CONCLUSION
The Board respectfully requests that the Court temporarily stay its July 14,
2017 decision during the pendency of the Boards appeal.
In the alternative, the Board respectfully requests that the Court temporarily
stay its July 14, 217 decision until the appellate courts have had an opportunity to
rule on the Boards motion for temporary stay and petition for writ of supersedeas.
8
Respectfully submitted the 5th day of September, 2017.
Byj,~ By ~-
~r i4ifG
N.C. State Bar No. 6798 N.C. State Bar No. 35269
orr@rforrlaw .com [email protected]
3434 Edwards Mill, Suite 112-372 Saad Gul
Raleigh, NC 27612 N.C. State Bar No. 35320
Teleph one: (919) 608-5335 [email protected]
John M. Durnovich
COUNSEL FOR PLAINTIFF N.C. State Bar No. 47715
NORTH CAROLINA STATE j d [email protected]
BOARD OF EDUCATION P.O. Box 1801
Telephone: (919) 783-2895
Facsimile: (919) 783-1075

BOARD OF EDUCATION
9
The undersigned hereby certifies that a copy of the foregoing document was
served by e-mail and U.S. Mail to the following:
Amar Majmundar
Raleigh, NC 27603
Philip R. Isley
E. Hardy Lewis
Blanchard, Miller, Lewis & Isley P .A.
Raleigh, NC 27603
This the 5th day of September, 2017.
Andrew H. Erteschik
Exhibit H
From: Vysotskaya, Olga <[email protected]>
Sent: Friday, September 08, 2017 11:23 AM
To: Myers, Kellie Z.
Cc: Erteschik, Drew; Robert F Orr; Majmundar, Amar; Hardy Lewis; Philip Isley; Victoria
Graves
Subject: RE: Our filing today - NC State Board of Education v. NC and Mark Johnson - 16 CVS
15607
Thankyouforallyourhelpwiththiscase,Kellie.TheAttorneyGeneralsOfficejoinsallthepartiesinappreciatingyour
amazingpromptnessandattentiontothelogisticsanddetails,whichhelpsusandtheCourttolitigatethismatter
efficiently.
TheStatedoesnotintendtosubmitanywrittenmaterialtotheCourtregardingthependingMotiontoStay.We
anticipatethatwewillneitherobject,norconsenttothemotion.
Ihopethishelps,
Olga
OlgaE.VysotskayadeBrito
SpecialDeputyAttorneyGeneral
CompositeLitigationGroup
Phone:919.716.0185
Email:[email protected]
114W.EdentonSt.,Raleigh,NC27603
ncdoj.gov
Pleasenotemessagestoorfromthisaddressmaybepublicrecords.
From:Myers,KellieZ.[mailto:[email protected]]
Sent:Friday,September08,201710:46AM
To:VictoriaGraves
Cc:Erteschik,Drew;RobertFOrr;Majmundar,Amar;Vysotskaya,Olga;HardyLewis;PhilipIsley
Subject:RE:OurfilingtodayNCStateBoardofEducationv.NCandMarkJohnson16CVS15607
Thankyou,Victoria.IforwardedtheattachmentstothepanelandalsoinformedthemthatIwillmailhardcopiesto
them,iftheysorequire,butthatIsuggestedyounotdosoduetothetiming.
Best,
Kellie
KellieZ.Myers
TrialCourtAdministrator
NorthCarolinaJudicialBranch
POBox1916,Raleigh,NC27602
1
O9197924780
www.NCcourts.org/WakeTCA
From:VictoriaGraves[mailto:[email protected]]
Sent:Friday,September08,201710:38AM
To:Myers,KellieZ.<[email protected]>
Cc:Erteschik,Drew<[email protected]>;RobertFOrr<[email protected]>;Majmundar,Amar
<[email protected]>;Vysotskaya,Olga<[email protected]>;HardyLewis<[email protected]>;
PhilipIsley<[email protected]>
Subject:OurfilingtodayNCStateBoardofEducationv.NCandMarkJohnson16CVS15607

GoodMorningKellie,

Ihopeyouarewell.AttachedpleasefindafiledcopyoftheSuperintendentsResponseinOppositionto
PlaintiffsMotionforTemporaryStayandNoticeofFilingaswellasafiledcopyoftheSecondAffidavitofNorth
CarolinaSuperintendentofPublicInstructionMarkJohnson.Wewillalsobeservinghardcopiesuponallofthe
partiesattorneysviaU.S.Mail.Letmeknowifyouhaveanyquestionsregardingtheattached.Thankyouforall
yourhelpandIhopeyouhaveagreatweekend!

TakeCare,

V

VictoriaN.Graves
NCCertifiedParalegal
Blanchard,Miller,Lewis&Isley,P.A.
1117HillsboroughStreet
Raleigh,NC27603
DirectDial:(919)7478111
MainOfficeLine:(919)7553993
Fax:(919)7553994
[email protected]
www.bmlilaw.com

Emailcorrespondencetoandfromthisaddressmaybesubjecttothe
NorthCarolinapublicrecordslawsandifso,maybedisclosed.
2
Exhibit I
WAKE COUNTY 16 cvs 15607
ZGJl ! LI r P:
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NORTH CAROLINA STATE BOARD
OF EDUCATION,
Plaintiff, ORDER ON PLAINTIFF'S

MOTION FOR TEMPORARY STAY
v.
THE STATE OF NORTH CAROLINA and

Defendants.
This matter came on for hearing before the undersigned panel on Thursday, September 14,
2017 on Plaintiff's Motion for Temporary Stay. After review of written submissions by the parties and
consideration of arguments presented in open court, this Court enters the following Order.
By its Motion, the Plaintiff seeks an extension of a stay ofthis Court's Order during the Plaintiff's
appeal from the Order entered by this Court on July 14, 2017. In the alternative, the Plaintiff seeks "a
brief extension of the temporary stay ... to allow the appellate courts a sufficient opportunity to issue a
temporary stay or writ of supersedeas."
Pursuant to G.S. 1-500, requests for stay pending appeal are addressed to the discretion of the
trial judge. In the exercise of that discretion, this Court has determined that a stay of-its Order
throughout the pendency of the appeal should not be granted.
This Court has further determined in the exercise of its discretion, that given the magnitude of
the issues involved in this cnse, the parties should have a reasonable opportunity to petition the
appellate courts for a stay or writ of supersedeas pending the hearing and determination of the appeal.
IT IS HEREBY ORDERED that the temporary stay ofthe Order of this Court entered on July 14,
2017, as extended by the subsequent September 11, 2017 Order ofthis Court up to and through the
conclusion of any hearing conducted by this Court, shall be and hereby is further extended for a period
of 30 days from today, specifically up to and including 5:00p.m. on Monday, October 16, 2017, in order
to afford a reasonable opportunity for the parties to petition and present such arguments as may be
required to any appellate court upon the issue of further extension or dissolution of the said stay.
SO ORDERED, this the 14th day of September, 2017.
-do~@~~~
The Honorable James F. Ammons, Jr.
11~&
The Honorable Martin B. McGee
Exhibit J
CONSTITUTIONAL DEVELOPMENT OF NORTH CAROLINA 845
CONSTITUTION OF NORTH CAROLINA OF 1868
DELEGATES TO THE CONSTITUTIONAL CONVENTION79
Raleigh, January 14-March 17, 1868

President, Calvin J. Cowles, Wilkes
President Pro Tem, Richard W. King,80 Lenoir
Secretary, T. A. Byrnes, Cumberland
Secretary Pro Tem, Joshua P. Andrews,s' Wake
James H. Harris,82 Wake
Assistant Secretary, John H. Bonner, [Wake]
Name District County Name District Count11

W. A. B. Murphey--------------!__ _________ __ __ _ - - - - Wilson Carey ........................ 25 ____________________ __ Caswell
John S. Parks ---------------------- !_ ______ _________ - - - - Phillip Hodnett .................... 25 ______________________ Caswell
William H. Logan ------------ 2................ Rutherford Henry M. Ray ...................... 26 __________________ Alamance
Jesse Rhodes ------------------------ 2............ .... Henderson William Merritt ___ ___________ ____ 27 ---------------------- Person
Julius S. Garland ---------------- 3.................. [Mitchellj John W. Graham ................ 28 ______________________ Orange
Thomas J. Candler-------------- 4.................. Buncombe Edwin M. Holt ____________________ 28 ...................... Orange
James H. Duckworth---------- 4_________ ___ Transylvania William T. Gunter .............. 29 ___________ _________ Chatham
George W. Gahagan ------------ 4_______________ _____ Madison John A. McDonald .............. 29 ______________ ______ Chatham
W. G. B. Garrett ----------------- 5.................. Haywood Joshua P. Andrews ............ 30 ___________________ __ _____ Wake
George W. Dickey---------------- 6____________________ Cherokee Stokes D. Franklin ............30________________ __________ Wake
Mark May --------------------------- 6 ________________________ Macon James H. Harris .................. 30 _______________________ ___ Wake
Edwin C. Bartlett83 -------------- 7__________________ Alleghany B. S. D. Williams ................ 30 ___________________ , ____ __ Wake
Evan Benbow ---------------------- 7______________________ Yadkin Cuffey Mayo ________________________ 31.................. Granville
George W. Bradley-------------- 7.................... Watauga James J. Moore ____________________ 31.. ................ Granville
Samuel Forkner ------------------ 7........................ Surry John W. Ragland ................ 31.. ................ Granville
John G. Marler.. ------------------ 7____________ __ ________ Yadkin John A. Hyman .................... 32 ...................... Warren
John H. Marshall 85 -------------- 7___________ _____________ Surry John Read ____________________________ 32 ...................... Warren
John Q. A. Bryan ................ 8........................ Wilkes James T. Harris __________________ 33.................. Franklin
Calvin J. Cowles ------------------ 8 ____ ____________ __ ____ __ Wilkes John H. Williamson ____________ 33__________________ Franklin
Wesley H. George---------------- 8 ........................ Iredell James H. Hood ____________________ 34.............. Cumberland
Calvin C. Jones -------------------- 8.................... Caldwell William A. Mann ................ 34.............. Cumberland
Jerry Smith -------------------------- 8.................. Alexander James M. Turner ................ 35-------------------- Harnett
Milton Hobbs ---------------------- 9........................ Davie Swain S. McDonald ............ 36------------------------ Moore
Allen Rose ---------------------------- 9------------------------ Rowan George A. Graham ..............37------------ Montgomery
Isaac M. Shaver"" ---------------- 9------------------------ Rowan Richmond T. Long, Sr ....... 38------------------ Richmond
James S. McCubbins87 ________ 9----------- ------------- Rowan Hiram L. Grant .................. 39----------------------- Wayne
Plato Durham ...................... 10.................. Cleveland Jesse Hollowell ____________________ 39----------------------- Wayne
James R. Ellis ......................11-------------------- Catawba Nathan Gulley ---------------------40-------------------- Johnston
Joseph H. King .................... 12...................... Lincoln John M. Patrick ................. .41------------------ ----- Greene
Milot J. Aydlott .................... 13...................... Gaston Willie Daniel ........................ 42------------------------ Wilson
Edward Fullings .................. 14............ Mecklenburg Jacob Ing ............................. .43------------------ -------- Nash
Silas N. Stilwell .................. 14............ Mecklenburg Henry Eppes ....................... .44------------- --------- Halifax
William Newson .................. 15------------------------ Union J. J. Hayes ............................ 44---------------------- Halifax
William T. Blume .............. 16------------------ Cabarrus John H. Renfrow ............... .44---------------------- Halifax
Levi C. Morton ______________________ 17........................ Stanly Henry T. Grant ................. .45----------- Northampton
Henry Chillson .................... 18------------------------ Anson Roswell C. Parker ............. .45------------ Northampton
George Tucker .................... 18------------------------ Anson Joseph H. Baker ................. .46---------------- Edgecombe
Riley F. Petree ____________________ 19 ........................ Stokes Henry C. Cherry ............... .46---------------- Edgecombe
Elijah B. Teague ................ 20-------------------- Forsyth Henry A. Dowd ................. .46--------------- Edgecombe
Isaac Kinney ________________________ 21.................. Davidson Richard W. King ................ 47------------ ------------ Lenoir
Spencer Mullican ................ 21.................. Davidson Edwin Legg ____ ____ _________________ .48---------------- Brunswick
Talton L. L. Cox .................. 22.................. Randolph Hayes Lennon ...................... 49------------------ Colombus
Reuben F. Trogdon ............ 22 .................. Randolph 0. S. Hayes ___ _______________________ 60------------ -------- Robeson
Albion W. Tourgee .............. 23.................... Guilford Joshua L. Nance .................. 60-------------------- Robeson
G. William Welker ............ 23 .................... Guilford Abiel W. Fisher ..................51----------------------- Bladen
Henry Barnes ______________________ 24 .............. Rockingham Frederick F. French .......... 51---------------------- Bladen
John French ________________________ 24 .............. Rockingham Joseph C. Abbott ................ 52 .......... New Hanover
CONSTITUTIONAL DEVELOPMENT OF NORTH CAROLINA 863
SEC. 4. It shall be the duty of the Legislature to provide for the organization of cities,
towns, and incorporated villages, and to restrict their power of taxation, assessment, bor-
rowing money, contracting debts, and loaning their credit, so as to prevent abuses in as-
sessments and in contracting debts, by such municipal corporation.
Article IX.
Education.
SECTION 1. Religion, morality, and knowledge being necessary to good government and
happiness of mankind, schools, and the means of education, shall forever be encouraged.
