NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0019-12T2

IN THE MATTER OF THE GRANT

OF A CHARTER TO THE MERIT

PREPARATORY CHARTER SCHOOL

OF NEWARK AND IN THE MATTER 

OF THE GRANT OF A CHARTER TO 

THE NEWARK PREPARATORY

CHARTER SCHOOL.

___________________________________

Argued January 27, 2014 – Decided

Before Judges Yannotti, Ashrafi and Leone.

On appeal from the Commissioner of the State 

of New Jersey, Department of Education.

Richard E. Shapiro argued the cause for

appellant New Jersey Education Association.

Geoffrey N. Stark, Deputy Attorney General,

argued the cause for respondent New Jersey

Commissioner of Education (John H. Hoffman,

Acting Attorney General, attorney; Melissa

H. Raksa, Assistant Attorney General, of

counsel; Mr. Stark, on the brief).

Devora W. Allon, (Kirkland & Ellis LLP) 

of the New York bar, admitted pro hac vice, 

argued the cause for respondent Newark 

Preparatory Charter School (Lite DePalma 

Greenberg, LLC, Lay P. Lefkowitz (Kirkland & 

Ellis LLP) of the New York bar, admitted pro 

hac vice, and Ms. Allon, attorneys; Michael 

E. Patunas, Jeffrey A. Shooman, Samara L. 

Penn, Ms. Allon, and Mr. Lefkowitz, on the 

brief).

APPROVED FOR PUBLICATION

April 9, 2014

APPELLATE DIVISION

April 9, 2014
2 A-0019-12T2

Robert P. Avolio argued the cause for

respondent Merit Preparatory Charter

School of Newark (Avolio & Hanlon, P.C.,

attorneys; Mr. Avolio, of counsel and on

the brief; Amie C. Kalac, on the brief).

Gibbons P.C., attorneys for amicus curiae

New Jersey PublicSchoolOptions.org 

(Lawrence S. Lustberg and Jillian T. Stein,

on the brief).

The opinion of the court was delivered by 

ASHRAFI, J.A.D. 

Appellant the New Jersey Education Association ("NJEA") 

appeals from the grant of charters by the New Jersey 

Commissioner of Education to the Merit Preparatory Charter 

School of Newark and the Newark Preparatory Charter School. 

NJEA expresses concern for the diversion of public funds and 

resources from traditional public schools, and it contends the 

Legislature authorized charters only for traditional "brick-andmortar" schools, not ones that use online teaching methodology. 

Merit Prep and Newark Prep, however, are not online internet 

schools. They use a "blended" teaching methodology that 

combines in-person, face-to-face teaching and online instruction 

by means of internet materials. They teach their students in 

school buildings during a traditional school day and under the 

supervision of a teaching staff. We affirm the Commissioner's 

decisions.
3 A-0019-12T2

The Charter School Program Act of 1995 authorizes the 

establishment of charter schools in New Jersey. N.J.S.A.

18A:36A-1 to -18. "A charter school [is] a public school 

operated under a charter granted by the commissioner, which is 

operated independently of a local board of education and is 

managed by a board of trustees." N.J.S.A. 18A:36A-3(a). 

Charter schools are funded by taxes collected from the public

that would otherwise fund traditional public education. See

N.J.S.A. 18A:36A-12. 

The application requirements and review process for schools 

seeking charters are governed by various provisions of the 

Charter School Act and implementing regulations. See, e.g., 

N.J.S.A. 18A:36A-4, -4.1, -5; N.J.A.C. 6A:11-2.1. The statutes 

and regulations do not contain specific directives on how the 

Commissioner must evaluate charter applications, but the Act 

includes findings and declarations reciting the Legislature's

general goals and objectives in authorizing charter schools. 

N.J.S.A. 18A:36A-2. The Legislature intended to provide "a 

mechanism for the implementation of a variety of educational 

approaches which may not be available in the traditional public 

school classroom," and to "encourage the use of different and 

innovative learning methods." Ibid. The Act empowers the 
4 A-0019-12T2

Commissioner with "final authority to grant or reject a charter 

application." N.J.S.A. 18A:36A-4(c). 

Merit Prep and Newark Prep applied for charters to 

establish schools that use a blended model of teaching and 

learning. The applications of both schools proposed teaching 

the New Jersey Core Curriculum Content Standards ("NJCCCS" or 

"core curriculum") partly by online instruction. Both schools

would require student and teacher attendance in a physical 

building, and the online teaching would be facilitated by inperson instructors. 

Merit Prep described its methodology as utilizing computers 

in the classroom as "a virtual textbook/workbook . . . used to 

determine student progress in real time." "Each of the nine 

[core curriculum] content standards [would] be taught by a 

teacher and heavily reinforced with online exercises and 

assessments." Approximately half the eight-hour school day 

would be conducted in face-to-face instruction with certified 

teachers. 

Newark Prep's application stated that "[e]very student will 

receive a fully differentiated educational experience supported 

by self-paced learning." It described use of an innovative 

blended learning methodology that would combine online, projectbased, and experiential learning. "Master Teachers" would 
5 A-0019-12T2

monitor specific core curriculum subject areas and track each 

student's self-paced progress and problems in the use of the 

online programs. Teachers and tutors would "pull out students 

for extra attention as individuals and/or in groups" and conduct

"face time sessions." Newark Prep also planned for teacher-led 

instruction in small groups of students, fewer than fifteen at a 

time. 

Thus, Merit Prep and Newark Prep did not propose "virtual" 

schools, where all teaching content would be online and 

attendance in a school building would not be required. 

NJEA and other groups objected to the granting of charters 

to the two schools on the ground that their online teaching 

method is not authorized by the Charter School Act. The 

Commissioner rejected their objections and granted the charters. 

NJEA asks us to reverse the Commissioner's decisions. We 

previously denied NJEA's application for a stay of the charters, 

and the two schools have been operating since the 2012-13 school 

year. 

The Commissioner argues that NJEA does not have standing to 

challenge his grant of the charters. He contends N.J.S.A.

18A:36A-4(d) limits the right to appeal his decision to grant or 

deny a charter only to the applicant and the local school board. 

See also N.J.A.C. 6A:11-2.5 ("An eligible applicant for a 
6 A-0019-12T2

charter school, a charter school, or a district board of 

education or State district superintendent of the district of 

residence of a charter school may file an appeal according to 

N.J.S.A. 18A:6-9.1."). The Commissioner contends the Act was 

not intended to create a private right of action by anyone who 

opposes the granting of a charter.

"Standing is a threshold requirement for justiciability" of 

a cause of action seeking a court's intervention and judgment. 

See Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 421 

(1991). In New Jersey, courts take "a liberal approach to 

standing to seek review of administrative actions." In re 

Camden Cnty., 170 N.J. 439, 448 (2002). A party has standing to 

challenge an administrative agency's decision when the party has 

"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." Id. at 449; accord In re 

Issuance of Access Conforming Lot Permit, 417 N.J. Super. 115, 

126 (App. Div. 2010). But when an issue involves a "great

public interest, any slight additional private interest will be 

sufficient to afford standing." Salorio v. Glaser, 82 N.J. 482, 

491 (internal quotation marks omitted), cert. denied, 449 U.S.

804, 101 S. Ct. 49, 66 L. Ed. 2d 7 (1980); see also People for 
7 A-0019-12T2

Open Gov't v. Roberts, 397 N.J. Super. 502, 510 (App. Div. 2008)

("[I]t takes but slight private interest, added to and 

harmonizing with the public interest to support standing to 

sue." (quoting Hudson Bergen Cnty. Retail Liquor Stores Ass'n v. 

Bd. of Comm'rs of Hoboken, 135 N.J.L. 502, 510 (E. & A. 1947))). 

Here, NJEA is a collective bargaining organization of 

teachers and other educators. It claims its members, as well as

their students, will be deprived of public funding for 

traditional public schools if online teaching methodology is 

funded by public tax dollars. NJEA alleges its members have an 

adverse private interest because approval of such charter 

schools will affect their employment. In another context, we 

have held that "an organization whose members are aggrieved and 

have interests that are sufficiently adverse has standing to 

challenge agency action on behalf of its members." N.J. Dental 

Ass'n v. Met. Life Ins. Co., 424 N.J. Super. 160, 167 (App. 

Div.), certif. denied, 210 N.J. 261 (2012). 

We are not convinced that the membership of NJEA will be 

adversely affected by the Commissioner's granting of charters to 

schools using a blended teaching methodology. Cf. Indep. Energy 

Producers of N.J. v. N.J. Dep't of Envtl. Prot. & Energy, 275 

N.J. Super. 46, 56 (App. Div.) (interest of the organization's 

members may be "too ethereal to justify judicial recognition and 
8 A-0019-12T2

acknowledgement"), certif. denied, 139 N.J. 187 (1994); In re 

Ass'n of Trial Lawyers of Am., 228 N.J. Super. 180, 181 (App. 

Div.) (trial lawyers' association lacked standing to challenge 

products liability statute on constitutional grounds), certif. 

denied, 113 N.J. 660 (1988). Nevertheless, this appeal raises a 

novel legal issue of whether the Commissioner may approve a 

charter school that employs blended teaching methodology using 

internet materials. The issue is of "substantial public 

interest." Falcone v. De Furia, 103 N.J. 219, 226 (1986). We 

conclude NJEA's membership has demonstrated a slight private 

interest that, together with the substantial public interest, 

affords it standing to pursue this appeal.

"[C]ourts have but a limited role to play in reviewing the 

action of other branches of government." In re Petition for 

Rulemaking, 117 N.J. 311, 325 (1989). We may reverse the 

Commissioner's decision to grant or deny a charter only if it is 

arbitrary, capricious, or unreasonable. In re Proposed Quest 

Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 

385-87 (2013). This deferential standard of judicial review is 

more fully explained as follows:

[a]lthough sometimes phrased in terms of a 

search for arbitrary or unreasonable agency 

action, the judicial role [in reviewing an 

agency action] is generally restricted to 

three inquiries: (1) whether the agency's 

action violates express or implied 
9 A-0019-12T2

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.

[Id. at 385-86 (alteration in original) 

(quoting Mazza v. Bd. of Trs., 143 N.J. 22, 

25 (1995)).]

We are not bound by an agency's interpretation of a statute 

or its determination of a legal issue, In re Taylor, 158 N.J.

644, 658 (1999), but we generally "give substantial deference to 

the interpretation an agency gives to a statute that the agency 

is charged with enforcing." Norfolk S. Ry. Co. v. Intermodal 

Props., LLC, 215 N.J. 142, 165 (2013) (quoting R & R Mktg., LLC 

v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). 

Here, NJEA argues that the granting of charters to Merit 

Prep and Newark Prep was arbitrary, capricious, and unreasonable 

because the Charter School Act does not give the Commissioner 

express or implied authority to approve online or blended 

teaching methodology. We disagree. 

While nothing in the Act allows or disallows any particular 

teaching methodology, the legislative goal was to permit "a 

variety of educational approaches which may not be available in 

the traditional public classroom." N.J.S.A. 18A:36A-2. Also,
10 A-0019-12T2

charter schools are to provide "choices . . . when selecting [a] 

learning environment," and the Act was intended to "encourage 

the use of different and innovative learning methods." Ibid. 

"In determining whether a particular administrative act enjoys 

statutory authorization, the reviewing court may look beyond the 

specific terms of the enabling act to the statutory policy 

sought to be achieved . . . ." N.J. Guild of Hearing Aid 

Dispensers v. Long, 75 N.J. 544, 562 (1978). By explicitly 

stating its goals and objectives, the Legislature established a 

policy by which it gave the Commissioner broad authority to 

grant charters to schools using a variety of educational 

methodology. 

We find no merit in NJEA's argument that the absence of an 

express reference to online teaching in the Act and its

legislative history suggests the Legislature would not permit 

that form of teaching. See In re Application of Virgo's, Inc., 

355 N.J. Super. 590, 595 (App. Div. 2002) (Although no specific 

statutory provision either empowered or precluded the action 

taken, "administrative agencies must be given broad authority to 

carry out their mandates.").

The Act does not make reference to any specific teaching 

method. If online teaching methods are prohibited because they 

are not expressly mentioned, then it follows that all novel 
11 A-0019-12T2

teaching methods not prescribed by the Act are prohibited. 

Adopting the NJEA's position would defeat the Legislature's 

stated purpose. N.J.S.A. 18A:36A-2; see Jersey Cent. Power & 

Light Co. v. Melcar Util. Co., 212 N.J. 576, 586-88 (2013)

(courts must interpret statutes consistently with the 

Legislature's purpose); In re Sussex Cnty. Mun. Utils. Auth., 

198 N.J. Super. 214, 217 (App. Div.) ("[L]egislative language 

must not, if reasonably avoidable, be found to be inoperative, 

superfluous or meaningless."), certif. denied, 101 N.J. 267 

(1985). 

The Legislature may not have contemplated the use of 

internet-based teaching when the Act was passed in 1995, but the 

Act cannot be read narrowly as only allowing methods that were 

in existence at its inception. Certainly, the Legislature did 

not intend to exclude advances in technology from charter school 

classrooms. It intended just the opposite.

Similarly, we are not persuaded by NJEA's argument that the 

Act does not expressly authorize the use of online methods to 

teach the core curriculum. While the regulations require 

evidence of a "[c]urriculum that is compliant with" the NJCCCS, 

N.J.A.C. 6A:11-2.2(a)(1)(iii), neither the Act nor the 

regulations specify any particular teaching method. 
12 A-0019-12T2

Nor do we read the Act as limiting the Commissioner's 

authority on the ground that the Legislature would have fixed a 

different funding formula for charter schools that use teaching 

methods unlike those of traditional "brick-and-mortar" schools. 

See N.J.S.A. 18A:36A-12. Merit Prep and Newark Prep are schools 

with a physical location where attendance is mandatory during 

the normal school day. The online aspect of teaching occurs in 

the school building under the supervision of teachers and staff. 

The primary distinction between them and traditional schools 

lies in the novel teaching methodology. The Act does not 

require the Legislature's re-evaluation of funding formulas

simply because the Commissioner authorized a charter school with 

novel teaching methodology. 

The Commissioner decided to grant charters to Merit Prep

and Newark Prep after reviewing the comprehensive applications 

they submitted. The applications explained how online teaching 

methods are designed to create a personalized, differentiated 

educational experience that incorporates self-paced learning 

with teacher interaction, a method that is not typically 

available in traditional public schools. The proposed teaching 

methods promote the Act's policy of enhancing innovative 

teaching methodology and student and parental choice. The 

Commissioner's decision was not contrary to his legislative 
13 A-0019-12T2

authority and is supported by substantial evidence in the 

record. It is not arbitrary, capricious, or unreasonable. 

Affirmed.