Vision Academy Charter School of Excellence v. Southeast Delco School District (Charter School Appeal Board) ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vision Academy Charter School :
of Excellence, :
Petitioner :
:
v. :
:
Southeast Delco School District :
(Charter School Appeal Board), : No. 46 C.D. 2022
Respondent : Submitted: October 28, 2022
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: March 30, 2023
Vision Academy Charter School of Excellence (Charter School)
petitions this Court for review of the Charter School Appeal Board’s (CAB)
December 17, 2021 order affirming the Southeast Delco School District’s (District)
decision that denied its charter. The Charter School presents fives issues for this
Court’s review: (1) whether CAB erred by determining that the Charter School’s
revised charter application (Revised Application) did not satisfy the requirements of
Section 1719-A of the Charter School Law (CSL);1 (2) whether CAB erred by
determining that the Revised Application did not demonstrate its capability, in terms
of support and planning, to provide a comprehensive learning experience to students
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. § 17-1719-A (relating to application contents).
pursuant to Section 1717-A(e)(2)(ii) of the CSL;2 (3) whether CAB erred by
determining that the Revised Application did not conform to the legislative intent
outlined in Section 1702-A of the CSL;3 (4) whether CAB erred by determining that
the Revised Application failed to demonstrate that the Charter School may serve as
a model for other public schools pursuant to Section 1717-A(e)(2)(iv) of the CSL;4
and (5) whether CAB is estopped from denying the Revised Application. After
review, this Court reverses and remands.
Facts
On November 14, 2019, the Charter School filed an application with
the District (Original Application) to open and operate a charter school pursuant to
the CSL. On December 18, 2019, the District’s Board of Directors (Board) held a
public hearing on the Charter School’s Original Application. The Board heard
testimony from the Charter School and the District’s administration. Pursuant to
Section 1717-A(e)(2)(i) of the CSL, the Board also took public comments during the
hearing regarding the Charter School’s Original Application. Five people spoke
during the public comment period. On February 27, 2020, the District voted to deny
the Original Application. On March 6, 2020, the District issued an Opinion
Supporting Denial.
On March 12, 2020, the Charter School incorporated as a domestic
nonprofit nonstock corporation. On April 6, 2020, the Charter School filed its
Revised Application with the District. The Revised Application added more
curriculum, but was otherwise the same as its Original Application. No public
hearing was held regarding the Charter School’s Revised Application and, on May
2
Added by Section 1 of the Act of June 19, 1997, P.L. 225, 24 P.S. § 17-1717-A (relating
to charter school establishment).
3
Added by Section 1 of the Act of June 19, 1997, P.L. 225, 24 P.S. § 17-1702-A.
4
Added by Section 1 of the Act of June 19, 1997, P.L. 225, 24 P.S. § 17-1717-A(e)(2)(iv).
2
28, 2020, the District voted to deny the Charter School’s Revised Application. In
denying the Revised Application, the District issued written rulings setting forth its
reasoning for the denial. On July 23, 2020, the Charter School filed an Emergency
Petition to Certify Petition for Appeal (Petition) with the Delaware County Common
Pleas Court (Common Pleas). The Charter School obtained the signatures of 1,425
qualified District residents over the age of 18, which exceeded the number of
signatures required to qualify a charter school to pursue an appeal from a charter
denial to CAB. On August 27, 2020, Common Pleas held a hearing on the Petition,
which the District did not oppose. Also on August 27, 2020, Common Pleas certified
the Petition and authorized the Charter School’s appeal to CAB. On December 17,
2021, CAB affirmed the District’s denial of the Charter School’s Revised
Application.5 The Charter School appealed to this Court.6
Discussion
Section 1719-A(1), (8), (14), and (15) of the CSL
The Charter School first argues that CAB erred by determining that the
Revised Application did not satisfy the requirements of Section 1719-A(1)
(applicant identification); (8) (community group involvement); (14) (extracurricular
activities); and (15) (criminal histories) of the CSL.
With respect to the Charter School’s identification, CAB explained:
5
CAB’s order to affirm the District’s denial of the Charter School’s charter was based on
CAB’s October 17, 2021 vote, wherein three CAB members voted to deny the appeal and two
CAB members voted to grant the appeal.
6
“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.” Propel Charter Schs. v. Sch. Dist. of Pittsburgh, 271 A.3d 1, 6 n.9 (Pa.
