Charter Advocates Argue for State to Fund Their School Construction

And, despite opposition from plaintiffs, charter association and families seek to join ongoing litigation over funding for needy school districts
Credit: NJSDA
School construction in New Jersey

Debate over the place of charter schools in the Abbott v. Burke litigation concerning the state’s obligation to fund school construction in needy districts ramped up yesterday, as the charters’ association put out a report that said the sector itself had close to $1 billion in school construction needs.

The association and a half-dozen families of charter school students in Newark, Trenton and elsewhere have filed for “friend of the court” status in the latest Abbott litigation before the state Supreme Court.

They would join a case where plaintiffs from 31 needy districts have already asked the high court to demand the state meet its obligations under a 1998 Abbott ruling to provide adequate and safe school buildings in those districts.

The charter association and the families have asked in their “amicus curiae” request to be considered as well, saying they serve one in five students in the state’s urban areas — and more than one-third in Newark and Camden — and deserve the same relief as the traditional Abbott districts.

“It’s not, if you go to one building, you get the remedy and not if you go to another,” said David Hespe, the former state education commissioner who is attorney for the charters making the request on behalf of the association.

Overcrowded charters want room to grow

The report released yesterday by the charter association — along with the school reform group JerseyCAN — contains the results of a survey of its 91 members that said construction needs are extensive for their charter and hybrid “renaissance” schools — estimated to be about $942 million over 10 years, largely due to overcrowding.

That would be for about 200 projects over the next 10 years, with more than $600 million going to new construction and $300 million to renovations, the report said.

“There is an unmet need for school construction funding across the State, largely in our cities and this includes real needs for public charter and renaissance schools,” said Patricia Morgan, executive director of JerseyCAN.

“Currently, public charter and renaissance schools are serving nearly one in five students in the poorest communities across New Jersey,” she said. “These schools are a vital part of the education fabric in our urban areas, and as such, their facilities needs have to be addressed.”

But the central legal question remains whether charters — a relatively new feature in New Jersey education — fall under the multitude of Abbott rulings over the last four decades in the first place. The state’s first dozen charters opened only a year before the first ruling in 1998 and were not even addressed in the court’s decision that year.

The ensuing school construction law enacted by the Legislature, launching a $12 billion school construction program statewide, also did not include charters, and the charter school law itself does not provide for state funding for charter school facilities.

The Education Law Center, the attorneys for the original Abbott plaintiffs, this week filed a motion to oppose the charters’ request. Its motion maintained that the Abbott remedies were explicitly meant to address the constitutional violations in the Abbott districts, not the separately operated charter schools.

Pushback from Abbott attorney

“To the extent the charter schools may have concerns over the needs for facilities funding, those concerns are clearly not relevant to the Abbott facilities compliance issue before the court,” read the brief from David Sciarra, the ELC’s executive director.

Sciarra maintained that the charters’ cause should be taken up with the Legislature that has excluded them from facilities funding, not the court. And he dismissed the charters’ claims for the right to public funding for new construction of buildings that are typically privately owned.

“Charters are responsible for covering the cost of their own buildings out of the substantial operating funds provided by the State and local districts,” Sciarra said in an email yesterday. “It would be unwise to invest additional funds in buildings the public doesn’t own.”

Hespe responded in an interview that charter students are public school students, and it was the Legislature’s failure to adequately fund the Abbott districts 40 years ago that prompted the litigation in the first place.

“If there’s a constitutional deprivation, and Legislature chooses not to fix it, it is certainly the court’s domain,” he said.

The court’s decision on whether to approve the amicus request is expected to take a few weeks to be delivered.