Northside Urban Pathways Charter School v. State Charter School Appeal Board

Dissenting opinion by

President Judge PELLEGRINI.

Because the Charter School Law (CSL)1 does not authorize a charter , school to amend its charter to create another separate school at another location without first submitting a charter application for such a facility,2 and because the State *88Charter School Appeal Board (CAB) does not possess jurisdiction to consider the appeal of a school district’s denial of a charter school’s request to amend its charter, I respectfully dissent.

In this case, the Pittsburgh Public School District (District) granted North-side Urban Pathways Charter School’s (Northside) application to operate a charter school for students in grades six through twelve in the District. Northside sought through an amendment of its existing charter to open a charter school to educate children in grades kindergarten through five in a separate facility. The District denied the amendment stating that Northside was required to file a new charter school application. Northside appealed that determination to the CAB which dismissed it because it lacked jurisdiction to hear the appeal.

Acknowledging that there is no statutory authority for its position, the majority holds that a school district has “implied authority”3 to issue these amendments because there must be some way to amend its application if it has to change locations and that the CAB has implied jurisdiction to hear the appeal. I respectfully dissent.

I.

Contrary to the majority, Northside did not merely request to amend the “regulatory permit”4 to operate its charter school for grades six through twelve because it is either impossible or impractical to operate the school according to its charter. Rather, Northside is asking to create a separate and distinct charter school serving a different student population with different educational needs in a different physical facility. The CSL does not empower Northside to amend its existing charter to create a separate charter school without first submitting a charter application.

The CSL provides that a charter school may only be created by application to establish either a single district charter school under 24 P.S. § 17-1717-A or a multi-district regional charter school under 24 P.S. § 17-1718-A(a). The CSL also provides that a charter school has the authority to set its enrollment age or grade levels and may operate exclusively as an elementary school, a middle school, a high school or a combination thereof. Slippery Rock Area School District v. Pennsylvania Cyber Charter School, 612 Pa. 486, 497-501, 31 A.3d 657, 664-65 (2011).5

*89However, 24 P.S. § 17-1719-A(3) and (11)6 state that an application to establish a charter school must indicate the grades or age levels to be served by the school7 and the address and description of the physical facility in which the charter school *90will be located. Under 24 P.S. § 17-1720-A(a),8 the specific terms of Northside’s application, including the limited student population to be educated9 and the specific physical facility of its charter school,10 were incorporated into Northside’s charter and became “legally binding” on both Northside and the District. There is simply no provision in the CSL authorizing Northside to create a separate charter school facility to serve students of different ages or grade levels by mere amendment 11 to its charter without first submitting an application to the District.12

II.

Moreover, even if Northside could file an amendment, the CAB properly determined that it did not have jurisdiction over the District’s denial of Northside’s request to amend its charter because the CAB’s jurisdiction under the CSL is limited to appeals from a district’s denial of an application, 24 P.S. §§ 17 — 1717—A.(i)(1), 17-1718-A(c); appeals from a district’s deemed denial of an application, 24 P.S. §§ 17-1717-A(g), 17-1718-A(c); and appeals from a district’s revocation or nonre-newal of a charter, 24 P.S. § 17-1729-A(d).

Additionally, 24 P.S. § 17-1721-A merely provides that the CAB “shall meet as needed to fulfill the purposes provided in this subsection....” Thus, 24 P.S. § 17-1721-A does not confer any additional implied powers upon the CAB, but merely requires the CAB to meet as needed to exercise those powers specifically conferred by the CSL, including its appellate jurisdiction under 24 P.S. §§ 17-1717-A(g) and (i)(l), 17-1718-A(c), and 17-1729-A(d). Rather, jurisdiction over an appeal of any other action by the District involving a *91charter school is appealable under the local agency law to the Court of Common Pleas of the county in which the District is located. 2 Pa.C.S. §§ 101, 752; 42 Pa.C.S. § 933(a)(2). See generally Merrell v. Chartiers Valley School District, 579 Pa. 97, 103 n. 4, 855 A.2d 713, 716 n. 4 (2004) (“We note that we have previously determined that a School District along with its Board is a local agency pursuant to the Local Agency Law.”) (citation omitted).

Accordingly, the CAB’s order should be affirmed.

. Act of March 10, 1949, P.L. 30, added by the Act of June 19, 1997, P.L. 225, as amended, 24 P.S. §§ 17-1701-A — 17-1751-A. The CSL is part of the Public School Code of 1949 (School Code), Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 — 27-2702.

. As this Court has explained, "[ujpon review of the CSL, we are satisfied that ... the CSL does not prohibit cross-membership of the charter schools' Boards of Trustees or ban one group of persons from applying for a charter for more than one charter school....” McKeesport Area School District v. Propel Charter School McKeesport, 888 A.2d 912, 921 (Pa.Cmwlth.2005).

.The majority bases its finding that the District has implied authority on Burger v. Board of School Directors of McGuffey School District, 576 Pa. 574, 584-85, 839 A.2d 1055, 1061-62 (2003), where our Supreme Court held that while school districts are generally limited to the powers expressed in the School Code, the broad grant of powers in 24 P.S. § 2-211, vesting districts "with all necessary powers to enable them to carry out the provisions of [the School Code] ... ”, included the implied power to suspend a superintendent charged with "serious misconduct” in the absence of an explicit provision in that regard. In contrast, regarding charter schools, the District is limited to approving or revoking charters. 24 P.S. § 17-1717-A; 24 P.S. § 17-1729-A. Because the District's power is statutorily prescribed, it has no residual powers left that it could implicitly exercise.

. See Foreman v. Chester-Upland School District, 941 A.2d 108, 115 (Pa.Cmwlth.2008) (holding that the grant of a charter is not a contract, but more like the issuance of a regulatory permit where the state or local government must honor the terms of the charter unless breached by the party receiving the charter).

. As our Supreme Court explained, in the context of a cyber charter school:

We recognize, however, that the General Assembly has not granted Cyber School unfettered authority under section 17-1719-A. We observe that section 17 — 1719—A(3) is necessitated by the very nature of charter schools. In our view, this section derives from the fact that a charter school may offer a limited curriculum, electing — under *89the clear language of the CSL — to serve only particular grade levels. Stated differently, a charter school may operate exclusively as an elementary school, a middle school, a high school, or a combination thereof. Thus, the statutory provision requiring a cyber charter school to set forth in its application the "ages or grades” to be served stems, at least in part, from the fact that a cyber charter school need not offer a complete education to its students. Section 17-1719-A addresses the issue by requiring the school to identify its intended scope in the charter application....

Id. (footnote omitted).

. 24 P.S. § 17-1719-A states:

An application to establish a charter school shall include all of the following information:
(1) The identification of the charter applicant.
(2) The name of the proposed charter school.
(3) The grade or age levels served by the school.
(4) The proposed governance structure of the charter school, including a description and method for the appointment or election of members of the board of trustees.
(5) The mission and education goals of the charter school, the curriculum to be offered and the methods of assessing whether students are meeting educational goals.
(6) The admission policy and criteria for evaluating the admission of students which shall comply with the requirements of section 1723-A.
(7) Procedures which will be used regarding the suspension or expulsion of pupils. Said procedures shall comply with section 1318.
(8) Information on the manner in which community groups will be involved in the charter school planning process.
(9) The financial plan for the charter school and the provisions which will be made for auditing the school under section 437.
(10) Procedures which shall be established to review complaints of parents regarding the operation of the charter school.
(11) A description of and address of the physical facility in which the charter school will be located and the ownership thereof and any lease arrangements.
(12) Information on the proposed school calendar for the charter school, including the length of the school day and school year consistent with the provisions of section 1502.
(13) The proposed faculty and a professional development plan for the faculty of a charter school.
(14) Whether any agreements have been entered into or plans developed with the local school district regarding participation of the charter school students in extracurricular activities within the school district. Notwithstanding any provision to the contrary, no school district of residence shall prohibit a student of a charter school from participating in any extracurricular activity of that school district of residence: Provided, That the student is able to fulfill all of the requirements of participation in such activity and the charter school does not provide the same extracurricular activity.
(15) A report of criminal history record, pursuant to section 111, for all individuals who shall have direct contact with students.
(16) An official clearance statement regarding child injury or abuse from the Department of Public Welfare as required by 23 Pa.C.S. Ch. 63 Subch. C.2 (relating to background checks for employment in schools) for all individuals who shall have direct contact with students.)
(17) How the charter school will provide adequate liability and other appropriate insurance for the charter school, its employes and the board of trustees of the charter school. (Emphasis added.)

. See also 24 P.S. § 17-1723-A(b)(2) ("[A] charter school may limit admission to a particular grade level, a targeted population group composed of at-risk students, or areas of concentration of the school such as mathematics, science or the arts_”).

.24 P.S. § 17-1720-A states, in pertinent part:

Upon approval of a charter application under section 1717-A, a written charter shall be developed which shall contain the provisions of the charter application and which shall be signed by the local board of school directors of a school district, by the local boards of school directors of a school district in the case of a regional charter school or by the chairman of the appeal board pursuant to section 1717 — A(i)(5) and the board of trustees of the charter school. This written charter, when duly signed by the local board of school directors of a school district, or by the local boards of school directors of a school district in the case of a regional charter school, and the charter school's board of trustees, shall act as legal authorization for the establishment of a charter school. This written charter shall be legally binding on both the local board of school directors of a school district and the charter school’s board of trustees. Except as otherwise provided in subsection (b), the charter shall be for a period of no less than three (3) nor more than five (5) years and may be renewed for five (5) year periods upon reauthorization by the local board of school directors of a school district or the appeal board.... (Emphasis added.)

. 24 P.S. § 17-1719-A(3).

. 24 P.S. § 17 — 1719—A(11).

. This is not to say that either a change of the facility or population to be served cannot be considered when the school's charter is up for renewal. 24 P.S. § 17-1720-A.

. The only district that can allow a charter school to operate at more than one location under one charter is the School District of Philadelphia. 24 P.S. § 17-1722-A(d) states that "[njotwithstanding any other provision of this act, a school district of the first class may, in its discretion, permit a charter school to operate its school at more than one location.” In turn, 24 P.S. § 2-202 states, in pertinent part, that "[e]ach school district having a population of one million (1,000,000), or more, shall be a school district of the first class....” Because the District is not a first class school district, it does not possess the discretion to permit Northside to operate its charter school at more than one location or physical facility.