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Education Law Center v. New Jersey State Bd. of Education

Superior Court of New Jersey, Appellate Division

November 12, 2014

EDUCATION LAW CENTER on behalf of ABBOTT V. BURKE PLAINTIFF SCHOOLCHILDREN, Appellant,
v.
NEW JERSEY STATE BOARD OF EDUCATION and CHRISTOPHER D. CERF, COMMISSIONER, NEW JERSEY DEPARTMENT OF EDUCATION, Respondents

Argued: October 8, 2014.

Approved for Publication November 12, 2014.

On appeal from the adoption of N.J.A.C. 6A:11-1.2 and 6A:11-2.6(a)(1)(iv), and the repeal of N.J.A.C. 6A:11-2.6(a) by the New Jersey State Board of Education.

Elizabeth Athos argued the cause for appellant (Education Law Center, attorneys; Ms. Athos and David G. Sciarra, on the brief).

Lauren A. Jensen, Deputy Attorney General, argued the cause for respondents ( John J. Hoffman, Acting Attorney General, attorney; Michelle Lyn Miller, Assistant Attorney General, of counsel; Ms. Jensen, on the brief).

Benjamin Yaster argued the cause for amicus curiae Save Our Schools New Jersey ( Gibbons P.C., attorneys; Mr. Yaster and Lawrence S. Lustberg, on the brief).

Before Judges FUENTES, ASHRAFI, and KENNEDY. The opinion of the court was delivered by ASHRAFI, J.A.D.

OPINION

Page 930

[438 N.J.Super. 111] ASHRAFI, J.A.D.

Page 931

In this appeal, we consider whether the New Jersey State Board of Education could lawfully adopt regulations to permit existing, successful charter schools to open satellite locations within their districts of residence. We conclude the regulations are a valid exercise of the State Board's administrative authority.

The Education Law Center (ELC) challenges the State Board's adoption of two amended regulations and the repeal of a third applicable under the Charter School Program Act of 1995 (the Act), N.J.S.A. 18A:36A-1 to -18. Save Our Schools New Jersey, which describes itself as a volunteer-led organization of parents and concerned residents of New Jersey, supports ELC's appeal as an amicus curiae.

ELC and Save Our Schools contend that the State Board exceeded its statutory authority and acted arbitrarily and capriciously when it: (1) amended N.J.A.C. 6A:11-2.6(a)(1)(iv) to authorize the addition of satellite campuses to some existing charter [438 N.J.Super. 112] schools; (2) amended N.J.A.C. 6A:11-1.2 to define the term " satellite campus" ; and (3) repealed N.J.A.C. 6A:11-2.6(a)(2), which had barred existing charter schools from amending their charters to alter the mission, goals, or objectives of the school. ELC and Save Our Schools contend that the revised regulations are an expansion of the charter school program and that such an expansion may be accomplished only by the Legislature enacting new laws, not by the State Board and the Commissioner of Education through administrative action. Save Our Schools adds that the regulatory amendments risk creating charter schools that will fail, and the failures will have a disproportionate impact on impoverished school children in under-performing school districts.

We conclude that the State Board had the statutory authority to amend and repeal its regulations as it did, and that the speculative policy arguments advanced by Save Our Schools may be better addressed to the Legislature or to individual charter school expansions than as a facial attack on the amended regulations. We affirm the State Board's action in adopting and repealing the challenged regulations.

I.

" A charter school [is] a public school operated under a charter granted by the [C]ommissioner [of Education], which is operated independently of a local board of education and is managed by a board of trustees." N.J.S.A. 18A:36A-3(a). Charter schools are funded primarily by taxes collected from the public that would otherwise fund traditional public education. See N.J.S.A. 18A:36A-12. A charter school may not enroll students on the basis of selective criteria such as " intellectual or athletic ability," and it may not discriminate on the basis of " measures of achievement or aptitude, status as a handicapped person, proficiency in the English language, or any other basis that would be illegal if used by a [public] school district." N.J.S.A. 18A:36A-7. A charter school may, however, " limit admission . . . to areas of concentration of the school, such as mathematics, science, or the arts," [438 N.J.Super. 113] and it may " establish reasonable criteria to evaluate prospective students." Ibid.

The legislative purpose of authorizing charter schools is to promote educational reform " by providing a mechanism for the implementation of a variety of educational approaches which may not be available in the traditional public school classroom." N.J.S.A. 18A:36A-2. The Legislature found that " the establishment of a charter school program is in the best interests of the students of this State and it is therefore the public policy of the State to encourage

Page 932

and facilitate the development of charter schools." Ibid.

The Legislature granted to the State Board the authority to adopt such rules and regulations as are " necessary to effectuate the provisions of" the enabling legislation. N.J.S.A. 18A:36A-18. The first series of regulations under the Act were adopted by the State Board in July 1997. 29 N.J.R. 3492(a) (Aug. 4, 1997); N.J.A.C. 6A:11-1.1 to -6.4.

Together with the statutory criteria, see N.J.S.A. 18A:36A-4, -4.1, -5, the regulations subject a proposed charter school to a rigorous application process. See N.J.A.C. 6A:11-2.1. Among the many requirements, the application must state the school's educational goals and objectives, the admission criteria for students, the assessment methods that will determine whether students are achieving the stated goals of the school, and the address and description of the physical building in which the school will be located. Ibid. The application process also includes an in-depth interview of representatives of the school with the Commissioner of Education and a preparedness visit with personnel from the Department of Education. Ibid.

Once a charter school has been established, the Commissioner must assess annually whether the school is meeting the goals stated in its charter. N.J.S.A. 18A:36A-16(a). If the school violates any provision of its charter, the Commissioner may revoke the charter, place the school on probationary status, require the [438 N.J.Super. 114] school to take corrective action, or reject renewal of the charter for a subsequent term. N.J.S.A. 18A:36A-17.

Since adoption of the original implementing regulations in 1997, charter schools have been permitted to " apply to the Commissioner for an amendment to the charter . . . ." N.J.A.C. 6A:11-2.6; 29 N.J.R. 3492(a). However, the original regulations prohibited an amendment that would alter the mission, goals or objectives of the existing charter school, N.J.A.C. 6A:11-2.6(a)(2) (repealed), and they made no reference to satellite campuses. 29 N.J.R. 3492(a).

The Department of Education proposed the challenged regulatory changes in May 2012 by means of the formal process for amending the charter school regulations. See N.J.A.C. 6A:6-3.1. ELC submitted written comments to the State Board opposing " strongly" the proposed new regulations on the ground that they permitted expansion of the State's charter school program through regulation rather than legislative action. The State Board reviewed comments from ELC and others and made some changes to the proposed amendments, but it did not rescind or modify the proposed regulatory changes that are the subject of this appeal. After the State Board published notice of the proposed amendments in the New Jersey Register, 44 N.J.R. 2151(a) (Sept. 4, 2012), a sixty-day public comment period opened, and the State Board took public testimony on the ...


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