15 Sep 2014
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Debate Swells as Decision Nears on Virtual Charters

Leading education organizations ask Cerf to hold off final approval until outstanding legal issues can be resolved.

Debate Swells as Decision Nears on Virtual Charters

The prospect of New Jersey's first online charter schools continues to stir up debate, even as the Christie administration moves closer to announcing its decision on the virtual schools.

A group of a half-dozen of the state's most prominent education organizations delivered a letter to acting education commissioner Chris Cerf this week, asking him not to approve final charters for two all-online schools until a number of legal and policy issues could be resolved.

The letter was signed by the New Jersey Education Association, the Education Law Center, and the New Jersey School Boards Association, as well as state associations representing principals, superintendents, and other administrators. Also signing were the state NAACP and the Latino Institute.

The main arguments were legal ones, with the letter making numerous citations of specific statute and regulation. It took up the now-familiar argument that the state's 15-year-old charter school law does not accommodate for online schools, nor grant the state the power to approve them.

"We have significant concerns that the Department of Education lacks legislative authority to authorize virtual or online charter schools under the Charter School Program Act of 1995," read the letter.

"There is no mention of virtual charter schools in the Act or its legislative history, which makes it clear that this new form of charter school was never contemplated, and has never been authorized, by the Legislature," it read.

The letter went on to maintain that there also remained "numerous broad public policy questions that the Legislature must address," from how the schools would be funded to rudimentary questions as to how attendance would be monitored.

Among them was a key point for critics: the role of for-profit companies in operating the schools. It is particularly germane, since K12 Inc., the nation's largest online education company, is managing one of the schools and providing the curriculum for the other.

"The proper resolution of these major policy issues is a matter of great public interest. Such issues are reserved by the New Jersey Constitution and statutes to the Legislature to address, not an administrative agency," read the letter.

Cerf would not comment specifically on the letter this week, other than confirming he received it. A department spokeswoman yesterday said the final plans for the two schools -- one a statewide K-12 school out of Newark and the other out of Monmouth County serving at-risk high school students in four targeted areas -- continued to be reviewed, with announcement on the final charters to come in the next week.

"The applications for these schools are currently under review as part of our preparedness process," said Barbara Morgan, the department's press secretary, in an email. "The final approval on their charters, just like all other schools undergoing this process, will be made by July 15."

But the move did step up the heat on the closely watched decisions, with the sudden prospect that one or both of the schools could be challenged in court if granted approval.

David Sciarra, director of the Education Law Center, the Newark-based group that has been at frequent odds with the Christie administration, said it would be premature to say a challenge was in the works until the charters have been approved.

Still, the letter itself did raise the possibility. "The grant of final approval to these virtual charter schools places their enrolled students and the districts of residence at risk of irreparable harm if the agency's actions are later determined by the courts to be unlawful."

For the school out of Monmouth, it may be a moot point, since its founders have asked for an extension until 2013, to recruit an adequate number of students. But the New Jersey Virtual Academy Charter (NJVAC) out of Newark has already signed 850 students and appears to be moving ahead.

Still, the potential of a legal challenge is not an unforeseen one, with NJVAC's initial application two years ago including a four-page memo from lawyer Stephen Edelstein of Simon & Edelstein of Morristown, which maintained the school was within the law.

Edelstein took on two specific points in the law that could be in conflict with online schools: that 90 percent of the enrollment be from the home district, and that the proposal include a description of the "physical facility in which the charter school will be located." He said the law included flexibility on both fronts and, as a whole, was meant to encourage innovation.

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