The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eastern University Academy Charter :
School, :
Petitioner :
: No. 1167 C.D. 2019
v. :
: Submitted: May 11, 2020
School District of Philadelphia, :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 10, 2020
Eastern University Academy Charter School (the Academy) petitions for
review of the August 14, 2019 order of the Commonwealth of Pennsylvania
Department of Education, State Charter School Appeal Board (CAB), affirming the
School Reform Commission of the School District of Philadelphia’s (SRC) decision
not to renew the Academy’s Charter.1
1
The Charter School Law, Act of June 19, 1997, P.L. 225, as amended, 24 P.S. § 17-1725-A.
The CSL amended Article XVII-A of the Public School Code of 1949 (“School Code”), Act of March
10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101–27-2702. The Charter School Law was enacted in
1997
to create and maintain schools that operate independently from the
existing school district structure as a means to, inter alia, improve pupil
learning and increase learning opportunities, encourage the use of
different and innovative teaching methods, and provide parents and
pupils with expanded choices in the types of educational opportunities
The Academy’s Stated Mission to Provide a
“College-Integrated Learning Experience”
Through its Partnership with Eastern University
The Academy was founded by Eastern University, a co-educational
Christian University located in St. Davids, Pennsylvania, near Philadelphia. In 2009,
the School District of Philadelphia (School District) granted the Academy a charter to
operate a middle school and high school for grades 7 through 12, for a term of three
years, beginning on July 1, 2009 (the Charter).
The Academy’s mission is set forth in its original October 3, 2006 charter
application (Original Application):
The mission of [the Academy] is to provide a wholistic,
college-integrated learning community dedicated to the
education of each student in the context of his/her unique
interests. The school will provide students with an
environment of excitement and early expectation through an
integrative discovery-based learning experience that will
develop logical reasoning, critical thinking, and purpose
driving global citizens. The school will graduate self-
directed, self-aware learners many of whom will have
successfully mastered college level work.
(Reproduced Record (R.R.) at 2885a) (italics in original.)
The Original Application represented that the Academy “will be a model
of true integration of an Early College program where students prepare for and earn
college credit prior to graduation.” (R.R. at 2885a.) Eastern University, the Academy’s
“primary partner,” was to provide “a wealth of academic resources, facilities resources,
and personnel to the college in a merging of college and high school programs that is
that are available within the public school system. 24 P.S. §17-1702-
A.
Discovery Charter School v. School District of Philadelphia, 166 A.3d 304, 316 (Pa. 2017).
2
inherent in the school’s Early College design.” Id. at 2966a. Students were to take
courses at Eastern University for college credit.
The Academy also partnered with Big Picture Schools to bring to the
school its model of “intensive, student-interest-driven, project-based learning in the
form of materials, professional development, technical assistance, and . . . other
resources.” Id.
“Unique characteristics” of the Academy included “the option of
graduating in four years with a high school diploma and up to two years of transferable
college credit,” “collaboration between university faculty and high school teachers
around core competencies and student learning outcomes,” and a “Rigorous Early
College 9-12 curriculum.” Id. at 2887a-88a. The Original Application described the
proposed charter school as follows:
[The Academy] is an Early College model high school, with
a rigorous approach to developing student mastery of
competencies that provide the foundation of success in
higher education coursework and higher level problem-
solving. The Early College movement is a relatively recent
outgrowth of the middle college movement, which was
developed to educate high school students on college
campuses in order to bridge the college attendance and
success gap of many low income and minority students. The
Early College model represents a true partnership between
high school and colleges, which curricula at the high school
directly aligned to college curricula, and opportunities and
supports provided for students to earn college credit at their
high school and on a college campus.
* * *
The school will employ a performance-based progression, or
competency based approach that will enable a student who
has demonstrated competencies in a given area (e.g.[,]
science) to move to college level work and study in that area,
3
even though he or she might not yet be ready for college in
another area. The student seminar levels have been
organized in the attached Curriculum such that by the time
most students reach the end of 11th grade they will be
working at the college entrance level, and thus may be taking
college level courses either at [the Academy] or on the
campuses of Eastern University. Content, skills and
competencies at the highest levels (e.g.[,] Level 7) in the high
school will be aligned to college syllabi and assessments in
order for students to receive college credit for that course.
(R.R. at 2901a-02a.)
The Original Application represented that the Academy was designed to
accelerate students above their average grade level quickly, in order to enable them to
begin mastering the skills necessary for college level studies while they are still
completing high school. Id. at 2986a. The Academy’s stated goal was to “have 100%
of . . . students take and pass at least one college class prior to graduation, and to have
at least 20% of . . . students take and pass at least 10 college classes prior to graduation.”
Id. at 2981a. It was projected that 100% of the Academy’s students would obtain 3
college credits prior to graduation, approximately 80% would obtain at least 6 college
credits, and 20% would obtain 30 college credits. Id. at 2997a.
2012 Charter Renewal
On June 1, 2012, the SRC approved a renewal of the Academy’s Charter
for an additional five-year term, from July 1, 2012, until June 30, 2017 (the “2012
Charter”). The Academy’s 2012 renewal application incorporated the Academy’s
Original Application (collectively, “Applications”) and required the Academy to
operate the charter school in conformity with the mission statement set forth in the
Applications. (R.R. at 2456a.)
4
Eastern University and Big Picture Schools’
Detachment from the Academy
During the term of the 2012 Charter, the Academy and Big Picture
Schools “part[ed] ways” due to “a strained relationship.” (R.R. at 2726a, 2758a.) Also
during the term of the 2012 Charter, there was a shift in the strategic goals of the
Academy’s founding partner, Eastern University. (R.R. at 2748a.) The relationship
between the Academy and Eastern University ended because, in the Academy’s words:
The original steward of the vision of [the Academy] was
former Eastern University President, Dr. David Black.
Unfortunately, Dr. Black did not have much support from the
faculty and administration for the charter school, and as a
result, students were only given an opportunity to take 20
courses per semester. Once Dr. Black retired and a new
president came aboard, the support for the school from the
university dwindled since the new president did not have the
same passion for Eastern University’s partnership with [the
Academy]. Clearly, the university thought that offering
additional courses to students free of charge was not
economically feasible.
(R.R. at 2758.)
The last time Academy students took a class at Eastern University was in
the fall of 2015. In September 2016, the Academy and Eastern University entered into
a Settlement Agreement and Release requiring the Academy to, inter alia, “change the
name of the Charter School, removing any reference to [Eastern] University in its
signage, websites, promotional literature, letterhead, or any other locations where the
Charter School’s name is used, by July 1, 2017.” (11/8/17 Notes of Testimony (N.T.)
90, R.R. at 1725a.) The Academy’s lease for its facilities at 3300 Henry Avenue
expired in 2019, at which time the Academy needed to change its location. (R.R. at
2748a.)
5
The Academy’s 2016 Renewal Application
In the fall of 2016, the Academy submitted a renewal application (“2016
Renewal Application”). The Academy reiterated that it was created as an “Early
College program where all students would be equally prepared for postsecondary
education and given the opportunity to engage in college-level dual enrollment
programs while still in high school.” (R.R. at 2746a.) The Academy conveyed that its
partnerships with Eastern University and Big Picture Schools had ended. Id. at 2748a.
