N. Brunswick Twp. Bd. of Educ. v. Harrington, DOCKET NO. A-3415-16T1

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Haas, Sumners and Mitterhoff.

On appeal from the New Jersey Department of Education.

David B. Rubin argued the cause for appellants (David B. Rubin, PC, and The Busch Law Group, LLC, attorneys; David B. Rubin and Douglas M. Silvestro, on the briefs).

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Brenda C. Liss argued the cause for respondent Central Jersey College Prep Charter School (Riker Danzig Scherer Hyland & Perretti, LLP, attorneys; Brenda C. Liss, of counsel and on the brief; Stephen M. Turner, on the brief).

Geoffrey N. Stark, Deputy Attorney General, argued the cause for respondent Commissioner of Education (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; James M. Esposito, Deputy Attorney General, on the brief).

PER CURIAM

Appellants North Brunswick Township Board of Education (North Brunswick), New Brunswick Board of Education (New Brunswick), and Piscataway Township Board of Education (Piscataway) (collectively appellants), appeal from the February 28, 2017 final decision of the Commissioner of Education (Commissioner), approving an application by Central Jersey College Prep Charter School (CJCP) to amend its charter to increase its enrollment, add a satellite campus, and move its Somerset campus to a new facility.¹ We affirm.

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The procedural history and facts of this case are fully set forth in our decision today in Central Jersey and, to avoid repetition, we incorporate that discussion here. Therefore, we need only recite the most salient facts in this opinion.

At the time of this appeal, there were five charter schools operating in Middlesex and Somerset Counties: CJCP and Thomas Edison EnergySmart Charter School (TEECS) in Franklin Township; Hatikvah International Academy Charter School (Hatikvah) in East Brunswick; Greater Brunswick Charter School in New Brunswick; and the Academy for Urban Leadership Charter School in Perth Amboy. A sixth school, Ailanthus Charter School, had received approval to begin operation in Franklin Township for the 2018-2019 school year. See In re Ailanthus Charter Sch., No. A-0945-16 (App. Div. May 11, 2018). No charter schools were located in Piscataway.

As discussed in detail in Central Jersey, on December 1, 2016, CJCP submitted a charter amendment application to the Department seeking to: 1)

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expand its maximum enrollment from 624 to 1320 students by the 2019-2020 school year; 2) add a satellite campus in New Brunswick (within its region of residence) by the 2019-2020 school year; and 3) relocate its current facility to a new facility on Mettlers Road in Somerset.

On January 13, 2017, Franklin Township Board of Education (Franklin) submitted a letter, also discussed in detail in Central Jersey, to the Commissioner asking her to deny CJCP's application. In January and February 2017, appellants North Brunswick and Piscataway passed almost identical resolutions for a general moratorium on new charter school seats in Middlesex and Somerset Counties. They asserted that the Charter School Program Act of 1995, N.J.S.A. 18A:36A-1 to -18 (Charter School Act or CSPA), "requires that the districts of residence pay the charter schools for each student from their respective communities enrolled in those schools, thereby draining funds and diminishing money available to serve students in the traditional public schools."

Further, North Brunswick and Piscataway stated that the New Jersey Department of Education (Department or NJDOE) "has interpreted the Act to require all public schools statewide to pay charter schools for students enrolled in those schools regardless as to whether the charter serves that district's community as part of the charter's approved district or region of residence."

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They also alleged that Hatikvah and TEECS, but not CJCP, enrolled a "significantly more segregated student body than any of the resident or non-resident sending districts with respect to race, socioeconomic status and need for special education."

By letter dated February 21, 2017, appellant New Brunswick also asked the Commissioner to deny CJCP's, TEECS's and Hatikvah's applications to expand their enrollment. It maintained that in "direct contradiction to the letter and spirit" of the CSPA, "many charter schools are seeking to expand in order to enroll additional students from districts outside of the charter schools' approved districts or regions of residence due to a lack of interest from students who live in the very communities for which the charters were created to serve." It claimed that "[a]ny increase in charter school seats will have a negative impact on public school district funding, with the proposed 128% increase in such seats in Middlesex and Somerset Counties likely to lead to drastic and debilitating cuts throughout the public school districts in those counties."

New Brunswick also noted that other entities had filed civil rights complaints against two charter schools in Franklin Township (presumably referring to CJCP and TEECS) alleging that the demographics of the charter schools did not reflect the demographics of the local school district. It similarly

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alleged that Hatikvah and TEECS, but not CJCP, enrolled a "significantly more segregated student body than any of the resident or non-resident sending districts with respect to race, socioeconomic status and need for special education."

On February 28, 2017, the Commissioner granted CJCP's application to amend its charter based on her review of the record. In her written decision, the Commissioner noted that the Department had "completed a comprehensive review including, but not limited to, student performance on statewide assessments, operational stability, fiscal viability, public comment, fiscal impact on sending districts, and other information in order to make a decision regarding the school's amendment request." The Commissioner confirmed the school's maximum enrollment for the "approved region of residence of Franklin, New and North Brunswick," as follows:

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The Commissioner also confirmed the new site location at Mettlers Road, and directed CJCP to "provide all facility related documents to the Office of Charter and Renaissance Schools and the Somerset County Office of Education." Further, the Commissioner directed that once CJCP had identified the final site of the satellite campus, it should provide the Department with the required amended documentation pursuant to N.J.A.C. 6A:11-2.6. This appeal followed.

On appeal, appellants raise the following contentions:

POINT I

The Commissioner Failed To Analyze CJCP's Application Or To Disclose The Basis For Her Approval.

POINT II

The Commissioner Failed To Consider The Segregative Impact of CJCP's Charter Amendment.

POINT III

Other Significant Deficiencies [I]n CJCP's Application Render The Commissioner's Approval Arbitrary, Capricious And Unreasonable.

POINT IV

There Is No Authority To Compel Piscataway To Fund Students' Attendance [A]t CJCP.

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In Point I, appellants argue that the Commissioner's decision approving CJCP's application for an amendment of its charter was arbitrary, capricious, or unreasonable because she failed to analyze CJCP's application to amend, or provide any reason for the approval. We disagree.

As a threshold matter, CJCP argues that the appeal filed by Piscataway (but not New Brunswick's and North Brunswick's appeals) must be dismissed because Piscataway, as a non-resident district, lacks standing to pursue it. However, in our decision today in Highland Park II, we held that Piscataway had standing to challenge the Commissioner's decision to grant Hatikvah's application for an amendment to its charter. We discern no basis for reaching a different conclusion in this case where Piscataway seeks to challenge CJCP's similar application in the same county. Because we reject CJCP's standing argument for the reasons expressed in Highland II, we do not discuss this contention further here. R. 2:11-3(e)(1)(E).

Turning to the merits of appellants' contentions concerning the sufficiency of the Commissioner's decision, charter schools are public schools that operate under a charter granted by the Commissioner, operate independently of a local board of education, and are managed by a board of trustees. N.J.S.A. 18A:36A-

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3(a).² Applications to establish a charter school are governed by N.J.S.A. 18A:36A-4 and -5, and the implementing regulation, N.J.A.C. 6A:11-2.1. The Commissioner has final authority to grant or reject a charter. N.J.S.A. 18A:36A-4(c). "The notification to eligible applicants not approved as charter schools shall include reasons for the denials." N.J.A.C. 6A:11-2.1(f) (emphasis added).

Applications to renew a charter are governed by N.J.S.A. 18A:36A-17, and the implementing regulation, N.J.A.C. 6A:11-2.3. The Commissioner shall grant or deny the...