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Friday, October 14, 2016

Massachusetts Court: School Choice is Not a ‘Civil Right’

From The Huffington Post

By Mercedes Schneider, Ph.D.
October 9, 2016

"The education clause 'obligates the Commonwealth to educate all its children.' … This obligation does not mean that Plaintiffs have the constitutional right to choose a particular flavor of education, whether it be a trade school, a sports academy, an arts school, or a charter school."

On October 6, 2016, Massachusetts Education Blogger Jennifer Berkshire posted that the Massachusetts Superior Court had tossed a lawsuit arguing that raising the charter school cap was an issue of student civil rights.

The argument that school choice is a “civil right” is not exclusive to Massachusetts. However, the ruling that student civil rights are not violated if the student applies for charter school admission and is not accepted due to applications outnumbering available seats– even if the school that the student currently attends has a low rating on the state rating system for public schools– is worth noting even for those residing in other states.

On October 04, 2016, Massachusetts Superior Court Associate Justice Heidi Brieger signed this motion to dismiss the lawsuit arguing that charter school attendance is a civil right.


Massachusetts Superior Court Judge Heidi Brieger

A number of points in Brieger’s decision are worth noting.

First of all, Brieger dismisses the idea of a low-scoring school as “failing” its students. She turns this idea on its head, noting that the purpose in grading schools is to help those with low scores, and that an education department designation does not equal the state’s abandoning the school:


"Plaintiffs allege that each attends a school that has been designated as a Level 3 or Level 4 school by the Commonwealth. Further, these schools fail to teach a significant number of its students to be “proficient or higher” in the MCAS examination subjects. Thus, Plaintiffs claim each has been deprived of a constitutionally “adequate” education.

Accepting Plaintiff’s allegations as true, however, does not mean that the court must find that because a school has been designated as a Level 3 or 4 school, and the students have low MCAS examination scores, that there has been a kind of “Statewide abandonment” demonstrating a constitutional violation.

To the contrary, the Department classifies schools by level so it can identify the schools most in need of assistance and then provide such schools with the ways and means to improve the school. …

The Attorney General argues that a Level 4 designation is not an admission that the school or school district has abandoned its constitutional duty to provide an education to its students. The court agrees. The five-level regulatory framework is a policy-driven measurement tool designed to single out schools for extra scrutiny and improvement so as to ensure the Commonwealth is in fact fulfilling its constitutional mandate to provide “a public education system of sufficient quality” (pages 17-18). …"

The idea of grading schools in order to condemn schools is an idea born of and promoted by Jeb Bush. Bush promoted the idea of school grading in Florida and other states; however, the grading system is easily manipulated by those in charge of the criteria for grading– and it allows the corporate reform narrative of traditional public school failure to easily be communicated in the media and also open the door for “choice.”

In her October 04, 2016, decision, Brieger astutely identifies Massachusetts’ school grading system as a “policy-driven measurement tool,” not as an absolute standard that could be interpreted as Commonwealth negligence of some schools.

Brieger continues that school choice is simply not part of Massachusetts’ constitutional, public education obligation. She also affirms that it is not her place to interfere with legislative decisions regarding the specific school choices available:

"The education clause 'obligates the Commonwealth to educate all its children.' … This obligation does not mean that Plaintiffs have the constitutional right to choose a particular flavor of education, whether it be a trade school, a sports academy, an arts school, or a charter school. …Plaintiff’s action will always be addressed to the question of whether the Commonwealth is obliged to provide more than one flavor of education than another.

This decision– how to allocate public education choices amongst the multitude of possible types– is best left to those elected to make those choices to be carried out by those educated and experienced to do so… (“In the government of this commonwealth… the judicial shall never exercise the legislative and executive powers….) … (respect for separation of powers has led courts “to be extremely wary of entering into controversies where we would find ourselves telling a coequal branch of government how to conduct its business.”) …

The court concludes that the constitutional violation alleged by Plaintiffs here– denial of access to a particular type of school providing a particular type of education– is not… statewide abandonment of duty… and therefore does not require the court to intervene and insert itself in the details of public education policymaking. (pages 18-19)."

Brieger’s next point involves the reality that spending more money on charter schools leaves less money for districts. Thus, the legislative decision to limit the number of charter schools does not violate equal protection because the reason for the limit is “rational”:

"Both Commonwealth and Horace Mann charter schools are funded by the school districts from which they draw students or in which they are located. Consequently, public funding for charter schools necessarily affects public funding of non-charter schools in the district. Defendants argue, and the court agrees, that the Legislature’s charter school cap reflects an effort to allocate education funding between and among all the Commonwealth’s students and therefore has a rational basis and cannot violate the equal protection clause.

The court concludes that– even supplemented by discovery– Plaintiffs will be unable to establish that the charter school cap is not rationally related to the furtherance of a legitimate State interest in providing public education to every child of this Commonwealth (page 21)."

In offering school choice, the legislature (indeed, any legislature) must balance the choice decision with the maintenance of school district funding, since charters take education funding from school districts. This is an important point, particularly as Massachusetts voters face Question 2 on November 8, 2016.

Though ads in Massachusetts are telling the public that raising the state’s charter cap will actually increase money for public education, Question 2 includes no vote on additional funding.

It is also clear that the above decision to dismiss results from attempts by those wishing to raise that MA charter cap to do so by any means, even in trying to declare school choice a “civil right.”

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