Justices Tough on Both Sides in Appeal of Montclair Charter Bid

John Mooney | September 10, 2013 | Education
Some on NJ’s highest court cite state’s decision-making flexibility but others wonder why education officials didn’t back up verdict

Top row, L to R: Judge Ariel A. Rodriguez; Justice Helen E. Hoens; Justice Anne M. Patterson; Judge Mary Catherine Cuff; Front row, L to R: Justice Jaynee LaVecchia; Chief Justice Stuart Rabner; Justice Barry T. Albin
In the first such appeal before the New Jersey’s highest court, state Supreme Court justices yesterday didn’t seem to very sympathetic about a proposed charter school’s repeated but so far futile bid to win state approval to open in Montclair.

But the justices’ questioning during the hour-long oral arguments didn’t let the state off easy either, turning a sometimes harsh spotlight on the much-debated charter review process.

The appeal came from the founders of the proposed Quest Academy Charter School, who have applied six times but failed to win the state Department of Education’s approval to open a high school housing 250 students.

On their third try, they appealed to state administrative and then appellate courts, losing in each venue. But while they continue to try the application process, the appeal caught the eye of the Supreme Court, which agreed to hear the case.

At issue before the court wasn’t so much the merits of the state’s repeated rejections, but the process and so-called “standard of review” employed by the department in deciding whether charter schools should be approved and allowed to open.

Quest’s lawyer, Michael Confusione, maintained that the process should follow rules of evidence much like a judicial review, but that the department had actually based its reasons on claims not in the record and that in some cases were contradicted by its own reviewers.

The state’s lawyer, Assistant Attorney General Michelle Miller, said the state’s charter school law gave the department and specifically the state education commissioner broad discretion to determine whether a charter school would thrive and succeed.

The justices had plenty of questions for both lawyers, but certainly started out harder on Confusione.

After the Quest lawyer’s opening comments, Justice Anne Patterson said the statute did lay out different criteria to consider, but did not include any requirements that a school must be accepted if it met a certain number of those criteria.

“There is nothing in the statute that says there is a cut-off where a charter must be granted,“ she said.

Confusione responded that the law was written in a way to “encourage” charter schools to open in the state, not prevent them, but Patterson shot back that encouragement is one thing, but requirement is another.

“The legislation provides no presumption that charters be approved,” she said.

Justice Jaynee LaVecchia said that when the court reviews any agency’s decision, it must look at whether the process was followed properly, and she questioned if Quest had proven its case otherwise.

“It does require a complete record and sufficient reason to come to an outcome,” she said. “I’m not sure that wasn’t followed by the state.”

Nonetheless, Quest’s argument that the state didn’t follow its own rules in its review did resonate with some of the justices.

The proposed school’s founders said the state’s initial rejection letter failed to give detailed reasons for turning down the application, and even its follow-up explanation cited reasons that were not backed up in the separate written evaluations of the charter application.

For instance, where the state maintained that Quest’s educational program was weak, its reviewers had said in their evaluations that those components of the application were adequate.

Miller, the assistant attorney general, said the Legislature granted the state authority to look at the entire scope of the application and not rate any one criterion over another. She said the court should not step in to inject its judgment into that authority.

“Given the complexity of the decision and the issues of educational quality, it would be inappropriate for the court to substitute its judgment,” Miller said.

But the justices said that doesn’t absolve the state from an obligation to follow its own process and citing evidence in its decisions. “There still needs to be substantial evidence,” said Justice Barry Albin.

He and Judge Mary Catherine Cuff said the state provided hardly any examples in explaining its decision on Quest, including its ruling on the education program.

“Wouldn’t you expect at least some illustrative reasoning?” asked Cuff, a temporary justice on the court.

Albin called the initial letter sent to Quest a “bare minimum.”

“Wouldn’t be better if the {explanation) had a little more meat?” he asked.

Chief Justice Stuart Rabner said the case would be taken under consideration, and a decision is not expected for at least a month or two.