Appellate Division Finds No Issue in Charter School Funding Mechanism
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Proponents Argue Equal Protection Violation Unsuccessfully
July 28, 2010
Charter school students are not deprived of equal protection under the New Jersey Constitution by the funding provisions of the Charter School Program Act of 1995 and the Educational Facilities Construction and Financing Act, according to a recent New Jersey Appellate Division decision in J.D. v. Davy, A-1375-08, handed down July 16.
The Case
Four students attending two Newark Charter Schools brought a class action suit contending that the provisions in the Educational Facilities Construction and Financing Act (EFCFA) and the Charter School Program Act of 1995 (CSPA) that govern state funding for charter schools violated their equal protection rights under the New Jersey Constitution because charter schools receive only ninety percent of the per pupil funding provided to traditional public schools, N.J.S.A. 18A:36A-12, and charter schools are excluded from receiving any state or local funding for facilities under the provisions of EFCFA.
Seeking a declaration that N.J.S.A. 18A:36A-10 (barring charter schools from receiving state or local funding for facilities) and N.J.S.A. 18A:36A-12 (providing ninety percent per pupil funding for operational costs), individually or in combination, violated Article 1, Paragraph 1 of the New Jersey Constitution, the plaintiffs also sought the court’s assistance in requiring the state to “design a public charter school funding provision that did not violate the equal-protection guarantee of the New Jersey Constitution."
Equal Protection As An Improper Analysis
The panel first referenced the concerns raised in the early education funding cases that equal protection was not the proper vehicle for addressing the education funding inequities," because such analysis may be unmanageable in light of the many services the State must provide and the many needs it must fulfill." See Robinson v. Cahill, 62 N.J. 473, 492 (Robinson I). Seeing the same underlying impediments to an equal protection analysis here, the court argued that limited state funds are available for funding a thorough and efficient system of education throughout the State.
The Court argued the traditional public system must accommodate all who choose to attend traditional public schools. In comparison, charter students attend charter schools voluntarily and can always return to the public school where full funding is available.
Further, they argued additional funds would be needed to provide facilities funding for charter schools. And as such, the traditional public schools would suffer a loss in having to cover their overall fixed costs even though some of their students left for charter schools. Full funding of charter schools would divert funds from other governmental purposes. The Court found that this was the very circumstance that impelled the Court to deem equal protection application unmanageable in this area in 1973 and in years following.
The Equal Protection Balancing
Nonetheless the Court continued on with an equal protection analysis. The equal protection provision in the New Jersey Constitution “prohibits the State from adopting statutory classifications that treat similarly situated people differently."
Because plaintiff's enrollment in a charter school was voluntary and optional, thus giving them a choice to attend a traditional public school, they were neither “similarly situated” to other Newark children who attend traditional public schools, nor treated “differently” than them because plaintiffs could attend the same traditional public schools if they so chose.
Further, the Court determined that the Plaintiff’s had failed to show an affected right since they had failed to allege non-receipt of a thorough and efficient education. Rather, the Court argued that the charter school movement was developed as a reform measure in the educational system to provide creative and innovative means of providing students with a better education than they receive in traditional public schools. The general assertion in their complaint that the funding disparity negatively affected their education was considered conclusory, speculative and hypothetical.
Finally, the Court found that there was a public need to conserve scarce resources for traditional public schools. Under current equal protection analysis, if there is even a slight governmental intrusion on charter school students, there must be some public need justifying the restriction, or the State action is deemed arbitrary.
The Court found the justification for the restriction here was the need to reduce the diversion of scarce resources from existing traditional public schools so that the State could continue to provide a thorough and efficient education to all students, as demonstrated in much of the legislative history leading up to enactment of the law establishing charter schools. The court found that the decision to fund charter school at 90 percent was a legislative compromise in response to the “worry that charter schools could siphon off public school funds and eventually undermine public education” and therefore not arbitrary.