N.C. Court of Appeals: State Board rules require review

In a split decision, the N.C. Court of Appeals ruled that the State Board of Education, like other state agencies, is subject to the rules review process authorized by the Administrative Procedures Act (APA) and administered by the Office of Administrative Hearings (OAH) and the Rules Review Commission.

For years, the State Board created, approved, and implemented numerous rules and policies that did not follow administrative procedures mandated by the APA.  Instead, those rules and policies were added to the N.C. State Board of Education Policy Manual without approval from any external entity.  The Rules Review Commission objected.  The State Board sued the General Assembly and Rules Review Commission to settle the dispute.  The trial court agreed with State Board attorneys that subjecting the board to rules review was unconstitutional.

In this ruling, an N.C. Court of Appeals majority disagreed, arguing that the General Assembly does not violate the constitution by requiring the State Board of Education to abide by the APA.  In his dissent, Judge John Tyson argued that the State Board of Education has a “specific constitutional authority to promulgate its own rules and regulations.”  The case will move on to the N.C. Supreme Court where the constitutional question will be front and center.

I argue that the rules review process is essential for those of us those who believe that government should be open and accountable to its citizens. The OAH may sound like another superfluous regulatory entity, and there may be aspects of the APA rulemaking process that are overly bureaucratic and demand reform.   Nevertheless, the state designed a slow, deliberate rules review process for a reason – to allow the public to have an opportunity to review and comment on rules and policies proposed by state agencies.  Also, the APA process empowers citizens, who may petition an agency to adopt a rule or object to existing rules that they find burdensome or unnecessary.  In this way, the APA process is a reasonable way to maintain transparency and accountability within state government.  It ensures that state agencies do not overstep their authority and trample on the rights and well-being of the citizens of North Carolina.