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In re Grant Of The Charter School Application Of Englewood On The Palisades Charter School

June 28, 2000


The opinion of the court was delivered by: LaVECCHIA, J.

Argued February 29, 2000

On certification to the Superior Court, Appellate Division, whose opinion is reported at 320 N.J. Super. 174 (1999).

In this consolidated appeal, the Englewood City Board of Education, the Clifton Board of Education and the Franklin Township Board of Education (Boards) challenge the grants of charters to newly created charter schools within their respective school districts. The Boards contend that the Charter School Program Act of 1995, N.J.S.A. 18A:36A-1 to -18 (Act), is unconstitutional because it violates principles of equal protection and due process, contravenes the prohibition against the donation of public funds for private purposes, and constitutes an improper delegation of legislative power to a private body. The Boards also mount challenges to the Act and its implementing regulations, N.J.A.C. 6A:11-1 to -8.2, as applied to the charter schools approved to operate within each of their districts. All of those challenges were comprehensively addressed in the opinion of the Appellate Division authored by the Honorable Michael Patrick King, P.J.A.D. In re Charter School Application, 320 N.J. Super. 174 (App. Div. 1999).

We granted certification, 162 N.J. 482 (1999) and now affirm the Appellate Division's judgment, modifying only its articulation of the Commissioner of Education's responsibilities when reviewing the financial and racial impacts that approval of a charter school will have on a public school district.


The providing of public education in New Jersey is a state function. Our constitution mandates that the Legislature must "provide for the maintenance and support of a thorough and efficient system of free public schools" for New Jersey's children. N.J. Const. art. VIII, § 4, ¶ 1. Until recently that obligation has been carried out through a system of local school districts functioning as governmental entities. As the challenge of providing a quality education has become more complex and difficult, however, the Legislature has determined to authorize an alternative format, different from the traditional local school district model and known generally as charter schools, for providing public education to New Jersey children. As defined in New Jersey's enabling Act, a charter school is a public school operated pursuant to a charter approved by the Commissioner of Education, which is independent of a local board of education and is managed by a board of trustees. N.J.S.A. 18A:36A-3.

In choosing to experiment with the use of charter schools, New Jersey is not alone. Our state is one of many that has enacted legislation to permit this alternative. The establishment of charter schools across the nation has varied from state to state, but such schools generally share some common characteristics.

Charter schools are public schools, which through legislative authorization are free from many state and local regulations. See Kevin S. Huffman, Note, Charter Schools, Equal Protection Litigation, and the New School Reform Movement, 73 N.Y.U. L. Rev. 1290, 1294 (1998) (discussing characteristics of charter schools). Charter schools have more autonomy than other public schools in staffing, curriculum and spending choices. Ibid. Generally, if the goals set forth in the school's charter are not fulfilled, the charter is not renewed. See National Conference of State Legislatures, Education Program: Charter Schools (last visited May 30, (website discussing background on charter school legislation). Such schools actually are accountable to several groups for both their academic results and fiscal practices, including the charter schools' governmental approving authority, the individuals who organize the schools and the public that funds them.

The charter school movement in the United States started in 1991, when Minnesota enacted the first charter school law. California followed in 1992. U.S. Dep't of Educ., The State Charter Schools 2000: Fourth- Year Report at 11 (Jan. 2000) (U.S. Dept. of Educ.). *fn1 By April 1995, when the Act was being considered by the New Jersey Legislature, twelve states authorized the establishment of charter schools, and a number of other states were considering similar legislation during the 1995-1996 session. Public Hearing before Senate Educ. Comm.: Senate Bill No. 1796 (The Charter School Program Act of 1995) (April 28, 1995), 1995-1996 Legislative Session (testimony of Alex Medler, Policy Analyst, Education Commission of the States) at 5X. In 1999 three states, New York, Oklahoma and Oregon, passed charter school legislation, bringing the total number of jurisdictions with charter school laws to thirty-six states and the District of Columbia. U.S. Dept. of Educ., supra, at 1.

Proponents of charter schools maintain that "the movement is the first public school reform effort that brings together school choice, entrepreneurial opportunities for teachers and parents, accountability for results, and competition with other schools." Huffman, supra, 73 N.Y.U. L. Rev. at 1300. Its advocates cite empirical studies and anecdotal evidence about the deterioration of public schools to demonstrate the need for school reform. Ibid. Advocates view the charter schools as a way to increase innovation in public schooling, contending that increased activism will promote creativity in management and curricula. Id. at 1300-1301. Opponents of charter schools, on the other hand, express concern that "loose regulation will allow charter schools to siphon the wealthiest and best-educated families from traditional public schools," and that the creation of charter schools "will disproportionately burden lower classes and children of color." Id. at 1302.

The U.S. Department of Education, in its Year 2000 charter school study, lists "realizing an alternative vision for schooling" as the most important reason given by educators surveyed for establishing charter schools. U.S. Dept. of Educ., supra, at 42. Among the other reasons provided by those surveyed were the desire to serve a special population - often students considered to be "at risk" - and the desire to gain autonomy from state or district regulation. Ibid.

New Jersey's Charter School Act shares many of the broader goals voiced by advocates of the charter school movement nationwide. In the Findings and Declarations section of the Act, the Legislature stated that

charter schools offer the potential to improve public learning; increase for students and parents the educational choices available when selecting the learning environment which they feel may be the most appropriate; encourage the use of different and innovative learning methods; establish a new form of accountability for schools; require the measurement of learning outcomes; make the school the unit for educational improvement; and establish new professional opportunities for teachers. [N.J.S.A. 18A:36A-2.]

The statute further provides that the Legislature "finds that the establishment of a charter school is in the best interests of the students of this State and it is therefore the public policy of the State to encourage and facilitate the development of charter schools." N.J.S.A. 18A:36A-2.

The Act sets forth the procedure for establishing a charter school, N.J.S.A. 18A:36A-4, and the information that must be contained in an application for charter school approval. N.J.S.A. 18A:36A-5. Operating guidelines, admission and enrollment policies, and transportation services are detailed in the Act. N.J.S.A. 18A:36A-7, -8, -11 and -13. As for funding, the Act provides that the district of residence of the charter school shall forward to the school a per-pupil amount set by the Commissioner, but presumptively set by the Legislature at 90% of the local levy budget per pupil for that student's grade level in the district. N.J.S.A. 18A:36A-12. The Commissioner cannot set this amount at a level greater than 100%, and may set it lower than the presumptive 90%. Ibid. The standards and procedures are detailed in duly promulgated regulations of the State Board of Education (State Board). N.J.A.C. 6A:11-1.1 to -8.2. Both the Act's provisions, as well as the regulations, provide for notice to the local school district when an application for approval of a charter school is filed, and an opportunity to appeal the Commissioner's decision on such an application to the State Board. N.J.S.A. 18A:36A-4(c), (d); N.J.A.C. 6A:11-2.1(b)3, -2.1(e), -2.5.

The three school districts challenging the facial validity of the Act in this consolidated appeal essentially disagree with the legislative decision to allow charter schools to become part of the provision of public education in our state. That argument has been made, and lost, before the Legislature. The choice to include charter schools among the array of public entities providing educational services to our pupils is a choice appropriately made by the Legislature so long as the constitutional mandate to provide a thorough and efficient system of education in New Jersey is satisfied. See Robinson v. Cahill, 62 N.J. 473, 508-09 & 509 n.9, cert. denied, 414 U.S. 976, 94 S. Ct. 292, 38 L. Ed.2d 219 (1973) (holding that obligation to provide thorough and efficient system of free public schools is State's constitutional responsibility; determination to enlist local school districts to meet obligation permissible so long as State ensures that means chosen to deliver educational services fulfills constitutional obligation).

Certain principles permeate our school laws. As stated above, one is that the State's obligation to provide a thorough and efficient system of education in our public schools is inviolate. So, too, must the State ensure that no student is discriminated against or subjected to segregation in our public schools. Because of the abiding importance of those two principles and the potential impact of the charter school movement on public education, the Act, and the State's efforts to implement it, require careful scrutiny.

II. Racial Impact

The Englewood City Board of Education (Englewood) contends that the Act on its face, and as applied, is flawed because the Commissioner is not required to and, in practice, does not assess the effect on racial balance that a charter school may have on a public school district from which it draws its pupils. *fn2 Englewood asks the Court to require the Commissioner to perform a study of the potential racial imbalancing effects of a charter school on a district of residence before the Commissioner approves a charter school application. *fn3

Rooted in our Constitution, New Jersey's public policy prohibits segregation in our public schools:

The history and vigor of our State's policy in favor of a thorough and efficient public school system are matched in its policy against racial discrimination and segregation in the public schools. Since 1881 there has been explicit legislation declaring it unlawful to exclude a child from any public school because of his race (L. 1881, c. 149; N.J.S.A. 18A:38-5.1), and indirect as well as direct efforts to circumvent the legislation have been stricken judicially. In 1947, the delegates to the Constitutional Convention took pains to provide, not only in general terms that no person shall be denied any civil right, but also in specific terms that no person shall be segregated in the public schools because of his "religious principles, race, color, ancestry or national origin." Art. 1, para. 5. [Jenkins v. Township of Morris Sch. Dist. and Bd. of Educ., 58 N.J. 483, 495-496 (1971) (citations omitted).]

New Jersey's abhorrence of discrimination and segregation in the public schools is not tempered by the cause of the segregation. Whether due to an official action, or simply segregation in fact, our public policy applies with equal force against the continuation of segregation in our schools. Booker v. Board of Educ., Plainfield, 45 N.J. 161 (1965). We have exhorted the Commissioner to exercise broadly his statutory powers when confronting segregation, whatever the cause. Jenkins, supra, 58 N.J. at 506-507. Responsive to that obligation, the Commissioner has required school districts to monitor racial balance in the public schools. Districts are provided with guidelines to assist them in the review of their schools' pupil populations so they may be ...

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