School District of Pittsburgh v. Provident Charter School For Children With Dyslexia , 134 A.3d 128 ( 2016 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
School District of Pittsburgh, :
Petitioner :
:
v. : No. 598 C.D. 2015
: Submitted: December 9, 2015
Provident Charter School For :
Children With Dyslexia, :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge1
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge2
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge3
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION
BY JUDGE LEAVITT FILED: February 26, 2016
The School District of Pittsburgh petitions for review of an
adjudication of the State Charter School Appeal Board (Appeal Board) granting a
charter to Provident Charter School for Children with Dyslexia (Provident). In
doing so, the Appeal Board concluded that Provident’s application for a charter
1
This case was assigned to the opinion writer on or before December 31, 2015, when President
Judge Pellegrini assumed the status of senior judge.
2
This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
3
This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt
became President Judge.
met the requirements of the Charter School Law4 and reversed the School District’s
contrary conclusion. We affirm.
Background
In November 2013, Provident submitted an application to the Board
of Directors of the School District of Pittsburgh (School District) for the grant of a
charter for its proposed school, which would focus on students with dyslexia in
grades two through eight. Provident’s application contained 105 petitions of
support with over 800 undated signatures from residents in or near Pittsburgh. The
application also included over 50 letters of support from parents, educators, and
other professionals and one student. At the School District’s public hearing, 20
individuals spoke in favor of Provident’s application. On February 26, 2014, the
School District denied Provident’s charter application.5
4
Act of March 10, 1949, P.L. 30, added by the Act of June 19, 1997, P.L. 225, as amended, 24
P.S. §§17-1701-A – 17-1751-A.
5
The School District listed the following deficiencies in the application as reasons for the denial:
 Does not provide the School District of Pittsburgh with expanded choices in
the types of educational opportunities currently being offered.
 Failure to demonstrate sustainable support by way of current petitions and
letters of support from teachers, parents, students and the community.
 Failure to include all the information requested in section 1719-A and
conform to the legislative intent outlined in section 1702-A.
 Failure to describe a complete and comprehensive curriculum that is aligned
to state standards.
 Does not provide sufficient information regarding a continuum of services to
meet the needs of all students, including students with disabilities, English
Language Learners and at-risk students.
 Failure to establish that the proposed charter school is financially viable.
 Failure to demonstrate that the charter school can serve as a model for other
schools in the District.
Reproduced Record at 625.
2
On March 14, 2014, Provident resubmitted a revised, 400-page
application. Reproduced Record at 636-1027 (R.R. ___).6 The revised application
offered: (1) additional written support for the charter school plan by teachers,
parents, other community members and students; (2) expanded choices for students
in the School District; (3) new procedures for the suspension or expulsion of
students; (4) a new professional development plan; (5) a new admissions policy;
and (6) a new proposed curriculum. Joint Stipulation of Undisputed Facts and Law
at 2, ¶7.
Provident’s stated mission is
to offer families an alternative educational program for their
children who are diagnosed with dyslexia and are at-risk of
educational failure due to academic difficulties manifested
through limited language processing skills and whose
instructional needs are not met in a traditional setting.
R.R. 647-48. To that end, Provident proposes “specially designed instruction for
students with dyslexia that will intensively and specifically address their individual
needs at their own instructional level.” R.R. 644. According to the revised
application:
The hallmarks that define and distinguish the commitment of
[Provident] to the continuous growth and achievement of
children with dyslexia include, but are not limited to these:
6
Pursuant to Section 1717-A(f) of the Charter School Law,
[a]t the option of the charter school applicant, a denied application may be revised
and resubmitted to the local board of school directors.
24 P.S. §17-1717-A(f). Because this appeal involves Provident’s revised charter application, we
discuss only that application.
3
1. Implementation of multisensory instruction
using derivatives of the Orton-Gillingham
approach to language arts taught by Orton-
Gillingham certified teachers
2. Individualization of instruction based on
students’ developmental needs
3. Teaching students in small, flexible skill
groups with targeted instruction available
among 8 tiers based on students’ knowledge
and skills, at each level
4. Recognition of parents as partners in their
children’s education
5. Maintenance of an overall school average of a
6:1 student to adult ratio
6. Incorporation of project-based learning and
development and implementation of
interdisciplinary, theme-based units of
instruction
7. Partnering with families in the development
and delivery of education
8. Fostering self-discipline, self-respect and self-
defense through a martial arts Tae Kwon Do
program
9. Establishment of a fine arts program to
include music, art and theater experiences
10. Implementation of a conversational Spanish
[program] and the study of Latin to promote
vocabulary development
11. Incorporation of assistive technology tools
such as, but not limited to, Kurzwell Text To
Speech Literacy Software, Dragon Naturally
Speaking Voice Recognition Software as well
4
as other instructional technology applications
such as, but not limited to, SMART Boards,
SMART Interactive Solutions, Microsoft
Office and internet application
12. Employment of a two year teacher looping
cycle in Levels 3-4, 5-6 to promote stronger
student/teacher bonding
13. Development of students’ social
consciousness through community service
activities
14. Application of formative assessment
techniques and providing regular, consistent
feedback to students and parents
15. Partnering with local universities to place
student teachers including an incentive
program
16. Addressing the needs of at-risk students
defined as those who are at risk of educational
failure because of academic difficulties such
as, but not limited to, language processing and
dyslexia
R.R. 645-46, 963.
Provident will market the school’s special focus to prospective
students and their parents. Nevertheless, Provident will accept any applicant, even
one for whom the special programs will have no relevance. Accordingly,
Provident attested in its revised application that it
will not discriminate on any basis, including intellectual ability,
measures of achievement or aptitude, athletic ability, disability,
English language proficiency, race, creed, gender, sexual
orientation, national origin, religion, or ancestry or other
protected class.
5
R.R. 984. There will be no admission tests or requirements. Applicants will be
accepted on a first-come, first-served basis. If there are more applicants than
available spaces, a lottery system will be used for admission.
Provident’s proposed pre-enrollment form requests certain
information, including the child’s name and date of birth and “whether special
programs are required.” R.R. 720, 985. Provident explained that the pre-
enrollment form will not be used to
deny enrollment or otherwise discriminate in its admission
policies or practices on the basis of a child’s disability or the
child’s need for special education or supplementary aids or
services.
R.R. 987. Rather, the pre-enrollment form will help Provident determine “whether
the school is oversubscribed and a lottery must be held.” R.R. 985. When an offer
of admission is made, parents have three weeks “to participate in an orientation
process and to complete the enrollment process.”7 R.R. 722. Thereafter a separate
registration and enrollment form will be used to effect an enrollment.
Provident’s revised application described its plan to involve the
community in the school as follows:
The founding coalition, along with the Board of Directors,
represents a cross section of parents and professionals with an
interest in serving the needs of children with dyslexia. Many
are actively involved in organizations and agencies whose
mission it is to work with families who have children with
dyslexia.
7
If they do not, admission will be forfeited.
6
Among the agencies represented by the coalition are these
important institutions that serve children with dyslexia such as,
but not limited to:
 International Dyslexia Association
http://interdys.org/
 Pittsburgh Branch of the International Dyslexia
Association http://pbida.org/
 Masonic Temple, Total Learning Center
http://totallearningcenter.com/
 The Watson Institute
http://www.thewatsoninstitute.org/
 The Laughlin Center
http://www.laughlincenter.org/
 [Provident] has received numerous letters of
support from many of these organizations,
professionals who work in the field of special
education and from parents and families whose
children are dyslexic. These letters are included in
the Appendix at the end of this application.
[Provident] will continue to request letters of
support and will present them at the Public
Hearing that will be scheduled within 45 days of
the school district’s receipt of this application.
R.R. 711.
The application form has a heading entitled “Community Involvement
in Planning Process.” In response Provident stated that it will
involve parents, families and communities in a variety of
committees as developed by the [Provident] Board and
administrative team. [Provident] will work to engage and
involve parents, families and community members to promote
collaboration, communication and conflict resolution.
[Provident] also will have a robust program for
parents/guardians of prospective students to become involved in
7
the development of [Provident]. [Provident] will initiate
partnerships with local, state wide and national organizations to
promote best practices based on evidence, expertise and
experience.
Representative groups include, but are not limited to,
 Charter, Parochial, Private and Independent
schools
 International Dyslexia Association
http://interdys.org/
 Masonic Temple, Total Learning Center
http://totallearningcenter.com/
 Pittsburgh Branch of the International Dyslexia
Association http://pbida.org/
 Pittsburgh Public Schools
http://www.pps.k12.pa.us/Page/1
 The Laughlin Center
http://www.laughlincenter.org/
 The Watson Institute
http://www.thewatsoninstitute.org/
 Total Learning Centers
http://www.totallearningcenter.com/
 Troy Hill Citizens, businesses and community
groups
 University of Pittsburgh http://pitt.edu
R.R. 970.
With regard to community support for the charter school, Provident
incorporated the evidence of support from its initial application and submitted over
100 new petition signatures, which were dated, from individuals residing within a
8
4-block radius of Provident’s proposed site, as well as 14 letters in support of its
revised application.8
On April 28, 2014, the School District held a second public hearing on
Provident’s application. Seven individuals spoke in favor of Provident’s charter
application. Two days later, the School District’s Board denied Provident’s charter
application, finding it to be deficient in the following areas:
 Sufficient support from residents of the School District of
Pittsburgh
 Expanded Choices
 Considering all information requested in [S]ection 1719-A
[of the Charter School Law, 24 P.S. §17-1719-A] and
conforming to the legislative intent outlined in [S]ection
1702-A [of the Charter School Law, 24 P.S. §17-1702-A].
 Meeting the needs of all students
8
The letters in support state:
I, __________ [insert author’s name] am writing to express my support for the
Provident Charter School, which I understand is applying for a Charter in the
Troy Hill neighborhood. I recognize that having a charter school for children
with dyslexia in the metropolitan area will be a great service to local families
seeking educational support for their children with language processing
challenges.
As a citizen of the community, I would welcome the opportunity to have
[Provident Charter School] located in Troy Hill. A school such as this will ensure
the continued use of the North Catholic High School as a center for learning in
our community. Additional benefits of having the school will be to help bolster
our local economy and provide high-quality job opportunities for our region.
Western Pennsylvania needs a public school choice that will provide the
thousands of children with dyslexia in our region with a free, appropriate public
education that will arm them with the tools they need to succeed in school and in
life. Providing public school choice for parents whose children are at risk for
educational failure increases opportunities for students and strengthens the fabric
of our community.
R.R. 941 (emphasis in original).
9
R.R. 1762.9
With respect to community support, as required by Section 1717-
A(e)(2)(i) of the Charter School Law,10 the School District found that “[m]any of
the signatures [on the petition] were from outside the City of Pittsburgh and only a
few of the letters of support were from School District of Pittsburgh parents who
would enroll their child(ren) in the proposed charter school.” R.R. 1762.
With respect to expanded choices, as required by Section 1702-A(5)11
of the Charter School Law, the School District found that Provident fell short
because its educational programs were already offered in the School District,
including other charter schools in Pittsburgh.12
9
In its May 1, 2014, letter to Provident, the School District stated that one of the bases for the
denial was Provident’s “[f]ailure to serve as a model for other schools in the District.” R.R.
1761. However, the School District’s actual written denial did not explain this point, and the
School District did not raise it in the appeal to the Appeal Board. It is waived.
10
Section 1717-A(e)(2)(i) states that the local board of school directors must evaluate an
application for a charter based on
demonstrated, sustainable support for the charter school plan by teachers, parents,
other community members and students, including comments received at the
public hearing held under subsection (d).
24 P.S. §17-1717-A(5).
11
Section 1702-A(5) states, in relevant part, as follows:
It is the intent of the General Assembly, in enacting this article, 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:
***
(5) Provide parents and pupils with expanded choices in the types
of educational opportunities that are available within the public
school system.
24 P.S. §17-1702-A(5).
12
The School District asserted that it uses teacher looping, extended school days, flexible
groups, Orton-Gillingham multi-sensory instruction, assistive technology, use of assessments for
(Footnote continued on the next page . . .)
10
With respect to the involvement of community groups and
partnerships, as required by Section 1719-A(8) of the Charter School Law,13 the
School District found Provident’s application lacking because it did not include
“agreements, contracts or memoranda of understanding with community
partnerships.” R.R. 1763.
Next, the School District concluded that Provident “failed to
demonstrate that it is prepared to meet the needs of all students.” R.R. 1764. In
the School District’s view, once Provident agreed to accept all students, not only
those diagnosed with dyslexia, it should have revised the educational
programming, staffing, and curriculum to address this different student body.
Further, Provident did not have a written policy for screening students to satisfy
the Child Find14 requirements.
Finally, the School District found that Provident’s admission policy
was discriminatory in violation of Section 1723-A(b) of the Charter School Law;15
(continued . . .)
accountability, employment of teachers with preparation and experience teaching students with
dyslexia, inclusive practices, an extended school year, expanded extracurricular choices, and the
promotion of self-advocacy. R.R. 1763.
13
It states, in relevant part, as follows:
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(8).
14
See 34 C.F.R. §300.111(a) (setting forth the “child find” mandates, including the requirement
that all children residing in the Commonwealth who have disabilities be identified, located and
evaluated and that methods be employed to determine which children are receiving needed
special education and related services).
15
Section 1723-A(b) of the Charter School Law provides that:
(Footnote continued on the next page . . .)
11
22 Pa. Code §711.7;16 and the Pennsylvania Fair Opportunities Act.17 Specifically,
the School District found it “inappropriate to request ‘whether special programs are
(continued . . .)
(1) A charter school shall not discriminate in its admission policies or practices on
the basis of intellectual ability, except as provided in paragraph (2), 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.
(2) A charter school may limit admission to a particular grade level, a targeted
population group composed of at-risk students, or 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.
24 P.S. §17-1723-A(b).
16
Regarding enrollment in charter schools:
(a) A charter school or cyber charter school may not deny enrollment or
otherwise discriminate in its admission policies or practices on the basis of a
child’s disability or the child’s need for special education or supplementary aids
or services.
(b) Subject to subsection (a), a charter school or cyber charter school may limit
admission to a particular grade level or areas of concentration of the school such
as mathematics, science or the arts. A charter school or cyber charter school may
establish reasonable criteria to evaluate prospective students which shall be
outlined in the school charter.
(c) A charter school or cyber charter school may not discriminate in its admission
policies or practices on the basis of intellectual ability. Admission criteria may
not include measures of achievement or aptitude.
22 Pa. Code §711.7.
17
Act of July 17, 1961, P.L. 776, as amended, 24 P.S. §§5001-5010. Section 4 of the
Pennsylvania Fair Educational Opportunities Act states, in relevant part, as follows:
(a) Except as provided in section 9, it shall be an unfair educational practice for
an educational institution--
(1) To exclude or limit, or otherwise discriminate, because of race,
religion, color, ancestry, national origin, sex, handicap or
disability, against any student or students seeking admission as
students to such institutions: Provided, That it shall not be unfair
educational practice for any educational institution to use criteria
(Footnote continued on the next page . . .)
12
required’” on the pre-enrollment form. R.R. 1764. It concluded that the requested
information served “no legitimate purpose at the pre-enrollment phase.” Id.18
State Charter School Appeal Board
Provident appealed to the Appeal Board.19 After a de novo review of
the record evidence and law, the Appeal Board reversed the School District’s
denial of Provident’s application for a charter. The Appeal Board concluded that
Provident’s application satisfied the requirements of the Charter School Law.20
(continued . . .)
other than race, religion, color, ancestry, national origin, sex,
handicap or disability in the admission of students.
(2) To make any written or oral inquiry prior to admission
concerning or designed to elicit information as to the race, religion,
color, ancestry, national origin, sex, handicap or disability of a
student seeking admission to such institution.
24 P.S. §5004(a)(1),(2).
18
The Appeal Board reversed the School District’s findings regarding Provident’s suspension
and expulsion procedure, professional-development plan, curriculum and extracurricular-
activities documentation. However, the School District has not appealed these rulings of the
Appeal Board.
19
Provident fulfilled the signature-petition process required by Section 1717-A(i)(2) of the
Charter School Law, which states, in relevant part, as follows:
In order for a charter school applicant to be eligible to appeal the denial of a
charter by the local board of directors, the applicant must obtain the signatures of
at least two per centum of the residents of the school district or of one thousand
(1,000) residents, whichever is less, who are over eighteen (18) years of age.
24 P.S. §17-1717-A(i)(2). In August 2014, the Court of Common Pleas of Allegheny County
entered a consent order declaring that Provident had submitted a petition with over 1,000 valid
signatures and could file its appeal with the Appeal Board.
20
Section 1717-A(i)(6) of the Charter School Law sets forth the Appeal Board’s review as
follows:
In any appeal, the decision made by the local board of directors shall be reviewed
by the appeal board on the record as certified by the local board of directors. The
appeal board shall give due consideration to the findings of the local board of
directors and specifically articulate its reasons for agreeing or disagreeing with
(Footnote continued on the next page . . .)
13
First, with respect to community support, the Appeal Board explained
that an applicant must show a “reasonable amount of support in the aggregate”
from teachers, parents, students and other community members. Appeal Board
Adjudication at 25 (quoting In re Independence Charter School Initiative, CAB
Docket No. 2000-2). Provident did this with 60 letters of support of the initial and
revised applications; 100 petition signatures from residents within a 4-block radius
of the school site offered in the revised application; and the statements of 20
individuals at the first public hearing coupled with statements from an additional
four people at the second public hearing. Appeal Board Adjudication at 25. The
Appeal Board rejected the School District’s contrary conclusion.21
Second, with respect to Provident’s ability to meet the needs of all
students, the Appeal Board explained that an applicant satisfies this duty when it
provides “a roadmap to the school’s operation, goals, teaching strategies and
learning methodology.”22 Appeal Board Adjudication at 26 (quoting Thurgood
(continued . . .)
those findings in its written decision. The appeal board shall have the discretion
to allow the local board of directors and the charter school applicant to
supplement the record if the supplemental information was previously
unavailable.
24 P.S. §17-1717-A(i)(6). The Appeal Board “must apply a de novo standard of review when
entertaining appeals from a District Board’s denial of a charter school application.” West
Chester Area School District v. Collegium Charter School, 812 A.2d 1172, 1180 (Pa. 2002).
21
Notably, Provident supplemented the record before the Appeal Board by providing a letter of
support dated September 15, 2014, authored by Anthony Benvin, Ph.D., on behalf of the Board
of Directors of Troy Hill Citizens, Inc., a 40-year-old non-profit, community-development
corporation.
22
See Section 1717-A(e)(2)(ii) of the Charter School Law, 24 P.S. §17-1717-A(e)(2)(ii)
(authorizing a local board of school directors to evaluate an application for a charter based on
“[t]he capability of the charter school applicant, in terms of support and planning, to provide
comprehensive learning experiences to students pursuant to the adopted charter.”).
14
Marshall Academy Charter School, CAB Docket No. 2001-05). It did not matter
that Provident’s application did not include a written policy for screening students
for Child Find because the Charter School Law does not require this. Noting that
Provident’s application included information for transitioning students with
disabilities to a traditional classroom, the Appeal Board found that Provident “is
prepared to meet the needs of potential new students, including students with
disabilities and English language learners” and that the curriculum was in all ways
sufficient. Appeal Board Adjudication at 27.
Third, with respect to the expanded choices requirement, the Appeal
Board explained that the General Assembly intended charter schools to
increase learning opportunities for all pupils, encourage the use
of different and innovative teaching methods, create new
professional opportunities for teachers, and provide parents and
pupils with expanded choices in the types of educational
opportunities that are available within the public school system.
Appeal Board Adjudication at 28. The Appeal Board explained that a charter
school must show differences, not a totally novel program, to satisfy the expanded
choices requirement. Provident’s revised application detailed those differences
that included, inter alia, individualized instruction, a 6:1 student ratio and the use
of the Tae Kwon Do program to foster self-discipline, self-respect, and self-
defense. R.R. 645-46, 963. The Appeal Board concluded that Provident’s
innovative learning environment was distinct from what was available in the
School District.
Fourth, with respect to the involvement of community groups in the
school planning process, the Appeal Board rejected the School District’s holding
that Section 1719-A(8) of the Charter School Law required the production of
15
agreements, contracts or memoranda of understanding with community groups.
Rather, the applicant need only set forth the information mandated by the Charter
School Law, i.e., information on how community groups will be involved in the
planning process. Provident’s revised application did so. It detailed involvement
of parents in the development of the charter school; partnerships with local,
statewide, and national organizations; and identified businesses and community
groups with which it will partner.
Finally, with regard to Provident’s admission policy, the Appeal
Board noted that Provident’s revised application eliminated its original plan to
limit enrollment to children with dyslexia. Instead, Provident will open its school
to all children, regardless of whether they have dyslexia. The question on
Provident’s pre-enrollment form about special needs was sought for holistic
purposes, i.e., to enable it to prepare an individualized program, and not to
discriminate. The Appeal Board noted that under Central Dauphin School District
v. Founding Coalition, Infinity Charter School, 847 A.2d 195 (Pa. Cmwlth. 2004),
a charter school may focus on a targeted group of students so long as its doors are
open to all.
In accordance with these findings, the Appeal Board granted
Provident’s appeal and ordered the issuance of a charter to Provident. The School
District then petitioned for this Court’s review.23
23
Appellate review of an Appeal Board adjudication considers whether constitutional rights were
violated, whether errors of law were committed, or whether the decision is not supported by
substantial evidence. Ronald H. Brown Charter School v. Harrisburg City School District, 928
A.2d 1145, 1147 n.6 (Pa. Cmwlth. 2007). “Substantial evidence” is defined as “relevant
evidence that a reasonable mind might accept as adequate to support a conclusion.” Carbondale
Area School District v. Fell Charter School, 829 A.2d 400, 405 (Pa. Cmwlth. 2003).
16
Petition for Review
On appeal, the School District challenges each of the Appeal Board’s
conclusions enumerated above. It contends that they are not supported by the
record evidence and that the Appeal Board erred because it did not specifically
articulate its reasons for each determination, as required by Section 1717-A(i)(6) of
the Charter School Law.24 We address the School District’s arguments seriatim.
We begin with the issue of sustainable support. An applicant for a
charter must show “demonstrated, sustainable support for the charter school plan
by teachers, parents, other community members and students, including comments
received at the public hearing….” 24 P.S. §17-1717-A(e)(2)(i). In addressing that
standard, we have explained that:
In determining whether an application has established
demonstrated, sustainable support, we previously stated our
agreement with the [Appeal Board] that such support “is to be
measured in the aggregate and not by individual categories” and
24
Section 1717-A(i)(6) states:
In any appeal, the decision made by the local board of directors shall be reviewed
by the appeal board on the record as certified by the local board of directors. The
appeal board shall give due consideration to the findings of the local board of
directors and specifically articulate its reasons for agreeing or disagreeing with
those findings in its written decision. The appeal board shall have the discretion
to allow the local board of directors and the charter school applicant to
supplement the record if the supplemental information was previously
unavailable.
24 P.S. §17-1717-A(i)(6) (emphasis added).
Because a school district has a financial interest in the outcome of a charter grant or
denial, “the minimum requirements of due process require that the charter school applicant have
a neutral fact finder in the [Appeal Board].” West Chester Area School District v. Collegium
Charter School, 812 A.2d 1172, 1181 (Pa. 2002). The Appeal Board “must apply a de novo
standard of review when entertaining appeals from a District Board’s denial of a charter school
application.” Id. at 1180.
17
concluded that “[f]ailure to demonstrate strong support in any
one category is not necessarily fatal to [the] charter school
application.”
Carbondale Area School District v. Fell Charter School, 829 A.2d 400, 405 (Pa.
Cmwlth. 2003) (quoting Brackbill v. Ron Brown Charter School, 777 A.2d 131,
138 (Pa. Cmwlth. 2001)). Although an application must show that “the charter
school enjoys reasonably sufficient support from the community,” it need not
demonstrate a threshold level of support among each of the discrete groups, i.e.,
teachers, parents, students and community members. Brackbill, 777 A.2d at 138.
The School District contends that the letters of support offered by
Provident were form letters and vague on whether they supported Provident or
simply the concept of a school for children with dyslexia. The School District
contends that Provident was required to document specific requests for enrollment
information, as well as commitments for contributions from foundations,
businesses and elected officials. We disagree.
That many of the letters of support were form letters is of no moment.
It is the content of the letters that is significant. The School District is correct that
few of the letters express an intent by the writer to enroll children in Provident.
Nevertheless, the letters specifically support Provident, as opposed to the abstract
concept of a school for dyslexic children. Likewise, the petition is specific, i.e.,
that the signatories “support the establishment of Provident Charter School for
Children with Dyslexia in Pittsburgh[,] PA.” R.R. 929940 (emphasis added).
In essence, the School District seeks to impose requirements not
found in Section 1717-A(e)(2)(i) of the Charter School Law, i.e., requests for
enrollment information, pre-enrollments, contributions from local businesses and
letters of support from businesses, foundations or local officials. This burden is
18
not in the statute, and is unrealistic to expect before a school has a charter. In any
case, as we have explained, community support is “not [to be measured] by
individual categories.” Carbondale Area School District, 829 A.2d at 405. Rather,
Provident’s compliance with Section 1717-A(e)(2)(i) of the Charter School Law is
determined by reviewing the evidence it presented in the aggregate. Carbondale
Area School District, 829 A.2d at 405.
Provident supplied ample support from the community, as was found
by the Appeal Board, in the form of multiple petition signatures from individuals
residing within a 4-block radius of Provident’s proposed site; letters from parents,
educators and a student; and appearances at two public hearings.25 In short, the
Appeal Board’s finding that Provident demonstrated sustainable support is
supported by substantial evidence. See School District of the City of York v.
Lincoln-Edison Charter School, 772 A.2d 1045, 1049 (Pa. Cmwlth. 2001) (holding
that “nothing establishe[d] that [the applicant] did not have the support as required
under Section 1717-A(b)(2) of the [Charter School] Law” when it submitted the
requisite number of petition signatures).
The School District also challenges the Appeal Board’s conclusion
that Provident demonstrated sufficient community support by contending that the
Appeal Board did not specify its disagreement with the School District’s contrary
conclusion. Section 1717-A(i)(6) of the Charter School Law directs the Appeal
Board to consider a school district’s determination and, then, “specifically
articulate” its agreement or disagreement. 24 P.S. §17-1717-A(i)(6). “Specific
articulation” requires the Appeal Board to do more than recite jargon; its decision
25
Contrary to the School District’s assertion, Provident also submitted a letter from a local non-
profit corporation indicating support from the business community.
19
must provide guidance to the unsuccessful party regarding the deficiencies in its
reasoning. Community Service Leadership Development Charter School v.
Pittsburgh School District, 34 A.3d 919, 925 (Pa. Cmwlth. 2012).
Provident responds that the “specific articulation” standard in Section
1717-A(i)(6) was intended to assist charter school applicants, so that they can
prepare a new and satisfactory application. Otherwise, applicants will be forced to
“prepare and resubmit applications, using guess work as a guide.” Community
Service Leadership Development Charter School, 34 A.3d at 924. Provident
contends that the standard makes no sense where, as here, the Appeal Board has
reversed a school district. We disagree. Section 1717-A(i)(6) of the Charter
School Law does not limit the standard to adjudications adverse to charter
applicants, and we reject Provident’s argument in this regard.
However, the School District makes too much of the phrase
“specifically articulate its reasons for agreeing or disagreeing” with the School
District. 24 P.S. §17-1717-A(i)(6). The Appeal Board issued a 38-page
adjudication with numerous findings of fact, conclusions of law and lengthy
discussion. The Appeal Board reversed the School District because it rejected the
School District’s construction and application of the statute. For the most part, the
Appeal Board held that the quantum of explanation and documentation submitted
by Provident was sufficient to satisfy the statute. The Appeal Board’s explanations
did not leave the School District “guessing.”
On community support, for example, the Appeal Board explained its
disagreement with the School District as follows:
In both the Original and Revised Application combined,
Provident provided approximately sixty (60) letters of support
for a charter school that would meet the needs of children with
20
dyslexia. The Revised Application contains over 100 signatures
on a petition from residents within a four-block radius of the
proposed school which states that the petition is to support the
establishment of Provident Charter School for Children with
Dyslexia in Pittsburgh. At the first public hearing, twenty (20)
people spoke in favor of Provident, five (5) of whom were
associated with Provident. At the second public hearing on the
Revised Application, seven (7) people spoke in favor of
Provident, three (3) of whom had spoken at the first public
meeting, and some of whom were associated with Provident….
After a review of the record, [the Appeal Board] disagrees with
the District Board’s findings. Provident gathered support from
parents, students, educators, and other professionals.
Additionally, that support was shown through numerous
signature petitions, letters of support, and at the public hearings.
Appeal Board Adjudication at 25-26 (emphasis added). The Appeal Board
sufficiently explained its disagreement with the School District’s contrary
conclusion on community support. Notably, there were no factual disputes on this
point. The Appeal Board, reviewing Provident’s application de novo, found it
sufficient, i.e., the quantum of materials presented demonstrated community
support. There is nothing more to say by way of explanation.
Next, the School District contends that the Appeal Board’s finding
that Provident will provide parents and pupils with expanded choices was not
supported by substantial evidence. The School District contends that “[s]tudents in
Pittsburgh Public Schools have more opportunities and choice than that which is
being proposed by Provident, and there is no evidence of significant uniqueness to
Provident’s programs.” School District Brief at 30.
Section 1702-A(3) of the Charter School Law seeks “to establish and
maintain schools that operate independently from the existing school district
structure” in order to “[e]ncourage the use of different and innovative teaching
21
methods.” 24 P.S. §17-1702-A(3). To this end, charter school applicants must
provide information about “[t]he mission and education goals of the charter school,
the curriculum to be offered and the methods of assessing whether students are
meeting educational goals.” Section 1719-A(5) of the Charter School Law, 24 P.S.
§17-1719-A(5). To satisfy this burden, a proposed charter school must establish
that it “offers a learning environment that is unique and different from that in the
District’s public schools.” Montour School District v. Propel Charter School-
Montour, 889 A.2d 682, 688 (Pa. Cmwlth. 2006). Even if there are similarities
between a proposed charter school and public schools, an applicant will satisfy
“the [Charter School Law] when there is substantial evidence of uniqueness.” Id.
In its revised application, Provident detailed that its educational
program will use “multi-sensory instructional methods and individual learning
plans,” with “specially designed instruction for students with dyslexia that will
intensively and specifically address their individual needs at their own instructional
level.” R.R. 644. Provident submitted an extensive curriculum, hundreds of pages
long, and identified its unique features, which were summarized by the Appeal
Board. These features include, inter alia, teacher looping; the Orton-Gillingham
approach to language arts; individualized, targeted instruction; the study of Spanish
and Latin; a 6:1 student to adult ratio and a Tae Kwon Do program to develop self-
discipline. R.R. 645-46, 963. The Appeal Board rejected the School District’s
argument that it already offered many of these features. It explained:
The Revised Application describes a learning environment that
is unique and different from that in the District’s public schools,
particularly with respect to students with dyslexia and other
language-based disabilities. The fact that the District has some
programs for students with dyslexia utilizing methods similar to
those outlined by Provident is irrelevant to the application
22
review process. The record establishes that the educational
program for students with dyslexia, as described by the Revised
Application, is innovative and distinctive from the District.
Appeal Board Adjudication at 30 (emphasis added). The Appeal Board then
identified the “innovative and distinctive” features of Provident’s program. Appeal
Board Adjudication at 29-30. That Provident intends to offer some programs
similar to those offered by the School District matters not. Montour School
District, 889 A.2d at 688.26 Any charter school will be similar to other public
schools because all public schools have to meet the Commonwealth’s educational
requirements. No charter school can be completely unique.
The School District contends that the Appeal Board’s adjudication did
not account for the fact that “there is even less choice for students who would
attend Provident than what students elsewhere in the District enjoy.” School
District Brief at 37. There is no record evidence to substantiate this claim. The
School District did not supplement the record before the Appeal Board or provide
any evidence about its programs. The School District cannot now complain that
the Appeal Board did not consider evidence not presented to it.27
26
The Appeal Board detailed each educational choice and opportunity which Provident proposed
and compared them to those the School District claimed (without offering any evidence) that it
offered in its denial. The Appeal Board also acknowledged that some of the programs offered
were similar to those of the School District, but others were unique.
27
We decline to consider the evidence the School District has set forth in its brief regarding the
programming in its public schools, which is de hors the record. Despite the ability to supplement
the record before the Appeal Board, the School District did not do so. Because statements in
briefs do not constitute evidence of record and were not before the Appeal Board when it
rendered its decision, we will not consider them. See Erie Indemnity Co. v. Coal Operators
Casualty Co., 272 A.2d 465, 46667 (Pa. 1971) (“Apparently, the court took into consideration
facts alleged in the briefs, but briefs are not part of the record, and the court may not consider
facts not established by the record.” (footnotes omitted)).
23
The School District also argues that after Provident revised its
admission policy, it had to show that it could meet the needs of children without
dyslexia. In this argument, the School District invokes Section 1702-A(2) of the
Charter School Law.28 However, the School District’s denial was based upon
Section 1717-A(e)(2)(ii) of the Charter School Law.29 Because the School District
did not cite Section 1702-A(2) in its denial of Provident’s application (or before
the Appeal Board), it cannot be asserted for the first time before this Court. See
Sharp Equipment Co. v. Unemployment Compensation Board of Review, 808 A.2d
1019, 1026 (Pa. Cmwlth. 2002) (“The litigant must preserve the issue at the
administrative agency hearing in order to obtain judicial review.”). In short, the
School District waived this argument.30
The School District next argues that Provident offered “only an
aspirational claim that Provident intends to involve [community] groups” in the
planning process. School District Brief at 43. The School District no longer
argues that an applicant is required to attach agreements, contracts or memoranda
of understanding to the application but states that, regardless, Provident has not
made a threshold showing because its statement of intent was not specific. We
disagree.
28
24 P.S. §17-1702-A(2) (stating legislative intent that charter schools “[i]ncrease learning
opportunities for all pupils”).
29
The petition for review states, “The District based its denial on deficiencies in the following
areas: … The applicant failed to demonstrate that it is prepared to meet the needs of all students,
[sic] (pursuant to 24 P.S. § 17-1717-A(e)(2)(ii)).” Petition for Review, ¶8(e).
30
Likewise, because the Appeal Board was under no obligation to specifically articulate how
Provident will increase learning opportunities for all pupils, and because this challenge was not
presented to it, we decline to find its decision deficient in this respect.
24
Section 1719-A(8) of the Charter School Law requires an applicant to
provide “[i]nformation on the manner in which community groups will be involved
in the charter school planning process.” 24 P.S. §17-1719-A(8). The Appeal
Board found that many key individuals involved with Provident are actively
involved with relevant community groups, i.e., those who advocate for children
with learning challenges. Appeal Board Adjudication at 10, Finding of Fact, ¶32.
As to community involvement, the Appeal Board found in Provident’s revised
application that it
intends to involve parents and guardians of prospective students
in the development of Provident, that it intends to initiate
partnerships with local, statewide and national organizations to
promote best practices based on evidence, expertise and
experience, and that it intends to identify business partners or
community groups with which it can partner.
Appeal Board Adjudication at 33. The Appeal Board concluded that Provident’s
information was sufficient.
Section 1719-A(8) does not require written agreements or present
involvement of community groups. Rather, it requests only general, forward-
looking information “on the manner in which” the community “will be involved”
in school planning. 24 P.S. §17-1719-A(8) (emphasis added). Because there is an
inherent level of flexibility in Section 1719-A(8), we defer to the Board’s
interpretation and application of the provision. See, e.g., Packer v. Bureau of
Professional and Occupational Affairs, 99 A.3d 965, 969 (Pa. Cmwlth. 2014),
petition for allowance of appeal denied, 109 A.3d 680 (Pa. 2015) (explaining that
25
courts should defer to the interpretation of an unclear statute given by the agency
vested with its enforcement).31
It is unrealistic to expect a charter school applicant to have contracts
with community groups before the school holds a charter. This Court addressed a
similar situation in Central Dauphin School District v. Founding Coalition of the
Infinity Charter School, 847 A.2d 195 (Pa. Cmwlth.) (en banc), petition for
allowance of appeal denied, 860 A.2d 491 (Pa. 2004). At issue in that case was
the Charter School Law’s requirement that a charter school applicant name the
proposed faculty of the charter school as well as include a criminal history report
and an official child abuse clearance for all employees who will have direct contact
with students. See Section 1719-A(13), (15) and (16), 24 P.S. §17-1719-
A(13),(15),(16). Infinity submitted this specific information for two key
individuals and included a description of the job qualifications for the other staff
positions. This Court found the submitted information to be sufficient, agreeing
with the following analysis supplied by the Appeal Board:
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 [Infinity] in its application was appropriate
and compliant with the [Charter School] Law. Therefore,
[Infinity’s] failure to provide specific names and clearances for
the school’s faculty and staff was not a proper basis for [the
school district’s] denial of its charter application.
31
The dissent gives no weight to the Appeal Board’s judgment about the type and quantum of
materials needed to satisfy the requirements for a charter school application. Instead, the dissent
construes Section 1719-A(8) to require Provident to “take some identifiable action” to partner
with community groups. Dissent slip op. at 4 (emphasis original). This vague standard offers no
real guidance to applicants, and it is not a standard expressed in the Charter School Law.
26
Infinity Charter School, 847 A.2d at 204.
This situation is no different. At the application stage, Provident’s
statement of intent and manner for involving community groups is all that is
required by Section 1719-A(8). The Appeal Board did not err in concluding that
the information provided by Provident on community involvement was legally
sufficient.32
Finally, the School District asserts that the Appeal Board erred in
granting a charter to Provident because its admission policy is discriminatory.33 In
addition to challenging the pre-enrollment form, the School District objects to
Provident’s requests for information from parents about their plans for after-school
programs and their interest in Provident. The School District also challenges
Provident’s requirement that parents go through orientation, arguing that the
conduct of a child’s parent or guardian is not a charter school’s concern. However,
the only issue that has been preserved for this appeal is whether the pre-enrollment
form is discriminatory. See Sharp Equipment Co., 808 A.2d at 1026.
The School District claims that the pre-enrollment form violates
Section 4(a)(2) of the Pennsylvania Fair Educational Opportunities Act because it
asks whether the applicant needs special programs. 24 P.S. §5004(a)(2).34
According to the School District, this question will permit Provident to
discriminate in violation of law.
32
Further, the Appeal Board adequately explained its disagreement with the School District’s
conclusion with respect to community involvement in Provident, i.e., that the statute does not
require actual agreement but only an identification of how it will involve community groups.
33
The Appeal Board did not address the School District’s conclusion that Provident’s admission
policy was invalid under a regulation at 22 Pa. Code §711.7. However, the School District did
not pursue this issue before this Court.
34
The text of Section 4(a)(2) is set forth infra.
27
Provident’s proposed pre-enrollment form requests “whether special
programs are required.” Appeal Board Adjudication at 13, Finding of Fact, ¶42.
The Appeal Board found that the purpose of the question was to gather information
that Provident could use to be “better prepared to address and work with each
student’s specific educational needs” and not to discriminate. Appeal Board
Adjudication at 35, n.24.
The stated purpose of the Pennsylvania Fair Educational
Opportunities Act is to provide “equal opportunities for education.” Section 2(a)
of the Act, 24 P.S. §5002(a). Section 4(a)(1) prohibits schools from engaging in
unfair educational practices, which includes “exclud[ing] or limit[ing], or
otherwise discriminat[ing]” in the admission of students on the basis of, inter alia,
disability. 24 P.S. §5004(a)(1).35 It is in this context that schools are prohibited
from
mak[ing] any written or oral inquiry prior to admission
concerning or designed to elicit information as to the race,
35
Section 4 states in relevant part, as follows:
(a) Except as provided in section 9, it shall be an unfair educational practice for
an educational institution--
(1) To exclude or limit, or otherwise discriminate, because of race,
religion, color, ancestry, national origin, sex, handicap or
disability, against any student or students seeking admission as
students to such institutions: Provided, That it shall not be unfair
educational practice for any educational institution to use criteria
other than race, religion, color, ancestry, national origin, sex,
handicap or disability in the admission of students.
(2) To make any written or oral inquiry prior to admission
concerning or designed to elicit information as to the race, religion,
color, ancestry, national origin, sex, handicap or disability of a
student seeking admission to such institution.
24 P.S. §5004(a)(1),(2) (emphasis added).
28
religion, color, ancestry, national origin, sex, handicap or
disability of a student seeking admission to such institution.
24 P.S. §5004(a)(2) (emphasis added).
The School District suggests that Section 4(a)(2) imposes a blanket
prohibition against asking the question “whether special programs are required.”
We reject this construction of the statute. Schools may not elicit information to
“exclude or limit, or otherwise discriminate” against prospective students with
disabilities or belonging to other protected classes. 24 P.S. §5004(a)(1) (emphasis
added). Notably, Provident seeks to include, not “exclude or limit,” students with
a learning disability. Indeed, Provident will be looking to enroll students with
dyslexia and other language-based learning disabilities. The pre-enrollment
question will assist Provident’s preparation of the special instructional programs it
will offer. The Appeal Board so found, as a matter of fact, and this finding
supports the conclusion that the question on the pre-enrollment form does not
violate Section 4(a) of the Pennsylvania Fair Educational Opportunities Act. 36 The
Appeal Board offered a specific and cogent explanation of its disagreement with
the School District on this point:
Because the information [whether special programs are
required] will not be used to determine eligibility of admission,
[the Appeal Board] finds that gathering information to be better
prepared for the student population is permissible.
36
The dissent contends that Provident’s admission policy is discriminatory. The dissent ignores
the Appeal Board’s relevant factual findings. It found that Provident’s enrollment is open to all
students on a first-come, first-served basis and by lottery if there are too many applicants. The
Appeal Board also found that the question about special programs will be used to prepare for
each student’s special requirements, not to discriminate. The Appeal Board’s factual findings
are conclusive and cannot be overturned by this Court.
29
Appeal Board Adjudication at 35, n.24.37
Conclusion
In sum, the Appeal Board did not err in holding that Provident met its
burden of satisfying the criteria for a charter. Provident demonstrated that it has
sustainable support; will provide parents and pupils with expanded educational
choices; will provide comprehensive learning experiences to students; and
explained the manner in which community groups will be involved in its planning
process. Finally, Provident’s admission policy complies with applicable law.
Further, the Appeal Board adequately articulated the reasons why it disagreed with
the School Board’s contrary conclusion with regard to each of these
determinations.
Accordingly, the order of the Appeal Board is affirmed.
______________________________
MARY HANNAH LEAVITT, Judge
37
Further, even if the Pennsylvania Fair Educational Opportunities Act prohibited Provident
from asking about a student applicant’s need for special programs for any purpose, Provident’s
charter application would not be denied. Provident agreed to remove the question from its pre-
enrollment form in the event this Court would conclude that the question is legally
impermissible. Provident’s Brief at 40 n.8. At most, then, a remand to the Appeal Board to
approve the charter application with the condition that Provident remove the question from the
pre-enrollment form would have been necessitated.
30
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
School District of Pittsburgh, :
Petitioner :
:
v. : No. 598 C.D. 2015
:
Provident Charter School For :
Children With Dyslexia, :
Respondent :
ORDER
AND NOW, this 26th day of February, 2016, the order of the State
Charter School Appeal Board dated March 17, 2015, in the above-captioned matter
granting a charter to Provident Charter School for Children with Dyslexia is hereby
AFFIRMED.
______________________________
MARY HANNAH LEAVITT, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
School District of Pittsburgh, :
Petitioner
:
:
v. :
:
Provident Charter School For :
Children With Dyslexia, : No. 598 C.D. 2015
Respondent : Submitted: December 9, 2015
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
DISSENTING OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: February 26, 2016
The central issue in this case is whether Provident Charter School for
Children With Dyslexia’s (Provident) revised application to establish a charter
school satisfied the Charter School Law (CSL).1 While I agree with the majority
that Provident established demonstrated, sustainable support under the loose
standard that we have established,2 expanded choices in education opportunities,
1
Act of March 10, 1949, P.L. 30, added by Section 1 of the Act of June 19, 1997, P.L.
225, as amended, 24 P.S. §§17-1701-A17-1751-A.
2
A charter school applicant, among other things, is required to prove “demonstrated,
sustainable support” for the charter school plan by teachers, parents, community members and
students as required by Section 1717-A(e)(2)(i) of the CSL, 24 P.S. §17-1717-A(e)(2)(i). In
(Footnote continued on next page…)
and its capability to provide comprehensive learning experiences to students, at
least under the lenient standards we have enunciated in the past, I disagree with the
majority’s decision to allow Provident to “slide” on other mandatory provisions set
forth in the CSL. Requiring strict compliance after all will insure that Charter
School Boards and private management companies hired to operate their schools
have properly met the standard set forth in the CSL for the protection of students
entrusted to those entities.
Specifically, for the reasons that follow, I would find that: (1)
Provident offered insufficient evidence of the manner in which community groups
will be involved in its planning process; and (2) Provident’s admission policy
violates applicable law. Because an application to establish a charter school must
satisfy all the criteria mandated by Section 1719-A of the CSL, 24 P.S. §17-1719-
(continued…)
determining whether an application has established demonstrated, sustainable support, we have
given great leeway to the Board by saying that, notwithstanding that support has to be in all
areas, support “is to be measured in the aggregate and not by individual categories” and
concluded that “[f]ailure to demonstrate strong support in any one category is not necessarily
fatal to charter school application.” Brackbill v. Ron Brown Charter School, 777 A.2d 131, 138
(Pa. Cmwlth. 2001) (quoting and approving the CAB’s interpretation proffered in that case).
In this case, the evidence of support is, for the most part, from letters or names on a
petition that support the generalized notion that a charter school for dyslexic children is a good
idea. In Carbondale Area School Dist. v. Fell Charter School, 829 A.2d 400 (Pa. Cmwlth.
2003), a decision that I would reverse, we seemed to indicate that generalized petitions of
support was sufficient to meet this standard. However, by allowing generalized letters of support
that can be obtained outside a supermarket on a Saturday morning to meet this provision, we are
reading out the requirement that the support has to be “sustainable” that the General Assembly
required before an applicant could receive a charter.
DRP - 2
A, I would reverse the Charter Appeal Board’s (CAB) order granting a charter to
Provident.
I.
With respect to the requirement in Section 1719-A(8) of the CSL that
applicants provide “[i]nformation on the manner in which community groups will
be involved in the charter school planning process,” 24 P.S. §17-1719-A(8), I find
Provident’s application deficient.
Provident specified that its coalition and board of directors consists of
representatives associated with the following organizations: the International
Dyslexia Association, the Pittsburgh Branch of the International Dyslexia
Association, the Masonic Temple’s Total Learning Center, The Watson Institute
and The Laughlin Center. While personal associations with these groups may be
some indicia that they will have involvement in Provident’s planning, there is
nothing of record to indicate that the coalition or board members participate in
these organizations in any type of representative capacity. Therefore, without
more, their associations are largely irrelevant to determining if Provident has
submitted evidence regarding its proposed partnerships.
Further, I agree with the School District of Pittsburgh that Provident’s
statements of generalized intent are too vague to provide guidance regarding how it
will integrate community partnerships into the school to enhance and support the
learning environment. For example, Provident’s assertion that it “will work to
engage and involve parents, families and community members to promote
DRP - 3
collaboration, communication and conflict resolution,” does little aside from
restating the general requirement that community groups must be involved in
Provident’s planning. (Reproduced Record at 970a.) Although Provident does
detail some steps it will take to initiate these partnerships—i.e., notifying local
schools of its programs through letters, following up with personal phone calls,
inviting representatives to visit and tour, and identifying opportunities for
partnerships—it provides only speculation regarding what these partnerships will
actually consist of and with whom they will exist.
Section 1719-A(8) of the CSL, although flexible, requires more. It
does not request information regarding the steps charter schools plan to take to
identify opportunities for partnerships, but rather, seeks information regarding the
partnerships with community groups themselves. In other words, to satisfy this
provision, I would find it unnecessary for Provident to negotiate the terms of its
agreements with community partners, but it must take some identifiable action that
could lead to arrangements with community partners. The majority’s holding
provides no standards in this regard. Because the record is devoid of any
information regarding specific entities with which Provident seeks to partner and
any concrete methods for integrating community involvement above aspirational
goals, I find the CAB’s conclusion that Provident satisfied Section 1719-A(8) of
the CSL unsupported by substantial evidence.
II.
Regardless, Provident’s proposed admission policy and criteria for
evaluating the admission of students did not satisfy Section 1723-A(b)(1) of the
DRP - 4
CSL3 because it expressly violated the Pennsylvania Fair Educational
Opportunities Act4 insofar as Provident’s pre-enrollment form inquired “whether
special programs are required” because the requested information “serves no
legitimate purpose at the pre-enrollment phase.” (R.R. at 1764a.)
While Provident’s intentions with regard to its admissions policy may
be laudable in that it claims it seeks this information to better prepare for and serve
its student population, its pre-enrollment form does not comply with the express
language of Section 4(a)(2) of the Pennsylvania Fair Educational Opportunities
3
Pursuant to Section 1723-A(b)(1) of the CSL:
(b)(1) A charter school shall not discriminate in its admission
policies or practices on the basis of intellectual ability, except as
provided in paragraph (2), 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.
24 P.S. §17-1723-A(b)(1).
4
Act of July 17, 1961, P.L. 776, as amended, 24 P.S. §§50015010. Specifically,
Section 4(a)(2) of the Pennsylvania Fair Educational Opportunities Act states:
(a) Except as provided in section 9, it shall be an unfair educational
practice for an educational institution--
***
(2) To make any written or oral inquiry prior to admission
concerning or designed to elicit information as to the race, religion,
color, ancestry, national origin, sex, handicap or disability of a
student seeking admission to such institution.
24 P.S. §5004(a)(2).
DRP - 5
Act, which imposes a blanket prohibition on seeking such information pre-
admission and renders an institution’s reason for seeking such information
irrelevant. 24 P.S. §5004(a)(2). In interpreting Section 4(a)(2) to prohibit such
inquiries only if used for the purposes of discriminating, the majority conflates the
requirements of Sections 4(a)(1) and (2), each of which set forth separate
prohibitions, and suggests that the express language of Section 4(a)(2) be ignored
to further the purpose of the Pennsylvania Fair Educational Opportunities Act.
For good reason, Section 4(a) does not make the intent of a charter
school applicant relevant. Rather than directing the courts to discern the subjective
intent behind such inquiries, the General Assembly has outright banned them, a
prohibition that the majority excuses by saying that, while illegal, the Charter
School Board found that Provident really did not mean it. Moreover, regardless of
Provident’s intent, this inquiry does not serve student needs at the pre-enrollment
stage because applicants submitting the pre-enrollment form have not yet been
accepted for enrollment and, in fact, are not enrolling.
In this case, the pre-enrollment form specifically requests whether
special-needs programs are required. The information requested on the pre-
enrollment form is collected before a student’s admission and, therefore, Section
4(a)(2) of the Pennsylvania Fair Educational Opportunities Act applies, barring
such inquiries. 24 P.S. §5004(a)(2).
Accordingly, I would reverse the CAB’s findings that Provident
offered sufficient evidence of the manner in which community groups will be
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involved in its planning process and that its admission policy complies with
applicable law.
DAN PELLEGRINI, President Judge
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