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J.D. v. Davy

July 16, 2010

J.D., BY HIS MOTHER TRISHA SCIPIO-DERRICK; J.G., BY HER GUARDIAN MARCELLE GREGORY-BECK; J.C., BY HIS MOTHER LATONYA COLSON; D.C., BY HER MOTHER LATONYA COLSON, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
LUCILLE DAVY, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF EDUCATION, IN HER OFFICIAL CAPACITY; STUART RABNER, NEW JERSEY ATTORNEY GENERAL, IN HIS OFFICIAL CAPACITY; BRADLEY ABELOW, TREASURER OF THE STATE OF NEW JERSEY, IN HIS OFFICIAL CAPACITY; YUT'SE THOMAS, ASSISTANT COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF EDUCATION, FINANCE DIVISION, IN HER OFFICIAL CAPACITY, SCOTT WEINER, CHIEF EXECUTIVE OFFICER, NEW JERSEY SCHOOLS CONSTRUCTION CORPORATION, IN HIS OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Essex County, Docket No. C-393-06.

The opinion of the court was delivered by: Lisa, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 3, 2010

Before Judges Lisa, Baxter and Coburn.

Plaintiffs, four students attending two Newark Charter Schools, brought this putative class action on behalf of the approximately 3100 Newark children attending charter schools. They contended that provisions in the Educational Facilities Construction and Financing Act (EFCFA), N.J.S.A. 18A:7G-1 to -48, and the Charter School Program Act of 1995 (CSPA), N.J.S.A. 18A:36A-1 to -18, that govern state funding for charter schools violate their equal protection rights under the New Jersey Constitution, N.J. Const. art. I, ¶ 1, because charter schools receive only ninety percent of the per pupil funding provided to traditional public schools, N.J.S.A. 18A:36A-12, and charter schools are excluded from receiving any state or local funding for facilities under the provisions of EFCFA, see N.J.S.A. 18A:7G-3, and the CSPA, see N.J.S.A. 18A:36A-10. Newark is a former Abbott district, now known as an SDA district under the EFCFA. As such, Newark's traditional public schools receive one hundred percent facilities funding. N.J.S.A. 18A:7G-5k. All non-SDA districts in the State receive at least forty percent facilities funding for their traditional public schools.*fn1 Ibid.

Plaintiffs contended that these statutory provisions, either individually or in combination, unlawfully discriminate against them. They alleged that they are "educated with a mere fraction of the per-pupil funding available to similarly-situated NPS [Newark Public School] students." They also alleged that they are similarly situated to their friends and neighbors who attend traditional Newark public schools and that they face the same unique educational challenges as their peers in a poor urban district and "are at a higher risk of school failure because of problems related to poverty including inadequate housing, violence, crime, substance abuse, teenage pregnancy, and parenthood." (citing Abbott v. Burke, 153 N.J. 480, 562 (1998) (Abbott V)). They therefore contended that the aggregate impact of the funding scheme "frustrates the ability of [plaintiffs'] schools to meet [their] unique educational needs."

Plaintiffs sought a declaration that N.J.S.A. 18A:36A-10 (barring charter schools from receiving state or local funding for facilities) and N.J.S.A. 18A:36A-12 (providing ninety percent per pupil funding for operational costs), individually or in combination, violate Article 1, Paragraph 1 of the New Jersey Constitution.*fn2 Plaintiffs also sought to "enjoin Defendants to design public charter school funding provisions that do not violate the equal-protection guarantee of the New Jersey Constitution."

Defendants responded to the complaint with a motion to dismiss for failure to state a claim upon which relief can be granted. See R. 4:6-2(e). The judge granted the motion and dismissed the complaint with prejudice. The judge was of the view that, in accordance with established precedents, equal protection analysis is not applicable to school funding issues and, alternatively, even if it were, plaintiffs' complaint failed to set forth a viable equal protection challenge. For the reasons that follow, we affirm.

I.

Some background discussion regarding the nature and operation of charter schools in New Jersey is necessary to our analysis of the issues before us. With the enactment in 1995 of the CSPA, charter schools became an option for public education in New Jersey. The Legislature declared it the public policy of New Jersey to encourage and facilitate the development of charter schools. N.J.S.A. 18A:36A-2. The Legislature found that the establishment of charter schools would assist in education reform by providing educational approaches not available in traditional public schools. Ibid. Specifically, charter schools offer the potential to improve pupil 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. [Ibid.]

A charter school is a public school, which is operated under a charter granted by the Commissioner of Education (Commissioner). N.J.S.A. 18A:36A-3a. Charter schools are operated independently of local boards of education and are managed by a board of trustees, who are deemed public agents authorized by the State Board of Education to supervise and control the charter school. Ibid. The board of a charter school must comply with the provisions of the Open Public Meetings Act. N.J.S.A. 18A:36A-6.

A charter school may be established by teachers, parents with children attending school in the district, a combination thereof, an institution of higher education, or a private entity. N.J.S.A. 18A:36A-4a. Additionally, a currently existing public school may become a charter school if more than half the teachers and parents of the school sign a petition. N.J.S.A. 18A:36A-4b. An application must be filed stating, among other things, the curriculum to be offered and the methods of assessing whether students are meeting educational goals. N.J.S.A. 18A:36A-5d.

Unlike traditional public schools and school districts, charter schools are authorized to accept gifts or grants for school purposes. N.J.S.A. 18A:36A-6g. They can also receive federal funds. N.J.S.A. 18A:36A-10. A charter school has all the powers necessary or desirable for carrying out the provisions of its charter, including the acquiring of real property for use as a school facility from public or private sources by purchase, lease or gift. N.J.S.A. 18A:36A-6c.

The application process is extensive and rigorous. The application must include a financial plan. N.J.S.A. 18A:36A-5l. That plan, of course, must be formulated within the funding parameters providing for ninety percent per pupil operational funding and no facilities funding. The applicable regulations establish a two-step process for the application. N.J.A.C. 6A:11-2.1. In the first step, the applicant must "include a description of the informational items listed in N.J.S.A. 18A:36A-5 and a description of how those items relate to such matters as the charter school mission, objectives, special populations, and transportation needs." In re Grant of Charter Sch. Application, 164 N.J. 316, 337 (2000) (citing N.J.A.C. 6A:11-2.1(b)1). If the applicant receives preliminary approval based upon that information, the applicant then must submit additional information, such as "identification of its facility and lease, mortgages or title to its facility, a certificate of occupancy by the appropriate local official, a sanitary inspection report and a fire inspection certificate." Ibid. (citing N.J.A.C. 6A:11-2.1(g)3 to 6). Within those parameters, the financial plan must satisfy the Commissioner that the charter school can adequately serve the educational needs of the prospective students. Those students are required to meet the same testing and academic performance standards that pertain to traditional public school students, and they must also meet any additional assessment indicators which are included within the charter approved by the Commissioner. N.J.S.A. 18A:36A-5d.

Charter schools are open to all students on a space available basis. N.J.S.A. 18A:36A-7. While the school may not discriminate in its admissions policies, it may limit admission to a particular grade level or area of concentration such as math or science. Ibid. The school may not charge tuition to students residing in the school district and enrollment preference must be given to district residents. N.J.S.A. 18A:36A-8a.

Enrollment in a charter school is completely voluntary, and a student may withdraw from a charter school at any time and enroll in a traditional public school. N.J.S.A. 18A:36A-9. A charter school may be located in any suitable location, including in a portion of an existing public school building. N.J.S.A. 18A:36A-10. The facility is exempt from public school facility regulations, except those pertaining to the health or safety of students. Ibid. While the charter school must operate in accordance with its charter and the laws governing traditional public schools, the Commissioner upon request of the charter school may exempt the charter school from all state regulations concerning public schools except those regarding assessment, testing, civil rights, and student health and safety. N.J.S.A. 18A:36A-11a. Moreover, the board of trustees of the charter school has the "authority to decide matters related to the operations of the school including budgeting, curriculum, and operating procedures." N.J.S.A. 18A:36A-14a.

Once finally approved, an initial charter is for a term of four years. N.J.S.A. 18A:36A-17. Thereafter, renewals are for five year terms. Ibid. However, during the operation of a charter school, the Commissioner is required to "annually assess whether each charter school is meeting the goals of its charter, and shall conduct a comprehensive review prior to granting a renewal of the charter." N.J.S.A. 18A:36A-16a. The county superintendent of schools is provided ongoing access to the records and facilities of charter schools within that county to ensure that each charter school complies with its charter and with all applicable regulations regarding assessment, testing, civil rights, and student health and safety. Ibid. Each charter school is required to submit an annual report to the local board of education, the county superintendent, and the Commissioner, which is used to facilitate the Commissioner's annual review. N.J.S.A. 18A:36A-16b.

If not satisfied that a charter school has fulfilled any condition of its charter, or if it has violated any provision of its charter, the Commissioner may revoke the charter at any time. N.J.S.A. 18A:36A-17. The Commissioner may also place a charter school on probationary status to allow implementation of a remedial plan, and if implementation of that plan is unsuccessful, the charter ...


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