On appeal from The State Board of Education, Docket No. 1-02.
Before Judges Stern, A.A. Rodríguez and Lefelt.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The Red Bank Board of Education opposed the renewal and expansion of the charter for the Red Bank Charter School, arguing, along with several other arguments, that the school's operation had worsened the racial/ethnic imbalance in the district schools. After conducting a site visit, interviewing several Charter School representatives, and reviewing the reports and other documents that had been assembled, the Commissioner approved the renewal and expansion. The Red Bank Board appealed to the State Board of Education. The State Board affirmed the Commissioner, and the Red Bank Board further appealed to this court.
In deciding the appeal, we harmonize"the public policy of [this] State to encourage and facilitate the development of charter schools," N.J.S.A. 18A:36A-2, with our strong"policy against racial discrimination and segregation in the public schools," Jenkins v. Tp. of Morris Sch. Dist., 58 N.J. 483, 495 (1971), and affirm the charter renewal, but remand to the State Board for the Commissioner to conduct a hearing to consider whether certain enrollment and other practices by the Charter School exacerbate the district's racial/ethnic imbalance.
After setting forth the facts and procedural history, we address the segregation argument, followed by several additional arguments the Red Bank Board advanced in seeking reversal of the Charter School's renewal and expansion. We begin with the pertinent facts and relevant procedural history.
The Red Bank Charter School is a public school managed by a board of trustees and operated independently of the local Red Bank Board of Education under a charter granted by the Commissioner of Education. N.J.S.A. 18A:36A-3; N.J.A.C. 6A:11-1.2. The first year of the school's operation was 1998-99. On October 1, 2001, the Charter School, which had been serving 80 students in fourth through eighth grades, applied to the Commissioner for renewal and expansion of its initial charter, pursuant to the Charter School Program Act of 1995, N.J.S.A. 18A:36A-1 to -18, and the regulations adopted under that Act, N.J.A.C. 6A:11-1 to -7.3. Besides renewal of its charter for five additional years, N.J.S.A. 18A:36A-17, the school sought to add kindergarten through third grade and to increase the enrollment of its existing fourth through eighth grades. The expansion would approximately double the size of the charter school to 162 students.
On November 1, 2001, the Red Bank Board filed detailed opposition to the Charter School's application, arguing, among other items, that the school had"exacerbated de facto segregation" in the district schools and that a hearing should be granted"to fully assess the negative impact of the continued existence and proposed expansion of the Red Bank Charter School prior to taking any action."
The Board specifically pointed to data showing that since the Charter School opened, the percentage of non-minority students enrolled in the Board's schools had decreased from 32% to 18%. Although the Charter School had only 1/4 of the number of students as the Red Bank Middle School, the Charter School had more non-minority students enrolled (46), than the Red Bank Middle School (44). The 2001-02 Red Bank Middle School's fourth grade class was comprised of 90% minority students. In 2002, the Charter School had almost twice as many non-minority students in a single fourth grade class of 16 students than the Red Bank Middle School had throughout all of its fourth grade classes.
Under the pertinent regulations, the Commissioner must conduct a"comprehensive review" before granting a charter renewal. N.J.A.C. 6A:11-2.3(b). To assess the charter school's performance as part of the comprehensive review, a"structured interview" must be conducted. N.J.A.C. 6A:11-2.3(b)(9). In accordance with the regulations, on November 29, 2001, the Department of Education conducted a day-long"structured interview" and site visit of the Charter School.
As part of its evaluation, the Department of Education invited the Charter School to respond to the Board's objections. The school responded and supplied supplemental information on December 6, 2001. The Board objected to the supplemental information and, in the alternative, asked for permission to respond. The Board contends that the Commissioner failed to acknowledge its objection or alternative proposal.
In response to the Commissioner's request, the Charter School asserted that"the loss of white children from the Board's schools is due in large part to white children attending private schools, parochial schools and home schooling." The Charter School further asserted that"'white flight' was occurring long before the Charter School opened its doors; and that the continued erosion in the racial demographics of the Board's schools is the result of dynamics that originally commenced in the 1960s and the poor quality of education provided in its schools."
Besides considering the documents that had been submitted by the Charter School and the Board together with the results of its structured interview and site visit, the Department of Education also reviewed an evaluation of the school that it had commissioned by KPMG. This evaluation concluded that"By all measures, [the Charter School] has met with significant success both academically and as a dynamic learning community."
After the Commissioner finished the review, he renewed the school's charter and permitted the expansion. The Commissioner based his approval on"the school's academic progress, faithfulness to the terms of the original charter and the school's thorough examination of its results to guide improvements." The Commissioner made no mention of the Board's segregation charges in his renewal letter.
Upon administrative appeal by the local Board, the State Board of Education affirmed the Commissioner and concluded that the Board had not"demonstrated that the Charter School has had a segregative effect on the district's schools or that expansion of the School will have an impermissible impact on the racial composition of the district's schools."
No stays were granted, and the expanded Charter School is currently serving 162 students in kindergarten through eighth grade. The local Board filed a timely appeal with this court.
The following sections address the several arguments pressed by the Board in its efforts to reverse the Charter School's renewal and expansion. We start with the segregation argument.
The Board complains that because the Commissioner breached his duty to investigate, detect, and remediate the segregative effect of the Charter School, we must reverse the State Board and close the school. The Charter School counters by asserting that the racial/ethnic imbalance found in the ...