SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3342-16T1

IN THE MATTER OF GRANT 

OF THE CHARTER RENEWAL 

OF THE RED BANK CHARTER

SCHOOL.

____________________________

Argued September 9, 2019 – Decided 

Before Judges Sabatino, Sumners and Geiger.

On appeal from the New Jersey Department of 

Education.

Michael Ross Noveck argued the cause for appellants 

Fair Schools Red Bank and the Latino Coalition 

(Gibbons PC and ACLU New Jersey Foundation, 

attorneys; Lawrence S. Lustberg, Avram D. Frey, 

Jessica L. Hunter, Jeanne M. LoCicero, and Michael 

Ross Noveck, on the briefs).

Thomas Owen Johnston argued the cause for 

respondent Red Bank Charter School (Johnston Law 

Firm, LLC, attorneys; Thomas Owen Johnston, of 

counsel and on the briefs).

Geoffrey Nelson Stark, Deputy Attorney General, 

argued the cause for respondent Commissioner of 

Education (Gurbir S. Grewal, Attorney General, 

attorney; Melissa Dutton Schaffer, Assistant Attorney 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

September 20, 2019
2

A-3342-16T1

General, of counsel; James M. Esposito, Jr., Deputy 

Attorney General, on the briefs).

PER CURIAM

This appeal concerns the enrollment practices of a charter school located 

in a community of predominantly Latino population. The school, Red Bank 

Charter School ("RBCS"), historically has had a mainly white enrollment, until 

very recently when the percentage of white and Latino students became roughly 

equal. The racial and ethnic mix of RBCS has been the subject of public 

controversy for several decades, as exemplified by our 2004 opinion describing 

an earlier phase of that controversy and remanding the matter for an 

administrative hearing. See In re Red Bank Charter Sch., 367 N.J. Super. 462, 

467 (App. Div. 2004) ("Red Bank Charter").

In the present litigation, two nonprofit advocacy organizations in Red 

Bank appeal certain aspects of a final agency decision of the New Jersey 

Department of Education ("DOE") granting the renewal of RBCS's charter and 

written amplifications of that decision by two successive DOE Commissioners. 

Appellants contend the Commissioners' decisions are inadequate because they 

fail to make explicit findings addressing appellants' claims of discriminatory 

enrollment practices at RBCS. According to appellants, those practices have 

suppressed Latino student enrollment at RBCS and perpetrated white enrollment 
3

A-3342-16T1

at a level far higher than the white school population in the local public school 

district. Appellants further argue the Commissioners acted arbitrarily and 

capriciously by not halting RBCS's admission policies that give preference to 

applicants who have siblings already enrolled at the school. Appellants also 

contend the Commissioners' rulings are deficient in not addressing alleged 

shortcomings of RBCS's advertising and outreach efforts in encouraging Latino 

parents to apply for admission, and so-called "whisper campaigns" to encourage 

white families to apply.

In their opposition, RBCS and the Commissioner argue appellants lack 

standing to pursue this appeal and, moreover, their claims of discrimination lack 

merit. They maintain the law does not provide organizations such as appellants 

with a right to litigate their grievances in the context of an appeal from a charter 

school renewal, especially since the public school district in this case has not 

exercised its statutory right to bring or take part in this appeal. Respondents 

further deny there is any proven discrimination in RBCS's enrollment practices, 

and emphasize the Commissioner's amplifications provide ample assurance the 

DOE is continuing to monitor the demographic mix of admitted students at 

RBCS and will take any remedial measures that may be needed before the 

school's present five-year charter expires.
4

A-3342-16T1

For the reasons that follow, we conclude appellants possess standing to 

litigate the important constitutional and statutory issues of alleged 

discrimination they have raised in this appeal. On the merits, we affirm the 

agency's rejection of appellants' request to suspend the sibling preference policy, 

a practice the DOE is closely monitoring. However, we are persuaded the matter 

must be remanded to the DOE to enable the present Commissioner to provide 

further amplification of his ruling and explicitly address, based strictly on the 

existing administrative record, the omitted subjects identified by appellants. 

We decline to order the Commissioner at this time to refer disputed issues 

for an evidentiary hearing in the Office of Administrative Law ("OAL"), or to 

require the Commissioner to expand the existing factual record. We do so 

without prejudice to the right of appellants or any other party to pursue the 

grievance process set forth in N.J.S.A. 18A:36A-15, and potential factual 

development in connection with such a grievance. Furthermore, our opinion 

does not foreclose appellants from raising their concerns about discriminatory 

enrollment practices or impacts during RBCS's next charter renewal process, 

which is scheduled to begin in the fall of 2021. 
5

A-3342-16T1

I.

To place the facts and the parties' arguments in context, we begin with 

some background concerning our State's charter school laws and regulations, 

and pertinent anti-segregation principles.

A. The Charter School Program Act of 1995

In 1995, the Legislature enacted the Charter School Program Act of 1995 

("CSPA"), N.J.S.A. 18A:36A-1 to -18. As part of that initiative, the Legislature 

declared that "the establishment of charter schools as part of this State's program 

of public education can assist in promoting comprehensive educational reform 

by providing a mechanism for the implementation of a variety of educational 

approaches which may not be available in the traditional public school 

classroom." N.J.S.A. 18A:36A-2. The Legislature further determined that "the 

establishment of a charter school program is in the best interests of the students 

of this State and it is therefore the public policy of the State to encourage and 

facilitate the development of charter schools." Ibid. 

A charter school is "a public school operated under a charter granted by 

the [C]ommissioner." N.J.S.A. 18A:36A-3(a). It "is operated independently of 

a local board of education and is managed by a board of trustees," who are 
6

A-3342-16T1

"deemed to be public agents authorized by the State Board of Education to 

supervise and control the charter school." Ibid. 

A charter school must operate in accordance with its charter and the laws 

and regulations governing public schools, unless the school requests and is given 

an exception by the Commissioner. N.J.S.A. 18A:36A-11(a). As we will 

discuss in Part III of this opinion, "[a]ny individual or group may bring a 

complaint to the board of trustees of a charter school alleging a violation of the 

provisions of this act." N.J.S.A. 18A:36A-15. 

With respect to admissions, charter schools are "open to all students on a 

space available basis." N.J.S.A. 18A:36A-7. A charter school cannot

discriminate in its admissions policies and practices, although it "may limit 

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

such as mathematics, science, or the arts." N.J.S.A. 18A:36A-7.

Particularly relevant to the present case is N.J.S.A. 18A:36A-8, which 

provides:

a. Preference for enrollment in a charter school shall be 

given to students who reside in the school district in 

which the charter school is located. If there are more 

applications to enroll in the charter school than there 

are spaces available, the charter school shall select 

students to attend using a random selection process. A 

charter school shall not charge tuition to students who 

reside in the district.
7

A-3342-16T1

b. A charter school shall allow any student who was 

enrolled in the school in the immediately preceding 

school year to enroll in the charter school in the 

appropriate grade unless the appropriate grade is not 

offered at the charter school.

c. A charter school may give enrollment priority to a 

sibling of a student enrolled in the charter school.

d. If available space permits, a charter school may 

enroll non-resident students. The terms and condition 

of the enrollment shall be outlined in the school's 

charter and approved by the commissioner.

e. The admission policy of the charter school shall, to 

the maximum extent practicable, seek the enrollment of 

a cross[-]section of the community's school age 

population including racial and academic factors.

[(Emphasis added).] 

After approving a charter application, the Commissioner must annually 

assess whether the school is meeting the goals of its charter. N.J.S.A. 18A:36A16(a). Regulations specify the Commissioner must also annually assess "the 

student composition of a charter school and the segregative effect that the loss 

of the students may have on its district of residence." N.J.A.C. 6A:11-2.2(c). 

To facilitate that review, charter schools must submit an annual report to the 

Commissioner, local board of education, and the county superintendent of 

schools. N.J.S.A. 18A:36A-16(b); N.J.A.C. 6A:11-2.2. The Commissioner may 

revoke a charter at any time if the school has not fulfilled or has violated any of 
8

A-3342-16T1

the conditions of its charter. N.J.S.A. 18A:36A-17. 

B. Constitutional Anti-Segregation Principles

It is well-established that, "[r]ooted in our Constitution, New Jersey's 

public policy prohibits segregation in our public schools." In re Grant of Charter 

Sch. Application of Englewood on the Palisades Charter Sch., 164 N.J. 316, 324 

(2000). See also id. at 330 ("[S]egregation, however caused, must be 

addressed."); In re Renewal Application of Team Acad. Charter Sch., 459 N.J. 

Super. 111, 144 (App. Div. 2019) ("Segregation is strictly prohibited in our 

schools, and is specifically prohibited in charter schools."). In that regard, the 

CSPA provides that "[t]he admission policy of the charter school shall, to the 

maximum extent practicable, seek the enrollment of a cross[-]section of the 

community's school age population including racial and academic factors." 

N.J.S.A. 18A:36A-8(e) (emphasis added). See also N.J.A.C. 6A:11-4.5(e) 

(same). 

Our Supreme Court has found that the "form and structure" of the 

segregative analysis under the CSPA is within the discretion of the DOE 

Commissioner and the State Board of Education to determine. Englewood, 164 

N.J. at 329. See also Team Academy, 459 N.J. Super. at 145 (recognizing the 

Commissioner's and State Board of Education's discretion when determining 
9

A-3342-16T1

segregative effect). 

C. The Oversight Role of the DOE and the Commissioner

Within this regulatory structure, the Supreme Court has recognized the 

Commissioner's obligation under the New Jersey State Constitution "to prevent 

segregation in our public schools . . . when [he or she] performs his [or her] 

statutory responsibilities under the Charter School Act." Id. at 328. Indeed, as 

far back as 1971 the Commissioner "recognized that . . . there is an 'obligation 

to take affirmative steps to eliminate racial imbalance, regardless of its causes,'" 

citing to New Jersey's "constitutional provisions for a thorough and efficient 

school system (N.J. Const. art. VIII, § 4, ¶ 1), and against segregation in the 

schools (N.J. Const. art. I, ¶ 5)." Jenkins v. Twp. of Morris Sch. Dist., 58 N.J. 

483, 506 (1971). This state constitutional duty applies equally in the charter 

school context. See, e.g., Englewood, 164 N.J. at 328 ("The constitutional 

command to prevent segregation in our public schools superimposes obligations 

on the Commissioner when he performs his statutory responsibilities under the 

Charter School Act."). 

To conform with these constitutional and statutory commands, "the 

Commissioner must use the full panoply of his powers to avoid [segregation]." 

Id. at 329. See also Booker v. Bd. of Educ. of City of Plainfield, 45 N.J. 161, 
10 A-3342-16T1

178- 79 (1965) (recognizing Commissioner's power extends beyond addressing 

segregated schools and includes remedial action to alleviate substantial racial 

imbalance); In re Petition for Authorization to Conduct a Referendum on the 

Withdrawal of North Haledon Sch. Dist. from Passaic Cty. Manchester Reg'l 

High Sch., 363 N.J. Super. 130, 139 (App. Div. 2003) (discussing Supreme 

Court decisions requiring "education policy makers to anticipate imbalance and 

to take action to blunt perceived demographic trends which will lead to racial or 

ethnic imbalance."). Just as the Commissioner is obligated to act if a charter 

school "systematically" recruits pupils of a particular race or national origin, the 

Commissioner must also "be prepared to act if the de facto effect of a charter 

school were to affect a racial balance precariously maintained in a charter 

school's district of residence." Englewood, 164 N.J. at 328. 

In response to the Court's decision in Englewood, and to the companion 

case, In re Greater Brunswick Charter Sch., 164 N.J. 314, 315 (2000), 

regulations were adopted that required the Commissioner, approving a charter, 

N.J.A.C. 6A:11-2.1(j), and on an annual basis thereafter, N.J.A.C. 6A:11-2.2(c), 

to "assess the student composition of a charter school and the segregative effect 

that the loss of the students may have on its district of residence. The assessment 

shall be based on the enrollment from the initial recruitment period pursuant to 
11 A-3342-16T1

N.J.A.C. 6A:11-4.4(b)." 32 N.J.R. 3560(a), 3561 (Oct. 2, 2000). N.J.A.C. 

6A:11-4.4(a) requires "a charter school [to] submit to the Commissioner the 

number of students by grade level, gender and race/ethnicity from each district 

selected for enrollment from its initial recruitment period for the following 

school year."

This court similarly recognized in the previous Red Bank Charter appeal 

the Commissioner's obligation under the State Constitution to prevent 

segregation in New Jersey's public schools. See, e.g., 367 N.J. Super. at 471-72 

(noting that "[a]ll parties agree that the Commissioner is required to monitor and 

remedy any segregative effect that a charter school has on the public school 

district in which the charter school operates," and "[t]he Commissioner must 

vigilantly seek to protect a district's racial/ethnic balance during the charter 

school's initial application, continued operation, and charter renewal 

application."). See also Team Academy, 459 N.J. Super. at 145 (recognizing 

the Commissioner's obligation to annually monitor the possible segregative 

effective of a charter school upon the local school district).
12 A-3342-16T1

II.

RBCS opened in 1998. It presently enrolls 200 students, from 

prekindergarten through eighth grade.1 The school's charter limits enrollment 

to twenty students in each of the ten grades.

For many years, starting long before the present litigation, RBCS has been 

accused of enrolling a student population that does not reflect a cross-section of 

the Red Bank community. In 2001, the Red Bank Board of Education (the 

"School Board"), challenged a proposed expansion of RBCS's enrollment on the 

grounds that RBCS had allegedly "worsened the racial ethnic imbalance in the 

[Red Bank] district schools." Red Bank Charter, 367 N.J. Super. at 467. The 

School Board contended that RBCS was "siphoning" non-minority students 

from the district schools, which increased the "exodus of whites from the school 

district." Id. at 472. The School Board appealed the DOE's approval of the 

charter expansion request.

Based on the record in that earlier case, we remanded the dispute for an 

administrative hearing. Among other things, we directed the hearing to focus 

upon "whether some of [RBCS's] practices may be worsening the existing 

 

1

 The prekindergarten class enrollment was originally capped at fifteen students, 

but counsel clarified at oral argument the class is now at twenty.
13 A-3342-16T1

racial/ethnic imbalance in the district schools." Id. at 480. We did not specify 

the manner or venue of the remand hearing. 

Several years after our 2004 remand, the Board and RBCS entered into a 

consent order on March 20, 2007 in the OAL ending the litigation, without any 

administrative hearing. RBCS's charter was renewed by the DOE in ensuing 

years in 2006 and 2012, apparently without litigation.2 

The present appeal arises from the most recent renewal application 

submitted by RBCS to the DOE in September 2016. As part of its review of that 

application, the DOE conducted a site visit at RBCS in October 2016. Because 

DOE ranks RBCS as a "Tier 1" school, based on its students' high academic 

performance on standardized tests, the site visit was shortened to only several 

hours, instead of a full day. Among other favorable things, the DOE concluded 

from the site visit that RBCS is "faithful to its mission," that the school 

"promotes a culture of high expectations," and that the RBCS Board "has the 

capacity to govern the school effectively." 

 

2

 An initial charter is for a term of four years and may be renewed for a five -

year period. N.J.S.A. 18A:36A-17. 
14 A-3342-16T1

On February 28, 2017, Kimberly Harrington, who was then the DOE 

Commissioner, granted RBCS's charter renewal in a "short, congratulatory 

letter," for a period of five years through June 30, 2022. 

A. The Present Appeal of RBCS's 2017 Charter Renewal

On April 11, 2017, the Latino Coalition of New Jersey and Fair Schools 

Red Bank (collectively "the Coalition")3appealed Commissioner Harrington's 

renewal decision to this court. The Coalition asserted the renewal decision 

violated: (1) the CSPA; (2) the Thorough and Efficient Education Clause of the 

New Jersey Constitution, N.J. Const. art. VIII § 4 ¶ 1; (3) and Article I, 

paragraph 5 of the New Jersey Constitution. The Coalition further argued the 

Commissioner's decision was arbitrary and capricious. 

Pursuant to Rule 2:5-1(b), Commissioner Harrington filed with this court 

on August 9, 2017 an Amplification of Reasons for her February 28, 2017 

decision, on her own initiative. The August 2017 Amplification cited three main

 

3

 According to appellants, the Latino Coalition of New Jersey "is a [Section] 

501(c)(14) corporation established in 2009, made up of organizations and 

individuals from Monmouth and Ocean County, New Jersey." Co-appellant Fair 

Schools Red Bank, meanwhile, "is an unincorporated organization of Red Bank 

residents." Appellants state they represent "the membership of Fair Schools Red 

Bank and the Latino Coalition, [which] includes residents of Red Bank with 

school-age children, some of whom attend Red Bank's [p]rimary and [m]iddle 

schools." At oral argument, appellants' counsel clarified they do not represent 

the interests of Latino children who are presently enrolled at RBCS.
15 A-3342-16T1

reasons as support the renewal decision: (1) RBCS's favorable student 

performance on statewide assessments; (2) operational sustainability; and (3) 

demographic enrollment data and public comment. 

With regard to the first listed factor of student performance, 

Commissioner Harrington noted that RBCS is a "Tier Rank 1" school, and had 

outperformed Red Bank district schools in English language arts and 

mathematics in 2014-2015 and 2015-2016. The Commissioner observed in this 

regard that "RBCS has a track record of student success based on the results of 

statewide assessments." 

Regarding the second factor of operational sustainability, Commissioner 

Harrington noted that: (1) RBCS's charter already had been renewed three times 

before the 2017 renewal; (2) its enrollment the last term was at capacity, with a 

waiting list; and (3) leadership at RBCS has been "stable." 

As to the third factor of demographics and pupil enrollment, 

Commissioner Harrington acknowledged that "[a] cursory review of the 

racial/ethnic composition of RBCS's overall student population . . . suggest[s] 

that it does not currently reflect the community's school-age population." 

(Emphasis added). However, the Commissioner explained that "a closer look
16 A-3342-16T1

reveals the RBCS has taken sufficient action to address the issue and has 

obtained the necessary results." (Emphasis added). 

Commissioner Harrington delineated several reasons to support her 

conclusion that RBCS had taken "sufficient action" to address its racial 

imbalance: 

 There are limited opportunities for new students 

to enroll because RBCS has a maximum 

enrollment of 200 students, or 20 students per 

grade, and a low attrition rate; 

 RBCS had bolstered its outreach for the 2015-

2016 school year by mailing the RBCS 

application and advertisements to all Red Bank 

residents in both English and Spanish, and 

targeted high-needs communities with posters 

and banners;

 Prekindergarten enrollment data from 2015-2016 

indicates that the recruitment strategy was 

effective, with 60% of the 2015-2016 incoming 

prekindergarten class identifying as Hispanic, as 

compared to 27% of the 2014-2015 incoming 

prekindergarten class identifying as Hispanic; 

 In April 2016 RBCS implemented a weighted 

lottery4for economically disadvantaged students 

 

4

 According to the Commissioner, pursuant to N.J.S.A. 18A:36A-7 and N.J.S.A. 

18A:36A-8, charter schools may seek approval from the DOE to establish 

certain admission policies, including weighted lotteries, which favor 

economically disadvantaged students. Economically disadvantaged students 

who apply to RBCS have their names entered into the lottery three times, while 

all other students have their names entered only twice. 
17 A-3342-16T1

"in order to better represent a cross-section of the 

community's school-age population;" 

 Although the Commissioner considered ending 

RBCS's sibling preference policy (as the 

Coalition has advocated) in order to make more 

seats available to new students, the 

Commissioner determined it would be 

unnecessary, citing to the increase in enrollment 

of Latino prekindergarten students; and 

 After comparing the ethnic makeup of the district 

schools and RBCS, it was determined that there 

was no compelling evidence to suggest that 

RBCS is having a segregative effect on the 

district schools. 

Following the August 2017 Amplification, the Coalition filed an objection 

with this court, arguing the amplification was improperly based on evidence not 

in the record and had been submitted for the purpose of litigation advocacy. 

B. Post-Remand & Subsequent DOE Proceedings

In a September 15, 2017 order from this court, we remanded the case to 

the Commissioner for further "proceedings," in order to provide the Coalition 

and DOE "with [an] adequate opportunity to supplement the record as it relates 

to the August 9, 2017 Amplification of Reasons." 

The Coalition's November 2017 Submission to the Commissioner

Pursuant to the remand by this court, the Coalition submitted to 

Commissioner Harrington a detailed twenty-six-page letter on November 13, 
18 A-3342-16T1

2017, which set forth arguments and evidence of RBCS's alleged historical 

practice of segregation in its recruitment and enrollment practices. In the letter, 

the Coalition's members expressed "deep[] concern[] that ... RBCS is increasing 

segregation in the [d]istrict schools."5 The Coalition "submit[ed] [the] letter and 

attached materials to assist the Commissioner in identifying the problems posed 

by RBCS' operation, as well as specific remedies to address them." 

In its November 2017 submission, the Coalition highlighted the following 

matters in support of its argument that the Commissioner must make policy 

changes to remedy the racial imbalance in RBCS: 

 Census data showing the demographic shift and 

increase in Red Bank's Latino community over 

the past twenty years; 

 Statements, letters, and newspaper articles 

indicating that RBCS had endeavored to position 

itself as the only public school option for white 

parents seeking refuge from the majority-Latino 

district schools. Or, as the Coalition puts it, 

RBCS was allegedly intending to mitigate against 

so-called "white flight" from Red Bank to nearby 

towns;

 RBCS has historically limited information about 

its application process and lottery system to 

affluent white social networks and parent groups. 

In other words, RBCS's recruiting was, in 

 

5

 Notably, the district has not participated in this appeal.
19 A-3342-16T1

essence, a "whisper campaign" amongst white 

middle- and upper-class RBCS parents to other 

white middle- and upper-middle class families; 

 The sibling preference policy perpetuates 

RBCS's skewed racial demographic because most 

siblings are the same race and enrollment is 

already very limited. Indeed, the Commissioner 

noted in the August 2017 Amplification that, 

according to the "school lead," roughly half of the 

20 prekindergarten seats go to siblings each year; 

and 

 The weighted lottery is being undermined by 

RBCS's sibling preference policy and failure to 

recruit "a cross-section of the community. 

Despite these criticisms, the Coalition clarified that it was not asking the 

Commissioner to deny RBCS's renewal application altogether, recognizing that 

the "closure of [RBCS] would disrupt and unfairly penalize its 200 students." 

However, the Coalition did urge that "corrective action is required if the RBCS 

charter is to be renewed," and insisted that the Commissioner address the 

"central causes of RBCS'[s] segregative effect . . . by requiring changes to 

RBCS policies." 

(1) Proposed Remedial Measures

The Coalition proposed three specific remedial measures to the 

Commissioner. 
20 A-3342-16T1

First, the Coalition asked the Commissioner to evaluate standardized tests 

scores in a manner that accounts for biases along the lines of race, class, and 

English-language proficiency. The Coalition advocated the charter school's 

performance should only be compared to the district schools "after 

differentiating between students of racial, economically disadvantaged, and 

[limited English proficiency] groups." According to the Coalition, "[s]uch a 

policy change would remove the incentive for RBCS to recruit predominantly 

white, wealthy, English-proficient students . . . . [a]nd it would remove the 

harmful and unfair stigma that [,by comparison,] the [d]istrict is a poor academic 

institution." 

Second, the Coalition urged the Commissioner to "meaningfully 

investigate and oversee the charter's marketing and recruitment efforts." The 

Coalition asserted that, "in light of the accounts of [the letters submitted by 

numerous] Red Bank parents [detailing the so-called alleged "whisper 

campaign"], the charter cannot be taken at its word that it is fulfilling its 

obligation to seek a cross-section of the community." 

Third and finally, the Coalition requested the Commissioner suspend 

RBCS's sibling preference policy until the charter school's racial imbalance is 

corrected. The Coalition described as "illogical" the Commissioner's conclusion 
21 A-3342-16T1

in the amplification that ending the sibling preference policy "could be 

detrimental" to the enrollment of more Latino students. 

(2) RBCS's Response Letter

In its administrative response to the Coalition, RBCS urged the 

Commissioner to: (1) reject the Coalition's letter submission as improper and 

contrary to the remand order because the submission presented new arguments 

and information that had not been raised before; (2) find that the Coalition 

lacked standing to bring an appeal of the charter renewal, and that the appeal 

was moot since the Coalition was not contesting the continuance of the charter; 

and (3) dismiss the Coalition's allegations of segregative impact, because "the 

available evidence clearly demonstrates that RBCS attracts a cross[-]section of 

the student age population in the Red Bank community." RBCS took issue with 

the Coalition's claim that RBCS was purposely not recruiting Latino students. 

In particular, RBCS asserted that recent "diverse enrollment trends" were a 

direct result of RBCS's positive outreach to the Latino community. 

Commissioner Repollet's April 2018 Amplification

In response to those submissions and this court's remand order, 

Commissioner Lamont Repollet6issued a four-page Amplification on April 16, 

 

6

 Commissioner Repollet succeeded Commissioner Harrington in January 2018

after the change in gubernatorial administrations. He became Acting 
22 A-3342-16T1

2018 "reiterate[ing] the February 28, 2017 decision to renew RBCS's charter 

through June 30, 2022." Commissioner Repollet did not refer the matter for an 

administrative hearing to delve into factual disagreements between the parties. 

Commissioner Repollet's April 2018 Amplification concluded that, after 

considering the supplemental record, "it is evident . . . that RBCS is seeking, 

'to the maximum extent practicable,' to enroll a cross-section of Red Bank 

Borough's school-age population." The Commissioner, while acknowledging 

the letters of Red Bank residents suggesting what the Coalition alleged to be a 

"whisper recruitment campaign," nonetheless found RBCS's recruitment 

practices were sufficient during the relevant charter term (2013 to 2017), stating: 

RBCS recruited throughout the Red Bank Community 

by: providing the application in hard-copy and 

electronically in English/Spanish, direct mailings to 

Red Bank Borough residents, English/Spanish lawn 

signs through the community, posted and published 

advertisements for the application and latter in 

English/Spanish, a banner on the main Red Bank 

thoroughfare, and reaching out to local churches and 

community organizations to include information about 

RBCS in their bulletins and announcements. 

 

Commissioner on January 29, 2018 and was sworn in as Commissioner on June 

19, 2018, after he had issued the April 2018 Amplification. Dr. Lamont Repollet, 

DEPARTMENT OF EDUCATION, 

https://www.nj.gov/education/about/commissioner/repolletbio.shtml. 
23 A-3342-16T1

Commissioner Repollet endorsed RBCS's use of a weighted lottery as a 

tool to promote enrollment of economically disadvantaged students. The 

weighted lottery, which because effective at RBCS in 2017, "increases the odds 

a student identified as part of a specific educationally disadvantaged class . . . 

will gain a seat at RBCS." Thus, according to the Commissioner, "the ultimate 

purpose of the weighted lottery is to ensure that RBCS's enrollment represents 

a cross-section of the community's school-age population." Citing a 

certification from RBCS's principal included with RBCS's letter submission, the 

Commissioner noted that, in the first year of the weighted lottery, "the number 

of Hispanic students enrolled [per a] sibling preference increased 26 percent and 

the number of white students enrolled with a sibling preference decreased 11 

percent."7 Commissioner Repollet recognized that RBCS maintains a policy in 

which siblings of current RBCS students are automatically granted a seat in 

RBCS, and that, in the event the number of siblings applying for such seats 

exceeds the available seats, the sibling student is placed on a waitlist and granted 

enrollment through a lottery system. However, like Commissioner Harrington, 

 

7

 Of the fifty-nine students admitted in 2016-2017, it is not clear how many of 

those students were in prekindergarten, and how many were older students who 

had been enrolled through sibling preference, but before the implementation of 

the weighted lottery.
24 A-3342-16T1

Commissioner Repollet found no reason to discontinue the sibling preference 

policy, explaining that the weighted lottery will trend in a "direction that better 

reflects the demographics of school-aged population in the community . . . . 

[And] [i]t is anticipated that this trend will continue in coming years as 

[economically disadvantaged students], and siblings thereof, obtain seats at 

RBCS. (Emphasis added). 

Although declining to take any immediate remedial action, Commissioner 

Repollet did caution in his decision that the DOE "will continue to monitor 

RBCS's demographics and will consider revisiting both the weighted lottery and 

sibling preference if the trend does not continue." 

The Coalition thereafter expanded its appeal to include Commissioner 

Repollet's amplification. 

III.

A.

Our governing standards of review are well established. In general, 

reviewing courts "need to respect agency action taken pursuant to authority 

delegated by the Legislature." In re Proposed Quest Acad. Charter Sch. of 

Montclair Founders Grp., 216 N.J. 370, 385 (2013) ("Quest Academy"). 
25 A-3342-16T1

Consequently, subject to the governing law, an "appellate court may [only] 

reverse an agency decision if it is arbitrary, capricious, or unreasonable." Ibid. 

As we recently observed in Team Academy, our role in reviewing an 

agency action is generally restricted to three inquiries:

(1) whether the agency's action violates express or 

implied legislative policies, that is, did the agency 

follow the law; (2) whether the record contains 

substantial evidence to support the findings on which 

the agency based its action; and (3) whether in applying 

the legislative policies to the facts, the agency clearly 

erred in reaching a conclusion that could not reasonably 

have been made on a showing of the relevant factors.

[Team Academy, 459 N.J. Super. 139 (quoting Quest 

Academy, 216 N.J. at 385-86).] 

This limited scope of review particularly applies to the context of a DOE 

Commissioner's decision on a charter-school renewal application because the 

Commissioner is "acting in his [or her] legislative capacity and not quasijudicial capacity" when he or she is reviewing such an application. Red Bank 

Charter, 367 N.J. Super. at 475. As we stated in Red Bank Charter, "[t]he 

Commissioner is merely applying his [or her] education expertise to the 

collected data, including the documents, statistics, site visit, and comprehensive 

review, to determine whether the charter school should be renewed . . . . It 
26 A-3342-16T1

remains essentially an investigatory proceeding without the need of adversarial 

procedural trappings." Id. at 475-76. 

Because the Commissioner is acting in a quasi-legislative, and not quasijudicial capacity in this context, id. at 476, "he [or she] need not provide the 

kind of formalized findings and conclusions necessary in the traditional 

contested case." Ibid. (quoting In re Grant of Charter Sch. Application of 

Englewood on the Palisades Charter Sch., 320 N.J. Super. 174, 217 (App. Div. 

1999)). That is because when reviewing "quasi-legislative decisions, [reviewing 

courts generally] do not seek to determine whether sufficient credible evidence 

is present in the record, but instead consider whether the decision is arbitrary, 

capricious or unreasonable." Ibid. The agency's "reasons for the decision need 

not be detailed or formalized, but must [at least] be discernible from the record." 

Ibid. (citing Bd. of Educ. of E. Windsor Reg'l Bd. of Educ. v. State Bd. of 

Educ., 172 N.J. Super. 547, 552-53 (App. Div. 1980)). 

That said, the normal standard of appellate review for arbitrariness 

nonetheless "subsumes the need to find sufficient support in the record to sustain 

the decision reached by the [DOE] Commissioner." Quest Academy, 216 N.J. 

at 386. "[A] failure to consider all the evidence in a record would perforce lead 

to arbitrary decision making." Ibid. (citing Close v. Kordulak Bros., 44 N.J. 
27 A-3342-16T1

589, 599 (1965) (noting "the proofs as a whole" must be considered)). In the 

same vein, a Commissioner's decision that is "based on a complete 

misperception of the facts submitted in a record would render the agency's 

conclusion unreasonable." Id. at 387 (citing Clowes v. Terminix Int'l, Inc., 109 

N.J. 575, 588-89 (1988) (recognizing that an appellate court should intervene 

when agency's "finding is clearly a mistaken one")). 

Lastly, we review de novo on appeal pure questions of law. Manalapan 

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

B.

With these principles in mind, we turn to specific issues that have been 

presented to us.

1. Appellants' Standing and Mootness Issues

RBCS and the Commissioner contend the Coalition lacks standing to 

pursue its claims on this appeal, and that consequently there is no need for this 

court to address the substance of those claims. We disagree.

Respondents hinge their lack-of-standing argument largely upon N.J.S.A. 

18A:36A-4(d), a provision within the CSPA stating that "A local board of 

education or a charter school applicant may appeal the decision of the 

[C]ommissioner [concerning a charter school application] to the Appellate 
28 A-3342-16T1

Division of the Superior Court." Respondents maintain this facet of the statute 

precludes any parties, other than a local public school district or a charter school 

applicant, from obtaining appellate review of a Commissioner's decision to 

grant, renew, or deny a charter, or the terms of such grants. 

As we have noted, the Red Bank Public School District, which filed 

opposition to RBCS's renewal administratively with the DOE,8 did not pursue 

that opposition to the next level through an appeal to this court. Because no 

such appeal was filed by the school district, respondents urge that we refuse to 

consider the Coalition's own prayers for relief. 

In a related procedural argument not joined by the Commissioner, RBCS 

further contends we should dismiss the appeal because the Coalition is not 

seeking to terminate or suspend RBCS's charter, but instead challenges certain 

aspects of the charter's terms of renewal. Hence, according to RBCS, "there is 

no controversy about the continuing status of RBCS's charter."

"Standing 'refers to [a litigant's] ability or entitlement to maintain an 

action before the court.'" In re Adoption of Baby T, 160 N.J. 332, 340 (1999)

(quoting N.J. Citizen Action v. Riveria Motel Corp., 296 N.J. Super. 402, 409 

 

8

 We have not been supplied on appeal with a copy of the District's opposition 

submitted to the DOE, but that document is listed in the Statement of Items 

Comprising the Record.
29 A-3342-16T1

(App. Div. 1997)). Under this state's general principles of standing, a party 

"must present a sufficient stake in the outcome of the litigation, a real 

adverseness with respect to the subject matter, and a substantial likelihood that 

the party will suffer harm in the event of an unfavorable decision." In re Camden 

Cty., 170 N.J. 439, 449 (2002). See also In re Grant of Charter to Merit 

Preparatory Charter Sch. of Newark, 435 N.J. Super. 273, 279 (App. Div. 2014) 

(similarly applying these standing factors in a charter school case).

Our courts in this State generally take "a liberal approach to standing to 

seek review of administrative actions." In re Camden Cty., 170 N.J. at 448. 

"[W]hen an issue involves a 'great public interest, any slight additional private 

interest will be sufficient to afford standing.'" Merit Charter, 435 N.J. Super. at 

279 (quoting Salorio v. Glaser, 82 N.J. 482, 491 (1980)). "[I]t takes but slight 

private interest, added to and harmonizing with the public interest[,] to support 

standing to sue." People for Open Gov't v. Roberts, 397 N.J. Super. 502, 510 

(App. Div. 2008) (quotation omitted). 

This court very recently considered these standing principles in Team 

Academy. In doing so, we declined to construe N.J.S.A. 18A:36-4(d) as an 

immutable barrier for public interest organizations to seek appellate review of a 

Commissioner's decisions concerning charter schools.
30 A-3342-16T1

Specifically, in Team Academy we recognized that the petitioner, a 

nonprofit law center litigating on behalf of Abbott9schoolchildren, had standing 

to challenge the Commissioner's decision to approve the expansion of several 

Newark charter schools. Id. at 125-26. See also In re Ass'n of Trial Lawyers of 

Am., 228 N.J. Super. 180, 185 (App. Div. 1988) ("The standing of nonprofit 

associations to litigate in varying contexts has historically been upheld in New 

Jersey."). As we explained in Team Academy, "[n]onprofit organizations have 

representative standing to pursue claims on behalf of their members that are of 

'common interest' and could not more appropriately be pursued by individual 

members." Team Academy, 459 N.J. Super. at 125-26 (citing Crescent Park 

Tenants Ass'n, 58 N.J. 98, 109 (1971)). 

As we reasoned in Team Academy:

Given our State's goal of providing a thorough 

and efficient education to all public school students, 

[the nonprofit law center's] standing seems clear. That 

the statute [N.J.S.A. 18A:36-4(d)] does not explicitly 

allow for organizations such as [the nonprofit law 

center] to appeal the Commissioner's decisions is 

inconsequential. The unfortunate reality is that, despite 

systemic improvements, public school children in 

Abbott districts continue to need representation in order 

to ensure their constitutional right to a thorough and 

efficient education is enforced. At no time has the 

overall statutory scheme regarding education expressly 

 

9

 Abbott v. Burke, 119 N.J. 287 (1990).
31 A-3342-16T1

granted standing to entities such as [the nonprofit law 

center], yet [the center] has over many years 

successfully litigated on behalf of New Jersey's school 

children. To coin a phrase, if not [the nonprofit law 

center], then who?

The issues raised in this appeal, notably the effect 

of a substantial increase in charter school enrollment on 

traditional schools in a former Abbott school district, 

are of "great public interest[.]" Merit Preparatory, 435 

N.J. Super. at 279 (quoting Salorio, 82 N.J. at 491). 

Thus, even if [the nonprofit law center] had 

demonstrated only a "slight additional private interest," 

it has standing. 

[Id. at 126-127 (emphasis added).]

In supplemental briefs filed in this case at our invitation, both RBCS and 

the Commissioner attempt to distinguish the situation in Team Academy from 

the present matter. They contend the Coalition fundamentally differs from the 

appellant in Team Academy – the Education Law Center – because its two 

constituent organizations lack a sufficient school-centered mission. Among 

other things, respondents point out to us that the Latino Coalition is immersed 

in a variety of community and cultural activities that do not directly concern 

public education. Meanwhile, Fair Schools Red Bank is characterized by RBCS 

as an organization whose overall mission is to have RBCS's charter revoked and 

the school eliminated, although that particular relief is not sought on this appeal. 

Respondents further attempt to distinguish Team Academy because the public 
32 A-3342-16T1

schools in the City of Newark are State-operated, and therefore the voice of a 

local public school board was absent from the litigation. 

We are satisfied the Coalition has standing to pursue the present appeal. 

The Coalition's members have a sufficient stake in the terms of the charter 

school's renewal, and the ongoing impact of the terms of that renewal and the 

school's enrollment practices on school-aged children who live in Red Bank, 

particularly Latino children. As described by the Coalition, it is advocating in 

this case the interests of "public school students and their families who are 

harmed by the Commissioner's decision, which has [allegedly] allowed the 

perpetration and exacerbation of segregation in Red Bank schools." That is an 

appropriate – indeed, more than "slight" – interest to advocate in a charter school 

renewal context, and one closely tied to the CSPA. People for Open Gov't, 397 

N.J. Super. at 510 (noting the standard of a "slight" private interest, coupled 

with the public interest). The Coalition has real adverseness to the positions of 

respondents. It has articulated constitutionally-based and statutorily-based 

potential harms that could ensue if the Commissioner's decision is not altered.

We recognize that the Coalition does not have the long pedigree of the 

Education Law Center in litigating public school issues in New Jersey, and that 

the Coalition's activities are not exclusively focused on educational matters. 
33 A-3342-16T1

Even so, the Coalition, which is represented by co-counsel from the American 

Civil Liberties Union and a law firm's public interest fellowship, has more than 

ample credentials to advocate the serious issues of alleged segregation it has 

presented concerning this charter school's renewal. 

In addition, the absence of the Red Bank Public School District from this 

appeal does not nullify the Coalition's standing. The District opposed RBCS's 

charter renewal before the DOE. There is no reason to believe the District's 

views concerning the issues before us on appeal diverge from those of the 

Coalition, except perhaps the District may favor more drastic remedies.

Further, we reject RBCS's contention the appeal is moot. An issue has 

become moot "when the decision sought in a matter, when rendered, can have 

no practical effect on the existing controversy." N.Y. Susquehanna & W. Ry. 

Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 

1984) (citation omitted), aff'd, 204 N.J. Super. 630 (App. Div. 1985). The 

conditions of RBCS's renewal – particularly those concerning the continued 

sibling preference policy, the effectiveness of the weighted lottery and the 

school's outreach to the Latino population, and the other discrete issues posed 

on appeal – remain viable and unresolved concerns. The Commissioners 

themselves have stated in their amplifications that the DOE would be continuing 
34 A-3342-16T1

to monitor these concerns. The controversy is plainly not moot, and indeed 

persists. 

2. Sibling Preference and the Newly-Instituted Weighted Lottery

A main remedial objective of the Coalition, asserted both at the agency 

level and again on this appeal, is to have the Commissioner suspend RBCS's 

sibling preference policy in the admissions process. The Coalition argues the 

sibling preference policy historically has been a significant factor in causing a 

much higher percentage of white students to be enrolled at RBCS, as compared 

with the local school-age population. In simple terms, the Coalition argues the 

sibling preference policy enables applicants who are younger siblings of white 

students who are already enrolled at RBCS to occupy seats that might be more 

demographically diverse if they were made open to all applicants, including 

Latino children.

Sibling preference is statutorily permitted. N.J.S.A. 18A:36A-8(c) ("A 

charter school may give enrollment priority to a sibling of a student enrolled in 

the charter school."). However, as this court cautioned in the prior appeal 

involving RBCS, "the statutory sibling preference is not mandatory and in 

particular circumstances, might not be appropriate, especially if its operation 
35 A-3342-16T1

exacerbates existing racial/ethnic imbalance." Red Bank Charter, 367 N.J. 

Super. at 481-82. 

As respondents have rightly pointed out, sibling preference admission 

policies have numerous benefits. Among other things, parents with more than 

one child at the school can be relieved of the logistical burdens of having their 

children transported to different school locations. The siblings potentially may 

benefit academically by having another sibling at the charter school who has 

been taught the same or similar curriculum, by perhaps the same teachers. The 

siblings may also benefit socially by having the opportunity to interact with 

friends of their siblings' own friends and classmates. The siblings might also 

participate together in extracurricular or recreational activities.

These benefits can be offset, however, if a sibling preference policy is 

materially thwarting efforts to achieve a racial/ethnic enrollment balance that is 

more representative of the local school-age population. As we have already 

noted, there was a sharp increase in the under-eighteen Latino population in Red 

Bank between 2000 and 2010. During that decade, the Latino under-eighteen 

population grew from 542 to 1,307, or 141.1%. Consistent with that pattern, the 

Latino enrollment at the Red Bank public school has grown from 18.9% in 1998 

to 89.3% in 2017. Meanwhile, the Latino enrollment at RBCS has risen at a 
36 A-3342-16T1

comparatively slower pace, from 5.1% in 1998 to 45.2% in 2017. As we have 

already noted, the 2017 data indicates the percentages of whites (44.92%) and 

Latinos (45.2%) attending RBCS are roughly equal, as compared with, say, 2000 

when white enrollment was 51.3%, about five times the Latino enrollment of 

10.0%. 

The key causal question on this issue is to what extent the school's sibling 

preference policy is unduly impeding further Latino enrollment and 

diversification at RBCS. Both Commissioner Harrington and her successor 

Commissioner Repollet considered that precise question, and concluded that the 

sibling preference policy should not be suspended at this time. 

As Commissioner Harrington noted in her amplification, "RBCS's most 

recent data does not evidence that ending sibling preference would bring about 

the desired change." She recognized in this regard that in April 2016, RBCS, 

with the approval of the DOE, became the second charter school in this State to 

implement a weighted lottery that favors economically disadvantaged students, 

which would include many students from the Latino community. Through that 

weighted lottery, economically disadvantaged students enjoy a 3:2 preference in 
37 A-3342-16T1

competing for any open slots at RBCS, including situations where multiple 

applicants have an older sibling at the school.10

As Commissioner Harrington underscored, the percentage of Latino 

children in the incoming prekindergarten class at RBCS increased from 27% in 

2014-15 to 60% in 2015-16. Given this sharp increase, Commissioner 

Harrington found that, even with the policy of sibling preference continued, "the 

most recently admitted cohort of students is beginning to mirror the racial/ethnic 

composition of the community's school-age population." In light of this, 

Commission Harrington specifically "determined that it was unnecessary, and 

indeed, could be detrimental, to end sibling preference." That said, 

Commissioner Harrington committed in her August 2017 amplification that the 

DOE "will continue to monitor the demographic of the prekindergarten class and 

will consider revisiting the sibling preference issue if the trend does not 

continue." 

Commissioner Repollet adopted and reinforced these conclusions in his 

own amplification in April 2018. Among other things, he noted that in the first 

year of implementation of the weighted lottery, the number of Hispanic students 

 

10

 The record indicates the waiting list for admission at RBCS is substantial. 

For the 2013-14 school year, it was 143 students.
38 A-3342-16T1

enrolled with a sibling preference increased twenty-six percent and the number 

of white students enrolled with sibling preference decreased eleven percent. 

This newer data suggested to Commissioner Repollet that "as a result of the 

weighted lottery in favor of economically disadvantaged students, enrollment at 

RBCS is trending in a direction that better reflects the demographics of the 

school-age population in the community." (Emphasis added). Commissioner 

Repollet also found that "[i]t is anticipated that this trend will continue in 

coming years as students with documented economically disadvantaged 

statuses, and siblings thereof, obtain seats at RBCS." (Emphasis added). Like 

his predecessor, Commissioner Repollet committed that the DOE "will continue 

to monitor RBCS's demographics and will consider revisiting both the weighted 

lottery and the sibling preference if the trend does not continue." (Emphasis 

added). 

The record furnished to us on this appeal does not demonstrate that either 

Commissioner acted arbitrarily or capriciously, or violated constitutional norms, 

by declining to halt sibling preference at the school. Indeed, the actual annual 

impact of sibling preference on the enrollment numbers appears to be slight. 

The record reflects that only about twenty of the 200 enrollment slots at 

the school open up each year, through the graduation of the eighth grade class 
39 A-3342-16T1

and miscellaneous departures. The prekindergarten class – whether it be fifteen 

or twenty – is realistically the only class level that can significantly affect 

enrollment percentages, since no one is advocating that presently-enrolled 

RBCS students be removed from the school. See also N.J.S.A. 18A:36A-8(b) 

(prohibiting such a measure). 

According to the certification of the school's principal, in the 2017-18 

school year, fifty-nine Latino students and fifty-eight white students were 

enrolled with a sibling preference, indicating that Latino students at the school 

are equally likely to have another sibling at the school as a white student. The 

record does not tell us exactly how many students in the most recent 

prekindergarten class, which is sixty percent Latino, received a sibling 

preference. 

For the sake of discussion, if, hypothetically, the prekindergarten class 

consists of twenty students, then about twelve of them probably are Latino, and 

about seven or eight probably are white. According to the school-wide data and 

the information from the "school lead," about half of those prekindergarten 

students would have an older sibling at the school. If sibling preference were 

eliminated, one might expect that about half of the approximately twelve Latino 

children (i.e., six children) would possibly lose their seats in the class, while 
40 A-3342-16T1

about half of the approximately seven or eight white prekindergarten children 

(i.e., three or four) would lose their spots. At most, the Latino composition of 

the prekindergarten class could only increase from twelve students to twenty, a 

maximum net gain of eight students. When compared with the total enrollment 

in the school of 200, such a maximum gain of eight Latinos (i.e., four percent) 

in a particular year is limited at best. 

The Commissioners did not misapply their discretion in declining to cease 

the sibling preference, given this minor effect on the overall enrollment 

demographic. Moreover, a cessation of sibling enrollment could easily have 

detrimental impacts on the Latino applicants seeking to join their siblings at the 

school, an important cohort that the Coalition does not represent. 

Lastly on this point, we accept as sincere the express committal of the 

successive Commissioners to monitor these trends closely, and to step in and 

make adjustments as may be needed. The annual assessment process prescribed 

by N.J.S.A. 18A:36A-16(a) and N.J.A.C. 6A:11-2.2(c) and mandates such 

review, including any segregative effects of enrollment practices.

For these many reasons, we affirm the respective Commissioners'

rejection of the Coalition's request to suspend the sibling preference policy. The 

rejection is amply supported by the record and cogent reasons. Moreover, the 
41 A-3342-16T1

DOE has the power to take remedial interim action if the positive trend towards 

diversity materially ebbs.

3. Omission of Express Findings Concerning Alleged Intentional 

Discrimination and Shortcomings in Advertising

The Coalition additionally maintains that the Commissioners' decisions 

critically omit express findings that address the so-called "whisper campaign" 

to encourage white applicants, and the claimed shortcomings of RBCS's efforts 

to advertise the application process to parents in the local Latino community 

with school-aged children. The Coalition asserts in this regard that the 

Commissioners have a constitutional and statutory obligation to make express 

findings about these issues, and to state whether or not there is sufficient

evidence of intentional discriminatory practices. 

To cure these alleged omissions, the Coalition seeks a further remand to 

the DOE to afford the Commissioner another chance to address these issues with 

explicit findings. Although in its brief on appeal, the Coalition requested a 

remand for an "evidentiary" hearing, at oral argument on the appeal its counsel 

clarified that it is not seeking a formal administrative hearing in the OAL, but 

instead an unspecified less-formal process for the Commissioner to delve more 

deeply into these factual allegations and perhaps to speak with persons having 

information about the subjects.
42 A-3342-16T1

To be sure, the record does contain a considerable amount of hearsay in 

the form of unsworn parent letters, as well as a quotation from a Board member 

uttered several years ago that may have limited evidential value. On the other 

hand, the Coalition acknowledged at oral argument on the appeal that it has no 

evidence that the lottery process has been manipulated in a corrupt fashion, or

that Latino students have been denied admission through any such corruption. 

We agree with the Coalition that some of the factual allegations it has 

presented may be indicative of problems with the timing and content of the 

school's advertising and recruitment process, and may warrant a closer look by 

the DOE. Among other things, the amplifications did not resolve whether timely 

mailings went to the full boundaries of the school district, and whether Spanishlanguage signs advertising the application deadline had been adequately 

translated to match those in English. 

It is fairly implicit in the two amplifications that neither Commissioner 

was persuaded from the documentary record that intentionally discriminatory 

practices are presently occurring in RBCS's enrollment process. Even so, we 

remand this appeal to the Commissioner one more time, on an expedited basis, 

to consider the Coalition's specific factual allegations and afford the 

Commissioner the opportunity to issue a third amplification. The Commissioner 
43 A-3342-16T1

is not required to conduct or request an evidentiary hearing, as we are not yet 

convinced (without deciding the legal question) that, under present case law, 

such an evidentiary hearing can be compelled in the context of a quasilegislative charter renewal. Quest Academy, 216 N.J. at 384-85 (explaining the 

quasi-legislative nature of such decisions). We recognize that in 2004 we 

remanded the case for a hearing, and that the then-DOE Commissioner 

apparently referred the dispute thereafter to the OAL, where the matter settled 

three years later. Red Bank Charter, 367 N.J. Super. at 486. We are uncertain, 

and need not reach here, whether the Supreme Court's more recent opinion in 

Quest Academy, 216 N.J. at 383-85, precludes a court-ordered evidentiary 

hearing. 

In any event, given the fact that the first three years of this school's fiveyear charter have already passed, we are not convinced of the practicality and 

wisdom of conducting further development of the existing record concerning the 

2017-2022 charter at a time not long before RBCS's anticipated charter renewal 

application is filed in the fall of 2021. We instead request the Commissioner to 

make explicit findings based solely on the existing administrative record, 11 and 

 

11

 The record should include all of the items listed within the Statement of Items. 

Within ten days, counsel shall furnish the Commissioner with courtesy copies 
44 A-3342-16T1

to communicate those findings in a third written amplification by no later than 

December 15, 2019. Following that third amplification, any aggrieved party 

may file a new appeal from that amplified determination. We do not retain 

jurisdiction, and the present appeal is deemed concluded.12

Our disposition is without prejudice, however, to two other important 

avenues for potential reform and remedial action.

First, as respondents acknowledge, the Coalition or "any individual or 

group" may bring a complaint pursuant to N.J.S.A. 18A:36A-15 alleging 

violations of the CSPA. Such a complaint initially shall be presented to the 

RBCS Board of Trustees. Ibid. If the complainant believes that the trustees 

have not adequately addressed the complaint, the statute requires the 

Commissioner to "investigate and respond to the complaint." Ibid. Although 

we need not resolve the question here, respondents' counsel at oral argument 

appeared to acknowledge that, if a "contested case" under the Administrative 

Procedure Act, N.J.S.A. 52:14B-9(a), is generated by such a grievance due to 

 

of their appellate briefs and appendices, which should obviate the need for any 

other submissions and help expedite the remand.

12

 We need not address in this appeal concerning RBCS's charter renewal 

appellants' generic criticisms of the State's standardized testing methods. Those 

issues are more appropriately raised in a different context with an appropriate 

record.
45 A-3342-16T1

the existence of factual disputes, the Commissioner may refer such a dispute to 

the OAL. The results of such an OAL hearing may aid the DOE in its ongoing 

oversight. 

A second important avenue to underscore is that these dynamic factual 

issues may be considered anew in the forthcoming charter renewal process. 

Under N.J.A.C. 6A:11-2.3(b), RBCS must submit its charter renewal application 

to the DOE by October 15, 2021. In the meantime, more incoming classes at 

RBCS will be selected and more data generated. That additional data may well 

shed further light on whether the weighted lottery is working in a desirable 

fashion, and whether the school's most recent advertising measures to the 

community are timely and effective.

Affirmed in part and remanded in part. We do not retain jurisdiction.