Propel Charter Schools v. S.D. of Pittsburgh (State Charter School Appeal Bd.) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Propel Charter Schools, :
Petitioner :
:
v. :
:
School District of Pittsburgh :
(State Charter School Appeal Board), : No. 1210 C.D. 2020
Respondent : Argued: October 18, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: November 19, 2021
Propel Charter Schools (Propel) petitions this Court for review of the
State Charter School Appeal Board’s (CAB) December 22, 2020 order that denied
Propel’s appeal from CAB’s Hearing Officer’s (Hearing Officer) order granting the
School District of Pittsburgh’s (District) Motion to Supplement the Record with
Propel’s 2017-18 school performance profile (SPP) scores and rankings (Motion to
Supplement), and denied Propel’s appeal from the District’s denial of Propel’s
application (Application) to operate a Multiple Charter School Organization
(MCSO). Propel presents three issues for this Court’s review: (1) whether Propel’s
failure to adhere to the Pennsylvania Department of Education’s (Department)
MCSO Application Guide (Application Guide) is a proper basis for denying Propel’s
Application; (2) whether the Department’s Application Guide is an improper
regulation; and (3) whether CAB erred when it interpreted the Charter School Law
(CSL)1 to allow the consideration of SPP data that became available after Propel
filed the Application.2 After review, this Court affirms.3
In February 2018, the Department published an application form
(Application Form) to be completed by charter schools seeking to establish an
MCSO, and published the Application Guide in conjunction with the Application
Form.4
1
Act of March 10, 1949, P.L. 30, as amended, added by Section 1 of the Act of June 19,
1997, P.L. 225, 24 P.S. §§ 17-1701-A - 17-1751-A.
2
This Court has reordered Propel’s issues for ease of discussion.
3
This matter was argued seriately with Propel Charter Schools v. Pa. Dep’t of Educ. (Pa.
Cmwlth. No. 1209 C.D. 2020, filed Nov. 19, 2021).
4
The Department’s Application Guide provides, in relevant part:
The General Assembly did not provide express direction concerning
the sequence of submission and review of MCSO applications to the
chartering school district(s) and the Department. Therefore, the
Department has concluded that the most reasonable way to
implement the requirements relating to submission and review is
through a sequential review.
Under this sequential review process, the establishment of an MCSO
begins with the submission of a complete and verified MCSO
[a]pplication to the chartering school district(s) for each charter
school under the proposed MCSO. In the case of a regional charter
school, or when the charter schools seeking to form an MCSO have
different chartering school districts, the MCSO [a]pplication must
be submitted to all chartering school districts simultaneously.
Chartering school district(s) have 45 days to review and act on an
application for creation of an MCSO; if no action occurs within the
45 days, the application is deemed approved. [Section 1729.1-
A(a)(2) of the CSL, added by the Act of November 6, 2017, P.L.
1142,] 24 P.S. § 17-1729.1-A(a)(2). If a chartering school district
disapproves an application and that disapproval is subsequently
reversed by [] CAB[], see 24 P.S. § 17-1729.1-A(f), the application
will be considered approved as of the date of CAB’s written
determination unless otherwise stayed by an appropriate order.
After approval by the chartering school district(s) (or CAB) or the
passage of 45 days, the MCSO [a]pplication is submitted to the
Department. The MCSO [a]pplication submitted to the Department
must be identical to that approved by the chartering school
2
On May 4, 2018, Propel submitted the Application to the District,
wherein Propel sought to consolidate eight of its preexisting charter schools as a
single MCSO. The preexisting charter schools included: Propel Schools (operating
as Propel Charter School - Homestead); Propel Charter School - East; Propel Charter
School - McKeesport (Propel-McKeesport); Propel Charter School - Montour
(Propel Montour); Propel Charter School - Northside (Propel-Northside); Propel
Charter School - Pitcairn; and Propel Charter School - Hazelwood (Propel-
Hazelwood).
Propel also submitted its Application to the Department and to Steel
Valley School District, Woodland Hills School District, Penn Hills School District,
McKeesport School District, Montour School District and Gateway School District.
Pursuant to Section 1729.1-A(c) of the CSL,5 24 P.S. § 17-1729.1-A(c), each school
district and the Department had 45 days to render a decision on the Application. On
June 18, 2018, the District formally voted to deny the Application. No other school
district responded to the Application within 45 days and, therefore, the Application
was deemed approved by those school districts.
district(s). The Department has 45 days for review and action. 24
P.S. § 17-1729.1-A(a)(1). Disapproval by the Department is also
subject to an appeal to CAB. See 24 P.S. § 17-1729.1-A(f).
This sequential review allows charter schools to address and resolve
any concerns with the chartering school district(s), which have
closer oversight of the charter schools, before seeking the
Department’s approval. Also, the sequential review eliminates the
possibility of conflicting decisions on an MCSO [a]pplication being
issued by the chartering school district(s) and the Department at the
same time.
Reproduced Record at 5725a-5726a.
5
Section 1729.1-A of the CSL was added by Section 10 of the Act of November 6, 2017,
P.L. 1142.
3
On June 25, 2018, the District issued its Notice of Denial (Denial
Notice) that stated, in relevant part:
Although the [CSL] generally prohibits underperforming
schools from consolidating with other charters schools, the
consolidation is possible if the proposed consolidation
includes a charter school that has met the performance
criteria for the past two (2) years. Propel proposed to
consolidate eight (8) schools, of which only one ([Propel-
]McKeesport) met the statutory performance criteria.
Neither of the Propel schools located within the [District]
([Propel-]Northside and [Propel-]Hazelwood) have met
the performance criteria.
The [District] reviewed the [A]pplication and the
[District’s board of school directors (School Board)]
determined that it does not approve of the
consolidation . . . . Although Propel claims that the
consolidation will provide operating and administrative
efficiencies, the [School] Board does not agree that these
efficiencies will benefit students, and Propel’s claim that
the consolidation would enhance educational equity for all
students was not supported by any information submitted
by Propel or made available to the [School] Board.
The [School] Board does not approve of the consolidation
for the reasons discussed at its public meetings and as
further detailed herein. The [School] Board raised
concerns in each of the following areas:
I. The Governance Structure. The [CSL] provides that
multiple charter school applicants must only submit “a
clear description of the method for the appointment or
election of members to the board of trustees.” [Propel]
did not clearly delineate the composition of the Board
of Trustee[s] or the manner of selection. . . .
II. The funding of the [MCSO] (accountability for
Pittsburgh tax dollars being used to benefit Pittsburgh
students). Propel provided no information regarding
any accountability for payments made by the [] District
[] being used to benefit students residing in the []
District [] and attending Propel. . . .
4
III. The proposed budget for the [MCSO], including
special education expenditures. From information
provided by Propel in the 2015-[]16 budget, there was
a projected 22% decrease in special education tuition
revenue in anticipation in the new funding formula.
However, there was no change in the charter funding
formula. The lower projected revenue could lead
[Propel] to under budget and under fund services for
special education students. That is coupled with the fact
that special education tuition rate that the District pays
to Propel increased by 5% in 2015-[]16. There was no
explanation for the obvious contradiction in a decrease
in special education tuition revenue and an increase in
the tuition rate. . . .
Reproduced Record (R.R.) at 5472a-5473a (italic emphasis added).
On July 16, 2018, Propel filed an appeal to CAB. Propel’s Application
relied on Propel-McKeesport as its lone qualifying school to satisfy the CSL’s
MCSO approval requirement that at least one member school must have an SPP
score that is among the top 25th percentile of Pennsylvania charter schools as
measured by the SPP for the two most recent school years.
At the time Propel filed the Application with the District, the two most
recent school years for which SPP scores were available were the 2015-16 and 2016-
17 school years. On December 21, 2018, the Department published SPP scores and
rankings for the 2017-18 school year. On January 9, 2019, based upon the SPP
scores for the 2017-18 school year, the Department updated its MCSO Eligibility
List.
On January 16, 2019, the District filed the Motion to Supplement. The
purpose of the Motion to Supplement was to provide CAB with evidence that Propel-
McKeesport was no longer ranked in the top quartile as it had been for the 2015-16
and 2016-17 school years. Because Propel-McKeesport had been the only school
with an SPP score in the top quartile of charter schools in the Commonwealth, none
of the eight schools in the proposed MCSO had an SPP score that would qualify
5
Propel for MCSO eligibility. On March 19, 2019, the Hearing Officer granted the
Motion to Supplement (March 19, 2019 Order). Propel appealed to CAB from the
Hearing Officer’s March 19, 2019 Order.
On May 21, 2019, the parties argued Propel’s direct appeal to CAB
from the Hearing Officer’s March 19, 2019 Order and Propel’s appeal from the
District’s decision denying Propel’s Application. Prior to the hearing, CAB Member
Lee Ann Munger (CAB Member Munger) and the Department Secretary recused
themselves from participating in both appeals.6
At CAB’s June 18, 2019 meeting, CAB Member Munger and the
Department Secretary recused themselves from the vote, leaving a quorum - four
CAB members - who voted 4-0 to deny Propel’s appeal from the Hearing Officer’s
March 19, 2019 Order. Also, on June 18, 2019, CAB voted 3-1 to deny Propel’s
appeal from the District’s decision to deny Propel’s Application; however, CAB
tabled the matter as a nonactionable vote because CAB determined, in accordance
with its interpretation of the CSL, that the 3-1 vote did not constitute a valid CAB
action.7
On July 24, 2019, with the Department Secretary and CAB Member
Munger again recusing, the same four CAB members again voted on the substantive
appeal from the Department’s denial, resulting in another 3-1 vote, which CAB did
not recognize as a valid CAB action. Once more, CAB tabled the matter.
On September 6, 2019, Propel filed a Motion to Permit CAB Member
Munger to Vote. CAB counsel held a conference call with all of the parties to discuss
Propel’s Motion to Permit CAB Member Munger to Vote. On September 12, 2019,
the District filed its response in opposition thereto. On September 25, 2019, Propel
6
CAB Member Munger explained that her children attend Propel.
7
Because a majority of the six CAB members did not vote unanimously, CAB determined
that the 3-1 vote did not constitute a valid CAB action.
6
withdrew its Motion to Permit CAB Member Munger to Vote, and filed a Motion to
Allow Vote of 3-1 in this Matter as Proper (Vote Motion). On October 7, 2019, the
District filed its response thereto. At CAB’s October 22, 2019 meeting, the parties
argued the Vote Motion and CAB voted to deny the Vote Motion, and again
attempted to vote on the substantive appeal which resulted in a 3-1 vote to deny.
CAB tabled the matter for a revote at its December 3, 2019 meeting. On November
27, 2019, CAB issued a written order denying the Vote Motion. On December 26,
2019, Propel appealed to this Court. On that same date, Propel also filed a Petition
for Review in the Nature of a Declaratory Judgment Complaint in this Court’s
original jurisdiction seeking a declaration that the CAB votes and revotes were
proper, and an order for CAB to promptly issue a written decision.
On November 20, 2020, this Court ruled that CAB’s 3-1 vote was
proper, and reversed CAB’s November 27, 2019 Order.8 This Court further directed
that Propel had 30 days therefrom to appeal from CAB’s denial of Propel’s
substantive appeal. On November 25, 2020, Propel filed the instant Petition for
Review.9 On December 23, 2020, CAB issued its written decision in support of its
June 18, 2019 vote of 3-1 denying Propel’s appeal and its denial of Propel’s appeal
from the Hearing Officer’s March 19, 2019 Order.10
Propel argues that CAB erred when it concluded that Propel’s failure to
comply with the Department’s Application Guide, specifically its requirement that
8
See Propel Charter Sch. v. Pa. Dep’t of Educ., 242 A.3d 985 (Pa. Cmwlth. 2020); Propel
Charter Sch. v. Pa. Dep’t of Educ., 243 A.3d 322 (Pa. Cmwlth. 2020); Propel Charter Sch. v.
Charter Sch. Appeal Bd. (Pa. Cmwlth. No. 1827 C.D. 2019, filed Nov. 20, 2020).
9
“Our review of [CAB’s] decision is limited to determining whether constitutional rights
were violated, whether errors of law were committed or whether the decision is not supported by
substantial evidence.” New Hope Acad. Charter Sch. v. Sch. Dist. of the City of York, 89 A.3d
731, 736 (Pa. Cmwlth. 2014).
10
CAB did not file an opinion in support of its June 18, 2019 vote denying Propel’s
substantive appeal before this Court issued its November 20, 2020 decision, due to its conclusion
that the vote was not valid.
7
Propel first submit the Application to the school districts and, only after approval by
the school districts, to the Department, is a proper basis for denying Propel’s
Application. Propel expressly asserts:
Lack of sequential submission and review of the
Application cannot be a reason for denial by CAB or the
District because there is no such requirement under the
[CSL]. Moreover, whether or not Propel submitted its
[A]pplication in a particular sequence does not bear on the
District’s analysis as to whether Propel is eligible to
consolidate.
Propel Br. at 28.
In its Decision, CAB explained:
[T]he Application Guide . . . explicitly states that “the most
reasonable way to implement the [MCSO’s] requirements
relating to submission and review is through a sequential
review.” ([] Application Guide[ at] 2). The Application
Guide goes on to state that “[a]fter approval by the
chartering school district(s) (or CAB) or the passage of 45
days, the MCSO [a]pplication is submitted to the
Department.” ([] Application Guide[ at] 2). While the
Application Guide’s language is not expressed as a
command or mandate (e.g., “the review shall be
sequential”), no reasonable reading of that language would
interpret it as providing an applicant with discretion in the
timing of its filings, and an applicant choosing its own
filing sequence would necessarily do so at its peril.
Therefore, Propel’s argument in this regard provides no
grounds on which to reverse the denial of its Application.
CAB Dec. at 20, R.R. at 5837a.
Section 1729.1-A of the CSL, which provides for the establishment of
MCSOs (MCSO Provisions), states, in relevant part:
(a) Establishment shall be as follows:
(1) Subject to the requirements of this [S]ection and
[Part 2, Subchapter C of the Associations Code, ]15
Pa.C.S. Pt. II Subpt. C[, 15 Pa.C.S. §§ 6101-6162]
8
(relating to nonprofit corporations), two (2) or more
charter schools may consolidate into a[n] [MCSO] if
both of the following apply:
(i) The [D]epartment approves the consolidation
as proposed in the application form submitted to the
[D]epartment pursuant to subsection (c). If the
[D]epartment does not approve or disapprove the
proposed consolidation within forty-five (45) days
after receipt of the application, the [D]epartment will
be deemed to have approved the consolidation.
(ii) Each school district that granted the initial
charter of any charter school included in the
proposed consolidation approves, by a majority
vote of the local board of school directors, a
resolution approving the consolidation as proposed in
the application submitted to the local board of school
directors pursuant to subsection (c). If a local board
of school directors does not adopt a resolution under
this clause approving or rejecting the proposed
consolidation within forty-five (45) days after receipt
of the application, the school district will be deemed
to have approved the consolidation.
....
(b) (1) A charter school that, within either of the most
recent two (2) school years, has failed to meet any of
the following shall not be eligible to consolidate with
another charter school:
(i) Requirements for student performance set forth in
[Chapter 4 of the State Board of Education’s
Regulations,] 22 Pa. Code Ch. 4[, §§ 4.1-4.82]
(relating to academic standards and assessment).
(ii) Accepted standards of fiscal management or audit
requirements.
(iii) A[n] [SPP] score that is among the top twenty-
fifth percentile of Pennsylvania charter schools as
measured by the [SPP] for the most recent year for
which a[n] [SPP] score is available.
9
(2) A charter school that has failed to meet any of the
requirements of paragraph (1) may consolidate if
the consolidation includes a charter school
demonstrating that it has satisfied such
requirements for the most recent two (2) school
years.
(c) Within ninety (90) days of the effective date of this
section, the [D]epartment shall develop and issue a
standard application form that [MCSO] applicants
must submit to the [D]epartment and to the local board
of school directors of each school district that granted the
initial charter of any charter school included in the
proposed consolidation. . . .
....
(f) Appeals shall be as follows:
(1) [CAB] shall have the exclusive review of an appeal
by an applicant for consolidation, with respect to the
rejection of a proposed consolidation by either the
[D]epartment or a school district.
(2) In considering an appeal under this section, [CAB]
shall:
(i) Review the decision made by either the
[D]epartment or the school district on the record as
certified by the entity that made the decision being
appealed, provided that [CAB] may allow the
[D]epartment, a school district or the applicant
for consolidation to supplement the record if the
supplemental information was previously
unavailable.
(ii) Meet to officially review the certified record no
later than thirty (30) days after the date of filing the
appeal.
(iii) Issue a written decision affirming or denying the
appeal no later than sixty (60) days following its
review of the certified record.
10
(iv) Make its decision based on whether the
proposed consolidation satisfies the requirements
of subsections (b) and (c).
....
(4) All decisions of [CAB] shall be subject to appellate
review by the Commonwealth Court. In the event of an
appeal of a decision by [CAB] to the Commonwealth
Court, the decision of [CAB] shall be stayed only upon
order of [CAB], the Commonwealth Court or the
Pennsylvania Supreme Court.
