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The Pennsylvania Charter School Law does not prohibit cyberschools, the Pennsylvania Commonwealth Court has said, providing the state supreme court with some appellate authority on an issue that is likely to reach the justices. The Commonwealth Court, which took up the case en banc, made its statement in dicta after first determining that the parties challenging the legitimacy of cyberschools lacked standing to sue. The court further said that state law does not say that school districts can refuse to provide financial support to cyberschools. In a key footnote explaining the Commonwealth Court’s action, Judge Rochelle S. Friedman said that under normal circumstances, the court would have ended its opinion with the decision on standing. But she said that the court wanted to signal its opinion in case the state supreme court were to consider the merits of the issue. The petitioners in Pennsylvania School Boards Association v. Zogby were the Pennsylvania School Boards Association and the Cameron County, Butler Area, Mars Area and Pocono Mountain school districts. The court said they lacked standing to challenge the legality of the cybercharter schools and dismissed the majority of their claims. The Pennsylvania Virtual Charter School, chartered by the Norristown Area School District, and the Commonwealth Cyber Charter School, chartered by the School District of Lancaster, were named as respondents in the case. The majority reasoned that it could not infer from the Legislature’s lack of authorization of cyberschools that it intended to prohibit them. “Although we cannot say that the General Assembly actually contemplated the creation of cyber schools when it enacted the Charter School Law, the fact that the statute does not specifically identify cyber schools as a special class of charter schools does not mean that the statute prohibits cyber schools,” Friedman wrote. Judges James Gardner Colins, Bernard L. McGinley, Doris A. Smith-Ribner, Dan Pellegrini, Renee L. Cohen and Mary Hannah Leavitt also sat on the panel. Smith-Ribner filed a dissenting opinion. The PSBA filed a petition for review after the Pennsylvania Department of Education sent letters to several school districts stating that it would withhold state education subsidies from all school districts that refused to pay tuition bills submitted by cybercharter schools. The state secretary of education, Charles B. Zogby, ultimately deducted $839,665 from several school districts after the Western Pennsylvania Cyber Charter School submitted documentation of unpaid invoices. The petitioners challenged Zogby’s withholding of the funds. The PSBA claimed that cyberschools are illegal and that Zogby and the education department do not have the authority to deduct money from subsidies to pay cyberschools. In count two of its claim, the PSBA sought to enjoin the education department and Zogby from withholding subsidies to pay cyberschools. Count three sought to compel the department and Zogby to make all state subsidy payments to the school districts without any deductions for payment to the cyberschools. The PSBA’s final count asked the Commonwealth Court to review in its appellate jurisdiction the decision of the department and Zogby to withhold the subsidies. The Commonwealth Court has jurisdiction, the PSBA argued, because the department and Zogby’s decision to withhold the money amounted to an adjudication. The department countered that the withholding was only a ministerial duty, not an adjudication, and that the petitioners lacked standing to bring the action. Therefore, the department said, the case should be dismissed. The commonwealth remanded the case to the department on this issue. The Commonwealth Court dismissed the first three counts and remanded the case to the department before determining that the PSBA lacked standing to challenge the legality of cybercharter schools and that the department lacked the authority to rule on such a challenge. The court turned to the language of the Charter School Law in determining that the PSBA did not have standing because the law gives only the chartering school district and the State Charter School Appeal Board the discretion to grant or deny a charter school application. “The secretary and the other school districts are strangers to that process,” Friedman wrote. “In this case, the non-chartering school districts similarly lack standing to challenge the legality of a grant of a charter school application. The General Assembly did not give them any rights to participate in the process.” Friedman also said that the secretary has no authority to decide if a charter was granted illegally and to decide if funds should be withheld on the basis of that decision. After dismissing the case and remanding it to the department for a hearing with the instructions that the department should not address the legality of cybercharter schools to determine whether subsidies should be withheld from the PSBA, the court went on to say that cybercharter schools are not prohibited by law. The court recognized that its analysis would ordinarily end with the determination that the PSBA lacked standing but said that the case at bar was unusual. “This matter is of grave importance and … an expeditious resolution is necessary to prevent an interruption in the education of students enrolled in cyber schools,” Friedman wrote in a footnote. While the court said it could not determine if the General Assembly contemplated cyberschools when it enacted the Charter School Law, the fact that the statute does not specifically identify cyberschools as a special class of charter school does not mean that the statute prohibits funding cybereducation. Cyberschools, the court said, meet all the statutory requirements set forth in the statute and, therefore, are not illegal. Section 1722-(A)(a) of the Charter School Law reads: “A charter school may be located in an existing public school building, in a part of an existing public school building, in space provided on a privately owned site, in a public building or in any other suitable location” (emphasis added by the court). The court determined that the language was broad enough to encompass a cyberschool. Cyberschools also fulfill the “school site” provision of the law, the court reasoned. The section says that cyberschools must “create new professional opportunities for teachers, including the opportunity to be responsible for the learning program at the school site” (emphasis added by the court), but says nothing about teachers providing instruction in the traditional manner in physical classrooms in the old “ bricks and mortar” school buildings, Friedman wrote. The court also looked to � 1715-(A) of the law, which reads in part: “Nothing in this clause shall preclude the use of computer and satellite linkages for delivering instructions to students.” The court determined that this language explicitly allows for cybereducation. In dissent, Smith-Ribner disagreed with the majority’s ruling that the PSBA lacked standing. “Petitioners have demonstrated interests that are substantial, direct and immediate,” she wrote. She also disagreed with the majority’s assertion that cybercharter schools are not illegal. “The majority … has proceeded to determine that any type of charter school is permissible. … Cyber schools cannot provide instruction ‘on the premises’ of a charter school because they have no buildings or facilities in which to operate,” she said, citing language in the Charter School Law.

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