The Academy indicated that it was currently “partnered with” the Community College
of Philadelphia and Manor College “to provide [] students with opportunities for
postsecondary credit during the 2016-2017 academic year.” Id. The Academy
represented that in the spring of 2016, its students began taking courses through the
Community College of Philadelphia. It stated that students have taken a total of 170
credits and have successfully completed credits in American Government,
Anthropology, Communications, Computer Science, Economics, English, Geology,
Math, Political Science, Psychology, Social Work, Sociology, Theater, and Theology.
Id. at 2723a. The Academy also stated that it will “continue to research the availability
and opportunities available from other local institutions,” and that it would now
“assume responsibility for all related costs to students for taking these courses.” Id. at
2746a-47a.
The Academy also summarized its students’ academic performance for
the 2012 Charter term. According to the Academy’s 2016 Renewal Application,
student performance on the Keystone and Pennsylvania System of School Assessment
(PSSA) exams in 2012-2013 was “similar to the School District.” Id. at 2721a. For
the Algebra I Keystone, the Academy reported that it outperformed “peer, charter[,]
and district schools,” but scored below the average of peer, charter, and district
6
schools” for the Literature Keystone. Id. No students passed the Biology Keystone
exam. Id. For the Math PSSA, Academy students “outperformed the district slightly
and fell below peer and charter school averages by approximately 10 percentage
points,” and for the English/Language Arts PSSA, Academy students performed “very
closely to the district average.” Id.
For the 2013-2014 school year, the Academy reported that scores on the
Biology Keystone increased, but PSSA Math and English scores decreased because its
“best teachers in English and Math left due to offers at other schools for administrative
positions.” Id. at 2722a.
For 2015-2016, the Academy reported that its students exceeded the
average proficiency levels of the School District in Biology and Literature. PSSA
proficiency rates for English/Language Arts and Math remained unchanged. Id.
The Academy set forth multiple ways it proposed to improve its academic
position, including hiring a full-time data coordinator and a math/science teacher coach
to provide teachers with additional support for math/science. Id. at 2726a.
School District’s Charter Schools
Office’s Evaluation of the Academy’s 2016
Renewal Application
The School District’s Charter Schools Office (CSO) oversaw the
evaluation of the Academy’s 2016 Renewal Application and began its evaluation in the
fall of 2016 by collecting data, conducting 60 site visits and developing a Renewal
Rubric, through which it assigned points on a weighted scale to information submitted
by the Academy. The CSO published a Renewal Report on June 1, 2017, in which it
recommended that the Academy’s Charter not be renewed. On June 15, 2017, the SRC
adopted Resolution SRC-8 (the “Nonrenewal Notice”), after finding substantial
7
grounds not to renew the Academy’s Charter. The Nonrenewal Notice listed the
following 55 grounds for the proposed nonrenewal:
1. During the 2012-2013 school year, 52.96% of [Academy]
students scored proficient or advanced on the Math PSSA
exam. During the 2013-2014 school year, 34.71% of
[Academy] students scored proficient or advanced on the
Math PSSA exam. Thus, in the first two years of the charter
term, the [Academy] had an 18.25 percentage point decrease
in PSSA Math proficiency.
2. During the 2014-2015 school year, under the new Common
Core-aligned PSSA, 0.95% of [Academy] students scored
proficient or advanced on the Math PSSA exam. During the
2015-2016 school year, under the new Common Core-
aligned PSSA, 0.00% of [Academy] students scored
proficient or advanced on the Math PSSA exam. Thus, in the
second two years of the charter term, the [Academy] had a
0.95 percentage point decrease in PSSA Math proficiency.
3. During the 2012-2013 school year, 50.03% of [Academy]
students scored proficient or advanced on the Reading PSSA
exam. During the 2013-2014 school year, 44.73% of
[Academy] students scored proficient or advanced on the
Reading PSSA exam. Thus, in the first two years of the
charter term, the [Academy] had a 5.30 percentage point
decrease in PSSA Reading proficiency.
4. During the 2012-2013 school year, 17.00% of [Academy]
Grade 8 students scored proficient or advanced on the
Science PSSA exam. During the 2015-2016 school year,
15.00% of [Academy] Grade 8 students scored proficient or
advanced on the Science PSSA exam. Thus, in the four
years of the charter term, the [Academy] had a 2.00
percentage point decrease in PSSA Science proficiency.
5. In no year of the Charter Term did the [Academy] have Math
proficiency rates on the PSSA exam that met or exceeded
charter school averages from the 2012-2013 school year
8
through the 2015-2016 school year. Charter sector average
proficiency rates in Math on the PSSA for Grades 7-8 were
62.69% in the 2012-2013 school year, 58.50% in the 2013-
2014 school year, 14.09% in the 2014-2015 school year and
13.60% in the 2015-2016 school year.
6. [The Academy’s] Math proficiency rates on the PSSA exam
did not meet or exceed School District school averages in the
three most recent of four years during the Charter term, the
2013-2014, 2014-2015 and 2015-2016 school years. School
District school average proficiency rates in Math on the
PSSA for Grades 7-8 were 51.50% in the 2013-2014 school
year, 15.39% in the 2014-2015 school year and 17.42% in
the 2015-2016 school year.
7. In no year of the Charter Term did the [Academy] have
Reading/ELA [(English Language Arts)] proficiency rates
on the PSSA exam that met or exceeded charter school
averages from the 2012-2013 school year through the 2015-
2016 school year. Charter sector average proficiency rates in
Reading/ELA on the PSSA for Grades 7-8 were 57.96% in
the 2012-2013 school year, 60.74% in the 2013-2014 school
year, 39.49% in the 2014-2015 school year and 39.24% in
the 2015-2016 school year.
8. In no year of the Charter Term did the [Academy] have
Reading/ELA proficiency rates on the PSSA exam that met
or exceeded School District school averages from the 2012-
2013 school year through the 2015-2016 school year. School
District school average proficiency rates in Reading/ELA on
the PSSA for Grades 7-8 were 52.86% in the 2012-2013
school year, 55.67% in the 2013-2014 school year, 34.89%
in the 2014-2015 school year and 36.61% in the 2015-2016
school year.
9. In no year of the Charter Term did the [Academy] have
Science proficiency rates on the PSSA exam that met or
exceeded charter school averages from the 2012-2013 school
year through the 2015-2016 school year. Charter sector
average proficiency rates in Science on the PSSA for Grade
9
8 were 32.75% in the 2012-2013 school year, 32.26% in the
2013-2014 school year, 32.49% in the 2014-2015 school year
and 30.96% in the 2015-2016 school year.
10. In no year of the Charter Term did the [Academy] have
Science proficiency rates on the PSSA exam that met or
exceeded School District school averages from the 2012-
2013 school year through the 2015-2016 school year. School
District school average proficiency rates in Science on the
PSSA for Grade 8 were 27.94% in the 2012-2013 school
year, 29.15% in the 2013-2014 school year, 28.40% in the
2014-2015 school year and 29.39% in the 2015-2016 school
year.
