On appeal from the Department of Education.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
The East Brunswick Board of Education (Board) appeals from the Commissioner of the Department of Education's (Commissioner) approval of the charter of Hatikvah International Academy Charter School (Hatikvah) commencing July l, 2010. According to the Board, the Commissioner disregarded the Department of Education's (Department) regulations pertaining to the charter school application and approval process, contending, in particular, Hatikvah had not met the ninety percent of maximum enrollment requirement of N.J.A.C. 6A:11-2.l(i)(l4) as of the applicable date and was thus ineligible to receive final approval. The Board urges us to revoke Hatikvah's charter and remand the matter to the Commissioner to set a timetable for it to wind down its operations, or take other steps as a result of Hatikvah's purportedly deficient application. Based on our review of the record and applicable law, we are not convinced the Commissioner abused his discretion and affirm.
In March 2009, Danna Nezaria, President of the Board of Trustees of Hatikvah, submitted Hatikvah's application to the Department to establish a charter school in East Brunswick that proposed to serve grades kindergarten through second during its first year of operation -- 2010 to 2011. By letter of May l5, 2009, the Board recommended the Commissioner deny Hatikvah's charter status.
On September 22, 2009, then-Commissioner Lucille Davy granted Hatikvah conditional approval, contingent on receipt of additional statutorily-required documentation. In October, the Board sought reconsideration of this conditional approval.
Subsequent correspondence and meetings ensued between Hatikvah and Department representatives and on-site visits were conducted by Department representatives. By letter of July 6, 20l0, then-Commissioner Bret Schundler granted final approval of Hatikvah's charter status. A copy of the letter was sent to the East Brunswick Township District Superintendent.
On August 11, 20l0, the Board filed with the Commissioner an emergent motion for a stay of his decision, and filed with this court a notice of appeal of the Commissioner's final determination. On August 25, the Commissioner denied the Board's motion for a stay, and on August 27, we declined to permit the Board to file an emergent motion for a stay. By order of September 23, we also denied the Board's motion for a stay pending appeal.
In the meantime, on September 2, 2010, Hatikvah filed a complaint and order to show cause in the Law Division to compel the Board to transmit State aid and local funds to it. By order of September l4, 2010, the court denied emergent relief and dismissed Hatikvah's complaint for lack of jurisdiction based on the pending appeal. We granted Hatikvah permission to file emergent motions on short notice. However, by letter of September 28, then-Acting Commissioner Rochelle Hendricks directed the Board to forward payments to Hatikvah, and the Board promptly complied.
By orders of March 15, 20ll, we granted motions by both the Board and Hatikvah to supplement the record on appeal with certain exceptions, and a motion by the Board to seal certain student-identifying information. By order of August l2, 20ll, we granted amici status and permission to participate in oral argument to the Boards of Education of the Princeton Regional, South Brunswick Township and West Windsor-Plainsboro Regional School Districts, and accelerated the appeal.
In its application, Hatikvah identified East Brunswick as its "district of residence." N.J.A.C. 6A:11-1.2. It projected commencing in September 2010 as a K-2 institution with total enrollment of l08 students, and anticipated growing to a K-5 institution with a maximum of 240 students by the completion of the first four years of the charter.
After reviewing Hatikvah's application, N.J.S.A. 18A:36A-4(c), the Board adopted a resolution on May 14, 2009, recommending the Commissioner deny Hatikvah's charter school status, and authorized its President and District Superintendent to submit to the Commissioner a comprehensive letter in opposition to the application. This letter was sent the next day, alleging Hatikvah's application interfered with the separation of church and state, had a negative economic impact on the district's taxpayers, and did not comport with the requirements for charter schools as codified in N.J.A.C. 6A:ll because it did not include an educator from East Brunswick. The letter further asserted Hatikvah's single-cultural, single-emersion Hebrew language charter school would be at odds with and would not serve the multi-cultural community; it would unfairly compete with the Solomon Schechter Day School in East Brunswick; its proposed full day kindergarten would result in a lack of educational ...