TABLE OF AUTHORITIES

FEDERAL CASES

Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971)........................................................................................................................................................................................................................................................... 11

Tuttle v. Arlington County School Board, 195 F.3d 698 (4^thCir. 1999)............................................................................................................................................................................................................................................................................................ 17

STATE CASES

Abbott v. Burke, 119 N.J. 287 (1990) (Abbott II).................................................................................................................................................. 18

Abbott v. Burke, 149 N.J. 145 (1997) (Abbott IV)............................................................................................................................................... 18

Abbott v. Burke, 153 N.J. 480 (1998) (Abbott V)...................................................................................................................................... 18, 19

Crema v. New Jersey Dep’t of Envtl. Protection, 94 N.J. 286 (1983).......................................................................................................................................................................................................................................................................................... 11

D.I.A.L. v. New Jersey Dep’t of Community Affairs, 254 N.J. Super. 426 (App. Div.............................................................................................................................................................................................................................................. 8
1992)

Matter of the Adoption of Amendments to N.J.A.C. 6:28-2.10, 305 N.J. Super. 389...................................................................................................................................................................................................................................................... 7, 10
(App. Div. 1997)

Matter of the Grant of the Charter Sch. Application of Englewood on the Palisades............................................................................................................................................................................................................................................. passim
Charter Sch., 164 N.J. 316, 323 (2000), affirming as modified, 320 N.J. Super. 174
(App. Div. 1999)

Matter of Petitions for Rulemaking, N.J.A.C. 10:82-1.2 and 10:84-4.1, 117 N.J. 311 (1989)..................................................................................................................................................................................................................................... 9

Matter of Repeal of N.J.A.C. 6:28, 204 N.J. Super. 158 (App. Div. 1985)............................................................................................................................................................................................................................................................................ 7, 8, 10

Nelson v. Board of Educ. of Tp. of Old Bridge, 148 N.J. 358 (1997)........................................................................................... 7

New Jersey Chamb. of Commerce v. New Jersey Elec. Law Enforce. Comm.,............................................................................................................................................................................................................................................................ 8
82 N.J. 57 (1980)

New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, (1978).............................................................................................................................................................................................................................................................................................. 8

New Jersey League of Municipalities v. D.C.A., 158 N.J. 211 (1999).............................................................................................................................................................................................................................................................................................. 8

Public Serv. Elec. & Gas Co. v. Department of Envtl. Protection, 101 N.J. 95 (1985)................................................................................................................................................................................................................................................... 10

Waste Management v. State DEPE., 278 N.J. Super. 56 (App. Div. 1994)................................................................................................................................................................................................................................................................................................ 8

STATE STATUTES

N.J. Constitution, VIII, §4 ¶1...................................................................................................................................................................................................................... 4

N.J.S.A. 18A:36A-2................................................................................................................................................................................................................................................... 9

N.J.S.A. 18A:36A-11................................................................................................................................................................................................................................... 9, 20

STATE REGULATIONS

N.J.A.C. 6A:11-1.2..................................................................................................................................................................................................................................... 14, 15

N.J.A.C. 6A:11-2.1......................................................................................................................................................................................................................... 12, 13, 15

N.J.A.C. 611: 11-2.2............................................................................................................................................................................................................................................. 14

N.J.A.C. 6A.11-2.3................................................................................................................................................................................................................................................. 15

N.J.A.C. 6A.11-2.4................................................................................................................................................................................................................................................. 15

OTHER AUTHORITIES

C.E. Finn, B.V. Manno, G. Vanouvek, Charter Schools in Action (Princeton............................................................................................................................................................................................................................................................................. 16
Univ. Press 2000)

Huffman, Charter Schools, Equal Protection Litigation and the New School Reform.............................................................................................................................................................................................................................................. 16

Movement, 73 N.Y.U.L. Rev. 1290 (1998)

U.S. Department of Education, The State of Charter Schools 2000 – Fourth Year...................................................................................................................................................................................................................................................................... 6

Report

PRELIMINARY STATEMENT

Since the passage of the Charter School Program Act, fifty-four charter schools have opened in New Jersey. These schools are seeking to fulfill the goals set under the Act of advancing reform in public education in New Jersey. The proposed amicus, the New Jersey Charter Public Schools Association, represents many of the charter schools operating in the State, providing a means for the schools to have a unified voice on issues pertinent to them, and to gather and share information critical to their continued success. By this motion, the Association seeks leave to present its perspective, and accordingly, the perspective of many of the charter schools in the State, with regard to the heightened regulation the Education Law Center is proposing.

The ELC’s application appears to be two-fold. Four of its five points pertain to the Center’s request that this Court invalidate the amended regulations promulgated by the Commissioner with regard to the operation of charter schools. The Association disagrees with this portion of the application in its entirety.

Specifically, the ELC appears to believe that the Commissioner has been negligent in the scope of the amended regulations. A review of those regulations, relating to racial impact of the charter school on the district school population, diversity within the charter school population itself, financial impact of the charter school on the district at issue, and due process in disciplinary proceedings, makes clear that the Commissioner has heeded the sentiments expressed by this court and the Supreme Court in reviewing and rejecting the prior attacks on the Charter School Act itself, as well as the implementing regulations. Those regulations, as amended, accomplish what the Act intended.

One of the basic premises behind charter schools is the idea that public schools, when allowed to operate without all of the regulation and structure that traditional district schools are subject to, can be free to bring innovation, to the benefit of all public school students. The ELC’s proposal with regard to the regulations at issue would impose greater restrictions on charter schools, where none is necessary. The ELC is not pointing to areas in which charter schools are deficient, nor is it signaling areas in which the Department of Education is not providing the appropriate oversight. Absent those allegations, and specific evidence in support of such allegations, this Court should not invalidate the amended regulations or require the Commissioner to further amend them.

The ELC also makes a point with regard to charter schools in Abbott districts, and their entitlement to certain funding that district-run schools are entitled to, as a result of the economic disparities inherent in their location in special needs districts. The Association agrees with the ELC on this: charter schools, as public schools, are educating the same children that district schools are educating. To the extent that those children are growing up in special needs districts, they should be entitled to the same aid that district school children are receiving. Because of the complexity of the issues, and the substantial differences in operation between charter schools and district schools, the Association, however, does not believe that this issue should be addressed in the first instance in this Court, without the benefit of a full record setting forth the nuances of the issues.

The NJCPSA therefore respectfully submits that the ELC’s application should be denied in its entirety.

ARGUMENT

APPLICANT MEETS THE REQUIREMENTS

OF COURT RULE 1:13-9 AND THE MOTION

TO APPEAR AS AMICUS CURIAE SHOULD

BE GRANTED

A. Identity of Applicant

The New Jersey Charter Public Schools Association (“NJCPSA”).

B. Issues to be Addressed

The NJCPSA wishes to address the five points raised in the brief on the Education Law Center (“ELC”), specifically:

1. Whether the Commissioner has promulgated appropriate standards and procedures to prevent charter schools from furthering racial segregation in district schools?

2. Whether the Commissioner has effectuated the Charter School Act’s requirement for inclusive admissions?

3. Whether the Commissioner has assured that charter schools do not impair the provision of a thorough and efficient education to students in district schools?

4. Whether the Commissioner has assured the Abbott remedial measures to charter school students?

5. Whether the Commissioner has promulgated procedural due process requirements for student discipline in charter schools?

C. Nature of the Public Interest

1. The New Jersey Constitution mandates that the Legislature must “provide for the maintenance and support of a thorough and efficient system of free public schools” for New Jersey’s children. N.J. Constitution VIII, § 4, ¶ 1.

2. The New Jersey Legislature has determined that “the establishment of a charter school program is in the best interests of the students of this State and it is therefore the public policy of the State to encourage and facilitate the development of charter schools” N.J.S.A. 18A: 36A-2.

3. The State of New Jersey must ensure that no student is discriminated against or subjected to segregation in public schools. Matter of the Grant of the Charter School Application of Englewood, 164 N.J. 316, 323 (2000).

D. Applicant’s Special Interests, Involvement, Expertise

The mission of the NJCPSA is to provide a clear and distinct voice for New Jersey’s charter schools, educating the public about their progress and ensuring that they thrive for the benefit of students statewide.

