The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Propel Charter Schools, :
Petitioner :
:
v. :
:
Pennsylvania Department of Education :
(State Charter School Appeal Board), : No. 1209 C.D. 2020
Respondent : Argued: October 18, 2021
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: November 19, 2021
Propel Charter Schools (Propel) petitions this Court for review of the
State Charter School Appeal Board’s (CAB) December 22, 2020 order that denied
Propel’s appeal from CAB’s Hearing Officer’s (Hearing Officer) order granting the
Pennsylvania Department of Education’s (Department) motion to supplement the
record with Propel’s 2017-18 school performance profile (SPP) scores (Motion to
Supplement), and denied Propel’s appeal from the Department’s denial of Propel’s
application (Application) to operate a Multiple Charter School Organization
(MCSO). Propel presents three issues for this Court’s review: (1) whether Propel’s
failure to adhere to the Department’s MCSO Application Guide (Application Guide)
is a proper basis for denying Propel’s MCSO Application; (2) whether the
Department’s Application Guide is an improper regulation; and (3) whether CAB
erred when it interpreted the Charter School Law (CSL)1 to allow the consideration
1
Act of March 10, 1949, P.L. 30, as amended, added by Section 1 of the Act of June 19,
1997, P.L. 225, 24 P.S. §§ 17-1701-A - 17-1751-A.
of SPP data that became available after Propel filed the MCSO Application.2 After
review, this Court affirms.3
In February 2018, the Department published an application form
(Application Form) to be completed by charter schools seeking to establish an
MCSO, and published the Application Guide in conjunction with the Application
Form.
On May 4, 2018, Propel submitted the Application to the Department,
wherein Propel sought to consolidate eight of its preexisting charter schools as a
single MCSO. The preexisting charter schools included: Propel Schools (operating
as Propel Charter School-Homestead); Propel Charter School - East; Propel Charter
School - McKeesport (Propel-McKeesport); Propel Charter School - Montour
(Propel-Montour); Propel Charter School - Northside; Propel Charter School -
Pitcairn; and Propel Charter School - Hazelwood. The Department received the
Application on May 7, 2018.
Propel also submitted its Application to the School District of
Pittsburgh, Steel Valley School District, Woodland Hills School District, Penn Hills
School District, McKeesport School District, Montour School District and Gateway
School District. Pursuant to Section 1729.1-A(a) of the CSL,4 24 P.S. § 17-1729.1-
A(a), each school district and the Department had 45 days to render a decision on
the Application. On June 18, 2018, the School District of Pittsburgh voted to deny
the Application. No other school district responded to the Application within 45
days and, therefore, the Application was deemed approved by those school districts.
2
This Court has reordered Propel’s issues for ease of discussion.
3
This matter was argued seriately with Propel Charter Schools v. School District of
Pittsburgh (Pa. Cmwlth. No. 1210 C.D. 2020, filed Nov. 19, 2021).
4
Section 1729.1-A of the CSL was added by Section 10 of the Act of November 6, 2017,
P.L. 1142.
2
On June 20, 2018, the Department denied the Application. The
Department based its denial on deficiencies in the following areas:
• Demonstration of Proper Planning and Preparation for
Delivery of Educational Programs to Students
o Special Education
o Finance
• Governance
• General Application Requirements
Reproduced Record (R.R.) at 5445a (emphasis added). With respect to the General
Application Requirements,5 the Department concluded:
5
The Department found Propel’s Application deficient, in part, based on Propel’s failure
to comply with the sequential review instructions in the Department’s Application Guide. The
Department’s Application Guide provides, in relevant part:
The General Assembly did not provide express direction concerning
the sequence of submission and review of MCSO applications to the
chartering school district(s) and the Department. Therefore, the
Department has concluded that the most reasonable way to
implement the requirements relating to submission and review is
through a sequential review.
Under this sequential review process, the establishment of an MCSO
begins with the submission of a complete and verified MCSO
[a]pplication to the chartering school district(s) for each charter
school under the proposed MCSO. In the case of a regional charter
school, or when the charter schools seeking to form an MCSO have
different chartering school districts, the MCSO [a]pplication must
be submitted to all chartering school districts simultaneously.
Chartering school district(s) have 45 days to review and act on an
application for creation of an MCSO; if no action occurs within the
45 days, the application is deemed approved. 24 P.S. § 17-1729.1-
A(a)(2). If a chartering school district disapproves an application
and that disapproval is subsequently reversed by [] CAB[], see 24
P.S. § 17-1729.1-A(f), the application will be considered approved
as of the date of CAB’s written determination unless otherwise
stayed by an appropriate order.
After approval by the chartering school district(s) (or CAB) or the
passage of 45 days, the MCSO [a]pplication is submitted to the
Department. The MCSO [a]pplication submitted to the Department
must be identical to that approved by the chartering school
district(s). The Department has 45 days for review and action. 24
3
Because the MCSO Application submitted by [Propel] did
not contain a proper date for when the Application was
submitted to the chartering school districts, and because
the MCSO Compliance Certification had been altered, [the
Department] requested that [Propel] specifically identify
the dates on which the Application was submitted to the
districts and the action taken by, the districts. In response,
[Propel] identified that the MCSO Application was
received by Woodland Hills School District on May 3,
2018, and Gateway School District, McKeesport School
District, Montour School District, Penn Hills School
District, Pittsburgh School District, and Steel Valley
School District on May 4, 2018; this information confirms
that [Propel] did not comply with the application
requirements. [The Department] also provided [Propel]
with a new, unaltered MCSO Compliance Certificate to be
executed and attested to by the proposed members of the
MCSO’s board of trustees. [Propel] did not resubmit the
MCSO Compliance Certificate as requested.
Based on the above, [Propel] failed to submit its
[A]pplication to form an MCSO to all its chartering school
districts at least 45 days prior to submitting its
[A]pplication to [the Department], and failed to properly
complete the MCSO Compliance Certificate required as
part of the MCSO [A]pplication, and the MCSO
Application is, therefore, denied.
R.R. at 5453a.
On July 17, 2018, Propel filed an appeal to CAB. Propel’s Application
relied on Propel-McKeesport as its lone qualifying school to satisfy the CSL’s
P.S. § 17-1729.1-A(a)(1). Disapproval by the Department is also
subject to an appeal to CAB. See 24 P.S. § 17-1729.1-A(f).
This sequential review allows charter schools to address and resolve
any concerns with the chartering school district(s), which have
closer oversight of the charter schools, before seeking the
Department’s approval. Also, the sequential review eliminates the
possibility of conflicting decisions on an MCSO [a]pplication being
issued by the chartering school district(s) and the Department at the
same time.
R.R. at 5869a-5870a.
4
MCSO approval requirement that at least one member school must have an SPP
score that is among the top 25th percentile of Pennsylvania charter schools as
measured by the SPP for the two most recent school years.
At the time Propel filed the Application with the Department, the two
most recent school years for which SPP scores were available were the 2015-16 and
2016-17 school years. On December 21, 2018, the Department published SPP scores
for the 2017-18 school year. On January 9, 2019, based upon the SPP scores for the
2017-18 school year, the Department updated its MCSO Eligibility List.
On January 29, 2019, the Department filed the Motion to Supplement.
The purpose of the Motion to Supplement was to provide CAB with evidence that
Propel-McKeesport was no longer ranked in the top quartile as it had been for the
2015-16 and 2016-17 school years. Because Propel-McKeesport had been the only
school with an SPP score in the top quartile of charter schools in the Commonwealth,
none of the eight schools in the proposed MCSO had an SPP score that would qualify
Propel for MCSO eligibility. Along with its Motion to Supplement, the Department
filed a Motion for Summary Judgment and Memorandum of Law in Support thereof.
On March 19, 2019, the Hearing Officer granted the Motion to Supplement (March
19, 2019 Order). Propel appealed to CAB from the Hearing Officer’s March 19,
2019 Order.
On May 21, 2019, the parties argued Propel’s direct appeal to CAB
from the Hearing Officer’s March 19, 2019 Order and Propel’s appeal from the
Department’s decision denying Propel’s Application. Prior to the hearing, CAB
Member Lee Ann Munger (CAB Member Munger) and the Department Secretary
recused themselves from participating in both appeals.6
6
CAB Member Munger explained that her children attend Propel.
5
At CAB’s June 18, 2019 meeting, CAB Member Munger and the
Department Secretary recused themselves from the vote, leaving a quorum - four
CAB members - who voted 4-0 to deny Propel’s appeal from the Hearing Officer’s
March 19, 2019 Order. Also, on June 18, 2019, CAB voted 3-1 to deny Propel’s
appeal from the Department’s decision to deny Propel’s Application; however, CAB
tabled the matter as a nonactionable vote because CAB determined, in accordance
with its interpretation of the CSL, that the 3-1 vote did not constitute a valid CAB
action.7
On July 24, 2019, with the Department Secretary and CAB Member
Munger again recusing, the same four CAB members voted on the substantive
appeal from the Department’s denial, resulting in another 3-1 vote, which CAB did
not recognize as a valid CAB action. Once more, CAB tabled the matter.
On September 6, 2019, Propel filed a Motion to Permit CAB Member
Munger to Vote. CAB counsel held a conference call with all of the parties to discuss
Propel’s Motion to Permit CAB Member Munger to Vote. On September 16, 2019,
the Department filed its response in opposition thereto. On September 25, 2019,
Propel withdrew its Motion to Permit CAB Member Munger to Vote, and filed a
Motion to Allow Vote of 3-1 in this Matter as Proper (Vote Motion). On October 7,
2019, the Department filed its response thereto. At CAB’s October 22, 2019
meeting, the parties argued the Vote Motion and CAB voted to deny the Vote
Motion, and again attempted to vote on the substantive appeal, that resulted in a 3-1
vote to deny. CAB tabled the matter for a revote at its December 3, 2019 meeting.
On November 27, 2019, CAB issued a written order denying the Vote Motion. On
December 26, 2019, Propel appealed to this Court. On that same date, Propel also
filed a Petition for Review in the Nature of a Declaratory Judgment Complaint in
7
Because a majority of the six CAB members did not vote unanimously, CAB determined
that the 3-1 vote did not constitute a valid CAB action.
6
this Court’s original jurisdiction seeking a declaration that the CAB votes and
revotes were proper, and an order for CAB to promptly issue a written decision.8
On November 20, 2020, this Court ruled that CAB’s 3-1 vote was
proper, and reversed CAB’s November 27, 2019 order.9 This Court further directed
that Propel had 30 days therefrom to appeal from CAB’s denial of Propel’s
substantive appeal. On November 25, 2020, Propel filed the instant Petition for
Review.10 On December 23, 2020, CAB issued its written decision in support of its
June 18, 2019 vote of 3-1 denying Propel’s appeal and its denial of Propel’s appeal
from the Hearing Officer’s March 19, 2019 Order.11
Propel argues that CAB erred when it concluded that Propel’s failure to
comply with the Department’s Application Guide, specifically its requirement that
Propel first submit the MCSO Application to the school districts and, only after
approval by the school districts, to the Department, is a proper basis for denying
Propel’s Application. Propel expressly asserts:
[The Department’s] invented “requirement” for sequential
review and approval of the Application cannot be a reason
8
In February 2020, both the Department and Propel filed motions to supplement the record
with SPP scores issued by the Department for the 2018-19 school year. Propel-McKeesport was
once again in the top 25% for 2018-19, based upon the updated MCSO Eligibility List. On
February 20, 2020, the parties submitted Joint Stipulations seeking to admit evidence with respect
to the most recent MCSO Eligibility List and Propel-McKeesport’s 2018-19 SPP score. The
motions to supplement were deemed moot, and the Joint Stipulations were admitted into the record
at CAB’s February 25, 2020 meeting.
9
See Propel Charter Sch. v. Pa. Dep’t of Educ., 242 A.3d 985 (Pa. Cmwlth. 2020); Propel
Charter Sch. v. Pa. Dep’t of Educ., 243 A.3d 322 (Pa. Cmwlth. 2020); Propel Charter Sch. v.