11. During the 2012-2013 school year, 43.00% of [Academy]
students scored proficient or advanced on the Algebra I
Keystone exam. During the 2013-2014 school year, 20.00%
of [Academy] students scored proficient or advanced on the
Algebra I Keystone exam. During the 2014-2015 school
year, 14.71% of [Academy] students scored proficient or
advanced on the Algebra I Keystone exam. During the 2015-
2016 school year, 34.50% of [Academy] students scored
proficient or advanced on the Algebra I Keystone exam.
Thus, in the four years of the charter term, the [Academy]
had an 8.50 percentage point decrease in Algebra I Keystone
proficiency.
12. [The Academy’s] Algebra I proficiency rates on the
Keystone exam did not meet or exceed charter school
averages in three of four years during the Charter term, the
2013-2014, 2014-2015 and 2015-2016 school years. Charter
sector average proficiency rates in Algebra I on the Keystone
exam were 40.00% in the 2013-2014 school year, 41.69% in
the 2014-2015 school year and 45.56% in the 2015-2016
school year.
13. [The Academy’s] Algebra I proficiency rates on the
Keystone exam did not meet or exceed School District school
averages in three of four years during the Charter term, the
2013-2014, 2014-2015 and 2015-2016 school years. School
10
District school average proficiency rates in Algebra I on the
Keystone exam were 43.00% in the 2013-2014 school year,
43.31% in the 2014-2015 school year and 48.19% in the
2015-2016 school year.
14. [The Academy’s] Literature proficiency rates on the
Keystone exam did not meet or exceed charter school
averages in three of four years during the Charter term, the
2012-2013, 2013-2014 and 2014-2015 school years. Charter
sector average proficiency rates in Literature on the Keystone
exam were 55.00% in the 2012-2013 school year, 55.00% in
the 2013-2014 school year, and 56.41% in the 2014-2015
school year.
15. [The Academy’s] Literature proficiency rates on the
Keystone exam did not meet or exceed School District school
averages in three of four years during the Charter term, the
2012-2013, 2013-2014 and 2014-2015 school years. School
District school average proficiency rates in Literature on the
Keystone exam were 56.00% in the 2012-2013 school year,
56.00% in the 2013-2014 school year, and 54.36% in the
2014-2015 school year.
16. [The Academy’s] Biology proficiency rates on the Keystone
exam did not meet or exceed charter school averages in three
of four years during the Charter term, the 2012-2013, 2013-
2014 and 2014-2015 school years. Charter sector average
proficiency rates in Biology on the Keystone exam were
18.00% in the 2012-2013 school year, 25.00% in the 2013-
2014 school year, and 29.76% in the 2014-2015 school year.
17. [The Academy’s] Biology proficiency rates on the Keystone
exam did not meet or exceed School District school averages
in three of four years during the Charter term, the 2012-2013,
2013-2014 and 2014-2015 school years. School District
school average proficiency rates in Biology on the Keystone
exam were 22.00% in the 2012-2013 school year, 28.00% in
the 2013-2014 school year, and 33.33% in the 2014-2015
school year.
11
18. [The Academy’s] building level School Performance Profile
(“SPP”) score was 53.0 for the 2012-2013 school year, 50.5
for the 2013-2014 school year, 50.7 for the 2014-2015 school
year (high school grades only) and 54.3 for the 2015-2016
school year. All of the [Academy’s] scores fall into the
lowest SPP category of 60 or below.
19. [The Academy’s] SPP building level cores were below the
average for all School District schools including CTE
[(Career and Technical Education)] programs for the 2012-
2013, 2013-2014, and 2014-2015 school years. The average
SPP score for all School District-operated schools including
CTE programs was 57.5 in the 2012-2013 school year, 57.3
in the 2013-2014 school year (high schools only).
20. [The Academy’s] SPP building level scores were below the
charter sector average for Philadelphia brick and mortar
charters for 2012-2013, 2013-2014, 2014-2015 and 2015-
2016 school years. The average SPP score for the charter
sector for Philadelphia brick and mortar charters was 66.0 in
the 2012-2013 school year, 63.6 in the 2013-2014 school
year, 57.6 in the 2014-2015 school year (high schools only),
and 56.7 in the 2015-2016 school year.
21. [The Academy] did not meet the Pennsylvania academic
growth standard, as measured by the Average Growth Index
[(“AGI”)], in PSSA Math in the 2013-2014 school year, in
the 2014-2015 school year and in the 2015-2016 school year.
22. [The Academy] did not meet the goals in its Charter for the
Pennsylvania academic growth standard, as measured by the
AGI, in PSSA Math for the Middle School grades in the
2013-2014 school year, in the 2014-2015 school year, and in
the 2015-2016 school year.
23. [The Academy] did not meet the Pennsylvania academic
growth standard, as measured by the AGI, in PSSA
Reading/ELA in the 2012-2013 school year, in the 2013-
2014 school year, and in the 2014-2015 school year.
12
24. [The Academy] did not meet the goals in its Charter for the
Pennsylvania academic growth standard, as measured by the
AGI, in PSSA Reading/ELA for the Middle School grades in
the 2012-2013 school year, in the 2013-2014 school year,
and in the 2014-2015 school year.
25. [The Academy] did not meet the Pennsylvania academic
growth standard, as measured by the AGI, in Grade 8 PSSA
Science in the 2012-2013 school year, in the 2013-2014
school year, in the 2014-2015 school year and in the 2015-
2016 school year.
26. [The Academy] did not meet the goals in its Charter for the
Pennsylvania academic growth standard, as measured by the
AGI, in Keystone Algebra I in the 2012-2013 school year, in
the 2013-2014 school year, and in the 2014-2015 school
year.
27. [The Academy] did not meet the goals in its Charter for the
Pennsylvania academic growth standard, as measured by the
AGI, in Keystone Literature in the 2013-2014 school year
and in the 2014-2015 school year.
28. For the 2012-2013 school year, the [Academy] received 4.54
points (out of 100) in the college readiness benchmark
performance measure. This represents 1.82% of all Grade 12
students being college ready with either a 1550 on the SAT
or 22 on the ACT.
29. For the 2013-2014 school year, the [Academy] received 0
points (out of 100) in the college readiness benchmark
performance measure. This represents 0% of all Grade 12
students being college ready with either a 1550 on the SAT
or 22 on the ACT.
30. For the 2014-2015 school year, the [Academy] received 5.32
points (out of 100) in the college readiness benchmark
performance measure. This represents 2.13% of all Grade 12
students being college ready with either a 1550 on the SAT
or 22 on the ACT.
13
31. For the 2015-2016 school year, the [Academy] received 4.63
points (out of 100) in the college readiness benchmark
performance measure in 2015-2016. This represents 1.85%
of all Grade 12 students being college ready with either a
1550 on the SAT or 22 on the ACT.
32. For the 2014-2015 school year, the [Academy] earned 0
points in indicators for closing the achievement gap for all
students attending [the Academy] in the high school grades
for a full year in both the Keystone Algebra I exam and the
Keystone Literature exam.
33. For the 2014-2015 school year, the [Academy] earned 0
points in indicators for closing the achievement gap for all
historically underserved students attending [the Academy] in
the high school grades for a full year in Algebra I and 29.37
points (out of 100, in lowest category of 60 or less) in
Literature.
34. For the 2015-2016 school year, the [Academy] received 0
points for indicators of closing the achievement gap for all
students in Math.
35. For the 2015-2016 school year, the [Academy] received 0
points for indicators of closing the achievement gap for
historically underperforming students in Math.
36. For the 2014-2015 and the 2015-2016 school years, the
[Academy] received 0 points for student enrollment in AP
[(Advanced Placement)], IB [(International Baccalaureate)]
or college credit coursework in each of the four core
academic areas. This is of particular note given that the
[Academy] describes itself as an early college program.
37. [The Academy] did not meet the attendance goals in its
Charter in the 2012-2013 school year, in the 2013-2014
school year, in the 2014-2015 school year, and in the 2015-
2016 school year.
14
38. For the 2015-2016 school year, the most current year data is
available, the percentage of [Academy] students attending
95% or more instructional days did not meet or exceed the
School District school average or the Charter sector average.
39. [The Academy’s] graduation rate declined over the course
of the charter term by four percentage points from 83.05% in
the 2013-2014 school year to 79.03% in the 2015-2016
school year.
40. [The Academy’s] stated mission in its Renewal Application
to provide a college integrated learning community where
graduates will have successfully mastered college level work
is inconsistently reflected in school operations and
programming during the Charter term. During a three and a
half[-]year founding partnership with Eastern University, the
[Academy’s] namesake, which ended in fall 2015, less than
100 students at the [Academy] participated in dual
enrollment at Eastern University. In fall 2016, students were
only enrolled in remedial, pre-college electives at the
Community College of Philadelphia due to late registration
by the [Academy]. The [Academy’s] 2015-2016 graduating
class had 0 students matriculate in the first fall after
graduation at the founding partner post-secondary institution,
Eastern University. Of the students graduating from the
[Academy] in 2015-2016 eligible to enroll in the first fall,
only 28 students enrolled in a four-year public or private
university although the [Academy’s] mission is to provide a
“college-integrated learning community.”
41. Components of [the Academy’s] educational program as
stated in the Renewal Application, such as high academic
expectations, student engagement and student voice, were
inconsistently reflected in school and classroom observations
during the fall of 2016. In only 7% of classroom
observations during the renewal site visits in November 2016
was student voice present at least 50% of the time. In only
10% of the same classroom observations did the teacher
almost always or always convey high academic expectations
for students. In only 7% of classroom observations were
15
virtually all students intellectually engaged in challenging
content more than 90% of the time. These findings are based
on at least 30 classroom observations during site visits in
November 2016.
42. [The Academy] did not provide sufficient evidence of a
school-wide screening process during the Term Charter, in
violation of Chapter 711 of the Pennsylvania Code [(22 Pa.
Code §§711.1-711.62)] and the [Academy’s] Charter. As of
the November 2016 renewal site visit, the [Academy] did not
appear to use research based interventions and did not
provide evidence of a monitoring system to track student
progress.
43. Twenty percent (20%) of the Individualized Education
Programs (“IEPs”) maintained by [the Academy] and
reviewed by the CSO during the onsite visit to the [Academy]
in November 2016 did not have evidence of parent
participation in the IEP process, in violation of Chapter 711
of the Pennsylvania Code [(22 Pa. Code §§711.1-711.62)]
and the [Academy’s] Charter.
44. From a review of 40 IEPs at [Academy] conducted during
the renewal evaluation period in the 2016-2017 school year,
the School District’s Office of Auditing Services found a
15% error rate due to missing signatures or lapses in IEP
dates.
45. [The Academy] does not have fully compliant and equitable
student admission policies in accordance with the Charter
School Law, the [] School Code, and its Charter in that:
a. [The Academy’s] student enrollment materials for
the 2016-2017 school year did not require parents or
guardians to submit evidence of immunizations,
parent/guardian registration statements and home
language surveys prior to enrollment and attendance
at the [Academy] as required by the Pennsylvania
Department of Education (“PDE”) Basic Education
Circular on the Enrollment of Students.
16
b. The student enrollment files maintained by the
[Academy] seen and reviewed by the CSO during
the onsite visit to the school in November 2016
contained copies of social security cards, which
cannot be requested, and required McKinney-
Vento[2] affidavits, physical and dental records, and
report cards/transcripts in order to enroll in violation
of state regulations.
46. During the term of the Charter, the [Academy’s] Code of
Student Conduct was not in compliance with and the
[Academy] did not comply with Chapter 12 of the Public
School Code, [24 P.S. §§12-1201-1217]. In fall 2016,
students pending expulsion were asked to remain home and
were excluded from school for longer than 15 school days
without a formal hearing.
47. The Board of Trustees of [Academy] failed to operate in
accordance with applicable law and the [Academy] Bylaws
and policies in that:
a. While the Bylaws state that Board of Trustees will
annually elect officers, the minutes of the Board
meetings do not provide evidence that the Board
voted to elect officers during the 2013-2014 and
2015-2016 school years.
b. Minutes for the Board of Trustees from the 2014-
2015 and 2015-2016 school years did not identify
the date, time or location of all Board meetings as
required by the Pennsylvania Sunshine Act.[3]
c. Thirty-nine of 40 Statements of Financial Interest
were not submitted or completed timely throughout
the charter term for all Board members and
2
McKinney-Vento Homeless Assistance Act, 42 U.S.C. §§11301-11412.
3
65 Pa.C.S. §§701-716.
17
administrators for the years 2012, 2013, 2014 and
2015.
48. [The Academy] failed to meet the 100% highly qualified
teacher (“HQT”) requirement during every year of the
Charter term, as required by the No Child Left Behind Act[4]
as reported by PDE. In the 2012-2013 school year, only 79%
of the PDE specified core academic classes taught at [the
Academy] were taught by [HQTs]. In the 2013-2014 school
year, only 80% of the PDE specified core academic classes
taught at [the Academy] were taught by highly qualified
teachers. In the 2014-2015 school year, only 74% of the core
academic classes at [the Academy] were taught by [HQTs].
49. [The Academy] failed to meet the requirement that in each
year of the Charter term at least 75% of professional staff
members hold appropriate state certification. 70% of
professional staff were appropriately certified in the 2012-
2013 school year and 74% of professional staff were
appropriately certified in the 2014-2015 school year.
50. During the CSO’s onsite review of twenty of the
[Academy’s] personnel files during the fall 2016 renewal site
visit, four of twenty employees were missing a current
Pennsylvania Child Abuse Clearance; five of twenty
employees were missing a current Pennsylvania Criminal
Background Check; fifteen of twenty employees were
missing a current FBI Background Check; and fourteen
eligible employees, based on date of hire, were missing Act
168[5] training certifications. These omissions constitute
violations of the Public School Code and the [Academy’s]
Charter.
