education-law-center-on-behalf-of-abbott-v-burke-schoolchildren-v-new ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2816-12T3
EDUCATION LAW CENTER on behalf
of ABBOTT V. BURKE PLAINTIFF APPROVED FOR PUBLICATION
SCHOOLCHILDREN,
November 12, 2014
Appellant, APPELLATE DIVISION
v.
NEW JERSEY STATE BOARD OF
EDUCATION and CHRISTOPHER D.
CERF, COMMISSIONER, NEW JERSEY
DEPARTMENT OF EDUCATION,
Respondents.
______________________________________
Argued October 8, 2014 – Decided November 12, 2014
Before Judges Fuentes, Ashrafi, and Kennedy.
On appeal from the adoption of N.J.A.C.
6A:11-1.2 and 6A:11-2.6(a)(1)(iv), and the
repeal of N.J.A.C. 6A:11-2.6(a) by the New
Jersey State Board of Education.
Elizabeth Athos argued the cause for
appellant (Education Law Center, attorneys;
Ms. Athos and David G. Sciarra, on the
brief).
Lauren A. Jensen, Deputy Attorney General,
argued the cause for respondents (John J.
Hoffman, Acting Attorney General, attorney;
Michelle Lyn Miller, Assistant Attorney
General, of counsel; Ms. Jensen, on the
brief).
Benjamin Yaster argued the cause for amicus
curiae Save Our Schools New Jersey (Gibbons
P.C., attorneys; Mr. Yaster and Lawrence S.
Lustberg, on the brief).
The opinion of the court was delivered by
ASHRAFI, J.A.D.
In this appeal, we consider whether the New Jersey State
Board of Education could lawfully adopt regulations to permit
existing, successful charter schools to open satellite locations
within their districts of residence. We conclude the
regulations are a valid exercise of the State Board's
administrative authority.
The Education Law Center (ELC) challenges the State Board's
adoption of two amended regulations and the repeal of a third
applicable under the Charter School Program Act of 1995 (the
Act), N.J.S.A. 18A:36A-1 to -18. Save Our Schools New Jersey,
which describes itself as a volunteer-led organization of
parents and concerned residents of New Jersey, supports ELC's
appeal as an amicus curiae.
ELC and Save Our Schools contend that the State Board
exceeded its statutory authority and acted arbitrarily and
capriciously when it: (1) amended N.J.A.C. 6A:11-2.6(a)(1)(iv)
to authorize the addition of satellite campuses to some existing
charter schools; (2) amended N.J.A.C. 6A:11-1.2 to define the
2 A-2816-12T3
term "satellite campus"; and (3) repealed N.J.A.C. 6A:11-
2.6(a)(2), which had barred existing charter schools from
amending their charters to alter the mission, goals, or
objectives of the school. ELC and Save Our Schools contend that
the revised regulations are an expansion of the charter school
program and that such an expansion may be accomplished only by
the Legislature enacting new laws, not by the State Board and
the Commissioner of Education through administrative action.
Save Our Schools adds that the regulatory amendments risk
creating charter schools that will fail, and the failures will
have a disproportionate impact on impoverished school children
in under-performing school districts.
We conclude that the State Board had the statutory
authority to amend and repeal its regulations as it did, and
that the speculative policy arguments advanced by Save Our
Schools may be better addressed to the Legislature or to
individual charter school expansions than as a facial attack on
the amended regulations. We affirm the State Board's action in
adopting and repealing the challenged regulations.
I.
"A charter school [is] a public school operated under a
charter granted by the [C]ommissioner [of Education], which is
operated independently of a local board of education and is
3 A-2816-12T3
managed by a board of trustees." N.J.S.A. 18A:36A-3(a).
Charter schools are funded primarily by taxes collected from the
public that would otherwise fund traditional public education.
See N.J.S.A. 18A:36A-12. A charter school may not enroll
students on the basis of selective criteria such as
"intellectual or athletic ability," and it may not discriminate
on the basis of "measures of achievement or aptitude, status as
a handicapped person, proficiency in the English language, or
any other basis that would be illegal if used by a [public]
school district." N.J.S.A. 18A:36A-7. A charter school may,
however, "limit admission . . . to areas of concentration of the
school, such as mathematics, science, or the arts," and it may
"establish reasonable criteria to evaluate prospective
students." Ibid.
The legislative purpose of authorizing charter schools is
to promote educational reform "by providing a mechanism for the
implementation of a variety of educational approaches which may
not be available in the traditional public school classroom."
