In re Grant of Charters to Merit Preparatory Charter School and Newark Preparatory Charter School, 435 N.J. Super. 273 (App. Div. 2014). Charter schools are the subject of much controversy. In this case, the Commissioner of Education issued charters to two schools, Merit Preparatory Charter School of Newark and Newark Preparatory Charter School, each of which used a “teaching methodology that combines in-person, face-to-face teaching and online instruction by means of internet materials.” The New Jersey Education Association (“NJEA”), unhappy with “the diversion of public funds and resources from traditional public schools,” appealed the grant of the charters. NJEA asserted that the Charter School Program Act, N.J.S.A. 18A:36A-1 to -18 (“the Act”), authorized charters only for “brick and mortar” schools, not for schools that provide online instruction. In an opinion by Judge Ashrafi, the Appellate Division rejected NJEA’s appeal and affirmed the grant of the charters. [Disclosure: My firm, Lite DePalma Greenberg, LLC, was co-counsel for Newark Preparatory Charter School].
Judge Ashrafi first addressed the question whether NJEA had standing to contest the charters. Citing N.J.S.A. 18A:36A-4(d) and N.J.A.C. 6A:11-2.5, the Commissioner contended that the Act does not create a private right of action for anyone except the applicant or a local school board to challenge the issuance of a charter. The panel disagreed. Judge Ashrafi noted that New Jersey courts “take a liberal approach to standing to seek review of administrative actions,” and that professional organizations may have standing to sue on behalf of their members. NJEA asserted that public funding for traditional public schools would be starved if online teaching methods are funded by tax dollars, with a direct adverse effect on the employment of NJEA’s members and deleterious effects on students as well. The court expressed doubt that NJEA’s members would be adversely affected by the grant of charters to schools that use a blended teaching methodology. But the “slight private interest” that the panel perceived NJEA had, along with the “substantial public interest” in the “novel legal issue of whether the Commissioner may approve a charter school that employs blended teaching methodology using internet materials,” conferred standing on NJEA.
On the merits, Judge Ashrafi easily determined that the Commissioner had authority to issue these charters. The arbitrary, capricious, and unreasonable standard of review applied, and the panel was required to “give substantial deference” to the agency’s interpretation of the Act, which it was charged with enforcing.
NJEA contended that the Act did not explicitly, or even implicitly, authorize the issuance of charters that employ online teaching methods, either solely or together with conventional educational methodologies. But Judge Ashrafi observed that the Legislature’s goal, as stated in N.J.S.A. 18A:36A-2, was to allow “a variety of educational approaches which may not be available in the traditional public classroom” and to “encourage the use of different and innovative learning methods.” That expression of legislative policy defeated NJEA’s argument. “If onliine teaching methods are prohibited because they are not expressly mentioned, then it follows that all novel teaching methods not prescribed by the Act are prohibited. Adopting the NJEA’s position would defeat the Legislature’s stated purpose.”
Judge Ashrafi then rejected what might be called an “originalist” view of the Act. “The Legislature may not have contemplated the use of internet-based teaching when the Act was passed in 1995, but the Act cannot be read narrowly as only allowing methods that were in existence at its inception. Certainly, the Legislature did not intend to exclude advances in technology from charter school classrooms. It intended just the opposite.”
The panel quickly rejected other arguments made by NJEA as well. Judge Ashrafi concluded that the Commissioner’s issuance of the charters “was not contrary to his legislative authority and is supported by substantial evidence in the record,” including the schools’ applications for charters, which “explained how online teaching methods are designed to create a personalized, differentiated educational experience that incorporates self-paced learning with teacher interaction, a method that is typically not available in traditional public schools.” The grant of the charters was not arbitrary, capricious, or unreasonable.