IN THE MATTER OF GRANT OF THE CHARTER RENEWAL OF THE RED BANK CHARTER SCHOOL (NEW JERSEY DEPARTMENT OF EDUCATION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3342-16T1
IN THE MATTER OF GRANT
OF THE CHARTER RENEWAL
OF THE RED BANK CHARTER
SCHOOL.
____________________________
Argued September 9, 2019 – Decided September 20, 2019
Before Judges Sabatino, Sumners and Geiger.
On appeal from the New Jersey Department of
Education.
Michael Ross Noveck argued the cause for appellants
Fair Schools Red Bank and the Latino Coalition
(Gibbons PC and ACLU New Jersey Foundation,
attorneys; Lawrence S. Lustberg, Avram D. Frey,
Jessica L. Hunter, Jeanne M. LoCicero, and Michael
Ross Noveck, on the briefs).
Thomas Owen Johnston argued the cause for
respondent Red Bank Charter School (Johnston Law
Firm, LLC, attorneys; Thomas Owen Johnston, of
counsel and on the briefs).
Geoffrey Nelson Stark, Deputy Attorney General,
argued the cause for respondent Commissioner of
Education (Gurbir S. Grewal, Attorney General,
attorney; Melissa Dutton Schaffer, Assistant Attorney
General, of counsel; James M. Esposito, Jr., Deputy
Attorney General, on the briefs).
PER CURIAM
This appeal concerns the enrollment practices of a charter school located
in a community of predominantly Latino population. The school, Red Bank
Charter School ("RBCS"), historically has had a mainly white enrollment, until
very recently when the percentage of white and Latino students became roughly
equal. The racial and ethnic mix of RBCS has been the subject of public
controversy for several decades, as exemplified by our 2004 opinion describing
an earlier phase of that controversy and remanding the matter for an
administrative hearing. See In re Red Bank Charter Sch., 367 N.J. Super. 462,
467 (App. Div. 2004) ("Red Bank Charter").
In the present litigation, two nonprofit advocacy organizations in Red
Bank appeal certain aspects of a final agency decision of the New Jersey
Department of Education ("DOE") granting the renewal of RBCS's charter and
written amplifications of that decision by two successive DOE Commissioners.
Appellants contend the Commissioners' decisions are inadequate because they
fail to make explicit findings addressing appellants' claims of discriminatory
enrollment practices at RBCS. According to appellants, those practices have
suppressed Latino student enrollment at RBCS and perpetrated white enrollment
A-3342-16T1
2
at a level far higher than the white school population in the local public school
district. Appellants further argue the Commissioners acted arbitrarily and
capriciously by not halting RBCS's admission policies that give preference to
applicants who have siblings already enrolled at the school. Appellants also
contend the Commissioners' rulings are deficient in not addressing alleged
shortcomings of RBCS's advertising and outreach efforts in encouraging Latino
parents to apply for admission, and so-called "whisper campaigns" to encourage
white families to apply.
In their opposition, RBCS and the Commissioner argue appellants lack
standing to pursue this appeal and, moreover, their claims of discrimination lack
merit. They maintain the law does not provide organizations such as appellants
with a right to litigate their grievances in the context of an appeal from a charter
school renewal, especially since the public school district in this case has not
exercised its statutory right to bring or take part in this appeal. Respondents
further deny there is any proven discrimination in RBCS's enrollment practices,
and emphasize the Commissioner's amplifications provide ample assurance the
DOE is continuing to monitor the demographic mix of admitted students at
RBCS and will take any remedial measures that may be needed before the
school's present five-year charter expires.
A-3342-16T1
3
For the reasons that follow, we conclude appellants possess standing to
litigate the important constitutional and statutory issues of alleged
discrimination they have raised in this appeal. On the merits, we affirm the
agency's rejection of appellants' request to suspend the sibling preference policy,
a practice the DOE is closely monitoring. However, we are persuaded the matter
must be remanded to the DOE to enable the present Commissioner to provide
further amplification of his ruling and explicitly address, based strictly on the
existing administrative record, the omitted subjects identified by appellants.
We decline to order the Commissioner at this time to refer disputed issues
for an evidentiary hearing in the Office of Administrative Law ("OAL"), or to
require the Commissioner to expand the existing factual record. We do so
without prejudice to the right of appellants or any other party to pursue the
grievance process set forth in N.J.S.A. 18A:36A-15, and potential factual
development in connection with such a grievance. Furthermore, our opinion
does not foreclose appellants from raising their concerns about discriminatory
enrollment practices or impacts during RBCS's next charter renewal process,
which is scheduled to begin in the fall of 2021.
A-3342-16T1
4
I.
To place the facts and the parties' arguments in context, we begin with
some background concerning our State's charter school laws and regulations,
and pertinent anti-segregation principles.
A. The Charter School Program Act of 1995
In 1995, the Legislature enacted the Charter School Program Act of 1995
("CSPA"), N.J.S.A. 18A:36A-1 to -18. As part of that initiative, the Legislature
declared that "the 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." N.J.S.A. 18A:36A-2. The Legislature further determined 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.
A charter school is "a public school operated under a charter granted by
the [C]ommissioner." N.J.S.A. 18A:36A-3(a). It "is operated independently of
a local board of education and is managed by a board of trustees," who are
A-3342-16T1
5
"deemed to be public agents authorized by the State Board of Education to
supervise and control the charter school." Ibid.
A charter school must operate in accordance with its charter and the laws
and regulations governing public schools, unless the school requests and is given
an exception by the Commissioner. N.J.S.A. 18A:36A-11(a). As we will
discuss in Part III of this opinion, "[a]ny individual or group may bring a
complaint to the board of trustees of a charter school alleging a violation of the
provisions of this act." N.J.S.A. 18A:36A-15.
With respect to admissions, charter schools are "open to all students on a
space available basis." N.J.S.A. 18A:36A-7. A charter school cannot
discriminate in its admissions policies and practices, although it "may limit
admission to a particular grade level or to areas of concentration of the school,
such as mathematics, science, or the arts." N.J.S.A. 18A:36A-7.
Particularly relevant to the present case is N.J.S.A. 18A:36A-8, which
provides:
a. Preference for enrollment in a charter school shall be
given to students who reside in the school district in
which the charter school is located. If there are more
applications to enroll in the charter school than there
are spaces available, the charter school shall select
students to attend using a random selection process. A
charter school shall not charge tuition to students who
reside in the district.
A-3342-16T1
6
b. A charter school shall allow any student who was
enrolled in the school in the immediately preceding
school year to enroll in the charter school in the
appropriate grade unless the appropriate grade is not
offered at the charter school.
c. A charter school may give enrollment priority to a
sibling of a student enrolled in the charter school.
d. If available space permits, a charter school may
enroll non-resident students. The terms and condition
of the enrollment shall be outlined in the school's
charter and approved by the commissioner.
e. The admission policy of the charter school shall, to
the maximum extent practicable, seek the enrollment of
a cross[-]section of the community's school age
population including racial and academic factors.
[(Emphasis added).]
After approving a charter application, the Commissioner must annually
assess whether the school is meeting the goals of its charter. N.J.S.A. 18A:36A-
16(a). Regulations specify the Commissioner must also annually assess "the
student composition of a charter school and the segregative effect that the loss
of the students may have on its district of residence." N.J.A.C. 6A:11 -2.2(c).
To facilitate that review, charter schools must submit an annual report to the
Commissioner, local board of education, and the county superintendent of
schools. N.J.S.A. 18A:36A-16(b); N.J.A.C. 6A:11-2.2. The Commissioner may
revoke a charter at any time if the school has not fulfilled or has violated any of
A-3342-16T1
7
the conditions of its charter. N.J.S.A. 18A:36A-17.
B. Constitutional Anti-Segregation Principles
It is well-established that, "[r]ooted in our Constitution, New Jersey's
public policy prohibits segregation in our public schools." In re Grant of Charter
Sch. Application of Englewood on the Palisades Charter Sch., 164 N.J. 316, 324
(2000). See also id. at 330 ("[S]egregation, however caused, must be
addressed."); In re Renewal Application of Team Acad. Charter Sch., 459 N.J.
Super. 111, 144 (App. Div. 2019) ("Segregation is strictly prohibited in our
schools, and is specifically prohibited in charter schools."). In that regard, the
CSPA provides that "[t]he admission policy of the charter school shall, to the
maximum extent practicable, seek the enrollment of a cross[-]section of the
community's school age population including racial and academic factors."
N.J.S.A. 18A:36A-8(e) (emphasis added). See also N.J.A.C. 6A:11-4.5(e)
(same).
Our Supreme Court has found that the "form and structure" of the
segregative analysis under the CSPA is within the discretion of the DOE
Commissioner and the State Board of Education to determine. Englewood, 164
N.J. at 329. See also Team Academy, 459 N.J. Super. at 145 (recognizing the
Commissioner's and State Board of Education's discretion when determining
A-3342-16T1
8
segregative effect).
C. The Oversight Role of the DOE and the Commissioner
Within this regulatory structure, the Supreme Court has recognized the
Commissioner's obligation under the New Jersey State Constitution "to prevent
segregation in our public schools . . . when [he or she] performs his [or her]
statutory responsibilities under the Charter School Act." Id. at 328. Indeed, as
far back as 1971 the Commissioner "recognized that . . . there is an 'obligation
to take affirmative steps to eliminate racial imbalance, regardless of its causes,'"
citing to New Jersey's "constitutional provisions for a thorough and efficient
school system (N.J. Const. art. VIII, § 4, ¶ 1), and against segregation in the
schools (N.J. Const. art. I, ¶ 5)." Jenkins v. Twp. of Morris Sch. Dist., 58 N.J.
483, 506 (1971). This state constitutional duty applies equally in the charter
school context. See, e.g., Englewood, 164 N.J. at 328 ("The constitutional
command to prevent segregation in our public schools superimposes obligations
on the Commissioner when he performs his statutory responsibilities under the
Charter School Act.").
To conform with these constitutional and statutory commands, "the
Commissioner must use the full panoply of his powers to avoid [segregation]."
Id. at 329. See also Booker v. Bd. of Educ. of City of Plainfield, 45 N.J. 161,
A-3342-16T1
9
178- 79 (1965) (recognizing Commissioner's power extends beyond addressing
segregated schools and includes remedial action to alleviate substantial racial
imbalance); In re Petition for Authorization to Conduct a Referendum on the
Withdrawal of North Haledon Sch. Dist. from Passaic Cty. Manchester Reg'l
High Sch., 363 N.J. Super. 130, 139 (App. Div. 2003) (discussing Supreme
Court decisions requiring "education policy makers to anticipate imbalance and
to take action to blunt perceived demographic trends which will lead to racial or
ethnic imbalance."). Just as the Commissioner is obligated to act if a charter
school "systematically" recruits pupils of a particular race or national origin, the
Commissioner must also "be prepared to act if the de facto effect of a charter
school were to affect a racial balance precariously maintained in a charter
school's district of residence." Englewood, 164 N.J. at 328.
In response to the Court's decision in Englewood, and to the companion
case, In re Greater Brunswick Charter Sch., 164 N.J. 314, 315 (2000),
regulations were adopted that required the Commissioner, approving a charter,
N.J.A.C. 6A:11-2.1(j), and on an annual basis thereafter, N.J.A.C. 6A:11-2.2(c),
to "assess the student composition of a charter school and the segreg ative effect
that the loss of the students may have on its district of residence. The assessment
shall be based on the enrollment from the initial recruitment period pursuant to
A-3342-16T1
10
N.J.A.C. 6A:11-4.4(b)." 32 N.J.R. 3560(a), 3561 (Oct. 2, 2000). N.J.A.C.
6A:11-4.4(a) requires "a charter school [to] submit to the Commissioner the
number of students by grade level, gender and race/ethnicity from each district
selected for enrollment from its initial recruitment period for the following
school year."
This court similarly recognized in the previous Red Bank Charter appeal
the Commissioner's obligation under the State Constitution to prevent
segregation in New Jersey's public schools. See, e.g., 367 N.J. Super. at 471-72
(noting that "[a]ll parties agree that the Commissioner is required to monitor and
remedy any segregative effect that a charter school has on the public school
district in which the charter school operates," and " [t]he Commissioner must
vigilantly seek to protect a district's racial/ethnic balance during the charter
school's initial application, continued operation, and charter renewal
application."). See also Team Academy, 459 N.J. Super. at 145 (recognizing
the Commissioner's obligation to annually monitor the possible segregative
effective of a charter school upon the local school district).
A-3342-16T1
11
II.
RBCS opened in 1998. It presently enrolls 200 students, from
prekindergarten through eighth grade. 1 The school's charter limits enrollment
to twenty students in each of the ten grades.