N.J.S.A. 18A:36A-2. The Legislature found that "the
establishment of a charter school program is in the best
interests of the students of this State and it is therefore the
public policy of the State to encourage and facilitate the
development of charter schools." Ibid.
4 A-2816-12T3
The Legislature granted to the State Board the authority to
adopt such rules and regulations as are "necessary to effectuate
the provisions of" the enabling legislation. N.J.S.A. 18A:36A-
18. The first series of regulations under the Act were adopted
by the State Board in July 1997. 29 N.J.R. 3492(a) (Aug. 4,
1997); N.J.A.C. 6A:11-1.1 to -6.4.
Together with the statutory criteria, see N.J.S.A. 18A:36A-
4, -4.1, -5, the regulations subject a proposed charter school
to a rigorous application process. See N.J.A.C. 6A:11-2.1.
Among the many requirements, the application must state the
school's educational goals and objectives, the admission
criteria for students, the assessment methods that will
determine whether students are achieving the stated goals of the
school, and the address and description of the physical building
in which the school will be located. Ibid. The application
process also includes an in-depth interview of representatives
of the school with the Commissioner of Education and a
preparedness visit with personnel from the Department of
Education. Ibid.
Once a charter school has been established, the
Commissioner must assess annually whether the school is meeting
the goals stated in its charter. N.J.S.A. 18A:36A-16(a). If
the school violates any provision of its charter, the
5 A-2816-12T3
Commissioner may revoke the charter, place the school on
probationary status, require the school to take corrective
action, or reject renewal of the charter for a subsequent term.
N.J.S.A. 18A:36A-17.
Since adoption of the original implementing regulations in
1997, charter schools have been permitted to "apply to the
Commissioner for an amendment to the charter . . . ." N.J.A.C.
6A:11-2.6; 29 N.J.R. 3492(a). However, the original regulations
prohibited an amendment that would alter the mission, goals or
objectives of the existing charter school, N.J.A.C. 6A:11-
2.6(a)(2) (repealed), and they made no reference to satellite
campuses. 29 N.J.R. 3492(a).
The Department of Education proposed the challenged
regulatory changes in May 2012 by means of the formal process
for amending the charter school regulations. See N.J.A.C. 6A:6-
3.1. ELC submitted written comments to the State Board opposing
"strongly" the proposed new regulations on the ground that they
permitted expansion of the State's charter school program
through regulation rather than legislative action. The State
Board reviewed comments from ELC and others and made some
changes to the proposed amendments, but it did not rescind or
modify the proposed regulatory changes that are the subject of
this appeal. After the State Board published notice of the
6 A-2816-12T3
proposed amendments in the New Jersey Register, 44 N.J.R.
2151(a) (Sept. 4, 2012), a sixty-day public comment period
opened, and the State Board took public testimony on the
proposed changes. Over ELC's continuing objections, the State
Board amended N.J.A.C. 6A:11-2.6(a) on December 5, 2012, to
authorize satellite campuses in some school districts. 45
N.J.R. 26(a) (Jan. 7, 2013).
As amended, N.J.A.C. 6A:11-2.6(a) now states:
A charter school may apply to the
Commissioner for an amendment to the charter
following the final granting of the charter.
1. Examples of what a charter school may
seek an amendment include, but are not
limited to, the following:
i. Expanding enrollment;
ii. Expanding grade levels;
iii. Changing or adding a district or region
of residence; or
iv. Opening a new satellite campus.
The Board also defined the term "satellite campus,"
limiting its application to certain school districts in
underprivileged areas:
"Satellite campus" means a school facility,
located within a district with a priority
school[1] or a former Abbott District as of
1
"Priority school" is defined as "a school that demonstrates
very low levels of success in either school wide student
proficiency rates or overall graduation rates as determined by
criteria at N.J.A.C. 6A:33-2.1(b)." N.J.A.C. 6A:33-1.3.
7 A-2816-12T3
July 1, 2012,[2] operated by a charter school
under the school's charter that is in
addition to the facility identified in the
charter school application or charter, if
subsequently amended.
[N.J.A.C. 6A:11-1.2.]
Lastly, the Board repealed N.J.A.C. 6A:11-2.6(a)(2), which
previously stated that an "amendment shall not change the
mission, goals and objectives of a charter school."
II.
ELC asserts that the State Board exceeded its statutory
authority in adopting the satellite campus regulations, and
acted arbitrarily and capriciously in repealing N.J.A.C. 6A:11-
2.6(a)(2). Save Our Schools adds that the "regulations, as
written . . . in effect, allow[] new charter schools to be
created under the guise of 'satellite campuses' without being
subjected to the rigorous application and review process that
the Legislature envisioned." See In re Proposed Quest Acad.
Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 374-77
(2013); N.J.A.C. 6A:11-2.1. The Board responds that "satellite
2
"[F]ormer Abbott District" refers to the thirty-one New Jersey
public school districts that were designated as "special needs"
or "Abbott districts," Abbott v. Burke, 196 N.J. 544, 548, 563
(2008), for purposes of receiving State funding and implementing
programs to improve the educational services provided in those
districts. The Legislature's adoption of the School Funding
Reform Act of 2008, N.J.S.A. 18A:7F-43 to -63, supplanted the
designation of "Abbott districts." See Abbott v. Burke, 206
N.J. 332 (2011).
8 A-2816-12T3
campuses are directly in line with the express legislative
polices underlying the [Act]."
In an appeal such as this, we are not "bound by [a
government] agency's interpretation of a statute or its
determination of a strictly legal issue." Russo v. Bd. of Trs.,
206 N.J. 14, 27 (2011) (quoting Mayflower Sec. Co. v. Bureau of
Sec. 64 N.J. 85, 93 (1973)). "[W]e apply de novo review to an
agency's interpretation of a statute or case law." Ibid. Our
"obligation is to determine and give effect to the Legislature's
intent" in enacting the statute. N.J. Ass'n of Sch. Adm'rs v.
Schundler, 211 N.J. 535, 549 (2012); see also Wilson ex rel.
Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012) (the
court's "paramount goal in interpreting a statute is to give
effect to the Legislature's intent.").
At the same time, we must accord deference to
administrative agency actions, including the agency's adoption
of regulations and rules to implement legislative directives.
"That approach reflects the specialized expertise agencies
possess to enact technical regulations and evaluate issues that
rulemaking invites." Schundler, supra, 211 N.J. at 549. An
agency's regulations carry a presumption of validity, and the
burden is on the challenging party to rebut that presumption.
Id. at 548.
9 A-2816-12T3
A properly adopted regulation may only be set aside "if it
is proved to be arbitrary or capricious or if it plainly
transgresses the statute it purports to effectuate . . . or if
it alters the terms of the statute or frustrates the policy
embodied in it." In re Repeal of N.J.A.C. 6:28, 204 N.J. Super.
158, 160-61 (App. Div. 1985) (citing N.J. Chamber of Commerce v.
N.J. Election Law Enforcement Comm'n, 82 N.J. 57, 82 (1980);
N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561
(1978)). A regulation frustrates a statute when it is
inconsistent with the statute, extends the statute beyond the
Legislature's intent, or "violates . . . express or implied
legislative policies." See In re Petitions for Rulemaking,
N.J.A.C. 10:82-1.2 & 10:82-4.1, 117 N.J. 311, 325 (1989); accord
N.J. Ass'n of Sch. Adm'rs v. Cerf, 428 N.J. Super. 588, 596
(App. Div. 2012), certif. denied, 213 N.J. 536 (2013).
The Legislature's grant of administrative authority is
construed liberally "to enable the agency to accomplish its
statutory responsibilities and . . . effectuate fully the
legislative intent." Hearing Aid Dispensers, supra, 75 N.J. at
562. In assessing the scope of delegated authority, courts
"look beyond the specific terms of the enabling act to the
statutory policy sought to be achieved by examining the entire
statute in light of its surroundings and objectives." Ibid.
10 A-2816-12T3
"[T]he absence of an express statutory authorization in the
enabling legislation will not preclude administrative agency
action where, by reasonable implication, that action can be said
to promote or advance the policies and findings that served as
the driving force for the enactment of the legislation." N.J.
State League of Municipalities v. Dep't of Cmty. Affairs, 158
N.J. 211, 223 (1999) (quoting A.A. Mastrangelo, Inc., v. Comm'r,
Dep't of Envtl. Prot., 90 N.J. 666, 683-84 (1982)).
In conjunction with these principles of administrative law,
the usual rules of statutory interpretation require courts first
to examine the plain language of a statute. Headen v. Jersey
City Bd. of Educ., 212 N.J. 437, 448 (2012). If the plain
language is clear, that meaning must be given effect, and the
court's inquiry is complete. O'Connell v. State, 171 N.J. 484,
488 (2002).
