West Chester Area School District v. Collegium Charter School

Justice NIGRO,

dissenting.

As I believe that the Charter School Law (“CSL”), 24 P.S. §§ 17-1701-A. to 17-1732-A., required Collegium Charter School (“Collegium”) to apply for a regional charter, I respectfully dissent.

As the majority acknowledges, the CSL sets up two separate charter application procedures, one for local charter schools and one for regional charter schools. A local charter school application must be “submitted to the local board of school directors of the district where the charter school will be located,” 24 P.S. § 17-1717-A.(e), and only that local board of school directors is empowered to vote on the application. See generally 24 P.S. § 17-1717-A.(e). In contrast, in section 17-1718-A.(b), the CSL states with respect to regional charter schools that:

The boards of school directors of one or more school districts may act jointly to receive and consider any application for *1188 a regional charter school, except that any action to approve an application for a charter or to sign a written charter of an applicant shall require an affirmative vote of a majority of all the directors of each of the school districts involved. The applicant shall apply for a charter to the board of directors of any school district in which the charter school will be located.

24 P.S. § 17-1718-A.(b).

In my view, the only way to give meaning to section 17-I718-A.(b) is to interpret it as providing an approval mechanism for a proposed charter school that is specifícally intended to serve a greater region than the school district in which it is located. 1 Moreover, T believe that a regional charter is required for such schools, because if the CSL were to leave the choice of local or regional application “completely up to the applicant,” Slip Op. at 18 (quoting West Chester Area Sch. Dist. v. Collegium Charter Sch., 760 A.2d 452, 463 (Pa.Cmwlth.2000)), the regional charter provisions would be rendered meaningless because no applicant would ever voluntarily subject itself to the magnified scrutiny of the regional charter school application procedures. 2 See 1 Pa.C.S. § 1921(a) (“Every *1189 statute, if possible, is to be construed to give effect to all its provisions.”). Furthermore, I note that it is only with the participation of all of the school districts from which the charter school intends to actively recruit students that there can be a meaningful assessment as to whether the charter school will advance the CSL’s purpose to, among other things, “improve pupil learning,” “increase learning opportunities,” and “encourage the use of different and innovative teaching methods” in each of the specifically targeted districts. 24 P.S. § 17-1702-A; see also 24 P.S. § 1717 — A. (e)(2) (iii) (requiring school boards to “evaluate the extent to which the charter application ... conforms to the legislative intent outlined in section 1702-A”).

In an attempt to give meaning to the regional charter school provisions, without requiring a prospective charter school specifically designed to serve a multi-district region to obtain a regional charter, the majority adopts the Commonwealth Court’s conclusion that the joint approval procedures for a regional charter must be used when a charter school “will be located in more than one school district.” 3 Op. at 1184 (quoting West Chester, 760 A.2d at 463 ). However, as an initial matter, I see nothing in the statute that appears to anticipate the submission of a charter application for the chartering of a school that has facilities in more than one district. 4 In fact, the statute specifically states that a charter school application must set forth “[a] description of and address of the physical facility in which the charter school will be located,” 24 P.S. § 17-1719-A.(11) (emphasis added), which, on its face, appears to foreclose the possibility of a multi-facility application. See 24 P.S. § 17-1717-A.(i)(3) (petition to appeal denial of a charter school application must state “the proposed location of the charter school.”); 24 P.S. § 17-1717-A.(i)(5) (same petition is to be presented to “the court of common pleas of the county in which the charter school would be situated.”). Moreover, even assuming for the sake of argument *1190 that the CSL permitted the bundling of several interrelated schools in a single charter application, I can conceive of no situation in which an applicant would opt to file such an application when its approval would require the consensus of a number of boards of school directors. Rather, the applicant would surely choose to submit a separate local application for each school facility, given that each such application would require the approval of only one board of school directors.

Accordingly, as I cannot agree with the majority’s interpretation of section 17-1718-A.(b), I would hold that where, as here, a charter school applicant plans at the outset to actively recruit students from select school districts other than that in which the school is physically located, the CSL requires the applicant to apply for a regional charter, thereby giving those school districts a much deserved voice in the denial or approval of the charter. 5 I recognize that a local charter school is not prohibited from enrolling nonresident students if there is insufficient enrollment from the local school district. See 24 P.S. § 1723-A.(a). However, I do not believe that this affords a charter school applicant the right to seek a local charter from a school district from which it has no expectation of generating sufficient interest, only to turn around and fill the school with students from districts which have had no say in the approval process and which will not benefit from the unanticipated siphoning of students and funds from its school system.

. This interpretation is supported by the provision of the CSL regarding a school district's obligation to provide transportation to charter school students, which states:

Students who reside in the school district in which the charter school is located or who are residents of a school district which is part of a regional charter school shall be provided transportation to the charter school on the same terms and conditions as transportation is provided to students attending the schools of the district.

24 P.S. ’ § 17-1726-A.(a) (emphasis added). By separately addressing the transportation needs of "students who reside in the school district in which the charter school is located" and "residents of a school district which is part of a regional charter school,” the General Assembly makes clear that a regional charter school presumptively serves not only students within the district in which it is located, but also those outside the local district.

. The Commonwealth Court suggested two circumstances in which an applicant might find it advantageous to apply as a regional charter school. The majority, however, does not adopt this reasoning, and I find neither circumstance proposed by the Commonwealth Court to be persuasive.

First, the Commonwealth Court hypothesized that “[bjecause single district charter schools must physically be in the district granting the charter, electing to apply for such a charter could restrict- the school’s choice of facility sites." 760 A.2d at 463 n. 28. However, what the Commonwealth Court apparently failed to recognize is that the CSL contemplates a charter school choosing a facility site prior to submitting its application for a charter. See 24 P.S. § 17-1719-A.(l l)(requiring the applicant to include in its application "[á] description of and address of the physical facility in which the charter school will be located and the ownership thereof and any lease arrangements.”); but see Brackbill v. Ron Brown Charter Sch., 777 A.2d 131 (Pa.Cmwlth.2001) (applicant need not have contracted for facility at time of application and CAB has discretion to permit change of facility if school board delay results in facility's unavailability). Moreover, an application for a regional charter school, like a local charter application, must be submitted to the "school district in which the charter school will be located.” 24 P.S. § 1718— A.(b). Accordingly, a charter school applicant cannot use the regional application process to postpone its decision as to the district in which its school will be located.

Second, the Commonwealth Court opined that "because single district charter schools must give preference to qualified students from the chartering district, schools designed to attract a multi-cultural student body or draw students from various socio-economic groups may be thwarted in their desire if the student demand is sufficient from the chartering school district.” Id. (citation omitted). Putting aside the question of whether the CSL would prohibit such an admission policy because it would discriminate on a basis that would be "illegal if used by a school district,” 24 P.S. § 17-1723-A.(b)(l), I cannot accept that the General Assembly included a regional *1189 charter provision specifically to benefit charter schools who sought to serve a multi-cul-tural population. This is particularly so when, under the Commonwealth Court’s and majority’s own interpretation of the statute, a local charter school could achieve this goal of multi-culturalism by simply focusing its recruiting efforts on a multi-cultural mix of students in both its own district and surrounding regions.

. In holding that a multi-district regional charter school need not apply for a regional charter, the majority relies in large part on its findings that "the CSL unquestionably directs the applicant to file the [regional] charter school application in the district where the facility is to be located and grants accountability over the charter school only to the chartering school district.” Op. at 1183. I fail to see the significance of either of these findings to the majority’s holding. First, that a regional charter school is only required to physically file its charter application in the district in which it will be located in no way impacts on the rights of certain other school districts to consider and vote on the application pursuant to section 17-1718-A.(b). In addition, with respect to the majority’s comments regarding accountability, I note that the issue currently before the court is not whether the school districts served by a regional charter school have the right to monitor the school's performance after the charter has been granted, but rather whether such school districts have the right to initially consider and vote on the charter application. Accordingly, the school district or districts to which the charter school is subsequently accountable is simply of no moment here.

. It is conceivable that a charter school would have a single facility that straddles the border of two school districts, but I do not understand the majority and Commonwealth Court to be referring to such an anomaly. Rather, I understand them to be interpreting "regional charter school” to be some sort of umbrella organization that operates a collection of schools in separate locations.

. Under the majority’s interpretation, a charter school could locate immediately within the border of a school district from which it expects very little community resistance. After obtaining a charter from that district, it could focus its recruiting efforts in a neighboring district, and, in fact, enroll the majority of its students from that neighboring district. As the local charter school application process does not require that the effects on neighboring districts be considered, there is nothing to guard against this arrangement having a devastating effect on the neighboring district. In essence, the majority permits charter school applicants to forum shop for the most charter school-friendly- school board, without regard for those communities that the school will actually affect. I simply do not believe that the General Assembly intended such a result.