For many years, starting long before the present litigation, RBCS has been
accused of enrolling a student population that does not reflect a cross-section of
the Red Bank community. In 2001, the Red Bank Board of Education (the
"School Board"), challenged a proposed expansion of RBCS's enrollment on the
grounds that RBCS had allegedly "worsened the racial ethnic imbalance in the
[Red Bank] district schools." Red Bank Charter, 367 N.J. Super. at 467. The
School Board contended that RBCS was "siphoning" non-minority students
from the district schools, which increased the "exodus of whites from the school
district." Id. at 472. The School Board appealed the DOE's approval of the
charter expansion request.
Based on the record in that earlier case, we remanded the dispute for an
administrative hearing. Among other things, we directed the hearing to focus
upon "whether some of [RBCS's] practices may be worsening the existing
1
The prekindergarten class enrollment was originally capped at fifteen students,
but counsel clarified at oral argument the class is now at twenty.
A-3342-16T1
12
racial/ethnic imbalance in the district schools." Id. at 480. We did not specify
the manner or venue of the remand hearing.
Several years after our 2004 remand, the Board and RBCS entered into a
consent order on March 20, 2007 in the OAL ending the litigation, without any
administrative hearing. RBCS's charter was renewed by the DOE in ensuing
years in 2006 and 2012, apparently without litigation. 2
The present appeal arises from the most recent renewal application
submitted by RBCS to the DOE in September 2016. As part of its review of that
application, the DOE conducted a site visit at RBCS in October 2016. Because
DOE ranks RBCS as a "Tier 1" school, based on its students' high academic
performance on standardized tests, the site visit was shortened to only several
hours, instead of a full day. Among other favorable things, the DOE concluded
from the site visit that RBCS is "faithful to its mission," that the school
"promotes a culture of high expectations," and that the RBCS Board "has the
capacity to govern the school effectively."
2
An initial charter is for a term of four years and may be renewed for a five -
year period. N.J.S.A. 18A:36A-17.
A-3342-16T1
13
On February 28, 2017, Kimberly Harrington, who was then the DOE
Commissioner, granted RBCS's charter renewal in a "short, congratulatory
letter," for a period of five years through June 30, 2022.
A. The Present Appeal of RBCS's 2017 Charter Renewal
On April 11, 2017, the Latino Coalition of New Jersey and Fair Schools
Red Bank (collectively "the Coalition") 3 appealed Commissioner Harrington's
renewal decision to this court. The Coalition asserted the renewal decision
violated: (1) the CSPA; (2) the Thorough and Efficient Education Clause of the
New Jersey Constitution, N.J. Const. art. VIII § 4 ¶ 1; (3) and Article I,
paragraph 5 of the New Jersey Constitution. The Coalition further argued the
Commissioner's decision was arbitrary and capricious.
Pursuant to Rule 2:5-1(b), Commissioner Harrington filed with this court
on August 9, 2017 an Amplification of Reasons for her February 28, 2017
decision, on her own initiative. The August 2017 Amplification cited three main
3
According to appellants, the Latino Coalition of New Jersey "is a [Section]
501(c)(14) corporation established in 2009, made up of organiz ations and
individuals from Monmouth and Ocean County, New Jersey." Co-appellant Fair
Schools Red Bank, meanwhile, "is an unincorporated organization of Red Bank
residents." Appellants state they represent "the membership of Fair Schools Red
Bank and the Latino Coalition, [which] includes residents of Red Bank with
school-age children, some of whom attend Red Bank's [p]rimary and [m]iddle
schools." At oral argument, appellants' counsel clarified they do not represent
the interests of Latino children who are presently enrolled at RBCS.
A-3342-16T1
14
reasons as support the renewal decision: (1) RBCS's favorable student
performance on statewide assessments; (2) operational sustainability; and (3)
demographic enrollment data and public comment.
With regard to the first listed factor of student performance,
Commissioner Harrington noted that RBCS is a "Tier Rank 1" school, and had
outperformed Red Bank district schools in English language arts and
mathematics in 2014-2015 and 2015-2016. The Commissioner observed in this
regard that "RBCS has a track record of student success based on the results of
statewide assessments."
Regarding the second factor of operational sustainability, Commissioner
Harrington noted that: (1) RBCS's charter already had been renewed three times
before the 2017 renewal; (2) its enrollment the last term was at capacity, with a
waiting list; and (3) leadership at RBCS has been "stable."
As to the third factor of demographics and pupil enrollment,
Commissioner Harrington acknowledged that "[a] cursory review of the
racial/ethnic composition of RBCS's overall student population . . . suggest[s]
that it does not currently reflect the community's school-age population."
(Emphasis added). However, the Commissioner explained that "a closer look
A-3342-16T1
15
reveals the RBCS has taken sufficient action to address the issue and has
obtained the necessary results." (Emphasis added).
Commissioner Harrington delineated several reasons to support her
conclusion that RBCS had taken "sufficient action" to address its racial
imbalance:
 There are limited opportunities for new students
to enroll because RBCS has a maximum
enrollment of 200 students, or 20 students per
grade, and a low attrition rate;
 RBCS had bolstered its outreach for the 2015-
2016 school year by mailing the RBCS
application and advertisements to all Red Bank
residents in both English and Spanish, and
targeted high-needs communities with posters
and banners;
 Prekindergarten enrollment data from 2015-2016
indicates that the recruitment strategy was
effective, with 60% of the 2015-2016 incoming
prekindergarten class identifying as Hispanic, as
compared to 27% of the 2014-2015 incoming
prekindergarten class identifying as Hispanic;
 In April 2016 RBCS implemented a weighted
lottery4 for economically disadvantaged students
4
According to the Commissioner, pursuant to N.J.S.A. 18A:36A-7 and N.J.S.A.
18A:36A-8, charter schools may seek approval from the DOE to establish
certain admission policies, including weighted lotteries, which favor
economically disadvantaged students. Economically disadvantaged students
who apply to RBCS have their names entered into the lottery three times, while
all other students have their names entered only twice.
A-3342-16T1
16
"in order to better represent a cross-section of the
community's school-age population;"
 Although the Commissioner considered ending
RBCS's sibling preference policy (as the
Coalition has advocated) in order to make more
seats available to new students, the
Commissioner determined it would be
unnecessary, citing to the increase in enrollment
of Latino prekindergarten students; and
 After comparing the ethnic makeup of the district
schools and RBCS, it was determined that there
was no compelling evidence to suggest that
RBCS is having a segregative effect on the
district schools.
Following the August 2017 Amplification, the Coalition filed an objection
with this court, arguing the amplification was improperly based on evidence not
in the record and had been submitted for the purpose of litigation advocacy.