The Association currently has forty-five charter school members, thirty-one of which are located in Abbott districts. Among the Association’s stated goals are the dissemination of information, analysis and development of policy statements, reaching out to decision makers, representation of charter schools in public forums and conducting research. The NJCPSA also provides support to its members, by organizing and conducting workshops, job fairs, best practices fairs and conferences, and the sharing of information and services among charter schools. As a result, the NJCPSA is uniquely situated to speak with regard to the interests of charter schools in the State of New Jersey, and to inform the Court with regard to the impact ELC’s proposals would have. The Association’s activities are more completely described in the appendix to this brief.

E. Reasons for Granting the Motion

The motion is timely. The attorney General’s brief has just been filed. Argument has not been scheduled and granting of this application will not delay the appeal.

NJCPSA is experienced in the theory and operation of charter schools and will assist the Court as to the desirability and impact of the relief sought by appellant in charter schools in Abbott districts and in charters located elsewhere. The ELC urges this Court to adopt positions that would limit the potential of charter schools, contrary to the stated public policy of New Jersey. The NJCPSA would be able to advise the Court with regard to the potential impact of such a change.

No party to the litigation will be unduly prejudiced by applicants’ participation as amicus curiae.

The brief of the proposed amicus curiae is being filed with this motion and has been served on the parties.

Introduction

Since the Legislature’s endorsement of charter schools in 1996, charters have flourished in New Jersey. In the 1997-1998 school year there were 1,400 charter school students; in 2000-01, the total number of students had grown to nearly 11,000 of which ninety-two percent were from Abbott districts. In the year 2000-01, fifty-four charter schools were operating and another seventeen had been approved. (Appendix) The U.S. Department of Education has reported that New Jersey was one of the states which “enrolled at least twenty percent more nonwhite students than all public schools in those states.” The State of Charter Schools 2000—Fourth Year Report § C, Student Racial/Ethnic Composition. (Report cited in Englewood, supra, 164 N.J. at 320).

Charter schools have been accepted widely in other states. They have been authorized by legislation in thirty-six states and the District of Columbia. Approximately 1,400 charters were in operation at the end of 1999, serving some 250,000 students. Fourth Year Report at Executive Summary. The number of charter schools is expanding and currently stands at more than 2,000. Contrary to the fears of some, “overall, charter schools enrolled a larger percentage of students of color than all public schools in the states with open charter schools.” Id. at § C, Student Racial/Ethnic Composition.

Charter schools are held accountable for their operations and not all charter schools are successful. At the end of the 1998-99 school year, a total of fifty-nine charter schools nationwide had closed since the first charter was opened in 1992 (nearly four percent). Id. at Executive Summary. In addition, the New Jersey Department of Education recently conducted its first renewal inspection at the twelve charter schools that opened in 1997. Of those, two were placed on probation, further evidencing the fact that charter schools are held accountable for their conduct and their results.

ELC’s representation of parents and children in Abbott districts in New Jersey has been vigorous and effective. Traditional district schools have benefited since the Abbott litigation was commenced.

Just as the ELC’s advocacy has brought about reform, so have innovative charter schools which have been established primarily in the Abbott districts, and elsewhere. Although charter schools are in their early years, there is abundant evidence that charters have brought a new approach to education and that charter initiatives are succeeding. For the first time in the history of many communities, parents are being given a choice regarding their children’s education within the public sector. There currently are 4,000 children on charter school waiting lists statewide.

NJCPSA does not question ELC’s ability to further the cause of traditional district schools in the special needs districts. ELC has, however, a different focus than that of the charter schools. As a result, ELC’s approach, while laudable with regard to traditional district schools, does not take into account the unique characteristics of charter schools, which allow charters to bring innovations that those traditional district schools have not been able to achieve.

II.

THE AMENDED REGULATIONS CARRY OUT THE PURPOSE OF THE CHARTER SCHOOL ACT AND ARE NOT ARBITRARY, CAPRICIOUS OR UNREASONABLE.

The basic law to be applied in determining whether a regulatory agency has acted in an arbitrary, capricious or unreasonable manner has been forcefully stated. Regulations adopted by administrative agencies are accorded substantial deference, so long as they are consistent with the governing statutes' terms and objectives. Matter of the Adoption of Amendments to N.J.A.C. 6:28-2.10, 305 N.J. Super. 389, 401 (App. Div. 1997) citing Nelson v. Board of Educ. of Tp. of Old Bridge, 148 N.J. 358, 364 (1997). Regulations adopted by state agencies are presumed to be reasonable and valid. Matter of the Adoption of Amendments to N.J.A.C. 6:28-2.10, supra.

If procedurally regular, regulations may be set aside only if proven to be arbitrary or capricious or if plainly transgressing the statute they purport to effectuate, Repeal of N.J.A.C. 6:28, 204 N.J. Super. 158, 160-61 (App. Div. 1985) and Matter of the Adoption of Amendments to N.J.A.C. 6:28-2.10 supra, both citing New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561 (1978), or if altering the terms of the statute or frustrating the policy embodied in it. Id. at 402, citing New Jersey Chamb. Commerce v. New Jersey Elec. Law Enforce. Comm., 82 N.J. 57, 82 (1980). See D.I.A.L. v. New Jersey Dep't of Comm. Affairs, 254 N.J. Super. 426, 435, (App. Div. 1992).

In interpreting a new statute, a reviewing court must accord substantial deference to the interpretation by the agency charged with implementing it. In the Matter of the Grant of the Charter School Application of Englewood (“Englewood”), 320 N.J. Super. 174, 197-198 (App. Div. 1999), citing Waste Management v. State DEPE, 278 N.J. Super. 56(App. Div. 1994). One of the agencies afforded substantial deference is the State Department of Education. This Court has noted:

“Such deference has been extended to the Commissioner's regulatory decisions implicating the quality and efficiency of education in New Jersey. Dennery v. Board of Educ., 131 N.J. 626, 637, 641-43,(1993). Thus, `the Court has repeatedly acknowledged and approved the administrative handling of educational controversies that arise in the context of constitutional and statutory litigation, including evaluation of local educational problems, design of remedial measures, and supervision of the program implementation...’” Englewood, supra at 198.

A reviewing court will not substitute its judgment for that of the agency. New Jersey League of Municipalities v. D.C.A., 158 N.J. 211, 222 (1999). Courts will not compel the adoption of specific regulations. Matter of N.J.A.C. 6:28, 204 Super. 158, 165 (App. Div. 1985)(detailed regulations replaced with generalities upheld).

In reviewing the design of the regulatory framework the Commissioner has adopted, the stated purpose of the legislation must be emphasized:

“...charter schools offer the potential to improve public learning; increase for students and parents the educational choices available when selecting the learning environment which they feel may be the most appropriate; encourage the use of different and innovative learning methods; establish a new form of accountability for schools; require the measurement of learning outcomes; make the school the unit for educational improvement; and establish new professional opportunities for teachers.” N.J.S.A. 18A:36A-2

Consistent with the Legislature’s goals, the Commissioner has promulgated regulations that promote innovation and flexibility, backed by thorough periodic reporting requirements to permit vigilant monitoring by the Commissioner’s experienced staff. As the same time, charter schools are subject to all of the laws and regulations as other public schools. N.J.S.A. 18A:36-11. Because of their small size, charter schools are subject to greater regulation per student than district schools. Instead of imposing additional rigid, detailed regulations as proposed by ELC, the Commissioner has opted to set guidelines and to permit individual charters to function within those guidelines and to be held accountable for the results. Such a regulatory scheme is in no sense “unreasonable or irrational,” “unduly onerous” or “willful and unreasoning” (Appellant’s Brief at 6). Nor do the regulations (or failure to regulate) violate “the enabling act’s express or implied legislative policies” (Appellant’s Brief at 7, citing Matter of Petitions for Rulemaking, N.J.A.C. 10-82 1.2, 117 N.J. 311, 325 (1989).

The ELC contends that the amended regulations do not impose sufficient restrictions for the Commissioner to meet his obligations. The specific regulations being challenged are addressed below. The cases relied upon by the ELC to support this general proposition are readily distinguishable.

