BOARD OF EDUCATION OF THE CITY OF HOBOKEN, HUDSON COUNTY VS. NEW JERSEY STATE DEPARTMENT OF EDUCATION,ET AL.(COMMISSIONER OF EDUCATION)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3690-14T3
BOARD OF EDUCATION OF THE
CITY OF HOBOKEN, HUDSON COUNTY,
Petitioner-Appellant,
v.
NEW JERSEY STATE DEPARTMENT OF
EDUCATION and BOARD OF TRUSTEES
OF THE HOBOKEN DUAL LANGUAGE
CHARTER SCHOOL,
Respondents-Respondents.
Argued May 2, 2017 – Decided June 29, 2017
Before Judges Reisner, Koblitz and Rothstadt.
On appeal from the Commissioner of Education.
Eric L. Harrison argued the cause for
appellant (Methfessel & Werbel, attorneys; Mr.
Harrison, of counsel and on the brief; Kegan
S. Andeskie, on the brief).
Viola S. Lordi argued the cause for respondent
Board of Trustees of Hoboken Dual Language
Charter School (Wilentz, Goldman & Spitzer,
attorneys; Ms. Lordi, of counsel and on the
brief; Gordon J. Golum and Maureen S. Binetti,
on the brief).
Donna S. Arons, Deputy Attorney General,
argued the cause for respondent Department of
Education (Christopher S. Porrino, Attorney
General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Ms.
Arons and Frederick Wu, Deputy Attorneys
General, on the brief).
Avram D. Frey argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey and Education Law Center (Gibbons,
P.C., Education Law Center, and American Civil
Liberties Union of New Jersey Foundation,
attorneys; Lawrence S. Lustberg, Mr. Frey,
David Sciarra, Elizabeth Athos, Edward Barocas
and Alexander Shalom, on the brief).
Paul P. Josephson argued the cause for amicus
curiae New Jersey Charter Schools Association
(Duane Morris LLP, attorneys; Mr. Josephson,
on the brief).
PER CURIAM
The Board of Education of the City of Hoboken, Hudson County
(Hoboken) appeals the Commissioner of Education's (Commissioner)
March 20, 2015 grant of the Hoboken Dual Language Charter School's
(HoLa) application to expand its grade-level offerings to seventh
and eighth grade. Hoboken claims that the Commissioner failed to
consider the charter school's alleged segregative and funding
impact on the district and improperly declined to hold a hearing,
conduct interviews, or gather more facts concerning the charter
school's policies. Because neither the methodology used by the
Commissioner nor his decision were arbitrary, capricious, or
unreasonable, we affirm.
On October 15, 2013, HoLa submitted a charter renewal and
expansion application to the Commissioner and Hoboken. The Hoboken
2 A-3690-14T3
Superintendent fully supported Hola's charter renewal, but
objected to its expansion. On March 5, 2014, Evo Popoff, the
Chief Innovation Officer at the Department of Education (the
Department), acting on the Commissioner's behalf, renewed HoLa's
charter for five years, through June 30, 2019. Popoff also
permitted the elementary school to add a seventh-grade class for
the 2016-2017 school year and an eighth-grade class for the 2018-
2019 school year.
Hoboken appealed, and after our remand to the Commissioner
upon application of the Department, and after the parties submitted
additional materials, the Commissioner again granted HoLa's
renewal and expansion application on March 20, 2015. We denied a
stay.
The City of Hoboken has a public school system for students
in grades kindergarten (K) through 12 consisting of four public
schools: Brandt, Calabro, Connors and Wallace. It also includes
three charter schools including HoLa, and four private, tuition-
based K-8 schools.
According to HoLa, the original intent of its founders was
to implement a dual-language program (Spanish and English) at
Hoboken's Connors school (the district's most segregated and
poorest school), but Hoboken rejected the plan. HoLa then applied
for and was granted a charter to operate a dual-language school
3 A-3690-14T3
beginning in September 2010, starting with grades K-2 and expanding
each year until HoLa encompassed grades K-6. HoLa is located in
a low-income section of Hoboken, close to the Connors school.
