IN RE PATERSON SCHOOL DISTRICT QSAC APPEAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1049-11T4

IN RE PATERSON SCHOOL DISTRICT

QSAC APPEAL.

____________________________

August 15, 2013

Submitted January 9, 2013 - Decided

Before Judges Sapp-Peterson and Nugent.

Onappeal fromthe New Jersey Department of Education,Commissioner of Education.

Kendal Coleman, P.C., attorney for appellant Paterson School District Board of Education.

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Department of Education, Commissioner of Education (Michelle Lyn Miller, Assistant Attorney General, of counsel; Diana C. Sierotowicz, Deputy Attorney General, on the brief).

PER CURIAM

In this appeal, the City of Paterson Public School District Advisory Board1 of Education ("the District") appeals from the September 21, 2011 decision of the Acting Commissioner, Department of Education (DOE), Christopher D. Cerf ("Commissioner"), declining to recommend the partial withdrawal of State intervention in the district, in accordance with the statutory authority accorded under N.J.S.A. 18A:7A-10 to -60. We affirm.

Pursuant to the 1987 "State Takeover" law, P.L. 1987, c. 398, the DOE assumed direct, day-to-day control over a number of school districts, including in 1991, the Paterson school district. In 2005 the Legislature enacted the Quality Single Accountability Continuum (QSAC), "an additional statutory measure [] designed to evaluate school district performance" as a means to ensure that the constitutional mandate of a thorough and efficient education is accomplished. See Abott v. Burke, 199 N.J. 140, 151 n.4 (2009).

Under QSAC, the Commissioner evaluates the effectiveness of all public school districts in five areas: (1) instruction and program; (2) personnel; (3) fiscal management; (4) operations; and (5) governance. N.J.S.A. 18A:7A 10. In addition to statutory requirements, regulations have been adopted to implement QSAC. N.J.A.C. 6A:30-1 to 30-9.

Pursuant to statute and regulations, the Commissioner undertakes a district review, at a minimum, every three years, but may also conduct interim reviews to assess a district's progress in meeting quality performance indicators. N.J.S.A. 18A:7A 11; N.J.A.C. 6A:30 5.6(b). A district achieving "80 percent to 100 percent of the quality performance indicators in each of the five key components of school district effectiveness" is considered to be a high performing district providing a thorough and efficient system of education. N.J.S.A. 18A:7A 14(a). On the other hand, a district achieving only 50 percent to 79 percent of the quality performance indicators in any of the five areas of evaluation must develop and implement an improvement plan to address any areas of deficiency. N.J.S.A. 18A:7A 14(b).

The Commissioner is required to evaluate a district's progress in implementing the plan every six months. Ibid. In any district achieving less than 50 percent of the quality performance indicators in fewer than five of the key areas, the Commissioner must direct an in-depth evaluation and improvement plan. N.J.S.A. 18A:7A-14c(1). Finally, where a district achieves less than 50 percent of the quality performance indicators in all five areas, an assessment of the deficiencies and areas of limited capacity within a district is required, as well as consideration of community conditions, which may have negatively impacted its overall performance. N.J.A.C. 6A:30-5.3(d).

Upon completion of the QSAC evaluation of the District, the Commissioner issued a final decision on September 21, 2011, which scored the District as follows: (1) 51% in fiscal management; (2) 53% in personnel; (3) 88% in governance; (4) 33% in instruction and programs; and (5) 70% in operations. Although the district scored 88% in governance, the Commissioner refused to recommend that a partial withdrawal of state takeover be initiated because the District had not demonstrated sustained and substantial progress. The Commissioner specifically noted:

[T]he [D]istrict's 2010 self-reported total graduation rate for the 2009-10 school year was 50.4%, far below the 80% graduation rate threshold set by the QSAC process. Moreover, even this number is overstated. Among students who start ninth grade in Paterson, 30.7% graduated as a result of passing the High School Assessment (HSPA), the standard exam for determining student achievement in reading, writing, and mathematics as specified in the New Jersey Core Curriculum Content Standards. An additional 30.7% of students graduated as a result of completing the Alternative High School Assessment (AHSA). Currently, 62.3% of the [D]istrict's students are below proficiency in language arts literacy (LAL) and 55% are below proficiency in math. These are unacceptably low.

Paterson's public schools are not serving children at the consistently high levels they deserve. Of the district's 39 Schools, 25 are in need of improvement (SINI) under No Child Left Behind criteria and 16 have been in SINI status for at least five years. At two high schools, more than half of students scored below proficiency in LAL, math or both. At Eastside High School, for example, 61.4% of students performed below proficiency in language arts literacy and 77.2% performed below math proficiency on the HSPA. At 27 elementary schools, more than half of students are below proficiency in LAL, math or both areas. At the Academy of Performing Arts Elementary School, 80.9% percent of students are below LAL proficiency and 79.9% below math proficiency on the NJASK.

The present appeal followed.

The District's primary argument on appeal is that the Commissioner's refusal to recommend partial withdrawal conflicts with the plain meaning, legislative intent and prior agency interpretations of QSAC. In addition, it is urged that the Commissioner's decision is arbitrary, unreasonable and not supported by the record.

Our approach to the disposition of this matter is informed by the limited scope of our review of final agency action, which we will not disturb absent evidence that the decision was arbitrary, capricious or unreasonable. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). Our intervention is constrained to "'those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)). To reach that determination, we query

(1) whether the agency's decision offends the State or Federal Constitution;

(2) whether the agency's action violates express or implied legislative policies;

(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(4) 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 211.]

