In re Renewal Application of Team Acad. Charter Sch.

• Decision Date: 22 June 2021
• Docket Number: A-45 September Term 2019,083014
• Citation: 252 A.3d 1008,247 N.J. 46
• Parties: IN RE RENEWAL APPLICATION OF TEAM ACADEMY CHARTER SCHOOL. In re Renewal Application of Robert Treat Academy Charter School. In re Renewal Application of North Star Academy Charter School of Newark. In re Amendment Request to Increase Enrollment of Maria L. Varisco-Rogers Charter School. In re Amendment Request to Increase Enrollment of University Heights Charter School. In re Amendment Request to Increase Enrollment of Great Oaks Legacy Charter School. In re Amendment Request to Increase Enrollment of New Horizons Community Charter School.
• Court: New Jersey Supreme Court

247 N.J. 46

252 A.3d 1008

IN RE RENEWAL APPLICATION OF TEAM ACADEMY CHARTER SCHOOL. In re Renewal Application of Robert Treat Academy Charter School. In re Renewal Application of North Star Academy Charter School of Newark. In re Amendment Request to Increase Enrollment of Maria L. Varisco-Rogers Charter School. In re Amendment Request to Increase Enrollment of University Heights Charter School. In re Amendment Request to Increase Enrollment of Great Oaks Legacy Charter School. In re Amendment Request to Increase Enrollment of New Horizons Community Charter School.

A-45 September Term 2019

083014

Supreme Court of New Jersey.

Argued April 26, 2021

Decided June 22, 2021

David G. Sciarra argued the cause for appellant Education Law Center (Pashman Stein Walder Hayden and Education Law Center, attorneys; Michael S. Stein, Brendan M. Walsh, Ranit S. Shiff, Hackensack, David G. Sciarra, Elizabeth A. Athos, and Jessica A. Levin, on the briefs).

Donna Arons, Assistant Attorney General, argued the cause for respondent New Jersey Commissioner of Education (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer and Melissa H. Raksa, Assistant Attorneys General, and Donna Arons, of counsel, and Geoffrey N. Stark, Christopher Weber, Lauren A. Jensen, and Aimee Blenner, Deputy Attorney Generals, on the briefs).

Thomas O. Johnston argued the cause for respondents TEAM Academy Charter School, Robert Treat Academy Charter School, North Star Academy Charter School of Newark, University Heights Charter School, Great Oaks Legacy Charter School, and New Horizons Community Charter School (Johnston Law Firm, attorneys; Thomas O. Johnston, of counsel and on the briefs, Barbara J. Bohi and Rula A. Moor, on the briefs).

Joel M. Miklacki argued the cause for respondent Maria L. Varisco-Rogers Charter School (Law Offices of Joel M. Miklacki, attorneys); Adam S. Herman, Newark, and Daniel Schlein, on the brief (Adams Gutierrez & Lattiboudere).

Brenda C. Liss argued the cause for amicus curiae Board of Education of the City of Newark (Newark Board of Education Office of General Counsel, attorneys; Brenda C. Liss, of counsel and on the briefs, and Arsen Zartarian and Elijah Johnson, Jr., on the briefs).

Michael R. Noveck argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Gibbons and American Civil Liberties Union of New Jersey Foundation, attorneys; Lawrence S. Lustberg, Michael R. Noveck, Alexander Shalom, Karen D. Thompson, Newark, and Jeanne LoCicero, on the brief).

Justin Schwam argued the cause for amici curiae American Federation of Teachers, AFL-CIO; AFT New Jersey, AFL-CIO; Newark Teachers Union, AFT, AFL-CIO (Weissman & Mintz, attorneys; Justin Schwam, of counsel and on the brief, and Steven P. Weissman, on the brief).

Paul P. Josephson argued the cause for amici curiae New Jersey Public Charter Schools Association and New Jersey Children's Foundation (Duane Morris, attorneys; Paul P. Josephson, and Joseph M. Casole, Cherry Hill, on the brief).

William C. Morlok submitted a brief on behalf of amicus curiae Franklin Township Board of Education (Parker McCay, attorneys; William C. Morlok, Mount Laurel, on the brief).

Philip E. Stern submitted a brief on behalf of amicus curiae Plainfield Board of Education (DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum, attorneys; Philip E. Stern, Newark, and Amy A. Pujara, on the brief).

Ronald C. Hunt submitted a brief on behalf of amici curiae Paterson Board of Education and Irvington Board of Education (Hunt, Hamlin & Ridley, attorneys; Ronald C. Hunt, Newark, of counsel and on the brief).

