IN THE MATTER OF GRANT OF THE CHARTER RENEWAL OF THE RED BANK CHARTER SCHOOL (NEW JERSEY DEPARTMENT OF EDUCATION)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 20, 2019
• Docket: A-3342-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3342-16T1

IN THE MATTER OF GRANT OF THE CHARTER RENEWAL OF THE RED BANK CHARTER SCHOOL. ____________________________

Argued September 9, 2019 – Decided September 20, 2019

Before Judges Sabatino, Sumners and Geiger.

On appeal from the New Jersey Department of Education.

Michael Ross Noveck argued the cause for appellants Fair Schools Red Bank and the Latino Coalition (Gibbons PC and ACLU New Jersey Foundation, attorneys; Lawrence S. Lustberg, Avram D. Frey, Jessica L. Hunter, Jeanne M. LoCicero, and Michael Ross Noveck, on the briefs).

Thomas Owen Johnston argued the cause for respondent Red Bank Charter School (Johnston Law Firm, LLC, attorneys; Thomas Owen Johnston, of counsel and on the briefs).

Geoffrey Nelson Stark, Deputy Attorney General, argued the cause for respondent Commissioner of Education (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel; James M. Esposito, Jr., Deputy Attorney General, on the briefs).

PER CURIAM

This appeal concerns the enrollment practices of a charter school located

in a community of predominantly Latino population. The school, Red Bank

Charter School ("RBCS"), historically has had a mainly white enrollment, until

very recently when the percentage of white and Latino students became roughly

equal. The racial and ethnic mix of RBCS has been the subject of public

controversy for several decades, as exemplified by our 2004 opinion describing

an earlier phase of that controversy and remanding the matter for an

administrative hearing. See In re Red Bank Charter Sch., 367 N.J. Super. 462,

467 (App. Div. 2004) ("Red Bank Charter").

In the present litigation, two nonprofit advocacy organizations in Red

Bank appeal certain aspects of a final agency decision of the New Jersey

Department of Education ("DOE") granting the renewal of RBCS's charter and

written amplifications of that decision by two successive DOE Commissioners.

Appellants contend the Commissioners' decisions are inadequate because they

fail to make explicit findings addressing appellants' claims of discriminatory

enrollment practices at RBCS. According to appellants, those practices have

suppressed Latino student enrollment at RBCS and perpetrated white enrollment

A-3342-16T1 2 at a level far higher than the white school population in the local public school

district. Appellants further argue the Commissioners acted arbitrarily and

capriciously by not halting RBCS's admission policies that give preference to

applicants who have siblings already enrolled at the school. Appellants also

contend the Commissioners' rulings are deficient in not addressing alleged

shortcomings of RBCS's advertising and outreach efforts in encouraging Latino

parents to apply for admission, and so-called "whisper campaigns" to encourage

white families to apply.

In their opposition, RBCS and the Commissioner argue appellants lack

standing to pursue this appeal and, moreover, their claims of discrimination lack

merit. They maintain the law does not provide organizations such as appellants

with a right to litigate their grievances in the context of an appeal from a charter

school renewal, especially since the public school district in this case has not

exercised its statutory right to bring or take part in this appeal. Respondents

further deny there is any proven discrimination in RBCS's enrollment practices,

and emphasize the Commissioner's amplifications provide ample assurance the

DOE is continuing to monitor the demographic mix of admitted students at

RBCS and will take any remedial measures that may be needed before the

school's present five-year charter expires.

A-3342-16T1 3 For the reasons that follow, we conclude appellants possess standing to

litigate the important constitutional and statutory issues of alleged

discrimination they have raised in this appeal. On the merits, we affirm the

agency's rejection of appellants' request to suspend the sibling preference policy,

a practice the DOE is closely monitoring. However, we are persuaded the matter

must be remanded to the DOE to enable the present Commissioner to provide

further amplification of his ruling and explicitly address, based strictly on the

existing administrative record, the omitted subjects identified by appellants.

We decline to order the Commissioner at this time to refer disputed issues

for an evidentiary hearing in the Office of Administrative Law ("OAL"), or to

require the Commissioner to expand the existing factual record. We do so

without prejudice to the right of appellants or any other party to pursue the

grievance process set forth in N.J.S.A. 18A:36A-15, and potential factual

development in connection with such a grievance. Furthermore, our opinion

does not foreclose appellants from raising their concerns about discriminatory

enrollment practices or impacts during RBCS's next charter renewal process,

which is scheduled to begin in the fall of 2021.

A-3342-16T1 4 I.

To place the facts and the parties' arguments in context, we begin with

some background concerning our State's charter school laws and regulations,

and pertinent anti-segregation principles.

A. The Charter School Program Act of 1995

In 1995, the Legislature enacted the Charter School Program Act of 1995

("CSPA"), N.J.S.A. 18A:36A-1 to -18. As part of that initiative, the Legislature

declared that "the establishment of charter schools as part of this State's program

of public education can assist in promoting comprehensive educational reform

by providing a mechanism for the implementation of a variety of educational

approaches which may not be available in the traditional public school

classroom." N.J.S.A. 18A:36A-2. The Legislature further 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." Ibid.

A charter school is "a public school operated under a charter granted by

the [C]ommissioner." N.J.S.A. 18A:36A-3(a). It "is operated independently of

a local board of education and is managed by a board of trustees," who are

A-3342-16T1 5 "deemed to be public agents authorized by the State Board of Education to

supervise and control the charter school." Ibid.

A charter school must operate in accordance with its charter and the laws

and regulations governing public schools, unless the school requests and is given

an exception by the Commissioner. N.J.S.A. 18A:36A-11(a). As we will

discuss in Part III of this opinion, "[a]ny individual or group may bring a

complaint to the board of trustees of a charter school alleging a violation of the

provisions of this act." N.J.S.A. 18A:36A-15.

With respect to admissions, charter schools are "open to all students on a

space available basis." N.J.S.A. 18A:36A-7. A charter school cannot

discriminate in its admissions policies and practices, although it "may limit

admission to a particular grade level or to areas of concentration of the school,

such as mathematics, science, or the arts." N.J.S.A. 18A:36A-7.

Particularly relevant to the present case is N.J.S.A. 18A:36A-8, which

provides:

a. Preference for enrollment in a charter school shall be given to students who reside in the school district in which the charter school is located. If there are more applications to enroll in the charter school than there are spaces available, the charter school shall select students to attend using a random selection process. A charter school shall not charge tuition to students who reside in the district.

A-3342-16T1 6 b. A charter school shall allow any student who was enrolled in the school in the immediately preceding school year to enroll in the charter school in the appropriate grade unless the appropriate grade is not offered at the charter school.

c. A charter school may give enrollment priority to a sibling of a student enrolled in the charter school.

d. If available space permits, a charter school may enroll non-resident students. The terms and condition of the enrollment shall be outlined in the school's charter and approved by the commissioner.

e. The admission policy of the charter school shall, to the maximum extent practicable, seek the enrollment of a cross[-]section of the community's school age population including racial and academic factors.

[(Emphasis added).]

After approving a charter application, the Commissioner must annually

assess whether the school is meeting the goals of its charter. N.J.S.A. 18A:36A-

16(a). Regulations specify the Commissioner must also annually assess "the

student composition of a charter school and the segregative effect that the loss

of the students may have on its district of residence." N.J.A.C. 6A:11 -2.2(c).

To facilitate that review, charter schools must submit an annual report to the

Commissioner, local board of education, and the county superintendent of

schools. N.J.S.A. 18A:36A-16(b); N.J.A.C. 6A:11-2.2. The Commissioner may

revoke a charter at any time if the school has not fulfilled or has violated any of

A-3342-16T1 7 the conditions of its charter. N.J.S.A. 18A:36A-17.

B. Constitutional Anti-Segregation Principles

It is well-established that, "[r]ooted in our Constitution, New Jersey's

public policy prohibits segregation in our public schools." In re Grant of Charter

Sch. Application of Englewood on the Palisades Charter Sch., 164 N.J. 316, 324

(2000). See also id. at 330 ("[S]egregation, however caused, must be

addressed."); In re Renewal Application of Team Acad. Charter Sch., 459 N.J.

Super. 111, 144 (App. Div. 2019) ("Segregation is strictly prohibited in our

schools, and is specifically prohibited in charter schools."). In that regard, the

CSPA provides that "[t]he admission policy of the charter school shall, to the

maximum extent practicable, seek the enrollment of a cross[-]section of the

community's school age population including racial and academic factors."

N.J.S.A. 18A:36A-8(e) (emphasis added). See also N.J.A.C. 6A:11-4.5(e)

(same).

Our Supreme Court has found that the "form and structure" of the

segregative analysis under the CSPA is within the discretion of the DOE

Commissioner and the State Board of Education to determine. Englewood, 164

N.J. at 329. See also Team Academy, 459 N.J. Super. at 145 (recognizing the

Commissioner's and State Board of Education's discretion when determining

A-3342-16T1 8 segregative effect).

C. The Oversight Role of the DOE and the Commissioner

Within this regulatory structure, the Supreme Court has recognized the

Commissioner's obligation under the New Jersey State Constitution "to prevent

segregation in our public schools . . . when [he or she] performs his [or her]

statutory responsibilities under the Charter School Act." Id. at 328. Indeed, as

far back as 1971 the Commissioner "recognized that . . . there is an 'obligation

to take affirmative steps to eliminate racial imbalance, regardless of its causes,'"

citing to New Jersey's "constitutional provisions for a thorough and efficient

school system (N.J. Const. art. VIII, § 4, ¶ 1), and against segregation in the

schools (N.J. Const. art. I, ¶ 5)." Jenkins v. Twp. of Morris Sch. Dist., 58 N.J.

483, 506 (1971). This state constitutional duty applies equally in the charter

school context. See, e.g., Englewood, 164 N.J. at 328 ("The constitutional

command to prevent segregation in our public schools superimposes obligations

on the Commissioner when he performs his statutory responsibilities under the

Charter School Act.").

To conform with these constitutional and statutory commands, "the

Commissioner must use the full panoply of his powers to avoid [segregation]."

Id. at 329. See also Booker v. Bd. of Educ. of City of Plainfield, 45 N.J. 161,

A-3342-16T1 9 178- 79 (1965) (recognizing Commissioner's power extends beyond addressing

segregated schools and includes remedial action to alleviate substantial racial

imbalance); In re Petition for Authorization to Conduct a Referendum on the

Withdrawal of North Haledon Sch. Dist. from Passaic Cty. Manchester Reg'l

High Sch., 363 N.J. Super. 130, 139 (App. Div. 2003) (discussing Supreme

Court decisions requiring "education policy makers to anticipate imbalance and

to take action to blunt perceived demographic trends which will lead to racial or

ethnic imbalance."). Just as the Commissioner is obligated to act if a charter

school "systematically" recruits pupils of a particular race or national origin, the

Commissioner must also "be prepared to act if the de facto effect of a charter

school were to affect a racial balance precariously maintained in a charter

school's district of residence." Englewood, 164 N.J. at 328.

In response to the Court's decision in Englewood, and to the companion

case, In re Greater Brunswick Charter Sch., 164 N.J. 314, 315 (2000),

regulations were adopted that required the Commissioner, approving a charter,

N.J.A.C. 6A:11-2.1(j), and on an annual basis thereafter, N.J.A.C. 6A:11-2.2(c),

to "assess the student composition of a charter school and the segreg ative effect

that the loss of the students may have on its district of residence. The assessment

shall be based on the enrollment from the initial recruitment period pursuant to

A-3342-16T1 10 N.J.A.C. 6A:11-4.4(b)." 32 N.J.R. 3560(a), 3561 (Oct. 2, 2000). N.J.A.C.

6A:11-4.4(a) requires "a charter school [to] submit to the Commissioner the

number of students by grade level, gender and race/ethnicity from each district

selected for enrollment from its initial recruitment period for the following

school year."

This court similarly recognized in the previous Red Bank Charter appeal

the Commissioner's obligation under the State Constitution to prevent

segregation in New Jersey's public schools. See, e.g., 367 N.J. Super. at 471-72

(noting that "[a]ll parties agree that the Commissioner is required to monitor and

remedy any segregative effect that a charter school has on the public school

district in which the charter school operates," and " [t]he Commissioner must

vigilantly seek to protect a district's racial/ethnic balance during the charter

school's initial application, continued operation, and charter renewal

application."). See also Team Academy, 459 N.J. Super. at 145 (recognizing

the Commissioner's obligation to annually monitor the possible segregative

effective of a charter school upon the local school district).

A-3342-16T1 11 II.

RBCS opened in 1998. It presently enrolls 200 students, from

prekindergarten through eighth grade. 1 The school's charter limits enrollment

to twenty students in each of the ten grades.

For many years, starting long before the present litigation, RBCS has been

accused of enrolling a student population that does not reflect a cross-section of

the Red Bank community. In 2001, the Red Bank Board of Education (the

"School Board"), challenged a proposed expansion of RBCS's enrollment on the

grounds that RBCS had allegedly "worsened the racial ethnic imbalance in the

[Red Bank] district schools." Red Bank Charter, 367 N.J. Super. at 467. The

School Board contended that RBCS was "siphoning" non-minority students

from the district schools, which increased the "exodus of whites from the school

district." Id. at 472. The School Board appealed the DOE's approval of the

charter expansion request.

Based on the record in that earlier case, we remanded the dispute for an

administrative hearing. Among other things, we directed the hearing to focus

upon "whether some of [RBCS's] practices may be worsening the existing

1 The prekindergarten class enrollment was originally capped at fifteen students, but counsel clarified at oral argument the class is now at twenty. A-3342-16T1 12 racial/ethnic imbalance in the district schools." Id. at 480. We did not specify

the manner or venue of the remand hearing.

Several years after our 2004 remand, the Board and RBCS entered into a

consent order on March 20, 2007 in the OAL ending the litigation, without any

administrative hearing. RBCS's charter was renewed by the DOE in ensuing

years in 2006 and 2012, apparently without litigation. 2

The present appeal arises from the most recent renewal application

submitted by RBCS to the DOE in September 2016. As part of its review of that

application, the DOE conducted a site visit at RBCS in October 2016. Because

DOE ranks RBCS as a "Tier 1" school, based on its students' high academic

performance on standardized tests, the site visit was shortened to only several

hours, instead of a full day. Among other favorable things, the DOE concluded

from the site visit that RBCS is "faithful to its mission," that the school

"promotes a culture of high expectations," and that the RBCS Board "has the

capacity to govern the school effectively."

2 An initial charter is for a term of four years and may be renewed for a five - year period. N.J.S.A. 18A:36A-17. A-3342-16T1 13 On February 28, 2017, Kimberly Harrington, who was then the DOE

Commissioner, granted RBCS's charter renewal in a "short, congratulatory

letter," for a period of five years through June 30, 2022.

A. The Present Appeal of RBCS's 2017 Charter Renewal

On April 11, 2017, the Latino Coalition of New Jersey and Fair Schools

Red Bank (collectively "the Coalition") 3 appealed Commissioner Harrington's

renewal decision to this court. The Coalition asserted the renewal decision

violated: (1) the CSPA; (2) the Thorough and Efficient Education Clause of the

New Jersey Constitution, N.J. Const. art. VIII § 4 ¶ 1; (3) and Article I,

paragraph 5 of the New Jersey Constitution. The Coalition further argued the

Commissioner's decision was arbitrary and capricious.

Pursuant to Rule 2:5-1(b), Commissioner Harrington filed with this court

on August 9, 2017 an Amplification of Reasons for her February 28, 2017

decision, on her own initiative. The August 2017 Amplification cited three main

3 According to appellants, the Latino Coalition of New Jersey "is a [Section] 501(c)(14) corporation established in 2009, made up of organiz ations and individuals from Monmouth and Ocean County, New Jersey." Co-appellant Fair Schools Red Bank, meanwhile, "is an unincorporated organization of Red Bank residents." Appellants state they represent "the membership of Fair Schools Red Bank and the Latino Coalition, [which] includes residents of Red Bank with school-age children, some of whom attend Red Bank's [p]rimary and [m]iddle schools." At oral argument, appellants' counsel clarified they do not represent the interests of Latino children who are presently enrolled at RBCS. A-3342-16T1 14 reasons as support the renewal decision: (1) RBCS's favorable student

performance on statewide assessments; (2) operational sustainability; and (3)

demographic enrollment data and public comment.

With regard to the first listed factor of student performance,

Commissioner Harrington noted that RBCS is a "Tier Rank 1" school, and had

outperformed Red Bank district schools in English language arts and

mathematics in 2014-2015 and 2015-2016. The Commissioner observed in this

regard that "RBCS has a track record of student success based on the results of

statewide assessments."

Regarding the second factor of operational sustainability, Commissioner

Harrington noted that: (1) RBCS's charter already had been renewed three times

before the 2017 renewal; (2) its enrollment the last term was at capacity, with a

waiting list; and (3) leadership at RBCS has been "stable."

As to the third factor of demographics and pupil enrollment,

Commissioner Harrington acknowledged that "[a] cursory review of the

racial/ethnic composition of RBCS's overall student population . . . suggest[s]

that it does not currently reflect the community's school-age population."

(Emphasis added). However, the Commissioner explained that "a closer look

A-3342-16T1 15 reveals the RBCS has taken sufficient action to address the issue and has

obtained the necessary results." (Emphasis added).

Commissioner Harrington delineated several reasons to support her

conclusion that RBCS had taken "sufficient action" to address its racial

imbalance:

 There are limited opportunities for new students to enroll because RBCS has a maximum enrollment of 200 students, or 20 students per grade, and a low attrition rate;

 RBCS had bolstered its outreach for the 2015- 2016 school year by mailing the RBCS application and advertisements to all Red Bank residents in both English and Spanish, and targeted high-needs communities with posters and banners;

 Prekindergarten enrollment data from 2015-2016 indicates that the recruitment strategy was effective, with 60% of the 2015-2016 incoming prekindergarten class identifying as Hispanic, as compared to 27% of the 2014-2015 incoming prekindergarten class identifying as Hispanic;

 In April 2016 RBCS implemented a weighted lottery4 for economically disadvantaged students

4 According to the Commissioner, pursuant to N.J.S.A. 18A:36A-7 and N.J.S.A. 18A:36A-8, charter schools may seek approval from the DOE to establish certain admission policies, including weighted lotteries, which favor economically disadvantaged students. Economically disadvantaged students who apply to RBCS have their names entered into the lottery three times, while all other students have their names entered only twice. A-3342-16T1 16 "in order to better represent a cross-section of the community's school-age population;"

 Although the Commissioner considered ending RBCS's sibling preference policy (as the Coalition has advocated) in order to make more seats available to new students, the Commissioner determined it would be unnecessary, citing to the increase in enrollment of Latino prekindergarten students; and

 After comparing the ethnic makeup of the district schools and RBCS, it was determined that there was no compelling evidence to suggest that RBCS is having a segregative effect on the district schools.

Following the August 2017 Amplification, the Coalition filed an objection

with this court, arguing the amplification was improperly based on evidence not

in the record and had been submitted for the purpose of litigation advocacy.

B. Post-Remand & Subsequent DOE Proceedings

In a September 15, 2017 order from this court, we remanded the case to

the Commissioner for further "proceedings," in order to provide the Coalition

and DOE "with [an] adequate opportunity to supplement the record as it relates

to the August 9, 2017 Amplification of Reasons."

The Coalition's November 2017 Submission to the Commissioner Pursuant to the remand by this court, the Coalition submitted to

Commissioner Harrington a detailed twenty-six-page letter on November 13,

A-3342-16T1 17 2017, which set forth arguments and evidence of RBCS's alleged historical

practice of segregation in its recruitment and enrollment practices. In the letter,

the Coalition's members expressed "deep[] concern[] that … RBCS is increasing

segregation in the [d]istrict schools." 5 The Coalition "submit[ed] [the] letter and

attached materials to assist the Commissioner in identifying the problems posed

by RBCS' operation, as well as specific remedies to address them."

In its November 2017 submission, the Coalition highlighted the following

matters in support of its argument that the Commissioner must make policy

changes to remedy the racial imbalance in RBCS:

 Census data showing the demographic shift and increase in Red Bank's Latino community over the past twenty years;

 Statements, letters, and newspaper articles indicating that RBCS had endeavored to position itself as the only public school option for white parents seeking refuge from the majority-Latino district schools. Or, as the Coalition puts it, RBCS was allegedly intending to mitigate against so-called "white flight" from Red Bank to nearby towns;

 RBCS has historically limited information about its application process and lottery system to affluent white social networks and parent groups. In other words, RBCS's recruiting was, in

5 Notably, the district has not participated in this appeal.

A-3342-16T1 18 essence, a "whisper campaign" amongst white middle- and upper-class RBCS parents to other white middle- and upper-middle class families;

 The sibling preference policy perpetuates RBCS's skewed racial demographic because most siblings are the same race and enrollment is already very limited. Indeed, the Commissioner noted in the August 2017 Amplification that, according to the "school lead," roughly half of the 20 prekindergarten seats go to siblings each year; and

 The weighted lottery is being undermined by RBCS's sibling preference policy and failure to recruit "a cross-section of the community.

Despite these criticisms, the Coalition clarified that it was not asking the

Commissioner to deny RBCS's renewal application altogether, recognizing that

the "closure of [RBCS] would disrupt and unfairly penalize its 200 students."

However, the Coalition did urge that "corrective action is required if the RBCS

charter is to be renewed," and insisted that the Commissioner address the

"central causes of RBCS'[s] segregative effect . . . by requiring changes to

RBCS policies."

(1) Proposed Remedial Measures

The Coalition proposed three specific remedial measures to the

Commissioner.

A-3342-16T1 19 First, the Coalition asked the Commissioner to evaluate standardized tests

scores in a manner that accounts for biases along the lines of race, class, and

English-language proficiency. The Coalition advocated the charter school's

performance should only be compared to the district schools "after

differentiating between students of racial, economically disadvantaged, and

[limited English proficiency] groups." According to the Coalition, "[s]uch a

policy change would remove the incentive for RBCS to recruit predominantly

white, wealthy, English-proficient students . . . . [a]nd it would remove the

harmful and unfair stigma that [,by comparison,] the [d]istrict is a poor academic

institution."

Second, the Coalition urged the Commissioner to "meaningfully

investigate and oversee the charter's marketing and recruitment efforts." The

Coalition asserted that, "in light of the accounts of [the letters submitted by

numerous] Red Bank parents [detailing the so-called alleged "whisper

campaign"], the charter cannot be taken at its word that it is fulfilling its

obligation to seek a cross-section of the community."

Third and finally, the Coalition requested the Commissioner suspend

RBCS's sibling preference policy until the charter school's racial imbalance is

corrected. The Coalition described as "illogical" the Commissioner's conclusion

A-3342-16T1 20 in the amplification that ending the sibling preference policy "could be

detrimental" to the enrollment of more Latino students.

(2) RBCS's Response Letter In its administrative response to the Coalition, RBCS urged the

Commissioner to: (1) reject the Coalition's letter submission as improper and

contrary to the remand order because the submission presented new arguments

and information that had not been raised before; (2) find that the Coalition

lacked standing to bring an appeal of the charter renewal, and that the appeal

was moot since the Coalition was not contesting the continuance of the charter;

and (3) dismiss the Coalition's allegations of segregative impact, because "the

available evidence clearly demonstrates that RBCS attracts a cross[-]section of

the student age population in the Red Bank community." RBCS took issue with

the Coalition's claim that RBCS was purposely not recruiting Latino students.

In particular, RBCS asserted that recent "diverse enrollment trends" were a

direct result of RBCS's positive outreach to the Latino community.

Commissioner Repollet's April 2018 Amplification In response to those submissions and this court's remand order,

Commissioner Lamont Repollet 6 issued a four-page Amplification on April 16,

6 Commissioner Repollet succeeded Commissioner Harrington in January 2018 after the change in gubernatorial administrations. He became Acting A-3342-16T1 21 2018 "reiterate[ing] the February 28, 2017 decision to renew RBCS's charter

through June 30, 2022." Commissioner Repollet did not refer the matter for an

administrative hearing to delve into factual disagreements between the parties.

Commissioner Repollet's April 2018 Amplification concluded that, after

considering the supplemental record, "it is evident . . . that RBCS is seeking,

'to the maximum extent practicable,' to enroll a cross-section of Red Bank

Borough's school-age population." The Commissioner, while acknowledging

the letters of Red Bank residents suggesting what the Coalition alleged to be a

"whisper recruitment campaign," nonetheless found RBCS's recruitment

practices were sufficient during the relevant charter term (2013 to 2017), stating:

RBCS recruited throughout the Red Bank Community by: providing the application in hard-copy and electronically in English/Spanish, direct mailings to Red Bank Borough residents, English/Spanish lawn signs through the community, posted and published advertisements for the application and latter in English/Spanish, a banner on the main Red Bank thoroughfare, and reaching out to local churches and community organizations to include information about RBCS in their bulletins and announcements.

Commissioner on January 29, 2018 and was sworn in as Commissioner on June 19, 2018, after he had issued the April 2018 Amplification. Dr. Lamont Repollet, DEPARTMENT OF EDUCATION, https://www.nj.gov/education/about/commissioner/repolletbio.shtml. A-3342-16T1 22 Commissioner Repollet endorsed RBCS's use of a weighted lottery as a

tool to promote enrollment of economically disadvantaged students. The

weighted lottery, which because effective at RBCS in 2017, "increases the odds

a student identified as part of a specific educationally disadvantaged class . . .

will gain a seat at RBCS." Thus, according to the Commissioner, "the ultimate

purpose of the weighted lottery is to ensure that RBCS's enrollment represents

a cross-section of the community's school-age population." Citing a

certification from RBCS's principal included with RBCS's letter submission, the

Commissioner noted that, in the first year of the weighted lottery, "the number

of Hispanic students enrolled [per a] sibling preference increased 26 percent and

the number of white students enrolled with a sibling preference decreased 11

percent."7 Commissioner Repollet recognized that RBCS maintains a policy in

which siblings of current RBCS students are automatically granted a seat in

RBCS, and that, in the event the number of siblings applying for such seats

exceeds the available seats, the sibling student is placed on a waitlist and granted

enrollment through a lottery system. However, like Commissioner Harrington,

7 Of the fifty-nine students admitted in 2016-2017, it is not clear how many of those students were in prekindergarten, and how many were older students who had been enrolled through sibling preference, but before the implementation of the weighted lottery. A-3342-16T1 23 Commissioner Repollet found no reason to discontinue the sibling preference

policy, explaining that the weighted lottery will trend in a "direction that better

reflects the demographics of school-aged population in the community . . . .

[And] [i]t is anticipated that this trend will continue in coming years as

[economically disadvantaged students], and siblings thereof, obtain seats at

RBCS. (Emphasis added).

Although declining to take any immediate remedial action, Commissioner

Repollet did caution in his decision that the DOE "will continue to monitor

RBCS's demographics and will consider revisiting both the weighted lottery and

sibling preference if the trend does not continue."

The Coalition thereafter expanded its appeal to include Commissioner

Repollet's amplification.

III.

A.

Our governing standards of review are well established. In general,

reviewing courts "need to respect agency action taken pursuant to authority

delegated by the Legislature." In re Proposed Quest Acad. Charter Sch. of

Montclair Founders Grp., 216 N.J. 370, 385 (2013) ("Quest Academy").

A-3342-16T1 24 Consequently, subject to the governing law, an "appellate court may [only]

reverse an agency decision if it is arbitrary, capricious, or unreasonable." Ibid.

As we recently observed in Team Academy, our role in reviewing an

agency action is generally restricted to three inquiries:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether 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.

[Team Academy, 459 N.J. Super. 139 (quoting Quest Academy, 216 N.J. at 385-86).]

This limited scope of review particularly applies to the context of a DOE

Commissioner's decision on a charter-school renewal application because the

Commissioner is "acting in his [or her] legislative capacity and not quasi-

judicial capacity" when he or she is reviewing such an application. Red Bank

Charter, 367 N.J. Super. at 475. As we stated in Red Bank Charter, "[t]he

Commissioner is merely applying his [or her] education expertise to the

collected data, including the documents, statistics, site visit, and comprehensive

review, to determine whether the charter school should be renewed . . . . It

A-3342-16T1 25 remains essentially an investigatory proceeding without the need of adversarial

procedural trappings." Id. at 475-76.

Because the Commissioner is acting in a quasi-legislative, and not quasi-

judicial capacity in this context, id. at 476, "he [or she] need not provide the

kind of formalized findings and conclusions necessary in the traditional

contested case." Ibid. (quoting In re Grant of Charter Sch. Application of

Englewood on the Palisades Charter Sch., 320 N.J. Super. 174, 217 (App. Div.

1999)). That is because when reviewing "quasi-legislative decisions, [reviewing

courts generally] do not seek to determine whether sufficient credible evidence

is present in the record, but instead consider whether the decision is arbitrary,

capricious or unreasonable." Ibid. The agency's "reasons for the decision need

not be detailed or formalized, but must [at least] be discernible from the record."

Ibid. (citing Bd. of Educ. of E. Windsor Reg'l Bd. of Educ. v. State Bd. of

Educ., 172 N.J. Super. 547, 552-53 (App. Div. 1980)).

That said, the normal standard of appellate review for arbitrariness

nonetheless "subsumes the need to find sufficient support in the record to sustain

the decision reached by the [DOE] Commissioner." Quest Academy, 216 N.J.

at 386. "[A] failure to consider all the evidence in a record would perforce lead

to arbitrary decision making." Ibid. (citing Close v. Kordulak Bros., 44 N.J.

A-3342-16T1 26 589, 599 (1965) (noting "the proofs as a whole" must be considered)). In the

same vein, a Commissioner's decision that is "based on a complete

misperception of the facts submitted in a record would render the agency's

conclusion unreasonable." Id. at 387 (citing Clowes v. Terminix Int'l, Inc., 109

N.J. 575, 588-89 (1988) (recognizing that an appellate court should intervene

when agency's "finding is clearly a mistaken one")).

Lastly, we review de novo on appeal pure questions of law. Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

B.

With these principles in mind, we turn to specific issues that have been

presented to us.

1. Appellants' Standing and Mootness Issues

RBCS and the Commissioner contend the Coalition lacks standing to

pursue its claims on this appeal, and that consequently there is no need for this

court to address the substance of those claims. We disagree.

Respondents hinge their lack-of-standing argument largely upon N.J.S.A.

18A:36A-4(d), a provision within the CSPA stating that "A local board of

education or a charter school applicant may appeal the decision of the

[C]ommissioner [concerning a charter school application] to the Appellate

A-3342-16T1 27 Division of the Superior Court." Respondents maintain this facet of the statute

precludes any parties, other than a local public school district or a charter school

applicant, from obtaining appellate review of a Commissioner's decision to

grant, renew, or deny a charter, or the terms of such grants.

As we have noted, the Red Bank Public School District, which filed

opposition to RBCS's renewal administratively with the DOE, 8 did not pursue

that opposition to the next level through an appeal to this court. Because no

such appeal was filed by the school district, respondents urge that we refuse to

consider the Coalition's own prayers for relief.

In a related procedural argument not joined by the Commissioner, RBCS

further contends we should dismiss the appeal because the Coalition is not

seeking to terminate or suspend RBCS's charter, but instead challenges certain

aspects of the charter's terms of renewal. Hence, according to RBCS, "there is

no controversy about the continuing status of RBCS's charter."

"Standing 'refers to [a litigant's] ability or entitlement to maintain an

action before the court.'" In re Adoption of Baby T, 160 N.J. 332, 340 (1999)

(quoting N.J. Citizen Action v. Riveria Motel Corp., 296 N.J. Super. 402, 409

8 We have not been supplied on appeal with a copy of the District's opposition submitted to the DOE, but that document is listed in the Statement of Items Comprising the Record. A-3342-16T1 28 (App. Div. 1997)). Under this state's general principles of standing, a party

"must present a sufficient stake in the outcome of the litigation, a real

adverseness with respect to the subject matter, and a substantial likelihood that

the party will suffer harm in the event of an unfavorable decision." In re Camden

Cty., 170 N.J. 439, 449 (2002). See also In re Grant of Charter to Merit

Preparatory Charter Sch. of Newark, 435 N.J. Super. 273, 279 (App. Div. 2014)

(similarly applying these standing factors in a charter school case).

Our courts in this State generally take "a liberal approach to standing to

seek review of administrative actions." In re Camden Cty., 170 N.J. at 448.

"[W]hen an issue involves a 'great public interest, any slight additional private

interest will be sufficient to afford standing.'" Merit Charter, 435 N.J. Super. at

279 (quoting Salorio v. Glaser, 82 N.J. 482, 491 (1980)). "[I]t takes but slight

private interest, added to and harmonizing with the public interest[,] to support

standing to sue." People for Open Gov't v. Roberts, 397 N.J. Super. 502, 510

(App. Div. 2008) (quotation omitted).

This court very recently considered these standing principles in Team

Academy. In doing so, we declined to construe N.J.S.A. 18A:36-4(d) as an

immutable barrier for public interest organizations to seek appellate review of a

Commissioner's decisions concerning charter schools.

A-3342-16T1 29 Specifically, in Team Academy we recognized that the petitioner, a

nonprofit law center litigating on behalf of Abbott9 schoolchildren, had standing

to challenge the Commissioner's decision to approve the expansion of several

Newark charter schools. Id. at 125-26. See also In re Ass'n of Trial Lawyers of

Am., 228 N.J. Super. 180, 185 (App. Div. 1988) ("The standing of nonprofit

associations to litigate in varying contexts has historically been upheld in New

Jersey."). As we explained in Team Academy, "[n]onprofit organizations have

representative standing to pursue claims on behalf of their members that are of

'common interest' and could not more appropriately be pursued by individual

members." Team Academy, 459 N.J. Super. at 125-26 (citing Crescent Park

Tenants Ass'n, 58 N.J. 98, 109 (1971)).

As we reasoned in Team Academy:

Given our State's goal of providing a thorough and efficient education to all public school students, [the nonprofit law center's] standing seems clear. That the statute [N.J.S.A. 18A:36-4(d)] does not explicitly allow for organizations such as [the nonprofit law center] to appeal the Commissioner's decisions is inconsequential. The unfortunate reality is that, despite systemic improvements, public school children in Abbott districts continue to need representation in order to ensure their constitutional right to a thorough and efficient education is enforced. At no time has the overall statutory scheme regarding education expressly

9 Abbott v. Burke, 119 N.J. 287 (1990). A-3342-16T1 30 granted standing to entities such as [the nonprofit law center], yet [the center] has over many years successfully litigated on behalf of New Jersey's school children. To coin a phrase, if not [the nonprofit law center], then who?

The issues raised in this appeal, notably the effect of a substantial increase in charter school enrollment on traditional schools in a former Abbott school district, are of "great public interest[.]" Merit Preparatory, 435 N.J. Super. at 279 (quoting Salorio, 82 N.J. at 491). Thus, even if [the nonprofit law center] had demonstrated only a "slight additional private interest," it has standing.

[Id. at 126-127 (emphasis added).]

In supplemental briefs filed in this case at our invitation, both RBCS and

the Commissioner attempt to distinguish the situation in Team Academy from

the present matter. They contend the Coalition fundamentally differs from the

appellant in Team Academy – the Education Law Center – because its two

constituent organizations lack a sufficient school-centered mission. Among

other things, respondents point out to us that the Latino Coalition is immersed

in a variety of community and cultural activities that do not directly concern

public education. Meanwhile, Fair Schools Red Bank is characterized by RBCS

as an organization whose overall mission is to have RBCS's charter revoked and

the school eliminated, although that particular relief is not sought on this appeal.

Respondents further attempt to distinguish Team Academy because the public

A-3342-16T1 31 schools in the City of Newark are State-operated, and therefore the voice of a

local public school board was absent from the litigation.

We are satisfied the Coalition has standing to pursue the present appeal.

The Coalition's members have a sufficient stake in the terms of the charter

school's renewal, and the ongoing impact of the terms of that renewal and the

school's enrollment practices on school-aged children who live in Red Bank,

particularly Latino children. As described by the Coalition, it is advocating in

this case the interests of "public school students and their families who are

harmed by the Commissioner's decision, which has [allegedly] allowed the

perpetration and exacerbation of segregation in Red Bank schools." That is an

appropriate – indeed, more than "slight" – interest to advocate in a charter school

renewal context, and one closely tied to the CSPA. People for Open Gov't, 397

N.J. Super. at 510 (noting the standard of a "slight" private interest, coupled

with the public interest). The Coalition has real adverseness to the positions of

respondents. It has articulated constitutionally-based and statutorily-based

potential harms that could ensue if the Commissioner's decision is not altered.

We recognize that the Coalition does not have the long pedigree of the

Education Law Center in litigating public school issues in New Jersey, and that

the Coalition's activities are not exclusively focused on educational matters.

A-3342-16T1 32 Even so, the Coalition, which is represented by co-counsel from the American

Civil Liberties Union and a law firm's public interest fellowship, has more than

ample credentials to advocate the serious issues of alleged segregation it has

presented concerning this charter school's renewal.

In addition, the absence of the Red Bank Public School District from this

appeal does not nullify the Coalition's standing. The District opposed RBCS's

charter renewal before the DOE. There is no reason to believe the District 's

views concerning the issues before us on appeal diverge from those of the

Coalition, except perhaps the District may favor more drastic remedies.

Further, we reject RBCS's contention the appeal is moot. An issue has

become moot "when the decision sought in a matter, when rendered, can have

no practical effect on the existing controversy." N.Y. Susquehanna & W. Ry.

Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct.

1984) (citation omitted), aff'd, 204 N.J. Super. 630 (App. Div. 1985). The

conditions of RBCS's renewal – particularly those concerning the continued

sibling preference policy, the effectiveness of the weighted lottery and the

school's outreach to the Latino population, and the other discrete issues posed

on appeal – remain viable and unresolved concerns. The Commissioners

themselves have stated in their amplifications that the DOE would be continuing

A-3342-16T1 33 to monitor these concerns. The controversy is plainly not moot, and indeed

persists.

2. Sibling Preference and the Newly-Instituted Weighted Lottery

A main remedial objective of the Coalition, asserted both at the agency

level and again on this appeal, is to have the Commissioner suspend RBCS's

sibling preference policy in the admissions process. The Coalition argues the

sibling preference policy historically has been a significant factor in causing a

much higher percentage of white students to be enrolled at RBCS, as compared

with the local school-age population. In simple terms, the Coalition argues the

sibling preference policy enables applicants who are younger siblings of white

students who are already enrolled at RBCS to occupy seats that might be more

demographically diverse if they were made open to all applicants, including

Latino children.

Sibling preference is statutorily permitted. N.J.S.A. 18A:36A-8(c) ("A

charter school may give enrollment priority to a sibling of a student enrolled in

the charter school."). However, as this court cautioned in the prior appeal

involving RBCS, "the statutory sibling preference is not mandatory and in

particular circumstances, might not be appropriate, especially if its operation

A-3342-16T1 34 exacerbates existing racial/ethnic imbalance." Red Bank Charter, 367 N.J.

Super. at 481-82.

As respondents have rightly pointed out, sibling preference admission

policies have numerous benefits. Among other things, parents with more than

one child at the school can be relieved of the logistical burdens of having their

children transported to different school locations. The siblings potentially may

benefit academically by having another sibling at the charter school who has

been taught the same or similar curriculum, by perhaps the same teachers. The

siblings may also benefit socially by having the opportunity to interact with

friends of their siblings' own friends and classmates. The siblings might also

participate together in extracurricular or recreational activities.

These benefits can be offset, however, if a sibling preference policy is

materially thwarting efforts to achieve a racial/ethnic enrollment balance that is

more representative of the local school-age population. As we have already

noted, there was a sharp increase in the under-eighteen Latino population in Red

Bank between 2000 and 2010. During that decade, the Latino under-eighteen

population grew from 542 to 1,307, or 141.1%. Consistent with that pattern, the

Latino enrollment at the Red Bank public school has grown from 18.9% in 1998

to 89.3% in 2017. Meanwhile, the Latino enrollment at RBCS has risen at a

A-3342-16T1 35 comparatively slower pace, from 5.1% in 1998 to 45.2% in 2017. As we have

already noted, the 2017 data indicates the percentages of whites (44.92%) and

Latinos (45.2%) attending RBCS are roughly equal, as compared with, say, 2000

when white enrollment was 51.3%, about five times the Latino enrollment of

10.0%.

The key causal question on this issue is to what extent the school's sibling

preference policy is unduly impeding further Latino enrollment and

diversification at RBCS. Both Commissioner Harrington and her successor

Commissioner Repollet considered that precise question, and concluded that the

sibling preference policy should not be suspended at this time.

As Commissioner Harrington noted in her amplification, "RBCS's most

recent data does not evidence that ending sibling preference would bring about

the desired change." She recognized in this regard that in April 2016, RBCS,

with the approval of the DOE, became the second charter school in this State to

implement a weighted lottery that favors economically disadvantaged students,

which would include many students from the Latino community. Through that

weighted lottery, economically disadvantaged students enjoy a 3:2 preference in

A-3342-16T1 36 competing for any open slots at RBCS, including situations where multiple

applicants have an older sibling at the school. 10

As Commissioner Harrington underscored, the percentage of Latino

children in the incoming prekindergarten class at RBCS increased from 27% in

2014-15 to 60% in 2015-16. Given this sharp increase, Commissioner

Harrington found that, even with the policy of sibling preference continued, "the

most recently admitted cohort of students is beginning to mirror the racial/ethnic

composition of the community's school-age population." In light of this,

Commission Harrington specifically "determined that it was unnecessary, and

indeed, could be detrimental, to end sibling preference." That said,

Commissioner Harrington committed in her August 2017 amplification that the

DOE "will continue to monitor the demographic of the prekindergarten class and

will consider revisiting the sibling preference issue if the trend does not

continue."

Commissioner Repollet adopted and reinforced these conclusions in his

own amplification in April 2018. Among other things, he noted that in the first

year of implementation of the weighted lottery, the number of Hispanic students

10 The record indicates the waiting list for admission at RBCS is substantial. For the 2013-14 school year, it was 143 students. A-3342-16T1 37 enrolled with a sibling preference increased twenty-six percent and the number

of white students enrolled with sibling preference decreased eleven percent.

This newer data suggested to Commissioner Repollet that "as a result of the

weighted lottery in favor of economically disadvantaged students, enrollment at

RBCS is trending in a direction that better reflects the demographics of the

school-age population in the community." (Emphasis added). Commissioner

Repollet also found that "[i]t is anticipated that this trend will continue in

coming years as students with documented economically disadvantaged

statuses, and siblings thereof, obtain seats at RBCS." (Emphasis added). Like

his predecessor, Commissioner Repollet committed that the DOE "will continue

to monitor RBCS's demographics and will consider revisiting both the weighted

lottery and the sibling preference if the trend does not continue." (Emphasis

added).

The record furnished to us on this appeal does not demonstrate that either

Commissioner acted arbitrarily or capriciously, or violated constitutional norms,

by declining to halt sibling preference at the school. Indeed, the actual annual

impact of sibling preference on the enrollment numbers appears to be slight.

The record reflects that only about twenty of the 200 enrollment slots at

the school open up each year, through the graduation of the eighth grade class

A-3342-16T1 38 and miscellaneous departures. The prekindergarten class – whether it be fifteen

or twenty – is realistically the only class level that can significantly affect

enrollment percentages, since no one is advocating that presently-enrolled

RBCS students be removed from the school. See also N.J.S.A. 18A:36A-8(b)

(prohibiting such a measure).

According to the certification of the school's principal, in the 2017-18

school year, fifty-nine Latino students and fifty-eight white students were

enrolled with a sibling preference, indicating that Latino students at the school

are equally likely to have another sibling at the school as a white student. The

record does not tell us exactly how many students in the most recent

prekindergarten class, which is sixty percent Latino, received a sibling

preference.

For the sake of discussion, if, hypothetically, the prekindergarten class

consists of twenty students, then about twelve of them probably are Latino, a nd

about seven or eight probably are white. According to the school-wide data and

the information from the "school lead," about half of those prekindergarten

students would have an older sibling at the school. If sibling preference were

eliminated, one might expect that about half of the approximately twelve Latino

children (i.e., six children) would possibly lose their seats in the class, while

A-3342-16T1 39 about half of the approximately seven or eight white prekindergarten children

(i.e., three or four) would lose their spots. At most, the Latino composition of

the prekindergarten class could only increase from twelve students to twenty, a

maximum net gain of eight students. When compared with the total enrollment

in the school of 200, such a maximum gain of eight Latinos (i.e., four percent)

in a particular year is limited at best.

The Commissioners did not misapply their discretion in declining to cease

the sibling preference, given this minor effect on the overall enrollment

demographic. Moreover, a cessation of sibling enrollment could easily have

detrimental impacts on the Latino applicants seeking to join their siblings at the

school, an important cohort that the Coalition does not represent.

Lastly on this point, we accept as sincere the express committal of the

successive Commissioners to monitor these trends closely, and to step in and

make adjustments as may be needed. The annual assessment process prescribed

by N.J.S.A. 18A:36A-16(a) and N.J.A.C. 6A:11-2.2(c) and mandates such

review, including any segregative effects of enrollment practices.

For these many reasons, we affirm the respective Commissioners '

rejection of the Coalition's request to suspend the sibling preference policy. The

rejection is amply supported by the record and cogent reasons. Moreover, the

A-3342-16T1 40 DOE has the power to take remedial interim action if the positive trend towards

diversity materially ebbs.

3. Omission of Express Findings Concerning Alleged Intentional Discrimination and Shortcomings in Advertising

The Coalition additionally maintains that the Commissioners' decisions

critically omit express findings that address the so-called "whisper campaign"

to encourage white applicants, and the claimed shortcomings of RBCS's efforts

to advertise the application process to parents in the local Latino community

with school-aged children. The Coalition asserts in this regard that the

Commissioners have a constitutional and statutory obligation to make express

findings about these issues, and to state whether or not there is sufficient

evidence of intentional discriminatory practices.

To cure these alleged omissions, the Coalition seeks a further remand to

the DOE to afford the Commissioner another chance to address these issues with

explicit findings. Although in its brief on appeal, the Coalition requested a

remand for an "evidentiary" hearing, at oral argument on the appeal its counsel

clarified that it is not seeking a formal administrative hearing in the OAL, but

instead an unspecified less-formal process for the Commissioner to delve more

deeply into these factual allegations and perhaps to speak with persons having

information about the subjects.

A-3342-16T1 41 To be sure, the record does contain a considerable amount of hearsay in

the form of unsworn parent letters, as well as a quotation from a Board member

uttered several years ago that may have limited evidential value. On the other

hand, the Coalition acknowledged at oral argument on the appeal that it has no

evidence that the lottery process has been manipulated in a corrupt fashion, or

that Latino students have been denied admission through any such corruption.

We agree with the Coalition that some of the factual allegations it has

presented may be indicative of problems with the timing and content of the

school's advertising and recruitment process, and may warrant a closer look by

the DOE. Among other things, the amplifications did not resolve whether timely

mailings went to the full boundaries of the school district, and whether Spanish -

language signs advertising the application deadline had been adequately

translated to match those in English.

It is fairly implicit in the two amplifications that neither Commissioner

was persuaded from the documentary record that intentionally discriminatory

practices are presently occurring in RBCS's enrollment process. Even so, we

remand this appeal to the Commissioner one more time, on an expedited basis,

to consider the Coalition's specific factual allegations and afford the

Commissioner the opportunity to issue a third amplification. The Commissioner

A-3342-16T1 42 is not required to conduct or request an evidentiary hearing, as we are not yet

convinced (without deciding the legal question) that, under present case law,

such an evidentiary hearing can be compelled in the context of a quasi-

legislative charter renewal. Quest Academy, 216 N.J. at 384-85 (explaining the

quasi-legislative nature of such decisions). We recognize that in 2004 we

remanded the case for a hearing, and that the then-DOE Commissioner

apparently referred the dispute thereafter to the OAL, where the matter settled

three years later. Red Bank Charter, 367 N.J. Super. at 486. We are uncertain,

and need not reach here, whether the Supreme Court's more recent opinion in

Quest Academy, 216 N.J. at 383-85, precludes a court-ordered evidentiary

hearing.

In any event, given the fact that the first three years of this school's five-

year charter have already passed, we are not convinced of the practicality and

wisdom of conducting further development of the existing record concerning the

2017-2022 charter at a time not long before RBCS's anticipated charter renewal

application is filed in the fall of 2021. We instead request the Commissioner to

make explicit findings based solely on the existing administrative record, 11 and

11 The record should include all of the items listed within the Statement of Items. Within ten days, counsel shall furnish the Commissioner with courtesy copies A-3342-16T1 43 to communicate those findings in a third written amplification by no later than

December 15, 2019. Following that third amplification, any aggrieved party

may file a new appeal from that amplified determination. We do not retain

jurisdiction, and the present appeal is deemed concluded.12

Our disposition is without prejudice, however, to two other important

avenues for potential reform and remedial action.

First, as respondents acknowledge, the Coalition or "any individual or

group" may bring a complaint pursuant to N.J.S.A. 18A:36A-15 alleging

violations of the CSPA. Such a complaint initially shall be presented to the

RBCS Board of Trustees. Ibid. If the complainant believes that the trustees

have not adequately addressed the complaint, the statute requires the

Commissioner to "investigate and respond to the complaint." Ibid. Although

we need not resolve the question here, respondents' counsel at oral argument

appeared to acknowledge that, if a "contested case" under the Administrative

Procedure Act, N.J.S.A. 52:14B-9(a), is generated by such a grievance due to

of their appellate briefs and appendices, which should obviate the need for any other submissions and help expedite the remand. 12 We need not address in this appeal concerning RBCS's charter renewal appellants' generic criticisms of the State's standardized testing methods. Those issues are more appropriately raised in a different context with an appropriate record. A-3342-16T1 44 the existence of factual disputes, the Commissioner may refer such a dispute to

the OAL. The results of such an OAL hearing may aid the DOE in its ongoing

oversight.

A second important avenue to underscore is that these dynamic factual

issues may be considered anew in the forthcoming charter renewal process.

Under N.J.A.C. 6A:11-2.3(b), RBCS must submit its charter renewal application

to the DOE by October 15, 2021. In the meantime, more incoming classes at

RBCS will be selected and more data generated. That additional data may well

shed further light on whether the weighted lottery is working in a desirable

fashion, and whether the school's most recent advertising measures to the

community are timely and effective.

Affirmed in part and remanded in part. We do not retain jurisdiction.

A-3342-16T1 45