In launching its challenge to the Commissioner’s amended regulations, ELC relies on language in Public Service Elec. & Gas Co. v. Department of Environmental Protection, 101 N.J. 95, 103 (1985)(Appellant’s Brief at 6) but stops short of that case’s full analysis of the judicial role. The Court went on to say:

“...the judicial role is restricted to three inquiries: (1) whether the agency action violates the enabling act’s express or implied legislative policies; (2) whether there is substantial evidence in the record to support the findings upon which the agency based application of legislative policies; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors. Campbell v. Department of Civil Serv., 39 N.J. 556, 562 (1963); see also Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (court will reverse decision of administrative agency only if it is arbitrary, capricious, or unreasonable or if it is not supported by substantial credible evidence in the record as a whole).”

Two cases ELC relies upon (Appellant’s Brief at 7-10) involving mandated programs for disadvantaged public school children, are distinguishable and have no application here.

In the Matter of Repeal of N.J.A.C. 6:28, 204 N.J. Super. 158 (App. Div. 1985), the challenged regulation limited the scope of special education to children with a condition which “seriously” impaired a child’s functioning. The statute did not require the handicap to be a serious one and the court found evidence that the Legislature was concerned with the detection of less than serious handicaps. Because the regulation impermissibly narrowed and frustrated the policy behind it, the regulation was set aside. Matter of N.J.A.C. 6:28-2.10, 305 N.J. 389 (1997) involved a similar problem. The state regulation differed from, and was more narrow than, the companion federal regulation. The State’s definition of “specialized equipment and materials” was not broad enough to include the “assistive technology services” required under the federal definition. The regulation was struck down since it did not make clear what was to be included in formulating a child’s individual educational plan.

Much of ELC’s substantive argument is based on the proposition that in rule-making, agencies must “articulate the standards and principles that govern their discretionary decisions in as much detail as possible,” citing Crema v. New Jersey Dep’t of Envtl. Protection, 94 N.J. 286, 301 (1983) which, in turn, quoted Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 598 (D.C. Cir. 1971) (emphasis added by appellant) (Appellant’s Br. at 11). However, the Ruckelshaus decision did not involve rule-making but administrative adjudication. The case had to do with an administrator’s failure to provide “an adequate explanation for his decision to deny interim relief” after an evidentiary showing. (439 F.2d at 596). On remand, the administrator was instructed to identify the factors relevant to his determination “and relating the evidence to those factors in a statement of reasons for his decision.” (Id.).

In short, none of the cases cited by ELC requires the kind of detailed, anticipatory scheme of micro-management it would have the court impose.

III.

APPELLANT’S OBJECTIONS

TO THE COMMISSIONER’S REGULATIONS

ARE WITHOUT MERIT

We submit that this Court anticipated and rejected ELC’s challenge to the amended regulations when it considered the challenge to the regulations in Englewood, supra, 320 N.J. Super. at 220:

“The Act empowered the State Board to adopt regulations `necessary to effectuate’ the Act. N.J.S.A. 18A:36A-18. A key aim of the Act, indeed the public policy of the State, is `to encourage and facilitate the development of charter schools.’ N.J.S.A. 18A:36A-2. The State Board developed a regulatory system that, in the exercise of its regulatory expertise, it found feasible to implement the Act in a practical way. While the State Board had no power to adopt regulations that were inconsistent with or antagonistic to the Act, it could establish a process reasonably designed to meet practical issues triggered by the Act’s requirements. Cf. Ambrose v. Director, Div. Of Taxation, 198 N.J. Super. 546,552, 487 A.2d 1274 (App. Div. 1985) (regulation need not be grounded in `express statutory language,’ as long as *221 it fulfills the Act’s spirit and purpose).”

The amended regulations do in fact “establish a process reasonably designed to meet practical issues” in keeping with the legislation and its goal of furthering innovation in public schools in a manner that will permit the Commissioner to apply his expertise in an informed fashion.

A. Regulations Concerning Racial Segregation in District Schools

ELC argues that the Commissioner has not met his constitutional responsibility because the amended regulation, N.J.A.C. 6A: 11-2.1 (i), does not adequately address the “segregative effect” of charter enrollment on the district of residence. (Appellant’s Brief at 15-19). We submit that the Commissioner has met his obligation and more detailed standards are unnecessary and quite possibly would be unlawful. Just as likely, such detailed standards would impose another layer of regulation on charter schools and would impede the charters’ ability to function as agents of public school reform.

The ELC argument proceeds from a premise that has not been established. There is no evidence in this record that New Jersey schools are unlawfully segregated. No evidence has been presented to suggest that charter school enrollment practices “further” racial segregation.

Concerns about racial segregation in district schools as a result of charter enrollment have been addressed with careful scrutiny by the Supreme Court. In the Charter School Application of Englewood, 164 N.J. 316 (2000), the Englewood Board contended that the Commissioner should be required “to perform a study of the potential racial imbalancing effects of a charter before the Commissioner approves a charter school application” Id. at 323. The Court denied such a remedy. Reviewing New Jersey’s strong public policy prohibiting racial discrimination, the Court relied on the Commissioner’s “State Guidelines on the Desegregation and Integration of Public Schools” (Id. at 324-25) and the legislative history of the Charter School Program Act. The Court emphasized that the Act “requires that a charter school’s admission policy seek a pupil population similar to the pupil population that the Guidelines seek” for all districts. Id. at 327

At oral argument, the Supreme Court spent a considerable amount of time on this contention, questioning counsel with regard to the ways in which students were selected for charter schools and the impact on the districts in which the schools are located. In the end, the Court declined to impose a specific program or to require the Commissioner to implement such a program. Instead, the holding in Englewood was clearly stated: The Commissioner was required to assess the racial impact a charter will have on the district of residence, but the Court expressed “no view on the formality or structure of that analysis” expressly leaving “the form and structure of the analysis” to the Commissioner. Id. at 329-30

Following the Supreme Court’s Englewood decision, the SBOE’s amended regulations made the Commissioner’s responsibility express: Based on data to be submitted in a format to be prescribed, the Commissioner is to gauge the segregative effect of the loss of children to a charter (N.J.A.C. 6A: 11-2.1 (i) (1-2). The Commissioner’s assessment is to be made before the charter is granted (Id. at 11-2.1 (i)) and annually thereafter (Id. at 11-2.2 (c)) and at the charter’s renewal (Id. at 11-2.3 (b) 7). The Commissioner’s obligation to ensure against racial segregation is plainly stated. The Commissioner’s scrutiny is required on an ongoing basis. Thus, the Commissioner must oversee the processes and methods of comprehensive student selection at the outset to be certain that the selection process is fair and aimed toward attracting a student body commensurate with the district population, with minimal impact on the diversity of the district schools. The Commissioner must then monitor the impact of those processes and methods, as the results become ascertainable, to be sure that the goals are being accomplished.

The difficulty with the kind of detailed regulation the ELC proposes is one of timing: it prefers a precise regulation as an anticipatory measure. NJCPSA, on the other hand, contend that the Commissioner’s constant oversight and the application of the Guidelines are altogether adequate to correct any imbalance should such a situation occur.

As this Court observed in its Englewood decision, precise advance regulation is not always required or desirable. Thus, whether a charter’s application was adequate to meet the special needs of children was best determined after the school was in operation. Similarly, a charter’s impact on the district’s ability to deliver a thorough and efficient education was held to be “too abstract” until the pernicious impact has occurred. 320 N.J. Super. At 224-25. As a practical matter, the issue of racial impact is similarly one that is appropriately subject to later scrutiny, rather than advance regulation.

B. Regulation for Inclusive Admission Policies

With no claim, and certainly no evidence to support a claim, that charter schools’ admissions policies violate the Charter School Program Act, ELC insists that the Commissioner is compelled to adopt detailed regulations. ELC insists that the Commissioner has acted arbitrarily and capriciously in failing to adopt detailed regulations designed to ensure that charter school enrollment “properly reflect that community’s student characteristics” (Appellant’s Brief, f.n. 3 at 20).

The amended regulations plainly require the prospective charter school to “describe its plan to ensure the enrollment of a cross-section of the school age population of the region of residence including racial and academic factors” N.J.A.C. 6A: 11-2.1 (b) 2 ii. More precise regulation of the kind ELC desires would be unrealistic in the extreme.

Basic to the charter school concept is choice. Parents are given the opportunity to seek a charter school experience for their children, should they choose to do so. Community outreach is built into the process to allow parents to make an informed choice. Once that choice is made and parents have filed an application, the charter school cannot pick and choose its students; it must select its students on a random basis.

The amended regulations make the goal of charter enrollment clear to those who wish to secure and to maintain a charter. Regular reporting to the Commissioner is required. 6A:11-2.1 (i); Id. 11-2.2 (a)(1) vi & vii. At the application phase and annually thereafter, the Commissioner must “assess the student composition of the charter” based on data to be submitted in a format prescribed by the Commission. Id. 2.2 (c). Should a charter’s admission policies be inappropriate, the Commissioner can demand a remedial plan to correct the situation. Id.11-2.4.

There can be no doubt that the Commissioner has required “ongoing and regular assessment of racial balance” at the point where such balance can only be measured: in the practical operations of the charter school.

As one study observed, the chartering process has “built in safeguards against divisive schools:”

“First is the requirement that the school admit anyone who applies (or, if oversubscribed, use random selection) and not discriminate on such grounds as race, ethnicity, or religion. Another is the due diligence that responsible sponsors perform before issuing (or renewing) a charter.”

C.E. Finn, B.V. Manno, G. Vanourek, Charter Schools in Action (Princeton Univ. Press 2000) at 163.

See also Huffman, Charter Schools, Equal Protection Litigation and the New School Reform Movement, 73 N.Y.U.L. Rev. 1290, 1298-99 (1998).

The ELC would substitute regulations which would anticipate racial imbalance while the Commissioner’s approach is to examine carefully the results of a charter’s efforts to ensure that the enrollment constitutes a “cross-section of the community’s school age population.” The Commissioner’s approach can hardly be described as arbitrary or capricious or unreasonable.

Furthermore, in large districts with diverse populations living in separate neighborhoods within the districts, the charter schools may actually achieve greater diversity than the district schools, since charter school enrollment is open to the entire district, rather than the neighborhood in which the school is physically located.

It is enough, we submit, that the regulations forcefully guard against discrimination, through careful reporting requirements, and that charters are encouraged to pursue admission policies that attract applicants of diverse backgrounds and abilities. Requiring the kind of regulatory detail favored by the ELC would be an exercise in the abstract and would raise grave constitutional questions. See Tuttle v. Arlington County School board, 195 F. 3d 698 (4^th Cir. 1999) (use of quotas to achieve diversity unconstitutional)

C. Impairing a Thorough and Efficient Education in District Schools

ELC’s argument that anticipatory regulations are needed to assist the Commissioner’s quasi-adjudicative function has been answered by two courts. In the first instance, the burden is on the district of residence to make a “preliminary showing that the requirements of a thorough and efficient education cannot be met” Englewood 164 N.J. at 334. The Supreme Court properly has placed the fact-finding burden on the Commissioner who can exercise broad and flexible supervisory powers. It ruled:

“Moreover, we note the State Board’s assertion that a local district’s concern about thorough-and-efficient education requirements could be raised at numerous stages, such as during the district’s budget review process when the district would also have an opportunity to make a factual demonstration that a thorough and efficient education could not be provided, or if a charter school sought a change from the presumptive amount under Section 12.... In any event, the Commissioner has broad supervisory powers at his disposal to address a district’s legitimate concerns. He also has specific and powerful remedies available to him under the Comprehensive Education Improvement and Financing Act (CEIFA), N.J.S.A. 18A:7F-1 to –36. See N.J.S.A. 18A:7F-6(a), (b).” (164 N.J. at 335-36) (Emphasis added.)

This Court also considered claims that charter schools would deprive district schools of a thorough and efficient education. Judge King rejected the argument, observing that the “potential adverse result” was the choice of the Legislature and that any remedy had to be sought in the politically responsive branches of government, not the courts. Englewood, supra, 320 N.J. Super. at 227. This Court should simply reject this argument.

D. Assuring Abbott Remedies to Charter Schools

The current state funding stream supporting charters in Abbott districts places charters at a disadvantage compared to schools in the districts where they are located. ELC argues cogently that charter schools are public schools and to the extent they are located in Abbott districts, it is unconstitutional to deprive charter students of the Abbott funding (Appellant’s brief at 25), especially when ninety-two percent of charter schools are in Abbott districts.

The Abbott decisions, particularly Abbotts IV and V, emphasize that conditions outside the school must be addressed if Abbott district youngsters are to be afforded a thorough and efficient education. These decisions describe conditions that influence all Abbott district youngsters, regardless of whether they attend traditional district schools or charter schools. Thus, in Abbott IV, the Supreme Court repeated its Abbott II finding:

“`We also considered the special needs of the children in the SNDs, needs that palpably undercut their capacity to learn; we found those needs to be vastly greater than any extra-educational needs of the students in the DFG I & J districts:

The difference is monumental, no matter how it is measured. Those needs go beyond educational needs, they include food, clothing and shelter, and extend to lack of close family and community ties and support and lack of helpful role models. They include the needs that arise from a life led in an environment of violence, poverty, and despair.’” (149 N.J. at 156)

Considering the Quality in Education Act, the Abbott IV Court pointed to the failure to meet “extra-educational needs” of children in special needs districts (Id. at 159). CEIFA likewise was struck down for its failure to provide “extra-educational programs and services” (Id. at 173). The Supreme Court stated:

“Unfortunately, obstacles to a thorough and efficient education are present not only in the schools themselves, but also in the neighborhoods and family conditions of poor urban children. With concentrated poverty in the inner-city come drug abuse, crime, hunger, poor health, illness, and unstable family situations. Violence also creates a significant barrier to quality education in city schools where often just getting children safely to school is considered an accomplishment.” (149 N.J. at 178)

The “extra-educational” conditions highlighted by the Supreme Court require remediation whether the child leaves from home for a district school or a charter school. As the ELC points out, the Commissioner has not afforded charters in Abbott districts parity funding.

In Abbott V, the Court noted the need for firm administrative controls for increased funding. 153 N.J. at 456. Accordingly, the Commissioner was directed to secure the funding necessary to implement programs for which Abbott schools make a request and are able to demonstrate a need.

As the ELC points out, the Commissioner has not afforded charters in Abbott districts parity funding. The Court went on to describe the manner in which individual schools might resolve disputes where appropriate funding was not provided where there was a showing of demonstrated need, 153 N.J. at 472-73. Specifically, the Court noted that such a dispute would be a controversy under the regulations, and could be brought to the Department, appealed to the Commissioner, then the State Board, and the Appellate Division if necessary. Id. In such a way, a record would be created with regard to the application and the impact on the charter school from the grant of any such funds.

We agree with ELC that charter schools in Abbott districts should have the opportunity to receive Abbott funds. However, the Supreme Court has signaled clearly that Abbott remedies are to be applied with care and on a full factual showing of need. Such a determination should be made only on a full record, with consideration of the unique characteristics of charter schools. If, however, this Court is inclined to decide this issue on a global basis, amicus respectfully asks for the opportunity to make a full submission on this issue.

E. Procedural Due Process for Student Discipline

As the ELC acknowledges, the Commissioner’s regulations require a charter school to include in the application and approval process “a description of its student discipline policy and expulsion criteria,” citing NJAC 2.1(b)(i)(iv).

As Public schools, charter schools are subject to the same due process requirements as other public schools. N.J.S.A. 18A:36A-11. Therefore, there is no need for further regulation on this point. Charter schools, like district schools, already are regulated.

CONCLUSION

The Commissioner’s regulatory scheme for supervising charter schools, whether located in Abbott districts or elsewhere, has not been shown to be arbitrary, capricious or unreasonable. The detailed regulations which ELC prefers are neither required nor desirable.

Respectfully submitted,

April__, 2001 Carpenter Bennett & Morrissey

By____________________________

Lois H. Goodman

Attorneys for Applicant-Amicus Curiae

100 Mulberry Street

3 Gateway Center

Newark, N.J. 07102

(973) 622-7711

Of Counsel

Atlantic Legal Foundation, Inc.

205 east 42^nd Street, Ninth Floor

New York, NY 10017

In The Matter of Amended Charter SUPERIOR COURT OF NEW JERSEY

BRIEF IN SUPPORT OF MOTION FOR LEAVE TO APPEAR AS

AMICUS CURIAE

II. The Amended Regulations Carry Out the Purpose of the 7

Conclusion 21