Central Dauphin School District v. Founding Coalition of the Infinity Charter School

DISSENTING OPINION BY

JUDGE PELLEGRINI.

I respectfully dissent because Infinity Charter School’s (Infinity) application for a school charter for mentally-gifted students impermissibly discriminates by its announced purpose and through marketing and admissions practices to have a charter school for intellectually-gifted students in violation of Section 1723-A(b) of the Charter School Law (CSL), Act of March 10, 1949, P.L. 30, as amended, added by the Act of June 19, 1997, P.L. 225, as amended, 24 P.S. § 17-1723-A(b). 1

On July 30, 2001, Infinity filed an application for a charter (Application) 2 with Central Dauphin School District (Central Dauphin), seeking to operate a charter school that would serve students in grades K-12 within the school district pursuant to the CSL with the specified purposed of providing an educational option for mentally-gifted students. 3 Infinity maintained that a curriculum geared for mentally-gifted students should be different from a curriculum geared for other children in order to maximize their potential. While enrollment in the charter school would remain open to any student whose parents *206 wanted them to attend, throughout the process, Infinity emphasized that the proposed charter school was for mentally-gifted students. 4

Central Dauphin denied Infinity’s Application because, inter alia, 5 the proposed charter school would impermissibly discriminate on the basis of intellectual ability or aptitude in violation of Section 1723-A(b) of the CSL, 24 P.S. § 17-1723-A. Infinity appealed to the State Charter School Appeal Board (CAB), which reversed, finding that Infinity’s proposed charter school would not discriminate on the basis of intellectual ability. Affirming CAB’s decision, the majority concludes, inter alia, that Infinity’s proposed charter school did not violate Section 1723-A(b). In so holding, the majority admits that it is unquestionable that Infinity targets mentally-gifted children; however, it states that because Infinity has publicized a nondiscriminatory admission policy, there is no discrimination in violation of Section 1723-A(b)(2). I disagree because the record clearly demonstrates that Infinity’s proposed charter school seeks to attract and matriculate students who are mentally-gifted.

Although Infinity has an announced policy stating that it will not discriminate, announced policies can be a subterfuge or they can be supplanted by informal policies, patterns or practices that have the net effect of unlawfully discriminating, whether that be done intentionally or unintentionally. In Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 4 Pa.Cmwlth. 448 , 287 A.2d 161 (1972), affirmed by Pittsburgh Press Company v. Pittsburgh Commission on Human Relations, 413 U.S. 376 , 93 S.Ct. 2553 , 37 L.Ed.2d 669 (1973), a newspaper advertised jobs under the headings “Jobs — Female Interest,” “Jobs — Male Interest,” and “Male — -Female Help.” However, at the beginning of each heading, the paper placed a disclaimer stating that the designations were done for the convenience of the readers, but that “various laws and ordinances — local, state and federal, prohibit discrimination in employment because of sex ... [and that] the job seekers should assume that the advertiser will consider applicants of either sex in compliance with the laws against discrimination.” Pittsburgh Press, 287 A.2d at 165 . Holding that the disclaimer did not exculpate the newspaper from gender discrimination, we stated that “[w]e have long passed that point ... whereby a declaration of intent can be used as a screen or defense for actual discrimination.” Pittsburgh Press, 287 A.2d at 168 .

Similarly, in this case, Infinity’s marketing makes clear that the target student is mentally-gifted. Its “PowerPoint” presentation at the public hearings before Central Dauphin only focused on gifted students. For instance, on the first slide, *207 titled “Summary,” Infinity stated that the presentation was for “[p]arents of [Central Dauphin] gifted students” and that the charter school’s purpose was to “provide another public education option to meet the needs of mentally gifted students.” (Reproduced Record at 233a). Infinity’s mission statement is to create a charter school “that addresses the intellectual, academic and social-emotional needs of mentally gifted children.” Id. Except for one sentence, where Infinity states that it “will not discriminate in the admissions process,” (Reproduced Record at 240a), the entire PowerPoint follows a constant theme of exclusivity for mentally-gifted students. Nowhere in the presentation does Infinity state that it will accept students of all intellectual ability, nor does its statement that it will not discriminate in the admissions process make clear that it also applies to intellectual ability as opposed to only the constitutionally-protected classes of race, creed, color, gender, national origin, ancestry or disability. 6

