ALF - Preserving The Charter School Alternative

Editor: Dave, describe your background and how you became involved with charter schools.

Apy: I graduated from Brown University in 1982 and received my law degree from Case Western University School of Law in 1986. I then clerked for Justice O'Hern of the New Jersey Supreme Court and subsequently joined McCarter & English in 1987.

I have always been interested in public education. I was on the Little Silver, New Jersey, Board of Education from 1990 through 1996 and served as board president for a number of those years. In 1995, supporters of a charter school knowing of my interest in education approached me because they were concerned about a challenge by a local Board of Education in Monmouth County, New Jersey to the charter that had been awarded to them. While I had not represented a charter school before, the case was of interest to me. The Charter School Program Act of 1995 had just been enacted. Also, the charter school was supported by a large and very concerned group that felt strongly that the education that was being provided by the district was not adequate. Without adequate legal representation, the school would never have had the opportunity to open their doors. I took the case on a pro bono basis with my firm's blessing.

Editor: What accounts for your interest in charter schools?

Apy: When traditional public schools fall behind in their essential purpose there should be an alternative. Unless there is, students will be deprived of the opportunity to succeed and the long term competitiveness of our economy will suffer. Business in this country needs an educated and diverse workforce.

Charter schools seemed to be a reasonable mechanism to allow parents who were dissatisfied with the quality of the education being offered in the public schools to take control. I was encouraged by the fact that charter schools offered disadvantaged minorities an alternative that could change their lives. In New Jersey, we are seeing the interest in charter schools extend beyond disadvantaged urban areas to poor rural areas.

My experience with charter schools has confirmed that competition with charter schools provides an incentive for public schools to do a better job. Because their teachers are encouraged to think outside the box, charter schools tend to generate innovative approaches to education that are transferable to the public schools.

To be a successful teacher in a charter school, you have to be highly motivated. You have to be interested in actively working with parents as well as the students because most charter schools really do focus on getting everyone involved. Teaching in a charter school is not a nine to five job; it is literally a 24/7 commitment. Because teachers are less burdened by regulation, they have more time to be innovative.

Editor: How do charter schools get started?

Apy: Under the New Jersey law, charter schools are created by founders who are required to be members of the community (parents, teachers and the like). The idea of a charter school usually starts with three or four parents who are frustrated with the local public schools and want to obtain quality education for their children. Typically, the group expands to include members of the community who no longer have children in school, but believe strongly in education and are frustrated that the local district is not providing the education that they think their grandchildren and others in the community deserve. The other thing that tends to happen is that seasoned educators become interested.

A group wanting to found a charter school can look to a number of sources for help. In New Jersey, the starting point would be the New Jersey Department of Education, which oversees the charter school program. In addition, there are several associations in New Jersey that help charter schools get started and operate effectively. The New Jersey Charter Public Schools Association is one such organization.

Financing charter schools is particularly daunting. Grants are available from the U.S. Department of Education. The NewSchools Venture Fund will use a $30 million investment from the Bill and Melinda Gates Foundation to boost the number of charter schools that focus on preparing students in historically underserved served areas for success in college and in careers. In New Jersey, the corporation that stands out in my mind for its support for charter schools is Prudential. They have a program specifically designed to provide loans and grants to charter schools. McCarter & English handles the legal aspects of such loans and grants. Across the state, some of the smaller banks are also supportive of charter schools. Even though a lot of the money comes from the State, there is still a need to raise funds to make a charter school a reality.

Editor: I gather that the work you do for charter schools is part of the overall pro bono efforts of your firm.

Apy: Yes. Although I am a commercial, environmental and products liability litigator, my pro bono activities have focused on education and on charter schools in particular. The firm has been very supportive of my work on behalf of charter schools and the work of the Atlantic Legal Foundation.

Editor: You recently handled a case involving a charter school. Please tell us about it.

Apy: The firm has been a long time supporter of the Atlantic Legal Foundation. My predecessor on its Advisory Council was Al Ferguson, another partner of the firm. Lawyers from the firm have worked with the ALF on charter school matters for the past 10 years The Atlantic Legal Foundation approached McCarter & English in August of this year. They asked if we could assist Benchmark Academy in Atlantic County, which was scheduled to open in September, with approximately 150 students. Atlantic County is generally a rural and poor area of the state.

Benchmark was given a conditional approval in January 2006, which means that to get final approval there are things that you need to do, such as hiring faculty, adopting final bylaws, obtaining a facility and other very specifictasks. Benchmark had done all those things. I first became aware of this situation in August when Marty Kaufman, Senior Vice President and General Counsel of the Atlantic Legal Foundation, contacted me. He mentioned that Benchmark Academy had gotten word that notwithstanding that it had done all the things it had been required to do, the State was threatening not to issue their charter. He said that Benchmark would require legal representation if the Commissioner of Education did what she said she was going to do and asked whether I would be willing to join with ALF in evaluating the situation and representing Benchmark if that should become necessary. I agreed.

The Commissioner advised the school on August 31 that it would not be allowed to open based on purported concerns that were not addressed in the regulations. Because the Commissioner's decision was handed down two days before Benchmark was scheduled to open, we filed immediate and simultaneous motions both with the State Board of Education and a Superior Court of the New Jersey Appellate Division and obtained an order from the Appellate Division that required the Board of Education to act on our appeal. We were very concerned that as a result of the delayed opening, Benchmark students would seek education elsewhere. However, their families remained steadfast.

On September 13 as a result of concerns that we raised, the State Board of Education ordered the Commissioner to justify her action. Between September 13 and September 20 we provided the State Board of Education with additional information and affidavits on the financial, enrollment and administrative status of the school, which refuted every issue raised by the Commissioner as a basis for withdrawing the school's charter. On September 20 the State Board of Education met, reversed the Commissioners decision and authorized the school to open.

Editor: Obviously this was a great victory for Benchmark. Were there other benefits?

Apy: The Benchmark situation made the State Board of Education aware that charter schools were not being given enough guidance in a timely manner with respect to the requirements that they had to meet. Hopefully, that situation gave the State Board a better idea of what a fair process should look like and encouraged them to review the time schedule for decisions relating to the opening of charter schools so that similar last minute crisis situations are avoided.

Editor: Will charter schools need continuing help from organizations like the Atlantic Legal Foundation and pro bono counsel?

Apy: As we learned from the Benchmark experience, the laws and regulations relating to charter schools, being relatively new, leave significant areas of uncertainty. I see organizations like the Atlantic Legal Foundation and the pro bono efforts of law firms and corporate legal departments playing a significant ongoing role in assisting charter schools to navigate the uncertainties in the legal environment.

Charter schools can encounter many problems requiring litigation skills. They can encounter problems with state educational authorities as we experienced with Benchmark. They can be challenged in the courts by the school districts in which they are located. They can face difficulties in getting building permits or certificates of occupancy from building inspectors who may be opposed to charter schools.

Charter schools also need the pro bono help of lawyers with other skills. Pro bono efforts need not be limited to handling litigation related matters. Lawyers can be very helpful in handling loan applications, drafting charters, bylaws and other documents and assisting in handling employment, tax and real estate matters. For example, one of our firm's real estate lawyers helped a charter school in connection with the acquisition of property.

Without the support of organizations like the Atlantic Legal Foundation and pro bono services from law firm and in-house lawyers, charter schools and their supporters will not have the wherewithal to surmount legal challenges or to cope with the legal complexities that they face.

I found that the pro bono work that I did on behalf of Benchmark is a win-win situation. It stimulated immense interest on the part of the younger lawyers in the firm in becoming involved in a pro bono activity that so directly affects people's lives. The families that made such a tremendous effort to provide better education for their children came away from the Benchmark experience with a greater appreciation of the legal profession and the good that it can do.

I personally came away from the Benchmark experience with a renewed appreciation of the important role that the Atlantic Legal Foundation can play in enabling charter schools to meet the practical legal challenges that they face.

Published November 1, 2006.