REVISED STATE CHARTER PROGRAM RULES STILL LEGALLY FLAWED
ELC Again Submits Comments Raising Major Concerns
November 14, 2012
For the second time this year, Education Law Center has submitted written comments on amendments to the State's charter school regulations proposed by the NJ Department of Education (NJDOE).
ELC's comments, submitted on November 1, 2012, challenge NJDOE's attempt to expand the charter school program without legislative authorization, in direct violation of the Legislature's requirement that any expansion, modification, or termination of the program should not be undertaken without legislative approval.
Of particular concern is the NJDOE proposal to allow charter schools, once approved, to set up satellite campuses without obtaining separate charter approval, and to broadly amend their charters, even in ways that change the school’s prior approved mission.
The satellite campus proposal would apply only to charter schools in districts with “priority” schools under the NCLB waiver obtained by the State, or within former Abbott districts. ELC notes that NJDOE has not yet adopted regulations governing “priority” schools, and the Abbott designation was eliminated by the Legislature in 2008.
In addition to expanding the charter program beyond what is allowed by the Legislature, the satellite campus scheme circumvents the legislative requirement that a specific physical facility be approved before a charter school can open. The proposal also disenfranchises local school districts which, under current law, must be notified of a pending charter application and given the opportunity to comment.
Similarly, the proposed regulation appears to allow the unlimited amendment of charters, in direct conflict with the Legislature's expressed intent that charters only be amended to consolidate approved charter schools that are within the same public school district but operating different grade levels.
ELC cites a number of other areas in which NJDOE’s proposed changes are “arbitrary and capricious, contrary to legislative intent, or in violation of the agency’s obligation to establish policy pursuant to the Administrative Procedure Act.” These include expansion of the definition of “eligible [charter] applicant” to teaching staff members employed anywhere in the state. Current regulation requires that teachers and parents seeking a charter come from the local district that will serve as host to the school.
“We are deeply disappointed that Education Commissioner Christopher Cerf and the NJDOE continue to try to do an end run around the Legislature. If adopted, these rules will invite legal challenge based on their noncompliance with the authorizing statute,” said ELC Senior Attorney Elizabeth Athos. “If the Commissioner wants to restructure and expand the charter program, he should seek approval from the Legislature.”
ELC's earlier comments, in June 2012, targeted the State's proposal to authorize virtual charter schools through regulatory amendments. The changes seeking to authorize online instruction by charter schools were eliminated in the current proposal.
Policy and Outreach Coordinator
973-624-1815, x 24