Students are admitted to HoLa through a lottery with no
interviews. No demographic data is collected until students are
registered. In order to represent a cross section of the Hoboken
community, HoLa holds open houses and tours and advertises in
local publications. It also partners with local organizations to
recruit on-site. Dates for the open houses, tours and events, as
well as the lottery, are posted on the school's website and are
printed on flyers "distributed throughout the city." In addition,
applications and brochures are mailed to every low-income
household each year prior to the lottery. HoLa's parents and
teachers also canvass subsidized and public housing and help
complete applications on the spot.
Parents may enroll children in the lottery online, in person,
or by a phone call to the school. HoLa has a sibling preference,
so that if a child is enrolled in HoLa, that child's younger
sibling will have priority over other lottery applicants. On
December 23, 2014, HoLa submitted a request to the Commissioner
to include a low-income preference in its lottery.1
1
This request was granted in December 2015 after the record in
this case closed.
4 A-3690-14T3
Initially, in 2013, Popoff conducted "a comprehensive review"
of HoLa, "including the evaluation of the school's renewal
application, annual reports, student performance on state
assessments, site visit results, public comments, and other
information." Popoff found that HoLa was "providing a high-quality
education to its students." In the 2012-2013 school year, 82% of
HoLa's students were at least proficient in Language Arts, while
91% were at least proficient in math. By comparison, only 50% of
Hoboken's traditional public school students were at least
proficient in Language Arts and 52% were at least proficient in
math.
After the remand, the parties submitted more information,
including census and student enrollment data. According to 2010
U.S. Census data, Hoboken's under-seventeen population was 57%
white, 26% Hispanic, and 16% "other" reflecting a significant
increase in the percentage of white children from the 2000 Census
data, which showed Hoboken's under-seventeen population as 39%
white, 46% Hispanic, and 15% "other." In the 2009-2010 school
year (the year before HoLa started operating), Hoboken's
traditional public school student population was 22% white, 59%
Hispanic, 15% black, and 4% Asian. By the 2013-2014 school year,
four years after HoLa began, Hoboken's traditional public school
student population had increased its percentage of white students
5 A-3690-14T3
from 22% to 27%.
The Commissioner considered the racial breakdown of the
students in the public and charter schools for 2012-2013 and 2013-
2014. Between these school years, the percentage of white students
at HoLa rose from 60.6% to 63%, while Connors rose from only 3.9%
white students to 4%. Brandt rose from 61.5% to 72%, and Wallace
rose from 32.6% to 43%. The final public school, Calabro, dipped
from 34.6% to 32%. As can be seen by these statistics, minority
students are heavily concentrated at Connors, where in both years
they made up approximately 95% of the student population. The
percentage of students receiving free or reduced-price lunch
decreased for all four Hoboken public elementary schools from
2010-2011 to 2013-2014, although at Connors 88% of the students
still received a lunch subsidy in 2013-2014.
In addition to considering the submitted materials, the
Office of Charter Schools conducted its own review of data focusing
on race and ethnicity to determine whether HoLa was having a
segregative effect on the Hoboken Public School District, stating:
"After the Department's analysis of publically available student
enrollment data, census data, and documentation submitted by the
parties, it has been determined that HoLa does [not] and will not
have a segregative effect on [Hoboken]." The Commissioner
explained:
6 A-3690-14T3
[A]lthough HoLa enrolls a higher percentage
of White students, and a smaller percentage
of Black and Hispanic students than [Hoboken],
the percentage of White students attending
[Hoboken] has actually increased since HoLa
opened in 2010 with the percentage of Hispanic
students decreasing in that same period. The
percentage of Black students in [Hoboken] has
stayed fairly constant since 2010. The
increase in percentage of [Hoboken's] White
students since 2010, along with the decrease
in Hispanic students, and the lack of changes
to the percentage of Black students indicates
that HoLa's enrollment has not had a
segregative effect on [Hoboken]. Instead, the
data points towards an overall population
shift in the last ten years in the City of
Hoboken, which began before the opening of
HoLa Charter School.
Hoboken argues that in granting the expansion of HoLa's
charter to include seventh and eighth grades, the Commissioner:
1) failed to consider HoLa's alleged racially and economically
segregative effect; 2) failed to consider the funding impact to
students affected by poverty and special needs; and 3) failed to
conduct interviews, gather facts, or hold a hearing to consider
HoLa's policies and practices.
Our review of the Commissioner's decision is limited. In re
Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216
N.J. 370, 385 (2013). "[A] court may intervene when 'it is clear
that the agency action is inconsistent with its mandate.'" Ibid.(quoting In re Petition for Rulemaking, 117 N.J. 311, 325 (1989)).
[A]lthough sometimes phrased in terms of a
search for arbitrary or unreasonable agency
7 A-3690-14T3
action, the judicial role [in reviewing an
agency's action] is generally restricted to
three inquiries: (1) whether the agency's
action violates express or implied legislative
policies, that is, did the agency follow the
law; (2) whether the record contains
substantial evidence to support the findings
on which the agency based its action; and (3)
whether in applying the legislative policies
to the facts, the agency clearly erred in
reaching a conclusion that could not
reasonably have been made on a showing of the
relevant factors.
[Id. at 385-86 (quoting Mazzo v. Bd. of Trs.,
143 N.J. 22, 25 (1995)) (second alteration in
the original).]
In reviewing administrative decisions, however, courts are "in no
way bound by the agency's interpretation of a statute or its
determination of a strictly legal issue." Shim v. Rutgers, 191
N.J. 374, 384 (2007) (quoting In re Taylor, 158 N.J. 644, 658
(1999)). Nevertheless, "case law has recognized the value that
administrative expertise can play in the rendering of a sound
administrative determination." In re Proposed Quest Acad., supra,
216 N.J. at 389.
The Supreme Court gave the following overview of the law
regarding charter schools:
The Charter School Program Act of 1995 (the
Act) . . . (codified as amended at N.J.S.A.
18A:36A-1 to -18), authorizes the
establishment of charter schools in New
Jersey. See N.J.S.A. 18A:36A-2 (finding that
charter schools "can assist in promoting
comprehensive educational reform" and that
their establishment "is in the best interests
8 A-3690-14T3
of the students of this State"). The Act
charges the Commissioner of Education
(Commissioner) with the responsibility to
establish a program to "provide for the
approval and granting of charters to charter
schools pursuant to [the Act]." N.J.S.A.
18A:36A-3. The application process is
governed by the Act, see N.J.S.A. 18A:36A-4,
-4.1, and -5, and implementing regulations,
see N.J.A.C. 6A:11-2.1. . . . Ultimately, the
Commissioner has the "final authority to grant
or reject a charter application." N.J.S.A.
18A:36A-4(c); see also N.J.A.C. 6A:11-2.1(a).
[In re Proposed Quest Acad., supra, 216 N.J.
at 373.]
"Charter schools are public schools, which through
legislative authorization are free from many state and local
regulations." In re Grant of Charter Sch. Application of Englewood
on the Palisades Charter Sch., 164 N.J. 316, 320 (2000)
(Englewood). The Commissioner must conduct a "comprehensive
review" before granting a charter renewal. In re Red Bank Charter
Sch., 367 N.J. Super. 462, 469 (App. Div.), certif. denied, 180
N.J. 457 (2004); N.J.A.C. 6A:11-2.3(b). "[I]f the goals set forth
in the charter school's charter are not fulfilled, the charter is
not renewed." Englewood, supra, 164 N.J. at 320.
I. Racial Segregative Impact
Hoboken first argues that the Commissioner erred by using
incomplete or flawed data and ignoring relevant data when finding
that HoLa has not had and will not have a racially segregative
impact. "Rooted in our Constitution, New Jersey's public policy
9 A-3690-14T3
prohibits segregation in our public schools." Id. at 324. "[T]he
Commissioner is required to monitor and remedy any segregative
effect that a charter school has on the public school district in
which the charter school operates." In re Red Bank Charter Sch.,
supra, 367 N.J. Super. at 471. The "form and structure" of the
segregation analysis is up to the Commissioner and the state Board
of Education to determine. Englewood, supra, 164 N.J. at 329.
Hoboken complains of two problems with the data: 1) pre-K
data was improperly included in the Department's reports for 2013-
2014 and 2) the Commissioner used census data inclusive of the
entire Hoboken population under age seventeen instead of data for
only the school-age population. Hoboken argues that because the
2013-2014 Department's report erroneously included data for pre-K
students in the district and HoLa did not enroll pre-K students,
the report was not an accurate reflection of Hoboken's population.
The Department data included data from the Brandt school, which
served only pre-K and K students, and which enrolled a higher
percentage of white students than the other public schools (62%
white in 2012-2013 and 72% white in 2013-2014).
It is true that HoLa did not admit pre-K students and the
Department's statistics for 2013-14 included data for pre-K
students. However, the Department's 2012-2013 data did not include
the pre-K data, and those numbers were relied upon to the same
10 A-3690-14T3
extent as the 2013-2014 numbers. Moreover, the inclusion of the
pre-K data did not skew the statistics; although the pre-K data
included Brandt, a predominately white school in the district,
those same statistics also included data on Wallace and Connors,
schools that were predominately minority, and which also added
pre-K in the 2013-2014 school year. Thus, contrary to Hoboken's
suggestion, the inclusion of Brandt did not skew the statistics.
And, although HoLa did not offer pre-K, "trends in the student
population" are "valid factors" to be considered when determining
whether an action will have a segregative impact. In re Petition
for Authorization to Conduct a Referendum on the Withdrawal of N.
Haledon Sch. Dist. from the Passaic Cty. Manchester Reg'l High
Sch. Dist., 363 N.J. Super. 130, 142 (App. Div. 2003) (N. Haledon
I), aff'd as mod., 181 N.J. 161 (2004). The Commissioner properly
considered the pre-K data because it provided solid evidence of
the trends in the student population.
Hoboken also complains that the Commissioner erred in
considering census information concerning all of the children
under age seventeen in Hoboken and not just those of school age.
It argues this was error because: 1) the statute requires a review
of the community's "school age" population; 2) the under-five age
group is overrepresented in the Hoboken population; and 3) the
relevant comparison is that of the student population in the
11 A-3690-14T3
district, not the student population of Hoboken.
N.J.S.A. 18A:36A-8(e) addresses enrollment preferences,
stating: "The admission policy of the charter school shall, to the
maximum extent practicable, seek the enrollment of a cross section
of the community's school age population, including racial and
academic factors." The racial make-up of students expected to
enroll in school in the next four years is a trend that the
Commissioner should consider. N. Haledon I, supra, 363 N.J. Super.
at 142.
Hoboken argues that the relevant statistics were those that
compared HoLa's student population to the student population of
the traditional public school system, not to the population of
those under age seventeen. To support its position, it cites to
Englewood, which states the Commissioner "must consider the impact
that the movement of pupils to a charter school would have on the
district of residence" and it is the Commissioner's "obligation
to oversee the promotion of racial balance in our public schools
to ensure that public school pupils are not subjected to
segregation." Englewood, supra, 164 N.J. at 328 (emphasis added).
Hoboken also cites to N.J.A.C. 6A:11-2.2(c) that states in part
that "the Commissioner shall assess the student composition of a
charter school and the segregative effect that the loss of the
students may have on its district of residence."
