High Court Upholds Administration’s Charter Review Process

John Mooney | December 17, 2013 | Education
Despite important legal win, state's charter school program continues to be a target for vocal critics

New Jersey Supreme Court at the Richard J. Hughes Justice Complex in Trenton
The Christie administration has faced its share of criticism — from both sides — for how it reviews charter schools, but for now, the process passes legal muster.

The state Supreme Court yesterday upheld that review process in the case of a proposal for a charter school in Montclair that the New Jersey Department of Education had rejected six times.

The founders of the proposed Quest Academy Charter School had appealed the third of those rejections, this one by former state Education Commissioner Rochelle Hendricks, as failing to meet a required “standard of review.”

But the court in a unanimous decision written by Justice Jaynee LaVecchia said Hendricks had met the required standard that the decision was not “arbitrary, capricious or unreasonable.”

“The Commissioner’s decision … demonstrates a thoughtful and thorough weighing and judgment of the merits of the Quest Academy application,” LaVecchia wrote.

“There is no right to operate a charter school,” she continued. “There is only the opportunity to apply for approval to operate one if the application demonstrates proper merit. The burden is on the applicant to show that it can meet the requirements for obtaining permission to educate public school children in a charter school setting.”

The decision did cite ongoing case law that requires the state to examine a series of issues in reviewing a charter application, including whether it would lead to racial segregation in schools. It also upheld the state’s rights to review local input, including the financial impact of the charter school on the district.

But declaring it was within the executive branch’s discretion and did not require the same standards as a judicial review, the court’s decision did not much change the current process or add to the requirements.

“Turning to the merits of the Commissioner’s determination in respect of Quest Academy’s application, we find that the Commissioner’s decision was amply supported by the record before her,” LaVecchia wrote.

“We do not second guess the educational judgments expressed in the [rejection] letter issued on behalf of the Commissioner,” she said.

Deeper Implications

The decision applied to the Quest application, but it has deeper implications for the administration, which has continued to fend off criticism over its charter school policies.

The administration has been accused of being too lenient in approving charters or of being too cozy with the larger charter organizations. Some suburban districts, like Montclair, have argued that the administration had too easily acquiesced to charter applications in their districts.

Critics also contend that the state does not heed local objections enough, and legislation continues to circulate that would require local approval of new charters.

The administration has countered that its review is as stringent as ever, pointing out that it has closed existing charters and withheld approval from new ones that fail to perform.

And the debate continues to boil as legislative leaders talk about rewriting the state’s 16-year-old charter school law to add protections for charters and local communities.

Education Commissioner Chris Cerf did not comment on the decision yesterday, but a spokesman for the department, Michael Yaple, said it reaffirmed the process as it now exists.

“Today’s unanimous decision by the state Supreme Court affirms the hard work of the Department of Education to develop a nation-leading charter review process that focuses on the quality of the school and the need for the program within the community,” Yaple said in an emailed statement.

“The outcomes speak for themselves in the strong results of charter schools across the state, as identified through national research and a charter accountability process that has led to closing 10 low-performing charter schools in the past three years.”

Efforts to reach the Quest founders yesterday were unsuccessful, and their attorney, Michael Confusione, said he would not comment on the ruling.

The decision did not come as a surprise to legal experts following the case, including a few attorneys who had argued other cases involving charter schools before the courts.

“Frankly, I didn’t know anybody who thought this would come out differently,” said David Rubin, who argued a separate charter school case involving Piscataway schools.

“What the court said is this does not require judicial review, but is an executive function,” said Rubin, a Metuchen attorney who represents nearly a dozen districts. “That doesn’t mean they can do what they want, and their decisions need to be based on something. But the court was satisfied that it was.”

“Basically, the court restated what the law always had been,” he said.

Nonetheless, advocates maintained that the court put the administration on notice as to how it reviews charter schools.

“A very interesting aspect of today’s Court decision was the requirement that the commissioner must consider the racial impact each charter school would have and use his full powers to avoid segregation. And he must consider how funding for local public schools would be affected if a charter school opens nearby,” said Julia Sass Rubin, an organizer with Save Our Schools NJ, an advocacy group that has battled the administration on charter policy.

“Neither of those appear to have been considered to date as we have significant segregation by race — as well as income, special needs and Limited English Proficiency — between charter schools and their sending districts, and we have charter schools draining necessary resources from public school districts,” she said.