The District argues that N.J.S.A. 18A:7A 15(d) requires the Commissioner to recommend the withdrawal of State intervention because the District scored greater than 80 percent in the areas of governance in the 2011 QSAC evaluations, the benchmark for measuring satisfactory performance in the area of governance. We disagree.

As we have explained, the QSAC requires the Commissioner to evaluate each public school district in five key areas of school district effectiveness. N.J.S.A. 18A:7A 10(a). N.J.S.A. 18A:7A 15(d) provides that "[i]f the district has successfully implemented the improvement plan and achieved sufficient progress in satisfying the performance indicators in one or more areas under intervention, the State shall withdraw from intervention in those areas[.]" (Emphasis added).

Thus, under the plain language of N.J.S.A. 18A:7A 15(d), the Commissioner is only required to initiate withdrawal of State intervention in an area of school district effectiveness where the district has both successfully implemented the improvement plan and has made sufficient progress in meeting the relevant quality performance indicators in one or more of the five areas.

"If the plain language [of a statute] leads to a clear and unambiguous result, then [the] court's interpretive process is over." Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 195 (2007) (citation omitted). It is not our task to "rewrite a plainly-written enactment of the Legislature [ ] or presume that the Legislature intended something other than that expressed by way of the plain language." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (alteration in original) (citation omitted). "We ascribe to the statutory words their ordinary meaning and significance[.]" Ibid. (citations omitted).

Here, the Commissioner acknowledged that the District achieved greater than 80% in governance. This accomplishment, while demonstrating sufficient progress in that area, does not mean that the district has "successfully implemented the improvement plan," an additional requirement plainly set forth in the statute. The Commissioner's decision not to recommend a partial withdrawal reflects consideration of the applicable regulatory factors, which are that there be: (1)"[e]vidence of sustained and substantial progress by the public school district"; and (2) "[s]ubstantial evidence that the public school district has adequate programs, policies and personnel in place and in operation to ensure that the demonstrated progress, with respect to the components of school district effectiveness under intervention, will be sustained." N.J.A.C. 6A:30 7.1(b). The Commissioner is accorded broad discretion in reaching his factual findings and we discern no basis to interfere with those findings, which we conclude are supported by substantial credible evidence in the record.

The District additionally argues that the Commissioner's September 21, 2011 decision is inconsistent with previous agency determinations, namely, the Newark and Jersey City school districts. We conclude this argument is without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E). We add the following brief comment.

Obviously, the Commissioner must engage in a fact-sensitive analysis for each school district subject to State intervention and QSAC. Other than the Newark and Jersey City districts similarly achieving a greater than 80% score in governance, the District presents no other facts from which it could reasonably be concluded that the factual circumstances in those districts so mirror the District that we must find that the inconsistent recommendations reflect arbitrary, capricious and unreasonable action on the part of the Commissioner.

The factual findings of an administrative agency are binding on appeal if supported by sufficient credible evidence in the record. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). "[I]f substantial credible evidence supports an agency's conclusion, a court may not substitute its own judgment for the agency's even though the court might have reached a different result." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). Moreover, as a reviewing court, we "must defer to an agency's expertise and superior knowledge of a particular field." Ibid. Such deference is particularly appropriate when reviewing a final decision of the Commissioner.

There is no dispute as to the scores that the District has achieved in the QSAC evaluations. In 2007, the District achieved 11% in governance. In 2009, the governance score quadrupled to 44%. Finally, in 2010, the score doubled to 88%. While these scores reflect substantial progress, the scores do not necessarily reflect "sustained" progress. Based upon these scores alone, the Commissioner could reasonably refuse to recommend withdrawal of State intervention in the area of governance.

Additionally, the Commissioner's decision reflects consideration of other factors, including the District's self-reported graduation rate of 50.4%, which the Commissioner noted was "overstated" and "far below the 80% graduation rate threshold set by the QSAC process." The Commissioner also considered that twenty-five of the District's thirty-nine schools are in need of improvement under the No Child Left Behind2 criteria and that sixteen of those schools have been in that status for at least five years. The Commissioner further observed that more than 50% of students at the two high schools and twenty-seven of the elementary schools are below proficiency in language and mathematics. The Commissioner determined that these deficiencies also justified continued State intervention in the areas of governance.

We therefore conclude that, under N.J.S.A. 18A:7A 15(d), the Commissioner is not compelled to recommend withdrawal of State intervention in any area of school district governance merely because the district has achieved a score of 80 percent or more in the three-year QSAC evaluation. Rather, the Commissioner retains the discretion under the statute to determine whether the district has successfully implemented an improvement plan and in that regard has shown "sustained and substantial progress in the [] school district." N.J.A.C. 6A:30-7.1(b). Substantial, credible evidence in the record supports the Commissioner's decision. Therefore we are satisfied the Commissioner's decision was neither arbitrary nor unreasonable and we discern no basis to intervene and correct the agency's action.

Affirmed.

1 The district has functioned as an advisory board pursuant to N.J.S.A. 18A:7A 49(c), following State intervention. This status will continue until such time as the "district successfully meets the performance indicators for the governance component of school district effectiveness." Ibid. We are satisfied this status does confer standing upon the district whose status as advisory is dictated by continued State intervention. Thus, it possesses the requisite stake in the outcome of this matter, adverseness to the Commissioner's decision, and harm from the inability to exert local control over the thorough and efficient education of the district's students sufficient to confer standing. See In re Camden Cnty., 170 N.J. 439, 449 (2002) (holding that to possess standing "a party must present 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") (citing N.J. Chamber of Commerce v. N.J. Election Law Enforcement Comm'n, 82 N.J. 57, 67-69 (1980)).

2 The DOE is phasing out "No Child Left Behind."