IN RE AMENDMENT APPLICATION, ETC. (NEW JERSEY DEPARTMENT OF EDUCATION) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-2828-19
IN RE AMENDMENT
APPLICATION TO
EXPAND ENROLLMENT
OF PACE CHARTER
SCHOOL OF HAMILTON.
________________________
Argued December 15, 2021 – Decided February 24, 2022
Before Hoffman, Geiger and Susswein.
On appeal from the New Jersey Department of
Education.
Casey P. Acker argued the cause for appellant Hamilton
Township Board of Education (Lenox, Socey,
Formidoni, Giordano, Lang, Carrigg & Casey, LLC,
attorneys; Patrick F. Carrigg, of counsel; Casey P.
Acker, on the briefs).
Thomas O. Johnston argued the cause for respondent
Pace Charter School of Hamilton (Johnston Law Firm,
LLC, attorneys; Thomas O. Johnston, on the brief).
Laurie Fichera, Deputy Attorney General, argued the
cause for respondent New Jersey Commissioner of
Education (Andrew J. Bruck, Acting Attorney General,
attorney; Donna Arons, Assistant Attorney General, of
counsel; Laurie Fichera, on the brief).
PER CURIAM
The Hamilton Township Board of Education (Hamilton) appeals from a
decision of the Commissioner of Education (Commissioner), granting Pace
Charter School's (Pace) application to amend its charter to increase enrollment
from 405 to 450 students. Hamilton opposed the amendment, claiming that the
increased enrollment would "siphon[] Hispanic students to a lopsided degree"
and thus will have a segregative impact. After carefully reviewing the record in
light of the governing principles of law, we affirm the Commissioner's decision.
I.
Pace began operating in Hamilton Township in 1999. The school's
enrollment was capped at 405 students, as of 2018. Because the demand to
attend Pace was high, the school implemented a random lottery system for
admission. As of November 2019, 590 applicants were on a waitlist. On
November 26, 2019, Pace submitted a request to the Commissioner pursuant to
N.J.A.C. 6A:11-2.6 to amend its charter and increase student enrollment by
forty-five students. Under the proposed expansion, during the 2020-2021 school
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year, Pace would add twenty-seven students. Nine students would be added in
each of the following two years. 1
As part of its application, Pace submitted evidence pertaining to the
school's level of academic performance, fiscal stability, and ability to maintain
its operational capabilities should the expansion request be granted. The record
also shows that Pace recruited students from throughout the surrounding
community by means of advertising and by distributing applications for
enrollment to the public. The school reached out to the parents of children
attending local preschool programs. The school also relied on a local
newspaper, Facebook, school newsletters, and Pace's website. Applications for
enrollment were available in multiple languages, and the school's website could
be translated into other languages. The website made clear that the school has
an admission policy of nondiscrimination.
On January 23, 2020, Hamilton submitted a letter to the Commissioner
opposing the expansion. Hamilton requested the Commissioner to deny the
application or in the alternative to stay the decision pending "a full assessment
1
The request for expansion also noted that Pace desired to acquire an additional
property. The expansion application explained, "[a]dding this facility would
give Pace Charter School the opportunity to downsize to two campus locations
and would provide upgrades to . . . current facilities."
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of the causes of de facto segregation persistent in Pace's enrollment." Hamilton
claimed in the opposition letter that "Pace's enrollment of Hispanic students is
grossly disproportionate to the total population of Hispanic persons living in
Hamilton Township" and that the school had "siphoned Hispanic students to a
lopsided degree." In support of its opposition, Hamilton attached an excerpt of
the minutes of the January 22, 2020 Hamilton Board of Education meeting at
which the Board adopted a resolution requesting the Department to conduct a
"full, open and thorough analysis" of Pace's alleged disparate enrollment
demographics. Hamilton also attached "government demographic data"
consisting of census and demographic data regarding the population of Hamilton
Township.
On February 3, 2020, the Commissioner granted Pace's request for
expansion of its charter. In rendering the decision, the Commissioner explained:
The Department has evaluated this request by
reviewing Pace Charter School's academic, operational,
and fiscal standing based on the criteria outlined in the
Office of Charter and Renaissance Schools'
Performance Framework [(Performance Framework)].
The Department's evaluation also included a review of
any public comment received in accordance with
N.J.A.C. 6A:11-2.6(c), demand for an increase in the
school's enrollment, segregative effect in accordance
with N.J.A.C. 6A:11-2.2(c) and consideration of the
fiscal impact of the expansion on the district of
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residence. Based on the review outlined below, I am
granting Pace Charter School's amendment request.
Regarding academic performance, the Commissioner determined that
"[b]ased on preliminary 2018-2019 statewide assessment results, Pace Charter
School appears to continue the academic trends in the 2016-2017 and 2017-2018
school year. The Department believes Pace Charter School continues to be a
high performing charter school academically."
As to fiscal stability, the Commissioner determined that Pace was fiscally
sound. This determination was based on the Performance Framework and the
fiscal impact of the expansion on sending districts.
The Commissioner also considered the charter school's organizational
performance. The Commissioner determined that Pace's amendment request
adequately described the performance management and strategic plans for
expansion. The Commissioner found that the school's operation for over twenty
years "demonstrated faithfulness to its mission and the implementation of key
design elements."
Finally, the Commissioner acknowledged public demand for enrollment
and public comment. Specifically, the Commissioner noted the large waitlist
for admission to Pace. The Commissioner also expressly recognized that
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Hamilton had submitted an opposition letter articulating concerns about "de
facto segregation in Pace's . . . enrollment."
Hamilton filed a Notice of Appeal after the Commissioner granted Pace's
request.2 Hamilton raises the following contentions for our consideration:
POINT I
THE COMMISSIONER'S GRANTING OF THE
AMENDMENT WAS ARBITRARY, CAPRICIOUS
AND UNREASONABLE BECAUSE THE
COMMISSIONER FAILED TO CONSIDER THE
SEGREGATIVE EFFECT OF PACE’S
ENROLLMENT PRACTICES.
POINT II
THE COMMISSIONER'S GRANTING OF THE
AMENDMENT WAS ARBITRARY, CAPRICIOUS
AND UNREASONABLE BECAUSE IT FAILED TO
ASSESS PACE'S STUDENT COMPOSITION AND
THE SEGREGATIVE EFFECT THAT THE LOSS OF
THE STUDENTS HAS ON THE DISTRICT OF
RESIDENCE AS REQUIRED BY LAW.
POINT III
THE COMMISSIONER'S GRANTING OF THE
AMENDMENT WAS ARBITRARY, CAPRICIOUS
AND UNREASONABLE BECAUSE IT VIOLATES
THE EXPRESS LEGISLATIVE POLICY OF
DESEGREGATION OF NEW JERSEY'S PUBLIC
SCHOOLS.
2
On March 28, 2020, Hamilton filed an Amended Notice of Appeal. On April
10, 2020, Hamilton filed a second Amended Notice of Appeal.
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II.
We begin our analysis by acknowledging the foundational legal principles
governing this appeal. The scope of our review of an agency decision is narrow.
Reviewing courts "may reverse an agency decision if it is arbitrary, capricious,
or unreasonable." In re Proposed Quest Acad. Charter Sch. of Montclair
Founders Grp., 216 N.J. 370, 385 (2013) (citing In re Petitions for Rulemaking,
117 N.J. 311, 325 (1989)). A reviewing court can only intervene "when 'it is
clear that the agency action is inconsistent with its mandate.'" Ibid. As the New
Jersey Supreme Court has stated on many occasions,
[a]lthough sometimes phrased in terms of a search for
arbitrary or unreasonable agency action, the judicial
role [in reviewing an agency action] is generally
restricted to three inquiries: (1) whether the agency's
action violates express or implied legislative policies,
that is, did the agency follow the law; (2) whether the
record contains substantial evidence to support the
findings on which the agency based its action; and (3)
whether in applying the legislative policies to the facts,
the agency clearly erred in reaching a conclusion that
could not reasonably have been made on a showing of
the relevant factors.
[Id. at 385–86 (alteration in original) (quoting Mazza v.
Bd. of Trs., 143 N.J. 22, 25 (1995)).]
Furthermore, appellate courts must give deference to the Commissioner's
findings given his or her expertise in the educational field. See id. at 389.
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Importantly for purposes of this appeal, the Commissioner's review of
charter school renewal and amendment applications is deemed to be a quasi -
legislative function. As our Supreme Court recently re-affirmed, accordingly,
the Commissioner is not required "to provide 'the kind of formalized findings
and conclusions necessary in the traditional contested case." In re Renewal
Application of Team Acad. Charter Sch., 247 N.J. 46, 74 (2021) (citing In re
Team Acad. Charter Sch., 459 N.J. Super. 111, 140 (App. Div. 2019) (quoting
In re Englewood on the Palisades Charter Sch., 320 N.J. Super 174, 217 (App.
Div. 1999), aff'd as modified, 164 N.J. 316 (2000)). The Court explained, "[f]or
'more policy-driven, quasi-legislative acts' such as those at issue here, 'the record
may be less extensive' than the record of a contested case . . . . The basis for the
determination, however, 'must be discernible from the record' considered by the
agency." Id. at 74–75. The Court added, an "appellate court's determination
[of] whether the record contains 'substantial evidence to support the findings on
which the agency based its action' requires 'a sifting of the record, and the ability
to find support for the conclusions reached by the Commissioner under the
statutory framework within which she [or he] must act.'" Id. at 75; see also In
re Red Bank Charter Sch., 367 N.J. Super. 462, 476 (App. Div. 2004).
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Our Supreme Court in Englewood provided general guidance on how the
Commissioner is to assess the racial impact a charter school would have on the
district in which the charter school operates. Englewood, 164 N.J. at 329. The
Court explained,
We express no view on the formality or structure of that
analysis except to state that it must take place before
final approval is granted to a charter school applicant.
We otherwise leave the form and structure of that
analysis to the Commissioner and State Board to
determine. We simply hold that the Commissioner's
obligation to prevent segregation in the public schools
must inform his [or her] review of an application to
approve a charter school, and if segregation would
occur the Commissioner must use the full panoply of
his [or her] powers to avoid that result.
[Ibid.]
III.
We first address Hamilton's argument that the Commissioner's decision
was arbitrary and capricious because it failed to consider the segregative effect
of Pace's enrollment practices. The record shows to the contrary that the
Commissioner considered Hamilton's opposition and determined that Pace's
enrollment practices are not segregative.
The applicable regulations make clear that a charter school can apply for
an amendment to its charter following the final granting of the charter for
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reasons such as expanding enrollment. N.J.A.C. 6A:11-2.6(a)(1)(i). When
reviewing an amendment application, the Commissioner "shall determine
whether the amendments are eligible for approval and shall evaluate the
amendments based on [the Charter School Program Act of 1995 (CSPA)] . . .
and shall review a charter school's performance data in assessing the need for a
possible charter amendment." N.J.A.C. 6A:11-2.6(b). Under this regulatory
framework, the Commissioner is expressly obligated to "monitor and remedy
any segregative effect that a charter school has on the public school district in
which the charter school operates." Red Bank, 367 N.J. Super. at 471 (citing
N.J.S.A. 18A:36A-8(e)). Therefore, "[t]he Commissioner . . . 'must consider the
impact that the movement of pupils to a charter school would have on the district
of residence' and must 'be prepared to act if the de facto effect of a charter school
were to affect a racial balance precariously maintained in a charter school's
district of residence.'" Id. at 472 (quoting Englewood, 164 N.J. at 328); see also
N.J.A.C. 6A:11-2.1(j) ("Prior to the granting of the charter, 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.").
In evaluating segregative effects, the Commissioner must consider the
charter school's enrollment practices. Pursuant to N.J.S.A. 18A:36A-8, proper
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enrollment practices include: (1) giving preference to those who live in the
school district where the charter school is located, (2) a random selection process
when the applications for enrollment exceed the available spaces, and (3) having
an admissions policy that "seek[s] the enrollment of a cross section of the
community's school age population including racial and academic factors."
In view of this statutory and regulatory framework, we are satisfied that
the Commissioner's decision in this case was not arbitrary or capricious.
Hamilton argues that the Commissioner's statement that he considered the
segregative effect of increased enrollment pursuant to N.J.A.C. 6A:11-2.2(c),
did not provide enough evidence that he actually examined Pace's enrollment
practices. Hamilton's contention fails to recognize that because the
Commissioner is exercising a quasi-legislative function, he is not required to
explain in detail his examination of potential segregative effects. See
Englewood, 164 N.J. at 329. Rather, a reviewing court simply needs to
determine, after "a sifting of the record," Team Acad., 247 N.J. at 75, whether
the Commissioner's reasons for his conclusion are discernible, Red Bank, 367
N.J. Super. at 476.
Our review of the record shows adequate support for the Commissioner's
conclusion that Pace's enrollment practices are not segregative. First, the record
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shows that Hamilton's Hispanic public-school population increased between
2015 and 2018. We deem that fact to be significant, contradicting Hamilton's
claim that Pace's enrollment practices have had a segregative effect,
"siphon[ing] Hispanic students to a lopsided degree." Additionally, Hamilton
fails to acknowledge that the majority of students attending Pace are actually
residents of Trenton, not Hamilton Township.
It bears emphasis that Hamilton's argument fails to identify any
segregative enrollment practice. Our decision in Red Bank is instructive on this
point. In that case, the Red Bank Board of Education (RBB) opposed the
renewal and expansion of the Red Bank Charter School. 367 N.J. Super. at 469.
In support of its argument that the charter school's enrollment practices had a
segregative effect, the RBB pointed to the random lottery system used for all
Red Bank residents, the waiting list, a sibling preference policy, and student
withdrawal policy as contributing to segregation in Red Bank. Id. at 479–80.
Regarding the withdrawal policy, the RBB argued that students were returned
to the Red Bank public school system right before statewide testing and that the
overwhelming majority of those students were African American and Hispanic.
Id. at 479. The RBB claimed that "the percentage of children that drop out of
the Charter School prior to graduation and come to the Middle School is
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overwhelmingly minority and the percentage of graduates of the Charter School
are overwhelmingly white." Id. at 479.
The RBB also claimed that the charter school's sibling preference policy
allowed siblings of enrolled students to avoid the lottery system. RBB argued
that "the sibling policy not only fosters the percentage of white children
attending the Charter School but removes those places from the lottery for which
non-white, i.e, African American and Hispanic children would otherwise be
candidates." Id. at 479–80.
Ultimately, we determined that "allegations of the school's enrollment and
withdrawal policies [were] disturbing and difficult to dismiss on this record."
Id. at 480. As a result, we remanded the matter for the Commissioner to conduct
"a hearing to determine whether the lottery, waiting list, sibling preference and
withdrawal policy, and any other practices of the Charter School [were]
adversely impacting the Red Bank district's racial/ethnic imbalance." Id. at 486.
We nonetheless affirmed the renewal and expansion of the charter school. Ibid.In contrast to the situation in Red Bank, nothing in the record before us
(aside from a bald assertion) supports Hamilton's claim that Pace's enrollment
practices are segregative in nature. As previously noted, the record shows that
Pace recruited students throughout the surrounding community via advertising
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and by distributing applications to the public, including local preschool
programs, the local newspaper, Pace's Facebook page and school newsletter, and
Pace's website. Further, the record shows that enrollment applications are
available in multiple languages, and that Pace's website can be translated into
other languages. The record before us also does not suggest that Pace has a
sibling preference policy. Nor does the record show a high withdrawal rate of
students. On the contrary, the record shows that few, if any students, have
withdrawn from the charter school.
Hamilton also fails to explain how the random lottery system Pace
employs could contribute to segregation in Hamilton Township. As we noted in
Red Bank, "[a]ssuming 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." Id. at 478. Charter schools "should not be faulted for developing an
attractive educational program" so long as the "school's enrollment practices
remain color blind, random, and open to all students in the community . . . ."
Ibid.In Red Bank, we concluded that
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the Commissioner did not specifically address the
segregation argument in his letter approving the Charter
School's renewal and expansion. But we can discern
from the entire record, including the Board's stay
application and the Commissioner's brief in this appeal,
that the Commissioner concluded there was "no
evidence in the record to suggest that the charter school
has promoted racial segregation among the district's
school-age children.").
[Id. at 476.]
In the matter before us, the Commissioner did address Hamilton's
segregation argument in his approval letter, albeit in a conclusory fashion. We
are satisfied that the basis for the Commissioner's determination is discernible
from the record before us.
IV.
We next address Hamilton's closely-related contention that the
Commissioner failed to consider the loss of students on the district of residence.
That assertion is belied by the record.
As we have noted, the Commissioner is obligated to "monitor and remedy
any segregative effect that a charter school has on the public school district in
which the charter school operates." Id. at 471 (citing N.J.S.A. 18A:36A-8(e)).
Therefore, "[t]he Commissioner . . . 'must consider the impact that the movement
of pupils to a charter school would have on the district of residence' and 'be
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prepared to act if the de facto effect of a charter school were to affect a racial
balance precariously maintained in a charter school's district of residence.'" Id.
at 472 (quoting Englewood, 164 N.J. at 328); see also N.J.A.C. 6A:11-2.1(j)
("Prior to the granting of the charter, 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.").
Here, the record shows that the Commissioner considered Pace's student
composition and the segregative effect that the loss of students would have on
Hamilton. First, the Commissioner reviewed Pace's performance framework
that spanned 2015 to 2018. The available data shows that the majority of
students enrolled at Pace reside in Trenton, not Hamilton Township, and that the
second largest population of students at Pace are Hispanic. Although Hamilton
acknowledges in this appeal that Pace has a large population of Hispanic
students, it does not acknowledge in its briefs that the majority of students
enrolled at Pace reside in Trenton.
Hamilton also fails to acknowledge statistics in its own performance
report that contradict one of the key reasons for its opposition. That report
shows that the number of Hispanic students enrolled in the Hamilton public
school system actually increased over the relevant three-year period.
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Furthermore, the statistics in its own report show that the Hispanic student
population in the Hamilton public school system was the only "racial and ethnic
group" that experienced an increase in enrollment over those three years. From
this, we discern from the record that Hamilton is not experiencing a segregative
effect from Pace's operation.
V.
Finally, we address Hamilton's more generalized contention that the
Commissioner's decision violates New Jersey's legislative policy of
desegregation. The Supreme Court in Englewood aptly recognized that
The history and vigor of our State's policy in favor of a
thorough and efficient public school system are
matched in its policy against racial discrimination and
segregation in the public schools. Since 1881 there has
been explicit legislation declaring it unlawful to
exclude a child from any public school because of his
[or her] race (L. 1881, c. 149; N.J.S.A. 18A:38–5.1),
and indirect as well as direct efforts to circumvent the
legislation have been stricken judicially. In 1947, the
delegates to the Constitutional Convention took pains
to provide, not only in general terms that no person
shall be denied any civil right, but also in specific terms
that no person shall be segregated in the public schools
because of his [or her] "religious principles, race, color,
ancestry or national origin." Art. 1, para. 5.
[164 N.J. at 324 (quoting Jenkins v. Twp. of Morris
Sch. Dist. and Bd. of Educ., 58 N.J. 483, 495–96
(1971)).]
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Further, the Court noted that "New Jersey's abhorrence of discrimination and
segregation in the public schools is not tempered by the cause of the segregation.
Whether due to an official action, or simply segregation in fact, our public policy
applies with equal force against the continuation of segregation in our schools."
Ibid. (citing Booker v. Bd. of Educ., Plainfield, 45 N.J. 161 (1965)).
Our State's stalwart policy of desegregation applies to charter schools no
less than public schools. Pursuant to N.J.S.A. 18A:36A-7, charter schools
shall be open to all students on a space available basis
and shall not discriminate in its admission policies or
practices on the basis of intellectual or athletic ability,
measures of achievement or aptitude, status as a person
with a disability, proficiency in the English language,
or any other basis that would be illegal if used by a
school district; however, a charter school may limit
admission to a particular grade level or to areas of
concentration of the school, such as mathematics,
science, or the arts. A charter school may establish
reasonable criteria to evaluate prospective students
which shall be outlined in the school's charter.
Furthermore, as we have already noted, "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" on an annual basis.
N.J.A.C. 6A:11-2.2(c).
At bottom, the Commissioner, no less than a local board of education, has
a core responsibility to guard against segregated schools. In Englewood, the
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Court stressed that the Commissioner must "use the full panoply of his [or her]
powers to avoid that result." 164 N.J. at 329. Hamilton has failed to show that
the Commissioner has in any way abdicated his responsibility to detect, prevent,
and remediate such discrimination. To the contrary, we are satisfied the
Commissioner fulfilled his obligation and did not act arbitrarily, capriciously,
or unreasonably either in granting the application for expansion or in explaining
the reasons for that decision. See Team Acad., 247 N.J. at 75 (noting that "the
basis for the determination . . . 'must be discernible from the record' considered
by the agency").
Affirmed.
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