Attempting to clarify an issue on which the state Charter School Law is silent, a divided en banc Commonwealth Court panel has ruled that schools may seek to amend their charters and the state Charter School Appeal Board has jurisdiction over appeals from decisions regarding proposed amendments.

In Northside Urban Pathways Charter School v. State Charter School Appeal Board, the court ruled 5-2 to reverse an order of the CAB dismissing for lack of jurisdiction the Pittsburgh Public School District’s appeal from plaintiff Northside Urban Pathways Charter School’s request to amend its charter to add new grades.

The court remanded the matter to the CAB for a judgment on the merits.

Applying the state Supreme Court’s implied authority analysis laid out in its 2003 decision in Burger v. Board of School Directors of McGuffey School District, Judge Mary Hannah Leavitt, who penned the majority opinion in Northside, said the CAB’s ability to carry out its independent review functions “is undermined if it does not have jurisdiction over amendments to charters.”

“Under the CAB’s holding in this case, although it has jurisdiction to decide whether a school can be opened or closed, it does not have jurisdiction over the equally fundamental decision to amend the charter to allow the school to continue to operate,” Leavitt said. “This is not consistent with the Charter School Law’s purposes.”

Leavitt was joined by Judges Bonnie Brigance Leadbetter, P. Kevin Brobson, Patricia A. McCullough and Anne E. Covey.

Judge Robert Simpson dissented but did not write an opinion.

President Judge Dan Pellegrini wrote a dissenting opinion, arguing that the CSL does not allow charter schools to amend their charters and that, even if it did, appeals of adverse decisions regarding charter amendments would fall under the jurisdiction of a court of common pleas pursuant to the Local Agency Law.

In a separate opinion issued the same day as Northside, an en banc Commonwealth Court panel in Montessori Regional Charter School v. Millcreek Township School District ruled 6-1 to uphold an Erie County trial court’s decision to grant Montessori’s request to amend its charter in order to open a second location.

Leavitt said in the majority opinion in Montessori that, under the circumstances, the trial court properly exercised jurisdiction under the Local Agency Law because there was a lack of guidance on the issue and the CAB had already declined jurisdiction.

Going forward, however, the ruling in Northside will apply and the CAB will have jurisdiction over appeals from charter amendment decisions, Leavitt said.

In Montessori, Simpson concurred in the result only and Pellegrini again dissented on the grounds that charter amendments are not permitted under the CSL.

In Northside, according to Leavitt, the Pittsburgh Public School District granted Northside a charter in 1998, allowing the school to operate grades 6 through 12.

In December 2009, Northside asked the school district to approve a charter amendment allowing the school to operate grades K-5 at a second location, but the school district denied the request in February 2010, saying Northside would have to submit another charter application for the second location, according to Leavitt.

Northside appealed the decision to the CAB, which found that it did not have jurisdiction, Leavitt said.

On appeal to the Superior Court, according to Leavitt, Northside argued that while the CSL does not explicitly grant the CAB jurisdiction over charter school amendment appeals, the CAB has the implied power to hear such appeals because the ability to do so is essential to its ability to meet its expressed mandate of overseeing the opening and closing of charter schools.

Leavitt agreed, citing Burger, in which the Supreme Court ruled that even though the state School Code doesn’t explicitly give school boards the ability to suspend school officials accused of serious misconduct, they have the implied power to do so in order to uphold their essential functions.

Leavitt said the CSL “expressly vests the CAB with jurisdiction over every significant decision involving a charter school,” including a school board’s decision to revoke or renew a charter.

Given these responsibilities, according to Leavitt, the CAB “by necessary implication” must have jurisdiction over charter amendment appeals.

Leavitt added that giving the CAB such jurisdiction also solves the problem of school board bias against charter schools.

“Without the oversight of the CAB, school districts could restrict the creation and growth of charter schools, thereby defeating the legislative intent of providing parents and students with expanded choices in public education,” Leavitt said.

As for whether charter amendments are permitted in the first place, Leavitt said charter schools, school districts and the Commonwealth Court have all previously operated under the assumption that they are.

Leavitt said that holding otherwise “runs contrary to the legislature’s intent to offer parents and students a charter school alternative to the schools in their district.”

But Pellegrini said nothing in the CSL allows Northside to add a second school by simply amending its existing charter, rather than applying for a second charter.

Northside’s attorney, Mark G. Morford of Latsha Davis Yohe & McKenna in Exton, Pa., said he was “very happy” with the court’s decision.

The Pittsburgh Public School District’s attorney, Robert Max Junker of the Law Offices of Ira Weiss in Pittsburgh, told the Law Weekly thatNorthside did eventually open its K-5 school after applying for a separate charter, so the issue of charter amendments as it applies to the facts of this particular case is essentially moot.

However, Junker said he and his client still plan to discuss whether to appeal the decision on the broader issue of appellate jurisdiction with regard to charter amendments.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 22-page opinion in Northside Urban Pathways Charter School v. State Charter School Appeal Board, PICS No. 12-2089, and the 20-page opinion in Montessori Regional Charter School v. Millcreek Township School District, PICS No. 12-2090, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •