After nearly 90 minutes of constitutional arguments and pointed questions, a turf war between state superintendent Sherri Ybarra, the Legislature and the State Board of Education is now in the Idaho Supreme Court’s hands.

It’s unclear when the Supreme Court will rule in the case. And on Friday, justices didn’t really tip their hand either. During a hearing held over Zoom, the five justices took turns grilling attorneys for Ybarra, the Legislature and the State Board.

The immediate matter at hand involves 18 employees who now work for Ybarra’s State Department of Education. The 2020 Legislature voted to move those employees to the State Board, over Ybarra’s objections. The transfer would go into effect July 1, which is why the Supreme Court has fast-tracked Ybarra’s lawsuit against the Legislature and the State Board.

But Friday’s arguments focused on the actions of this year’s Legislature, which unfolded in the final days of the 2020 session. Attorneys also argued constitutional language dating back 130 years, and whether the elected superintendent or the State Board sets Idaho’s education policy.

David Leroy — the former attorney general and lieutenant governor hired to represent Ybarra — said the superintendent’s powers date back to Idaho’s territorial constitution. This document gave the superintendent clear duties that remain intact today. Transferring 18 IT and data management employees will “destroy” Ybarra’s department, Leroy said, since it will affect day-to day work in finance, special education, content and curriculum and assessment and accountability.

“This is a constitutional question of the highest order,” Leroy said. “It’s not merely a political question.”

Attorneys for the Legislature and the State Board took turns arguing that the state Constitution puts the State Board in charge of the “general supervision” of Idaho education. And they argued that the framers of this document consciously moved that role to the board, after considerable debate.

Cynthia Yee-Wallace, a deputy attorney general representing the State Board, appealed to justices to adhere to the “straightforward” language of the Constitution. Mary York, one of three Boise attorneys hired on the Legislature’s behalf, argued that the Constitution restricts the superintendent’s powers — limited, in essence, to a guaranteed seat on the State Board.

Chief Justice Roger Burdick and Justice Robyn Brody pressed on this point, suggesting the Legislature could cut funding and responsibilities to the point that it renders the superintendent powerless. At one point, Burdick did little to hide his frustration.

“Can the Legislature basically gut the Department of Education by statute?” Burdick asked. “Can they or can they not?”

Justices had no shortage of questions for Leroy, a former attorney general and lieutenant governor, hired to represent Ybarra.

They grilled Leroy on one court filing — a detailed chronology from Ybarra and legislative liaison Marilyn Whitney, outlining legislative efforts to gut SDE funding, and perhaps even amend the Constitution to eliminate the elected superintendent’s position. Leroy said the documents were not presented as a factual account of the meetings and conversations, but were designed instead to explain Ybarra’s “state of mind” leading up to filing the lawsuit.

“So it doesn’t matter if it’s true or not?” Justice Gregory Moeller asked Leroy.

Earlier, Justice John Stegner questioned the ultimate effect of transferring jobs to the State Board, since Ybarra would still have access to the data the employees manage.

“I’m struggling to understand. … how her discharge of her responsibilities has been impaired.”

The Supreme Court has several options. It could declare the funding shift unconstitutional, handing Ybarra an unqualified victory. It could uphold the laws, siding with the Legislature. Or it could put the funding shift on hold, keeping the 18 jobs and the $2.7 million in Ybarra’s shop while a district court reviews the matter.

Friday’s hearing was significant for another reason. Due to the coronavirus pandemic, the hearing was held remotely. Donning face masks, Moeller and a clerk participated from the Supreme Court building in Boise. The other four justices worked from home.

The lawyers also worked remotely, their clients in and out of view. Ybarra joined Leroy, visible in the background. House Speaker Scott Bedke watched with the Legislature’s legal team. State Board executive director Matt Freeman watched with Yee-Wallace.

How we got here

Friday’s hearing marked another chapter in a story that began unfolding three months ago:

March 3: The Joint Finance-Appropriations Committee voted to shift 18 IT and data management positions and $2.7 million from the State Department of Education to the State Board. The 15-5 vote occurs over objections from Ybarra, who calls the move “a little shocking.”

March 16 and 17: The Legislature passes two bills that support the funding shift. They pass the Senate unanimously, and pass a divided House.

March 24 and 25: Gov. Brad Little signs the two bills into law, effective July 1.

April 20: Ybarra urges the State Board to keep the positions and funding under her jurisdiction — effectively overriding the Legislature’s intent. The State Board rejects Ybarra’s proposal.

April 24: Ybarra sues the State Board and the Legislature. In a statement, Ybarra says the Legislature’s actions “prevent me from fully discharging my constitutional duties.”

May 15: In their formal response to the lawsuit, attorneys for the State Board and the Legislature argue that the state Constitution makes the State Board Idaho’s education policymaking body, and argue that the Legislature has the authority to shift money from one agency to another. “It is the province of the Legislature to make laws,” wrote William G. Myers III, one of the Legislature’s hired attorneys.

May 22: Filing his response on Ybarra’s behalf, Leroy appeals to the Supreme Court to preserve the power of the elected superintendent, giving parents their “strongest and most direct communication” on education policy. In statements filed with the court, Ybarra and Whitney say some lawmakers are determined to defund and dismantle Ybarra’s office.