Cmwlth. 2021) (quoting New Hope Acad. Charter Sch. v. Sch. Dist. of the City of York, 89 A.3d
731, 736 (Pa. Cmwlth. 2014)).
3
The applying entity did not exist at the time of the
December 18, 2019 hearing. It was not created until
March 12, 2020, according to the Pennsylvania Bureau of
Corporations and Charitable Organizations
[(Pennsylvania Corporation Bureau)]. This was after the
[Original A]pplication[,] and only [after] the District
identified the issue in the initial denial. Findings of Fact
Nos. 1, 7, and 8. In the Revised Application, [the Charter
School] identified the applicant as Vision Academy
Charter School of Excellence. This contradiction calls
into question who is in a position of control of the
proposed Charter School. Charter schools are public
schools and from that there is a strong affirmative duty of
proactive candor owing to the public. That was not
provided. The District was right to question this factor and
[the Charter School] offered no adequate explanation.
[The Charter School] failed on this factor.
CAB Dec. 17, 2021 Op. at 13.
The Charter School contends that the CSL does not prohibit, and in fact,
expressly authorizes, an unincorporated nonprofit association to establish a charter
school and that, at the time of the Original Application and public hearing, the
Charter School existed as a legal entity recognized under Pennsylvania law in clear
contrast to CAB’s findings. Specifically, the Charter School asserts that it was an
unincorporated nonprofit association when it filed the Original Application and
when the public hearing was held, and cites Section 9112 of the Pennsylvania
Uniform Unincorporated Nonprofit Association Law (Law)7 to support its position.
The Charter School declares that because an unincorporated nonprofit association is
recognized as a legal entity in Pennsylvania that may own and dispose of property,8
the Charter School existed when it filed the Original Application.
7
15 Pa.C.S. § 9112 (An unincorporated nonprofit association consists of two or more
individuals who are joined together for a limited nonprofit purpose. Such an agreement to join
together may be “oral, in record form or implied from conduct for one or more common, nonprofit
purposes.”).
8
See Section 9114(a) of the Law, 15 Pa.C.S. § 9114(a) (providing that a “nonprofit
association is a legal entity distinct from its members and managers”).
4
The District rejoins that, according to the Pennsylvania Corporation
Bureau, the Charter School was created on March 12, 2020, and, thus, did not exist
at the time of the December 18, 2019 hearing. The District maintains that,
notwithstanding its concerns as to the Charter School’s identity as expressed at the
Board hearing, and in the District’s denial of the Original Application, the Charter
School offered no explanation, until the instant appeal, now claiming that the initial
applicant was an unincorporated nonprofit association. The District asserts that
because the Charter School did not raise this claim before the District or CAB, it
cannot now raise it in this appeal, and cites School District of Pittsburgh v. Provident
Charter School for Children with Dyslexia, 134 A.3d 128 (Pa. Cmwlth. 2016), to
support its position.
The Provident Charter School Court held:
The [s]chool [d]istrict contends that [CAB’s] adjudication
did not account for the fact that “there is even less choice
for students who would attend Provident [Charter School]
than what students elsewhere in the [d]istrict enjoy.”
School District Brief at 37. There is no record evidence to
substantiate this claim. The [s]chool [d]istrict did not
supplement the record before [CAB] or provide any
evidence about its programs. The [s]chool [d]istrict
cannot now complain that [CAB] did not consider
evidence not presented to it.
Id. at 143. Similarly, here, as evidenced by the record, the Charter School contends
for the first time that CAB erred by concluding that the Charter School did not exist
at the time of the Original Application because it was a legally recognized
unincorporated nonprofit association that incorporated prior to submitting its
Revised Application.
However, Section 1719-A of the CSL specifies: “An application to
establish a charter school shall include all of the following information: (1) The
identification of the charter applicant.” 24 P.S. § 17-1719-A (emphasis added).
5
Thus, whether the Charter School, i.e., Vision Academy Charter School of
Excellence, was an unincorporated nonprofit association or incorporated entity is of
no moment. The Original Application, the Revised Application, and the hearing
testimony reflected that the applicant was Vision Academy Charter School of
Excellence. Any concerns that the Charter School could not be located in the
Pennsylvania Corporation Bureau were alleviated by the Charter School’s March 12,
2020 incorporation. Given the fact that the same named entity filed the Original
Application and the Revised Application, the applicant’s identity was clear.
Accordingly, the Charter School satisfied the applicant identification requirement in
Section 1719-A(1) of the CSL.
