Every few years, New Jersey’s courts have taken up the ever-controversial topic of charter schools, largely deferring to the executive branch as to how it meets its statutory and constitutional obligations in overseeing the privately run schools.
This is one of those years, as the state Supreme Court was back on the topic again Monday, hearing oral arguments in a challenge over the unprecedented recent expansion of charter school enrollment in Newark.
And in at least some of the questioning from the bench, the justices appeared to lean again toward deferring to the state in its authority.
But in a case with potentially statewide implications, the hearing also brought a lively back-and-forth between justices and lawyers over the issue of school segregation in not only charters but also district schools.
The case was brought specifically over the former Christie administration’s approval in 2016 to allow seven existing charter schools in Newark to significantly expand in the city, opening the gates to where charter enrollment is now close to 20,000 students, or roughly 40% of all Newark children.
High-performing charter schools
Adding to the stakes, three of the expanding charters were among the cities’ largest and highest performing: TEAM Academy, North Star Academy and Robert Treat Academy.
The challenge was brought by the Education Law Center, the Newark-based advocacy group that has led the landmark Abbott v. Burke litigation before the same court, ensuring billions in additional state investment in Newark and 30 other urban school systems across the state.
The ELC maintained that the state had not considered the impact of the charter expansions on the district’s finances, a longtime argument that sees districts paying 90% of the costs per pupil for every charter school student enrolled.
READ: Court upholds state’s charter application process
READ: Is Christie shifting to charter school expansions?
But much of the ELC’s argument is that the expansion also has the effect of further segregating schools in a state notorious for its demographic imbalance, not just by race but also by disability and other special needs.
A state appellate court in 2019 sided with the charters and the state, saying the latter lived up to its responsibilities in reviewing the applications. The ELC appealed to the Supreme Court, and the justices agreed to hear it.
The issue of segregation
The nearly two-hour hearing on Monday — held by webcast with the robed justices each speaking from his or her chamber — focused on a wide range of issues raised by the ELC but appeared to pick up the pace when the issue of segregation was invoked.
It’s no small issue in this state, with the court’s long history of desegregation rulings of all types and more of them surely to come. A sweeping case challenging the patterns of school segregation throughout New Jersey is now in the early stages in state Superior Court, itself going through the long process of hearings and discovery.
David Sciarra, executive director of the ELC, maintained that the charter expansions only worsened the segregative patterns in Newark, with each of the charters failing to match the demographic breakdowns of the district as a whole.
In the most often cited example, the TEAM Academy schools reported that 89% of its students were Black, compared to just over 50% districtwide. Similar numbers existed in North Star, while Robert Treat has enrolled a disproportionate number of Hispanic students.
Questioning state’s responsibility?
The justices probed the implications, with Associate Justice Barry Albin pressing whether the state should be responsible for charter schools to meet the districtwide breakdowns or those of the neighborhoods they serve.
“Newark itself is segregated,” Albin said. “It has Black neighborhoods and Hispanic neighborhoods that don’t reflect the districtwide breakdowns.”
Associate Justice Anne Patterson asked whether Sciarra is proposing that Black students should be removed from those charter schools to achieve a better balance. “Are you presenting the 89% [Black enrollment at TEAM] as a problem to be solved?” she asked Sciarra.
The ELC’s chief lawyer said the question was whether the state even considered these imbalances in making its decisions. He said the remedy is not to relocate students in any way, but to address the disparities moving forward.
The students “don’t go anywhere,” Sciarra said. “But what prevails is the commissioner evaluating these issues and using his power to address them.”
“The state needs to put its foot down,” he continued, “and make sure the process is reined in and there are standards.”
Timing may play a part in the eventual decision. At the time of the state’s decision in 2016, Newark public schools had been under state operation for more than two decades, a status that ended in 2018 when local control was regained.
And the state Department of Education is a very different body under Gov. Phil Murphy than it was under Christie, at least when it comes to charter schools. While former Gov. Chris Christie famously pressed for charter expansion, Murphy has slowed that growth.
In Murphy’s three years in office, the department approved the renewal of all but one applicable charter school, including several of those in this legal challenge. But only half of the applications for expansion were approved, and among those rejected this December were TEAM and North Star.
READ: Where does the Murphy administration stand on charter schools?