SEC. 2. The General Assembly at its first session under this Constitution, shall pro-
vide by taxation and otherwise for a general and uniform system of Public Schools, where-
in tuition shall be free of charge to all the children of the State between the ages of six
and twenty-one years.
SEC. 3. Each County of the State shall be divided into a convenient number of Dis-
tricts, in which one or more Public Schools shall be maintained, at least four months in
every year; and if the Commissioners of any County shall fail to comply with the afore-
said requirement of this section, they shall be liable to indictment.
SEC. 4. The proceeds of all lands that have been, or hereafter may be, granted by the
United States to this State and not otherwise specially appropriated by the United States
or heretofore by this State; also all monies, stocks, bonds, and other property now belong-
ing to any fund for purposes of Education; also the net proceeds that may accrue to the
State from sales of estrays or from fines, penalties and forfeitures; also the proceeds of
all sales of the swamp lands belonging to the State; also all money that shall be paid as an
equivalent for exemptions from military duty; also, all grants, gifts or devises that may
hereafter be made to this State, and not otherwise appropriated by the grant, gift or devise,
shall be securely invested, and sacredly preserved as an irreducible educational fund, the
annual income of which, together with so much of the ordinary revenue of the State as
may be necessary, shall be faithfully appropriated for establishing and perfecting, in this
State, a system of Free Public Schools, and for. no other purposes or uses whatsoever.
SEC. 5. The University of North Carolina with its lands, emoluments and franchises,
is under the Control of the State, and shall be held to an inseparable connection with the
Free Public School System of the State.
SEC. 6. The General Assembly shall provide that the benefits of the University, as
far as practicable, be extended to the youth of the State free of expense for tuition; also,
that all the property which has heretofore accrued to the State, or shall hereafter accrue
from escheats, unclaimed dividends or distributive shares of the estates of deceased per-
sons, shall be appropriated to the use of the University.
SEC. 7. The Governor, Lieutenant-Governor, Secretary of State, Treasurer, Auditor,
Superintendent of Public Works, Superintendent of Public Instruction and Attorney Gen-
eral, shall constitute a State Board of Education.
SEC. 8. The Governor shall be President, and the Superintendent of Public Instruc-
tion shall be Secretary, of the Board of Education.
864 NoRTH CAROLINA GovERNMENT, 1585-1979
SEC. 9. The Board of Education shall succeed to all the powers and trusts of the Pres-
ident and directors of the Literary Fund of North Carolina, and shall have full power to
legislate and make all needful rules and regulations in relation to Free Public Schools, and
the Educational fund of the State; but all acts, rules and regulations of said Board may
be altered, amended, or repealed by the General Assembly, and when so altered, amended
or repealed by the General Assembly, and when so altered, amended or repealed they shall
not be reenacted by the Board.
SEC. 10. The first session of the Board of Education shall be held at the Capital of the
State, within fifteen days after the organization of the State Government under this Con-
stitution; the time of future meetings may be determined by the Board.
SEC. 11. A majority of the Board shall constitute a quorum for the transaction of bus-
iness.
SEC. 12. The contingent expenses of the Board shall be provided for by the General
Assembly.
SEC. 13. The Board of Education shall elect Trustees for the University, as follows:
One trustee for each County in the State, whose term of office shall be eight years. The first
meeting of the Board shall be held within ten days after their election, and at this and
every subsequent meeting, ten Trustees shall constitute a quorum. The Trustees, at their
first meeting, shall be divided, as equally as may be, into four classes. The seats of the first
class shall be vacated at the expiration of two years; of the second class at the expiration
of four years; of the third class at the expiration of six years; of the fourth class at the
expiration of eight years; so that one fourth may be chosen every second year.
SEC. 14. The Board of Education and the President of the University, shall be ex of-
ficio members of the Board of Trustees of the University; and shall, with three other Trus-
tees to be appointed by the Board of Trustees, constitute the Executive Committee of the
Trustees of the University of North Carolina, and shall be clothed with the powers dele-
gated to the Executive Committee eunder the existing organization of the Institution. The
Governor shall be ex officio President of the Board of Trustees and Chairman of the Execu-
tive Committee of the University. The Board of Education shall provide for the more per-
fect organization of the Board of Trustees.
SEC. 15. All the privileges, rights, franchises and endowments heretofore granted to,
or conferred upon, the Board of Trustees of the University of North Carolina by the Char-
ter of 1789, or by any subsequent legislation, are hereby vested in the Board of Trustees,
authorized by this Constitution, for the perpetual benefit of the University.
SEC. 16. As soon as practicable after the adoption of this Constitution, the General
Assembly shall establish and maintain, in connection with the University, a Department
of Agriculture, of Mechanics, of Mining and of Normal Instruction.
SEC. 17. The General Assembly is hereby empowered to enact that every child of
sufficient mental and physical ability, shall attend the Public Schools during the period be-
tween the ages of six and eighteen years, for a term of not less than sixteen months, unless
educated by other means.
Exhibit K
NORTH CAROLINA STATE CONSTITUTION
PREAMBLE
We, the people of the State of North Carolina, grateful to Almighty God, the Sovereign
Ruler of Nations, for the preservation of the American Union and the existence of our civil,
political and religious liberties, and acknowledging our dependence upon Him for the
continuance of those blessings to us and our posterity, do, for the more certain security thereof
and for the better government of this State, ordain and establish this Constitution.
ARTICLE I
DECLARATION OF RIGHTS
That the great, general, and essential principles of liberty and free government may be
recognized and established, and that the relations of this State to the Union and government of
the United States and those of the people of this State to the rest of the American people may
be defined and affirmed, we do declare that:
Section 1. The equality and rights of persons.

We hold it to be self-evident that all persons are created equal; that they are endowed by
their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of
the fruits of their own labor, and the pursuit of happiness.
Sec. 2. Sovereignty of the people.

All political power is vested in and derived from the people; all government of right
originates from the people, is founded upon their will only, and is instituted solely for the good
of the whole.
Sec. 3. Internal government of the State.

The people of this State have the inherent, sole, and exclusive right of regulating the
internal government and police thereof, and of altering or abolishing their Constitution and
form of government whenever it may be necessary to their safety and happiness; but every such
right shall be exercised in pursuance of law and consistently with the Constitution of the United
States.
Sec. 4. Secession prohibited.

This State shall ever remain a member of the American Union; the people thereof are part
of the American nation; there is no right on the part of this State to secede; and all attempts,
from whatever source or upon whatever pretext, to dissolve this Union or to sever this Nation,
shall be resisted with the whole power of the State.
Sec. 5. Allegiance to the United States.

Every citizen of this State owes paramount allegiance to the Constitution and government
of the United States, and no law or ordinance of the State in contravention or subversion
thereof can have any binding force.
Sec. 6. Separation of powers.

The legislative, executive, and supreme judicial powers of the State government shall be
forever separate and distinct from each other.
Sec. 7. Suspending laws.

NC Constitution Page 1
ARTICLE IX
EDUCATION
Section 1. Education encouraged.

Religion, morality, and knowledge being necessary to good government and the happiness
of mankind, schools, libraries, and the means of education shall forever be encouraged.
Sec. 2. Uniform system of schools.

(1) General and uniform system: term. The General Assembly shall provide by taxation
and otherwise for a general and uniform system of free public schools, which shall be
maintained at least nine months in every year, and wherein equal opportunities shall be
provided for all students.
(2) Local responsibility. The General Assembly may assign to units of local
government such responsibility for the financial support of the free public schools as it may
deem appropriate. The governing boards of units of local government with financial
responsibility for public education may use local revenues to add to or supplement any public
school or post-secondary school program.
Sec. 3. School attendance.

The General Assembly shall provide that every child of appropriate age and of sufficient
mental and physical ability shall attend the public schools, unless educated by other means.
Sec. 4. State Board of Education.

(1) Board. The State Board of Education shall consist of the Lieutenant Governor, the
Treasurer, and eleven members appointed by the Governor, subject to confirmation by the
General Assembly in joint session. The General Assembly shall divide the State into eight
educational districts. Of the appointive members of the Board, one shall be appointed from
each of the eight educational districts and three shall be appointed from the State at large.
Appointments shall be for overlapping terms of eight years. Appointments to fill vacancies
shall be made by the Governor for the unexpired terms and shall not be subject to confirmation.
(2) Superintendent of Public Instruction. The Superintendent of Public Instruction shall
be the secretary and chief administrative officer of the State Board of Education.
Sec. 5. Powers and duties of Board.

The State Board of Education shall supervise and administer the free public school system
and the educational funds provided for its support, except the funds mentioned in Section 7 of
this Article, and shall make all needed rules and regulations in relation thereto, subject to laws
enacted by the General Assembly.
Sec. 6. State school fund.

