EAST BRUNSWICK — To the township Board of Education, it all comes down to the state commissioner of education needs to follow his own rules.

To the Hatikvah International Academy Charter School, it is just another example of the board trying to thwart its existence.

The township board recently filed a notice of petition for certification with the state Supreme Court, seeking a review of the state Appellate Division’s decision to uphold Hatikvah’s charter, continuing a legal battle between the board and the partial immersion Hebrew language school.

“This isn’t a fight about charter schools. This is really a specific issue about fighting the commissioner of education and ensuring that they follow the regulations,” Board of Education Attorney Matthew Giacobbe said. “They ensure that the local districts follow their regulations and we think it should go both ways.”

The board’s argument revolves around the enrollment figures that then-Education Commissioner Brett Schundler used to grant final approval of the Hatikvah charter in July 2010.

According to court documents, Danna Nezaria, president of the board of trustees of Hatikvah, submitted an application in March 2009 seeking to establish a Hebrew language charter school in East Brunswick that would serve grades kindergarten through second grade during its first year of operation, with a maximum enrollment of 108 students.

Under state statute, the school needed evidence of at least 90 percent of its maximum enrollment — or 97 students — before the commissioner approved its charter. The Department of Education said that the school reached the required 97 students in late June 2010 and on July 6, 2010, Schundler granted the school a charter, valid through June 30, 2014.

But the Board of Education contends that Schundler erred, and that Hatikvah did not have 97 students properly enrolled when the final charter was granted.

Giacobbe said that when students go to enroll in a charter school, they first must enroll in the home district, in this case East Brunswick. The district than transfers these records to the charter school, he said.

“So we know exactly who enrolled through East Brunswick to go to the charter school, and as of the end of June, they did not have the 97,” Giacobbe said. “They were far below the 90 percent requirement.”

Further, the board contends that Schundler relied upon using a lottery application, which Giacobbe said is not sufficient under the law to enroll students in a charter school.

Giacobbe said that having the 90 percent enrollment requirement is important as it helps to make sure that the taxpayers of the local district support the inclusion of a charter school. He said that the Board of Education’s continuing litigation is simply about tax dollars and ensuring the state follows its own regulations.

“We are not suggesting or talking about the educational quality or anything like that,” Giacobbe said. “We are talking about tax dollars, and there is very limited tax dollars and very limited resources in these very difficult economic times.”

“As a steward of the taxpayer dollars, we have to make sure that those tax dollars are being spent in accordance with law,” Giacobbe said.

But Hatikvah attorney Thomas Johnston counters that the charter school submitted lottery applications and proofs of residency to the Department of Education that showed they had met the 90 percent enrollment requirement.

The commissioner of education, Johnston said, is granted wide interpretation of his own regulations. Johnston said those regulations only require evidence of enrollment and not a specific type of evidence.

“They interpreted it differently than the commissioner, but when there is difference of opinion on how a regulation is interpreted, the commissioner wins over East Brunswick,” Johnston said.

And while the district had the enrollment documents, Johnston contends that the school district directly obstructed the enrollment process, telling parents incorrect information and attempting to dissuade parents from enrolling at Hatikvah.

“Essentially, you had East Brunswick, as keepers of the initial enrollment documentation, obstructing that process and then faulting Hatikvah for, according to East Brunswick, failing to provide the documentation that East Brunswick obstructed in the process in the first place,” Johnston said.

East Brunswick school officials have disputed those claims. Superintendent of Schools Jo Ann Magistro discussed the charter school’s concerns during an August 2010 board meeting, saying that it was the charter school that had been uncooperative in communications with the school district.

On the matter of funding for the charter school, Johnston said, the school district is only the custodian of taxpayer dollars.

“Hatikvah is funded through local tax levies and state aid,” he said. “It just happens to go through the East Brunswick school district.”

Johnston said the continuing litigation is simply a “resident school district trying to leverage its greater resources to remove public school choice from East Brunswick residents.”

“Why would they do that?” he said. “They would do that for money and they don’t want the competition.”

Meanwhile, Hatikvah officials recently filed a formal Open Public Records Act request with the school board, seeking information on how much the district has spent in litigation regarding the charter school. As of last week, Johnston said the district had yet to respond to the request.

Contact Chris Zawistowski at czawistowski@gmnews.com.