DDS No. 16-2-3452

April 9, 2014 (Date Decided)

Judge Ashrafi

For Appellant New Jersey Education Association: Richard E. Shapiro.

For Respondent New Jersey Commissioner of Education: Geoffrey N. Stark, Deputy Attorney General (John H. Hoffman, Acting Attorney General, attorney, Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Stark, on the brief).

for respondent newark preparatory charter school: Devora W. Allon of the New York bar, admitted pro hac vice (Lite DePalma Greenberg, LLC); Lay P. Lefkowitz (Kirkland & Ellis, LLP) of the New York bar, admitted pro hac vice, and Ms. Allon, attorneys; Michael E. Patunas, Jeffrey A. Shooman, Samara L. Penn, Ms. Allon, and Mr. Lefkowtiz, on the brief).

for respondent merit preparatory charter school of newark: Robert P. Avolio (Avolio & Hanlon, P.C., attorneys; Mr. Avolio, of counsel and on the brief; Amie C. Kalac, on the brief).

for amicus curiae new jersey publicschooloptions.org; Gibbons P.C. (Lawrence S. Lustberg and Jillian T. Stein, on the brief).

This appeal raises a novel legal issue of whether the New Jersey Commissioner of Education may approve a charter school that employs blended teaching methodology using Internet materials.

Appellant the New Jersey Education Association (“NJEA”) appeals from the grant of charters by the Commissioner to the Merit Preparatory Charter School of Newark and the Newark Preparatory Charter School. NJEA expresses concern for the diversion of public funds and resources from traditional public schools, and it contends the Legislature in the Charter School Program Act of 1995 authorized charters only for traditional “brick-and-mortar” schools, not ones that use online teaching methodology.

However, Merit Prep and Newark Prep are not online Internet schools. Merit Prep and Newark Prep applied for charters to establish schools that use a blended model of teaching and learning that combines in-person, face-to-face teaching and online instruction by means of Internet materials. The applications proposed teaching the New Jersey Core Curriculum Content Standards (“core curriculum”) partly by online instruction. Both schools would require student and teacher attendance in a physical building during a traditional school day and under the supervision of a teaching staff, and the online teaching would be facilitated by in-person instructors. Thus, Merit Prep and Newark Prep did not propose “virtual” schools.

The appellate panel finds no merit in NJEA’s argument that the absence of an express reference to online teaching in the Act and its legislative history suggests the Legislature would not permit that form of teaching. The Act does not make reference to any specific teaching method. If online teaching methods are prohibited because they are not expressly mentioned, then it follows that all novel teaching methods not prescribed by the Act are prohibited. Adopting the NJEA’s position would defeat the legislature’s stated purpose.

Similarly, the panel rejects NJEA’s argument that the Act does not expressly authorize the use of online methods to teach the core curriculum. Neither the Act nor the regulations specify any particular teaching method. Nor does the Act limit the Commissioner’s authority to grant applications on the ground that the Legislature would have fixed a different funding formula for charter schools that use teaching methods unlike those of traditional “brick-and-mortar” schools. The Act does not require the Legislature’s re-evaluation of funding formulas simply because the Commissioner authorized a charter school with novel teaching methodology.

The Commissioner’s decision is affirmed.