The net effect of Infinity’s marketing is “discrimination” on the basis of intellectual ability by marketing and catering to intellectually-gifted students and by pushing away other students. This marketing practice frustrates the purpose of the CSL and circumvents the prohibition against intellectual discrimination in Section 1723-A of the CSL. Infinity’s hollow representation that it will accept anyone other than gifted children makes the school’s purpose, as set forth in its application, a sham and its marketing, a “bait and switch” pitch. Because Infinity’s marketing and admissions practices are designed to generate applications for admission from only intellectually-gifted students, CAB erred in finding that Infinity did not discriminate based on intellectual ability.

Accordingly, because Section 1723-A(b) of the CSL was added by the General Assembly because “we do not want to create elitist schools, special schools. We want to create an opportunity for all our boys and girls to learn,” 7 I respectfully dissent.

Judges SMITH-RIBNER and COHN join.

. That section provides:

Enrollment

* * *

(b)(1) A charter school shall not discriminate in its admission policies or practices on the basis of intellectual ability, except as provided in paragraph (2) ...

(2) A charter school may limit admission to a particular grade level, a targeted population group composed of at-risk students, or areas of concentration of the school such as mathematics, science or the arts. A charter school may establish reasonable criteria to evaluate prospective students which shall be outlined in the school’s charter.

24 P.S. § 17-1723-A(b).

. Included in the Application and its supporting documents were, inter alia, the following: letters of support; newspaper articles; 85 pre-enrollments containing the names of 59 residents of the school district; a Summary of Revenue and Expenditures; Cash Flow Projections; a PDE-2028 General Fund Budget Approval; job qualifications for proposed staff positions and a professional development plan; the address and physical description of the site where the charter school would be operated by Penbrook United Church of Christ (Penbrook Church); and a description of its curriculum.

.Central Dauphin provides public education for approximately 11,700 school-age children, of whom approximately 5,800 are elementary age, as well as offering a mentally-gifted education program for its students in accordance with regulations of the Pennsylvania Department of Education.

. Infinity’s announced admission policies do not facially discriminate on the basis of intellectual ability. In its Application, under Section IX. 2 titled "Admission Policy,” Infinity stated that it "will not discriminate in admissions decisions.” (Petitioner's Appendix # 4 at 6).

. Central Dauphin also denied the Application because Infinity failed to: 1) demonstrate sustainable support for the charter school; 2) provide sufficient information describing the proposed site and physical, location for the charter school; 3) establish a satisfactory plan or demonstrate any ability to meet the financial needs of the charter school; 4) establish that it would be a model for other public schools and provide opportunities not readily available to students in the school district; and 5) failed to identify proposed faculty and staff or to include required reports and clearances with its application materials. In addition, Central Dauphin also denied the Application because it should have been filed as a regional charter school.

. Other examples of Infinity’s marketing include: (1) a press release notifying the public of “an information meeting to discuss a charter school for elementaiy-age gifted pupils,’’ (Petitioner's Appendix # 5); (2) a flyer titled “A Charter School for Gifted Students” listing informational meetings to discuss a "public charter school to meet the intellectual, academic and socio-emotional needs of gifted students,” Id.; (3) a Frequently Asked Questions (FAQ) regarding Infinity stating that the special focus of the charter school is "to meet the needs of intellectually and/or academically gifted children,” Id.; and (4) an FAQ explaining “Gifted Education” and the importance of removing gifted children from the regular classrooms and placing them with other gifted students. Like the PowerPoint presentation, none of these marketing tools attempted to inform the parents in the Central Dauphin School District that students of all intellectual ability would be accepted; in fact, the lahguage used throughout the literature, "Infinity Charter School for Gifted Students,” implied the contrary.

. Legislative Journal-Senate, June 11, 1997, p. 765.