More on Charter Schools

Education Law Center v. New Jersey State Bd. of Educ., 438 N.J. Super. 108 (App. Div. 2014).  In In re Grant of Charters to Merit Preparatory School and Newark Preparatory Charter School, 435 N.J. Super. 273 (App. Div. 2014), discussed here, the Appellate Division, speaking through Judge Ashrafi, held that the Commissioner of Education could approve charter schools whose programs included online instruction.  [Disclosure:  My firm, Lite DePalma Greenberg, LLC, was one of the counsel for the charter schools in that case].  Today, in another opinion by Judge Ashrafi, the Appellate Division ruled that the New Jersey State Board of Education “could lawfully adopt regulations to permit allow existing, successful charter schools to open satellite locations within their districts of residence.”  The court applied the de novo standard of review to the agency’s interpretation of the governing statute, the Charter School Program Act of 1995, N.J.S.A. 18A:36A-1 to -18 (“the Act”), while according deference to and presuming the validity of the regulations adopted by the agency.

Plaintiff Education Law Center, a public interest group, supported by an amicus curiae, contended that the regulations allowing satellite locations and defining “satellite campus”  a definition that limited satellite campus to certain school districts in underprivileged areas) represented an expansion of charter schools that could be authorized only by the Legislature, not by the State Board.  Judge Ashrafi disagreed.  The plain language of the Act did not expressly authorize satellite campuses.  But neither did that language preclude them.  “[T]he Legislature’s overarching purpose to encourage and facilitate the development of charter schools,” as expressed in the Act, read correctly and as a whole, allowed for satellite campuses.  Judge Ashrafi did not “read the Act as requiring legislation for every type of amendment to existing school charters that might have the effect of expanding the school’s educational program.”

Offering a pun, Judge Ashrafi then turned to what he called plaintiff’s “more concrete argument” that the Act “did not authorize expansion of an existing charter school beyond its initially-approved physical building.”  Plaintiff argued that the traditional meaning of a “school” is a single building.  Judge Ashrafi rejected that position, noting that the Act allowed charter schools to acquire property, and that nothing in the Act limited them to acquiring only one building.  Besides, permitting a successful charter school to expand to an additional location would be consistent with the legislative purpose of facilitating charter schools.

Plaintiff also objected to the fact that the satellite could be established by an amendment to an existing charter.  It contended that the agency had to conduct a full review before a satellite campus could be set up.  Judge Ashrafi agreed with the agency’s contrary position that an existing charter school has already gone through a rigorous review in order to get the charter in the first place, and that only successful charters would be allowed to have satellite campuses.  “[T]he addition of a satellite campus is more like the expansion of grade and enrollment levels than the opening of an entirely new charter school.”  The panel also rejected, as speculative, arguments made by the amicus that the procedure for allowing satellite campuses would harm communities of color or poorer neighborhoods.

Finally, the court found no difficulty with the repeal of a regulation by the agency.  That repeal, plaintiff argued, allows a charter school to change its mission, goals or objectives.  Nothing in the Act requires that a school’s mission or objectives “remain static as initially set forth in the school’s application.  As a charter school expands, its original mission statements may also require expansion.”