BOARD OF EDUCATION OF THE CITY OF HOBOKEN, HUDSON COUNTY VS. NEW JERSEY STATE DEPARTMENT OF EDUCATION,ET AL.(COMMISSIONER OF EDUCATION)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3690-14T3

BOARD OF EDUCATION OF THE
CITY OF HOBOKEN, HUDSON COUNTY,

Petitioner-Appellant,

v.

NEW JERSEY STATE DEPARTMENT OF
EDUCATION and BOARD OF TRUSTEES
OF THE HOBOKEN DUAL LANGUAGE
CHARTER SCHOOL,

Respondents-Respondents.

Argued May 2, 2017 – Decided June 29, 2017

Before Judges Reisner, Koblitz and Rothstadt.

On appeal from the Commissioner of Education.

Eric L. Harrison argued the cause for
appellant (Methfessel & Werbel, attorneys; Mr.
Harrison, of counsel and on the brief; Kegan
S. Andeskie, on the brief).

Viola S. Lordi argued the cause for respondent
Board of Trustees of Hoboken Dual Language
Charter School (Wilentz, Goldman & Spitzer,
attorneys; Ms. Lordi, of counsel and on the
brief; Gordon J. Golum and Maureen S. Binetti,
on the brief).

Donna S. Arons, Deputy Attorney General,
argued the cause for respondent Department of
Education (Christopher S. Porrino, Attorney
 General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Ms.
Arons and Frederick Wu, Deputy Attorneys
General, on the brief).

Avram D. Frey argued the cause for amicus
curiae American Civil Liberties Union of New
Jersey and Education Law Center (Gibbons,
P.C., Education Law Center, and American Civil
Liberties Union of New Jersey Foundation,
attorneys; Lawrence S. Lustberg, Mr. Frey,
David Sciarra, Elizabeth Athos, Edward Barocas
and Alexander Shalom, on the brief).

Paul P. Josephson argued the cause for amicus
curiae New Jersey Charter Schools Association
(Duane Morris LLP, attorneys; Mr. Josephson,
on the brief).

PER CURIAM

The Board of Education of the City of Hoboken, Hudson County

(Hoboken) appeals the Commissioner of Education's (Commissioner)

March 20, 2015 grant of the Hoboken Dual Language Charter School's

(HoLa) application to expand its grade-level offerings to seventh

and eighth grade. Hoboken claims that the Commissioner failed to

consider the charter school's alleged segregative and funding

impact on the district and improperly declined to hold a hearing,

conduct interviews, or gather more facts concerning the charter

school's policies. Because neither the methodology used by the

Commissioner nor his decision were arbitrary, capricious, or

unreasonable, we affirm.

On October 15, 2013, HoLa submitted a charter renewal and

expansion application to the Commissioner and Hoboken. The Hoboken

2 A-3690-14T3
Superintendent fully supported Hola's charter renewal, but

objected to its expansion. On March 5, 2014, Evo Popoff, the

Chief Innovation Officer at the Department of Education (the

Department), acting on the Commissioner's behalf, renewed HoLa's

charter for five years, through June 30, 2019. Popoff also

permitted the elementary school to add a seventh-grade class for

the 2016-2017 school year and an eighth-grade class for the 2018-

2019 school year.

Hoboken appealed, and after our remand to the Commissioner

upon application of the Department, and after the parties submitted

additional materials, the Commissioner again granted HoLa's

renewal and expansion application on March 20, 2015. We denied a

stay.

The City of Hoboken has a public school system for students

in grades kindergarten (K) through 12 consisting of four public

schools: Brandt, Calabro, Connors and Wallace. It also includes

three charter schools including HoLa, and four private, tuition-

based K-8 schools.

According to HoLa, the original intent of its founders was

to implement a dual-language program (Spanish and English) at

Hoboken's Connors school (the district's most segregated and

poorest school), but Hoboken rejected the plan. HoLa then applied

for and was granted a charter to operate a dual-language school

3 A-3690-14T3
beginning in September 2010, starting with grades K-2 and expanding

each year until HoLa encompassed grades K-6. HoLa is located in

a low-income section of Hoboken, close to the Connors school.

Students are admitted to HoLa through a lottery with no

interviews. No demographic data is collected until students are

registered. In order to represent a cross section of the Hoboken

community, HoLa holds open houses and tours and advertises in

local publications. It also partners with local organizations to

recruit on-site. Dates for the open houses, tours and events, as

well as the lottery, are posted on the school's website and are

printed on flyers "distributed throughout the city." In addition,

applications and brochures are mailed to every low-income

household each year prior to the lottery. HoLa's parents and

teachers also canvass subsidized and public housing and help

complete applications on the spot.

Parents may enroll children in the lottery online, in person,

or by a phone call to the school. HoLa has a sibling preference,

so that if a child is enrolled in HoLa, that child's younger

sibling will have priority over other lottery applicants. On

December 23, 2014, HoLa submitted a request to the Commissioner

to include a low-income preference in its lottery.1

1
This request was granted in December 2015 after the record in
this case closed.
4 A-3690-14T3
 Initially, in 2013, Popoff conducted "a comprehensive review"

of HoLa, "including the evaluation of the school's renewal

application, annual reports, student performance on state

assessments, site visit results, public comments, and other

information." Popoff found that HoLa was "providing a high-quality

education to its students." In the 2012-2013 school year, 82% of

HoLa's students were at least proficient in Language Arts, while

91% were at least proficient in math. By comparison, only 50% of

Hoboken's traditional public school students were at least

proficient in Language Arts and 52% were at least proficient in

math.

After the remand, the parties submitted more information,

including census and student enrollment data. According to 2010

U.S. Census data, Hoboken's under-seventeen population was 57%

white, 26% Hispanic, and 16% "other" reflecting a significant

increase in the percentage of white children from the 2000 Census

data, which showed Hoboken's under-seventeen population as 39%

white, 46% Hispanic, and 15% "other." In the 2009-2010 school

year (the year before HoLa started operating), Hoboken's

traditional public school student population was 22% white, 59%

Hispanic, 15% black, and 4% Asian. By the 2013-2014 school year,

four years after HoLa began, Hoboken's traditional public school

student population had increased its percentage of white students

5 A-3690-14T3
from 22% to 27%.

The Commissioner considered the racial breakdown of the

students in the public and charter schools for 2012-2013 and 2013-

2014. Between these school years, the percentage of white students

at HoLa rose from 60.6% to 63%, while Connors rose from only 3.9%

white students to 4%. Brandt rose from 61.5% to 72%, and Wallace

rose from 32.6% to 43%. The final public school, Calabro, dipped

from 34.6% to 32%. As can be seen by these statistics, minority

students are heavily concentrated at Connors, where in both years

they made up approximately 95% of the student population. The

percentage of students receiving free or reduced-price lunch

decreased for all four Hoboken public elementary schools from

2010-2011 to 2013-2014, although at Connors 88% of the students

still received a lunch subsidy in 2013-2014.

In addition to considering the submitted materials, the

Office of Charter Schools conducted its own review of data focusing

on race and ethnicity to determine whether HoLa was having a

segregative effect on the Hoboken Public School District, stating:

"After the Department's analysis of publically available student

enrollment data, census data, and documentation submitted by the

parties, it has been determined that HoLa does [not] and will not

have a segregative effect on [Hoboken]." The Commissioner

explained:

6 A-3690-14T3
 [A]lthough HoLa enrolls a higher percentage
of White students, and a smaller percentage
of Black and Hispanic students than [Hoboken],
the percentage of White students attending
[Hoboken] has actually increased since HoLa
opened in 2010 with the percentage of Hispanic
students decreasing in that same period. The
percentage of Black students in [Hoboken] has
stayed fairly constant since 2010. The
increase in percentage of [Hoboken's] White
students since 2010, along with the decrease
in Hispanic students, and the lack of changes
to the percentage of Black students indicates
that HoLa's enrollment has not had a
segregative effect on [Hoboken]. Instead, the
data points towards an overall population
shift in the last ten years in the City of
Hoboken, which began before the opening of
HoLa Charter School.

Hoboken argues that in granting the expansion of HoLa's

charter to include seventh and eighth grades, the Commissioner:

1) failed to consider HoLa's alleged racially and economically

segregative effect; 2) failed to consider the funding impact to

students affected by poverty and special needs; and 3) failed to

conduct interviews, gather facts, or hold a hearing to consider

HoLa's policies and practices.

Our review of the Commissioner's decision is limited. In re

Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216

N.J. 370, 385 (2013). "[A] court may intervene when 'it is clear

that the agency action is inconsistent with its mandate.'" Ibid.

(quoting In re Petition for Rulemaking, 117 N.J. 311, 325 (1989)).

[A]lthough sometimes phrased in terms of a
search for arbitrary or unreasonable agency

7 A-3690-14T3
 action, the judicial role [in reviewing an
agency's 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.

[Id. at 385-86 (quoting Mazzo v. Bd. of Trs.,
143 N.J. 22, 25 (1995)) (second alteration in
the original).]

In reviewing administrative decisions, however, courts are "in no

way bound by the agency's interpretation of a statute or its

determination of a strictly legal issue." Shim v. Rutgers, 191

N.J. 374, 384 (2007) (quoting In re Taylor, 158 N.J. 644, 658

(1999)). Nevertheless, "case law has recognized the value that

administrative expertise can play in the rendering of a sound

administrative determination." In re Proposed Quest Acad., supra,

216 N.J. at 389.

The Supreme Court gave the following overview of the law

regarding charter schools:

The Charter School Program Act of 1995 (the
Act) . . . (codified as amended at N.J.S.A.
18A:36A-1 to -18), authorizes the
establishment of charter schools in New
Jersey. See N.J.S.A. 18A:36A-2 (finding that
charter schools "can assist in promoting
comprehensive educational reform" and that
their establishment "is in the best interests

8 A-3690-14T3
 of the students of this State"). The Act
charges the Commissioner of Education
(Commissioner) with the responsibility to
establish a program to "provide for the
approval and granting of charters to charter
schools pursuant to [the Act]." N.J.S.A.
18A:36A-3. The application process is
governed by the Act, see N.J.S.A. 18A:36A-4,
-4.1, and -5, and implementing regulations,
see N.J.A.C. 6A:11-2.1. . . . Ultimately, the
Commissioner has the "final authority to grant
or reject a charter application." N.J.S.A.
18A:36A-4(c); see also N.J.A.C. 6A:11-2.1(a).

[In re Proposed Quest Acad., supra, 216 N.J.
at 373.]

"Charter schools are public schools, which through

legislative authorization are free from many state and local

regulations." In re Grant of Charter Sch. Application of Englewood

on the Palisades Charter Sch., 164 N.J. 316, 320 (2000)

(Englewood). The Commissioner must conduct a "comprehensive

review" before granting a charter renewal. In re Red Bank Charter

Sch., 367 N.J. Super. 462, 469 (App. Div.), certif. denied, 180

N.J. 457 (2004); N.J.A.C. 6A:11-2.3(b). "[I]f the goals set forth

in the charter school's charter are not fulfilled, the charter is

not renewed." Englewood, supra, 164 N.J. at 320.

I. Racial Segregative Impact

Hoboken first argues that the Commissioner erred by using

incomplete or flawed data and ignoring relevant data when finding

that HoLa has not had and will not have a racially segregative

impact. "Rooted in our Constitution, New Jersey's public policy

9 A-3690-14T3
prohibits segregation in our public schools." Id. at 324. "[T]he

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." In re Red Bank Charter Sch.,

supra, 367 N.J. Super. at 471. The "form and structure" of the

segregation analysis is up to the Commissioner and the state Board

of Education to determine. Englewood, supra, 164 N.J. at 329.

Hoboken complains of two problems with the data: 1) pre-K

data was improperly included in the Department's reports for 2013-

2014 and 2) the Commissioner used census data inclusive of the

entire Hoboken population under age seventeen instead of data for

only the school-age population. Hoboken argues that because the

2013-2014 Department's report erroneously included data for pre-K

students in the district and HoLa did not enroll pre-K students,

the report was not an accurate reflection of Hoboken's population.

The Department data included data from the Brandt school, which

served only pre-K and K students, and which enrolled a higher

percentage of white students than the other public schools (62%

white in 2012-2013 and 72% white in 2013-2014).

It is true that HoLa did not admit pre-K students and the

Department's statistics for 2013-14 included data for pre-K

students. However, the Department's 2012-2013 data did not include

the pre-K data, and those numbers were relied upon to the same

10 A-3690-14T3
extent as the 2013-2014 numbers. Moreover, the inclusion of the

pre-K data did not skew the statistics; although the pre-K data

included Brandt, a predominately white school in the district,

those same statistics also included data on Wallace and Connors,

schools that were predominately minority, and which also added

pre-K in the 2013-2014 school year. Thus, contrary to Hoboken's

suggestion, the inclusion of Brandt did not skew the statistics.

And, although HoLa did not offer pre-K, "trends in the student

population" are "valid factors" to be considered when determining

whether an action will have a segregative impact. In re Petition

for Authorization to Conduct a Referendum on the Withdrawal of N.

Haledon Sch. Dist. from the Passaic Cty. Manchester Reg'l High

Sch. Dist., 363 N.J. Super. 130, 142 (App. Div. 2003) (N. Haledon

I), aff'd as mod., 181 N.J. 161 (2004). The Commissioner properly

considered the pre-K data because it provided solid evidence of

the trends in the student population.

Hoboken also complains that the Commissioner erred in

considering census information concerning all of the children

under age seventeen in Hoboken and not just those of school age.

It argues this was error because: 1) the statute requires a review

of the community's "school age" population; 2) the under-five age

group is overrepresented in the Hoboken population; and 3) the

relevant comparison is that of the student population in the

11 A-3690-14T3
district, not the student population of Hoboken.

N.J.S.A. 18A:36A-8(e) addresses enrollment preferences,

stating: "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." The racial make-up of students expected to

enroll in school in the next four years is a trend that the

Commissioner should consider. N. Haledon I, supra, 363 N.J. Super.

at 142.

Hoboken argues that the relevant statistics were those that

compared HoLa's student population to the student population of

the traditional public school system, not to the population of

those under age seventeen. To support its position, it cites to

Englewood, which states the Commissioner "must consider the impact

that the movement of pupils to a charter school would have on the

district of residence" and it is the Commissioner's "obligation

to oversee the promotion of racial balance in our public schools

to ensure that public school pupils are not subjected to

segregation." Englewood, supra, 164 N.J. at 328 (emphasis added).

Hoboken also cites to N.J.A.C. 6A:11-2.2(c) that states in part

that "the Commissioner shall 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."

12 A-3690-14T3
 N.J.S.A. 18A:36A-8(e), however, states that a charter

school's admission policy must seek to enroll "a cross section of

the community's school age population." (Emphasis added). This

indicates that the entire community, not just the students enrolled

in the public schools, must be considered. Any other

interpretation would exclude potential students who had already

elected not to attend public schools, but who were part of the

population eligible to attend the public schools. A simple

comparison between the charter schools and the traditional public

schools is not necessarily representative of the demographics:

based on 2013-2014 data, 65% of Hoboken's school-age population

was white, but only 27% of Hoboken's students were white. This

was largely the result of four private K-8 schools that enrolled

thousands of Hoboken's students. Consequently, the analysis is

complicated. It is not fair to HoLa to refuse to recognize the

impact of the private schools on overall school enrollment in

Hoboken, as HoLa has no control over private school enrollment.

Hoboken presents no data of its own to support its positions. The

Commissioner did not act arbitrarily in considering the data

presented.

Assuming that the data the Commissioner relied on was correct,

Hoboken maintains that the Commissioner's legal interpretation of

that data was wrong in that "the lack of a documented increase in

13 A-3690-14T3
HoLa's segregative impact on Hoboken's school-aged children does

not negate the existence of the segregative impact." We have

stated:

[A] Charter School should not be faulted for
developing an attractive educational program.
Assuming the school's enrollment practices
remain color blind, random, and open to all
students in the community, the parents of age
eligible students will decide whether or not
to attempt to enroll their child in the
Charter School and any racial/ethnic imbalance
cannot be attributed solely to the school. To
close this school would undermine the
Legislature's policy of "promoting
comprehensive educational reform" by
fostering the development of charter schools.

[In re Red Bank Charter Sch., supra, 367 N.J.
Super. at 478 (quoting N.J.S.A. 18A:36A-2).]

In Red Bank, as here, a disparity existed between the

enrollment of minority students in the charter school and the

traditional public schools. Id. at 473-74. We were concerned

that after initial enrollment, the charter school in Red Bank

decreased the percentage of minority students as the students

progressed toward graduation, with the argument being made that

the charter school frequently returned minority students with poor

academic records to the public schools just in time for

standardized testing. Id. at 479. We determined that the charter

school's "manner of operation of the school after its color-blind

lottery, warrants closer scrutiny to determine whether some of the

school's practices may be worsening the existing racial/ethnic

14 A-3690-14T3
imbalance in the district" and remanded to the Commissioner to

determine "whether remedial action is warranted." Id. at 480,

482. Despite the stark disparity in Red Bank, however, we approved

the renewal and expansion of the charter school. Id. at 486.

Unlike in Red Bank, there are no allegations that HoLa's practices

after the enrollment of students by an impartial lottery

exacerbated the racial or ethnic balance.

In addition to the arguments Hoboken makes in the context of

the charter school statutory scheme, it also argues that the

Commissioner violated his duty to enforce the "Thorough and

Efficient Education" clause of the New Jersey Constitution when

he failed to remedy de facto segregation caused by HoLa's

expansion. In the "Education Clause" or the "Thorough and

Efficient Provision," the New Jersey Constitution provides: "The

Legislature shall provide for the maintenance and support of a

thorough and efficient system of free public schools for the

instruction of all the children in the State between the ages of

five and eighteen years." N.J. Const. art. VIII, § 4, ¶ 3; see

Petition for Authorization to Conduct a Referendum on Withdrawl

of N. Haledon Sch. Dist. v. Passaic Cty. Manchester Reg'l High

Sch. Dist., 181 N.J. 161, 173 n.3 (2004) (N. Haledon II).

"[R]acial imbalance resulting from de facto segregation is

inimical to the constitutional guarantee of a thorough and

15 A-3690-14T3
efficient education." Id. at 177. The Commissioner must "exercise

broadly his statutory powers when confronting segregation,

whatever the cause." Englewood, supra, 164 N.J. at 324. However,

it is "not really possible to establish a precise point when a

thorough and efficient education is threatened by racial

imbalance." N. Haledon II, supra, 181 N.J. at 183.

In North Haledon, the Borough of North Haledon sought a

referendum to determine whether it should be allowed to withdraw

from the Passaic County Manchester Regional High School District.

Id. at 164. Although the Board of Review granted the withdrawal,

several interested parties objected arguing that the Board failed

to assess the impact of the withdrawal on the racial makeup of the

high school, given the white student population would decrease by

nine percent, and that the percentage of minorities would continue

to rise and the white population would continue to decline due to

population trends in the sending towns. Id. at 164, 174. Our

Supreme Court stated:

Not every action that reduces the percentage
of white students necessarily implicates the
State's policy against segregation in the
public schools. . . . What we do know is that
in this case, demographic trends are
contributing to a steady decrease in the
number of white students attending Manchester
Regional, and that North Haledon's withdrawal
will accelerate this trend. Rather than using
the demographic trend as an excuse for
approving North Haledon's petition, the Board
should have considered the ameliorative effect

16 A-3690-14T3
 of denying the petition on the racial balance
at Manchester Regional.

[Id. at 183.]

Hoboken does not, however, show that expanding HoLa will

increase racial imbalance as it did in North Haledon. To the

contrary, the percentage of white students in Hoboken schools

increased since HoLa opened.

II. Economic Segregation

Hoboken also claims that the Commissioner failed to consider

the economic disparity between the student populations of HoLa and

the district. It points out that while 11% to 16% of HoLa's

population qualified for free or reduced-price lunch, Hoboken had

much higher levels in some schools. N.J.S.A. 18A:36A-8 does not

specifically address economic factors, instead requiring the

admission policy of a charter school to "seek the enrollment of a

cross section of the community's population including racial and

academic factors."

The evidence showed that HoLa's policies are geared toward

admitting a cross section of the school-aged population,

economically as well as racially and ethnically. HoLa canvassed

and advertised in Hoboken's subsidized housing developments. On

December 23, 2014, HoLa submitted a successful request to the

Department to include a low-income preference in its lottery.

Hoboken fails to convince us that the facts regarding economically

17 A-3690-14T3
disadvantaged students lead to a conclusion that HoLa should not

be permitted to expand.

III. Funding Impact

Hoboken next argues that the Commissioner's decision was

arbitrary and capricious because he failed to consider its January

30, 2015, submission to the court and Hoboken Superintendent Mark

Toback's December 13, 2010 letter concerning the funding impact

that charter schools had on Hoboken's budget, including the number

of special needs students enrolled in HoLa versus Hoboken.

N.J.S.A. 18A:36A-12(b) provides:

The school district of residence shall pay
directly to the charter school for each
student enrolled in the charter school who
resides in the district an amount equal to 90%
of the sum of the budget year equalization aid
per pupil and the prebudget year general fund
tax levy per pupil inflated by the CPI rate
most recent to the calculation. In addition,
the school district of residence shall pay
directly to the charter school the security
categorical aid attributable to the student
and a percentage of the district's special
education categorical aid equal to the
percentage of the district's special education
students enrolled in the charter school, and,
if applicable, 100% of preschool education
aid. The district of residence shall also pay
directly to the charter school any federal
funds attributable to the student.

Toback pointed out that the allocation of funds to the charter

schools located in Hoboken had "nearly tripled in only a few short

years" and that the pattern was not sustainable "given our

18 A-3690-14T3
enrollment increase at the lower grade levels coupled with a 2%

tax cap." He claimed that "[e]ven with tax increases, the district

must make cuts to services and programs for our students to support

charter expansion." He wrote: "We have four school district

leaders in one square mile, four business administrators, four

separate payrolls, four separate boards of education and a host

of required services that are duplicated." However, he did not

submit specific financial data to support those assertions.

As to students with special needs, Toback wrote:

HoLa does enroll a few special needs children,
and the other two charters enroll about the
same percentage of special needs students as
our district. But it must be noted that the
charter schools do not enroll students with
significant disabilities. It is the public
district that enrolls the most significantly
disabled children and pays for private out-
of-district placements. This concentrates an
expensive undertaking in the public schools,
thus raising our per-pupil costs and reducing
per-pupil costs in charter schools.

He further noted, again without district-specific evidence, that

the existing law gave an "incentive" for charter schools to place

special needs students in out-of-district placements, which put

the cost back on the district.

[I]f the local school district "demonstrates
with some specificity that the constitutional
requirements of a thorough and efficient
education would be jeopardized by [the
district's] loss" of the funds to be allocated
to a charter school, "the Commissioner is
obligated to evaluate carefully the impact

19 A-3690-14T3
 that loss of funds would have on the ability
of the district of residence to deliver a
thorough and efficient education."

[In re Proposed Quest Acad., supra, 216 N.J.
at 377-78 (quoting Englewood, supra, 164 N.J.
at 334-35).]

"[U]nsubstantiated, generalized protests" are insufficient.

Englewood, supra, 164 N.J. at 336. "Renewal of a successful

charter school will be favored, 'unless reliable information is

put forward to demonstrate that a constitutional violation may

occur.'" In re Red Bank Charter Sch., supra, 367 N.J. at 482-83

(quoting Englewood, supra, 164 N.J. at 336).

"[T]he Commissioner is entitled to rely on the district of

residence to come forward with a preliminary showing that the

requirements of a thorough and efficient education cannot be met."

Englewood, supra, 164 N.J. at 334. The district "must be able to

support its assertions" as the Commissioner does not have "the

burden of canvassing the financial condition of the district of

residence in order to determine its ability to adjust to the per-

pupil loss upon approval of the charter school based on

unsubstantiated, generalized protests." Id. at 336.

In In re Red Bank Charter Sch., supra, 367 N.J. Super. at

482, the district claimed that the funding of a charter school

would cause the district's budget to be reduced by $720,000, and

that it would cause the elimination of four positions, resulting

20 A-3690-14T3
in bigger classes, as well as the elimination of courtesy busing

and reduction of hall monitors, instructional assistants, and

cafeteria monitors. In spite of these representations, we found

the "paucity of specificity" in the district's claim to be "fatal."

Id. at 483.

Here, Hoboken does not argue that the financial losses

surrounding HoLa's expansion would impede Hoboken's ability to

provide a thorough and efficient education. It mounts only

general, non-specific and unconvincing attacks on the entire

charter school scheme and does not separate HoLa's impact from the

impact of the other two charter schools.

IV. Fact-gathering

In its supplemental submission to the Commissioner after

remand, Hoboken requested that the Commissioner "conduct further

interviews, fact gathering, and perhaps hold a hearing to better

assess possible interventions." On appeal, Hoboken argues that

the Commissioner should have held hearings to consider the effect

HoLa's policies and practices had on segregation before reaching

a decision as to HoLa's renewal and expansion application.

An adjudicatory hearing is not required in every contested

renewal application case. In re Proposed Quest Acad., supra, 216

N.J. at 383. Hoboken raised the issues of HoLa's sibling

preference, recruiting practices, fundraising practices, opt-in

21 A-3690-14T3
practice, and request for a low-income preference in its

submissions to the Commissioner. Hoboken fails to state, however,

what additional information was needed in order for the

Commissioner to complete his review. The decision states: "[a]ll

submitted materials from both parties were thoroughly reviewed."

"When the Commissioner is not acting in a quasi-judicial capacity,

as he was not here, he need not provide the kind of formalized

findings and conclusions necessary in the traditional contested

case." In re Grant of Charter Sch. Application of Englewood on

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

1999), aff'd as mod., 164 N.J. 316 (2000).

HoLa provides quality education to a cross section of

Hoboken's children. As a dual-language school, HoLa allows

students to become bilingual in a curriculum with a multi-cultural

content, and thus advances public policy goals. Hoboken has not

shown that the Commissioner's decision to allow HoLa to expand was

arbitrary, capricious, or unreasonable.2

Affirmed.

2
This decision does not preclude parents who believe their child
was unfairly denied admission to HoLa for discriminatory reasons
from registering an individual complaint pursuant to N.J.S.A.
18A:36A-15.
22 A-3690-14T3