B. Post-Remand & Subsequent DOE Proceedings
In a September 15, 2017 order from this court, we remanded the case to
the Commissioner for further "proceedings," in order to provide the Coalition
and DOE "with [an] adequate opportunity to supplement the record as it relates
to the August 9, 2017 Amplification of Reasons."
The Coalition's November 2017 Submission to the Commissioner
Pursuant to the remand by this court, the Coalition submitted to
Commissioner Harrington a detailed twenty-six-page letter on November 13,
A-3342-16T1
17
2017, which set forth arguments and evidence of RBCS's alleged historical
practice of segregation in its recruitment and enrollment practices. In the letter,
the Coalition's members expressed "deep[] concern[] that … RBCS is increasing
segregation in the [d]istrict schools." 5 The Coalition "submit[ed] [the] letter and
attached materials to assist the Commissioner in identifying the problems posed
by RBCS' operation, as well as specific remedies to address them."
In its November 2017 submission, the Coalition highlighted the following
matters in support of its argument that the Commissioner must make policy
changes to remedy the racial imbalance in RBCS:
 Census data showing the demographic shift and
increase in Red Bank's Latino community over
the past twenty years;
 Statements, letters, and newspaper articles
indicating that RBCS had endeavored to position
itself as the only public school option for white
parents seeking refuge from the majority-Latino
district schools. Or, as the Coalition puts it,
RBCS was allegedly intending to mitigate against
so-called "white flight" from Red Bank to nearby
towns;
 RBCS has historically limited information about
its application process and lottery system to
affluent white social networks and parent groups.
In other words, RBCS's recruiting was, in
5
Notably, the district has not participated in this appeal.
A-3342-16T1
18
essence, a "whisper campaign" amongst white
middle- and upper-class RBCS parents to other
white middle- and upper-middle class families;
 The sibling preference policy perpetuates
RBCS's skewed racial demographic because most
siblings are the same race and enrollment is
already very limited. Indeed, the Commissioner
noted in the August 2017 Amplification that,
according to the "school lead," roughly half of the
20 prekindergarten seats go to siblings each year;
and
 The weighted lottery is being undermined by
RBCS's sibling preference policy and failure to
recruit "a cross-section of the community.
Despite these criticisms, the Coalition clarified that it was not asking the
Commissioner to deny RBCS's renewal application altogether, recognizing that
the "closure of [RBCS] would disrupt and unfairly penalize its 200 students."
However, the Coalition did urge that "corrective action is required if the RBCS
charter is to be renewed," and insisted that the Commissioner address the
"central causes of RBCS'[s] segregative effect . . . by requiring changes to
RBCS policies."
(1) Proposed Remedial Measures
The Coalition proposed three specific remedial measures to the
Commissioner.
A-3342-16T1
19
First, the Coalition asked the Commissioner to evaluate standardized tests
scores in a manner that accounts for biases along the lines of race, class, and
English-language proficiency. The Coalition advocated the charter school's
performance should only be compared to the district schools "after
differentiating between students of racial, economically disadvantaged, and
[limited English proficiency] groups." According to the Coalition, "[s]uch a
policy change would remove the incentive for RBCS to recruit predominantly
white, wealthy, English-proficient students . . . . [a]nd it would remove the
harmful and unfair stigma that [,by comparison,] the [d]istrict is a poor academic
institution."
Second, the Coalition urged the Commissioner to "meaningfully
investigate and oversee the charter's marketing and recruitment efforts." The
Coalition asserted that, "in light of the accounts of [the letters submitted by
numerous] Red Bank parents [detailing the so-called alleged "whisper
campaign"], the charter cannot be taken at its word that it is fulfilling its
obligation to seek a cross-section of the community."
Third and finally, the Coalition requested the Commissioner suspend
RBCS's sibling preference policy until the charter school's racial imbalance is
corrected. The Coalition described as "illogical" the Commissioner's conclusion
A-3342-16T1
20
in the amplification that ending the sibling preference policy "could be
detrimental" to the enrollment of more Latino students.
(2) RBCS's Response Letter
In its administrative response to the Coalition, RBCS urged the
Commissioner to: (1) reject the Coalition's letter submission as improper and
contrary to the remand order because the submission presented new arguments
and information that had not been raised before; (2) find that the Coalition
lacked standing to bring an appeal of the charter renewal, and that the appeal
was moot since the Coalition was not contesting the continuance of the charter;
and (3) dismiss the Coalition's allegations of segregative impact, because "the
available evidence clearly demonstrates that RBCS attracts a cross[-]section of
the student age population in the Red Bank community." RBCS took issue with
the Coalition's claim that RBCS was purposely not recruiting Latino students.
In particular, RBCS asserted that recent "diverse enrollment trends" were a
direct result of RBCS's positive outreach to the Latino community.
Commissioner Repollet's April 2018 Amplification
In response to those submissions and this court's remand order,
Commissioner Lamont Repollet 6 issued a four-page Amplification on April 16,
6
Commissioner Repollet succeeded Commissioner Harrington in January 2018
after the change in gubernatorial administrations. He became Acting
A-3342-16T1
21
2018 "reiterate[ing] the February 28, 2017 decision to renew RBCS's charter
through June 30, 2022." Commissioner Repollet did not refer the matter for an
administrative hearing to delve into factual disagreements between the parties.
Commissioner Repollet's April 2018 Amplification concluded that, after
considering the supplemental record, "it is evident . . . that RBCS is seeking,
'to the maximum extent practicable,' to enroll a cross-section of Red Bank
Borough's school-age population." The Commissioner, while acknowledging
the letters of Red Bank residents suggesting what the Coalition alleged to be a
"whisper recruitment campaign," nonetheless found RBCS's recruitment
practices were sufficient during the relevant charter term (2013 to 2017), stating:
RBCS recruited throughout the Red Bank Community
by: providing the application in hard-copy and
electronically in English/Spanish, direct mailings to
Red Bank Borough residents, English/Spanish lawn
signs through the community, posted and published
advertisements for the application and latter in
English/Spanish, a banner on the main Red Bank
thoroughfare, and reaching out to local churches and
community organizations to include information about
RBCS in their bulletins and announcements.
Commissioner on January 29, 2018 and was sworn in as Commissioner on June
19, 2018, after he had issued the April 2018 Amplification. Dr. Lamont Repollet,
DEPARTMENT OF EDUCATION,
https://www.nj.gov/education/about/commissioner/repolletbio.shtml.