Relative to the CSL’s community group involvement requirement,
CAB described:
Section 1719-A(8) of the CSL requires an application to
include information on involvement of community
groups. The District points out that the [Original]
Application and Revised Application are silent on this
issue. [The Charter School] responds by saying, [“][the
Charter School] did not have any community groups
involved in the planning process; therefore, none are
identified in the [Revised] Application. There is no
requirement under the [CSL] which would compel an
applicant to identify community partnerships that do not
yet exist.[”] [Charter Sch. Br.] at [] 9.
The interpretation offered by [the Charter School]
acknowledges that it did not have specific, committed
community partnerships as of submission and
consideration of the [Original and Revised] Applications,
however, it also acknowledges that it did not name certain
organizations that it might approach upon grant of a
charter. The CSL does require community groups to be
“involved in the charter school planning process,” but [the
Charter School] seems to suggest that the language is not
time-sensitive and community engagement must occur at
some point in the planning process. However, without
disclosure or identification in the application of specific,
6
committed community partners, or potential community
partners, [the Charter School’s] application is not
compliant with the requirements, and the intent, of the
CSL[,] 24 P.S. § 17-1719-A(8)[,] because such an
interpretation would vitiate the pla[i]n language of the
CSL and cannot be countenanced. CAB disagrees with an
interpretation that CSL requirements cannot be met unless
a charter is first obtained. [The Charter School] failed on
this factor.
CAB Dec. 17, 2021 Op. at 14.
The Charter School argues that the CSL’s plain language does not
support CAB’s interpretation that specific committed or potential community
partners must be identified in the application. The Charter School further claims
that the Revised Application included numerous references to potential community
partners and involvement, specifically, the “tremendous community support and the
collaboration of local university representatives” in connection with its proposed
extended day program. Reproduced Record (R.R.) at 113a. The Charter School
adds that Charter School founding member Dr. Anthony Mooring discussed the
Charter School’s community partnerships at the December 18, 2019 public hearing
on the Original Application, stating in connection with the extended day program
that the Charter School will work in community collaboration and will want to “work
with local universities.” R.R. at 31a. The Charter School further emphasizes that
Vision Academy Charter School in William Penn School District’s (Vision William
Penn) parent teacher association (PTA) president Nicole Chanel explained at the
public hearing that the PTA engages the school and community partners in
fundraisers and other similar activities and programs, which is a model that the
Charter School intends to follow.
The Charter School also stresses that the Revised Application provides
that its “founders expect to have an active relationship with the community locally
and more broadly in the region, reaching out for volunteers from local universities
7
and businesses for support in the Extended Day Program.” R.R. at 150a-151a. To
this end, the Charter School’s “Board has established a Community Advisory
Committee that is the official connection between the school and its broader
community.” R.R. at 151a. In the Charter School’s early planning stages its
founding members “reached out to a number of community organizations and
community leaders . . . and intends on working to create a more defined collaborative
relationship with [Vision William Penn] . . . as well as other Core Knowledge[9]
schools in the Mid-Atlantic region.” R.R. at 164a.
The Charter School proclaims that in Section III.1.D of the Revised
Application, it states that the Charter School will involve community groups in the
planning process by ensuring that “the community plays an important role in the
development and implementation of this [charter] school [and] the Board has
formally identified in its by-laws that there will be a Community Advisory
Committee that will provide support to the [B]oard.” R.R. at 164a; see also R.R. at
4192a. With respect to professional development opportunities, the Charter School
declares that the Revised Application provides that the Charter School “will employ
its university and community business connections in organizing workshops that will
enrich staff experience.” R.R. at 182a.
9
Anthony Mooring, one of the Charter School’s founders, explained Core Knowledge as
follows:
A challenging curriculum, we want to use a research[-]based Core
Knowledge curriculum, curriculum. Now, we believe this will
improve student achievement, mastery of information, and it builds
on knowledge learned so the more they learn, the more they will
continue to learn through this Core Knowledge curriculum.
And this curriculum is not new, it’s been proven and used before,
uh, one of the places it was used is Newark Charter School. Newark
Charter School curriculum is a melding, it met the Delaware
standards.
R.R. at 25a.
8
Section 1719-A of the CSL mandates: “An application to establish a
charter school shall include all of the following information: . . . (8) Information on
the manner in which community groups will be involved in the charter school
planning process.” 24 P.S. § 17-1719-A (emphasis added). “[T]he applicant need
only set forth the information mandated by the [CSL], i.e., information on how
community groups will be involved in the planning process. [The Charter School’s]
[R]evised [A]pplication did so.” Provident Charter Sch., 134 A.3d at 138 (bold
emphasis added; italic emphasis omitted). Accordingly, the Charter School met the
community group involvement requirement in Section 1719-A(8) of the CSL.