24 P.S. § 17-1729.1-A (emphasis added).
The Department’s Application Guide provides that only after obtaining
the approval from the applicable school districts, as required in Section 1729.1-
A(a)(1)(ii) of the CSL, may the applicant submit an application to the Department
under Section 1729.1-A(a)(1)(i) of the CSL. Propel correctly observes that there is
no such requirement in the MCSO Provisions of the CSL, as Section 1729.1-A(a)(1)
of the CSL simply provides that applications are to be submitted to the applicable
school districts and to the Department, and that the school districts and the
Department must render their decisions within 45 days of their receipt of the
respective application or the respective application will be deemed approved. See
24 P.S. § 17-1729.1-A(a)(1).11
In response, the District argues that CAB properly gave the
Department’s interpretation deference since the Department’s Application Guide
was based on the Department’s interpretation of the CSL - the statute it is charged
with administering. Further, according to the District, the Application Guide itself
reveals the Department’s “clearly expressed thoughtful guidance . . . based on [its]
experience[.]” District Br. at 18. Finally, the District asserts that the Application
11
Section 1729.1-A(a)(1) of the CSL merely lists approval by both the Department and the
applicable school districts as requirements for an MCSO. Notably, Section 1729.1-A(a)(1) of the
CSL lists the Department’s approval first. See 24 P.S. § 17-1729.1-A(a)(1)(i), (ii).
11
Guide is entitled to deference as a “guidance document[.]” Id. at 21. Specifically,
the District contends that the Application Guide is an interpretive rule, which should
be afforded deference, and that the Department “constantly develops and
implements guidance, which are policy statements, agency manuals, and
enforcement guidelines relating to charter schools (and other school laws,
regulations, and policies).” District Br. at 22.
The Pennsylvania Supreme Court has explained:
This Court has held “[a]n interpretation by the agency
charged with the administration of a particular law is
normally accorded deference, unless clearly erroneous.”
Harkness v. [Unemployment Comp. Bd. of Rev.], . . . 920
A.2d 162, 171 ([Pa.] 2007). Moreover, since Harkness,
we have described two types of agency interpretations
which are accorded different levels of deference. Agency
interpretations that are promulgated in published rules and
regulations have been referred to as “legislative rules” and
“are accorded a particularly high measure of deference[,]”
also known as Chevron[12] deference, and “enjoy a
presumption of reasonableness[.]” N[w.] Youth Serv[s.,
Inc. v. Dep’t of Pub. Welfare,] 66 A.3d [301,] 310-11 [(Pa.
2013)]. Non-legislative rules, also known as “interpretive
rules” or “guidance documents,” such as “manuals,
interpretive memoranda, staff instructions, policy
statements, circulars, bulletins, advisories, [and] press
releases” are accorded “a lesser quantum of deference[,]”
also known as Skidmore[13] deference, which allows an
agency’s interpretation to be disregarded when a court is
“‘convinced that the interpretative regulation adopted by
an administrative agency is unwise or violative of
legislative intent.’” Id. at 310-12, quoting Pa. Hum[.]
Rel[.] Comm’n v. Uniontown Area Sch[.] Dist[.], . . . 313
A.2d 156, 169 ([Pa.] 1973).
Harmon v. Unemployment Comp. Bd. of Rev., 207 A.3d 292, 299-300 (Pa. 2019)
(footnotes omitted).
12
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
13
Skidmore v. Swift & Co., 323 U.S. 134 (1944).
12
With respect to an initial application for a charter under Section 1717-
A of the CSL,14 this Court has explained:
[T]he legislature apparently appreciated that timeliness
was an important element in assuring the fairness of the
charter school application and review process. This is
evident from the legislature’s inclusion of time limitations
at every stage of these proceedings under the CSL. Thus,
the essence of the thing to be accomplished by the CSL
is the prompt adjudication of charter school
applications. It is with this in mind that we recently
considered a time limitation imposed under the CSL and
held:
The [CSL] emphasizes that time is of the essence
and directs the local school boards and [CAB] to
quickly resolve the issue of whether to grant or deny
an institution[’]s charter school application. Thus,
we conclude that the legislature’s use of the word
“shall” in Section 1717-A(i)(8) [of the CSL] . . . is
mandatory, requiring [CAB] to issue its written
decision and order within 60 days of its final hearing
on an application.
Shenango Valley Reg[’l] Charter Sch[.] v. Hermitage
Sch[.] Dist[.], 756 A.2d 1191, 1194 (Pa. Cmwlth. 2000).
Sch. Dist. of Phila. v. Indep. Charter Sch., 774 A.2d 798, 802-03 (Pa. Cmwlth. 2001)
(emphasis added; footnotes omitted).
Similarly, here, the General Assembly imposed a strict 45-day MCSO
application review time limit for both the Department and the school districts,
providing that if a decision was not rendered on the application within the allotted
time, the application would be deemed approved. See 24 P.S. § 17-1729.1-
A(a)(1)(i), (ii). It also imposed strict time requirements on CAB’s disposition of
appeals from MCSO application decisions. See 24 P.S. § 17-1729.1-A(f)(2)(ii), (iii).
14
Added by the Act of June 19, 1997, P.L. 225, 24 P.S. § 17-1717-A.
13
In its Application Guide, the Department requires, without explicit
statutory authority, an applicant to obtain the necessary school districts’ approval
before submitting an application to the Department. In doing so, the Department
extended a process, the timeframe for which the General Assembly explicitly
dictated. Because an applicant that might otherwise submit applications to the
school districts and the Department on the same day, in accordance with the
Application Guide, must wait up to 45 days for the school districts’ decisions before
filing the application with the Department, the application process time period
envisioned by the General Assembly is effectively doubled. Such an interpretation
of the CSL is clearly inconsistent with the aforementioned legislative intent. See
Harmon. Because CAB’s interpretation is inconsistent with the CSL, it does not
merit Skidmore deference.15 Accordingly, CAB erred when it concluded that
Propel’s failure to comply with the Department’s requirement that Propel first
submit the MCSO Application to the school districts and, only upon approval by the
school districts, to the Department, was a proper basis for denying Propel’s
Application.
Propel next argues that CAB erred when it denied Propel’s appeal from
the Hearing Officer’s decision granting the Motion to Supplement by interpreting
the CSL to allow CAB to consider SPP data that became available after Propel filed
the Application.16
The Pennsylvania Supreme Court has held that “CAB must apply a de
novo standard of review when entertaining appeals from a [school d]istrict [b]oard’s
15
Propel also contends that CAB erred when it relied on the Application Guide because
the Application Guide is an improper regulation. Based on the Court’s ruling that the Department’s
interpretive rule with respect to sequential review is violative of legislative intent, the
Department’s interpretation is to be disregarded.
16
According to Propel, its lack of eligibility under the MCSO Provisions pertaining to SPP
scores resulted from CAB’s lengthy delay in rendering a decision on its Application.
14
denial of a charter school application.” W. Chester Area Sch. Dist. v. Collegium
Charter Sch., 812 A.2d 1172, 1180 (Pa. 2002).17 Pursuant to Section 1729.1-
A(f)(2)(i) of the CSL, CAB’s review of the decision below may allow
supplementation of the record, and, pursuant to Section 1729.1-A(f)(2)(iv) of the
CSL, CAB must make an independent determination of whether the charter
school has satisfied the requirements of Section 1729.1-A(b) of the CSL
(disqualifying MCSO applicants that within either of the most recent two school
years have failed to meet student performance requirements, failed to maintain fiscal
management standards, or failed to achieve SPP scores in the top 25 percentile)
and Section 1729.1-A(c) of the CSL.
17
West Chester involved Section 1717-A of the CSL, rather than Section 1729.1-A of the
CSL. The West Chester Court explained:
Section []1717-A(i)(6) [of the CSL, 24 P.S. § 17-1717-A(i)(6)]
grants [] CAB discretion to permit the parties to supplement the
record with previously unavailable information. Such directive is
inconsistent with traditional appellate review. Moreover, [Section
1717-A(i)(10) of] the CSL specifically articulates that “all decisions
of the appeal board shall be subject to appellate review by the
Commonwealth Court.” 24 P.S. § 17-1717-A(i)(10) (emphasis
added). Had the Legislature intended [] CAB to also utilize an
appellate standard of review, it could have similarly provided.
Finally, we note that the composition of [] CAB supports a finding
of de novo review. [] CAB is not comprised of attorneys capable of
conducting a legal examination of the evidence, but rather consists
of persons who have a perspective on public education. See [Section
1721-A(a) of the CSL,] 24 P.S. § 17-1721-A(a) (stating composition
of CAB as: a parent, a school board member, a certified teacher, a
faculty or administrative employee, a business person, and a
member of [the] State Board of Education).
W. Chester, 812 A.2d at 1180. Similarly, Section 1729.1-A of the CSL grants CAB discretion to
supplement the record and provides that all CAB decisions shall be subject to appellate review by
this Court. Thus, this Court concludes that Section 1729.1-A of the CSL similarly contemplates
that CAB will conduct a de novo review.
15
In approving the Hearing Officer’s record supplementation with the
2017-18 school year SPP data, CAB noted that Section 1729.1-A(f)(2)(i) of the CSL
authorized it to supplement the record and further reasoned:
It is without question that the information related to SPP
scores issued by the Department for the 2017-18 school
year was previously unavailable and could not have been
obtained or submitted for inclusion in the record prior to
the Department’s decision to deny Propel’s [] Application.
As such, the evidence related to the Charter Schools
Meeting [MCSO] Eligibility Criteria - 24 P.S. § 17-
1729.1-A, containing 2016-17 and 2017-18 data,
appended to the District’s Motion to Supplement, clearly
constitutes admissible supplementary evidence. Thus, the
Hearing Officer properly granted the District’s Motion to
Supplement, and the updated MCSO Eligibility List,
containing the 2017-18 school year SPP scores, shall be
admitted into the record.
CAB Dec. at 17, R.R. at 5834a. CAB concluded that the most recently available
SPP data was relevant information given its duty to ensure compliance with the
CSL’s requirement that at least one charter school had met the 25th quartile SPP
threshold for the two most recent school years for which scores were available. See
CAB Dec. at 18, R.R. at 5435a; see also 24 P.S. § 17-1729.1-A(b).
CAB rejected Propel’s argument that it should only consider the SPP
scores that were available at the time of its Application,18 explaining:
Contrary to Propel’s assertion, Propel-McKeesport’s loss
of qualifying status under [Section] 1729.1-A(b)(2) [of the
CSL] is fatal to its Application under both the plain
language of Section 1729.1-A [of the CSL] and the
legislative intent of the [CSL] which, in relevant part
provides:
18
According to CAB, Propel essentially claimed that “the qualifier []as of the date of the
Application[] must be read into the ‘most recent two (2) school years’” language in Section 1729.1-
A(b)(1) of the CSL. CAB Dec. at 25, R.R. at 5842a (italics added).
16
It is the intent of the General Assembly, in enacting
this article, to provide opportunities for teachers,
parents, pupils and community members to establish
and maintain schools that operate independently
from the existing school district structure as a method
to accomplish all of the following:
(1) Improve pupil learning.
(2) Increase learning opportunities for all pupils.
....
(5) Provide parents and pupils with expanded
choices in the types of educational opportunities
that are available within the public school system.
(6) Hold the schools established under this act
accountable for meeting measurable academic
standards . . . .
[Section 1702-A(1), (2), (5) and (6) of the CSL,] 24 P.S. §
17-1702-A(1), (2), (5) and (6).
In support of its intent to hold charter schools accountable
for meeting measurable academic standards, it appears
that the General Assembly enacted the SPP score criteria
in [Section] []1729.1-A(b)(1) and (2) [of the CSL] as
quality-control measures for schools seeking to
consolidate. If an applicant school could not demonstrate
its success as measured by its ranking, then it would not
be qualified to expand itself through the MCSO process.
