in-the-matter-of-the-grant-of-a-charter-to-the-merit-preparatory-charter ( 2014 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION
    
                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0019-12T2
    
    
    IN THE MATTER OF THE GRANT
                                          APPROVED FOR PUBLICATION
    OF A CHARTER TO THE MERIT
    PREPARATORY CHARTER SCHOOL                 April 9, 2014
    OF NEWARK AND IN THE MATTER
    OF THE GRANT OF A CHARTER TO            APPELLATE DIVISION
    THE NEWARK PREPARATORY
    CHARTER SCHOOL.
    
    ___________________________________
    
             Argued January 27, 2014 – Decided April 9, 2014
    
             Before Judges Yannotti, Ashrafi and Leone.
    
             On appeal from the Commissioner of the State
             of New Jersey, Department of Education.
    
             Richard E. Shapiro argued the cause for
             appellant New Jersey Education Association.
    
             Geoffrey N. Stark, Deputy Attorney General,
             argued the cause for respondent New Jersey
             Commissioner of Education (John H. Hoffman,
             Acting Attorney General, attorney; Melissa
             H. Raksa, Assistant Attorney General, of
             counsel; Mr. Stark, on the brief).
    
             Devora W. Allon, (Kirkland & Ellis LLP)
             of the New York bar, admitted pro hac vice,
             argued the cause for respondent Newark
             Preparatory Charter School (Lite DePalma
             Greenberg, LLC, Lay P. Lefkowitz (Kirkland &
             Ellis LLP) of the New York bar, admitted pro
             hac vice, and Ms. Allon, attorneys; Michael
             E. Patunas, Jeffrey A. Shooman, Samara L.
             Penn, Ms. Allon, and Mr. Lefkowitz, on the
             brief).
               Robert P. Avolio argued the cause for
               respondent Merit Preparatory Charter
               School of Newark (Avolio & Hanlon, P.C.,
               attorneys; Mr. Avolio, of counsel and on
               the brief; Amie C. Kalac, on the brief).
    
               Gibbons P.C., attorneys for amicus curiae
               New Jersey PublicSchoolOptions.org
               (Lawrence S. Lustberg and Jillian T. Stein,
               on the brief).
    
        The opinion of the court was delivered by
    
    ASHRAFI, J.A.D.
    
        Appellant the New Jersey Education Association ("NJEA")
    
    appeals from the grant of charters by the New Jersey
    
    Commissioner of Education to the Merit Preparatory Charter
    
    School of Newark and the Newark Preparatory Charter School.
    
    NJEA expresses concern for the diversion of public funds and
    
    resources from traditional public schools, and it contends the
    
    Legislature authorized charters only for traditional "brick-and-
    
    mortar" schools, not ones that use online teaching methodology.
    
    Merit Prep and Newark Prep, however, are not online internet
    
    schools.   They use a "blended" teaching methodology that
    
    combines in-person, face-to-face teaching and online instruction
    
    by means of internet materials.       They teach their students in
    
    school buildings during a traditional school day and under the
    
    supervision of a teaching staff.      We affirm the Commissioner's
    
    decisions.
    
    
    
    
                                      2                           A-0019-12T2
        The Charter School Program Act of 1995 authorizes the
    
    establishment of charter schools in New Jersey.     N.J.S.A.
    
    18A:36A-1 to -18.   "A charter school [is] a public school
    
    operated under a charter granted by the commissioner, which is
    
    operated independently of a local board of education and is
    
    managed by a board of trustees."     N.J.S.A. 18A:36A-3(a).
    
    Charter schools are funded by taxes collected from the public
    
    that would otherwise fund traditional public education.       See
    
    N.J.S.A. 18A:36A-12.
    
        The application requirements and review process for schools
    
    seeking charters are governed by various provisions of the
    
    Charter School Act and implementing regulations.    See, e.g.,
    
    N.J.S.A. 18A:36A-4, -4.1, -5; N.J.A.C. 6A:11-2.1.    The statutes
    
    and regulations do not contain specific directives on how the
    
    Commissioner must evaluate charter applications, but the Act
    
    includes findings and declarations reciting the Legislature's
    
    general goals and objectives in authorizing charter schools.
    
    N.J.S.A. 18A:36A-2.    The Legislature intended to provide "a
    
    mechanism for the implementation of a variety of educational
    
    approaches which may not be available in the traditional public
    
    school classroom," and to "encourage the use of different and
    
    innovative learning methods."   Ibid.   The Act empowers the
    
    
    
    
                                     3                             A-0019-12T2
    Commissioner with "final authority to grant or reject a charter
    
    application."   N.J.S.A. 18A:36A-4(c).
    
        Merit Prep and Newark Prep applied for charters to
    
    establish schools that use a blended model of teaching and
    
    learning.   The applications of both schools proposed teaching
    
    the New Jersey Core Curriculum Content Standards ("NJCCCS" or
    
    "core curriculum") partly by online instruction.   Both schools
    
    would require student and teacher attendance in a physical
    
    building, and the online teaching would be facilitated by in-
    
    person instructors.
    
        Merit Prep described its methodology as utilizing computers
    
    in the classroom as "a virtual textbook/workbook . . . used to
    
    determine student progress in real time."   "Each of the nine
    
    [core curriculum] content standards [would] be taught by a
    
    teacher and heavily reinforced with online exercises and
    
    assessments."   Approximately half the eight-hour school day
    
    would be conducted in face-to-face instruction with certified
    
    teachers.
    
        Newark Prep's application stated that "[e]very student will
    
    receive a fully differentiated educational experience supported
    
    by self-paced learning."   It described use of an innovative
    
    blended learning methodology that would combine online, project-
    
    based, and experiential learning.   "Master Teachers" would
    
    
    
    
                                    4                          A-0019-12T2
    monitor specific core curriculum subject areas and track each
    
    student's self-paced progress and problems in the use of the
    
    online programs.   Teachers and tutors would "pull out students
    
    for extra attention as individuals and/or in groups" and conduct
    
    "face time sessions."   Newark Prep also planned for teacher-led
    
    instruction in small groups of students, fewer than fifteen at a
    
    time.
    
        Thus, Merit Prep and Newark Prep did not propose "virtual"
    
    schools, where all teaching content would be online and
    
    attendance in a school building would not be required.
    
        NJEA and other groups objected to the granting of charters
    
    to the two schools on the ground that their online teaching
    
    method is not authorized by the Charter School Act.   The
    
    Commissioner rejected their objections and granted the charters.
    
    NJEA asks us to reverse the Commissioner's decisions.     We
    
    previously denied NJEA's application for a stay of the charters,
    
    and the two schools have been operating since the 2012-13 school
    
    year.
    
        The Commissioner argues that NJEA does not have standing to
    
    challenge his grant of the charters.   He contends N.J.S.A.
    
    18A:36A-4(d) limits the right to appeal his decision to grant or
    
    deny a charter only to the applicant and the local school board.
    
    See also N.J.A.C. 6A:11-2.5 ("An eligible applicant for a
    
    
    
    
                                    5                              A-0019-12T2
    charter school, a charter school, or a district board of
    
    education or State district superintendent of the district of
    
    residence of a charter school may file an appeal according to
    
    N.J.S.A. 18A:6-9.1.").   The Commissioner contends the Act was
    
    not intended to create a private right of action by anyone who
    
    opposes the granting of a charter.
    
        "Standing is a threshold requirement for justiciability" of
    
    a cause of action seeking a court's intervention and judgment.
    
    See Watkins v. Resorts Int'l Hotel & Casino, 
    124 N.J. 398
    , 421
    
    (1991).   In New Jersey, courts take "a liberal approach to
    
    standing to seek review of administrative actions."      In re
    
    Camden Cnty., 
    170 N.J. 439
    , 448 (2002).      A party has standing to
    
    challenge an administrative agency's decision when the party has
    
    "a sufficient stake in the outcome of the litigation, a real
    
    adverseness with respect to the subject matter, and a
    
    substantial likelihood that the party will suffer harm in the
    
    event of an unfavorable decision."      Id. at 449; accord In re
    
    Issuance of Access Conforming Lot Permit, 
    417 N.J. Super. 115
    ,
    
    126 (App. Div. 2010).    But when an issue involves a "great
    
    public interest, any slight additional private interest will be
    
    sufficient to afford standing."       Salorio v. Glaser, 
    82 N.J. 482
    ,
    
    491 (internal quotation marks omitted), cert. denied, 
    449 U.S. 804
    , 
    101 S. Ct. 49
    , 
    66 L. Ed. 2d 7
     (1980); see also People for
    
    
    
    
                                      6                           A-0019-12T2
    Open Gov't v. Roberts, 
    397 N.J. Super. 502
    , 510 (App. Div. 2008)
    
    ("[I]t takes but slight private interest, added to and
    
    harmonizing with the public interest to support standing to
    
    sue." (quoting Hudson Bergen Cnty. Retail Liquor Stores Ass'n v.
    
    Bd. of Comm'rs of Hoboken, 
    135 N.J.L. 502
    , 510 (E. & A. 1947))).
    
        Here, NJEA is a collective bargaining organization of
    
    teachers and other educators.   It claims its members, as well as
    
    their students, will be deprived of public funding for
    
    traditional public schools if online teaching methodology is
    
    funded by public tax dollars.   NJEA alleges its members have an
    
    adverse private interest because approval of such charter
    
    schools will affect their employment.   In another context, we
    
    have held that "an organization whose members are aggrieved and
    
    have interests that are sufficiently adverse has standing to
    
    challenge agency action on behalf of its members."   N.J. Dental
    
    Ass'n v. Met. Life Ins. Co., 
    424 N.J. Super. 160
    , 167 (App.
    
    Div.), certif. denied, 
    210 N.J. 261
     (2012).
    
        We are not convinced that the membership of NJEA will be
    
    adversely affected by the Commissioner's granting of charters to
    
    schools using a blended teaching methodology.   Cf. Indep. Energy
    
    Producers of N.J. v. N.J. Dep't of Envtl. Prot. & Energy, 
    275 N.J. Super. 46
    , 56 (App. Div.) (interest of the organization's
    
    members may be "too ethereal to justify judicial recognition and
    
    
    
    
                                    7                           A-0019-12T2
    acknowledgement"), certif. denied, 
    139 N.J. 187
     (1994); In re
    
    Ass'n of Trial Lawyers of Am., 
    228 N.J. Super. 180
    , 181 (App.
    
    Div.) (trial lawyers' association lacked standing to challenge
    
    products liability statute on constitutional grounds), certif.
    
    denied, 
    113 N.J. 660
     (1988).   Nevertheless, this appeal raises a
    
    novel legal issue of whether the Commissioner may approve a
    
    charter school that employs blended teaching methodology using
    
    internet materials.   The issue is of "substantial public
    
    interest."   Falcone v. De Furia, 
    103 N.J. 219
    , 226 (1986).       We
    
    conclude NJEA's membership has demonstrated a slight private
    
    interest that, together with the substantial public interest,
    
    affords it standing to pursue this appeal.
    
        "[C]ourts have but a limited role to play in reviewing the
    
    action of other branches of government."     In re Petition for
    
    Rulemaking, 
    117 N.J. 311
    , 325 (1989).     We may reverse the
    
    Commissioner's decision to grant or deny a charter only if it is
    
    arbitrary, capricious, or unreasonable.    In re Proposed Quest
    
    Acad. Charter Sch. of Montclair Founders Grp., 
    216 N.J. 370
    ,
    
    385-87 (2013).   This deferential standard of judicial review is
    
    more fully explained as follows:
    
             [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
    
    
    
                                    8                              A-0019-12T2
             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)).]
    
        We are not bound by an agency's interpretation of a statute
    
    or its determination of a legal issue, In re Taylor, 
    158 N.J. 644
    , 658 (1999), but we generally "give substantial deference to
    
    the interpretation an agency gives to a statute that the agency
    
    is charged with enforcing."   Norfolk S. Ry. Co. v. Intermodal
    
    Props., LLC, 
    215 N.J. 142
    , 165 (2013) (quoting R & R Mktg., LLC
    
    v. Brown-Forman Corp., 
    158 N.J. 170
    , 175 (1999)).
    
        Here, NJEA argues that the granting of charters to Merit
    
    Prep and Newark Prep was arbitrary, capricious, and unreasonable
    
    because the Charter School Act does not give the Commissioner
    
    express or implied authority to approve online or blended
    
    teaching methodology.   We disagree.
    
        While nothing in the Act allows or disallows any particular
    
    teaching methodology, the legislative goal was to permit "a
    
    variety of educational approaches which may not be available in
    
    the traditional public classroom."     N.J.S.A. 18A:36A-2.   Also,
    
    
    
                                    9                            A-0019-12T2
    charter schools are to provide "choices . . . when selecting [a]
    
    learning environment," and the Act was intended to "encourage
    
    the use of different and innovative learning methods."     Ibid.
    
    "In determining whether a particular administrative act enjoys
    
    statutory authorization, the reviewing court may look beyond the
    
    specific terms of the enabling act to the statutory policy
    
    sought to be achieved . . . ."   N.J. Guild of Hearing Aid
    
    Dispensers v. Long, 
    75 N.J. 544
    , 562 (1978).   By explicitly
    
    stating its goals and objectives, the Legislature established a
    
    policy by which it gave the Commissioner broad authority to
    
    grant charters to schools using a variety of educational
    
    methodology.
    
        We find no merit in NJEA's argument that the absence of an
    
    express reference to online teaching in the Act and its
    
    legislative history suggests the Legislature would not permit
    
    that form of teaching.   See In re Application of Virgo's, Inc.,
    
    
    355 N.J. Super. 590
    , 595 (App. Div. 2002) (Although no specific
    
    statutory provision either empowered or precluded the action
    
    taken, "administrative agencies must be given broad authority to
    
    carry out their mandates.").
    
        The Act does not make reference to any specific teaching
    
    method.   If online teaching methods are prohibited because they
    
    are not expressly mentioned, then it follows that all novel
    
    
    
    
                                     10                          A-0019-12T2
    teaching methods not prescribed by the Act are prohibited.
    
    Adopting the NJEA's position would defeat the Legislature's
    
    stated purpose.   N.J.S.A. 18A:36A-2; see Jersey Cent. Power &
    
    Light Co. v. Melcar Util. Co., 
    212 N.J. 576
    , 586-88 (2013)
    
    (courts must interpret statutes consistently with the
    
    Legislature's purpose); In re Sussex Cnty. Mun. Utils. Auth.,
    
    
    198 N.J. Super. 214
    , 217 (App. Div.) ("[L]egislative language
    
    must not, if reasonably avoidable, be found to be inoperative,
    
    superfluous or meaningless."), certif. denied, 
    101 N.J. 267
    
    (1985).
    
        The Legislature may not have contemplated the use of
    
    internet-based teaching when the Act was passed in 1995, but the
    
    Act cannot be read narrowly as only allowing methods that were
    
    in existence at its inception.   Certainly, the Legislature did
    
    not intend to exclude advances in technology from charter school
    
    classrooms.   It intended just the opposite.
    
        Similarly, we are not persuaded by NJEA's argument that the
    
    Act does not expressly authorize the use of online methods to
    
    teach the core curriculum.   While the regulations require
    
    evidence of a "[c]urriculum that is compliant with" the NJCCCS,
    
    N.J.A.C. 6A:11-2.2(a)(1)(iii), neither the Act nor the
    
    regulations specify any particular teaching method.
    
    
    
    
                                     11                          A-0019-12T2
        Nor do we read the Act as limiting the Commissioner's
    
    authority on the ground that the Legislature would have fixed a
    
    different funding formula for charter schools that use teaching
    
    methods unlike those of traditional "brick-and-mortar" schools.
    
    See N.J.S.A. 18A:36A-12.   Merit Prep and Newark Prep are schools
    
    with a physical location where attendance is mandatory during
    
    the normal school day.   The online aspect of teaching occurs in
    
    the school building under the supervision of teachers and staff.
    
    The primary distinction between them and traditional schools
    
    lies in the novel teaching methodology.    The Act does not
    
    require the Legislature's re-evaluation of funding formulas
    
    simply because the Commissioner authorized a charter school with
    
    novel teaching methodology.
    
        The Commissioner decided to grant charters to Merit Prep
    
    and Newark Prep after reviewing the comprehensive applications
    
    they submitted.   The applications explained how online teaching
    
    methods are designed to create a personalized, differentiated
    
    educational experience that incorporates self-paced learning
    
    with teacher interaction, a method that is not typically
    
    available in traditional public schools.   The proposed teaching
    
    methods promote the Act's policy of enhancing innovative
    
    teaching methodology and student and parental choice.   The
    
    Commissioner's decision was not contrary to his legislative
    
    
    
    
                                    12                            A-0019-12T2
    authority and is supported by substantial evidence in the
    
    record.   It is not arbitrary, capricious, or unreasonable.
    
        Affirmed.
    
    
    
    
                                    13                          A-0019-12T2