Opinion

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0019-12T2

IN THE MATTER OF THE GRANT

APPROVED FOR PUBLICATION

OF A CHARTER TO THE MERIT

PREPARATORY CHARTER SCHOOL April 9, 2014

OF NEWARK AND IN THE MATTER

OF THE GRANT OF A CHARTER TO APPELLATE DIVISION

THE NEWARK PREPARATORY

CHARTER SCHOOL.

___________________________________

Argued January 27, 2014 – Decided April 9, 2014

Before Judges Yannotti, Ashrafi and Leone.

On appeal from the Commissioner of the State

of New Jersey, Department of Education.

Richard E. Shapiro argued the cause for

appellant New Jersey Education Association.

Geoffrey N. Stark, Deputy Attorney General,

argued the cause for respondent New Jersey

Commissioner of Education (John H. Hoffman,

Acting Attorney General, attorney; Melissa

H. Raksa, Assistant Attorney General, of

counsel; Mr. Stark, on the brief).

Devora W. Allon, (Kirkland & Ellis LLP)

of the New York bar, admitted pro hac vice,

argued the cause for respondent Newark

Preparatory Charter School (Lite DePalma

Greenberg, LLC, Lay P. Lefkowitz (Kirkland &

Ellis LLP) of the New York bar, admitted pro

hac vice, and Ms. Allon, attorneys; Michael

E. Patunas, Jeffrey A. Shooman, Samara L.

Penn, Ms. Allon, and Mr. Lefkowitz, on the

brief).

Robert P. Avolio argued the cause for

respondent Merit Preparatory Charter

School of Newark (Avolio & Hanlon, P.C.,

attorneys; Mr. Avolio, of counsel and on

the brief; Amie C. Kalac, on the brief).

Gibbons P.C., attorneys for amicus curiae

New Jersey PublicSchoolOptions.org

(Lawrence S. Lustberg and Jillian T. Stein,

on the brief).

The opinion of the court was delivered by

ASHRAFI, J.A.D.

Appellant the New Jersey Education Association ("NJEA")

appeals from the grant of charters by the New Jersey

Commissioner of Education to the Merit Preparatory Charter

School of Newark and the Newark Preparatory Charter School.

NJEA expresses concern for the diversion of public funds and

resources from traditional public schools, and it contends the

Legislature authorized charters only for traditional "brick-and-

mortar" schools, not ones that use online teaching methodology.

Merit Prep and Newark Prep, however, are not online internet

schools. They use a "blended" teaching methodology that

combines in-person, face-to-face teaching and online instruction

by means of internet materials. They teach their students in

school buildings during a traditional school day and under the

supervision of a teaching staff. We affirm the Commissioner's

decisions.

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The Charter School Program Act of 1995 authorizes the

establishment of charter schools in New Jersey. N.J.S.A.

18A:36A-1 to -18. "A charter school [is] a public school

operated under a charter granted by the commissioner, which is

operated independently of a local board of education and is

managed by a board of trustees." N.J.S.A. 18A:36A-3(a).

Charter schools are funded by taxes collected from the public

that would otherwise fund traditional public education. See

N.J.S.A. 18A:36A-12.

The application requirements and review process for schools

seeking charters are governed by various provisions of the

Charter School Act and implementing regulations. See, e.g.,

N.J.S.A. 18A:36A-4, -4.1, -5; N.J.A.C. 6A:11-2.1. The statutes

and regulations do not contain specific directives on how the

Commissioner must evaluate charter applications, but the Act

includes findings and declarations reciting the Legislature's

general goals and objectives in authorizing charter schools.

N.J.S.A. 18A:36A-2. The Legislature intended to provide "a

mechanism for the implementation of a variety of educational

approaches which may not be available in the traditional public

school classroom," and to "encourage the use of different and

innovative learning methods." Ibid. The Act empowers the

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Commissioner with "final authority to grant or reject a charter

application." N.J.S.A. 18A:36A-4(c).

Merit Prep and Newark Prep applied for charters to

establish schools that use a blended model of teaching and

learning. The applications of both schools proposed teaching

the New Jersey Core Curriculum Content Standards ("NJCCCS" or

"core curriculum") partly by online instruction. Both schools

would require student and teacher attendance in a physical

building, and the online teaching would be facilitated by in-

person instructors.

Merit Prep described its methodology as utilizing computers

in the classroom as "a virtual textbook/workbook . . . used to

determine student progress in real time." "Each of the nine

[core curriculum] content standards [would] be taught by a

teacher and heavily reinforced with online exercises and

assessments." Approximately half the eight-hour school day

would be conducted in face-to-face instruction with certified

teachers.

Newark Prep's application stated that "[e]very student will

receive a fully differentiated educational experience supported

by self-paced learning." It described use of an innovative

blended learning methodology that would combine online, project-

based, and experiential learning. "Master Teachers" would

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monitor specific core curriculum subject areas and track each

student's self-paced progress and problems in the use of the

online programs. Teachers and tutors would "pull out students

for extra attention as individuals and/or in groups" and conduct

"face time sessions." Newark Prep also planned for teacher-led

instruction in small groups of students, fewer than fifteen at a

time.