A-3342-16T1
22
Commissioner Repollet endorsed RBCS's use of a weighted lottery as a
tool to promote enrollment of economically disadvantaged students. The
weighted lottery, which because effective at RBCS in 2017, "increases the odds
a student identified as part of a specific educationally disadvantaged class . . .
will gain a seat at RBCS." Thus, according to the Commissioner, "the ultimate
purpose of the weighted lottery is to ensure that RBCS's enrollment represents
a cross-section of the community's school-age population." Citing a
certification from RBCS's principal included with RBCS's letter submission, the
Commissioner noted that, in the first year of the weighted lottery, "the number
of Hispanic students enrolled [per a] sibling preference increased 26 percent and
the number of white students enrolled with a sibling preference decreased 11
percent."7 Commissioner Repollet recognized that RBCS maintains a policy in
which siblings of current RBCS students are automatically granted a seat in
RBCS, and that, in the event the number of siblings applying for such seats
exceeds the available seats, the sibling student is placed on a waitlist and granted
enrollment through a lottery system. However, like Commissioner Harrington,
7
Of the fifty-nine students admitted in 2016-2017, it is not clear how many of
those students were in prekindergarten, and how many were older students who
had been enrolled through sibling preference, but before the implementation of
the weighted lottery.
A-3342-16T1
23
Commissioner Repollet found no reason to discontinue the sibling preference
policy, explaining that the weighted lottery will trend in a "direction that better
reflects the demographics of school-aged population in the community . . . .
[And] [i]t is anticipated that this trend will continue in coming years as
[economically disadvantaged students], and siblings thereof, obtain seats at
RBCS. (Emphasis added).
Although declining to take any immediate remedial action, Commissioner
Repollet did caution in his decision that the DOE "will continue to monitor
RBCS's demographics and will consider revisiting both the weighted lottery and
sibling preference if the trend does not continue."
The Coalition thereafter expanded its appeal to include Commissioner
Repollet's amplification.
III.
A.
Our governing standards of review are well established. In general,
reviewing courts "need to respect agency action taken pursuant to authority
delegated by the Legislature." In re Proposed Quest Acad. Charter Sch. of
Montclair Founders Grp., 216 N.J. 370, 385 (2013) ("Quest Academy").
A-3342-16T1
24
Consequently, subject to the governing law, an "appellate court may [only]
reverse an agency decision if it is arbitrary, capricious, or unreasonable." Ibid.
As we recently observed in Team Academy, our role in reviewing an
agency action is generally restricted to three inquiries:
(1) whether the agency's action violates express or
implied 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.
[Team Academy, 459 N.J. Super. 139 (quoting Quest
Academy, 216 N.J. at 385-86).]
This limited scope of review particularly applies to the context of a DOE
Commissioner's decision on a charter-school renewal application because the
Commissioner is "acting in his [or her] legislative capacity and not quasi-
judicial capacity" when he or she is reviewing such an application. Red Bank
Charter, 367 N.J. Super. at 475. As we stated in Red Bank Charter, "[t]he
Commissioner is merely applying his [or her] education expertise to the
collected data, including the documents, statistics, site visit, and comprehensive
review, to determine whether the charter school should be renewed . . . . It
A-3342-16T1
25
remains essentially an investigatory proceeding without the need of adversarial
procedural trappings." Id. at 475-76.
Because the Commissioner is acting in a quasi-legislative, and not quasi-
judicial capacity in this context, id. at 476, "he [or she] need not provide the
kind of formalized findings and conclusions necessary in the traditional
contested case." Ibid. (quoting In re Grant of Charter Sch. Application of
Englewood on the Palisades Charter Sch., 320 N.J. Super. 174, 217 (App. Div.
1999)). That is because when reviewing "quasi-legislative decisions, [reviewing
courts generally] do not seek to determine whether sufficient credible evidence
is present in the record, but instead consider whether the decision is arbitrary,
capricious or unreasonable." Ibid. The agency's "reasons for the decision need
not be detailed or formalized, but must [at least] be discernible from the record."
Ibid. (citing Bd. of Educ. of E. Windsor Reg'l Bd. of Educ. v. State Bd. of
Educ., 172 N.J. Super. 547, 552-53 (App. Div. 1980)).
That said, the normal standard of appellate review for arbitrariness
nonetheless "subsumes the need to find sufficient support in the record to sustain
the decision reached by the [DOE] Commissioner." Quest Academy, 216 N.J.
at 386. "[A] failure to consider all the evidence in a record would perforce lead
to arbitrary decision making." Ibid. (citing Close v. Kordulak Bros., 44 N.J.
A-3342-16T1
26
589, 599 (1965) (noting "the proofs as a whole" must be considered)). In the
same vein, a Commissioner's decision that is "based on a complete
misperception of the facts submitted in a record would render the agency's
conclusion unreasonable." Id. at 387 (citing Clowes v. Terminix Int'l, Inc., 109
N.J. 575, 588-89 (1988) (recognizing that an appellate court should intervene
when agency's "finding is clearly a mistaken one")).
Lastly, we review de novo on appeal pure questions of law. Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
B.
With these principles in mind, we turn to specific issues that have been
presented to us.
1. Appellants' Standing and Mootness Issues
RBCS and the Commissioner contend the Coalition lacks standing to
pursue its claims on this appeal, and that consequently there is no need for this
court to address the substance of those claims. We disagree.
Respondents hinge their lack-of-standing argument largely upon N.J.S.A.
18A:36A-4(d), a provision within the CSPA stating that "A local board of
education or a charter school applicant may appeal the decision of the
[C]ommissioner [concerning a charter school application] to the Appellate
A-3342-16T1
27
Division of the Superior Court." Respondents maintain this facet of the statute
precludes any parties, other than a local public school district or a charter school
applicant, from obtaining appellate review of a Commissioner's decision to
grant, renew, or deny a charter, or the terms of such grants.
As we have noted, the Red Bank Public School District, which filed
opposition to RBCS's renewal administratively with the DOE, 8 did not pursue
that opposition to the next level through an appeal to this court. Because no
such appeal was filed by the school district, respondents urge that we refuse to
consider the Coalition's own prayers for relief.
In a related procedural argument not joined by the Commissioner, RBCS
further contends we should dismiss the appeal because the Coalition is not
seeking to terminate or suspend RBCS's charter, but instead challenges certain
aspects of the charter's terms of renewal. Hence, according to RBCS, "there is
no controversy about the continuing status of RBCS's charter."
"Standing 'refers to [a litigant's] ability or entitlement to maintain an
action before the court.'" In re Adoption of Baby T, 160 N.J. 332, 340 (1999)
(quoting N.J. Citizen Action v. Riveria Motel Corp., 296 N.J. Super. 402, 409
8
We have not been supplied on appeal with a copy of the District's opposition
submitted to the DOE, but that document is listed in the Statement of Items
Comprising the Record.
A-3342-16T1
28
(App. Div. 1997)). Under this state's general principles of standing, a party
"must present 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." In re Camden
Cty., 170 N.J. 439, 449 (2002). See also In re Grant of Charter to Merit
Preparatory Charter Sch. of Newark, 435 N.J. Super. 273, 279 (App. Div. 2014)
(similarly applying these standing factors in a charter school case).
Our courts in this State generally take "a liberal approach to standing to
seek review of administrative actions." In re Camden Cty., 170 N.J. at 448.
"[W]hen an issue involves a 'great public interest, any slight additional private
interest will be sufficient to afford standing.'" Merit Charter, 435 N.J. Super. at
279 (quoting Salorio v. Glaser, 82 N.J. 482, 491 (1980)). "[I]t takes but slight
private interest, added to and harmonizing with the public interest[,] to support
standing to sue." People for Open Gov't v. Roberts, 397 N.J. Super. 502, 510
(App. Div. 2008) (quotation omitted).
This court very recently considered these standing principles in Team
Academy. In doing so, we declined to construe N.J.S.A. 18A:36-4(d) as an
immutable barrier for public interest organizations to seek appellate review of a
Commissioner's decisions concerning charter schools.
A-3342-16T1
29
Specifically, in Team Academy we recognized that the petitioner, a
nonprofit law center litigating on behalf of Abbott9 schoolchildren, had standing
to challenge the Commissioner's decision to approve the expansion of several
Newark charter schools. Id. at 125-26. See also In re Ass'n of Trial Lawyers of
Am., 228 N.J. Super. 180, 185 (App. Div. 1988) ("The standing of nonprofit
associations to litigate in varying contexts has historically been upheld in New
Jersey."). As we explained in Team Academy, "[n]onprofit organizations have
representative standing to pursue claims on behalf of their members that are of
'common interest' and could not more appropriately be pursued by individual
members." Team Academy, 459 N.J. Super. at 125-26 (citing Crescent Park
Tenants Ass'n, 58 N.J. 98, 109 (1971)).
As we reasoned in Team Academy:
Given our State's goal of providing a thorough
and efficient education to all public school students,
[the nonprofit law center's] standing seems clear. That
the statute [N.J.S.A. 18A:36-4(d)] does not explicitly
allow for organizations such as [the nonprofit law
center] to appeal the Commissioner's decisions is
inconsequential. The unfortunate reality is that, despite
systemic improvements, public school children in
Abbott districts continue to need representation in order
to ensure their constitutional right to a thorough and
efficient education is enforced. At no time has the
overall statutory scheme regarding education expressly
9
Abbott v. Burke, 119 N.J. 287 (1990).
A-3342-16T1
30
granted standing to entities such as [the nonprofit law
center], yet [the center] has over many years
successfully litigated on behalf of New Jersey's school
children. To coin a phrase, if not [the nonprofit law
center], then who?
The issues raised in this appeal, notably the effect
of a substantial increase in charter school enrollment on
traditional schools in a former Abbott school district,
are of "great public interest[.]" Merit Preparatory, 435
N.J. Super. at 279 (quoting Salorio, 82 N.J. at 491).
Thus, even if [the nonprofit law center] had
demonstrated only a "slight additional private interest,"
it has standing.
[Id. at 126-127 (emphasis added).]
In supplemental briefs filed in this case at our invitation, both RBCS and
the Commissioner attempt to distinguish the situation in Team Academy from
the present matter. They contend the Coalition fundamentally differs from the
appellant in Team Academy – the Education Law Center – because its two
constituent organizations lack a sufficient school-centered mission. Among
other things, respondents point out to us that the Latino Coalition is immersed
in a variety of community and cultural activities that do not directly concern
public education. Meanwhile, Fair Schools Red Bank is characterized by RBCS
as an organization whose overall mission is to have RBCS's charter revoked and
the school eliminated, although that particular relief is not sought on this appeal.
Respondents further attempt to distinguish Team Academy because the public
A-3342-16T1
31
schools in the City of Newark are State-operated, and therefore the voice of a
local public school board was absent from the litigation.
We are satisfied the Coalition has standing to pursue the present appeal.
The Coalition's members have a sufficient stake in the terms of the charter
school's renewal, and the ongoing impact of the terms of that renewal and the
school's enrollment practices on school-aged children who live in Red Bank,
particularly Latino children. As described by the Coalition, it is advocating in
this case the interests of "public school students and their families who are
harmed by the Commissioner's decision, which has [allegedly] allowed the
perpetration and exacerbation of segregation in Red Bank schools." That is an
appropriate – indeed, more than "slight" – interest to advocate in a charter school
renewal context, and one closely tied to the CSPA. People for Open Gov't, 397
N.J. Super. at 510 (noting the standard of a "slight" private interest, coupled
with the public interest). The Coalition has real adverseness to the positions of
respondents. It has articulated constitutionally-based and statutorily-based
potential harms that could ensue if the Commissioner's decision is not altered.
We recognize that the Coalition does not have the long pedigree of the
Education Law Center in litigating public school issues in New Jersey, and that
the Coalition's activities are not exclusively focused on educational matters.
A-3342-16T1
32
Even so, the Coalition, which is represented by co-counsel from the American
Civil Liberties Union and a law firm's public interest fellowship, has more than
ample credentials to advocate the serious issues of alleged segregation it has
presented concerning this charter school's renewal.
In addition, the absence of the Red Bank Public School District from this
appeal does not nullify the Coalition's standing. The District opposed RBCS's
charter renewal before the DOE. There is no reason to believe the District 's
views concerning the issues before us on appeal diverge from those of the
Coalition, except perhaps the District may favor more drastic remedies.
Further, we reject RBCS's contention the appeal is moot. An issue has
become moot "when the decision sought in a matter, when rendered, can have
no practical effect on the existing controversy." N.Y. Susquehanna & W. Ry.
Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct.
1984) (citation omitted), aff'd, 204 N.J. Super. 630 (App. Div. 1985). The
conditions of RBCS's renewal – particularly those concerning the continued
sibling preference policy, the effectiveness of the weighted lottery and the
school's outreach to the Latino population, and the other discrete issues posed
on appeal – remain viable and unresolved concerns. The Commissioners
themselves have stated in their amplifications that the DOE would be continuing
A-3342-16T1
33
to monitor these concerns. The controversy is plainly not moot, and indeed
persists.
2. Sibling Preference and the Newly-Instituted Weighted Lottery
A main remedial objective of the Coalition, asserted both at the agency
level and again on this appeal, is to have the Commissioner suspend RBCS's
sibling preference policy in the admissions process. The Coalition argues the
sibling preference policy historically has been a significant factor in causing a
much higher percentage of white students to be enrolled at RBCS, as compared
with the local school-age population. In simple terms, the Coalition argues the
sibling preference policy enables applicants who are younger siblings of white
students who are already enrolled at RBCS to occupy seats that might be more
demographically diverse if they were made open to all applicants, including
Latino children.
Sibling preference is statutorily permitted. N.J.S.A. 18A:36A-8(c) ("A
charter school may give enrollment priority to a sibling of a student enrolled in
the charter school."). However, as this court cautioned in the prior appeal
involving RBCS, "the statutory sibling preference is not mandatory and in
particular circumstances, might not be appropriate, especially if its operation
A-3342-16T1
34
exacerbates existing racial/ethnic imbalance." Red Bank Charter, 367 N.J.
Super. at 481-82.
As respondents have rightly pointed out, sibling preference admission
policies have numerous benefits. Among other things, parents with more than
one child at the school can be relieved of the logistical burdens of having their
children transported to different school locations. The siblings potentially may
benefit academically by having another sibling at the charter school who has
been taught the same or similar curriculum, by perhaps the same teachers. The
siblings may also benefit socially by having the opportunity to interact with
friends of their siblings' own friends and classmates. The siblings might also
participate together in extracurricular or recreational activities.
These benefits can be offset, however, if a sibling preference policy is
materially thwarting efforts to achieve a racial/ethnic enrollment balance that is
more representative of the local school-age population. As we have already
noted, there was a sharp increase in the under-eighteen Latino population in Red
Bank between 2000 and 2010. During that decade, the Latino under-eighteen
population grew from 542 to 1,307, or 141.1%. Consistent with that pattern, the
Latino enrollment at the Red Bank public school has grown from 18.9% in 1998
to 89.3% in 2017. Meanwhile, the Latino enrollment at RBCS has risen at a
A-3342-16T1
35
comparatively slower pace, from 5.1% in 1998 to 45.2% in 2017. As we have
already noted, the 2017 data indicates the percentages of whites (44.92%) and
Latinos (45.2%) attending RBCS are roughly equal, as compared with, say, 2000
when white enrollment was 51.3%, about five times the Latino enrollment of
10.0%.
The key causal question on this issue is to what extent the school's sibling
preference policy is unduly impeding further Latino enrollment and
diversification at RBCS. Both Commissioner Harrington and her successor
Commissioner Repollet considered that precise question, and concluded that the
sibling preference policy should not be suspended at this time.
As Commissioner Harrington noted in her amplification, "RBCS's most
recent data does not evidence that ending sibling preference would bring about
the desired change." She recognized in this regard that in April 2016, RBCS,
with the approval of the DOE, became the second charter school in this State to
implement a weighted lottery that favors economically disadvantaged students,
which would include many students from the Latino community. Through that
weighted lottery, economically disadvantaged students enjoy a 3:2 preference in
A-3342-16T1
36
competing for any open slots at RBCS, including situations where multiple
applicants have an older sibling at the school. 10
As Commissioner Harrington underscored, the percentage of Latino
children in the incoming prekindergarten class at RBCS increased from 27% in
2014-15 to 60% in 2015-16. Given this sharp increase, Commissioner
Harrington found that, even with the policy of sibling preference continued, "the
most recently admitted cohort of students is beginning to mirror the racial/ethnic
composition of the community's school-age population." In light of this,
Commission Harrington specifically "determined that it was unnecessary, and
indeed, could be detrimental, to end sibling preference." That said,
Commissioner Harrington committed in her August 2017 amplification that the
DOE "will continue to monitor the demographic of the prekindergarten class and
will consider revisiting the sibling preference issue if the trend does not
continue."
Commissioner Repollet adopted and reinforced these conclusions in his
own amplification in April 2018. Among other things, he noted that in the first
year of implementation of the weighted lottery, the number of Hispanic students
10
The record indicates the waiting list for admission at RBCS is substantial.
For the 2013-14 school year, it was 143 students.
A-3342-16T1
37
enrolled with a sibling preference increased twenty-six percent and the number
of white students enrolled with sibling preference decreased eleven percent.
This newer data suggested to Commissioner Repollet that "as a result of the
weighted lottery in favor of economically disadvantaged students, enrollment at
RBCS is trending in a direction that better reflects the demographics of the
school-age population in the community." (Emphasis added). Commissioner
Repollet also found that "[i]t is anticipated that this trend will continue in
coming years as students with documented economically disadvantaged
statuses, and siblings thereof, obtain seats at RBCS." (Emphasis added). Like
his predecessor, Commissioner Repollet committed that the DOE "will continue
to monitor RBCS's demographics and will consider revisiting both the weighted
lottery and the sibling preference if the trend does not continue." (Emphasis
added).
The record furnished to us on this appeal does not demonstrate that either
Commissioner acted arbitrarily or capriciously, or violated constitutional norms,
by declining to halt sibling preference at the school. Indeed, the actual annual
impact of sibling preference on the enrollment numbers appears to be slight.
The record reflects that only about twenty of the 200 enrollment slots at
the school open up each year, through the graduation of the eighth grade class
A-3342-16T1
38
and miscellaneous departures. The prekindergarten class – whether it be fifteen
or twenty – is realistically the only class level that can significantly affect
enrollment percentages, since no one is advocating that presently-enrolled
RBCS students be removed from the school. See also N.J.S.A. 18A:36A-8(b)
(prohibiting such a measure).
According to the certification of the school's principal, in the 2017-18
school year, fifty-nine Latino students and fifty-eight white students were
enrolled with a sibling preference, indicating that Latino students at the school
are equally likely to have another sibling at the school as a white student. The
record does not tell us exactly how many students in the most recent
prekindergarten class, which is sixty percent Latino, received a sibling
preference.
For the sake of discussion, if, hypothetically, the prekindergarten class
consists of twenty students, then about twelve of them probably are Latino, a nd
about seven or eight probably are white. According to the school-wide data and
the information from the "school lead," about half of those prekindergarten
students would have an older sibling at the school. If sibling preference were
eliminated, one might expect that about half of the approximately twelve Latino
children (i.e., six children) would possibly lose their seats in the class, while
A-3342-16T1
39
about half of the approximately seven or eight white prekindergarten children
(i.e., three or four) would lose their spots. At most, the Latino composition of
the prekindergarten class could only increase from twelve students to twenty, a
maximum net gain of eight students. When compared with the total enrollment
in the school of 200, such a maximum gain of eight Latinos (i.e., four percent)
in a particular year is limited at best.
The Commissioners did not misapply their discretion in declining to cease
the sibling preference, given this minor effect on the overall enrollment
demographic. Moreover, a cessation of sibling enrollment could easily have
detrimental impacts on the Latino applicants seeking to join their siblings at the
school, an important cohort that the Coalition does not represent.
Lastly on this point, we accept as sincere the express committal of the
successive Commissioners to monitor these trends closely, and to step in and
make adjustments as may be needed. The annual assessment process prescribed
by N.J.S.A. 18A:36A-16(a) and N.J.A.C. 6A:11-2.2(c) and mandates such
review, including any segregative effects of enrollment practices.
For these many reasons, we affirm the respective Commissioners '
rejection of the Coalition's request to suspend the sibling preference policy. The
rejection is amply supported by the record and cogent reasons. Moreover, the
A-3342-16T1
40
DOE has the power to take remedial interim action if the positive trend towards
diversity materially ebbs.
3. Omission of Express Findings Concerning Alleged Intentional
Discrimination and Shortcomings in Advertising
The Coalition additionally maintains that the Commissioners' decisions
critically omit express findings that address the so-called "whisper campaign"
to encourage white applicants, and the claimed shortcomings of RBCS's efforts
to advertise the application process to parents in the local Latino community
with school-aged children. The Coalition asserts in this regard that the
Commissioners have a constitutional and statutory obligation to make express
findings about these issues, and to state whether or not there is sufficient
evidence of intentional discriminatory practices.
To cure these alleged omissions, the Coalition seeks a further remand to
the DOE to afford the Commissioner another chance to address these issues with
explicit findings. Although in its brief on appeal, the Coalition requested a
remand for an "evidentiary" hearing, at oral argument on the appeal its counsel
clarified that it is not seeking a formal administrative hearing in the OAL, but
instead an unspecified less-formal process for the Commissioner to delve more
deeply into these factual allegations and perhaps to speak with persons having
information about the subjects.
A-3342-16T1
41
To be sure, the record does contain a considerable amount of hearsay in
the form of unsworn parent letters, as well as a quotation from a Board member
uttered several years ago that may have limited evidential value. On the other
hand, the Coalition acknowledged at oral argument on the appeal that it has no
evidence that the lottery process has been manipulated in a corrupt fashion, or
that Latino students have been denied admission through any such corruption.
We agree with the Coalition that some of the factual allegations it has
presented may be indicative of problems with the timing and content of the
school's advertising and recruitment process, and may warrant a closer look by
the DOE. Among other things, the amplifications did not resolve whether timely
mailings went to the full boundaries of the school district, and whether Spanish -
language signs advertising the application deadline had been adequately
translated to match those in English.
It is fairly implicit in the two amplifications that neither Commissioner
was persuaded from the documentary record that intentionally discriminatory
practices are presently occurring in RBCS's enrollment process. Even so, we
remand this appeal to the Commissioner one more time, on an expedited basis,
to consider the Coalition's specific factual allegations and afford the
Commissioner the opportunity to issue a third amplification. The Commissioner
A-3342-16T1
42
is not required to conduct or request an evidentiary hearing, as we are not yet
convinced (without deciding the legal question) that, under present case law,
such an evidentiary hearing can be compelled in the context of a quasi-
legislative charter renewal. Quest Academy, 216 N.J. at 384-85 (explaining the
quasi-legislative nature of such decisions). We recognize that in 2004 we
remanded the case for a hearing, and that the then-DOE Commissioner
apparently referred the dispute thereafter to the OAL, where the matter settled
three years later. Red Bank Charter, 367 N.J. Super. at 486. We are uncertain,
and need not reach here, whether the Supreme Court's more recent opinion in
Quest Academy, 216 N.J. at 383-85, precludes a court-ordered evidentiary
hearing.
In any event, given the fact that the first three years of this school's five-
year charter have already passed, we are not convinced of the practicality and
wisdom of conducting further development of the existing record concerning the
2017-2022 charter at a time not long before RBCS's anticipated charter renewal
application is filed in the fall of 2021. We instead request the Commissioner to
make explicit findings based solely on the existing administrative record, 11 and
11
The record should include all of the items listed within the Statement of Items.
Within ten days, counsel shall furnish the Commissioner with courtesy copies
A-3342-16T1
43
to communicate those findings in a third written amplification by no later than
December 15, 2019. Following that third amplification, any aggrieved party
may file a new appeal from that amplified determination. We do not retain
jurisdiction, and the present appeal is deemed concluded.12
Our disposition is without prejudice, however, to two other important
avenues for potential reform and remedial action.
First, as respondents acknowledge, the Coalition or "any individual or
group" may bring a complaint pursuant to N.J.S.A. 18A:36A-15 alleging
violations of the CSPA. Such a complaint initially shall be presented to the
RBCS Board of Trustees. Ibid. If the complainant believes that the trustees
have not adequately addressed the complaint, the statute requires the
Commissioner to "investigate and respond to the complaint." Ibid. Although
we need not resolve the question here, respondents' counsel at oral argument
appeared to acknowledge that, if a "contested case" under the Administrative
Procedure Act, N.J.S.A. 52:14B-9(a), is generated by such a grievance due to
of their appellate briefs and appendices, which should obviate the need for any
other submissions and help expedite the remand.
12
We need not address in this appeal concerning RBCS's charter renewal
appellants' generic criticisms of the State's standardized testing methods. Those
issues are more appropriately raised in a different context with an appropriate
record.
A-3342-16T1
44
the existence of factual disputes, the Commissioner may refer such a dispute to
the OAL. The results of such an OAL hearing may aid the DOE in its ongoing
oversight.
A second important avenue to underscore is that these dynamic factual
issues may be considered anew in the forthcoming charter renewal process.
Under N.J.A.C. 6A:11-2.3(b), RBCS must submit its charter renewal application
to the DOE by October 15, 2021. In the meantime, more incoming classes at
RBCS will be selected and more data generated. That additional data may well
shed further light on whether the weighted lottery is working in a desirable
fashion, and whether the school's most recent advertising measures to the
community are timely and effective.
Affirmed in part and remanded in part. We do not retain jurisdiction.
A-3342-16T1
45