Ezra Rosenberg submitted a brief on behalf of amici curiae Lawyers’ Committee for Civil Rights Under Law and Constitutional and Education Law Scholars (Lawyers’ Committee for Civil Rights Under Law, attorneys; Ezra Rosenberg, David Hinojosa, of the Texas and New Mexico bars, admitted pro hac vice, and Genevieve Bonadies Torres, of the California and District of Columbia bars, admitted pro hac vice, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

This appeal arises from seven Newark charter schools’ applications to the New Jersey Commissioner of Education (Commissioner) to amend or renew their charters pursuant to the Charter School Program Act of 1995 (Charter School Act), N.J.S.A. 18A:36A-1 to -18. All of the charter schools sought to increase their enrollment, beginning in the 2016-2017 school year, and three of the schools also applied to expand their facilities to accommodate more students.

The Newark Public Schools (District), then operated under State supervision pursuant to N.J.S.A. 18A:7A-34, submitted comments to the Commissioner in response to six of the charter school applications. The District, however, did not raise a challenge or make a showing that the proposed charter school expansions would prevent it from providing to its students the "thorough and efficient" education that the Constitution requires. N.J. Const. art. VIII, § 4, ¶ 1.

Appellant, the Education Law Center (ELC), objected to the applications. It argued that any expansion of Newark's charter schools would worsen the District's financial crisis, thus impeding the District's effort to deliver a "thorough and efficient" education, and that further growth in charter school enrollment would exacerbate segregation in the District's schools.

In brief letters to the charter schools, the Commissioner granted the seven applications. The Commissioner did not include in the letters the analysis of the potential segregative effect of the proposed charter school expansions that was required by this Court's opinion in In re Englewood on the Palisades Charter School (Englewood ), 164 N.J. 316, 323-30, 753 A.2d 687 (2000), and by regulations adopted after that decision. In the absence of any claim by the District that the charter schools’ expansions would impose fiscal harm on the District, the Commissioner's letters did not address the fiscal impact of the charter school applications.

ELC appealed. It argued that when a charter school seeking to expand enrollment is in a former Abbott district, previously subject to judicial remedies imposed in the Abbott v. Burke ¹ litigation, no preliminary showing of fiscal harm by the district of residence should be required, and the Commissioner should bear the burden of showing that a charter expansion would not jeopardize the District's capacity to provide a "thorough and efficient" education to its students. It also asserted that the Commissioner's determinations were arbitrary, capricious and unreasonable because he did not address the question of segregative effect.

The Appellate Division affirmed the Commissioner's decisions. In re TEAM Acad. Charter Sch., 459 N.J. Super. 111, 140-49, 208 A.3d 10 (App. Div. 2019). The court ruled that in the absence of a preliminary showing by the District that the proposed charter school expansions would impair its ability to provide a thorough and efficient education, the Commissioner was not required to discuss the question of fiscal harm in his decisions. Id. at 140-44, 208 A.3d 10. The appellate court acknowledged that the Commissioner's letters did not address the segregative impact of each charter school's proposed expansion but concluded that ELC had not substantiated its allegations of discriminatory enrollment procedures or other segregative practices by the charter schools. Id. at 144-46, 208 A.3d 10.

We granted in part ELC's petition for certification. We also granted amicus curiae status to the Board of Education of the City of Newark (Board of Education), which now operates the District and supports ELC's position, and to several other organizations.

We reiterate our holding in Englewood that if a charter school's "district of residence demonstrates with some specificity that the constitutional requirements of a thorough and efficient education would be jeopardized" by the diversion of district funding to a charter school, the Commissioner must "evaluate carefully" the question of fiscal harm.

164 N.J. at 334-35, 753 A.2d 687. Here, however, the District made no such preliminary showing. We decline to depart from the governing standard simply because the District is a former Abbott district or because the District was State-operated at the time of the charter school applications.

We agree with ELC that the Commissioner did not address "the racial impact that a charter school applicant will have on the district of residence in which the charter school will operate," as this Court mandated in Englewood, id. at 329, 753 A.2d 687. Nor did the Commissioner's decisions discuss the potential effect of the charter expansions on the percentage of charter school students and students in District-operated schools who are English language learners or students with disabilities. We hold that in determining future applications to open new charter schools or to expand charter school enrollment or facilities, the Commissioner should thoroughly address both issues.

Five years after the Commissioner's approval of the seven charter school applications, however, it would be impractical and unfair to revisit his decisions. Any decision reversing the Commissioner's determinations could disrupt the educations of thousands of students in Newark's charter schools, and might also undermine later decisions on charter school enrollment made by the Commissioner in the wake of the 2016 expansions disputed here.

Accordingly, we do not disturb the Commissioner's grant of the charter school expansion applications challenged in this appeal.

I.

A.

On July 5, 1995, the Commissioner invoked his authority under N.J.S.A. 18A:7A-15, -15.1, and -34 to remove the Board of Education and establish a State-operated school district in Newark. See Contini v. Bd. of Educ., 96 N.J.A.R.2d (EDU) 196, at *61-62, 1995 N.J. AGEN LEXIS 665, at *185-88. Pursuant to N.J.S.A. 18A:7A-35, the State Board of Education appointed a State district superintendent...