The proceeds of all lands that have been or hereafter may be granted by the United States to
this State, and not otherwise appropriated by this State or the United States; all moneys, stocks,
bonds, and other property belonging to the State for purposes of public education; the net
proceeds of all sales of the swamp lands belonging to the State; and all other grants, gifts, and
devises that have been or hereafter may be made to the State, and not otherwise appropriated by
the State or by the terms of the grant, gift, or devise, shall be paid into the State Treasury and,
together with so much of the revenue of the State as may be set apart for that purpose, shall be
faithfully appropriated and used exclusively for establishing and maintaining a uniform system
of free public schools.
Sec. 7. County school fund; State fund for certain moneys.
(a) Except as provided in subsection (b) of this section, all moneys, stocks, bonds, and
other property belonging to a county school fund, and the clear proceeds of all penalties and
forfeitures and of all fines collected in the several counties for any breach of the penal laws of
the State, shall belong to and remain in the several counties, and shall be faithfully appropriated
and used exclusively for maintaining free public schools.
(b) The General Assembly may place in a State fund the clear proceeds of all civil
penalties, forfeitures, and fines which are collected by State agencies and which belong to the
public schools pursuant to subsection (a) of this section. Moneys in such State fund shall be
faithfully appropriated by the General Assembly, on a per pupil basis, to the counties, to be
used exclusively for maintaining free public schools. (2003-423, s.1.)
Sec. 8. Higher education.

The General Assembly shall maintain a public system of higher education, comprising The
University of North Carolina and such other institutions of higher education as the General
Assembly may deem wise. The General Assembly shall provide for the selection of trustees of
The University of North Carolina and of the other institutions of higher education, in whom
shall be vested all the privileges, rights, franchises, and endowments heretofore granted to or
conferred upon the trustees of these institutions. The General Assembly may enact laws
necessary and expedient for the maintenance and management of The University of North
Carolina and the other public institutions of higher education.
Sec. 9. Benefits of public institutions of higher education.

The General Assembly shall provide that the benefits of The University of North Carolina
and other public institutions of higher education, as far as practicable, be extended to the people
of the State free of expense.
Sec. 10. Escheats.

(1) Escheats prior to July 1, 1971. All property that prior to July 1, 1971, accrued to the
State from escheats, unclaimed dividends, or distributive shares of the estates of deceased
persons shall be appropriated to the use of The University of North Carolina.
(2) Escheats after June 30, 1971. All property that, after June 30, 1971, shall accrue to
the State from escheats, unclaimed dividends, or distributive shares of the estates of deceased
persons shall be used to aid worthy and needy students who are residents of this State and are
enrolled in public institutions of higher education in this State. The method, amount, and type
of distribution shall be prescribed by law.
Exhibit L
WAKE COUNTY 16-CVS-15607

BOARD OF EDUCATION,
Plaintiff,
v. AFFIDAVIT OF
WILLIAM W. COBEY, JR.
Defendant.
I, William W. Cobey, Jr., declare under penalty of perjury as follows:
1. I have personal knowledge of the matters set forth in this affidavit.
2. I currently serve as the Chairman of the North Carolina State Board of Education.
I have served in this capacity since 2013, when Governor Pat McCrory appointed me to the
Board and I was confirmed by the General Assembly.
3. Prior to serving as Chairman, I served as a member of the U.S. House of
Representatives, as the Deputy Secretary of the North Carolina Department of Transportation, as
the Secretary of the North Carolina Department of Environment, Health and Natural Resources,
and for two terms as the Chairman of the North Carolina Republican Party.
4. I hold a bachelor of arts in chemistry from Emory University, a masters in
business administration from the University of Pennsylvanias Wharton School of Business, and
a masters in education from the University of Pittsburgh.
5. Under Article IX, Section 4 of the North Carolina Constitution, the Board is
composed of the Lieutenant Governor, the Treasurer, and eleven members appointed by the
Governor, subject to confirmation by the General Assembly in joint session. Article IX,
Section 4 requires that these Board members serve overlapping terms of eight years. These
lengthy, overlapping terms ensures that, at all times, Board has at least a half century of
combined experience supervising and administering North Carolinas public school system and
the funds provided for its support. This constitutional structure also maintains the Boards
institutional knowledge and expertise in education, enables smooth transitions between Board
memberships, provides ample training opportunities for incoming members by experienced
members, and insulates the Board from political cycles.
6. In addition, Article IX, Section 4 requires that eight of the Governors eleven
appointments must be made from each of the eight educational districts. This geographic
diversity ensures that the Board is representative of the people.
7. On December 14, 2016, the General Assembly introduced House Bill 17. Within
48 hours, it passed both the House of Representatives and the Senate. Three days later, on
December 19, 2016, House Bill 17 was signed into law as Session Law 2016-126.
8. Session Law 2016-126 contains provisions that attempt to transfer the Boards
constitutional powers and duties to the Superintendent of Public Instruction (SPI). Those
provisions appear in Part I, Sections 1-12, 14-16, 24-15, and 28-30 (the Transfer Legislation).
9. For the past 148 years, the Board has been in charge of the public school system.
The Transfer Legislation attempts to strip the Board of its constitutional powers and duties,
however, and makes the SPI in charge of the public school system instead. Thus, without a
preliminary injunction to preserve the status quo, the Transfer Legislation would reduce a 148-
year-old constitutional entity to an empty shell, and would put the entire $10 billion public
2
school system under the control of a single individual. Without a preliminary injunction to
preserve the status quo, the Transfer Legislation would accomplish this seismic shift overnight.
10. Furthermore, without a preliminary injunction to preserve the status quo, the SPI
would be immediately empowered to take drastic actions that could not be undone. For example,
the SPI would immediately be empowered to unilaterally hire and fire public school system
employees, fire members of the Boards staff, determine whether certain public school system
positions should be exempt from state personnel laws, execute new contracts for the public
school system, and jeopardize the Boards ability to manage more than 150 existing contracts for
tens of millions of dollars. These actions would be impossible to undo after the fact, even if this
declaratory judgment action were ultimately resolved in favor of the Board.
11. I am unaware of any non-political justifications for dismantling North Carolinas
148-year-old constitutional structure for managing public education. Under Article I, Section 15
of the North Carolina Constitution, [t]he people have a right to the privilege of education, and it
is the duty of the State to guard and maintain that right. I personally believe that guarding and
maintaining that right should always be above politics.
3
A/d'LAA
William W. Cobey, Jr.
Sworn to and subscribed before me this the :!:{_ day of January, 2017.
Q""'-"
7otarY Public
' f!la~.r;
~ II
"-"-
My commission expires: ~.. q 2oJ..t6:
tr -
[SEAL]
4
Exhibit M
WAKE COUNTY 16-CVS-15607