Charter Sch. Appeal Bd. (Pa. Cmwlth. No. 1827 C.D. 2019, filed Nov. 20, 2020).
10
“Our review of [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.” New Hope Acad. Charter Sch. v. Sch. Dist. of the City of York, 89 A.3d
731, 736 (Pa. Cmwlth. 2014).
11
CAB did not file an opinion in support of its June 18, 2019 vote denying Propel’s
substantive appeal before this Court issued its November 20, 2020 decision, due to its conclusion
that the vote was not valid.
7
for denial by CAB or [the Department]. The timing of the
Application submittal by Propel to [the Department]
(i.e.[,] simultaneous or later) is of no moment to [the
Department] in its evaluation of Propel’s [A]pplication.
Whether or not Propel submitted its [A]pplication in a
particular sequence does not bear on [the Department]’s
analysis as to whether Propel is eligible to consolidate.
The MCSO [P]rovisions contained in the CSL do not
require - or even provide for - a sequential review process.
Propel Br. at 28.
In its Decision, CAB explained:
[T]he Application Guide . . . explicitly states that “the most
reasonable way to implement the [MCSO’s] requirements
relating to submission and review is through a sequential
review.” ([] Application Guide[ at] 2). The Application
Guide goes on to state that “[a]fter approval by the
chartering school district(s) (or CAB) or the passage of 45
days, the MCSO [a]pplication is submitted to the
Department.” ([] Application Guide[ at] 2). While the
Application Guide’s language is not expressed as a
command or mandate (e.g., “the review shall be
sequential”), no reasonable reading of that language would
interpret it as providing an applicant with discretion in the
timing of its filings, and an applicant choosing its own
filing sequence would necessarily do so at its peril.
Therefore, Propel’s argument in this regard provides no
grounds on which to reverse the denial of its Application.
CAB Dec. at 24, R.R. at 5833a.
Section 1729.1-A of the CSL, which provides for the establishment of
MCSOs (MCSO Provisions), states, in relevant part:
(a) Establishment shall be as follows:
(1) Subject to the requirements of this section and [Part
2, Subchapter C of the Associations Code, ]15 Pa.C.S.
Pt. II Subpt. C[, 15 Pa.C.S. §§ 6101-6162] (relating to
8
nonprofit corporations),[12] two (2) or more charter
schools may consolidate into a[n] [MCSO] if both of
the following apply:
(i) The [D]epartment approves the consolidation
as proposed in the application form submitted to the
[D]epartment pursuant to subsection (c). If the
[D]epartment does not approve or disapprove the
proposed consolidation within forty-five (45) days
after receipt of the application, the [D]epartment will
be deemed to have approved the consolidation.
(ii) Each school district that granted the initial
charter of any charter school included in the
proposed consolidation approves, by a majority
vote of the local board of school directors, a
resolution approving the consolidation as proposed in
the application submitted to the local board of school
directors pursuant to subsection (c). If a local board
of school directors does not adopt a resolution under
this clause approving or rejecting the proposed
consolidation within forty-five (45) days after receipt
of the application, the school district will be deemed
to have approved the consolidation.
....
(b) (1) A charter school that, within either of the most
recent two (2) school years, has failed to meet any of
12
The Department contends that “[c]harter schools seeking to form an MCSO must
maintain eligibility pursuant to [S]ection 1729.1-A(b) [of the CSL] until the merger has become
effective.” Department Br. at 13. Further,
[c]harter schools seeking to merge as an MCSO are expressly
subject to the requirements of . . . Pt. [II] Subpt. C [of the
Associations Code]. 24 P.S. § 17-1729.1-A(a)(1). The Associations
Code[, 15 Pa.C.S. §§ 101-9507,] requires a regulated entity obtain
the necessary approvals “before it may participate in any form of
transaction under this chapter.” 15 Pa.C.S. §§ 103, 314(a). A
merger under the Associations Code is not effective until the plan or
statement has been filed with the Pennsylvania Department of State,
which entities may not do until the necessary approvals have been
obtained. 15 Pa.C.S. § 335(e)-(g).
Department Br. at 14.
9
the following shall not be eligible to consolidate with
another charter school:
(i) Requirements for student performance set forth in
[Chapter 4 of the State Board of Education’s
Regulations,] 22 Pa. Code Ch. 4[, §§ 4.1-4.82]
(relating to academic standards and assessment).
(ii) Accepted standards of fiscal management or audit
requirements.
(iii) A[n] [SPP] score that is among the top twenty-
fifth percentile of Pennsylvania charter schools as
measured by the [SPP] for the most recent year for
which a[n] [SPP] score is available.
(2) A charter school that has failed to meet any of the
requirements of paragraph (1) may consolidate if
the consolidation includes a charter school
demonstrating that it has satisfied such
requirements for the most recent two (2) school
years.
(c) Within ninety (90) days of the effective date of this
section, the [D]epartment shall develop and issue a
standard application form that [MCSO] applicants
must submit to the [D]epartment and to the local board
of school directors of each school district that granted the
initial charter of any charter school included in the
proposed consolidation. . . .
....
(f) Appeals shall be as follows:
(1) [CAB] shall have the exclusive review of an appeal
by an applicant for consolidation, with respect to the
rejection of a proposed consolidation by either the
[D]epartment or a school district.
(2) In considering an appeal under this section, [CAB]
shall:
(i) Review the decision made by either the
[D]epartment or the school district on the record as
certified by the entity that made the decision being
appealed, provided that [CAB] may allow the
10
[D]epartment, a school district or the applicant
for consolidation to supplement the record if the
supplemental information was previously
unavailable.
(ii) Meet to officially review the certified record no
later than thirty (30) days after the date of filing the
appeal.
(iii) Issue a written decision affirming or denying the
appeal no later than sixty (60) days following its
review of the certified record.
(iv) Make its decision based on whether the
proposed consolidation satisfies the requirements
of subsections (b) and (c).
....
(4) All decisions of [CAB] shall be subject to appellate
review by the Commonwealth Court. In the event of an
appeal of a decision by [CAB] to the Commonwealth
Court, the decision of [CAB] shall be stayed only upon
order of [CAB], the Commonwealth Court or the
Pennsylvania Supreme Court.