Thus, Merit Prep and Newark Prep did not propose "virtual"

schools, where all teaching content would be online and

attendance in a school building would not be required.

NJEA and other groups objected to the granting of charters

to the two schools on the ground that their online teaching

method is not authorized by the Charter School Act. The

Commissioner rejected their objections and granted the charters.

NJEA asks us to reverse the Commissioner's decisions. We

previously denied NJEA's application for a stay of the charters,

and the two schools have been operating since the 2012-13 school

year.

The Commissioner argues that NJEA does not have standing to

challenge his grant of the charters. He contends N.J.S.A.

18A:36A-4(d) limits the right to appeal his decision to grant or

deny a charter only to the applicant and the local school board.

See also N.J.A.C. 6A:11-2.5 ("An eligible applicant for a

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charter school, a charter school, or a district board of

education or State district superintendent of the district of

residence of a charter school may file an appeal according to

N.J.S.A. 18A:6-9.1."). The Commissioner contends the Act was

not intended to create a private right of action by anyone who

opposes the granting of a charter.

"Standing is a threshold requirement for justiciability" of

a cause of action seeking a court's intervention and judgment.

See Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 421

(1991). In New Jersey, courts take "a liberal approach to

standing to seek review of administrative actions." In re

Camden Cnty., 170 N.J. 439, 448 (2002). A party has standing to

challenge an administrative agency's decision when the party has

"a sufficient stake in the outcome of the litigation, a real

adverseness with respect to the subject matter, and a

substantial likelihood that the party will suffer harm in the

event of an unfavorable decision." Id. at 449; accord In re

Issuance of Access Conforming Lot Permit, 417 N.J. Super. 115,

126 (App. Div. 2010). But when an issue involves a "great

public interest, any slight additional private interest will be

sufficient to afford standing." Salorio v. Glaser, 82 N.J. 482,

491 (internal quotation marks omitted), cert. denied, 449 U.S.

804, 101 S. Ct. 49, 66 L. Ed. 2d 7 (1980); see also People for

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Open Gov't v. Roberts, 397 N.J. Super. 502, 510 (App. Div. 2008)

("[I]t takes but slight private interest, added to and

harmonizing with the public interest to support standing to

sue." (quoting Hudson Bergen Cnty. Retail Liquor Stores Ass'n v.

Bd. of Comm'rs of Hoboken, 135 N.J.L. 502, 510 (E. & A. 1947))).

Here, NJEA is a collective bargaining organization of

teachers and other educators. It claims its members, as well as

their students, will be deprived of public funding for

traditional public schools if online teaching methodology is

funded by public tax dollars. NJEA alleges its members have an

adverse private interest because approval of such charter

schools will affect their employment. In another context, we

have held that "an organization whose members are aggrieved and

have interests that are sufficiently adverse has standing to

challenge agency action on behalf of its members." N.J. Dental

Ass'n v. Met. Life Ins. Co., 424 N.J. Super. 160, 167 (App.

Div.), certif. denied, 210 N.J. 261 (2012).

We are not convinced that the membership of NJEA will be

adversely affected by the Commissioner's granting of charters to

schools using a blended teaching methodology. Cf. Indep. Energy

Producers of N.J. v. N.J. Dep't of Envtl. Prot. & Energy, 275

N.J. Super. 46, 56 (App. Div.) (interest of the organization's

members may be "too ethereal to justify judicial recognition and

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acknowledgement"), certif. denied, 139 N.J. 187 (1994); In re

Ass'n of Trial Lawyers of Am., 228 N.J. Super. 180, 181 (App.

Div.) (trial lawyers' association lacked standing to challenge

products liability statute on constitutional grounds), certif.

denied, 113 N.J. 660 (1988). Nevertheless, this appeal raises a

novel legal issue of whether the Commissioner may approve a

charter school that employs blended teaching methodology using

internet materials. The issue is of "substantial public

interest." Falcone v. De Furia, 103 N.J. 219, 226 (1986). We

conclude NJEA's membership has demonstrated a slight private

interest that, together with the substantial public interest,

affords it standing to pursue this appeal.

"[C]ourts have but a limited role to play in reviewing the

action of other branches of government." In re Petition for

Rulemaking, 117 N.J. 311, 325 (1989). We may reverse the

Commissioner's decision to grant or deny a charter only if it is

arbitrary, capricious, or unreasonable. In re Proposed Quest

Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370,

385-87 (2013). This deferential standard of judicial review is

more fully explained as follows:

[a]lthough sometimes phrased in terms of a

search for arbitrary or unreasonable agency

action, the judicial role [in reviewing an

agency action] is generally restricted to

three inquiries: (1) whether the agency's

action violates express or implied

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legislative policies, that is, did the

agency follow the law; (2) whether the

record contains substantial evidence to

support the findings on which the agency

based its action; and (3) whether in

applying the legislative policies to the

facts, the agency clearly erred in reaching

a conclusion that could not reasonably have

been made on a showing of the relevant

factors.

[Id. at 385-86 (alteration in original)

(quoting Mazza v. Bd. of Trs., 143 N.J. 22,

25 (1995)).]

We are not bound by an agency's interpretation of a statute

or its determination of a legal issue, In re Taylor, 158 N.J.

644, 658 (1999), but we generally "give substantial deference to

the interpretation an agency gives to a statute that the agency

is charged with enforcing." Norfolk S. Ry. Co. v. Intermodal

Props., LLC, 215 N.J. 142, 165 (2013) (quoting R & R Mktg., LLC

v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)).

Here, NJEA argues that the granting of charters to Merit

Prep and Newark Prep was arbitrary, capricious, and unreasonable

because the Charter School Act does not give the Commissioner

express or implied authority to approve online or blended

teaching methodology. We disagree.

While nothing in the Act allows or disallows any particular

teaching methodology, the legislative goal was to permit "a

variety of educational approaches which may not be available in

the traditional public classroom." N.J.S.A. 18A:36A-2. Also,

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charter schools are to provide "choices . . . when selecting [a]

learning environment," and the Act was intended to "encourage

the use of different and innovative learning methods." Ibid.

"In determining whether a particular administrative act enjoys

statutory authorization, the reviewing court may look beyond the

specific terms of the enabling act to the statutory policy

sought to be achieved . . . ." N.J. Guild of Hearing Aid

Dispensers v. Long, 75 N.J. 544, 562 (1978). By explicitly

stating its goals and objectives, the Legislature established a

policy by which it gave the Commissioner broad authority to

grant charters to schools using a variety of educational

methodology.

We find no merit in NJEA's argument that the absence of an

express reference to online teaching in the Act and its

legislative history suggests the Legislature would not permit

that form of teaching. See In re Application of Virgo's, Inc.,

355 N.J. Super. 590, 595 (App. Div. 2002) (Although no specific

statutory provision either empowered or precluded the action

taken, "administrative agencies must be given broad authority to

carry out their mandates.").

The Act does not make reference to any specific teaching

method. If online teaching methods are prohibited because they

are not expressly mentioned, then it follows that all novel

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teaching methods not prescribed by the Act are prohibited.

Adopting the NJEA's position would defeat the Legislature's

stated purpose. N.J.S.A. 18A:36A-2; see Jersey Cent. Power &

Light Co. v. Melcar Util. Co., 212 N.J. 576, 586-88 (2013)

(courts must interpret statutes consistently with the

Legislature's purpose); In re Sussex Cnty. Mun. Utils. Auth.,

198 N.J. Super. 214, 217 (App. Div.) ("[L]egislative language

must not, if reasonably avoidable, be found to be inoperative,

superfluous or meaningless."), certif. denied, 101 N.J. 267

(1985).

The Legislature may not have contemplated the use of

internet-based teaching when the Act was passed in 1995, but the

Act cannot be read narrowly as only allowing methods that were

in existence at its inception. Certainly, the Legislature did

not intend to exclude advances in technology from charter school

classrooms. It intended just the opposite.

Similarly, we are not persuaded by NJEA's argument that the

Act does not expressly authorize the use of online methods to

teach the core curriculum. While the regulations require

evidence of a "[c]urriculum that is compliant with" the NJCCCS,

N.J.A.C. 6A:11-2.2(a)(1)(iii), neither the Act nor the

regulations specify any particular teaching method.

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Nor do we read the Act as limiting the Commissioner's

authority on the ground that the Legislature would have fixed a

different funding formula for charter schools that use teaching

methods unlike those of traditional "brick-and-mortar" schools.

See N.J.S.A. 18A:36A-12. Merit Prep and Newark Prep are schools

with a physical location where attendance is mandatory during

the normal school day. The online aspect of teaching occurs in

the school building under the supervision of teachers and staff.

The primary distinction between them and traditional schools

lies in the novel teaching methodology. The Act does not

require the Legislature's re-evaluation of funding formulas

simply because the Commissioner authorized a charter school with

novel teaching methodology.

The Commissioner decided to grant charters to Merit Prep

and Newark Prep after reviewing the comprehensive applications

they submitted. The applications explained how online teaching

methods are designed to create a personalized, differentiated

educational experience that incorporates self-paced learning

with teacher interaction, a method that is not typically

available in traditional public schools. The proposed teaching

methods promote the Act's policy of enhancing innovative

teaching methodology and student and parental choice. The

Commissioner's decision was not contrary to his legislative

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authority and is supported by substantial evidence in the

record. It is not arbitrary, capricious, or unreasonable.

Affirmed.

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