In this case, the plain language of the pertinent statutes
does not resolve the dispute. The Legislature granted to the
State Board the authority to promulgate regulations and
amendments to the charter school program. N.J.S.A. 18A:36A-18.
The Legislature did not expressly authorize satellite campuses,
but it also did not expressly prohibit them.
The State Board emphasizes the Legislature's overarching
purpose to encourage and facilitate the development of charter
11 A-2816-12T3
schools. The Act expressly set forth its purposes in N.J.S.A.
18A:36A-2, the Legislature finding and declaring that:
[T]he establishment of charter schools as
part of this State's program of public
education can assist in promoting
comprehensive educational reform by
providing a mechanism for the implementation
of a variety of educational approaches which
may not be available in the traditional
public school classroom. Specifically,
charter schools offer the potential to
improve pupil learning; increase for
students and parents the educational choices
available when selecting the learning
environment which they feel may be the most
appropriate; encourage the use of different
and innovative learning methods; establish a
new form of accountability for schools;
require the measurement of learning
outcomes; make the school the unit for
educational improvement; and establish new
professional opportunities for teachers.
ELC acknowledges these purposes of the Act but argues that
other statutory provisions demonstrate the Legislature's intent
not to permit expansion of the charter school program without
its own express approval. ELC points to the specificity of the
procedures laid out for establishing a charter school, N.J.S.A.
18A:36A-4, and the detailed, wide-ranging information that must
be included in an application for a charter, N.J.S.A. 18A:36A-5.
It also cites a subsection of the Act expressly prohibiting
expansion or modification of the charter school program without
prior legislative approval. N.J.S.A. 18A:36-16(e).
12 A-2816-12T3
If this last-cited statutory provision expressly prohibits
any action by the State Board that has the effect of expanding
the charter school program, our inquiry is at an end — satellite
campuses are not permitted. But we do not read N.J.S.A.
18A:36A-16(e) as ELC urges. ELC cites the concluding sentence
of that subsection, which states: "The commissioner may not
implement any recommended expansion, modification, or
termination of the program until the Legislature acts on that
recommendation." But as the State Board argues, the quoted
sentence should not be read in isolation from the rest of
N.J.S.A. 18A:36A-16 and the entire Act.
Subsection (a) of N.J.S.A. 18A:36A-16 requires that the
Commissioner annually assess and conduct a comprehensive review
of each charter school. Subsection (b) requires each charter
school to submit an annual report to the Commissioner and others
to facilitate the Commissioner's assessment and review. With
respect to the specific issue raised in this appeal, in
subsections (c) through (e), the Legislature directed a review
of the entire, State-wide charter school program. Those
subsections directed the Commissioner to hold public hearings by
April 1, 2001, as a part of a comprehensive review of the
State's entire charter school program; to "commission an
independent study of the charter school program"; and to issue
13 A-2816-12T3
to the Governor, the Legislature, and the State Board by October
1, 2001, "an evaluation of the charter school program."
The requirement for a State-wide review, six years after
the Legislature authorized charter schools in 1995, was enacted
as an amendment to the Act in 2000. L. 2000, c. 142, § 3
(effective Nov. 2, 2000). The Legislature set deadlines in 2001
for the Commissioner's evaluation and report, which was to
contain specific, listed items of information based on public
hearings and the Commissioner's independent study of the State-
wide program. N.J.S.A. 18A:36A-16(e). The prohibition
specified in the last sentence of subsection (e) refers to that
six-year report and its recommendations. It does not refer
generally to any modification of the charter school program that
may otherwise be authorized by the Act.
A broad reading of N.J.S.A. 18A:36A-16(e) as ELC urges
would contravene the legislative purpose of encouraging
innovative educational methodology through the charter school
program. See In re Grant of Charter to Merit Preparatory
Charter Sch. of Newark, 435 N.J. Super. 273, 281 (App. Div.),
certif. denied, ___ N.J. ___ (2014). We do not read the Act as
requiring legislative action for every type of amendment to
existing school charters that might have the effect of expanding
the school's educational program.
14 A-2816-12T3
Making a more concrete argument, ELC contends that the Act
did not authorize expansion of an existing charter school beyond
its initially-approved physical building. ELC contends the term
"charter school" means "one building" because the historic
meaning of "school" is a single building. We are not persuaded.
The Act authorizes charter schools to acquire by purchase,
lease, or gift real property for use as a school facility,
either from public or from private sources. N.J.S.A. 18A:36A-
6(c). The Act does not limit charter schools to acquiring only
one building.
Furthermore, nothing in the Act or the prior regulations
prohibits an existing charter school from expanding its
operations with the acquisition or use of additional buildings
rather than expanding only within its original building. In the
case of an existing charter school that seeks to expand into
additional physical space, it makes little sense to require a
whole new application and the resulting review process. While a
satellite campus is not the same as expanding into additional
physical space immediately adjacent to the existing facility,
the satellite campus would still be part of the same school. A
school is more than a building. It is an educational program,
and the teaching, administrative, and operational staff that
devises and runs the program. Site unity is an appropriate
15 A-2816-12T3
consideration in evaluating the potential success or problems of
a proposed charter school, but a remote site does not make a
wholly different school.
More to the point, "[i]n 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." Hearing Aid
Dispensers, supra, 75 N.J. at 562. Here, the Legislature
intended that the Act provide options and opportunities of
public education for parents and children. See Merit
Preparatory Charter Sch., supra, 435 N.J. Super. at 281.
Permitting the addition of a new building for purposes of
expanding a successful charter school is consistent with these
legislative purposes of the Act.
Neither the Act nor the prior regulations prohibited a
charter school from expanding its services by means of an
amendment to its charter. We are persuaded by the State Board's
argument that: "Under the charter amendment regulations, charter
schools have long been permitted to apply for amendments to
increase enrollment, add additional grade levels, and add or
change a district of residence," and "permitting certain
[existing, successful] charter schools to establish a satellite
campus is . . . a natural extension of the schools' ability to
16 A-2816-12T3
expand enrollment and grade levels." Thus, according to the
State Board, "the establishment of a satellite campus is simply
another means through which a high performing charter school may
seek to expand."
ELC and Save Our Schools express strong misgivings about
permitting expansion to new locations by means of amendment of a
school's charter rather than by the school submitting an initial
application pursuant to the Act for the satellite location.
They claim the amendment procedure shortcuts the Legislature's
intent that charter schools undergo a rigorous and searching
application process. See J.D. ex rel. Scipio-Derrick v. Davy,
415 N.J. Super. 375, 380-81 (App. Div. 2010). They contend that
a correct reading of the Act requires that the State Board and
the Department of Education conduct a full initial review before
a satellite location can be approved.
The State Board responds that a repetition of the full
application process is not needed because an existing charter
school has already undergone that review and, what is more, a
satellite campus would be authorized only for an existing
charter school that has proven it can operate successfully. The
State Board argues that beginning a new application process
would unnecessarily hamper expansion of successful charter
schools that seek to serve more pupils.
17 A-2816-12T3
We agree that the addition of a satellite campus is more
like the expansion of grade and enrollment levels than the
opening of an entirely new charter school. Contrary to ELC's
argument, the amended regulations do not allow a satellite
campus in a district other than in the district or region
already served by an existing charter school. The State Board
acknowledged in its brief and in oral argument before us that
the definition of "satellite campus" in N.J.A.C. 6A:11-2.1
refers to a separate location but in the same school district as
the existing charter school, or within the contiguous school
districts that are the regional district of residence of a
charter school.3 ELC expresses unfounded fear that the
Commissioner will approve "far flung" satellite campuses without
adequate evaluation of the proposed building, the demographics
of the area, the school program, and the school staff.
Save Our Schools is concerned that the Commissioner and the
Department of Education will not adequately evaluate satellite
campuses for the physical safety and suitability of the site for
educational use. This argument is speculative and not borne out
3
A charter school is located in a "district of residence," which
is defined as "the school district in which a charter school
facility is physically located; if a charter school is approved
with a region of residence comprised of contiguous school
districts, that region is the charter school's district of
residence." N.J.A.C. 6A:11-1.2.
18 A-2816-12T3
by any facts. In proposing the amended regulations, the
Department of Education commented: "Facilities identified by an
amendment request for a satellite campus are subject to the same
review and approval procedures for new charter school facilities
. . . ." 45 N.J.R. 26(a). We must assume the Commissioner will
require an adequate evaluation of a proposed satellite campus
site and reject any charter amendment that fails to meet
appropriate standards for a school building. If a proposed
campus presents safety concerns or is otherwise unsuitable for
the educational needs of children, Save Our Schools or other
interested parties should raise specific objections to the
proposed amended charter.
Similarly, Save Our Schools argues that the charter
amendment procedures circumvent the constitutional requirement
that the Commissioner take into account the potential effect of
a charter school on this State's anti-discrimination laws and
policies. It posits that, because the regulations only allow
satellite campuses to open "within a district with a priority
school or former Abbott District," N.J.A.C. 6A:11-1.2, "the
increased risk of charter school failure at satellite campuses
will be borne disproportionately by impoverished communities and
communities of color."
19 A-2816-12T3
As our Supreme Court recently explained, constitutional and
statutory law imposes requirements with which the Commissioner
must comply when evaluating an application for a charter school:
First, the Commissioner must assess the
racial impact that a charter school
applicant will have on the district of
residence in which the charter school will
operate and must use the full panoply of
[his or her] powers to avoid segregation
resulting from the grant of a charter school
application. Second, if the local school
district demonstrates with some specificity
that the constitutional requirements of a
thorough and efficient education would be
jeopardized by [the district's] loss of the
funds to be allocated to a charter school,
the Commissioner is obligated to evaluate
carefully the impact that loss of funds
would have on the ability of the district of
residence to deliver a thorough and
efficient education.
[Quest Academy Charter Sch., supra, 216 N.J.
at 377-78 (quotation marks and citations
omitted).]
In Quest Academy, the Supreme Court acknowledged that the
Commissioner had promised to be "exceedingly careful in the
approval of charter schools because of the impact that a wrong
decision will have on students who attend a charter school that
falters, or worse, fails to provide an educational program that
satisfies the constitutional standard of a thorough and
efficient education." Id. at 388. Charter amendments are not
approved without careful review by the Department of Education
and the Commissioner, and the public's opportunity to
20 A-2816-12T3
participate through their representatives on the local board of
education. See N.J.A.C. 6A:11-2.6(c). The Legislature granted
to the Commissioner discretion initially to approve or reject a
charter and further discretion to approve or reject amendments
to a charter. We have no basis on this record to speculate that
the Commissioner will not apply statutory and constitutional
requirements when reviewing a proposed amendment to add a
satellite campus to an existing charter school.
ELC and Save Our Schools argue, nevertheless, that the
amended regulations do not require notice of a proposed charter
amendment to be disseminated to all the same persons and
entities as the notices that must be served for an initial
application for a charter. For purposes of an initial
application, the applicant must serve notice on the "the
Commissioner and the local board of education." N.J.S.A.
18A:36A-4(c). In turn, the Commissioner must notify "the
members of the State Legislature, school superintendents, and
mayors and governing bodies of all legislative districts, school
districts, or municipalities in which there are students who
will be eligible for enrollment in the charter school." Ibid.
In contrast, a proposed amendment to an existing school charter
requires notice only to "the Commissioner and the district
board(s) of education or State district superintendent(s) of the
21 A-2816-12T3
district of residence of a charter school." N.J.A.C. 6A:11-
2.6(a)(2).
We cannot say that notice of all charter amendments should
be disseminated as widely as the notice of an original
application. Some amendments may be minor, and the array of
persons and offices receiving notice of the initial application
are unlikely to be interested in each such modification of a
charter. Because the local boards where the charter school is
located will receive notice of a proposal to add a satellite
campus, there is little danger that the narrower notice
requirements for amendments will allow a charter school to sneak
unannounced into a new location by means of a satellite campus.
We will not interfere with the administrative authority of the
State Board and impose stricter notice requirements on the
amendment process in the absence of evidence that the current
requirement is inadequate.
Finally, ELC and Save Our Schools argue that the State
Board's repeal of N.J.A.C. 6A:11-2.6(a)(2) was arbitrary and
capricious because the charter amendment process should never be
used to change "the mission, goals and objectives of a charter
school." In its responses to public comment on the new
regulations, the Department of Education explained that the
restriction contained in the prior regulation "runs counter to
22 A-2816-12T3
the Department's goal of enabling charter schools to
continuously improve and grow quality programs." 44 N.J.R.
2151(a).
Nothing in the enabling legislation required that the
"mission, goals and objectives of a charter school" remain
static as initially set forth in the school's application. As a
charter school expands, its original mission statements may also
require expansion. The repeal of N.J.A.C. 6A:11-2.6(a)(2) was
no doubt intended to eliminate an obstacle to favorable
expansion or modification of a charter school's program. It was
within the authority of the State Board, and not an arbitrary or
capricious administrative action.
Affirmed.
23 A-2816-12T3