24 P.S. § 17-1729.1-A (emphasis added).
Propel argues that its failure to comply with the Department’s
sequential review process set forth in the Application Guide is not a valid basis for
the Department or CAB to deny the Application. The Department’s Application
Guide provides that only after obtaining the approval from the applicable school
districts, as required in Section 1729.1-A(a)(1)(ii) of the CSL, may the applicant
submit an application to the Department under Section 1729.1-A(a)(1)(i) of the CSL.
Propel correctly observes that there is no such requirement in the CSL’s
MCSO Provisions, as Section 1729.1-A(a)(1) of the CSL simply provides that
applications are to be submitted to the applicable school districts and to the
Department, and that the school districts and the Department must render their
11
decisions within 45 days of their receipt of the respective application or the
respective application will be deemed approved. See 24 P.S. § 17-1729.1-A(a)(1).13
In response, the Department argues that, pursuant to Section 1729.1-
A(c) of the CSL, it was required to develop a standard MCSO application. Although
Section 1729.1-A of the CSL does not mandate sequential review, the Department
concluded that sequential review was “the most reasonable way to implement the
requirements relating to submission and review[.]” Department Br. at 17. It
contends that its interpretation of the MCSO Provisions of the CSL is entitled to
deference since it is the agency charged with the CSL’s implementation and, as an
interpretive rule, the Department’s interpretation of Section 1729.1-A of the CSL
providing for sequential review is not clearly erroneous, unwise, or violative of
legislative intent.
The Pennsylvania Supreme Court has explained:
This Court has held “[a]n interpretation by the agency
charged with the administration of a particular law is
normally accorded deference, unless clearly erroneous.”
Harkness v. [Unemployment Comp. Bd. of Rev.], . . . 920
A.2d 162, 171 ([Pa.] 2007). Moreover, since Harkness,
we have described two types of agency interpretations
which are accorded different levels of deference. Agency
interpretations that are promulgated in published rules and
regulations have been referred to as “legislative rules” and
“are accorded a particularly high measure of deference[,]”
also known as Chevron[14] deference, and “enjoy a
presumption of reasonableness[.]” N[w.] Youth Serv[s.,
Inc. v. Dep’t of Pub. Welfare,] 66 A.3d [301,] 310-11 [(Pa.
2013)]. Non-legislative rules, also known as “interpretive
rules” or “guidance documents,” such as “manuals,
interpretive memoranda, staff instructions, policy
statements, circulars, bulletins, advisories, [and] press
13
Section 1729.1-A(a)(1) of the CSL merely lists approval by both the Department and the
applicable school districts as requirements for an MCSO. Notably, Section 1729.1-A(a)(1) of the
CSL lists the Department’s approval first. See 24 P.S. § 17-1729.1-A(a)(1)(i), (ii).
14
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
12
releases” are accorded “a lesser quantum of deference[,]”
also known as Skidmore[15] deference, which allows an
agency’s interpretation to be disregarded when a court is
“‘convinced that the interpretative regulation adopted by
an administrative agency is unwise or violative of
legislative intent.’” Id. at 310-12, quoting Pa. Hum[.]
Rel[.] Comm’n v. Uniontown Area Sch[.] Dist[.], . . . 313
A.2d 156, 169 ([Pa.] 1973).
Harmon v. Unemployment Comp. Bd. of Rev., 207 A.3d 292, 299-300 (Pa. 2019)
(footnotes omitted). The Department asserts that the Application Guide is an
interpretive rule, which should be afforded Skidmore deference.
With respect to an initial application for a charter under Section 1717-
A of the CSL, this Court has explained:
[T]he legislature apparently appreciated that timeliness
was an important element in assuring the fairness of the
charter school application and review process. This is
evident from the legislature’s inclusion of time limitations
at every stage of these proceedings under the CSL. Thus,
the essence of the thing to be accomplished by the CSL
is the prompt adjudication of charter school
applications. It is with this in mind that we recently
considered a time limitation imposed under the CSL and
held:
The [CSL] emphasizes that time is of the essence
and directs the local school boards and [CAB] to
quickly resolve the issue of whether to grant or deny
an institution[’]s charter school application. Thus,
we conclude that the legislature’s use of the word
“shall” in Section 1717-A(i)(8) [of the CSL] . . . is
mandatory, requiring [CAB] to issue its written
decision and order within 60 days of its final hearing
on an application.
Shenango Valley Reg[’l] Charter Sch[.] v. Hermitage
Sch[.] Dist[.], 756 A.2d 1191, 1194 (Pa. Cmwlth. 2000).
15
Skidmore v. Swift & Co., 323 U.S. 134 (1944).
13
Sch. Dist. of Phila. v. Indep. Charter Sch., 774 A.2d 798, 802-03 (Pa. Cmwlth. 2001)
(emphasis added; footnotes omitted).
Similarly, here, the General Assembly imposed a strict 45-day MCSO
application review time limit for both the Department and the school districts,
providing that if a decision was not rendered on the application within the allotted
time, the application would be deemed approved. See 24 P.S. § 17-1729.1-
A(a)(1)(i),(ii). It also imposed strict time requirements on CAB’s disposition of
appeals therefrom. See 24 P.S. § 17-1729.1-A(f)(2)(ii), (iii).
In its Application Guide, the Department requires, without explicit
statutory authority, an applicant to obtain the applicable school districts’ approval
before submitting an application to the Department. In doing so, the Department
extended a process, the timeframe for which the General Assembly explicitly
dictated. Because an applicant that might otherwise submit applications to the
school districts and the Department on the same day, in accordance with the
Application Guide, must wait up to 45 days for the school districts’ decision before
filing the application with the Department, the application process time period
envisioned by the General Assembly is effectively doubled. Such an interpretation
of the CSL is clearly inconsistent with the aforementioned legislative intent. See
Harmon. Because CAB’s interpretation is inconsistent with the CSL, it does not
merit Skidmore deference.16 Accordingly, CAB erred when it concluded that
Propel’s failure to comply with the Department’s requirement that Propel first
submit the MCSO Application to the school districts and, only upon approval by the
16
Propel also contends that CAB erred when it relied on the Application Guide because
the Application Guide is an improper regulation. The Department denies that it attempted to create
binding regulations through the use of the Application Guide. See Department Br. at 20. Rather,
the Department claims the Application Guide is an interpretive rule. Based on this Court’s ruling
that the Department’s interpretive rule with respect to sequential review is violative of legislative
intent, the Department’s interpretation is to be disregarded.
14
school districts, to the Department, was a proper basis for denying Propel’s
Application.
Propel next argues that CAB erred when it denied Propel’s appeal from
the Hearing Officer’s decision granting the Motion to Supplement by interpreting
the CSL to allow CAB to consider SPP data that became available after Propel filed
the Application.17
The Pennsylvania Supreme Court has held that “CAB must apply a de
novo standard of review when entertaining appeals from a [school d]istrict [b]oard’s
denial of a charter school application.” W. Chester Area Sch. Dist. v. Collegium
Charter Sch., 812 A.2d 1172, 1180 (Pa. 2002).18 Pursuant to Section 1729.1-
17
According to Propel, its lack of eligibility under the MCSO Provisions pertaining to SPP
scores resulted from CAB’s lengthy delay in rendering a decision on its Application.
18
West Chester involved Section 1717-A of the CSL, added by the Act of June 19, 1997,
P.L. 225, 24 P.S. § 17-1717-A, rather than Section 1729.1-A of the CSL. The West Chester Court
explained:
Section []1717-A(i)(6) [of the CSL, 24 P.S. § 17-1717-A(i)(6)]
grants [] CAB discretion to permit the parties to supplement the
record with previously unavailable information. Such directive is
inconsistent with traditional appellate review. Moreover, [Section
1717-A(i)(10) of] the CSL specifically articulates that “all decisions
of the appeal board shall be subject to appellate review by the
Commonwealth Court.” 24 P.S. § 17-1717-A(i)(10) (emphasis
added). Had the Legislature intended [] CAB to also utilize an
appellate standard of review, it could have similarly provided.
Finally, we note that the composition of [] CAB supports a finding
of de novo review. [] CAB is not comprised of attorneys capable of
conducting a legal examination of the evidence, but rather consists
of persons who have a perspective on public education. See [Section
1721-A of the CSL,] 24 P.S. § 17-1721-A(a) (stating composition
of CAB as: a parent, a school board member, a certified teacher, a
faculty or administrative employee, a business person, and a
member of [the] State Board of Education).
W. Chester, 812 A.2d at 1180. Similarly, Section 1729.1-A of the CSL grants CAB discretion to
supplement the record and provides that all CAB decisions shall be subject to appellate review by
this Court. Thus, this Court concludes that Section 1729.1-A of the CSL similarly contemplates
that CAB will conduct a de novo review.
15
A(f)(2)(i) of the CSL, CAB’s review of the decision below may allow
supplementation of the record, and, pursuant to Section 1729.1-A(f)(2)(iv) of the
CSL, CAB must make an independent determination of whether the charter
school has satisfied the requirements of Subsection 1729.1-A(b) of the CSL
(disqualifying MCSO applicants that, within either of the most recent two school
years have failed to meet student performance requirements, failed to maintain fiscal
management standards, or failed to achieve SPP scores in the top 25 percentile)
and Subsection 1729.1-A(c) of the CSL.
In approving the Hearing Officer’s record supplementation with the
2017-18 school year SPP data, CAB noted that Section 1729.1-A(f)(2)(i) of the CSL
authorized it to supplement the record and further reasoned:
It is without question that the information related to SPP
scores issued by the Department for the 2017-18 school
year was previously unavailable and could not have been
obtained or submitted for inclusion in the record prior to
the Department’s decision to deny Propel’s [] Application.
As such, the evidence related to the Charter Schools
Meeting [MCSO] Eligibility Criteria - 24 P.S. § 17-
1729.1-A, containing 2016-17 and 2017-18 data,
appended to the Department’s Motion to Supplement,
clearly constitutes admissible supplementary evidence.
Thus, the Hearing Officer properly granted the
Department’s Motion to Supplement, and the updated
MCSO Eligibility List, containing the 2017-18 school year
SPP scores, shall be admitted into the record.
CAB Dec. at 18-19, R.R. at 5827a-5828a. CAB concluded that the most recently
available SPP data was relevant information given its duty to ensure compliance
with the CSL’s requirement that at least one charter school had met the required SPP
threshold for the two most recent school years for which scores were available. See
CAB Dec. at 20, R.R. at 5829a; see also 24 P.S. § 17-1729.1-A(b).
16
CAB rejected Propel’s argument19 that it should only consider the SPP
scores that were available at the time of its Application, explaining:
These arguments were well made but ultimately
unpersuasive in light of the more overarching intent of the
General Assembly in enacting the CSL, which provides in
relevant part:
It is the intent of the General Assembly, in enacting
this article, to provide opportunities for teachers,
parents, pupils and community members to establish
and maintain schools that operate independently
from the existing school district structure as a method
to accomplish all of the following:
(1) Improve pupil learning.
(2) Increase learning opportunities for all pupils.
....
(5) Provide parents and pupils with expanded choices
in the types of educational opportunities that are
available within the public school system.
(6) Hold the schools established under this [A]ct
accountable for meeting measurable academic
standards . . . .
[Section 1702-A(1), (2), (5) and (6) of the CSL,] 24 P.S. §
17-1702-A(1), (2), (5) and (6).
In support of the CSL’s intent to hold charter schools
accountable for meeting measurable academic standards,
it appears that the General Assembly enacted the SPP
score criteria in MCSO Section []1729.1-A(b)(1) and (2)
19
According to CAB, Propel essentially claimed that “the qualifier []as of the date of the
Application[] must be read into the ‘most recent two (2) school years’” language in Section 1729.1-
A(b)(1) of the CSL, CAB Dec. at 28, R.R. at 5837a (italics added), and that “the ‘mandatory
timelines for action on both charter school applications and MCSO applications’ [were] statutory
illustrations of legislative intent not to allow for repeatedly reevaluating an MCSO’s eligibility
based on updated information, including previously unavailable SPP scores.” CAB Dec. at 29,
R.R. at 5838a.
17
[of the CSL] as quality-control measures for schools
seeking to consolidate. If an applicant school cannot
demonstrate its success as measured by its ranking, then it
cannot be qualified to expand itself through the MCSO
process. To hold that [] CAB may only consider the SPP
score rankings from the two years immediately prior to the
application date would be inconsistent with the legislative
intent to improve learning and learning opportunities, and
to hold charter schools to measured standards. As the
intent expressed in [S]ection []1702-A(1) and (2) [of the
CSL] for increased learning and learning opportunities is
a continuing goal not limited to a single point in time, the
issue of the quality of learning being provided by schools
proposing to consolidate is always relevant. Therefore,
SPP rankings are also always relevant.
CAB Dec. at 29-30, R.R. at 5838a-5839a. Notably, the express prohibition on
merging in Section 1729.1-A(b) of the CSL, where, inter alia, the proposed MCSO
fails to include a charter school that meets the 25th percentile SPP requirement, is a
separate threshold from the school district’s and the Department’s approval
requirement contained in Section 1729.1-A(a) of the CSL.
Propel cites Souderton Area School District v. Souderton Charter
School Collaborative, 764 A.2d 688 (Pa. Cmwlth. 2000), and Brackbill v. Ron
Brown Charter School, 777 A.2d 131 (Pa. Cmwlth. 2001), to support its contention
that CAB erred when it supplemented the record in this matter with the SPP data
released after Propel filed the Application, because “CAB and [the] Commonwealth
Court have interpreted . . . the [CSL] to provide for eligibility at the time the
application was submitted.” Propel Br. at 21. Both Souderton and Brackbill
involved the loss or the potential loss of a facility location identified in a charter
school application.
In Souderton, CAB disagreed with a school board’s finding that the
proposed short-term facility location was inappropriate and was a substantial safety
and welfare risk to students. Given that the charter school’s plan was more than two
18
years out of date, CAB questioned whether the proposed facility was still available
for the charter school’s use. Nonetheless, CAB noted its responsibility to review the
application on the record certified by the school board as submitted, and concluded
that since the application was acceptable at the time it was submitted, it did not
constitute a basis for denial.
On review, this Court explained:
[I]n its opinion, [] CAB simply points out the very real
possibility that, because [the applicant’s] [a]pplication is
more than two years old, the [s]trip [m]all [f]acility that
was to house the charter school may no longer be
available. Despite this realization, [] CAB recognized
that, in ruling on [the applicant’s] appeal, [] CAB only
could review the suitability of the [s]trip [m]all [f]acility
presented in the [a]pplication. Having determined that this
[s]trip [m]all [f]acility was available and acceptable at the
time the [a]pplication was submitted, [] CAB could not
deny [the applicant’s] appeal based on the possibility that
this particular facility might not be available currently.
Viewing [] CAB’s order in light of the reasoning set forth
in its opinion, it becomes apparent that, in directing the
[d]istrict [b]oard to sign [the applicant’s] charter school
[a]pplication, [] CAB refers only to the [a]pplication
including the [s]trip [m]all [f]acility. The final sentence
of [] CAB’s order merely reflects [] CAB’s recognition of
a possible problem with the [a]pplication’s listed facility.
Thus, [] CAB directs [the applicant] to inform the
[s]chool [d]istrict and [] CAB in the event that [the
applicant] would need to use a different facility. In this
way, the [s]chool [d]istrict and [] CAB would be aware
that [the applicant] would have to submit a new
application to the [d]istrict [b]oard and afford the
[d]istrict [b]oard an opportunity to consider whether
the facility is appropriate under the CSL.
Souderton, 764 A.2d at 697-98 (footnote omitted; bold emphasis added).
In Brackbill, a school district challenging CAB’s grant of a charter
claimed that CAB erred because the proposed location listed in the charter
19
application was no longer available. This Court rejected the school district’s
argument, reasoning:
The [c]harter [s]chool properly listed two facilities in its
application in compliance with the statutory requirement.
The [s]chool [d]istrict, through the delay caused by its
inaction, appears to have caused the [c]harter [s]chool’s
loss of rights in these proposed facilities. It would be
unreasonable to expect an applicant to maintain rights in
the precise vacant property listed in an application for the
period which it has taken for the revised application to
wend its way from the [d]istrict [b]oard to [] CAB to this
[C]ourt. Moreover, by failing to act on the revised
application, the [s]chool [d]istrict abdicated to [] CAB the
authority to review all of the relevant criteria. We believe
that [] CAB appropriately weighed this factor in its
determination to grant the charter. Although an applicant
must include a proposed facility in its application, there is
no requirement that the facility be under a contractual
obligation before the charter is granted. On the contrary,
[] Section 1717-A(e)(2) [of the] CSL simply provides
that[]
[a] charter school application submitted under this
article shall be evaluated . . . based on criteria
including, but not limited to, the following:
***
(iii) The extent to which the application considers the
information requested in [S]ection 1719-A [of the
CSL]. . . .
24 P.S. § 17-1717-A(e)(2). [] CAB found that the [c]harter
[s]chool had met the statutory requirements and thus had
appropriately considered the facility necessary for
operation of its school. Therefore, we believe [] CAB
acted within its discretion in granting the charter subject
to the requirement that the [c]harter [s]chool present
information regarding its facility prior to the opening
of the school.
20
Brackbill, 777 A.2d at 139 (footnote omitted; bold emphasis added).20
Notably, in both of these cases involving the review of an initial charter
application, this Court affirmed CAB’s decision where that decision conditioned
the charter grant on the applicant providing updated facility information to
determine compliance with the CSL. Thus, although the applications were
approved based on the information submitted, the ultimate charter grant was
conditioned on CSL compliance involving circumstances occurring after the
application submission date. Accordingly, neither Souderton nor Brackbill stand for
20
Apart from its reliance on Souderton and Brackbill, Propel contends that “[a] second,
but equally important aspect of the CSL that provides evidence of the General Assembly’s
legislative intent are the mandatory timelines for action on both charter school applications and
MCSO applications.” Propel Br. at 21. Propel further urges:
As noted by the Commonwealth Court in Independence Charter
School, “the legislature apparently appreciated that timeliness was
an important element in assuring the fairness of the charter school
application and review process.” [Id.] at 803. These provisions
apply equally to the MCSO [P]rovisions as they do to establishing
the charter school . . . .