Concerning extracurricular activities, CAB explicated:
Section 1719-A(14) [of the CSL] requires an application
to include information on extracurriculars, and, in
particular, whether any agreements have been entered into
or plans developed with the local school district regarding
participation of the charter school students in
extracurricular activities with the school district. The
District points out that the [Original] Application and
Revised Application are silent on this issue. On pages 12-
13 in its brief [the Charter School] makes an argument,
similar to its argument about community group
engagement, about extracurriculars. Essentially, [the
Charter School] is of the position that at the time of
submission of the Original Application and Revised
Application it was too early for that information to exist.
Again, the pla[i]n wording of the statute requires
something on this factor; thus, [the Charter School] should
have put something forward. [The Charter School] failed
on this factor.
CAB Dec. 17, 2021 Op. at 14-15.
The Charter School argues that the Revised Application expressly
provides that “[t]here have not been extra[]curricular activities jointly planned with
the [] [D]istrict yet. However, [the Charter School] will seek [every] opportunity to
cooperate with [the] . . . District in regard to extracurricular activities.” R.R. at 155a.
9
Section 1719-A of the CSL mandates, in relevant part: “An application
to establish a charter school shall include all of the following information: . . . (14)
Whether any agreements have been entered into or plans developed with the
local school district regarding participation of the charter school students in
extracurricular activities within the school district.” 24 P.S. § 17-1719-A (emphasis
added). Contrary to CAB’s conclusion, the Charter School was not silent on this
issue. Indeed, the Charter School was required to state whether it had entered into
agreements or had developed plans regarding extracurricular activities, and the
Charter School declared that it had not, as of that time. The Charter School provided
the prescribed information. Accordingly, the Charter School satisfied the
extracurricular activities requirement in Section 1719-A(14) of the CSL.
Regarding criminal histories, CAB stated:
Section 1719-A(15) [of the CSL] requires an application
to include information on criminal background checks.
The District points out that the [Original] Application and
Revised Application are silent on this issue. Again, [the
Charter School] says [sic] that it was too early for that
information to exist. Again, the plain wording of the
statute requires something on this factor; thus, [the Charter
School] should have put something forward. [The Charter
School] failed on this factor.
CAB Dec. 17, 2021 Op. at 15.
The Charter School argues that the Revised Application contained
Appendix J, the Charter School’s Personnel Handbook (Handbook), which specifies
the requirements to be completed before employment commences, including, in
relevant part, “Employee Background Check,” which states “[a]ll employees must
comply with state requirements such as, but not limited to, fingerprinting, . . . Child
Abuse Index, and Criminal Record Statement.” R.R. at 4217a. In addition, the
Charter School states that although the Revised Application did not set forth the
10
Charter School faculty and staff names and clearances, it identified the job
qualifications for the various Charter School faculty and staff positions. See R.R. at
184a-188a.
Section 1719-A of the CSL mandates: “An application to establish a
charter school shall include all of the following information: . . . (15) A report of
criminal history record, pursuant to [S]ection 111 [of the Public School Code of
1949],[10] for all individuals who shall have direct contact with students.” 24
P.S. § 17-1719-A (emphasis added).
Because a charter school has not yet been established
when an applicant seeks a charter, it is unreasonable and
unrealistic to expect the charter application to contain the
specific names and clearances for all proposed faculty and
staff positions. . . . [T]he approach taken by [the Charter
School] in its application was appropriate and compliant
with the [CSL]. Therefore, [the Charter School’s] failure
to provide specific names and clearances for the [Charter
S]chool’s faculty and staff was not a proper basis for
[CAB’s] denial of its [Revised A]pplication.
Cent. Dauphin Sch. Dist. v. Foundling Coal. of the Infinity Charter Sch., 847 A.2d
195, 204 (Pa. Cmwlth. 2004) (quoting CAB Dec. at 18 (citations omitted)).11
Accordingly, the Charter School has satisfied the criminal histories requirement in
Section 1719-A(15) of the CSL.