4
20 U.S.C. §§ 6301-7941.
5
Section 111.1 of the Public School Code, added by the Act of October 22, 2014, P.L. 2624,
No. 168, as amended, 24 P.S. § 1-111.1 (“Act 168”), provides for an employment history review
process.
18
51. [The Academy’s] student health services policy as reviewed
by the CSO during the 2016-2017 school year does not
reference state mandated immunizations and examinations in
accordance with Chapter 23 of the Pennsylvania School
Health Code.[6]
52. The Pennsylvania Department of Health cited concerns over
the lack of a school dentist at [the Academy] during the 2013-
2014 school year, in violation of Article XIV of the Public
School Code.
53. During the renewal site visit in November 2016, the CSO
reviewed nine 8th grade student files. Of the nine 8th grade
student files reviewed, two did not have proof of a dental
exam in grade 7; three did not have proof of an annual vision
screening in the 2015-2016 school year; three did not have
proof of an annual hearing exam in the 2015-2016 school
year; and two did not have proof of annual height and weight
information for the 2015-2016 school year.
54. For the 2012-2013 school year, the 2013-2014 school year
and the 2014-2015 school year, [the Academy] did not
complete Form PDE-4101, which certifies the fulfillment of
fire drill and school bus evacuation drill requirements.
55. [The Academy] failed to submit its 2014 and 2015 Annual
Reports to PDE in a timely fashion in violation of the Public
School Code and its Charter.
(R.R. at 2673a-79a.)
The SRC directed that a public hearing be conducted to address the CSO’s
recommendation not to renew the Academy’s Charter. The School District appointed
a Hearing Officer to conduct public hearings and issue a proposed report. Hearings
6
24 P.S. §14-401–14-1424, added by the Act of July 15, 1957, P.L. 937.
19
were held over the course of 14 days from October 9, 2017, through December 20,
2017.
Hearings
At the hearing, the School District presented evidence that the Academy
is not the school described in its Original Application. (10/9/17 N.T. 107, R.R. at
1028a.) It presented evidence that the original charter applicant, Eastern University, is
no longer involved with the Academy and has not been since the 2015-2016 school
year. (10/9/17 N.T. 67-68, R.R. at 1018a.) It also presented evidence that Big Picture
Schools, one of the Academy’s original partners, is no longer affiliated with the
Academy. The School District presented evidence that very few students meet the
Commonwealth’s college readiness benchmarks, and graduates of the Academy were
not persisting at great numbers into college or graduating from college.
The School District presented undisputed evidence that the Academy did
not meet the Commonwealth’s graduation goals in 2013-2014 and 2014-2015.
(Findings of Fact (F.F.) No. 155.) It also presented evidence that for every year of the
2012 Charter term, very few of the Academy’s 12th graders achieved a score of at least
1550 on the SAT, which represents the college and career readiness benchmark. (F.F.
Nos. 157-60.)
The School District also presented evidence that when compared to
district averages and charter school sector averages, the Academy underperformed in
virtually all years and in all subjects. Specifically, with respect to the PSSAs, the
School District presented undisputed evidence that the Academy’s PSSA Math
proficiency decreased 51.99 percentage points from 2013 to 2017, and that the
Academy’s average was 14.92 percentage points lower than the charter schools and
13.18 percentage points lower than the School District Schools for those years. (F.F.
20
No. 130.) The School District also presented undisputed evidence that the Academy’s
PSSA Reading proficiency declined 29.84 percentage points from 2013 to 2017, and
that the Academy’s average was 16.77 percentage points lower than the charter schools
and 12.64 percentage points lower than the School District’s schools. (F.F. No. 132.)
The School District also presented undisputed evidence that the Academy’s PSSA
Science proficiency declined 13.4 percentage points from 2013 to 2017, and that the
Academy’s average was 17.77 percentage points lower than the charter schools and
14.33 percentage points lower than the School District’s schools. (F.F. No. 134.)
With respect to the Keystone exams, the School District presented
undisputed evidence that during the 2012 Charter term, the percentages of Academy
students who scored proficient or advanced on the Algebra I exam were substantially
below the overall percentages in the School District and charter schools, with the
exception of 2012-2013. (F.F. No. 138.) The School District presented undisputed
evidence that during the 2012 Charter term, the percentages of Academy students who
scored proficient or advanced on the Literature exam were substantially below the
overall percentages in School District and charter schools, with the exception for both
sectors in 2015-2016 and School District schools in 2016-2017. (F.F. No. 139.) The
School District presented undisputed evidence that during the 2012 Charter term, the
percentages of Academy students who scored proficient or advanced on the Biology
exam were consistently below the overall percentages in School District and charter
schools, with the exception of the 2015-2016 school year. (F.F. No. 140.)
The Academy did not dispute the accuracy of any of the data presented by
the School District. It argued instead that the School District’s comparison of the
Academy’s performance on standardized tests to students from “special admission” or
“magnet” schools was inherently unfair. In support, the Academy presented an expert
21
in charter school policy, educational research, and Pennsylvania academic assessments,
Alexander D. Schuh, Ph.D. (Dr. Schuh). Dr. Schuh opined that students who attend
special admission schools have to meet certain stringent criteria related to attendance,
punctuality, behavior, grade, and standardized test scores. He opined that these
rigorous entrance criteria make special admission schools qualitatively different from
neighborhood schools and charter schools and that a comparison of the Academy’s
standardized testing scores with special admissions schools was unfair. (R.R. at
2603a.)
The School District presented evidence relating to the results of CSO’s
site visit, including evidence of violations of Pennsylvania and Federal laws and
regulations pertaining to student discipline, HQTs, annual reports, teacher
certifications, student enrollment, special education files, special education screening,
background checks and clearances, the Sunshine Act and Bylaws, statements of
financial interest, and student health and safety. (F.F. Nos. 166-308.)
Hearing Officer’s Report and Recommendation
The Hearing Officer issued his report on March 14, 2018, in which he
recommended that the Academy’s Charter not be renewed, upon concluding, in part,
that the Academy “violated material standards and conditions contained in its written
charter, has failed to meet applicable requirements for student performance, and has
violated applicable laws from which it has not been exempted.” (Hearing Officer’s
Report (Report) at 10.) Specifically, the Hearing Officer concluded that the Academy
failed to meet the requirements set forth in its Charter regarding its affiliation with
Eastern University and its stated mission as an early college high school and college-
integrated learning community where all students will take and pass at least one college
course as a condition of graduation. In this regard, the Hearing Officer found:
22
[The Academy’s] stated mission in its Renewal Application
to provide a college integrated learning community where
graduates will have successfully mastered college level work
is inconsistently reflected in school operations and
programming during the charter term. During a three and a
half[-]year founding partnership with Eastern University, the
[Academy’s] name sake, which ended in fall 2015, less than
100 students at the [Academy] participated in dual
enrollment at Eastern University. In fall 2016, students were
only enrolled in remedial, pre-college electives at the
Community College of Philadelphia due to later registration
by the [Academy]. The [Academy’s] 2015-2016 graduating
class had 0 students matriculate in the first fall after
graduation at the founding partner post-secondary institution,
Eastern University. Of the 52 students graduating from the
[Academy] in 2015-2016 eligible to enroll in the first fall,
only 28 students enrolled in a four-year public or private
university although the [Academy’s] mission is to provide a
“college-integrated learning community.”
(Report at 6, F.F No. 40.)
The Hearing Officer concluded that the Academy “no longer has the
relationship with Eastern University that was fundamental to its [Original] Application.
Eastern University was the founder and ‘principal partner’ of the proposed charter
school, yet no student has taken a class at Eastern University since the fall of 2015.”
(Report at 16.) The Hearing Officer further found that the Academy “has attempted to
replace Eastern University with Community College of Philadelphia, Manor College
and Wilmington University, but none of those institutions provide the opportunities
that were promised in the Application.” Id. The Hearing Officer noted that “[n]o
[Academy] student has ever taken and completed a course at Manor College or
Wilmington University.” Id. The Hearing Officer also found that the Academy
“introduced no evidence that [Community College of Philadelphia] has stepped into
Eastern University’s previous role in the Early College high school design that the
23
Application[s] described, by providing professional development, dual enrollment at
the [U]niversity’s expense, graduate staffing resources, and the myriad of other
opportunities and supports that Eastern University promised.” Id.
The Hearing Officer also found relevant that the Academy and Big Picture
Schools have decided to part ways during the term of the 2012 Charter due to a strained
relationship. Id. The Hearing Officer determined that the “demise of [the Academy’s]
relationship[] with Eastern University and Big Picture Schools was a material
detrimental change to the school that the SRC approved when it granted the 2012
[C]harter.” Id. The Hearing Officer concluded:
As set forth in the [Original] Application, all students at [the
Academy] were to be provided with a college preparatory
education and could begin taking college courses as early as
the 9th grade. According to the 2012 Charter, [Academy]
students would be able to earn as many as 62 college credits,
and would be required to earn at least 3 college credits in
order to graduate.[7] The [Original] Application promised
that students would be offered the opportunity to take college
courses in three different ways (i) taking accredited courses
taught by [Academy] faculty at Eastern [University]; (ii)
taking college courses at Eastern University; and (iii) taking
college courses taught by Eastern University faculty and
graduate students at [the Academy’s] campus. Collaboration
was to occur between university faculty and high school
teachers around core competencies and student learning
outcomes.
[The Academy] has not kept these promises. [The Academy]
never had the specified relationship with Eastern University
during the 2012 Charter term. No Eastern University faculty
or graduate students came to [the Academy’s] campus to
7
It is undisputed that the Academy unilaterally changed its graduation requirements during
the 2012 Charter term to remove this requirement that students earn at least three college credits.
(R.R. at 268a.)
24
teach course or to team-teach with [Academy] teachers. [The
Academy’s] own teachers and programs could not provide
college credit. Only a small percentage of [Academy]
students took a college course and an even smaller
percentage actually passed the college courses they took.
(Report at 17.)
With respect to student performance requirements, the Hearing Officer
found that: the Academy’s [SPP] scores were in the lowest tier in every year of the
2012 Charter, lower than the School District’s scores in all but one year, and lower than
the charter sector scores in every year. (F.F. Nos. 127-28.) Nearly all of the Academy’s
proficiency rates were substantially below those of both the School District as a whole
and the charter sector as a whole, and showed no clear pattern of significant
improvement. (F.F. Nos. 130-144.) The Academy has not shown consistent or
sustained success in closing the achievement gap for all of its students or for its
historically underperforming students. (F.F. Nos. 145-47.) Nearly all of the
Academy’s [AGI] scores have not met the Pennsylvania growth standard. (F.F. Nos.
148-52.)
The Hearing Officer opined that the Academy’s students will receive a
better education if they transfer to other schools because in nearly all years, grades and
subjects, the proficiency rates of students at School District schools and Philadelphia
charter schools significantly exceeded the proficiency rates of Academy students. (F.F.
Nos. 130-44.)
The Hearing Office also addressed dozens of legal violations, violations
of Bylaws and violations of the Charter, which he concluded “reveal a pervasive lack
of organizational competence,” which further supported the SRC’s decision not to
renew the Academy’s Charter. (Report at 100; F.F. Nos. 42-55.)
25
Based on the Hearing Officer’s Report, SRC voted not to renew the
Charter by Resolution dated April 26, 2018. The Academy timely appealed to the
CAB. Before the CAB, the Academy argued that the School District failed to render
its decision not to renew the Charter prior to the Charter’s expiration date. The
Academy also asserted that many of the grounds for the nonrenewal have no basis in
the School Code, the Charter School Law, or regulations. It contended that the CSO
imposed renewal standards which were not required by law. The Academy also
asserted that the School District failed to meet its burden of proof on many of its claims,
that its student performance standards were improperly compared to “special
admission” schools, that several of its infractions do not warrant nonrenewal, and that
the Hearing Officer was biased in his review.
The CAB adopted the Hearing Officer’s findings of fact in their entirety.
With respect to the Academy’s argument that section 1729-A of the Charter School
Law, 24 P.S. §17-1729-A, imposed a deadline by which a nonrenewal of a charter must
be completed, the CAB rejected the argument, concluding that the plain statutory
language of this section does not require nonrenewal proceedings to conclude before
the end of a charter term. Following an independent review of the record, the CAB
also found that the School District’s decision not to renew the Academy’s Charter was
based upon substantial evidence which demonstrated that the Academy: (1) failed to
meet student performance standards at section 1729-A(a) of the Charter School Law,
and the regulations at 22 Pa. Code §4.12; (2) violated the terms of its Charter by failing
to fulfill its mission of providing a college-integrated community and an early college
program where students prepare for and earn college credit prior to graduation and
losing its affiliation with Eastern University as a principal partner of the Academy; and
26
(3) violated numerous Pennsylvania and Federal laws and regulations. The CAB found
the Academy’s argument that the Hearing Officer was biased to be without merit.
Discussion
On appeal,8 the Academy argues that the CAB erred by: (1) holding that
School District’s decision not to renew its Charter was timely; (2) determining that the
Academy failed to meet the material standards and conditions of its Charter; (3)
determining that the Academy failed to meet applicable requirements for student
performance, as set forth in its Charter and in the regulations set forth at 22 Pa. Code
§4.12; (4) holding that the Academy violated numerous provisions of the law from
which it was not exempted; and (5) upholding the School District’s use of the Renewal
Rubric and its appointment of a biased Hearing Officer.
1. Whether the CAB erred in finding that the School District’s
Decision not to renew Academy’s Charter was Timely?
In its first issue, the Academy argues that the School District was time-
barred pursuant to section 1729-A(a) of the Charter School Law from not renewing the
Academy’s Charter due to the School District’s failure to render its decision not to
renew during, or at the end of, the Academy’s 2012 Charter term, which was set to
expire on June 30, 2017.
The CSO began its evaluation of the Academy’s Renewal Application in
the Fall of 2016, and approved Resolution SRC-8 on June 15, 2017. The Academy
asserts that, based upon the plain language of section 1729-A(a) of the Charter School
Law the School District was required to render its decision on whether to renew the
8
This Court’s review of the CAB’s decision is limited to determining 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).