Propel Br. at 23. According to Propel,
good sense and practicality demand that the relevant time period to
consider the SPP data in the instant appeal is at the time the
Application was filed with [the Department]. Any other possible
result would allow for the charter schools that have filed a
consolidation application to potentially be subject to a rollercoaster
of eligibility determinations based upon updated data while the
application sits in litigation limbo.
Propel Br. at 26-27 (footnote omitted). This Court disagrees.
When considering an MCSO appeal, CAB is specifically charged with a duty to ensure that
the applicant is not ineligible due to the applicant’s failure to maintain student performance
requirements, lack of accepted standards of fiscal management or audit requirements and that the
applicant has an SPP profile among the top 25th percentile. See 24 P.S. § 17-1729.1-A(f)(2)(iv)
(referencing Section 1729.1-A(b) and (c) of the CSL). Unlike both Souderton and Brackbill, where
the charter school applicants were unable to prevent a private landlord from leasing to another
their intended future location, an applicant’s adherence to the standards in Section 1729.1-A(b) of
the CSL, is within the applicant’s control. It is not unreasonable to expect an MCSO applicant to
maintain the required standards at least until CAB has rendered a decision on its MCSO application
appeal.
21
the proposition that CAB must ignore changes in circumstances occurring after the
application date which render applicants statutorily ineligible to effect a merger
under the CSL.
Interestingly, in Montour School District v. Propel Charter School-
Montour, 889 A.2d 682 (Pa. Cmwlth. 2006), a case involving one of the same
schools included in Propel’s Application, the Montour School District (MSD) sought
review of CAB’s order reversing MSD’s denial of a charter application for Propel-
Montour. At argument before CAB, Propel-Montour notified MSD and CAB that it
recently learned that its proposed facility was no longer available. Propel-Montour
represented that it was pursuing a lease for another facility, but that such lease would
require zoning changes for charter school use. MSD objected to the submission of
any evidence with respect to the new facility and CAB barred the submission of such
evidence. Nonetheless, CAB reversed MSD’s denial of Propel-Montour’s
application. On appeal to this Court, MSD argued, inter alia, that CAB erred by
ordering MSD to issue a charter without an identified location, and requiring Propel-
Montour to merely inform MSD and CAB of the new location without requiring
submission of the proposed site for MSD’s approval. In response, Propel-Montour
argued that “it was prepared and willing to present evidence of the new proposed
facility at oral argument before CAB, but was not allowed to do so because of
[MSD’s] vigorous objections.” Montour, 889 A.2d at 688.
The Montour Court explained:
We have previously held that CAB has the authority to
conduct a de novo review of a school district’s denial of a
charter application. Here, however, given its authority to
conduct a de novo review, CAB erroneously failed to hear
[Propel-Montour’s] evidence concerning the new
proposed site when it sustained the [school d]istrict’s
objections. Under Souderton, CAB could not then order
the [d]istrict to grant the charter in the absence of any
evidence of a proposed site for the school. Accordingly,
22
because CAB failed to hear and consider [Propel-
Montour’s] evidence with regard to the new proposed
facility, we must vacate CAB’s order and remand to CAB
for the purpose of hearing this evidence to determine
whether the new proposed site is suitable under the CSL
before CAB can order the charter to be granted.
Montour, 889 A.2d at 690 (italics added).
This Court addressed the propriety of supplementing a record with
recently released SPP scores in Reading School District v. I-Lead Charter School,
206 A.3d 27 (Pa. Cmwlth. 2019), a charter school revocation case where evidence
of the school’s performance was relevant to CAB’s decision. In I-Lead, this
Court considered whether CAB properly reversed a school district’s charter
revocation. In conducting its review, CAB granted the school district’s motion to
supplement the record to include significantly lower SPP scores released after the
school district rendered its decision, but did not consider the supplemented SPP
scores when it reversed the school district’s revocation. Section 1729-A(d) of the
CSL governed CAB’s exercise of its independent judgment and provided, in relevant
part:
[CAB] shall have the exclusive review of a decision not to
renew or revoke a charter. [CAB] shall review the record
and shall have the discretion to supplement the record if
the supplemental information was previously unavailable.
[CAB] may consider the charter school plan, annual
reports, student performance and employe and community
support for the charter school in addition to the record.
[CAB] shall give due consideration to the findings of the
local board of directors and specifically articulate its
reasons for agreeing or disagreeing with those findings in
its written decision[.]
24 P.S. § 17-1729-A(d).
23
In holding that CAB deliberately disregarded the supplemented
evidence, this Court recognized with respect to the similar statutory language in
Section 1729-A of the CSL permitting supplementation of the record,
[b]ased on its clear language, Section 1729-A(d) of the
CSL specifically contemplates that, on appeal, CAB may
consider information that did not inform a school district’s
decision. This statement is consistent with CAB’s de novo
review function, “making an independent determination as
to the merits . . . .” W. Chester, 812 A.2d at 1180.
I-Lead, 206 A.3d at 36 (footnote omitted). In a footnote, the I-Lead Court
recognized that
prior CAB decisions have relied upon student performance
data occurring after a school district resolved to revoke a
charter. See, e.g., Imani Educ. Circle Charter Sch. [v. Sch.
Dist. of Phila., (Dkt. No. CAB 2014-08, filed May 11,
2016)]; Cmty. Acad. of Phila. Charter Sch. v. Sch. Dist. of
Phila., Sch. Reform Comm’n, (Dkt. No. CAB 2013-12,
filed September 8, 2014).
I-Lead, 206 A.3d at 36 n.19.