To hold that [] CAB may only consider the SPP score
rankings from the two years immediately prior to the
application date would be inconsistent with the legislative
intent to improve learning and learning opportunities, and
to hold charter schools to measured standards. As the
intent expressed in [S]ection []1702-A(1) and (2) [of the
CSL] for increased learning and learning opportunities is
a continuing goal not limited to a single point in time, the
issue of the quality of learning being provided by schools
proposing to consolidate would seem to be always
relevant. Therefore, SPP rankings would also be always
relevant.
17
CAB Dec. at 26-27, R.R. at 5843a-5844a. Notably, the express prohibition on
merging in Section 1729.1-A(b) of the CSL, where, inter alia, the proposed MCSO
fails to include a charter school that meets the 25th percentile SPP requirement is a
separate threshold from the school district’s and the Department’s approval
requirement contained in Section 1729.1-A(a) of the CSL.
Propel cites Souderton Area School District v. Souderton Charter
School Collaborative, 764 A.2d 688 (Pa. Cmwlth. 2000), and Brackbill v. Ron
Brown Charter School, 777 A.2d 131 (Pa. Cmwlth. 2001), to support its contention
that CAB erred when it supplemented the record in this matter with the SPP data
released after Propel filed the Application, because “CAB and [the] Commonwealth
Court have interpreted . . . the [CSL] to provide for eligibility at the time the
application was submitted.” Propel Br. at 21. Both Souderton and Brackbill
involved the loss or the potential loss of a facility location identified in an application
for the initial grant of a charter.
In Souderton, CAB disagreed with a school board’s finding that the
proposed short-term facility location was inappropriate and was a substantial safety
and welfare risk to students. Given that the charter school’s plan was more than two
years out of date, CAB questioned whether the proposed facility was still available
for the charter school’s use. Nonetheless, CAB noted its responsibility to review the
application on the record certified by the school board as submitted, and concluded
that since the application was acceptable at the time it was submitted, it did not
constitute a basis for denial.
On review, this Court explained:
[I]n its opinion, [] CAB simply points out the very real
possibility that, because [the applicant’s] [a]pplication is
more than two years old, the [s]trip [m]all [f]acility that
was to house the charter school may no longer be
available. Despite this realization, [] CAB recognized
18
that, in ruling on [the applicant’s] appeal, [] CAB only
could review the suitability of the [s]trip [m]all [f]acility
presented in the [a]pplication. Having determined that this
[s]trip [m]all [f]acility was available and acceptable at the
time the [a]pplication was submitted, [] CAB could not
deny [the applicant’s] appeal based on the possibility that
this particular facility might not be available currently.
Viewing [] CAB’s order in light of the reasoning set forth
in its opinion, it becomes apparent that, in directing the
[d]istrict [b]oard to sign [the applicant’s] charter school
[a]pplication, [] CAB refers only to the [a]pplication
including the [s]trip [m]all [f]acility. The final sentence
of [] CAB’s order merely reflects [] CAB’s recognition of
a possible problem with the [a]pplication’s listed facility.
Thus, [] CAB directs [the applicant] to inform the
[s]chool [d]istrict and [] CAB in the event that [the
applicant] would need to use a different facility. In this
way, the [s]chool [d]istrict and [] CAB would be aware
that [the applicant] would have to submit a new
application to the [d]istrict [b]oard and afford the
[d]istrict [b]oard an opportunity to consider whether
the facility is appropriate under the CSL.
Souderton, 764 A.2d at 697-98 (footnote omitted; bold emphasis added).
In Brackbill, a school district challenging CAB’s grant of a charter
claimed that CAB erred because the proposed locations listed in the charter
application were no longer available. This Court rejected the school district’s
argument, reasoning:
The [c]harter [s]chool properly listed two facilities in its
application in compliance with the statutory requirement.
The [s]chool [d]istrict, through the delay caused by its
inaction, appears to have caused the [c]harter [s]chool’s
loss of rights in these proposed facilities. It would be
unreasonable to expect an applicant to maintain rights in
the precise vacant property listed in an application for the
period which it has taken for the revised application to
wend its way from the [d]istrict [b]oard to [] CAB to this
[C]ourt. Moreover, by failing to act on the revised
application, the [s]chool [d]istrict abdicated to [] CAB the
authority to review all of the relevant criteria. We believe
19
that [] CAB appropriately weighed this factor in its
determination to grant the charter. Although an applicant
must include a proposed facility in its application, there is
no requirement that the facility be under a contractual
obligation before the charter is granted. On the contrary,
[] Section 1717-A(e)(2) [of the] CSL simply provides
that[]
[a] charter school application submitted under this
article shall be evaluated . . . based on criteria
including, but not limited to, the following:
***
(iii) The extent to which the application considers the
information requested in [S]ection 1719-A [of the
CSL]. . . .
24 P.S. § 17-1717-A(e)(2). [] CAB found that the [c]harter
[s]chool had met the statutory requirements and thus had
appropriately considered the facility necessary for
operation of its school. Therefore, we believe [] CAB
acted within its discretion in granting the charter subject
to the requirement that the [c]harter [s]chool present
information regarding its facility prior to the opening
of the school.
Brackbill, 777 A.2d at 139 (footnote omitted; emphasis added).19
19
Apart from its reliance on Souderton and Brackbill, Propel contends that “[a] second,
but equally important provision of the CSL that provides evidence of the General Assembly’s
legislative intent are the mandatory timelines for action on both charter school applications and
MCSO applications.” Propel Br. at 21. Propel further urges:
As noted by the Commonwealth Court in Independence Charter
School, “the legislature apparently appreciated that timeliness was
an important element in assuring the fairness of the charter school
application and review process.” [Id.] at 803. These provisions
apply equally to the MCSO [P]rovisions as they do to establishing
the charter school . . . .
Propel Br. at 23. According to Propel,
good sense and practicality demand that the relevant time period to
consider the SPP data in the instant appeal is at the time the
Application was filed with the District. Any other possible result
would allow for the charter schools that have filed a consolidation
20
Notably, in both of these cases involving the review of an initial charter
application, this Court affirmed CAB’s decision where that decision conditioned
the charter grant on the applicant providing updated facility information to
determine compliance with the CSL. Thus, although the applications were
approved based on the information submitted, the ultimate charter grant was
conditioned on CSL compliance involving circumstances occurring after the
application submission date. Accordingly, neither Souderton nor Brackbill stand for
the proposition that CAB must ignore changes in circumstances occurring after the
application date which render applicants statutorily ineligible to effect a merger
under the CSL.
Interestingly, in Montour School District v. Propel Charter School-
Montour, 889 A.2d 682 (Pa. Cmwlth. 2006), a case involving one of the same
schools included in Propel’s Application, the Montour School District (MSD) sought
review of CAB’s order reversing MSD’s denial of a charter application for Propel-
Montour. At argument before CAB, Propel-Montour notified MSD and CAB that it
recently learned that its proposed facility was no longer available. Propel-Montour
represented that it was pursuing a lease for another facility, but that such lease would
application to potentially be subject to a rollercoaster of eligibility
determinations based upon updated data while the application sits in
litigation limbo.
Propel Br. at 27 (footnote omitted). This Court disagrees.
When considering an MCSO appeal, CAB is specifically charged with a duty to ensure that
the applicant is not ineligible due to the applicant’s failure to maintain student performance
requirements, lack of accepted standards of fiscal management or audit requirements and that the
applicant has an SPP profile among the top 25th percentile. See 24 P.S. § 17-1729.1-A(f)(2)(iv)
(referencing Section 1729.1-A(b) and (c) of the CSL). Unlike both Souderton and Brackbill, where
the charter school applicants were unable to prevent a private landlord from leasing to another
their intended future location, an applicant’s adherence to the standards in Section 1729.1-A(b) of
the CSL, is within the applicant’s control. It is not unreasonable to expect an MCSO applicant to
maintain the required standards at least until CAB has rendered a decision on its MCSO application
appeal.
21
require zoning changes for charter school use. MSD objected to the submission of
any evidence with respect to the new facility and CAB barred the submission of such
evidence. Nonetheless, CAB reversed MSD’s denial of Propel-Montour’s
application. On appeal to this Court, MSD argued, inter alia, that CAB erred by
ordering MSD to issue a charter without an identified location, and requiring Propel-
Montour to merely inform MSD and CAB of the new location without requiring
submission of the proposed site for MSD’s approval. In response, Propel-Montour
argued that “it was prepared and willing to present evidence of the new proposed
facility at oral argument before CAB, but was not allowed to do so because of
[MSD’s] vigorous objections.” Montour, 889 A.2d at 688.
The Montour Court explained:
We have previously held that CAB has the authority to
conduct a de novo review of a school district’s denial of a
charter application. Here, however, given its authority to
conduct a de novo review, CAB erroneously failed to hear
[Propel-Montour’s] evidence concerning the new
proposed site when it sustained the [school d]istrict’s
objections. Under Souderton, CAB could not then order
the [d]istrict to grant the charter in the absence of any
evidence of a proposed site for the school. Accordingly,
because CAB failed to hear and consider [Propel-
Montour’s] evidence with regard to the new proposed
facility, we must vacate CAB’s order and remand to CAB
for the purpose of hearing this evidence to determine
whether the new proposed site is suitable under the CSL
before CAB can order the charter to be granted.
Montour, 889 A.2d at 690 (italics added).
This Court addressed the propriety of supplementing a record with
recently released SPP scores in Reading School District v. I-Lead Charter School,
206 A.3d 27 (Pa. Cmwlth. 2019), a charter school revocation case where evidence
of the school’s performance was relevant to CAB’s decision. In I-Lead, this
Court considered whether CAB properly reversed a school district’s charter
22
revocation. In conducting its review, CAB granted the school district’s motion to
supplement the record to include significantly lower SPP scores released after the
school district rendered its decision, but did not consider the supplemented SPP
scores when it reversed the school district’s revocation. Section 1729-A(d) of the
CSL governed CAB’s exercise of its independent judgment and provided, in relevant
part:
[CAB] shall have the exclusive review of a decision not to
renew or revoke a charter. [CAB] shall review the record
and shall have the discretion to supplement the record if
the supplemental information was previously unavailable.
[CAB] may consider the charter school plan, annual
reports, student performance and employe and community
support for the charter school in addition to the record.
[CAB] shall give due consideration to the findings of the
local board of directors and specifically articulate its
reasons for agreeing or disagreeing with those findings in
its written decision[.]
24 P.S. § 17-1729-A(d).
In holding that CAB deliberately disregarded the supplemented
evidence, this Court recognized with respect to the similar statutory language in
Section 1729-A of the CSL permitting supplementation of the record,
[b]ased on its clear language, Section 1729-A(d) of the
CSL specifically contemplates that, on appeal, CAB may
consider information that did not inform a school district’s
decision. This statement is consistent with CAB’s de novo
review function, “making an independent determination as
to the merits . . . .” W. Chester, 812 A.2d at 1180 .
I-Lead, 206 A.3d at 36 (footnote omitted). In a footnote, the I-Lead Court
recognized that
prior CAB decisions have relied upon student performance
data occurring after a school district resolved to revoke a
charter. See, e.g., Imani Educ. Circle Charter Sch. [v. Sch.
Dist. of Phila., (Dkt. No. CAB 2014-08, filed May 11,
2016)]; Cmty. Acad. of Phila. Charter Sch. v. Sch. Dist. of
23
Phila., Sch. Reform Comm’n, (Dkt. No. CAB 2013-12,
filed September 8, 2014).
I-Lead, 206 A.3d at 36 n.19.
The statutory language at issue in Section 1729.1-A of the CSL
pertaining to MCSO approval is similar to that in Section 1729-A of the CSL at issue
in I-Lead. Like Section 1729-A(d) of the CSL, Section 1729.1-A(f) of the CSL
(pertaining to MCSO appeals) provides that it is CAB’s duty to “[r]eview the
decision made by either the [D]epartment or school district on the record as certified
. . . [and in its discretion, permit parties to] supplement the record if the supplemental
information was previously unavailable.” 24 P.S. § 17-1729.1-A(f)(2)(i).
Although, unlike Section 1729-A(d) of the CSL, Section 1729.1-A(f)
of the CSL does not explicitly authorize CAB to consider evidence “in addition to
the record[,]” 24 P.S. § 17-1729-A(d), it allows CAB to supplement the record,
which CAB did. See 24 P.S. § 17-1729.1-A(f)(2)(i). Propel argues that this Court
should limit CAB’s ability to supplement the record only to evidence existing at the
time it filed its Application. There is no language in Section 1729.1-A(f)(2)(i) of the
CSL limiting relevant evidence only to evidence available at the time the Application
was filed. It is beyond cavil that “courts ‘have no authority to add or insert language
into a statute’ and should not, through interpretation, add a requirement that the
General Assembly did not include.” Twp. of Wash. v. Twp. of Upper Burrell, 184
A.3d 1083, 1089 (Pa. Cmwlth. 2018) (quoting Summit Sch., Inc. v. Dep’t of Educ.,
108 A.3d 192, 199 (Pa. Cmwlth. 2015)).
Like Section 1729-A(d) of the CSL, Section 1729.1-A(f)(2)(i) of the
CSL, “specifically contemplates that, on appeal, CAB[, through supplementation
of the record with relevant evidence,] may consider information that did not inform
a school district’s [or the Department’s] decision.” I-Lead, 206 A.3d at 36. Section
1729.1-A(f)(2)(iv) of the CSL, imposes a duty on CAB to “[m]ake its decision based
24
on whether the proposed consolidation satisfies the requirements of subsections (b)
[(disqualifying from mergers those charter schools that fail to meet the top 25th
percentile SPP threshold for the two most recent school years for which scores are
available),] and (c) [(governing application submission)].”20 24 P.S. § 17-1729.1-
A(f)(2)(iv). Where, as here, such relevant evidence pertains to CAB’s explicitly
imposed statutory duty to ensure that at least one of the schools in the proposed
MCSO meets the SPP threshold requirements, requiring CAB to ignore evidence
that applicants no longer meet the requirements would impede CAB’s ability to
perform its duties. The approval of a noncompliant applicant’s MCSO application
would undermine “[t]he core purpose of the [CSL which] is to improve students’
education.” New Hope Acad. Charter Sch. v. Sch. Dist. of the City of York, 89 A.3d
731, 739 (Pa. Cmwlth. 2014).
The New Hope Court further explained:
The General Assembly expressly set forth its intention in
enacting the [CSL] to “[i]mprove pupil learning,”
“[i]ncrease learning opportunities for all pupils,” and
“[h]old the schools established under [the CSL]
accountable for meeting measurable academic
standards and provide the school with a method to
establish accountability systems.” [Section 1702-A (1),
(2), (6) of the CSL,] 24 P.S. § 17-1702-A(1), (2), (6)[.]
20
Propel strongly asserts that its inability to meet the SPP threshold is a direct consequence
of CAB’s delay in rendering a valid vote on its Application. It insists that, because it satisfied the
SPP threshold at the time of its application and during the period that CAB was statutorily required
to issue a decision on its appeal, CAB’s delay in rendering a decision (during which time new SPP
scores were released) caused Propel’s SPP threshold deficiency. Notably, Propel did not challenge
the validity of CAB’s decision based on CAB’s delay. This Court acknowledges that CAB’s
inability to render a decision on the Application lengthened the review process beyond that
permitted in the MCSO Provisions. Notwithstanding, of the eight charter schools included in the
Application, only Propel-McKeesport satisfied the SPP threshold at the time of filing, and even
that school subsequently fell below the SPP threshold. Thus, at the time that CAB rendered its
decision on the Application, not a single school out of the eight satisfied the threshold requirement.
Despite the delay which exceeded CAB’s statutorily-mandated review window, neither CAB, nor
this Court may ignore other mandates in the MCSO Provisions.
25
New Hope, 89 A.3d at 739 (emphasis added; citation omitted). Therefore,
considering an applicant’s most recent SPP scores in reviewing a charter school
merger decision furthers these expressed intentions by permitting CAB to more
accurately consider the potential merger’s impact on the affected students.
Accordingly, this Court concludes that CAB properly denied Propel’s appeal from
the Hearing Officer’s decision granting the Motion to Supplement. Further, because
Propel failed to meet Section 1729.1-A(b)(1) of the CSL’s threshold requirements
pertaining to SPP data, it did not qualify for MCSO approval.21
For the foregoing reasons, CAB’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
21
CAB correctly concluded:
For purposes of the Application, the “most recent two (2) school
years” were 2016-17 and 2017-18; and, given as much, Propel does
not meet the application requirements for an MCSO under [Section]
[]1729.1-A(b)(1) [of the CSL] because its [A]pplication does not
reference a school within the [top 25th percentile] of Pennsylvania
[c]harter [s]chools for the two most recent school years for which
scores are available, as is evidenced by the updated MCSO
Eligibility List.
....
Upon giving due consideration to the findings of the School Board,
the evidentiary record, and the requirements of CSL, [] CAB finds
that the District’s denial of the [] Application in this case was proper.
CAB Dec. at 28, R.R. at 5845a.
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Propel Charter Schools, :
Petitioner :
:
v. :
:
School District of Pittsburgh :
(State Charter School Appeal Board), : No. 1210 C.D. 2020
Respondent :
ORDER
AND NOW, this 19th day of November, 2021, the State Charter School
Appeal Board’s December 22, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge