IN THE MATTER OF THE PROPOSED QUEST ACADEMY CHARTER SCHOOL OF MONTCLAIR FOUNDERS GROUP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3005-10T1

IN THE MATTER OF THE

PROPOSED QUEST ACADEMY

CHARTER SCHOOL OF MONTCLAIR

FOUNDERS GROUP.

_______________________________________

May 22, 2012

Submitted March 20, 2012 Decided

Before Judges Messano and Yannotti.

On appeal from the New Jersey Department of Education.

Tracey Williams, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Commissioner of Education (Jennifer L. Campbell, Deputy Attorney General, on the brief).

PER CURIAM

Tracey Williams (Williams), a member of the Quest Academy Charter School of Montclair Founders Group (Quest), appeals from a final determination of the Acting Commissioner of Education (Commissioner), dated January 18, 2011, denying Quest's application for approval of a proposed charter high school in the Township of Montclair (Township). For the reasons that follow, we affirm.

In October 2010, Quest submitted an application to the Commissioner, seeking authorization to open a charter high school in the Township. It appears that Quest had previously submitted applications seeking approval of its proposed school, but those applications were found to be deficient. As required by N.J.S.A. 18A:36A-4(c), the application was provided to the Township's local school board of education for its review and recommendation.

The Department of Education (DOE) evaluated the application and advised Quest by letter dated December 6, 2010, that certain sections were incomplete, insufficient or unclear. The DOE noted its concerns regarding special populations, assessments, facilities, governance, and admissions. The DOE gave Quest Academy an opportunity to address these concerns by submitting addenda to the application.

In addition, Frank R. Alvarez, Ed.D. (Dr. Alvarez), the superintendent of the Township's schools, sent a letter dated December 6, 2010, to Acting Commissioner Rochelle Hendricks, commenting on Quest's application. Among other things, Dr. Alvarez stated that, based on Quest's enrollment assumptions, $2 million in funding would be diverted from the budget for the district's schools, which would be "devastating." Dr. Alvarez also said that Quest's application had conflicting information regarding course requirements, did not fully address New Jersey's revised high school graduation requirements, and failed to specify a process for curriculum development in the nine areas of New Jersey's core curriculum content standards.

On December 14, 2010, Williams submitted additional information to the DOE in support of its application. The DOE reviewed the information. The DOE evaluators also met with Quest representatives on January 3, 2011, to discuss the application. By letter dated January 18, 2011, the Acting Commissioner advised Quest that the application was denied.

On February 24, 2011, Williams filed a notice of appeal from the Acting Commissioner's decision. Thereafter, Carly Bolger (Bolger), Director of the DOE's Office of Charter Schools, filed pursuant to Rule 2:5-1(b) an amplification of the reasons for the denial of Quest's application.

Bolger noted that the proposed charter high school would be located in a small school district, which was presently served by only one high school and subject to a desegregation order. Bolger stated that the Acting Commissioner questioned Quest's ability to attract a sufficient number of students from the district, and was concerned that an additional high school "could undermine the prior success of the [d]istrict's integration efforts."

In addition, Bolger noted that Dr. Alvarez had recommended denial of Quest's application because it contained "multiple inaccuracies" and because it "misrepresented" the district's current program and the proposed charter school program. Bolger pointed out that Dr. Alvarez stated that the staffing plan for the charter school "did not fully provide for the extensive course offerings proposed" and failed to specify a process for curriculum development in nine of the State's core curriculum content standards. Dr. Alvarez stated that the proposed charter high school would have a negative impact upon the district's budget.

Bolger also noted that the Acting Commissioner had received "numerous unsolicited letters" from members of the community, who raised concerns as to the capability and qualifications of Quest's founders; the potential negative impact on the quality of programs and educational offerings at the district's schools as a result of the diversion of resources; the lack of community support for or interest in an additional high school; strong community support for the existing high school; and the lack of an adequate facility to house the proposed high school.

In addition, Bolger pointed out that the Acting Commissioner "was apprehensive" about Quest's educational plan. The DOT noted that Quest's plan incorporated "many different strategies, programs, and philosophies, but failed to present these varied ideas as a comprehensive and fully integrated educational school program." Bolger stated that, in particular, the goals and objectives in Quest's plan were weak.

Bolger further noted that a charter school applicant "must submit goals that are ambitious yet achievable, will be valid for the life of the charter, and are supported by measurable objectives." Bolger said that the goals identified in Quest's application failed to sufficiently fulfill these criteria. Bolger also said that the Acting Commissioner "found that the strategies presented by Quest were neither connected to, nor supportive of, the proposed educational program."

Moreover, Bolger stated that the Acting Commissioner was "troubled" by the "distance learning component" of Quest's proposed educational plan. Bolger noted that Quest had proposed a plan which "calls for some courses to be offered through distance learning, but fails to identify a specific distance learning model or to explain how that model would be implemented."

Bolger also stated that Quest's plan "failed to address either the reasons for incorporating distance learning or the criteria pursuant to which students would qualify for distance learning." Furthermore, Quest had not identified any "school-based supports that would be offered to assist students enrolled in distance learning."

Bolger additionally stated that the Acting Commissioner "found it disconcerting" that Quest had proposed an extended school day and year as an "integral strategy" but its proposed academic year only exceed the State's mandated minimum by a "mere" seven days. Bolger said that the Acting Commissioner also was concerned about the section of Quest's application devoted to technology:

This section calls for technology to play a significant role in Quest's educational program, serving as the medium for tests, quizzes, grades, and teacher-student correspondence. However, Quest offered minimal detail respecting the ways in which technology would be implemented and integrated in the overall educational program. The Commissioner found Quest's relatively short response for this section to lack the necessary detail to support such a significant element of the proposed school.

Bolger additionally stated that the Acting Commissioner "was dissatisfied with the overall quality of Quest's application." Bolger pointed out that the application had "poor organizational structure, which impeded the readers' ability to comprehend the proposed plans." She also said that the application "contained countless spelling, grammar, and typographical errors." She noted that, in some instances, "these problems were so extensive that the meaning of the section or idea was rendered unclear."

Bolger added that, in considering Quest's application, the Acting Commissioner had relied upon her own expertise with "stand alone charter high schools, which have proven to be among the most difficult schools to open and operate successfully." Bolger observed:

In particular, incoming charter high school students may arrive with significant deficiencies in reading and math. In addition, stand alone charter high schools face severe staffing limitations since their budget[s] must accommodate employment of teachers that are individually certified in each subject area. These schools also typically face challenges in meeting the various requirements for providing a comprehensive special education program. Furthermore, charter high school programs often lack extra-curricular activities or sports programs, which characteristically impedes the recruitment of high school students.

Bolger concluded by stating that the Acting Commissioner had determined that Quest's proposed school "did not have a high probability of success" and, accordingly, had denied its application.

In April 2011, Williams filed a motion to supplement the record with: an electronic mail transmission from the DOE to Quest scheduling a pre-decisional founders' meeting on its application (Exhibit A); the DOE's addenda review for Spirit Preparatory Charter School (Exhibit B); the DOE's expedited addenda review for Forest Hill Charter School (Exhibit C); the DOE's fiscal review for Forest Hills Charter School (Exhibit D); (3) the DOE's October 4, 2010 denial interview for Quest's application (Exhibit E); and the DOE's September 30, 2010 letters denying Quest's previous application (Exhibit F).

By order dated June 16, 2011, we granted the motion as to Exhibit A and reserved decision regarding Exhibits B to F, pending consideration of the merits of the appeal. We have decided to grant the reserved motion and supplement the record with Exhibits B to F.

On appeal, Williams argues that the Acting Commissioner's decision should be reversed because the Acting Commissioner erred by: (1) relying upon the "faulty" recommendations of the Montclair superintendent of schools in violation of N.J.S.A. 18A:36A-4(c); (2) relying upon seven opposition letters received from local residents opposing the proposed charter high school; (3) basing its decision on a forty-year-old desegregation order; (4) violating laws that protect students' and parents' choice to a fair and free public education under the Charter School Program Act of 1995 (CSPA), N.J.S.A. 18A:36A-1 to -18, and the federal No Child Left Behind Act (NCLBA), 20 U.S.C.A. 6316; (5) violating N.J.A.C. 6A:11-2.1(b) and wrongfully withholding public information protected by the Open Public Records Act, N.J.S.A. 47:1A-1 to -13, and (6) providing false and erroneous information and acting in a biased and discriminatory manner. We have carefully considered these arguments and conclude that they are without merit.

In the CSPA, the Legislature declared, among other things, that "the establishment of charter schools as part of this State's program of public education can assist in promoting comprehensive educational reform by providing a mechanism for the implementation of a variety of educational approaches which may not be available in the traditional public school classroom." N.J.S.A. 18A:36A-2.

The CSPA provides that an application to establish a charter school must be submitted to the State's Commissioner of Education, the local board of education, and in the case of a State-operated school district, the State superintendant. N.J.S.A. 18A:36A-4(c). The local board or State superintendent must review the application and forward a recommendation to the Commissioner. Ibid. The CSPA states, "[t]he Commissioner shall have final authority to grant or reject a charter application." Ibid.

In approving or disapproving a charter school application, the Commissioner does not act in a quasi-judicial capacity and therefore "need not provide the kind of formalized findings and conclusions necessary in the traditional contested case." Inre Charter SchoolApplication of Englewood, 320 N.J. Super. 174, 217 (App. Div. 1999) (citing East Windsor Reg'l Bd.of Educ. v. StateBoard of Educ., 172 N.J.Super. 547, 551-52 (App. Div. 1980)), affirmedas modified, 164 N.J. 316 (2000). Consequently, we do not review the Commissioner's decision "under the substantial-credible-evidence standard, but rather under the standard of whether the decision is arbitrary, capricious or unreasonable." Ibid. (citing East Windsor, supra, 172 N.J. Super. at 551-52).

Williams argues that the Commissioner erred by relying in part upon Dr. Alvarez's recommendation, which she says was based on the application it submitted in October 2009, rather than the application submitted in October 2010. Williams contends that Dr. Alvarez's claim that the proposed charter school would have a devastating effect on the district's budget was based on pure speculation. Williams also contends that many of the deficiencies noted by Dr. Alvarez were addressed in its revised application.

We disagree with these arguments. In the amplification of the reasons for the Acting Commissioner's decision, Bolger took note of the comments and concerns raised by Dr. Alvarez. Under the CSPA, the views of the local board of education or its superintendent are merely a recommendation. N.J.S.A. 18A:36A-4(b). Moreover, the Acting Commissioner denied Quest's application for numerous reasons, as indicated in the amplification of her decision. We do not believe the Acting Commissioner erred by considering Dr. Alvarez's concerns in reviewing Quest's application.

Williams further argues that the Acting Commissioner erred by considering seven unsolicited letters from members of the community opposing the application. According to Williams, five of the letters exaggerated the effect the proposed charter school would have on the district's budget, and two of the letters were "dishonest and deceitful." Williams maintains that the Acting Commissioner violated the CSPA by considering these letters.

Again, we disagree. There is nothing in the CSPA or the DOE's implementating regulations which preclude the Acting Commissioner from considering letters of concerned citizens in determining whether to grant or deny a charter school application. Moreover, the Acting Commissioner was capable of assessing the potential impact on the district's budget from the diversion of funds for the proposed school, and disregarding any letters she deemed to be "dishonest" or "deceitful."

Williams additionally argues that the Acting Commissioner erred by basing her denial in part on the fact that the Township is presently subject to an order requiring desegregation of its schools. We do not agree. Bolger noted that the Acting Commissioner was concerned that an additional high school "could undermine the [d]istrict's integration efforts." Indeed, the Commissioner of Education is required to recognize "[t]he constitutional command to prevent segregation in our public schools" when carrying out her responsibilities under the CSPA. In reCharter School Application, supra, 164 N.J. 316, 328 (2000). The fact that the desegregation order is forty-years old is irrelevant.

In addition, Williams maintains that the NCLBA requires the Commissioner to grant Quest's application because the district's high school has been identified as a school needing improvement, and there is no other high school in the district for students to attend. Again, we disagree.

The NCLBA provides, among other things, that when a school is identified for improvement, the local education agency must provide parents an explanation of what it is doing to address the problem. 20 U.S.C.A. 6316(b)(6)(A)-(E). The local education agency also must explain that the parents of children in a school identified for improvement have the option to transfer their children to another public school or obtain supplemental education services. 20 U.S.C.A. 6316(b)(6)(F).

The NCLBA does not, however, authorize individuals to institute actions to enforce these provisions. See Newark ParentsAssoc. v. Newark Pub.Sch., 547 F.3d 199, 214 (3d Cir. 2008). Furthermore, Williams has not cited any provision of the NCLBA that requires the Acting Commissioner to approve a charter school application she deems to be deficient.

We have considered Williams's other arguments and find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.