The statutory language at issue in Section 1729.1-A of the CSL
pertaining to MCSO approval is similar to that in Section 1729-A of the CSL at issue
in I-Lead. Like Section 1729-A(d) of the CSL, Section 1729.1-A(f) of the CSL
(pertaining to MCSO appeals) provides that it is CAB’s duty to “[r]eview the
decision made by either the [D]epartment or school district on the record as certified
. . . [and in its discretion, permit parties to] supplement the record if the supplemental
information was previously unavailable.” 24 P.S. § 17-1729.1-A(f)(2)(i).
Although, unlike Section 1729-A(d) of the CSL, Section 1729.1-A(f)
of the CSL does not explicitly authorize CAB to consider evidence “in addition to
the record[,]” 24 P.S. § 17-1729-A(d), it allows CAB to supplement the record,
which CAB did. See 24 P.S. § 17-1729.1-A(f)(2)(i). Propel argues that this Court
24
should limit CAB’s ability to supplement the record only to evidence existing at the
time it filed its Application. There is no language in Section 1729.1-A(f)(2)(i) of the
CSL limiting relevant evidence only to evidence available at the time the MCSO
Application was filed. It is beyond cavil that “courts ‘have no authority to add or
insert language into a statute’ and should not, through interpretation, add a
requirement that the General Assembly did not include.” Twp. of Wash. v. Twp. of
Upper Burrell, 184 A.3d 1083, 1089 (Pa. Cmwlth. 2018) (quoting Summit Sch., Inc.
v. Dep’t of Educ., 108 A.3d 192, 199 (Pa. Cmwlth. 2015)).
Like Section 1729-A(d) of the CSL, Section 1729.1-A(f)(2)(i) of the
CSL, “specifically contemplates that, on appeal, CAB[, through supplementation
of the record with relevant evidence,] may consider information that did not inform
a school district’s [or the Department’s] decision.” I-Lead, 206 A.3d at 36.
Subsection 1729.1-A(f)(2)(iv) of the CSL, imposes a duty on CAB to “[m]ake its
decision based on whether the proposed consolidation satisfies the requirements of
subsections (b) [(disqualifying from mergers those charter schools that fail to meet
the top twenty-fifth percentile SPP threshold for the two most recent school years
for which scores are available),] and (c) [(governing application submission)].”21 24
P.S. § 17-1729.1-A(f)(2)(iv). Where, as here, such relevant evidence pertains to
21
Propel strongly asserts that its inability to meet the SPP threshold is a direct consequence
of CAB’s delay in rendering a valid vote on its Application. It insists that, because it satisfied the
SPP threshold at the time of its Application and during the period that CAB was statutorily required
to issue a decision on its appeal, CAB’s delay in rendering a decision (during which time new SPP
scores were released) caused Propel’s SPP threshold deficiency. Notably, Propel did not challenge
the validity of CAB’s decision based on CAB’s delay. This Court acknowledges that CAB’s
inability to render a decision on the Application lengthened the review process beyond that
permitted in the MCSO Provisions. Notwithstanding, of the eight charter schools included in the
Application, only Propel-McKeesport satisfied the SPP threshold at the time of filing, and even
that school subsequently fell below the SPP threshold. Thus, at the time that CAB rendered its
decision on the Application, not a single school out of the eight satisfied the threshold requirement.
Despite the delay which exceeded CAB’s statutorily-mandated review window, neither CAB, nor
this Court may ignore other mandates in the MCSO Provisions.
25
CAB’s explicitly imposed statutory duty to ensure that at least one of the schools in
the proposed MCSO meets the SPP threshold requirements, requiring CAB to ignore
evidence that the applicants no longer meet the requirements would impede CAB’s
ability to perform its duties. The approval of a noncompliant applicant’s MCSO
application would undermine “[t]he core purpose of the [CSL, which] is to improve
students’ education.” New Hope Acad. Charter Sch. v. Sch. Dist. of the City of York,
89 A.3d 731, 739 (Pa. Cmwlth. 2014).
The New Hope Court further explained:
T]he General Assembly expressly set forth its intention in
enacting the [CSL] to “[i]mprove pupil learning,”
“[i]ncrease learning opportunities for all pupils,” and
“[h]old the schools established under [the CSL]
accountable for meeting measurable academic
standards and provide the school with a method to
establish accountability systems.” [Section 1702-A (1),
(2), (6) of the CSL,] 24 P.S. § 17-1702-A(1), (2), (6)[.]
New Hope, 89 A.3d at 739 (emphasis added; citation omitted). Therefore,
considering an applicants’ most recent SPP scores in reviewing a charter school
merger decision furthers these expressed intentions by permitting CAB to more
accurately consider the potential merger’s impact on the affected students.
Accordingly, this Court concludes that CAB properly denied Propel’s appeal from
the Hearing Officer’s decision granting the Motion to Supplement. Further, because
Propel failed to meet Section 1729.1-A(b)(1) of the CSL’s threshold requirements
pertaining to SPP data, it did not qualify for MCSO approval.22
22
CAB correctly concluded:
For purposes of the Application, the “most recent two (2) school
years” were 2017-18 and 2018-19; and, given as much, Propel does
not meet the application requirements for an MCSO under [Section]
[]1729.1-A(b)(1) [of the CSL] because its [A]pplication lacks a
school within the [top 25th percentile] of Pennsylvania [c]harter
26
For the foregoing reasons, CAB’s order is affirmed.
_________________________________
ANNE E. COVEY, Judge
[s]chools for the two most recent school years for which scores are
available, as evidenced by the updated MCSO Eligibility List.
....
Accordingly, . . . while the Department’s denial of the Application
was not independently supported by each and every reason stated in
its denial letter, the Application as a whole failed to support Propel’s
entitlement to MCSO status, especially in light of its current
inability to meet the express requirements of [Section] 1729.1-A
(b)(1)(iii) or (2) [of the CSL].
CAB Dec. at 31, R.R. at 5840a.
27
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Propel Charter Schools, :
Petitioner :
:
v. :
:
Pennsylvania Department of Education :
(State Charter School Appeal Board), : No. 1209 C.D. 2020
Respondent :
ORDER
AND NOW, this 19th day of November, 2021, the State Charter School
Appeal Board’s December 22, 2020 order is affirmed.
_________________________________
ANNE E. COVEY, Judge