ELC Submits Comments to State Board Questioning Acting Commissioner’s Authority to Change Charter School Law Through Regulation
In testimony submitted to the State Board of Education today, Education Law Center (ELC) declared that proposed changes by the NJ Department of Education (NJDOE) to New Jersey’s existing charter school regulations were fundamentally inconsistent with the state’s current charter law and should be “flatly rejected.”
ELC presented a detailed analysis of the proposed changes, which include a major expansion of powers for the Commissioner of Education.
“This proposal, if adopted, would allow the expansion of the charter school program without legislative approval and in violation of clear legislative intent,” the analysis noted.
ELC cited explicit language in the current charter law, originally adopted in 1995, that puts strict limits on the ability of the Department to expand or modify the charter school program: “The commissioner may not implement any recommended expansion, modification, or termination of the [charter school] program until the Legislature acts on that recommendation.” N.J.S.A. 18A:36A-16(e) [emphasis added]
Despite this clear limitation, the Acting Commissioner’s proposed changes seek to expand and modify the existing charter school program in multiple ways.
“In six areas – virtual charter schools, restructured renewal, satellite campus, amendment of charters, one year conditional renewal, and summary revocation – the Acting Commissioner’s proposal represents a completely unauthorized expansion and/or substantial modification of the charter school program,” said ELC Senior Attorney Elizabeth Athos in the comments.
The regulations proposed by the NJDOE would:
- authorize new forms of charter schools, such as virtual online charters, that were not anticipated or authorized by existing charter legislation;
- dramatically expand the Commissioner’s powers to summarily revoke charters and close schools;
- create new categories of discretionary authority, such as “restructured renewal” and “conditional renewal,” that would allow the Commissioner to modify the mission, governance structures and operational practices of existing charters;
- permit selected charters to open “satellite campuses” in certain districts without the required charter review and application processes.
The proposals would also modify existing charter school application and monitoring processes in ways that ELC said “are arbitrary and capricious or in violation of the agency’s obligation to establish policy pursuant to the Administrative Procedure Act.”
With regard to the Department’s unauthorized approval of “virtual charters,” ELC cited research suggesting “there is inadequate evidence to show that virtual K-12 charter schools will ‘offer the potential to improve pupil learning’ or ‘establish a new form of accountability for schools,’ as intended by the Legislature…To the contrary, the evidence from other States regarding student learning demonstrates significant problems that underscore the necessity of awaiting express Legislative authorization for expanding the charter program to include virtual charters.” ELC cited “experience in other states demonstrates that moving from face-to-face learning to virtual schools presents a number of problematic accountability issues,” including academic and financial concerns.
Since the Department’s proposed expansion of the charter school program would specifically target urban districts, ELC raised concerns that “this flawed proposal would have a disparate impact on public school districts with substantial enrollments of Black and Latino students.”
Given the absence of legal authority for the proposed regulations, ELC urged the State Board to consult with the Attorney General’s office “before proceeding any further toward adoption of this legally flawed proposal.” The changes in the charter law sought by the Acting Commissioner require legislative approval, ELC states, and it is the State Board’s obligation “to instruct the Acting Commissioner to go to the Legislature and seek legislative approval for these program expansions.”
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