Charter school to open despite legal challenge

Amid bitter accusations and legal threats on both sides over enrollment figures, a Hebrew-language charter school will apparently open as planned on Sept. 7 in East Brunswick.

The East Brunswick Board of Education filed suit against the Hatikvah International Academy Charter School on Aug. 11, saying the school lacked the required enrollment.

In an Aug. 25 decision, then-state education commissioner Bret Schundler rejected the board’s claims on several grounds, calling the suit “without merit.” (Schundler was fired from his post on Aug. 27, over an unrelated matter.)

The board contends the school did not have the required 97 students, or 90 percent of its projected enrollment, as required by the state.

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While acknowledging a dispute in the enrollment figures, Schundler concluded that that alone did not demonstrate “a likelihood of success in this matter.” Additionally, Schundler said there was no case law addressing the 90 percent figure, and the department had never had a challenge by a district to the commissioner’s grant of a final charter based on enrollment.

Therefore, the board “could not establish that there is a settled legal right” to preclude Hatikvah’s opening, he wrote.

Hatikvah officials told NJJN the school has exceeded the 97-student threshold and claimed the board’s moves were only a delaying tactic.

School spokesperson Dan Gerstein claimed its enrollment is “at least at 99” students, and that “the district has been fudging the numbers from the beginning, changing their numbers from day to day, so they’re just not a credible source.”

On Aug. 27, East Brunswick was rebuffed by an appellate court judge in south Jersey on an application for “emergent relief,” said Hatikvah attorney Tom Johnston of Morristown.

“East Brunswick is still acting like it is essentially above the law,” he added. “It sought judicial intervention and it didn’t get it.”

Hatikvah representatives expect the school will open fully enrolled at 108 students in grades K-2 in rented space behind the Trinity Presbyterian Church on Cranbury Road.

The suit, however, remains active in the Appellate Division of the state Superior Court, with the board asking the appellate court to overturn the former commissioner’s decision. No date has been set for the court hearing.

Meanwhile, the district is preparing for the school’s scheduled opening. Parents have been informed about bus transportation routes for children attending Hatikvah, said board attorney Matthew Giacobbe of Lyndhurst.

“We are complying with the former commissioner’s decision unless the court tells us otherwise,” Giacobbe told NJJN on Aug. 30, but added, “Former commissioner Schundler’s decision is not correct.”

‘In favor of Hatikvah’

In his five-page decision, obtained by NJJN, Schundler said the education department has been working with the school since early 2009 in anticipation of its opening for the 2010-11 school year.

“Should the board’s request for a stay of the commissioner’s grant of a charter to Hatikvah be granted, it is unlikely the school would be able to open for the upcoming school year. The educational opportunities offered to its students and supported by the department would, therefore, be foreclosed,” he wrote. “For these reasons, a balancing of the equities in this matter clearly weights in favor of Hatikvah.”

Gerstein said the decisiveness of Schundler’s decision speaks to the fact that the school board is “on very weak legal ground with a relatively small chance of winning, so we hope they will drop it.”

Giacobbe contended the board has discovered as a result of its litigation that only 77 students were enrolled as of Aug. 30. Under state funding formulas for charter schools, the school district would provide $873,000 based on those 77 students, as opposed to $1.2 million for a full enrollment of 108.

“We have saved the taxpayers of East Brunswick $350,000 that they don’t have to pay for the charter school as of today,” said Giacobbe.

Charter school officials said they are owed up to $1.2 million, and are prepared to take legal action against the board if it does not turn over the required money. As of Aug. 30, Hatikvah has received “zero money” from the district, said Gerstein.

“We are prepared to counter with a suit as a last resolve,” he added. “We hope it doesn’t come to that, but the law is black and white, and if Hatikvah needs to get a court order to force East Brunswick to release the funding, we will.”

Johnston said on Aug. 31 that if Hatikvah didn’t have a payment agreement in writing from East Brunswick by Sept. 3, it would not only ask the court to compel payment but to also hold the board in contempt.

Johnston said the amount owed will vary depending on how many of Hatikvah’s students are East Brunswick residents. The school is allowed to have up to 10 percent of its student body from outside East Brunswick if it cannot fill all slots with township residents. Outside districts pay the charter school according to the number of its own residents enrolled.

The two sides have also clashed over what Hatikvah leaders claim is a deliberate attempt by the board to discourage enrollment by illegally refusing to grant transfer cards to parents who request them.

“Absolutely untrue,” countered Giacobbe, “and we have hundreds of e-mails verifying that it’s not true.”

School board officials contend Hatikvah failed to follow state law requiring that students first register in their home schools before receiving a transfer to a charter school. The regulations, they say, are meant to ensure that proper residency papers are submitted, transportation to the charter school can be planned, and that class size and enrollment can be finalized in all public schools.