Opinion
DOCKET NO. A-3852-13T1
01-15-2016
GREATER NEWARK CHARTER SCHOOL, Appellant, v. NEW JERSEY DEPARTMENT OF EDUCATION and DAVID C. HESPE, ACTING COMMISSIONER OF EDUCATION, Respondents.
Sarah Wieselthier argued the cause for appellant (Adams, Gutierrez & Lattiboudere, L.L.C., attorneys; Perry L. Lattiboudere, of counsel and on the brief; Ms. Wieselthier, on the brief). Angela L. Velez, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Velez, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Kennedy and Gilson. On appeal from the Department of Education, Docket No. 108-4/14. Sarah Wieselthier argued the cause for appellant (Adams, Gutierrez & Lattiboudere, L.L.C., attorneys; Perry L. Lattiboudere, of counsel and on the brief; Ms. Wieselthier, on the brief). Angela L. Velez, Deputy Attorney General, argued the cause for respondents (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Velez, on the brief). PER CURIAM
Greater Newark Charter School (GNCS) appeals from the Department of Education's (DOE) April 17, 2014 final agency decision declining to renew GNCS's charter after placing the school on a brief probationary term. We affirm.
We grant the DOE's motion to strike the documents from GNCS's appendix that were the subject of an unsuccessful motion by GNCS to expand the record to include documents concerning other charter schools; we previously denied GNCS's motion on September 2, 2014. We also grant that portion of DOE's motion seeking to strike all other documents that were not a part of the record prior to the decision being appealed, including any documents attached to GNCS's motion for reconsideration. These documents were not part of the statement of items comprising the record on appeal, Rule 2:5-4(b), nor were they considered by the DOE at the time of its decision, and the denial of the motion for reconsideration is not being appealed by GNCS.
GNCS opened in 2000, and after its charter was renewed twice, the charter was set to expire on June 30, 2014. After receiving a renewal application, the DOE visited the school to observe classroom performance and interview administrators, faculty, and the board of trustees.
On February 18, 2014, Evo Popoff, then Chief Innovation Officer of the DOE, placed GNCS on probation until March 5, 2014, finding that there were a number of deficiencies in the school's program. As required by Popoff's decision, GNCS submitted a plan outlining its efforts to improve. The DOE then interviewed GNCS's director to clarify the remedial plan. While the DOE was considering the renewal, it extended GNCS's probationary period until April 18, 2014.
On April 17, David Hespe, then Acting Commissioner of the DOE, issued his decision not to renew GNCS's charter, citing multiple factors. Hespe found that, during the final year of its charter, GNCS had failed to meet five of the seven "absolute" and "comparative" test-based standards as set forth in the state's Performance Framework. Hespe also found that GNCS's student growth over time had fallen "far below standards" in math and did not meet the standards for language arts and literacy. Hespe reviewed the site visit notes and concluded that student engagement was inconsistent across classrooms, that it was unclear how the school used data to inform decisions, and that GNCS's board did not demonstrate "the organizational or leadership capacity necessary to improve the school." Hespe noted that although the remedial plan GNCS provided acknowledged its academic shortcomings, Hespe did not have confidence that GNCS could effectively or cohesively implement the plan. He wrote: "In summary, there is a lack of evidence that the school is providing its students with a quality education or that it has the capacity to dramatically improve student achievement in the future."
A charter school is created and governed by N.J.S.A. 18A:36A-1 to -18, and corresponding regulations, N.J.A.C. 6A:11-2.1 to -2.11. Importantly, renewing a charter is in the discretion of the Commissioner of Education. N.J.S.A. 18A:36A-17 ("A charter granted by the Commissioner . . . may be renewed . . . ."); N.J.A.C. 6A:11-2.3(a) ("The Commissioner may grant a five-year renewal . . . ."). To determine whether or not to renew a charter, the Commissioner of Education must undertake a "comprehensive review" of the school, considering:
1. A renewal application submitted by a charter school to the Commissioner, the respective county superintendent of schools, and the district board(s) of education or State district superintendent(s) of the district of residence of the charter school . . . ;
2. If the charter school failed to meet any standards set forth in its charter agreement or the Performance Framework in a school's charter;
3. The review of a charter school's annual reports pursuant to N.J.A.C. 6A:11-2.2(a);
4. Comments of the annual reports from the district board(s) of education or State district superintendent(s) of the district of residence of the charter school;
5. Student performance on the Statewide assessment program pursuant to N.J.A.C. 6A:8-4.1;
6. Monitoring of the charter school by the executive county superintendent;
7. Monitoring of the charter school by the Commissioner or designee(s);
8. The annual assessments of student composition of the charter school;
9. The recommendation of the district board(s) of education or State district superintendent(s) of the district of residence forwarded to the Commissioner within 30 days of receipt of the renewal application;
10. A structured interview with the Commissioner or designee(s) with:
i. A member of the charter school board of trustees;
ii. The lead person of the charter school;
iii. A teacher at the charter school; and
iv. A parent or other representative of the charter school; and
The Performance Framework referenced in N.J.A.C. 6A:11-2.3(b)(2) sets specific quantitative and qualitative standards for academic, financial, and organizational performance.
11. The review of the charter school's educator evaluation system.
[N.J.A.C. 6A:11-2.3(b).]
The appellate standard for reviewing an agency decision is limited, and requires us to determine whether the agency action was arbitrary, capricious, or unreasonable. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013). An action is arbitrary, capricious, or unreasonable if it (1) violates the law, including express or implied legislative policies, (2) is unsupported by substantial evidence in the record, or (3) "in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Ibid. (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). To determine whether there was substantial evidence in the record, we should sift through the record, looking to find support for the conclusions reached by the agency. Id. at 387. We should not "substitute [our] own judgment for the agency's." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting In re Carter, 191 N.J. 474, 483 (2007)). This is particularly true when the agency has applied its special expertise to the issue under review. Id. at 195 (citing In re Herrmann, 192 N.J. 19, 28 (2007)); see also Kletzkin v. Bd. of Educ., 136 N.J. 275, 278 (1994) (giving "considerable weight" to the State Board of Education's statutory interpretation).
Here, GNCS argues that the DOE focused only on one bad year of test results, instead of a "comprehensive" review analyzing all five years of data. See N.J.A.C. 6A:11-2.3(b) (requiring "comprehensive review of the school"). Though the results of other years included in Hespe's letter were not as bleak, the 2012-13 scores were extremely poor. Indeed, GNCS's math proficiency scores for 2012-13 dropped 22% from the prior year, which put GNCS in the "Falls Far Below Standard" category under the Performance Framework for math. As Hespe noted, it was not just math; GNCS failed to meet seven of the nine standards under the Performance Framework for the 2012-13 year. Hespe stated: "Combined, this performance places [GNCS] in the lowest-performing 12% of the schools in this state based on 2012-2013 NJASK results."
For grades three through eight, the relevant standardized test is the New Jersey Assessment of Skills and Knowledge (NJASK). Those scores are divided into Language Arts and Literacy and Mathematics. --------
Besides focusing on the 2012-13 scores, Hespe also carefully reviewed the Student Growth Percentile (SGP) and the other qualitative factors to determine "whether the school is on a trajectory to offer students a high-quality education." Because the SGP scores were low and because of other factors, Hespe deemed GNCS's trajectory to be "not sufficient." In other words, Hespe did not foresee sufficient improvement in the scores. GNCS argues that the DOE should have relied also on GNCS's own projections of anticipated test scores. The Performance Framework, however, calls for student growth to be evaluated using SGP.
GNCS also challenges Hespe's reliance on the qualitative factors that demonstrated to the DOE that GNCS's "board of trustees and school administration do not have the organizational or leadership capacity necessary to improve the school." For example, GNCS blames the board's non-responsiveness to interview questions on the fact that the DOE failed "to adhere to the site visit protocol," by asking questions outside the five "guiding questions." There is no evidence, however, that the DOE asked questions outside the rubric — in fact, the interview notes of Harold Lee, School Performance and Accountability Manager at the Office of Charter Schools, essentially restates three of the five guiding questions. Further, to ask questions outside of the five listed in the rubric is not unreasonable. Hespe's conclusion about the board is supported by Lee's notation following the questions Lee posed to the board: "Did not get any answers from the board in the interview."
GNCS also challenges Hespe's findings that there were inconsistencies in teaching across classrooms and a lack of clarity as to whether the school was properly making use of student data to improve its academic program. Both of these conclusions, based on educational expertise and experience, have sufficient support in the record.
GNCS's own remedial plan acknowledged many of the deficiencies in its school. In his decision, Hespe clearly outlines not only why the plan is insufficient, but that he "lacks confidence that the school will be able to implement the changes it has outlined in a cohesive and effective manner," especially because the plan itself recognizes that the challenges and deficiencies are "significant."
The DOE considered the 2012-13 test scores, found them inadequate, and concluded that with low SGP scores, an ineffective board and administration, and other problems, GNCS would not be likely to improve. We defer to the expertise of the DOE, which based its decision not to renew the charter of GNCS on substantial credible evidence in the record and did not act in an arbitrary, capricious or unreasonable manner.
Lastly, GNCS argues that because Popoff was Chief Innovation Officer and not designated to act as Commissioner of Education on February 18, 2014, he was acting ultra vires by placing GNCS on probation. GNCS further argues that being placed on probation for less than two months was an unreasonably short period of time and that, instead of not renewing GNCS's charter, the DOE should have given GNCS time to implement the remedial plan. The DOE contends that the probation issue is now moot as a result of the non-renewal of the charter, and that no charter school is entitled to probation.
As GNCS concedes, "the Commissioner is not compelled to place any school on probation prior to closure . . . ." See N.J.A.C. 6A:11-2.4(a) ("The Commissioner may place a charter school on probationary status . . . ."); see also N.J.A.C. 6A:11-2.4(b)(3) ("The Commissioner may place a school on probation before charter revocation, but probationary status is not necessary for revocation . . . ." ). Since probation is not a condition precedent to non-renewal, GNCS's probation had no procedural relation to the ultimate non-renewal of its charter. Thus, the imposition of probation had no effect on the issue of non-renewal of the charter. See City of Plainfield v. N.J. Dep't of Health & Senior Servs., 412 N.J. Super. 466, 483-84 (App. Div.) ("[C]ourts should not decide cases where a judgment cannot grant relief." (quoting Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000))), certifs. denied, 203 N.J. 93 (2010). Thus, Popoff's authority to place GNCS on probation is not relevant to our decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION