in-the-matter-of-the-grant-of-a-charter-to-the-merit-preparatory-charter ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0019-12T2
IN THE MATTER OF THE GRANT
APPROVED FOR PUBLICATION
OF A CHARTER TO THE MERIT
PREPARATORY CHARTER SCHOOL April 9, 2014
OF NEWARK AND IN THE MATTER
OF THE GRANT OF A CHARTER TO APPELLATE DIVISION
THE NEWARK PREPARATORY
CHARTER SCHOOL.
___________________________________
Argued January 27, 2014 – Decided April 9, 2014
Before Judges Yannotti, Ashrafi and Leone.
On appeal from the Commissioner of the State
of New Jersey, Department of Education.
Richard E. Shapiro argued the cause for
appellant New Jersey Education Association.
Geoffrey N. Stark, Deputy Attorney General,
argued the cause for respondent New Jersey
Commissioner of Education (John H. Hoffman,
Acting Attorney General, attorney; Melissa
H. Raksa, Assistant Attorney General, of
counsel; Mr. Stark, on the brief).
Devora W. Allon, (Kirkland & Ellis LLP)
of the New York bar, admitted pro hac vice,
argued the cause for respondent Newark
Preparatory Charter School (Lite DePalma
Greenberg, LLC, Lay P. Lefkowitz (Kirkland &
Ellis LLP) of the New York bar, admitted pro
hac vice, and Ms. Allon, attorneys; Michael
E. Patunas, Jeffrey A. Shooman, Samara L.
Penn, Ms. Allon, and Mr. Lefkowitz, on the
brief).
Robert P. Avolio argued the cause for
respondent Merit Preparatory Charter
School of Newark (Avolio & Hanlon, P.C.,
attorneys; Mr. Avolio, of counsel and on
the brief; Amie C. Kalac, on the brief).
Gibbons P.C., attorneys for amicus curiae
New Jersey PublicSchoolOptions.org
(Lawrence S. Lustberg and Jillian T. Stein,
on the brief).
The opinion of the court was delivered by
ASHRAFI, J.A.D.
Appellant the New Jersey Education Association ("NJEA")
appeals from the grant of charters by the New Jersey
Commissioner of Education to the Merit Preparatory Charter
School of Newark and the Newark Preparatory Charter School.
NJEA expresses concern for the diversion of public funds and
resources from traditional public schools, and it contends the
Legislature authorized charters only for traditional "brick-and-
mortar" schools, not ones that use online teaching methodology.
Merit Prep and Newark Prep, however, are not online internet
schools. They use a "blended" teaching methodology that
combines in-person, face-to-face teaching and online instruction
by means of internet materials. They teach their students in
school buildings during a traditional school day and under the
supervision of a teaching staff. We affirm the Commissioner's
decisions.
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The Charter School Program Act of 1995 authorizes the
establishment of charter schools in New Jersey. N.J.S.A.
18A:36A-1 to -18. "A charter school [is] a public school
operated under a charter granted by the commissioner, which is
operated independently of a local board of education and is
managed by a board of trustees." N.J.S.A. 18A:36A-3(a).
Charter schools are funded by taxes collected from the public
that would otherwise fund traditional public education. See
N.J.S.A. 18A:36A-12.
The application requirements and review process for schools
seeking charters are governed by various provisions of the
Charter School Act and implementing regulations. See, e.g.,
N.J.S.A. 18A:36A-4, -4.1, -5; N.J.A.C. 6A:11-2.1. The statutes
and regulations do not contain specific directives on how the
Commissioner must evaluate charter applications, but the Act
includes findings and declarations reciting the Legislature's
general goals and objectives in authorizing charter schools.
N.J.S.A. 18A:36A-2. The Legislature intended to provide "a
mechanism for the implementation of a variety of educational
approaches which may not be available in the traditional public
school classroom," and to "encourage the use of different and
innovative learning methods." Ibid. The Act empowers the
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Commissioner with "final authority to grant or reject a charter
application." N.J.S.A. 18A:36A-4(c).
Merit Prep and Newark Prep applied for charters to
establish schools that use a blended model of teaching and
learning. The applications of both schools proposed teaching
the New Jersey Core Curriculum Content Standards ("NJCCCS" or
"core curriculum") partly by online instruction. Both schools
would require student and teacher attendance in a physical
building, and the online teaching would be facilitated by in-
person instructors.
Merit Prep described its methodology as utilizing computers
in the classroom as "a virtual textbook/workbook . . . used to
determine student progress in real time." "Each of the nine
[core curriculum] content standards [would] be taught by a
teacher and heavily reinforced with online exercises and
assessments." Approximately half the eight-hour school day
would be conducted in face-to-face instruction with certified
teachers.
Newark Prep's application stated that "[e]very student will
receive a fully differentiated educational experience supported
by self-paced learning." It described use of an innovative
blended learning methodology that would combine online, project-
based, and experiential learning. "Master Teachers" would
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monitor specific core curriculum subject areas and track each
student's self-paced progress and problems in the use of the
online programs. Teachers and tutors would "pull out students
for extra attention as individuals and/or in groups" and conduct
"face time sessions." Newark Prep also planned for teacher-led
instruction in small groups of students, fewer than fifteen at a
time.
Thus, Merit Prep and Newark Prep did not propose "virtual"
schools, where all teaching content would be online and
attendance in a school building would not be required.
NJEA and other groups objected to the granting of charters
to the two schools on the ground that their online teaching
method is not authorized by the Charter School Act. The
Commissioner rejected their objections and granted the charters.
NJEA asks us to reverse the Commissioner's decisions. We
previously denied NJEA's application for a stay of the charters,
and the two schools have been operating since the 2012-13 school
year.
The Commissioner argues that NJEA does not have standing to
challenge his grant of the charters. He contends N.J.S.A.
18A:36A-4(d) limits the right to appeal his decision to grant or
deny a charter only to the applicant and the local school board.
See also N.J.A.C. 6A:11-2.5 ("An eligible applicant for a
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charter school, a charter school, or a district board of
education or State district superintendent of the district of
residence of a charter school may file an appeal according to
N.J.S.A. 18A:6-9.1."). The Commissioner contends the Act was
not intended to create a private right of action by anyone who
opposes the granting of a charter.
"Standing is a threshold requirement for justiciability" of
a cause of action seeking a court's intervention and judgment.
See Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 421
(1991). In New Jersey, courts take "a liberal approach to
standing to seek review of administrative actions." In re
Camden Cnty., 170 N.J. 439, 448 (2002). A party has standing to
challenge an administrative agency's decision when the party has
"a sufficient stake in the outcome of the litigation, a real
adverseness with respect to the subject matter, and a
substantial likelihood that the party will suffer harm in the
event of an unfavorable decision." Id. at 449; accord In re
Issuance of Access Conforming Lot Permit, 417 N.J. Super. 115,
126 (App. Div. 2010). But when an issue involves a "great
public interest, any slight additional private interest will be
sufficient to afford standing." Salorio v. Glaser, 82 N.J. 482,
491 (internal quotation marks omitted), cert. denied, 449 U.S.
804, 101 S. Ct. 49, 66 L. Ed. 2d 7 (1980); see also People for
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Open Gov't v. Roberts, 397 N.J. Super. 502, 510 (App. Div. 2008)
("[I]t takes but slight private interest, added to and
harmonizing with the public interest to support standing to
sue." (quoting Hudson Bergen Cnty. Retail Liquor Stores Ass'n v.
Bd. of Comm'rs of Hoboken, 135 N.J.L. 502, 510 (E. & A. 1947))).
Here, NJEA is a collective bargaining organization of
teachers and other educators. It claims its members, as well as
their students, will be deprived of public funding for
traditional public schools if online teaching methodology is
funded by public tax dollars. NJEA alleges its members have an
adverse private interest because approval of such charter
schools will affect their employment. In another context, we
have held that "an organization whose members are aggrieved and
have interests that are sufficiently adverse has standing to
challenge agency action on behalf of its members." N.J. Dental
Ass'n v. Met. Life Ins. Co., 424 N.J. Super. 160, 167 (App.
Div.), certif. denied, 210 N.J. 261 (2012).
We are not convinced that the membership of NJEA will be
adversely affected by the Commissioner's granting of charters to
schools using a blended teaching methodology. Cf. Indep. Energy
Producers of N.J. v. N.J. Dep't of Envtl. Prot. & Energy, 275
N.J. Super. 46, 56 (App. Div.) (interest of the organization's
members may be "too ethereal to justify judicial recognition and
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acknowledgement"), certif. denied, 139 N.J. 187 (1994); In re
Ass'n of Trial Lawyers of Am., 228 N.J. Super. 180, 181 (App.
Div.) (trial lawyers' association lacked standing to challenge
products liability statute on constitutional grounds), certif.
denied, 113 N.J. 660 (1988). Nevertheless, this appeal raises a
novel legal issue of whether the Commissioner may approve a
charter school that employs blended teaching methodology using
internet materials. The issue is of "substantial public
interest." Falcone v. De Furia, 103 N.J. 219, 226 (1986). We
conclude NJEA's membership has demonstrated a slight private
interest that, together with the substantial public interest,
affords it standing to pursue this appeal.
"[C]ourts have but a limited role to play in reviewing the
action of other branches of government." In re Petition for
Rulemaking, 117 N.J. 311, 325 (1989). We may reverse the
Commissioner's decision to grant or deny a charter only if it is
arbitrary, capricious, or unreasonable. In re Proposed Quest
Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370,
385-87 (2013). This deferential standard of judicial review is
more fully explained as follows:
[a]lthough sometimes phrased in terms of a
search for arbitrary or unreasonable agency
action, the judicial role [in reviewing an
agency action] is generally restricted to
three inquiries: (1) whether the agency's
action violates express or implied
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legislative policies, that is, did the
agency follow the law; (2) whether the
record contains substantial evidence to
support the findings on which the agency
based its action; and (3) whether in
applying the legislative policies to the
facts, the agency clearly erred in reaching
a conclusion that could not reasonably have
been made on a showing of the relevant
factors.
[Id. at 385-86 (alteration in original)
(quoting Mazza v. Bd. of Trs., 143 N.J. 22,
25 (1995)).]
We are not bound by an agency's interpretation of a statute
or its determination of a legal issue, In re Taylor, 158 N.J.
644, 658 (1999), but we generally "give substantial deference to
the interpretation an agency gives to a statute that the agency
is charged with enforcing." Norfolk S. Ry. Co. v. Intermodal
Props., LLC, 215 N.J. 142, 165 (2013) (quoting R & R Mktg., LLC
v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)).
Here, NJEA argues that the granting of charters to Merit
Prep and Newark Prep was arbitrary, capricious, and unreasonable
because the Charter School Act does not give the Commissioner
express or implied authority to approve online or blended
teaching methodology. We disagree.
While nothing in the Act allows or disallows any particular
teaching methodology, the legislative goal was to permit "a
variety of educational approaches which may not be available in
the traditional public classroom." N.J.S.A. 18A:36A-2. Also,
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charter schools are to provide "choices . . . when selecting [a]
learning environment," and the Act was intended to "encourage
the use of different and innovative learning methods." Ibid."In determining whether a particular administrative act enjoys
statutory authorization, the reviewing court may look beyond the
specific terms of the enabling act to the statutory policy
sought to be achieved . . . ." N.J. Guild of Hearing Aid
Dispensers v. Long, 75 N.J. 544, 562 (1978). By explicitly
stating its goals and objectives, the Legislature established a
policy by which it gave the Commissioner broad authority to
grant charters to schools using a variety of educational
methodology.
We find no merit in NJEA's argument that the absence of an
express reference to online teaching in the Act and its
legislative history suggests the Legislature would not permit
that form of teaching. See In re Application of Virgo's, Inc.,
355 N.J. Super. 590, 595 (App. Div. 2002) (Although no specific
statutory provision either empowered or precluded the action
taken, "administrative agencies must be given broad authority to
carry out their mandates.").
The Act does not make reference to any specific teaching
method. If online teaching methods are prohibited because they
are not expressly mentioned, then it follows that all novel
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teaching methods not prescribed by the Act are prohibited.
Adopting the NJEA's position would defeat the Legislature's
stated purpose. N.J.S.A. 18A:36A-2; see Jersey Cent. Power &
Light Co. v. Melcar Util. Co., 212 N.J. 576, 586-88 (2013)
(courts must interpret statutes consistently with the
Legislature's purpose); In re Sussex Cnty. Mun. Utils. Auth.,
198 N.J. Super. 214, 217 (App. Div.) ("[L]egislative language
must not, if reasonably avoidable, be found to be inoperative,
superfluous or meaningless."), certif. denied, 101 N.J. 267(1985).
The Legislature may not have contemplated the use of
internet-based teaching when the Act was passed in 1995, but the
Act cannot be read narrowly as only allowing methods that were
in existence at its inception. Certainly, the Legislature did
not intend to exclude advances in technology from charter school
classrooms. It intended just the opposite.
Similarly, we are not persuaded by NJEA's argument that the
Act does not expressly authorize the use of online methods to
teach the core curriculum. While the regulations require
evidence of a "[c]urriculum that is compliant with" the NJCCCS,
N.J.A.C. 6A:11-2.2(a)(1)(iii), neither the Act nor the
regulations specify any particular teaching method.
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Nor do we read the Act as limiting the Commissioner's
authority on the ground that the Legislature would have fixed a
different funding formula for charter schools that use teaching
methods unlike those of traditional "brick-and-mortar" schools.
See N.J.S.A. 18A:36A-12. Merit Prep and Newark Prep are schools
with a physical location where attendance is mandatory during
the normal school day. The online aspect of teaching occurs in
the school building under the supervision of teachers and staff.
The primary distinction between them and traditional schools
lies in the novel teaching methodology. The Act does not
require the Legislature's re-evaluation of funding formulas
simply because the Commissioner authorized a charter school with
novel teaching methodology.
The Commissioner decided to grant charters to Merit Prep
and Newark Prep after reviewing the comprehensive applications
they submitted. The applications explained how online teaching
methods are designed to create a personalized, differentiated
educational experience that incorporates self-paced learning
with teacher interaction, a method that is not typically
available in traditional public schools. The proposed teaching
methods promote the Act's policy of enhancing innovative
teaching methodology and student and parental choice. The
Commissioner's decision was not contrary to his legislative
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authority and is supported by substantial evidence in the
record. It is not arbitrary, capricious, or unreasonable.
Affirmed.
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