IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School District of Pittsburgh, :

Petitioner :

:

v. : No. 598 C.D. 2015

: Submitted: December 9, 2015

Provident Charter School For :

Children With Dyslexia, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge1

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge2

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE MARY HANNAH LEAVITT, Judge3

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION 

BY JUDGE LEAVITT FILED: February 26, 2016

The School District of Pittsburgh petitions for review of an 

adjudication of the State Charter School Appeal Board (Appeal Board) granting a 

charter to Provident Charter School for Children with Dyslexia (Provident). In 

doing so, the Appeal Board concluded that Provident’s application for a charter 

 

1

This case was assigned to the opinion writer on or before December 31, 2015, when President 

Judge Pellegrini assumed the status of senior judge.

2

This case was assigned to the opinion writer on or before January 31, 2016, when Judge 

Leadbetter assumed the status of senior judge.

3

This case was assigned to the opinion writer before January 4, 2016, when Judge Leavitt 

became President Judge.
2

met the requirements of the Charter School Law4and reversed the School District’s 

contrary conclusion. We affirm.

Background

In November 2013, Provident submitted an application to the Board 

of Directors of the School District of Pittsburgh (School District) for the grant of a 

charter for its proposed school, which would focus on students with dyslexia in 

grades two through eight. Provident’s application contained 105 petitions of 

support with over 800 undated signatures from residents in or near Pittsburgh. The 

application also included over 50 letters of support from parents, educators, and 

other professionals and one student. At the School District’s public hearing, 20

individuals spoke in favor of Provident’s application. On February 26, 2014, the 

School District denied Provident’s charter application.5

 

4 Act of March 10, 1949, P.L. 30, added by the Act of June 19, 1997, P.L. 225, as amended, 24 

P.S. §§17-1701-A – 17-1751-A.

5

The School District listed the following deficiencies in the application as reasons for the denial:

 Does not provide the School District of Pittsburgh with expanded choices in 

the types of educational opportunities currently being offered.

 Failure to demonstrate sustainable support by way of current petitions and 

letters of support from teachers, parents, students and the community.

 Failure to include all the information requested in section 1719-A and 

conform to the legislative intent outlined in section 1702-A.

 Failure to describe a complete and comprehensive curriculum that is aligned 

to state standards.

 Does not provide sufficient information regarding a continuum of services to 

meet the needs of all students, including students with disabilities, English 

Language Learners and at-risk students.

 Failure to establish that the proposed charter school is financially viable.

 Failure to demonstrate that the charter school can serve as a model for other 

schools in the District.

Reproduced Record at 625.
3

On March 14, 2014, Provident resubmitted a revised, 400-page 

application. Reproduced Record at 636-1027 (R.R. ___).6 The revised application 

offered: (1) additional written support for the charter school plan by teachers, 

parents, other community members and students; (2) expanded choices for students 

in the School District; (3) new procedures for the suspension or expulsion of 

students; (4) a new professional development plan; (5) a new admissions policy; 

and (6) a new proposed curriculum. Joint Stipulation of Undisputed Facts and Law 

at 2, ¶7.

Provident’s stated mission is

to offer families an alternative educational program for their 

children who are diagnosed with dyslexia and are at-risk of 

educational failure due to academic difficulties manifested 

through limited language processing skills and whose 

instructional needs are not met in a traditional setting.

R.R. 647-48. To that end, Provident proposes “specially designed instruction for

students with dyslexia that will intensively and specifically address their individual

needs at their own instructional level.” R.R. 644. According to the revised 

application:

The hallmarks that define and distinguish the commitment of 

[Provident] to the continuous growth and achievement of 

children with dyslexia include, but are not limited to these:

 

6

Pursuant to Section 1717-A(f) of the Charter School Law,

[a]t the option of the charter school applicant, a denied application may be revised 

and resubmitted to the local board of school directors.

24 P.S. §17-1717-A(f). Because this appeal involves Provident’s revised charter application, we 

discuss only that application.
4

1. Implementation of multisensory instruction 

using derivatives of the Orton-Gillingham 

approach to language arts taught by OrtonGillingham certified teachers

2. Individualization of instruction based on 

students’ developmental needs

3. Teaching students in small, flexible skill 

groups with targeted instruction available 

among 8 tiers based on students’ knowledge 

and skills, at each level

4. Recognition of parents as partners in their 

children’s education

5. Maintenance of an overall school average of a 

6:1 student to adult ratio

6. Incorporation of project-based learning and 

development and implementation of 

interdisciplinary, theme-based units of 

instruction

7. Partnering with families in the development 

and delivery of education

8. Fostering self-discipline, self-respect and selfdefense through a martial arts Tae Kwon Do 

program

9. Establishment of a fine arts program to 

include music, art and theater experiences

10. Implementation of a conversational Spanish 

[program] and the study of Latin to promote 

vocabulary development

11. Incorporation of assistive technology tools 

such as, but not limited to, Kurzwell Text To 

Speech Literacy Software, Dragon Naturally 

Speaking Voice Recognition Software as well 
5

as other instructional technology applications 

such as, but not limited to, SMART Boards, 

SMART Interactive Solutions, Microsoft 

Office and internet application

12. Employment of a two year teacher looping 

cycle in Levels 3-4, 5-6 to promote stronger 

student/teacher bonding

13. Development of students’ social 

consciousness through community service 

activities

14. Application of formative assessment 

techniques and providing regular, consistent 

feedback to students and parents

15. Partnering with local universities to place 

student teachers including an incentive 

program

16. Addressing the needs of at-risk students 

defined as those who are at risk of educational 

failure because of academic difficulties such 

as, but not limited to, language processing and 

dyslexia

R.R. 645-46, 963.

Provident will market the school’s special focus to prospective 

students and their parents. Nevertheless, Provident will accept any applicant, even 

one for whom the special programs will have no relevance. Accordingly, 

Provident attested in its revised application that it 

will not discriminate on any basis, including intellectual ability, 

measures of achievement or aptitude, athletic ability, disability, 

English language proficiency, race, creed, gender, sexual 

orientation, national origin, religion, or ancestry or other 

protected class. 
6

R.R. 984. There will be no admission tests or requirements. Applicants will be 

accepted on a first-come, first-served basis. If there are more applicants than 

available spaces, a lottery system will be used for admission. 

Provident’s proposed pre-enrollment form requests certain 

information, including the child’s name and date of birth and “whether special 

programs are required.” R.R. 720, 985. Provident explained that the preenrollment form will not be used to

deny enrollment or otherwise discriminate in its admission 

policies or practices on the basis of a child’s disability or the 

child’s need for special education or supplementary aids or 

services.

R.R. 987. Rather, the pre-enrollment form will help Provident determine “whether 

the school is oversubscribed and a lottery must be held.” R.R. 985. When an offer 

of admission is made, parents have three weeks “to participate in an orientation 

process and to complete the enrollment process.”7 R.R. 722. Thereafter a separate 

registration and enrollment form will be used to effect an enrollment.

Provident’s revised application described its plan to involve the 

community in the school as follows:

The founding coalition, along with the Board of Directors, 

represents a cross section of parents and professionals with an

interest in serving the needs of children with dyslexia. Many 

are actively involved in organizations and agencies whose 

mission it is to work with families who have children with 

dyslexia.

 

7

If they do not, admission will be forfeited. 
7

Among the agencies represented by the coalition are these 

important institutions that serve children with dyslexia such as, 

but not limited to:

 International Dyslexia Association 

http://interdys.org/

 Pittsburgh Branch of the International Dyslexia 

Association http://pbida.org/

 Masonic Temple, Total Learning Center 

http://totallearningcenter.com/

 The Watson Institute 

http://www.thewatsoninstitute.org/

 The Laughlin Center 

http://www.laughlincenter.org/

 [Provident] has received numerous letters of 

support from many of these organizations, 

professionals who work in the field of special 

education and from parents and families whose 

children are dyslexic. These letters are included in 

the Appendix at the end of this application. 

[Provident] will continue to request letters of 

support and will present them at the Public 

Hearing that will be scheduled within 45 days of 

the school district’s receipt of this application.

R.R. 711.

The application form has a heading entitled “Community Involvement 

in Planning Process.” In response Provident stated that it will

involve parents, families and communities in a variety of 

committees as developed by the [Provident] Board and 

administrative team. [Provident] will work to engage and 

involve parents, families and community members to promote 

collaboration, communication and conflict resolution.

[Provident] also will have a robust program for 

parents/guardians of prospective students to become involved in 
8

the development of [Provident]. [Provident] will initiate 

partnerships with local, state wide and national organizations to 

promote best practices based on evidence, expertise and 

experience.

Representative groups include, but are not limited to,

 Charter, Parochial, Private and Independent 

schools

 International Dyslexia Association 

http://interdys.org/

 Masonic Temple, Total Learning Center 

http://totallearningcenter.com/

 Pittsburgh Branch of the International Dyslexia 

Association http://pbida.org/

 Pittsburgh Public Schools

http://www.pps.k12.pa.us/Page/1

 The Laughlin Center 

http://www.laughlincenter.org/

 The Watson Institute 

http://www.thewatsoninstitute.org/

 Total Learning Centers 

http://www.totallearningcenter.com/

 Troy Hill Citizens, businesses and community 

groups

 University of Pittsburgh http://pitt.edu

R.R. 970.

With regard to community support for the charter school, Provident 

incorporated the evidence of support from its initial application and submitted over 

100 new petition signatures, which were dated, from individuals residing within a 
9

4-block radius of Provident’s proposed site, as well as 14 letters in support of its 

revised application.8

On April 28, 2014, the School District held a second public hearing on 

Provident’s application. Seven individuals spoke in favor of Provident’s charter 

application. Two days later, the School District’s Board denied Provident’s charter

application, finding it to be deficient in the following areas:

 Sufficient support from residents of the School District of 

Pittsburgh

 Expanded Choices

 Considering all information requested in [S]ection 1719-A 

[of the Charter School Law, 24 P.S. §17-1719-A] and 

conforming to the legislative intent outlined in [S]ection 

1702-A [of the Charter School Law, 24 P.S. §17-1702-A].

 Meeting the needs of all students

 

8

The letters in support state:

I, __________ [insert author’s name] am writing to express my support for the 

Provident Charter School, which I understand is applying for a Charter in the 

Troy Hill neighborhood. I recognize that having a charter school for children 

with dyslexia in the metropolitan area will be a great service to local families 

seeking educational support for their children with language processing 

challenges.

As a citizen of the community, I would welcome the opportunity to have 

[Provident Charter School] located in Troy Hill. A school such as this will ensure 

the continued use of the North Catholic High School as a center for learning in 

our community. Additional benefits of having the school will be to help bolster 

our local economy and provide high-quality job opportunities for our region.

Western Pennsylvania needs a public school choice that will provide the 

thousands of children with dyslexia in our region with a free, appropriate public 

education that will arm them with the tools they need to succeed in school and in 

life. Providing public school choice for parents whose children are at risk for 

educational failure increases opportunities for students and strengthens the fabric 

of our community.

R.R. 941 (emphasis in original).
10

R.R. 1762.9

With respect to community support, as required by Section 1717-

A(e)(2)(i) of the Charter School Law,10 the School District found that “[m]any of 

the signatures [on the petition] were from outside the City of Pittsburgh and only a 

few of the letters of support were from School District of Pittsburgh parents who 

would enroll their child(ren) in the proposed charter school.” R.R. 1762. 

With respect to expanded choices, as required by Section 1702-A(5)11

of the Charter School Law, the School District found that Provident fell short

because its educational programs were already offered in the School District, 

including other charter schools in Pittsburgh.12 

 

9

In its May 1, 2014, letter to Provident, the School District stated that one of the bases for the 

denial was Provident’s “[f]ailure to serve as a model for other schools in the District.” R.R. 

1761. However, the School District’s actual written denial did not explain this point, and the 

School District did not raise it in the appeal to the Appeal Board. It is waived.

10 Section 1717-A(e)(2)(i) states that the local board of school directors must evaluate an 

application for a charter based on

demonstrated, sustainable support for the charter school plan by teachers, parents, 

other community members and students, including comments received at the 

public hearing held under subsection (d).

24 P.S. §17-1717-A(5).

11 Section 1702-A(5) states, in relevant part, as follows:

It is the intent of the General Assembly, in enacting this article, to provide 

opportunities for teachers, parents, pupils and community members to establish 

and maintain schools that operate independently from the existing school district 

structure as a method to accomplish all of the following:

***

(5) Provide parents and pupils with expanded choices in the types 

of educational opportunities that are available within the public 

school system.

24 P.S. §17-1702-A(5).

12 The School District asserted that it uses teacher looping, extended school days, flexible 

groups, Orton-Gillingham multi-sensory instruction, assistive technology, use of assessments for 

(Footnote continued on the next page . . .)
11

With respect to the involvement of community groups and 

partnerships, as required by Section 1719-A(8) of the Charter School Law,13 the 

School District found Provident’s application lacking because it did not include

“agreements, contracts or memoranda of understanding with community 

partnerships.” R.R. 1763.

Next, the School District concluded that Provident “failed to 

demonstrate that it is prepared to meet the needs of all students.” R.R. 1764. In 

the School District’s view, once Provident agreed to accept all students, not only 

those diagnosed with dyslexia, it should have revised the educational 

programming, staffing, and curriculum to address this different student body. 

Further, Provident did not have a written policy for screening students to satisfy 

the Child Find14 requirements.

Finally, the School District found that Provident’s admission policy 

was discriminatory in violation of Section 1723-A(b) of the Charter School Law;15

 

(continued . . .)

accountability, employment of teachers with preparation and experience teaching students with 

dyslexia, inclusive practices, an extended school year, expanded extracurricular choices, and the 

promotion of self-advocacy. R.R. 1763.

13 It states, in relevant part, as follows:

An application to establish a charter school shall include all of the following

information:

***

(8) Information on the manner in which community groups will be 

involved in the charter school planning process.

24 P.S. §17-1719-A(8).

14 See 34 C.F.R. §300.111(a) (setting forth the “child find” mandates, including the requirement 

that all children residing in the Commonwealth who have disabilities be identified, located and 

evaluated and that methods be employed to determine which children are receiving needed 

special education and related services).

15 Section 1723-A(b) of the Charter School Law provides that:

(Footnote continued on the next page . . .)
12

22 Pa. Code §711.7;16 and the Pennsylvania Fair Opportunities Act.17 Specifically, 

the School District found it “inappropriate to request ‘whether special programs are 

 

(continued . . .)

(1) A charter school shall not discriminate in its admission policies or practices on 

the basis of intellectual ability, except as provided in paragraph (2), or athletic 

ability, measures of achievement or aptitude, status as a person with a disability, 

proficiency in the English language or any other basis that would be illegal if used 

by a school district.

(2) A charter school may limit admission to a particular grade level, a targeted 

population group composed of at-risk students, or areas of concentration of the 

school such as mathematics, science or the arts. A charter school may establish 

reasonable criteria to evaluate prospective students which shall be outlined in the 

school’s charter.

24 P.S. §17-1723-A(b).

16 Regarding enrollment in charter schools:

(a) A charter school or cyber charter school may not deny enrollment or 

otherwise discriminate in its admission policies or practices on the basis of a 

child’s disability or the child’s need for special education or supplementary aids 

or services.

(b) Subject to subsection (a), a charter school or cyber charter school may limit 

admission to a particular grade level or areas of concentration of the school such 

as mathematics, science or the arts. A charter school or cyber charter school may 

establish reasonable criteria to evaluate prospective students which shall be 

outlined in the school charter.

(c) A charter school or cyber charter school may not discriminate in its admission 

policies or practices on the basis of intellectual ability. Admission criteria may 

not include measures of achievement or aptitude.

22 Pa. Code §711.7.

17 Act of July 17, 1961, P.L. 776, as amended, 24 P.S. §§5001-5010. Section 4 of the 

Pennsylvania Fair Educational Opportunities Act states, in relevant part, as follows:

(a) Except as provided in section 9, it shall be an unfair educational practice for 

an educational institution--

(1) To exclude or limit, or otherwise discriminate, because of race, 

religion, color, ancestry, national origin, sex, handicap or 

disability, against any student or students seeking admission as 

students to such institutions: Provided, That it shall not be unfair 

educational practice for any educational institution to use criteria 

(Footnote continued on the next page . . .)
13

required’” on the pre-enrollment form. R.R. 1764. It concluded that the requested 

information served “no legitimate purpose at the pre-enrollment phase.” Id.18

State Charter School Appeal Board

Provident appealed to the Appeal Board.19 After a de novo review of 

the record evidence and law, the Appeal Board reversed the School District’s 

denial of Provident’s application for a charter. The Appeal Board concluded that

Provident’s application satisfied the requirements of the Charter School Law.20

 

(continued . . .)

other than race, religion, color, ancestry, national origin, sex, 

handicap or disability in the admission of students.

(2) To make any written or oral inquiry prior to admission 

concerning or designed to elicit information as to the race, religion, 

color, ancestry, national origin, sex, handicap or disability of a 

student seeking admission to such institution.

24 P.S. §5004(a)(1),(2).

18 The Appeal Board reversed the School District’s findings regarding Provident’s suspension 

and expulsion procedure, professional-development plan, curriculum and extracurricularactivities documentation. However, the School District has not appealed these rulings of the 

Appeal Board.

19 Provident fulfilled the signature-petition process required by Section 1717-A(i)(2) of the 

Charter School Law, which states, in relevant part, as follows:

In order for a charter school applicant to be eligible to appeal the denial of a 

charter by the local board of directors, the applicant must obtain the signatures of 

at least two per centum of the residents of the school district or of one thousand 

(1,000) residents, whichever is less, who are over eighteen (18) years of age.

24 P.S. §17-1717-A(i)(2). In August 2014, the Court of Common Pleas of Allegheny County 

entered a consent order declaring that Provident had submitted a petition with over 1,000 valid 

signatures and could file its appeal with the Appeal Board.

20 Section 1717-A(i)(6) of the Charter School Law sets forth the Appeal Board’s review as 

follows:

In any appeal, the decision made by the local board of directors shall be reviewed 

by the appeal board on the record as certified by the local board of directors. The 

appeal board shall give due consideration to the findings of the local board of 

directors and specifically articulate its reasons for agreeing or disagreeing with 

(Footnote continued on the next page . . .)
14

First, with respect to community support, the Appeal Board explained 

that an applicant must show a “reasonable amount of support in the aggregate” 

from teachers, parents, students and other community members. Appeal Board 

Adjudication at 25 (quoting In re Independence Charter School Initiative, CAB 

Docket No. 2000-2). Provident did this with 60 letters of support of the initial and 

revised applications; 100 petition signatures from residents within a 4-block radius 

of the school site offered in the revised application; and the statements of 20 

individuals at the first public hearing coupled with statements from an additional 

four people at the second public hearing. Appeal Board Adjudication at 25. The

Appeal Board rejected the School District’s contrary conclusion.

21

Second, with respect to Provident’s ability to meet the needs of all 

students, the Appeal Board explained that an applicant satisfies this duty when it 

provides “a roadmap to the school’s operation, goals, teaching strategies and 

learning methodology.”22 Appeal Board Adjudication at 26 (quoting Thurgood 

 

(continued . . .)

those findings in its written decision. The appeal board shall have the discretion 

to allow the local board of directors and the charter school applicant to

supplement the record if the supplemental information was previously 

unavailable.

24 P.S. §17-1717-A(i)(6). The Appeal Board “must apply a de novo standard of review when 

entertaining appeals from a District Board’s denial of a charter school application.” West 

Chester Area School District v. Collegium Charter School, 812 A.2d 1172, 1180 (Pa. 2002).

21 Notably, Provident supplemented the record before the Appeal Board by providing a letter of 

support dated September 15, 2014, authored by Anthony Benvin, Ph.D., on behalf of the Board 

of Directors of Troy Hill Citizens, Inc., a 40-year-old non-profit, community-development 

corporation.

22 See Section 1717-A(e)(2)(ii) of the Charter School Law, 24 P.S. §17-1717-A(e)(2)(ii) 

(authorizing a local board of school directors to evaluate an application for a charter based on 

“[t]he capability of the charter school applicant, in terms of support and planning, to provide 

comprehensive learning experiences to students pursuant to the adopted charter.”).
15

Marshall Academy Charter School, CAB Docket No. 2001-05). It did not matter 

that Provident’s application did not include a written policy for screening students 

for Child Find because the Charter School Law does not require this. Noting that

Provident’s application included information for transitioning students with 

disabilities to a traditional classroom, the Appeal Board found that Provident “is 

prepared to meet the needs of potential new students, including students with 

disabilities and English language learners” and that the curriculum was in all ways 

sufficient. Appeal Board Adjudication at 27.

Third, with respect to the expanded choices requirement, the Appeal 

Board explained that the General Assembly intended charter schools to 

increase learning opportunities for all pupils, encourage the use 

of different and innovative teaching methods, create new 

professional opportunities for teachers, and provide parents and 

pupils with expanded choices in the types of educational 

opportunities that are available within the public school system.

Appeal Board Adjudication at 28. The Appeal Board explained that a charter 

school must show differences, not a totally novel program, to satisfy the expanded 

choices requirement. Provident’s revised application detailed those differences 

that included, inter alia, individualized instruction, a 6:1 student ratio and the use 

of the Tae Kwon Do program to foster self-discipline, self-respect, and selfdefense. R.R. 645-46, 963. The Appeal Board concluded that Provident’s

innovative learning environment was distinct from what was available in the 

School District.

Fourth, with respect to the involvement of community groups in the 

school planning process, the Appeal Board rejected the School District’s holding 

that Section 1719-A(8) of the Charter School Law required the production of 
16

agreements, contracts or memoranda of understanding with community groups. 

Rather, the applicant need only set forth the information mandated by the Charter 

School Law, i.e., information on how community groups will be involved in the 

planning process. Provident’s revised application did so. It detailed involvement 

of parents in the development of the charter school; partnerships with local, 

statewide, and national organizations; and identified businesses and community 

groups with which it will partner.

Finally, with regard to Provident’s admission policy, the Appeal 

Board noted that Provident’s revised application eliminated its original plan to 

limit enrollment to children with dyslexia. Instead, Provident will open its school

to all children, regardless of whether they have dyslexia. The question on 

Provident’s pre-enrollment form about special needs was sought for holistic 

purposes, i.e., to enable it to prepare an individualized program, and not to 

discriminate. The Appeal Board noted that under Central Dauphin School District 

v. Founding Coalition, Infinity Charter School, 847 A.2d 195 (Pa. Cmwlth. 2004),

a charter school may focus on a targeted group of students so long as its doors are 

open to all. 

In accordance with these findings, the Appeal Board granted

Provident’s appeal and ordered the issuance of a charter to Provident. The School 

District then petitioned for this Court’s review.

23

 

23 Appellate review of an Appeal Board adjudication considers whether constitutional rights were 

violated, whether errors of law were committed, or whether the decision is not supported by 

substantial evidence. Ronald H. Brown Charter School v. Harrisburg City School District, 928 

A.2d 1145, 1147 n.6 (Pa. Cmwlth. 2007). “Substantial evidence” is defined as “relevant 

evidence that a reasonable mind might accept as adequate to support a conclusion.” Carbondale 

Area School District v. Fell Charter School, 829 A.2d 400, 405 (Pa. Cmwlth. 2003).
17

Petition for Review

On appeal, the School District challenges each of the Appeal Board’s

conclusions enumerated above. It contends that they are not supported by the 

record evidence and that the Appeal Board erred because it did not specifically

articulate its reasons for each determination, as required by Section 1717-A(i)(6) of 

the Charter School Law.

24

 We address the School District’s arguments seriatim.

We begin with the issue of sustainable support. An applicant for a 

charter must show “demonstrated, sustainable support for the charter school plan 

by teachers, parents, other community members and students, including comments 

received at the public hearing....” 24 P.S. §17-1717-A(e)(2)(i). In addressing that 

standard, we have explained that:

In determining whether an application has established 

demonstrated, sustainable support, we previously stated our 

agreement with the [Appeal Board] that such support “is to be 

measured in the aggregate and not by individual categories” and 

 

24 Section 1717-A(i)(6) states:

In any appeal, the decision made by the local board of directors shall be reviewed 

by the appeal board on the record as certified by the local board of directors. The 

appeal board shall give due consideration to the findings of the local board of 

directors and specifically articulate its reasons for agreeing or disagreeing with 

those findings in its written decision. The appeal board shall have the discretion 

to allow the local board of directors and the charter school applicant to 

supplement the record if the supplemental information was previously 

unavailable.

24 P.S. §17-1717-A(i)(6) (emphasis added).

Because a school district has a financial interest in the outcome of a charter grant or 

denial, “the minimum requirements of due process require that the charter school applicant have 

a neutral fact finder in the [Appeal Board].” West Chester Area School District v. Collegium 

Charter School, 812 A.2d 1172, 1181 (Pa. 2002). The Appeal Board “must apply a de novo

standard of review when entertaining appeals from a District Board’s denial of a charter school 

application.” Id. at 1180. 
18

concluded that “[f]ailure to demonstrate strong support in any 

one category is not necessarily fatal to [the] charter school 

application.”

Carbondale Area School District v. Fell Charter School, 829 A.2d 400, 405 (Pa. 

Cmwlth. 2003) (quoting Brackbill v. Ron Brown Charter School, 777 A.2d 131, 

138 (Pa. Cmwlth. 2001)). Although an application must show that “the charter 

school enjoys reasonably sufficient support from the community,” it need not 

demonstrate a threshold level of support among each of the discrete groups, i.e.,

teachers, parents, students and community members. Brackbill, 777 A.2d at 138.

The School District contends that the letters of support offered by 

Provident were form letters and vague on whether they supported Provident or

simply the concept of a school for children with dyslexia. The School District

contends that Provident was required to document specific requests for enrollment 

information, as well as commitments for contributions from foundations, 

businesses and elected officials. We disagree.

That many of the letters of support were form letters is of no moment. 

It is the content of the letters that is significant. The School District is correct that 

few of the letters express an intent by the writer to enroll children in Provident. 

Nevertheless, the letters specifically support Provident, as opposed to the abstract 

concept of a school for dyslexic children. Likewise, the petition is specific, i.e., 

that the signatories “support the establishment of Provident Charter School for 

Children with Dyslexia in Pittsburgh[,] PA.” R.R. 929940 (emphasis added). 

In essence, the School District seeks to impose requirements not 

found in Section 1717-A(e)(2)(i) of the Charter School Law, i.e., requests for 

enrollment information, pre-enrollments, contributions from local businesses and 

letters of support from businesses, foundations or local officials. This burden is 
19

not in the statute, and is unrealistic to expect before a school has a charter. In any 

case, as we have explained, community support is “not [to be measured] by 

individual categories.” Carbondale Area School District, 829 A.2d at 405. Rather, 

Provident’s compliance with Section 1717-A(e)(2)(i) of the Charter School Law is

determined by reviewing the evidence it presented in the aggregate. Carbondale 

Area School District, 829 A.2d at 405.

Provident supplied ample support from the community, as was found 

by the Appeal Board, in the form of multiple petition signatures from individuals 

residing within a 4-block radius of Provident’s proposed site; letters from parents, 

educators and a student; and appearances at two public hearings.

25

 In short, the 

Appeal Board’s finding that Provident demonstrated sustainable support is 

supported by substantial evidence. See School District of the City of York v. 

Lincoln-Edison Charter School, 772 A.2d 1045, 1049 (Pa. Cmwlth. 2001) (holding 

that “nothing establishe[d] that [the applicant] did not have the support as required 

under Section 1717-A(b)(2) of the [Charter School] Law” when it submitted the 

requisite number of petition signatures).

The School District also challenges the Appeal Board’s conclusion

that Provident demonstrated sufficient community support by contending that the 

Appeal Board did not specify its disagreement with the School District’s contrary 

conclusion. Section 1717-A(i)(6) of the Charter School Law directs the Appeal 

Board to consider a school district’s determination and, then, “specifically 

articulate” its agreement or disagreement. 24 P.S. §17-1717-A(i)(6). “Specific 

articulation” requires the Appeal Board to do more than recite jargon; its decision 

 

25 Contrary to the School District’s assertion, Provident also submitted a letter from a local nonprofit corporation indicating support from the business community. 
20

must provide guidance to the unsuccessful party regarding the deficiencies in its 

reasoning. Community Service Leadership Development Charter School v. 

Pittsburgh School District, 34 A.3d 919, 925 (Pa. Cmwlth. 2012). 

Provident responds that the “specific articulation” standard in Section 

1717-A(i)(6) was intended to assist charter school applicants, so that they can 

prepare a new and satisfactory application. Otherwise, applicants will be forced to

“prepare and resubmit applications, using guess work as a guide.” Community 

Service Leadership Development Charter School, 34 A.3d at 924. Provident 

contends that the standard makes no sense where, as here, the Appeal Board has 

reversed a school district. We disagree. Section 1717-A(i)(6) of the Charter 

School Law does not limit the standard to adjudications adverse to charter 

applicants, and we reject Provident’s argument in this regard.

However, the School District makes too much of the phrase 

“specifically articulate its reasons for agreeing or disagreeing” with the School 

District. 24 P.S. §17-1717-A(i)(6). The Appeal Board issued a 38-page 

adjudication with numerous findings of fact, conclusions of law and lengthy 

discussion. The Appeal Board reversed the School District because it rejected the 

School District’s construction and application of the statute. For the most part, the 

Appeal Board held that the quantum of explanation and documentation submitted 

by Provident was sufficient to satisfy the statute. The Appeal Board’s explanations

did not leave the School District “guessing.” 

On community support, for example, the Appeal Board explained its 

disagreement with the School District as follows:

In both the Original and Revised Application combined, 

Provident provided approximately sixty (60) letters of support 

for a charter school that would meet the needs of children with 
21

dyslexia. The Revised Application contains over 100 signatures 

on a petition from residents within a four-block radius of the 

proposed school which states that the petition is to support the 

establishment of Provident Charter School for Children with 

Dyslexia in Pittsburgh. At the first public hearing, twenty (20) 

people spoke in favor of Provident, five (5) of whom were 

associated with Provident. At the second public hearing on the 

Revised Application, seven (7) people spoke in favor of 

Provident, three (3) of whom had spoken at the first public 

meeting, and some of whom were associated with Provident....

After a review of the record, [the Appeal Board] disagrees with 

the District Board’s findings. Provident gathered support from 

parents, students, educators, and other professionals. 

Additionally, that support was shown through numerous 

signature petitions, letters of support, and at the public hearings.

Appeal Board Adjudication at 25-26 (emphasis added). The Appeal Board

sufficiently explained its disagreement with the School District’s contrary 

conclusion on community support. Notably, there were no factual disputes on this 

point. The Appeal Board, reviewing Provident’s application de novo, found it 

sufficient, i.e., the quantum of materials presented demonstrated community 

support. There is nothing more to say by way of explanation.

Next, the School District contends that the Appeal Board’s finding 

that Provident will provide parents and pupils with expanded choices was not 

supported by substantial evidence. The School District contends that “[s]tudents in 

Pittsburgh Public Schools have more opportunities and choice than that which is 

being proposed by Provident, and there is no evidence of significant uniqueness to 

Provident’s programs.” School District Brief at 30.

Section 1702-A(3) of the Charter School Law seeks “to establish and 

maintain schools that operate independently from the existing school district 

structure” in order to “[e]ncourage the use of different and innovative teaching 
22

methods.” 24 P.S. §17-1702-A(3). To this end, charter school applicants must 

provide information about “[t]he mission and education goals of the charter school, 

the curriculum to be offered and the methods of assessing whether students are 

meeting educational goals.” Section 1719-A(5) of the Charter School Law, 24 P.S. 

§17-1719-A(5). To satisfy this burden, a proposed charter school must establish 

that it “offers a learning environment that is unique and different from that in the 

District’s public schools.” Montour School District v. Propel Charter SchoolMontour, 889 A.2d 682, 688 (Pa. Cmwlth. 2006). Even if there are similarities 

between a proposed charter school and public schools, an applicant will satisfy 

“the [Charter School Law] when there is substantial evidence of uniqueness.” Id. 

In its revised application, Provident detailed that its educational 

program will use “multi-sensory instructional methods and individual learning 

plans,” with “specially designed instruction for students with dyslexia that will 

intensively and specifically address their individual needs at their own instructional 

level.” R.R. 644. Provident submitted an extensive curriculum, hundreds of pages

long, and identified its unique features, which were summarized by the Appeal 

Board. These features include, inter alia, teacher looping; the Orton-Gillingham 

approach to language arts; individualized, targeted instruction; the study of Spanish 

and Latin; a 6:1 student to adult ratio and a Tae Kwon Do program to develop selfdiscipline. R.R. 645-46, 963. The Appeal Board rejected the School District’s 

argument that it already offered many of these features. It explained:

The Revised Application describes a learning environment that 

is unique and different from that in the District’s public schools, 

particularly with respect to students with dyslexia and other 

language-based disabilities. The fact that the District has some 

programs for students with dyslexia utilizing methods similar to 

those outlined by Provident is irrelevant to the application 
23

review process. The record establishes that the educational 

program for students with dyslexia, as described by the Revised 

Application, is innovative and distinctive from the District.

Appeal Board Adjudication at 30 (emphasis added). The Appeal Board then 

identified the “innovative and distinctive” features of Provident’s program. Appeal 

Board Adjudication at 29-30. That Provident intends to offer some programs 

similar to those offered by the School District matters not. Montour School 

District, 889 A.2d at 688.26 Any charter school will be similar to other public 

schools because all public schools have to meet the Commonwealth’s educational 

requirements. No charter school can be completely unique. 

The School District contends that the Appeal Board’s adjudication did 

not account for the fact that “there is even less choice for students who would 

attend Provident than what students elsewhere in the District enjoy.” School 

District Brief at 37. There is no record evidence to substantiate this claim. The 

School District did not supplement the record before the Appeal Board or provide 

any evidence about its programs. The School District cannot now complain that 

the Appeal Board did not consider evidence not presented to it.27

 

26 The Appeal Board detailed each educational choice and opportunity which Provident proposed 

and compared them to those the School District claimed (without offering any evidence) that it 

offered in its denial. The Appeal Board also acknowledged that some of the programs offered 

were similar to those of the School District, but others were unique.

27 We decline to consider the evidence the School District has set forth in its brief regarding the 

programming in its public schools, which is de hors the record. Despite the ability to supplement 

the record before the Appeal Board, the School District did not do so. Because statements in 

briefs do not constitute evidence of record and were not before the Appeal Board when it 

rendered its decision, we will not consider them. See Erie Indemnity Co. v. Coal Operators 

Casualty Co., 272 A.2d 465, 46667 (Pa. 1971) (“Apparently, the court took into consideration 

facts alleged in the briefs, but briefs are not part of the record, and the court may not consider 

facts not established by the record.” (footnotes omitted)).
24

The School District also argues that after Provident revised its 

admission policy, it had to show that it could meet the needs of children without 

dyslexia. In this argument, the School District invokes Section 1702-A(2) of the 

Charter School Law.

28

 However, the School District’s denial was based upon 

Section 1717-A(e)(2)(ii) of the Charter School Law.

29

 Because the School District 

did not cite Section 1702-A(2) in its denial of Provident’s application (or before 

the Appeal Board), it cannot be asserted for the first time before this Court. See 

Sharp Equipment Co. v. Unemployment Compensation Board of Review, 808 A.2d 

1019, 1026 (Pa. Cmwlth. 2002) (“The litigant must preserve the issue at the 

administrative agency hearing in order to obtain judicial review.”). In short, the 

School District waived this argument.30

The School District next argues that Provident offered “only an 

aspirational claim that Provident intends to involve [community] groups” in the 

planning process. School District Brief at 43. The School District no longer 

argues that an applicant is required to attach agreements, contracts or memoranda 

of understanding to the application but states that, regardless, Provident has not 

made a threshold showing because its statement of intent was not specific. We 

disagree.

 

28 24 P.S. §17-1702-A(2) (stating legislative intent that charter schools “[i]ncrease learning 

opportunities for all pupils”).

29 The petition for review states, “The District based its denial on deficiencies in the following 

areas: ... The applicant failed to demonstrate that it is prepared to meet the needs of all students, 

[sic] (pursuant to 24 P.S. § 17-1717-A(e)(2)(ii)).” Petition for Review, ¶8(e).

30 Likewise, because the Appeal Board was under no obligation to specifically articulate how 

Provident will increase learning opportunities for all pupils, and because this challenge was not 

presented to it, we decline to find its decision deficient in this respect.
25

Section 1719-A(8) of the Charter School Law requires an applicant to 

provide “[i]nformation on the manner in which community groups will be involved 

in the charter school planning process.” 24 P.S. §17-1719-A(8). The Appeal 

Board found that many key individuals involved with Provident are actively 

involved with relevant community groups, i.e., those who advocate for children 

with learning challenges. Appeal Board Adjudication at 10, Finding of Fact, ¶32. 

As to community involvement, the Appeal Board found in Provident’s revised 

application that it

intends to involve parents and guardians of prospective students 

in the development of Provident, that it intends to initiate 

partnerships with local, statewide and national organizations to 

promote best practices based on evidence, expertise and 

experience, and that it intends to identify business partners or 

community groups with which it can partner.

Appeal Board Adjudication at 33. The Appeal Board concluded that Provident’s

information was sufficient.

Section 1719-A(8) does not require written agreements or present

involvement of community groups. Rather, it requests only general, forwardlooking information “on the manner in which” the community “will be involved” 

in school planning. 24 P.S. §17-1719-A(8) (emphasis added). Because there is an 

inherent level of flexibility in Section 1719-A(8), we defer to the Board’s 

interpretation and application of the provision. See, e.g., Packer v. Bureau of 

Professional and Occupational Affairs, 99 A.3d 965, 969 (Pa. Cmwlth. 2014), 

petition for allowance of appeal denied, 109 A.3d 680 (Pa. 2015) (explaining that 
26

courts should defer to the interpretation of an unclear statute given by the agency 

vested with its enforcement).31

It is unrealistic to expect a charter school applicant to have contracts

with community groups before the school holds a charter. This Court addressed a 

similar situation in Central Dauphin School District v. Founding Coalition of the 

Infinity Charter School, 847 A.2d 195 (Pa. Cmwlth.) (en banc), petition for 

allowance of appeal denied, 860 A.2d 491 (Pa. 2004). At issue in that case was 

the Charter School Law’s requirement that a charter school applicant name the 

proposed faculty of the charter school as well as include a criminal history report 

and an official child abuse clearance for all employees who will have direct contact 

with students. See Section 1719-A(13), (15) and (16), 24 P.S. §17-1719-

A(13),(15),(16). Infinity submitted this specific information for two key 

individuals and included a description of the job qualifications for the other staff 

positions. This Court found the submitted information to be sufficient, agreeing 

with the following analysis supplied by the Appeal Board:

Because a charter school has not yet been established when an 

applicant seeks a charter, it is unreasonable and unrealistic to 

expect the charter application to contain the specific names and 

clearances for all proposed faculty and staff positions.... [T]he 

approach taken by [Infinity] in its application was appropriate 

and compliant with the [Charter School] Law. Therefore, 

[Infinity’s] failure to provide specific names and clearances for 

the school’s faculty and staff was not a proper basis for [the 

school district’s] denial of its charter application.

 

31 The dissent gives no weight to the Appeal Board’s judgment about the type and quantum of 

materials needed to satisfy the requirements for a charter school application. Instead, the dissent 

construes Section 1719-A(8) to require Provident to “take some identifiable action” to partner 

with community groups. Dissent slip op. at 4 (emphasis original). This vague standard offers no 

real guidance to applicants, and it is not a standard expressed in the Charter School Law.
27

Infinity Charter School, 847 A.2d at 204. 

This situation is no different. At the application stage, Provident’s

statement of intent and manner for involving community groups is all that is 

required by Section 1719-A(8). The Appeal Board did not err in concluding that 

the information provided by Provident on community involvement was legally 

sufficient.32

Finally, the School District asserts that the Appeal Board erred in

granting a charter to Provident because its admission policy is discriminatory.

33

 In 

addition to challenging the pre-enrollment form, the School District objects to 

Provident’s requests for information from parents about their plans for after-school 

programs and their interest in Provident. The School District also challenges 

Provident’s requirement that parents go through orientation, arguing that the 

conduct of a child’s parent or guardian is not a charter school’s concern. However, 

the only issue that has been preserved for this appeal is whether the pre-enrollment 

form is discriminatory. See Sharp Equipment Co., 808 A.2d at 1026.

The School District claims that the pre-enrollment form violates 

Section 4(a)(2) of the Pennsylvania Fair Educational Opportunities Act because it 

asks whether the applicant needs special programs. 24 P.S. §5004(a)(2).34 

According to the School District, this question will permit Provident to 

discriminate in violation of law.

 

32 Further, the Appeal Board adequately explained its disagreement with the School District’s

conclusion with respect to community involvement in Provident, i.e., that the statute does not 

require actual agreement but only an identification of how it will involve community groups. 

33 The Appeal Board did not address the School District’s conclusion that Provident’s admission 

policy was invalid under a regulation at 22 Pa. Code §711.7. However, the School District did 

not pursue this issue before this Court.

34 The text of Section 4(a)(2) is set forth infra.
28

Provident’s proposed pre-enrollment form requests “whether special 

programs are required.” Appeal Board Adjudication at 13, Finding of Fact, ¶42. 

The Appeal Board found that the purpose of the question was to gather information 

that Provident could use to be “better prepared to address and work with each 

student’s specific educational needs” and not to discriminate. Appeal Board 

Adjudication at 35, n.24. 

The stated purpose of the Pennsylvania Fair Educational 

Opportunities Act is to provide “equal opportunities for education.” Section 2(a) 

of the Act, 24 P.S. §5002(a). Section 4(a)(1) prohibits schools from engaging in 

unfair educational practices, which includes “exclud[ing] or limit[ing], or 

otherwise discriminat[ing]” in the admission of students on the basis of, inter alia, 

disability. 24 P.S. §5004(a)(1).35 It is in this context that schools are prohibited 

from

mak[ing] any written or oral inquiry prior to admission 

concerning or designed to elicit information as to the race, 

 

35 Section 4 states in relevant part, as follows:

(a) Except as provided in section 9, it shall be an unfair educational practice for 

an educational institution--

(1) To exclude or limit, or otherwise discriminate, because of race, 

religion, color, ancestry, national origin, sex, handicap or 

disability, against any student or students seeking admission as 

students to such institutions: Provided, That it shall not be unfair 

educational practice for any educational institution to use criteria 

other than race, religion, color, ancestry, national origin, sex, 

handicap or disability in the admission of students.

(2) To make any written or oral inquiry prior to admission 

concerning or designed to elicit information as to the race, religion, 

color, ancestry, national origin, sex, handicap or disability of a 

student seeking admission to such institution.

24 P.S. §5004(a)(1),(2) (emphasis added).
29

religion, color, ancestry, national origin, sex, handicap or 

disability of a student seeking admission to such institution.

24 P.S. §5004(a)(2) (emphasis added).

The School District suggests that Section 4(a)(2) imposes a blanket 

prohibition against asking the question “whether special programs are required.” 

We reject this construction of the statute. Schools may not elicit information to 

“exclude or limit, or otherwise discriminate” against prospective students with 

disabilities or belonging to other protected classes. 24 P.S. §5004(a)(1) (emphasis 

added). Notably, Provident seeks to include, not “exclude or limit,” students with 

a learning disability. Indeed, Provident will be looking to enroll students with 

dyslexia and other language-based learning disabilities. The pre-enrollment 

question will assist Provident’s preparation of the special instructional programs it 

will offer. The Appeal Board so found, as a matter of fact, and this finding 

supports the conclusion that the question on the pre-enrollment form does not 

violate Section 4(a) of the Pennsylvania Fair Educational Opportunities Act.36 The 

Appeal Board offered a specific and cogent explanation of its disagreement with 

the School District on this point:

Because the information [whether special programs are 

required] will not be used to determine eligibility of admission, 

[the Appeal Board] finds that gathering information to be better 

prepared for the student population is permissible. 

 

36 The dissent contends that Provident’s admission policy is discriminatory. The dissent ignores 

the Appeal Board’s relevant factual findings. It found that Provident’s enrollment is open to all 

students on a first-come, first-served basis and by lottery if there are too many applicants. The 

Appeal Board also found that the question about special programs will be used to prepare for 

each student’s special requirements, not to discriminate. The Appeal Board’s factual findings 

are conclusive and cannot be overturned by this Court.
30

Appeal Board Adjudication at 35, n.24.37 

Conclusion

In sum, the Appeal Board did not err in holding that Provident met its 

burden of satisfying the criteria for a charter. Provident demonstrated that it has 

sustainable support; will provide parents and pupils with expanded educational 

choices; will provide comprehensive learning experiences to students; and 

explained the manner in which community groups will be involved in its planning 

process. Finally, Provident’s admission policy complies with applicable law. 

Further, the Appeal Board adequately articulated the reasons why it disagreed with 

the School Board’s contrary conclusion with regard to each of these 

determinations. 

Accordingly, the order of the Appeal Board is affirmed.

______________________________

 MARY HANNAH LEAVITT, Judge

 

37 Further, even if the Pennsylvania Fair Educational Opportunities Act prohibited Provident 

from asking about a student applicant’s need for special programs for any purpose, Provident’s 

charter application would not be denied. Provident agreed to remove the question from its preenrollment form in the event this Court would conclude that the question is legally 

impermissible. Provident’s Brief at 40 n.8. At most, then, a remand to the Appeal Board to 

approve the charter application with the condition that Provident remove the question from the 

pre-enrollment form would have been necessitated.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School District of Pittsburgh, :

Petitioner :

:

v. : No. 598 C.D. 2015

:

Provident Charter School For :

Children With Dyslexia, :

Respondent :

O R D E R

AND NOW, this 26th day of February, 2016, the order of the State

Charter School Appeal Board dated March 17, 2015, in the above-captioned matter 

granting a charter to Provident Charter School for Children with Dyslexia is hereby 

AFFIRMED.

 ______________________________

 MARY HANNAH LEAVITT, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

School District of Pittsburgh, :

Petitioner :

:

v. :

:

Provident Charter School For :

Children With Dyslexia, : No. 598 C.D. 2015

Respondent : Submitted: December 9, 2015

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

DISSENTING OPINION BY

PRESIDENT JUDGE PELLEGRINI FILED: February 26, 2016

The central issue in this case is whether Provident Charter School for 

Children With Dyslexia’s (Provident) revised application to establish a charter 

school satisfied the Charter School Law (CSL).1 While I agree with the majority 

that Provident established demonstrated, sustainable support under the loose 

standard that we have established,

2

expanded choices in education opportunities, 

 

1 Act of March 10, 1949, P.L. 30, added by Section 1 of the Act of June 19, 1997, P.L. 

225, as amended, 24 P.S. §§17-1701-A17-1751-A.

2 A charter school applicant, among other things, is required to prove “demonstrated, 

sustainable support” for the charter school plan by teachers, parents, community members and 

students as required by Section 1717-A(e)(2)(i) of the CSL, 24 P.S. §17-1717-A(e)(2)(i). In 

(Footnote continued on next page...)
DRP - 2

and its capability to provide comprehensive learning experiences to students, at 

least under the lenient standards we have enunciated in the past, I disagree with the 

majority’s decision to allow Provident to “slide” on other mandatory provisions set 

forth in the CSL. Requiring strict compliance after all will insure that Charter 

School Boards and private management companies hired to operate their schools 

have properly met the standard set forth in the CSL for the protection of students 

entrusted to those entities.

Specifically, for the reasons that follow, I would find that: (1) 

Provident offered insufficient evidence of the manner in which community groups 

will be involved in its planning process; and (2) Provident’s admission policy 

violates applicable law. Because an application to establish a charter school must 

satisfy all the criteria mandated by Section 1719-A of the CSL, 24 P.S. §17-1719-

 

(continued...)

determining whether an application has established demonstrated, sustainable support, we have 

given great leeway to the Board by saying that, notwithstanding that support has to be in all 

areas, support “is to be measured in the aggregate and not by individual categories” and 

concluded that “[f]ailure to demonstrate strong support in any one category is not necessarily 

fatal to charter school application.” Brackbill v. Ron Brown Charter School, 777 A.2d 131, 138 

(Pa. Cmwlth. 2001) (quoting and approving the CAB’s interpretation proffered in that case).

In this case, the evidence of support is, for the most part, from letters or names on a 

petition that support the generalized notion that a charter school for dyslexic children is a good 

idea. In Carbondale Area School Dist. v. Fell Charter School, 829 A.2d 400 (Pa. Cmwlth. 

2003), a decision that I would reverse, we seemed to indicate that generalized petitions of 

support was sufficient to meet this standard. However, by allowing generalized letters of support 

that can be obtained outside a supermarket on a Saturday morning to meet this provision, we are 

reading out the requirement that the support has to be “sustainable” that the General Assembly 

required before an applicant could receive a charter.
DRP - 3

A, I would reverse the Charter Appeal Board’s (CAB) order granting a charter to 

Provident.

I.

With respect to the requirement in Section 1719-A(8) of the CSL that 

applicants provide “[i]nformation on the manner in which community groups will 

be involved in the charter school planning process,” 24 P.S. §17-1719-A(8), I find 

Provident’s application deficient.

Provident specified that its coalition and board of directors consists of 

representatives associated with the following organizations: the International 

Dyslexia Association, the Pittsburgh Branch of the International Dyslexia 

Association, the Masonic Temple’s Total Learning Center, The Watson Institute 

and The Laughlin Center. While personal associations with these groups may be 

some indicia that they will have involvement in Provident’s planning, there is 

nothing of record to indicate that the coalition or board members participate in 

these organizations in any type of representative capacity. Therefore, without 

more, their associations are largely irrelevant to determining if Provident has 

submitted evidence regarding its proposed partnerships.

Further, I agree with the School District of Pittsburgh that Provident’s 

statements of generalized intent are too vague to provide guidance regarding how it 

will integrate community partnerships into the school to enhance and support the 

learning environment. For example, Provident’s assertion that it “will work to 

engage and involve parents, families and community members to promote 
DRP - 4

collaboration, communication and conflict resolution,” does little aside from 

restating the general requirement that community groups must be involved in 

Provident’s planning. (Reproduced Record at 970a.) Although Provident does 

detail some steps it will take to initiate these partnerships—i.e., notifying local 

schools of its programs through letters, following up with personal phone calls, 

inviting representatives to visit and tour, and identifying opportunities for 

partnerships—it provides only speculation regarding what these partnerships will 

actually consist of and with whom they will exist.

Section 1719-A(8) of the CSL, although flexible, requires more. It 

does not request information regarding the steps charter schools plan to take to 

identify opportunities for partnerships, but rather, seeks information regarding the 

partnerships with community groups themselves. In other words, to satisfy this 

provision, I would find it unnecessary for Provident to negotiate the terms of its 

agreements with community partners, but it must take some identifiable action that 

could lead to arrangements with community partners. The majority’s holding 

provides no standards in this regard. Because the record is devoid of any 

information regarding specific entities with which Provident seeks to partner and 

any concrete methods for integrating community involvement above aspirational 

goals, I find the CAB’s conclusion that Provident satisfied Section 1719-A(8) of 

the CSL unsupported by substantial evidence.

II.

Regardless, Provident’s proposed admission policy and criteria for 

evaluating the admission of students did not satisfy Section 1723-A(b)(1) of the 
DRP - 5

CSL3because it expressly violated the Pennsylvania Fair Educational 

Opportunities Act4insofar as Provident’s pre-enrollment form inquired “whether 

special programs are required” because the requested information “serves no 

legitimate purpose at the pre-enrollment phase.” (R.R. at 1764a.)

While Provident’s intentions with regard to its admissions policy may 

be laudable in that it claims it seeks this information to better prepare for and serve 

its student population, its pre-enrollment form does not comply with the express 

language of Section 4(a)(2) of the Pennsylvania Fair Educational Opportunities 

 

3

Pursuant to Section 1723-A(b)(1) of the CSL:

(b)(1) A charter school shall not discriminate in its admission 

policies or practices on the basis of intellectual ability, except as 

provided in paragraph (2), or athletic ability, measures of 

achievement or aptitude, status as a person with a disability, 

proficiency in the English language or any other basis that would 

be illegal if used by a school district.

24 P.S. §17-1723-A(b)(1).

4 Act of July 17, 1961, P.L. 776, as amended, 24 P.S. §§50015010. Specifically, 

Section 4(a)(2) of the Pennsylvania Fair Educational Opportunities Act states:

(a) Except as provided in section 9, it shall be an unfair educational 

practice for an educational institution--

* * *

(2) To make any written or oral inquiry prior to admission 

concerning or designed to elicit information as to the race, religion, 

color, ancestry, national origin, sex, handicap or disability of a 

student seeking admission to such institution.

24 P.S. §5004(a)(2).
DRP - 6

Act, which imposes a blanket prohibition on seeking such information preadmission and renders an institution’s reason for seeking such information 

irrelevant. 24 P.S. §5004(a)(2). In interpreting Section 4(a)(2) to prohibit such 

inquiries only if used for the purposes of discriminating, the majority conflates the 

requirements of Sections 4(a)(1) and (2), each of which set forth separate 

prohibitions, and suggests that the express language of Section 4(a)(2) be ignored 

to further the purpose of the Pennsylvania Fair Educational Opportunities Act.

For good reason, Section 4(a) does not make the intent of a charter 

school applicant relevant. Rather than directing the courts to discern the subjective 

intent behind such inquiries, the General Assembly has outright banned them, a 

prohibition that the majority excuses by saying that, while illegal, the Charter 

School Board found that Provident really did not mean it. Moreover, regardless of 

Provident’s intent, this inquiry does not serve student needs at the pre-enrollment 

stage because applicants submitting the pre-enrollment form have not yet been 

accepted for enrollment and, in fact, are not enrolling.

In this case, the pre-enrollment form specifically requests whether 

special-needs programs are required. The information requested on the preenrollment form is collected before a student’s admission and, therefore, Section 

4(a)(2) of the Pennsylvania Fair Educational Opportunities Act applies, barring 

such inquiries. 24 P.S. §5004(a)(2).

Accordingly, I would reverse the CAB’s findings that Provident 

offered sufficient evidence of the manner in which community groups will be 
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involved in its planning process and that its admission policy complies with 

applicable law.

 

DAN PELLEGRINI, President Judge