Section 1717-A(e)(2)(ii) of the CSL
The Charter School next argues that CAB erred by determining that the
Revised Application did not demonstrate its capability, in terms of support and
10
Act of March 10, 1949, P.L. 30, as amended, added by Section 1 of the Act of July 1,
1985, P.L. 129, 24 PS. § 1-111 (“Criminal history of employes and prospective employes;
conviction of [employes of] certain offenses.”).
11
The Infinity Charter School Court “agree[d] with [CAB] that [the charter school] did
everything that could reasonably be done to include this information in its application.” Infinity
Charter Sch., 847 A.2d at 204.
11
planning, to provide a comprehensive learning experience to students, including but
not limited to, through its financial plan, its proposed facility, and its curriculum,
pursuant to Section 1717-A(e)(2)(ii) of the CSL, as such conclusion is not supported
by substantial evidence.
Section 1717-A(e)(2)(ii) of the CSL mandates that the Charter School
establish: “The capability of the charter school applicant, in terms of support and
planning, to provide comprehensive learning experiences to students pursuant to the
adopted charter.” 24 P.S. § 17-1717-A(e)(2)(ii).
Relative to the Charter School’s financial plan, CAB determined:
Review of the budgetary information submitted in the
Original Application, and unchanged in the Revised
Application, supports the District[,] as the information is
not adequate to support a conclusion of a comprehensive
learning experience. The [D]istrict rightly complains
about a lack of information on startup/repayment costs, the
source of legal costs, special education training, oversight
and internal controls, overly optimistic salary
assumptions, thin margin, and no reserve.
CAB Dec. 17, 2021 Op. at 17.
However, “the [CSL] does not require such specifics in the budget as
long as the school board or[,] upon appeal[,] [CAB] can determine that the applicant
is capable of providing a comprehensive learning experience for students.”
McKeesport Area Sch. Dist. v. Propel Charter Sch. McKeesport, 888 A.2d 912, 918
(Pa. Cmwlth. 2005) (quoting Infinity Charter Sch., 847 A.2d at 202).
Here, the record evidence reveals that the Charter School hired Charter
Choices to assist with its financial planning. Joseph Martin12 testified that Charter
Choices has “provide[d] financial management and back office services to schools
around Pennsylvania[ . . .] over the past [15] years[.] [It has] supported over [50]
12
Joseph Martin works with Charter Choices. See R.R. at 34a.
12
schools assisting them with back office support, and [it] provided [] the financial
component support for th[e] [Original A]pplication.”13 R.R. at 35a. The financial
budget included in the Revised Application sets forth, inter alia, projected revenue
sources, including estimated state and federal aid, federal funds for child nutrition,
and revenue from regular and special education, see R.R. at 199a, as well as
projected operational expenses, including average teacher salaries, health and dental
insurance, property and general liability insurance, and similar expenses, see R.R. at
4205a, and contracted services, including business, audit, legal, professional
development, payroll, special education, and food services. See R.R. at 4207a.
There are also budgeted line items for transportation and similar services, books and
equipment, and site costs, see R.R. at 4206a, and for personnel, including
administration, instruction, aides, and similar positions. See R.R. at 4206a.
In addition, the Revised Application provides for working capital and
specifically sets forth that “the Business Manager’s personnel shall provide
assistance to the [Charter] School to seek a line of credit facility [sic] with a financial
institution to be utilized to fund seasonal or other cash flow deficiencies” thus,
squarely addressing and eliminating the District’s and CAB’s concerns regarding
potential budget deficits. R.R. at 173a. Accordingly, this Court holds that
substantial evidence does not support CAB’s determination that the Revised
Application failed to demonstrate the Charter School’s capability, in terms of
support and planning, to provide a comprehensive learning experience to students
through its financial plan.
With respect to the Charter School’s proposed facility, CAB concluded:
[The Charter School] is of the position that the District is
attempting to demand more information than the CSL
13
The financial component in the Revised Application is unchanged. The public hearing
was held before the Revised Application was submitted.
13
requires in connection with the proposed facility. As such,
[the Charter School] does not further elaborate on this
factor as part of the application process.
These arguments are akin to those put forth regarding
community group engagement, extracurriculars, and
background checks . . . i.e., there is no need to produce
such information now. This, again, calls into question the
application process and advances an interpretation that
undermines efforts to have information provided by the
applicant as part of the [application] process. Further,
even if information is provided, (or that the District
requires more information than the CSL requires)[,] the
District openly and rightfully questions if the retail space
at the facility could ever appropriately constitute
educational space necessary for a school.
CAB Dec. 17, 2021 Op. at 18.
This Court has explained:
The CSL requires an applicant to provide “[a] description
of and address of the physical facility in which the charter
school will be located and the ownership thereof and any
lease agreements.” Section 1719-A(11) of the CSL, 24
P.S. § 17-1719-A(11). Further, under Section 1722-A(a)
of the [CSL],[14] a charter school may be located on “space
provided on a privately owned site, in a public building or
in any other suitable location.” 24 P.S. § 17-1722-A(a).
A charter school facility must comply only with the public
school regulations that concern health or safety of
students. [See] Section 1722-A(b) of the CSL, 24 P.S. §
17-1722-A(b).
Carbondale Area Sch. Dist. v. Fell Charter Sch., 829 A.2d 400, 408 (Pa. Cmwlth.
2003).
Here, in its Revised Application, the Charter School provided the
Charter School’s intended location, i.e., description and address, see R.R. at 173a,
the identity of the building’s ownership, and the Letter of Intent for Lease. See R.R.
at 1415a. The Revised Application further included:
14
Added by Section 1 of the Act of June 19, 1997, P.L. 225.
14
The building will fully comply with all [Americans With
Disabilities Act of 1990 (]ADA[)15] and state and federal
safety regulations.
The [Charter S]chool is fully committed to meeting all
building code, life safety and accessibility requirements[,]
and has taken the necessary preliminary steps to gain an
idea of the scope and cost of the work that will be
necessary to bring the building up to code and to ensure
the safety of all of the students. The [Charter] School will
take any additional measures above and beyond those
required by code as requested to ensure the safety and
welfare of all building occupants. [The Charter] School
and site owners will execute a lease with options for
renewal. The site owners will provide all of the finances
and will do any fit-out required during the term of the
lease. This will be repaid by the [Charter] School on a
monthly basis during the first 5-year period. This
projected amount has been included in the attached [5]-
year proforma budget.
R.R. at 173a-174a.
[This Court] [dis]agree[s] with [] CAB that [the Charter
School] [failed to] compl[y] with the requirements of the
CSL. Although the additional information would be
helpful in making a determination, it is not statutorily
required. As we stated in Brackbill [v. Ron Brown Charter
School, 777 A.2d 131 (Pa. Cmwlth. 2001)], “[a]lthough 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.” Id. at 139.
Carbondale Area Sch. Dist., 829 A.2d at 408. Accordingly, this Court holds that
substantial evidence does not support CAB’s determination that the Revised
Application failed to demonstrate the Charter School’s capability, in terms of
support and planning, to provide a comprehensive learning experience to students
through its proposed facility.
15
42 U.S.C. §§ 12101-12213.
15
Concerning the Charter School’s curriculum, CAB stated:
Although a charter school application is not required to
“completely describe the content of the curriculum,” it
must be adequately described. Appeal of Denial of
Charter for Career Connections Charter Middle Sch[.],
(CAB No. 2006-03) [(]citing In re: Pocono Mountain
Mathematics [&] Tech[.] Charter Sch[.], (CAB No. 2004-
5)[)]. It seems that the District was reasonable in rejecting
the [Original and Revised] Applications.
CAB Dec. 17, 2021 Op. at 20.
In its cover letter accompanying the Revised Application, the Charter
School outlined the District’s concerns regarding its curriculum, including, inter
alia: the Spanish curriculum is unnecessary because it is not the most prominent
language in the District; contracting for disabled student services is insufficient; the
Charter School did not adequately discuss positive behavior support, discipline of
special education students, least restrictive environment, state and local assessment,
restraint, and seclusion; and the curriculum and textbooks do not align with current
Pennsylvania core standards. See R.R. at 99a.
The Charter School responded:
The Revised Application identifies a robust and thorough
recitation of the curriculum’s alignment with the
[Pennsylvania (]PA[)] [Safety and Security ] Curriculum
Framework, PA Core Standards and PA Academic
Standards. Indeed, the [Original] Application was also
clear that the curriculum is aligned to current state
standards. It provides details and examples of the
coursework that will be provided to its students and
thoroughly identifies the offerings for these areas of the
curriculum.
With respect to the [] Board’s findings related to [the
Charter School’s] Spanish curriculum, [the Charter
School] does not claim that Spanish is the most spoken
foreign language in the [D]istrict. Rather, [it] [is]
proposing to teach a world language, starting in
16
kindergarten, that meets the state requirements for
teaching world languages. The [Original] Application
clearly identifies that its world languages curriculum will
align with the American Council on the Teaching of
Foreign Languages [] standards and World-Readiness
Standards for Learning Languages and satisfy the
requirements provided under [PA] law for the teaching of
world languages.
R.R. at 99a-100a.
The Charter School expounded:
With regard to the [] Board’s concerns with [English
Language Learners (]ELL[)] and the statistics provided,
the [] Board does not provide us with any evidence that
they [sic] estimated large concentration of 3% of District
[s]tudents being an [ELL] is actually a smaller percentage.
The information contained in [the Original] Application is
public information obtained from Future Ready PA[16] and
is reliable. A 3% ELL population, as in the District, is a
considerably large percentage.
....
With regard to the [] Board’s concerns regarding special
education services, the Revised Application will [sic]
include all provisions that are consistent with [PA] law,
federal law and regulations, including revising and adding
provisions to identify the plan for [sic] to include students
receiving special education services in the regular
education program, where appropriate, and consistent with
[PA] law. Our policies regarding Positive Behavior
Support, discipline of special education students, the least
restrictive environment, state and local assessments and
restraints and seclusion are fully addressed in the Revised
Application. Curriculum mapping has been adjusted in the
Revised Application to indicate full alignment with the
current [PA] standards.
Further, our curriculum for English learners with
disabilities, provided in the [Original] Application, shows
16
“The Future Ready PA Index [(Index)] is a collection of school progress measures related
to school and student success. The Index includes a range of assessment, on-track, and readiness
indicators, to more accurately report student learning, growth, and success in the classroom and
beyond.” https://www.futurereadypa.org (last visited Mar. 29, 2023).
17
that all English learners with disabilities are eligible for
special education services which will comply with all state
and federal laws and regulations. The [Original]
Application also demonstrates that [the Charter School]
will comply with the [Individuals with Disabilities
Education Act],[17] [the National School of Public
Administration and Local Government (]ESDDA[),18]
Section 504 [of the Rehabilitation Act of 1973],[19] [the]
ADA, [the Family Educational Rights and Privacy Act],[20]
the G[]askin Settlement [A]greement[21] and [title 22 of ]
the Pennsylvania Code [(Education)]. [The Charter
School] has demonstrated that it is committed to providing
equal opportunity in formal education and extracurricular
activities to students with disabilities.
R.R. at 100a-101a.
Indeed, in its Revised Application, the Charter School included
Appendix B - Aligned Curriculum, which detailed curriculum frameworks aligned
to PA Core Standards and Pacing Plans, PA ELL Standards, and PA academic
standards. See R.R. at 482a-4123a. Accordingly, this Court holds that substantial
evidence does not support CAB’s determination that the Revised Application failed
to demonstrate the Charter School’s capability, in terms of support and planning, to
provide a comprehensive learning experience to students through its curriculum.
In sum, the record evidence clearly reveals that the Charter School
demonstrated its capability, in terms of support and planning, to provide a
comprehensive learning experience to students through, inter alia, its financial plan,
17
20 U.S.C. §§ 1401-1487.
18
The ESDDA “is the educational unit of the National Center of Public Administration
and Local Government with the mission of training a body of specialized officials of the Public
Administration with comprehensive professional training.” www.ekdd.gr/en/the-school/esdda-
profile/ (last visited Mar. 29, 2023).
19
29 U.S.C. § 794 (relating to nondiscrimination under federal grants and programs).
20
20 U.S.C. § 1232g.
21
“The Gaskin Settlement Agreement is a formal resolution between the Pennsylvania
Department of Education (PDE) and a group of families and advocacy organizations who had filed
a class-action lawsuit against PDE on behalf of a group of children with disabilities in 1994.”
www.portageareasd.org/gaskinsagreement (last visited Mar. 29, 2023).
18
its proposed facility, and its curriculum. Accordingly, CAB erred by determining
that the Revised Application failed to demonstrate its capability, in terms of support
and planning, to provide a comprehensive learning experience to students through
its financial plan, its proposed facility, and its curriculum in accordance with Section
1717-A(e)(2)(ii) of the CSL.
Section 1702-A of the CSL
The Charter School next argues that CAB erred by determining that the
Revised Application did not conform to the legislative intent outlined in Section
1702-A of the CSL, which provides:
It is the intent of the General Assembly, in enacting [the
CSL], 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.
(3) Encourage the use of different and innovative teaching
methods.
(4) Create new professional opportunities for teachers,
including the opportunity to be responsible for the learning
program at the school site.
(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 [the CSL]
accountable for meeting measurable academic standards
and provide the school with a method to establish
accountability systems.
24 P.S. § 17-1702-A (emphasis added).
19
The legislative concept was to retain the charter schools’
accountability to state and local authority[,] but afford
charter schools the flexibility to provide an innovative and
unique curriculum and to develop educational techniques
that might serve as models for all public schools. To this
end, the legislature relieved charter schools from having
to follow many of the laws and regulations governing
other public schools, in the hope that freeing charter
schools to function without being hindered by these
mandates would encourage innovation.
W. Chester Area Sch. Dist. v. Collegium Charter Sch., 760 A.2d 452, 455 n.6 (Pa.
Cmwlth. 2000), aff’d, 812 A.2d 1172 (Pa. 2002).
CAB concluded: “[T]he shortcomings of the proposed curriculum do
not convince that [the Charter School] will improve pupil learning. The main
reason is want of new program. There appears to be nothing new beyond the
District’s offerings and the offerings of [Vision William Penn].” CAB Dec. 17, 2021
Op. at 21-22 (emphasis added). However, the existence of similar programs in a
school district does not prove fatal to a consideration of whether a charter school can
serve as a model for other public schools pursuant to Section 1717-A(e) of the CSL.
See Infinity Charter Sch. Accordingly, CAB erred by determining that the Revised
Application did not conform to the legislative intent for its stated reason.
Section 1717-A(e)(2)(iv) of the CSL
The Charter School next argues that CAB erred by determining that the
Revised Application failed to demonstrate that the Charter School may serve as a
model for other public schools pursuant to Section 1717-A(e)(2)(iv) of the CSL.
Section 1717-A(e)(2)(iv) of the CSL mandates that the Charter School
establish: “The extent to which the charter school may serve as a model for other
public schools.” 24 P.S. § 17-1717-A(e)(2)(iv).
20
Here, CAB concluded:
The District evaluated [the Charter School’s Original and
Revised] Applications by the metric of the extent to which
it will serve as a model for other public schools. [See] 24
P.S. § 17-1717-A(e)(2)(iv). CAB has reasoned that
charter schools should improve public education. Given
the discussion above: deficiencies in the application; lack
of new program; inadequate facility; and, a limited
financial plan, one can rightfully conclude that the
proposed [charter] school would not be a model for other
public schools, as required by the CSL. The District was
right to do so here.
CAB Dec. 17, 2021 Op. at 22. Based on this Court’s rulings above that substantial
evidence does not support CAB’s determinations and it is those same determinations
upon which CAB concluded that the Charter School would not be a model for other
public schools, there is no basis for CAB’s ruling and this Court cannot conclude
that the Charter School would not be a model school for other public schools.
Accordingly, CAB erred by holding otherwise.
Conclusion
CAB erred by determining that the Revised Application did not satisfy
the requirements of Section 1719-A(1) (applicant identification); (8) (community
group involvement); (14) (extracurricular activities); and (15) (criminal histories) of
the CSL. Further, CAB’s determination that the Revised Application did not
demonstrate the Charter School’s capability, in terms of support and planning, to
provide a comprehensive learning experience to students through its financial plan,
its proposed facility, and its curriculum, pursuant to Section 1717-A(e)(2)(ii) of the
CSL, is not supported by substantial evidence. In addition, CAB erred by
determining that the Revised Application did not conform to the legislative intent
outlined in Section 1702-A of the CSL, and that the Revised Application failed to
21
demonstrate that the Charter School may serve as a model for other public schools
pursuant to Section 1717-A(e)(2)(iv) of the CSL.22
Based on the foregoing, CAB’s order is reversed and the matter is
remanded to CAB to direct the District to issue the Charter School a charter.
_________________________________
ANNE E. COVEY, Judge
22
Based on the aforementioned dispositions, this Court does not reach the Charter School’s
remaining issue.
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Vision Academy Charter School :
of Excellence, :
Petitioner :
:
v. :
:
Southeast Delco School District :
(Charter School Appeal Board), : No. 46 C.D. 2022
Respondent :
ORDER
AND NOW, this 30th day of March, 2023, the Charter School Appeal
Board’s (CAB) December 17, 2021 order is REVERSED, and the matter is
REMANDED to CAB to direct the Southeast Delco School District to issue Vision
Academy Charter School of Excellence a charter.
Jurisdiction is relinquished.
_________________________________
ANNE E. COVEY, Judge