27
Academy’s Charter prior to the June 30, 2017 expiration of the 2012 Charter term—
for which renewal was sought. The Academy contends that the School District’s failure
to meet the timing deadline set forth under section 1729-A(a) of the Charter School
Law, 24 P.S. §17-1729-A(a), consequently extinguishes the School District’s right to
seek termination or nonrenewal of the Academy’s Charter for the term that has passed.
Section 1729-A(a) of the Charter School Law (Causes for nonrenewal or
termination) states, in relevant part:
During the term of the charter or at the end of the term of
the charter, the local board of school directors may
choose to revoke or not to renew the charter based on any
of the following:
(1) One or more material violations of any of the conditions,
standards or procedures contained in the written charter
signed pursuant to section 1720-A [of the Charter School
Law, 24 P.S. §17-1720-A].
(2) Failure to meet the requirements for student performance
set forth in 22 Pa. Code Ch. 5 (relating to curriculum) or
subsequent regulations promulgated to replace 22 Pa. Code
Ch. 5 or failure to meet any performance standard set forth
in the written charter signed pursuant to section 1716-A [of
the Charter School Law, 24 P.S. §17-1716-A].
(3) Failure to meet generally accepted standards of fiscal
management or audit requirements.
(4) Violation of provisions of this article.
(5) Violation of any provision of law from which the charter
school has not been exempted, including Federal laws and
regulations governing children with disabilities.
(6) The charter school has been convicted of fraud.
28
(Emphasis and italics added.) A school district may choose to revoke a charter or not
to renew a charter on any of these listed grounds.
When examining the Charter School Law, we keep in mind the rules of
statutory interpretation, including that a court’s primary goal in interpreting a statute is
to ascertain and effectuate the intention of the General Assembly. Section 1921(a) of
the Statutory Construction Act of 1972, 1 Pa.C.S. §1921(a). “When the words of a
statute are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” 1 Pa.C.S. §1921(b). Additionally, courts
construe every statute, if possible, to give effect to all its provisions. 1 Pa.C.S.
§1921(a); Discovery Charter School v. School District of Philadelphia, 166 A.3d 304,
316 (Pa. 2017).
We reject the Academy’s assertion that section 1729-A of the Charter
School Law contains a mandatory deadline by which a school district must decide
whether to renew a charter which is expiring. Section 1729-A sets forth the specific
grounds upon which a school district may revoke or not renew a school charter. The
clear and unambiguous language in the Charter School Law reflects that the statute
does not contain any definite or specific deadline by which the SRC had to issue its
decision on the Academy’s nonrenewal. The language is permissive, not mandatory,
and provides simply that a school district may decide to revoke a charter during its term
or to not renew a charter at the end of its term. It gives the school district two choices:
(1) it may decide to “revoke” a charter during its term; or (2) to not “renew” a charter
at the end of its term. Here, the Academy’s Charter was expiring and the Academy
submitted an application to renew. Pursuant to section 1729-A of the Charter School
Law, the School Board was limited to the grounds enumerated in that section when
29
making that decision. Section 1729-A says absolutely nothing about any deadlines by
which a school district must render its decision to revoke or not to renew.
The language “during the term of” is a reference to the school district’s
ability to “revoke” a charter during its term. The language “at the end of” simply relates
back to the school district’s ability to decide not to “renew” a charter at the end of its
term. Taken to its logical conclusion, the Academy’s argument is tantamount to
asserting that a school district can never decide not to renew a charter under the Charter
School Law unless the nonrenewal proceedings are completed “by” the end, or prior to
or on the expiration date of the charter school’s charter. If the Legislature intended to
require a school district to issue its final decision not to renew a charter by a particular
date or prior to the expiration of the charter term, it would have clearly indicated there
was a deadline to do so in the Charter School Law. Such mandatory language does not
appear in the Charter School Law, and we decline to expand the provisions by adding
to it the requirement that a school district must issue its decision not to renew a charter
on a date prior to the end of the charter term.
2. Whether the CAB erred by determining that the
Academy Failed to Meet the Material Requirements of
its Charter?
In its second issue, the Academy argues that the CAB erred in determining
that the Academy failed to meet its stated mission to provide a “college-integrated
learning experience” and an “Early College program where students prepare for and
earn college credit prior to graduation.” (R.R. at 2885a.)
When a charter is granted by a local board of school directors, the charter
school is required to comply with the terms and conditions of the charter, as well as the
information contained in the charter school application which are incorporated into the
charter. See section 1720-A(a) of the Charter School Law. The Charter School Law
30
makes clear that a “written charter . . . shall act as legal authorization for the
establishment of a charter school” and “shall be legally binding on both the local board
of school directors of a school district and the charter school’s board of trustees.”
Section 1720-A(a) of the Charter School Law. Accordingly, a charter school is
required to comply with the terms and conditions of the charter, as well as the
information contained in the charter school application which is incorporated into the
charter. 24 P.S. §17-1720-A(a). Pursuant to section 1729-A of the Charter School
Law, one or more material violations of any of the conditions, standards or procedures
contained in the written charter is grounds to revoke or “not to renew” a charter. 24
P.S. §17-1729-A(a)(1).
Here, the mission statement set forth in the Academy’s Original Charter
Application included provisions for a “college-integrated learning community” and an
“Early College program where students prepare for and earn college credit prior to
graduation.” (R.R. at 2885a.) The Academy’s 2012 Renewal Application required
that, in order to qualify for graduation from the Academy, students must successfully
prepare for and take the SAT, complete a college portfolio, visit and interview with at
least three colleges and obtain at least three college credits by taking accredited courses
offered by its faculty at the Academy, taking college classes at Eastern University’s
campus, or taking college courses taught by Eastern University’s faculty and graduate
students at the Academy. (R.R. at 2776a.)
The CAB found that the Academy failed to meet these terms and
conditions of its Charter Application and that this was grounds for not renewing the
Academy’s Charter. We discern no error.
The record shows that the Academy never had the specified relationship
with Eastern University during the 2012 Charter year. No Eastern University faculty
31
or graduate students came to the Academy’s campus to teach courses or to team-teach
with Academy teachers. The record shows that during the term of its 2012 Charter, the
Academy lost its affiliation with Eastern University as a principal partner. As part of
a settlement agreement, the Academy agreed to change its name and remove any
references to Eastern University from its public displays/advertisements. Furthermore,
no Academy student has taken a class at Eastern University since the fall 2015. The
record also shows that the Academy’s attempts to affiliate itself with Community
College of Philadelphia and Manor College, in a manner similar to its relationship with
Eastern University, were unsuccessful. As noted above, there was no evidence
credited by the CAB that any Academy student took or completed a course at either of
these institutions, and the courses taken by Academy students beginning spring 2016
constituted college readiness and foundational courses for which no college credit was
available. Only a small percentage of Academy students took a college course and an
even smaller percentage actually passed the college courses they took. The record also
established that out of 54 Academy graduates in 2013, only 9 satisfied the requirement
of passing at least 1 college course. Of 48 graduates in 2014, only 10 satisfied the
requirement. Of 47 graduates in 2015, only 6 met the requirement, and only 10 met
the requirement out of the 52 graduates in 2016. The record further shows that only
three Academy students graduated with at least three college credits in 2017, and that
the Academy unilaterally eliminated that graduation requirement incorporated into its
Charter without having sought a Charter amendment to do so.