BOARD OF EDUCATION,
Plaintiff,
v. AFFIDAVIT OF
WILLIAM W. COBEY, JR.
Defendant.
I, William W. Cobey, Jr., being first duly sworn, testify as follows:
1. I have personal knowledge of the matters set forth in this affidavit.
2. I currently serve as the Chairman of the North Carolina State Board of
Education. I have served in this capacity since 2013, when I was appointed by
Governor Pat McCrory and confirmed by the General Assembly.
3. Prior to serving as Chairman of the Board, I served as a member of the
U.S. House of Representatives, as the Deputy Secretary of the North Carolina
Department of Transportation, as the Secretary of the North Carolina Department
of Environment, Health and Natural Resources, and for two terms as the Chairman
of the North Carolina Republican Party. I hold a bachelor of arts in chemistry from
Emory University, a masters in business administration from the University of
Pennsylvanias Wharton School of Business, and a masters in education from the
University of Pittsburgh.
4. In its July 14, 2017 decision, this Court concluded that it is the clear
intent of the Constitution that the State Board shall have the primary authority to
supervise and administer the free public school system. July 14, 2017 Order at 4.
The Court further concluded that Session Law 2016-126 places a limit on the
Superintendents power, leaving the ultimate authority to supervise and administer
the public school system with the State Board. Id. at 6.
5. Unless the Courts July 14, 2017 decision is stayed, Session Law 2016-
126 will go into effect on September 12, 2017. The Superintendent has taken the
position that, if Session Law 2016-126 is allowed to take effect, he will immediately
possess the sole hiring, firing, and supervisory authority over more than a thousand
state employees.
6. These affected employees include senior employees who, before Session
Law 2016-126, were known as dual reportsthat is, they were accountable to
both the Board and the Superintendent. Under Session Law 2016-126, however,
these and other critical education policymaking leaders for the agency would report
exclusively to the Superintendent. The Superintendent has also taken the position
that these employees would serve at his pleasure. The affected senior employees
include senior policymaking leaders such as the Deputy State Superintendent, the
Chief Financial Officer, the Chief Academic Officer, the Director of
Communications, the Director of Human Resources, the Chief Information
2
Technology Officer, the Internal Auditor, the Executive Director of the Office of
Charter Schools, and the Superintendent of Innovative School Districts.
7. These senior policymaking leaders form the core team that enables the
Board to effectively set policy for the public school system. Thus, without hiring
authority, firing authority, or at least supervisory authority over the senior
policymaking leaders noted above, the Board would be unable to exercise (in this
Courts words) the ultimate authority to supervise and administer the public school
system.
8. For example, the Board needs specialized expertise from its Chief
Information Technology Officer to develop information technology policies for the
states public schools. Similarly, the Board relies on the Internal Auditors subject
matter knowledge and experience to evaluate Board policies on investments and
expenditures. The Board likewise relies on the Human Resources Directors
expertise to advise the Board on personnel procedures. As these examples
illustrate, the Board will be unable to exercise (in this Courts words) the ultimate
authority to supervise and administer the public school system if it has no
authority whatsoever over the hiring, firing, and supervisions of these senior
policymaking positions.
9. In addition, if the continued employment of these senior policymaking
leaders were to depend entirely on whether the Superintendent is pleased with
them, they will be unable to effectively implement the Boards policiesparticularly
3
when there is a conflict between what the Superintendent believes is effective
education policy and what the Board has decided is effective education policy.
Indeed, the Superintendent has already communicated his disapproval of one or
more of these senior policymaking leaders. See, e.g., April 12, 2017 Mark Johnson
Affidavit 12-14 (describing disapproval with Chief Financial Officer).
10. Moreover, if fired by the Superintendent, the key senior policymaking
employees described above cannot be unfiredat least not without serious
consequences to both the Board and the employees themselves. In addition, if these
employees are fired and replaced by the Superintendent, the Board will have no
means to discipline the new, replacement senior policymaking employees who fail to
adhere to the Boards policy directives.
11. Above and beyond the harm described above, the Superintendents
dismissal of long-term, senior policymaking employees would also result in the loss
of significant cumulative institutional expertise. Between them, the long-term
senior policymaking employees offer a pool of accumulated experience and
specialized knowledge that is an invaluable asset to the Board. This experience and
knowledge, built up over years of service, will be lost in short order with their
removal. This loss, by itself, will inflict irreparable harm on the Board and the
public school system.
[signature on next page]
4
William W. Cobey, Jr.
Sworn to and subscribed before me this the 1st day of September, 2017.
[SEAL]

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No.

________ TENTH DISTRICT

NORTH CAROLINA COURT OF APPEALS

NORTH CAROLINA STATE BOARD )

PLAINTIFFS MOTION FOR TEMPORARY STAY AND

FACTUAL AND PROCEDURAL BACKGROUND ............... 4

I. A stay of the trial courts decision during the

Exhibits A-M .................................................................. 23

City of Asheville v. North Carolina,

Wilmington, C. & A. R. Co. v. Board of Commrs,

N.C. Gen. Stat. 115C-19 .............................................. 14

N.C. Gen. Stat. 115C-21 .............................................. 14

1868 N.C. Const. art. I, 15 ..............................................9

1868 N.C. Const. art. IX, 2 .............................................9

1868 N.C. Const. art. IX, 7 .............................................9

1868 N.C. Const. art. IX, 8 .......................................... 11

1868 N.C. Const. art. IX, 9 .............................................9

N.C. Const. art. IX, 4 ................................................... 11

N.C. Const. art. IX, 5 ............................................ passim

N.C. R. App. P. 8 ...................................................... passim

N.C. R. App. P. 23 .................................................... passim

1995 Op. N.C. Atty Gen. 32 ........................................... 13

John V. Orth and Justice Paul M. Newby, The North

Patrick C. McGinley, Separation of Powers, State

Thomas M. Cooley, A Treatise on Constitutional

Thomas M. Cooley, A Treatise on Constitutional

NORTH CAROLINA COURT OF APPEALS

NORTH CAROLINA STATE BOARD )

PLAINTIFFS MOTION FOR TEMPORARY STAY AND

Pursuant to Rules 8 and 23 of the North Carolina Rules of Appellate

writ of supersedeas during the pendency of its appeal.

administered the States public schools, as the North Carolina Constitution

expressly requires. In December 2016, however, the General Assembly

administer the public schools, and that the Superintendent of Public

Instruction would do so instead.

schools, only it replaced the words State Board of Education with

Superintendent of Public Instruction, as this comparison shows:

Article IX, Section 5 of the N.C. Sess. Law 2016-126 4

It shall be the duty of the It shall be the duty of the

Months later, a three-judge panel was appointed to hear the case. At a

hearing on the merits, at least one member of the three-judge panel

three-judge panel upheld the law, concluding that it was unnecessary to

consider the Boards primary argument: that when a constitution expressly

be transferred to someone else without a constitutional amendment.

The Board immediately appealed and, shortly thereafter, moved for a

words, it would be exceptionally difficult to restore the status quo if the

Boards request for a stay.

Nevertheless, the three-judge panel declined to issue a stay, and it gave

FACTUAL AND PROCEDURAL BACKGROUND1

This constitutional challenge involves a bedrock principle of

constitutional law: that when a constitution expressly confers powers and

duties on a specific entity, those powers and duties cannot be transferred to

someone else without a constitutional amendment.

Article IX, Section 5 of the North Carolina Constitution expressly