12 A-3690-14T3
N.J.S.A. 18A:36A-8(e), however, states that a charter
school's admission policy must seek to enroll "a cross section of
the community's school age population." (Emphasis added). This
indicates that the entire community, not just the students enrolled
in the public schools, must be considered. Any other
interpretation would exclude potential students who had already
elected not to attend public schools, but who were part of the
population eligible to attend the public schools. A simple
comparison between the charter schools and the traditional public
schools is not necessarily representative of the demographics:
based on 2013-2014 data, 65% of Hoboken's school-age population
was white, but only 27% of Hoboken's students were white. This
was largely the result of four private K-8 schools that enrolled
thousands of Hoboken's students. Consequently, the analysis is
complicated. It is not fair to HoLa to refuse to recognize the
impact of the private schools on overall school enrollment in
Hoboken, as HoLa has no control over private school enrollment.
Hoboken presents no data of its own to support its positions. The
Commissioner did not act arbitrarily in considering the data
presented.
Assuming that the data the Commissioner relied on was correct,
Hoboken maintains that the Commissioner's legal interpretation of
that data was wrong in that "the lack of a documented increase in
13 A-3690-14T3
HoLa's segregative impact on Hoboken's school-aged children does
not negate the existence of the segregative impact." We have
stated:
[A] Charter School should not be faulted for
developing an attractive educational program.
Assuming the school's enrollment practices
remain color blind, random, and open to all
students in the community, the parents of age
eligible students will decide whether or not
to attempt to enroll their child in the
Charter School and any racial/ethnic imbalance
cannot be attributed solely to the school. To
close this school would undermine the
Legislature's policy of "promoting
comprehensive educational reform" by
fostering the development of charter schools.
[In re Red Bank Charter Sch., supra, 367 N.J.
Super. at 478 (quoting N.J.S.A. 18A:36A-2).]
In Red Bank, as here, a disparity existed between the
enrollment of minority students in the charter school and the
traditional public schools. Id. at 473-74. We were concerned
that after initial enrollment, the charter school in Red Bank
decreased the percentage of minority students as the students
progressed toward graduation, with the argument being made that
the charter school frequently returned minority students with poor
academic records to the public schools just in time for
standardized testing. Id. at 479. We determined that the charter
school's "manner of operation of the school after its color-blind
lottery, warrants closer scrutiny to determine whether some of the
school's practices may be worsening the existing racial/ethnic
14 A-3690-14T3
imbalance in the district" and remanded to the Commissioner to
determine "whether remedial action is warranted." Id. at 480,
482. Despite the stark disparity in Red Bank, however, we approved
the renewal and expansion of the charter school. Id. at 486.
Unlike in Red Bank, there are no allegations that HoLa's practices
after the enrollment of students by an impartial lottery
exacerbated the racial or ethnic balance.
In addition to the arguments Hoboken makes in the context of
the charter school statutory scheme, it also argues that the
Commissioner violated his duty to enforce the "Thorough and
Efficient Education" clause of the New Jersey Constitution when
he failed to remedy de facto segregation caused by HoLa's
expansion. In the "Education Clause" or the "Thorough and
Efficient Provision," the New Jersey Constitution provides: "The
Legislature shall provide for the maintenance and support of a
thorough and efficient system of free public schools for the
instruction of all the children in the State between the ages of
five and eighteen years." N.J. Const. art. VIII, § 4, ¶ 3; see
Petition for Authorization to Conduct a Referendum on Withdrawl
of N. Haledon Sch. Dist. v. Passaic Cty. Manchester Reg'l High
Sch. Dist., 181 N.J. 161, 173 n.3 (2004) (N. Haledon II).
"[R]acial imbalance resulting from de facto segregation is
inimical to the constitutional guarantee of a thorough and
15 A-3690-14T3
efficient education." Id. at 177. The Commissioner must "exercise
broadly his statutory powers when confronting segregation,
whatever the cause." Englewood, supra, 164 N.J. at 324. However,
it is "not really possible to establish a precise point when a
thorough and efficient education is threatened by racial
imbalance." N. Haledon II, supra, 181 N.J. at 183.
In North Haledon, the Borough of North Haledon sought a
referendum to determine whether it should be allowed to withdraw
from the Passaic County Manchester Regional High School District.
Id. at 164. Although the Board of Review granted the withdrawal,
several interested parties objected arguing that the Board failed
to assess the impact of the withdrawal on the racial makeup of the
high school, given the white student population would decrease by
nine percent, and that the percentage of minorities would continue
to rise and the white population would continue to decline due to
population trends in the sending towns. Id. at 164, 174. Our
Supreme Court stated:
Not every action that reduces the percentage
of white students necessarily implicates the
State's policy against segregation in the
public schools. . . . What we do know is that
in this case, demographic trends are
contributing to a steady decrease in the
number of white students attending Manchester
Regional, and that North Haledon's withdrawal
will accelerate this trend. Rather than using
the demographic trend as an excuse for
approving North Haledon's petition, the Board
should have considered the ameliorative effect
16 A-3690-14T3
of denying the petition on the racial balance
at Manchester Regional.
[Id. at 183.]
Hoboken does not, however, show that expanding HoLa will
increase racial imbalance as it did in North Haledon. To the
contrary, the percentage of white students in Hoboken schools
increased since HoLa opened.
II. Economic Segregation
Hoboken also claims that the Commissioner failed to consider
the economic disparity between the student populations of HoLa and
the district. It points out that while 11% to 16% of HoLa's
population qualified for free or reduced-price lunch, Hoboken had
much higher levels in some schools. N.J.S.A. 18A:36A-8 does not
specifically address economic factors, instead requiring the
admission policy of a charter school to "seek the enrollment of a
cross section of the community's population including racial and
academic factors."
The evidence showed that HoLa's policies are geared toward
admitting a cross section of the school-aged population,
economically as well as racially and ethnically. HoLa canvassed
and advertised in Hoboken's subsidized housing developments. On
December 23, 2014, HoLa submitted a successful request to the
Department to include a low-income preference in its lottery.
Hoboken fails to convince us that the facts regarding economically
17 A-3690-14T3
disadvantaged students lead to a conclusion that HoLa should not
be permitted to expand.
III. Funding Impact
Hoboken next argues that the Commissioner's decision was
arbitrary and capricious because he failed to consider its January
30, 2015, submission to the court and Hoboken Superintendent Mark
Toback's December 13, 2010 letter concerning the funding impact
that charter schools had on Hoboken's budget, including the number
of special needs students enrolled in HoLa versus Hoboken.
N.J.S.A. 18A:36A-12(b) provides:
The school district of residence shall pay
directly to the charter school for each
student enrolled in the charter school who
resides in the district an amount equal to 90%
of the sum of the budget year equalization aid
per pupil and the prebudget year general fund
tax levy per pupil inflated by the CPI rate
most recent to the calculation. In addition,
the school district of residence shall pay
directly to the charter school the security
categorical aid attributable to the student
and a percentage of the district's special
education categorical aid equal to the
percentage of the district's special education
students enrolled in the charter school, and,
if applicable, 100% of preschool education
aid. The district of residence shall also pay
directly to the charter school any federal
funds attributable to the student.
Toback pointed out that the allocation of funds to the charter
schools located in Hoboken had "nearly tripled in only a few short
years" and that the pattern was not sustainable "given our
18 A-3690-14T3
enrollment increase at the lower grade levels coupled with a 2%
tax cap." He claimed that "[e]ven with tax increases, the district
must make cuts to services and programs for our students to support
charter expansion." He wrote: "We have four school district
leaders in one square mile, four business administrators, four
separate payrolls, four separate boards of education and a host
of required services that are duplicated." However, he did not
submit specific financial data to support those assertions.
As to students with special needs, Toback wrote:
HoLa does enroll a few special needs children,
and the other two charters enroll about the
same percentage of special needs students as
our district. But it must be noted that the
charter schools do not enroll students with
significant disabilities. It is the public
district that enrolls the most significantly
disabled children and pays for private out-
of-district placements. This concentrates an
expensive undertaking in the public schools,
thus raising our per-pupil costs and reducing
per-pupil costs in charter schools.
He further noted, again without district-specific evidence, that
the existing law gave an "incentive" for charter schools to place
special needs students in out-of-district placements, which put
the cost back on the district.
[I]f the local school district "demonstrates
with some specificity that the constitutional
requirements of a thorough and efficient
education would be jeopardized by [the
district's] loss" of the funds to be allocated
to a charter school, "the Commissioner is
obligated to evaluate carefully the impact
19 A-3690-14T3
that loss of funds would have on the ability
of the district of residence to deliver a
thorough and efficient education."
[In re Proposed Quest Acad., supra, 216 N.J.
at 377-78 (quoting Englewood, supra, 164 N.J.
at 334-35).]
"[U]nsubstantiated, generalized protests" are insufficient.
Englewood, supra, 164 N.J. at 336. "Renewal of a successful
charter school will be favored, 'unless reliable information is
put forward to demonstrate that a constitutional violation may
occur.'" In re Red Bank Charter Sch., supra, 367 N.J. at 482-83
(quoting Englewood, supra, 164 N.J. at 336).
"[T]he Commissioner is entitled to rely on the district of
residence to come forward with a preliminary showing that the
requirements of a thorough and efficient education cannot be met."
Englewood, supra, 164 N.J. at 334. The district "must be able to
support its assertions" as the Commissioner does not have "the
burden of canvassing the financial condition of the district of
residence in order to determine its ability to adjust to the per-
pupil loss upon approval of the charter school based on
unsubstantiated, generalized protests." Id. at 336.
In In re Red Bank Charter Sch., supra, 367 N.J. Super. at
482, the district claimed that the funding of a charter school
would cause the district's budget to be reduced by $720,000, and
that it would cause the elimination of four positions, resulting
20 A-3690-14T3
in bigger classes, as well as the elimination of courtesy busing
and reduction of hall monitors, instructional assistants, and
cafeteria monitors. In spite of these representations, we found
the "paucity of specificity" in the district's claim to be "fatal."
Id. at 483.
Here, Hoboken does not argue that the financial losses
surrounding HoLa's expansion would impede Hoboken's ability to
provide a thorough and efficient education. It mounts only
general, non-specific and unconvincing attacks on the entire
charter school scheme and does not separate HoLa's impact from the
impact of the other two charter schools.
IV. Fact-gathering
In its supplemental submission to the Commissioner after
remand, Hoboken requested that the Commissioner "conduct further
interviews, fact gathering, and perhaps hold a hearing to better
assess possible interventions." On appeal, Hoboken argues that
the Commissioner should have held hearings to consider the effect
HoLa's policies and practices had on segregation before reaching
a decision as to HoLa's renewal and expansion application.
An adjudicatory hearing is not required in every contested
renewal application case. In re Proposed Quest Acad., supra, 216
N.J. at 383. Hoboken raised the issues of HoLa's sibling
preference, recruiting practices, fundraising practices, opt-in
21 A-3690-14T3
practice, and request for a low-income preference in its
submissions to the Commissioner. Hoboken fails to state, however,
what additional information was needed in order for the
Commissioner to complete his review. The decision states: "[a]ll
submitted materials from both parties were thoroughly reviewed."
"When the Commissioner is not acting in a quasi-judicial capacity,
as he was not here, he need not provide the kind of formalized
findings and conclusions necessary in the traditional contested
case." In re Grant of Charter Sch. Application of Englewood on
the Palisades Charter Sch., 320 N.J. Super. 174, 217 (App. Div.
1999), aff'd as mod., 164 N.J. 316 (2000).
HoLa provides quality education to a cross section of
Hoboken's children. As a dual-language school, HoLa allows
students to become bilingual in a curriculum with a multi-cultural
content, and thus advances public policy goals. Hoboken has not
shown that the Commissioner's decision to allow HoLa to expand was
arbitrary, capricious, or unreasonable.2
Affirmed.
2
This decision does not preclude parents who believe their child
was unfairly denied admission to HoLa for discriminatory reasons
from registering an individual complaint pursuant to N.J.S.A.
18A:36A-15.
22 A-3690-14T3