                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                FOUNDING FATHERS ACADEMIES, INC.,
                a non-profit corporation, in the operation of
                 JEFFERSON ACADEMY OF ADVANCED
                       LEARNING, a charter school,
                                 Appellant,

                                        v.

                ARIZONA STATE BOARD FOR CHARTER
                        SCHOOLS, Appellee.

                             No. 1 CA-CV 15-0664
                              FILED 10-13-2016


           Appeal from the Superior Court in Maricopa County
                        No. LC 2014-000375-001
            The Honorable Crane McClennen, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

The Condos Law Office, PLC, Chandler
By Leonidas G. Condos
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Kim S. Anderson
Counsel for Appellee
                    FOUNDING FATHERS v. ASBCS
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Samuel A. Thumma joined.


D O W N I E, Judge:

¶1           Founding Fathers Academies, Inc., appeals the superior
court’s judgment affirming a final decision by the Arizona State Board for
Charter Schools (“Board”) revoking the charter for a K-12 school. For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Jefferson Academy (“the School”) is a charter school
operated pursuant to a charter between Founding Fathers — the charter
holder — and the Board — the charter sponsor. The School, located in
Show Low, Arizona, began operating in 2003 and serves approximately
150 students.

¶3           To ensure adequate academic performance in state schools,
including charter schools, the Arizona Department of Education
(“Department”) is required to “compile an annual achievement profile for
each public school and school district.” Ariz. Rev. Stat. (“A.R.S.”) § 15-
241(A) (West 2013).1 The achievement profile uses a letter grade system of
“A” through “F,” excluding “E.” A.R.S. § 15-241(H).

¶4             In 2011, the Department gave the School an achievement
profile grade of “D,” reflecting below-average performance for the 2010-
2011 school year. In 2012, the Department gave the School a “D” for the
2011-2012 school year. In September 2013, the Department notified the
Board that the School had received an “F” for the 2012-2013 school year,
reflecting a failing level of performance. Upon receipt of that information,
the Board was required to “either take action to restore the charter school
to acceptable performance or revoke the charter school’s charter.” A.R.S.
§ 15-241(U).


1      Unless otherwise indicated, we cite to the current versions of
statutes when no changes material to our decision have occurred.



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                     FOUNDING FATHERS v. ASBCS
                         Decision of the Court

¶5          The Board communicated with Founding Fathers about the
“F” grade and advised that the Board would determine whether to revoke
the charter based on the Academic Performance Framework
(“Framework”) adopted pursuant to A.R.S. § 15-183(R).

¶6           The Board’s initial evaluation reflected that the School was
not meeting Framework standards. Founding Fathers was directed to
submit a Demonstration of Sufficient Progress (“DSP”). A DSP permits a
charter holder to demonstrate how it has improved and will continue
improving academic performance. After Founding Fathers submitted its
DSP, the Board visited the School and gave Founding Fathers an
opportunity to submit additional documentation.

¶7            Founding Fathers scored “Not Acceptable” in all measures
after the School visit and DSP evaluation. The Board met on December 9,
2013 and voted to revoke Founding Fathers’ charter on three bases: (1) the
School’s “F” grade; (2) the School did not meet Framework standards; and
(3) Founding Fathers scored “Not Acceptable” in all measures on its DSP.

¶8           After a four-day evidentiary hearing, an Administrative Law
Judge (“ALJ”) issued detailed findings of fact and conclusions of law,
recommending that the Board revoke Founding Fathers’ charter. With
one minor factual correction, the Board adopted the ALJ’s report and
voted to revoke the charter.

¶9           Founding Fathers appealed to the superior court, which
affirmed the Board’s decision. Founding Fathers timely appealed to this
Court. We have jurisdiction pursuant to A.R.S. § 12-120.21(A)(1), -913,
and -2101(A)(1).

                               DISCUSSION

¶10            “On appeal from the judgment of the superior court, we
determine whether the underlying administrative decision . . . was illegal,
arbitrary, capricious, or involved an abuse of discretion.” Shorey v. Ariz.
Corp. Comm’n, 238 Ariz. 253, 257, ¶ 11 (App. 2015); see also A.R.S. § 12-
910(E) (“The court shall affirm the agency action unless after reviewing
the administrative record and supplementing evidence presented at the
evidentiary hearing the court concludes that the action is not supported
by substantial evidence, is contrary to law, is arbitrary and capricious or is
an abuse of discretion.”). We consider the administrative record in the
light most favorable to upholding the Board’s decision and will affirm that
decision if it is supported by any reasonable interpretation of the record.
See Baca v. Ariz. Dep’t of Econ. Sec., 191 Ariz. 43, 46 (App. 1998). We review


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                     FOUNDING FATHERS v. ASBCS
                         Decision of the Court

matters of statutory interpretation de novo. Chaurasia v. Gen. Motors Corp.,
212 Ariz. 18, 22, ¶ 5 (App. 2006).

I.     The Board’s Authority

¶11           Founding Fathers argues the Board’s revocation decision
usurped the statutory authority of the Superintendent of Public
Instruction (“Superintendent”). It relies on language in A.R.S. § 15-
182(E)(7) stating that the Board shall “[d]elegate to the superintendent of
public instruction the execution of board policies.”

¶12           Section 15-182(E)(7) cannot be read in isolation. See Cicoria v.
Cole, 222 Ariz. 428, 431, ¶ 14 (App. 2009) (Courts read statutes relating to
the same subject matter in connection with each other, “as though they
constitute[] one law.”). The Board was the sponsor of the charter held by
Founding Fathers. See A.R.S. § 15-183(C). As such, the Board (whose
members include the Superintendent, see A.R.S. § 15-182(A)(1)) is
expressly authorized by statute to adopt the Framework and to revoke a
charter if the charter holder fails to meet or progress in meeting
Framework standards. A.R.S. § 15-183(I)(3)(a). The statute provides, in
pertinent part:

       3. A sponsor shall review a charter at five-year intervals using
       a performance framework adopted by the sponsor and may
       revoke a charter at any time if the charter school breaches one
       or more provisions of its charter or if the sponsor determines
       that the charter holder has failed to do any of the following:

       (a) Meet or make sufficient progress toward the academic
       performance expectations set forth in the performance
       framework.

A.R.S. § 15-183(I)(3)(a) (emphasis added); see also A.R.S. § 15-183(R)
(vesting Board with “oversight and administrative responsibility for the
charter schools that it sponsors” and requiring Board to “ground its
actions in evidence of the charter holder’s performance in accordance with
the performance framework adopted by the sponsor”).

¶13          This statutory scheme makes clear that the Board may adopt
performance frameworks for charter schools, monitor compliance with
those frameworks, and revoke a charter if the charter holder does not
meet or make sufficient progress toward meeting performance
expectations set forth in the Framework. Moreover, even if there were a
conflict between the duty to delegate Board “policies” to the


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                    FOUNDING FATHERS v. ASBCS
                        Decision of the Court

Superintendent (A.R.S. § 15-182(E)(7)) and the power to revoke charters
(A.R.S. § 15-183(I)(3)(a)), the more specific statute — § 15-183(I)(3)(a) —
would control here. See Pima Cty. v. Heinfeld, 134 Ariz. 133, 134 (1982)
(“[W]here two statutes deal with the same subject, the more specific
statute controls.”).

¶14           Founding Fathers also contends the Board “had a duty to
consult with the Department of Education after being informed of the ‘F’
grade regarding the potential for remediation before making a subjective
recommendation to revoke Appellant’s charter.” Founding Fathers cites
no legal authority in support of this assertion. And the record establishes
that the Board and Department both acted in compliance with their
statutorily defined duties.

¶15           When a charter school receives an “F” grade, the
Department must “immediately notify the charter school’s sponsor.”
A.R.S. § 15-241(U). That occurred here. At that point, the Board is
required to “take action to restore the charter school to acceptable
performance or revoke the charter school’s charter.” Id. (emphasis
added). Before determining that revocation was appropriate, the Board
considered Founding Fathers’ DSP, visited the School, and gave Founding
Fathers an opportunity to submit additional documentation. At its
December 9, 2013 meeting, the Board identified and considered both of
the identified statutory options: (1) revoking the charter; or (2) restoring
the charter “to acceptable performance.” In all relevant respects, the
Board complied with its statutory obligations.

II.   Revocation Decision

¶16          Founding Fathers contends that “but for the high poverty”
of the School’s students, “with some appropriate adjustment,” it could
have received a “B” or “C” grade and avoided revocation.2 It also argues
the Framework discriminates against special education (“SPED”)
students, students who receive free and reduced-priced lunches (“FRL”),
English-language learners (“ELL”), and students who are “below age
appropriate grade level.”


2      The ALJ’s report cites a Center for Student Achievement Report,
which discusses the effect unmitigated poverty may have on learning and
the challenge for the Arizona accountability model to “adequately control
for the effect of poverty on the final school ranking.”




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                       FOUNDING FATHERS v. ASBCS
                           Decision of the Court

¶17          The record demonstrates that, among other things, the
Framework measures students’ growth during an academic year and
compares students who received the same or similar test results during
the previous year to their performance in the current year. The
Framework thus takes into account how well charter schools perform in
“catching students up” and compares students who are “below age
appropriate grade level” to similarly situated students.

¶18            The Framework also measures how well students are
performing “on state examinations in reading and math given the
characteristics of the school’s population,” (emphasis added) i.e., the
percentage of SPED, FRL, and ELL students in attendance. Evidence
presented at the hearing established that other Arizona charter schools
with FRL populations exceeding 70% have met the Board’s performance
standards and that some of those schools have even achieved an “A”
grade. Additionally, the record amply supports the finding that:

     [T]he Board’s academic performance framework accounts for
     the School’s population of students coming from poverty and
     students with disabilities in its FRL and SPED subgroup
     proficiency comparisons.        The academic performance
     framework’s subgroup proficiency measures compare the
     proficiency of the FRL and SPED subgroups within the School
     to the state average proficiency rate for those same subgroups
     in the same grade levels as those served by the School. The
     School’s Subgroup FRL proficiency rates are in the bottom
     20% of statewide FRL subgroup performance in both math
     and reading.      The School’s Subgroup SPED subgroup
     proficiency rates fall below statewide SPED subgroup
     performance in both math and reading.

     ....

     The Board’s academic performance framework also accounts
     for the School’s FRL and SPED population in its Composite
     School Comparison. The proficiency rate of the School’s
     students is less than the expected proficiency rate (composite
     school) by 15 or more percentage points in both math and
     reading.

(Footnotes omitted.)

¶19          Whether the Board has implemented the most effective tool
possible for evaluating academic performance is not for this Court to


                                    6
                     FOUNDING FATHERS v. ASBCS
                         Decision of the Court

decide. We do not function as a “super agency” and may not substitute
our own judgment for that of the Board — especially when, as here,
agency expertise and factual questions are involved. See DeGroot v. Ariz.
Racing Comm’n, 141 Ariz. 331, 336 (App. 1984); see also U.S. Parking Sys. v.
City of Phoenix, 160 Ariz. 210, 211 (App. 1989) (“Judicial deference should
be given to agencies charged with the responsibility of carrying out
specific legislation.”). Witnesses at the evidentiary hearing testified about
the Board’s development of the Framework, including its consideration of
“measures in addition to the State letter grade.” Nothing in the record
suggests, let alone establishes, that the Board’s chosen method of
evaluating the School comes close to approaching the “arbitrary and
capricious” standard.

¶20            Nor does the record support Founding Fathers’ contention
that the Framework makes test scores “the sole criteria for revocation,” in
contravention of A.R.S. § 15-181. In making its revocation decision, the
Board considered far more than test scores. It concluded, for example,
that Founding Fathers: (1) offered no evidence its curricula in various
grade levels aligned with the Arizona College and Career Ready
Standards; (2) failed to produce lesson plans for grades six through eight;
(3) did not establish the School was performing reviews of lesson plans;
(4) offered no evidence it was conducting teacher evaluations; and (5)
failed to demonstrate it was collecting and analyzing assessment data to
measure students’ academic progress. As such, the record squarely
contradicts Founding Fathers’ assertion that the Board arbitrarily relied on
“a test score” as the “sole standard” in assessing its performance.

                             CONCLUSION3

¶21          For the foregoing reasons, we affirm the superior court’s




3       Founding Fathers raises several new arguments for the first time in
its reply brief, which we decline to consider. See State v. Watson, 198 Ariz.
48, 51, ¶ 4 (App. 2000). We grant the Board’s Motion to Strike New
Arguments Presented in Reply Brief.




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                   FOUNDING FATHERS v. ASBCS
                       Decision of the Court

judgment upholding the Board’s revocation decision. By separate order,
we address the stay of that decision that is currently in place.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




                                     8