In Career Connections Charter High School v. School District of
Pittsburgh, 91 A.3d 736 (Pa. Cmwlth. 2014), this Court held that a charter school’s
failure to implement an integrated interdisciplinary curriculum or the applied learning
approaches promised in its charter application was sufficient to support the CAB’s
32
finding that school materially violated its charter, as ground supporting nonrenewal of
school’s charter under the Charter School Law. We explained:
[T]he daily schedule and academic calendar proposed by
Career Connections in its charter application were
incorporated into the terms of the charter and, thus, legally
binding when the District granted the initial charter. In order
to change those terms, Career Connections was required to
amend its charter. Because it changed the daily schedule and
academic calendar without doing so, it is subject to closure
under Section 1729-A(a)(1) of the [Charter School Law],
regardless of whether the District knew of the changes. These
changes to the daily schedule and academic calendar are
clearly material, especially given that Career Connections
touted its flexible daily schedule and 47-week school year as
“innovations that . . . will enhance the educational program.”
. . . Accordingly, the CAB did not err in holding that those
modifications by Career Connections constituted material
violations of its charter.
Id. at 736.
Here, as in Career Connections, the facts support the CAB’s conclusion
that the Academy was not the charter school that its Charter and Applications promised
in terms of the programming to be offered to students, the partnerships developed with
Eastern University and Big Picture Schools for that programming and the outcomes
that students were to achieve related to the Academy’s mission as an early college high
school with a college-integrated learning environment. The Academy freely admits
that it unilaterally and without informing the School District disassociated itself with
Eastern University during the term of its Charter. This was a critical and material
change in the terms of the Charter. These factually supported grounds for nonrenewal
support affirmance of the CAB’s decision not to renew the Academy’s Charter.
33
Accordingly, for this reason, we find that the CAB properly concluded
that the Academy’s material violations of the requirements of its Charter was sufficient
ground for not renewing the Academy’s Charter under section 1729-A(a)(1) of the
Charter School Law.
3. Adequate Notice
The Academy argues that it was denied adequate notice of all of the bases
for the School District’s allegation that it failed to meet its stated mission to provide a
college-integrated learning experience. The Academy contends that Paragraph No. 40
of the Nonrenewal Notice only mentioned the following three grounds in support of
the mission-centered issue: (1) less than 100 students at the Academy participated in
dual enrollment at Eastern University; (2) in 2016, students were only enrolled in
remedial, pre-college electives at the Community College of Philadelphia due to late
registration by the Academy; and (3) no students from the Academy’s 2015-2016
graduating class matriculated at Eastern University. (Academy’s Br. at 24.) The
Academy further asserts that CAB “improperly expanded upon the underlying
allegations set forth in the Nonrenewal Notice, in violation of 24 P.S. §17-1729-A(c).”
(Academy’s Br. at 9.) We find the Academy’s argument is not factually or legally
supportable.
The Academy has a protected property interest in its existing charter that
implicates constitutional due process. Northside Urban Pathways Charter School v.
State Charter School Appeal Board, Pittsburgh Public School District, 56 A.3d 80, 84
(Pa. Cmwlth. 2012). The Charter School Law requires that a charter school be apprised
of the reasons for nonrenewal “with reasonable specificity.” Section 1729-A(c) of the
Charter School Law, 24 P.S. §17-1729-A(c). Section 553 of the Local Agency Law
also requires the School District to provide the Academy with reasonable notice of a
34
hearing and an opportunity to be heard. See Section 553 of the Local Agency Law, 2
Pa.C.S. §553. Adequate notice for due process purposes “requires at a minimum that
the notice contain a sufficient listing and explanation of the charges against an
individual.” Pocono Mountain Charter School, Inc. v. Pocono Mountain School
District, 88 A.3d 275, 285 (Pa. Cmwlth. 2014) (emphasis in original) (citing Caba v.
Weaknecht, 64 A.3d 39, 64 (Pa. Cmwlth. 2013)).
Here, the grounds stated in Paragraph No. 40 complied with the
“reasonable specificity” requirements of section 1729-A(c) of the Charter School Law.
Paragraph 40 of the SRC’s Nonrenewal Notice provided, in part, that: “the
[Academy’s] stated mission in its Renewal Application to provide a college integrated
learning community where graduates will have successfully mastered college level
work is inconsistently reflected in school operations and programming during the
Charter term.” (R.R. at 2677a-78a) (emphasis added).
The Academy fully litigated the grounds for nonrenewal and had the
opportunity to present witnesses, experts, and evidence on the failure to meet its
mission issue. In an effort to demonstrate that the Academy complied with its mission,
it presented the testimony of Fela Murray, the Academy’s school counselor and early-
college coordinator. On direct examination, Ms. Murray testified at the hearing that
college-level coursework is part of the Academy’s educational program, and during the
Academy’s charter, some Academy students took some college level courses at Eastern
University and the Community College of Philadelphia. (11/6/17 N.T. 72-74; R.R. at
1616a.) However, on cross-examination, Ms. Murray admitted that the Academy does
not currently have a requirement that students take college courses. (11/6/17 N.T. 187;
R.R. at 1645a.)
35
The fact that Paragraph No. 40 gave examples of the conduct which
supported the allegation in no way limited the School District from presenting evidence
of other conduct which rebutted the Academy’s evidence, and it did not prohibit CAB
from considering the entire record. Further, the Academy fails to point to any harm
caused by the alleged non-compliance. Specifically, the Academy does not explain
what other information it was precluded from presenting due to the alleged lack of
notice; therefore, it fails to demonstrate prejudice. “The mere demonstration of a
potential procedural error, without also alleging a resulting harm, is not sufficient
reason to disturb an agency adjudication.” D.Z. v. Bethlehem Area School District, 2
A.3d 712, 719 (Pa. Cmwlth. 2010). Accordingly, this Court does not discern a due
process violation in the alleged vagueness of the Nonrenewal Notice.
Conclusion
Under section 1729-A(a)(1) of the Charter School Law, a charter school’s
material violations of any of the conditions, standards or procedures contained in the
written charter is justification for nonrenewal or revocation. Having reached the
conclusion that the CAB properly concluded that the Academy’s material violation of
the requirements of its Charter was a sufficient ground for not renewing the Academy’s
Charter, it is unnecessary for us to address the Academy’s remaining arguments.
Accordingly, CAB’s order affirming SRC’s decision not to renew the
Academy’s Charter is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Crompton did not participate in this decision.
36
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Eastern University Academy Charter :
School, :
Petitioner :
: No. 1167 C.D. 2019
v. :
:
School District of Philadelphia, :
Respondent :
ORDER
AND NOW, this 10th day of July, 2020, the August 14, 2019 order of
the Commonwealth of Pennsylvania, Department of Education, State Charter School
Appeal Board is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge