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Friday, April 27, 2018

Highest Court in Massachusetts Finds Cap on Charter Schools Constitutional

From WBUR 90.9 FM's Blog "Edify"

By Max Larkin
April 24, 2018

In an opinion issued Tuesday, Massachusetts' Supreme Judicial Court dismissed a complaint that the cap on the number of charter schools allowed to operate in state violates students' rights under the state's constitution.


The unanimous opinion, authored by Justice Kimberly Budd, affirmed a lower-court decision made in October, 2016. It holds that even when public schools under-serve their students, that doesn't mean state actors are failing in their constitutional duties — or that opening more charter schools is the only way to make it right.

The decision represents a third and possibly decisive setback for the proposal to lift the longstanding cap. In 2015, legislators decided against advancing Gov. Charlie Baker's bill for more charter schools, instead leaving the choice to voters — who then voted it down by a 24-point margin in 2016.

It's cause for disappointment and frustration among supporters of those schools, and for students and families who hoped to get in off their wait lists.

"Watching your own children have to suffer in a school that's under-performing -- and knowing that it's the result of a political turf war... it's crushing. It's devastating."
-- Keri Rodrigues

Keri Rodrigues is one of those people. She's an education activist who supported Question 2 in 2016. Now, she runs Massachusetts Parents United, an advocacy group supported in part by the pro-charter Walton Foundation. She has two sons who have tried and failed to get seats in a charter school.

"Watching your own children have to suffer in a school that's under-performing — and knowing that it's the result of a political turf war... it's crushing. It's devastating."

The five anonymous student-plaintiffs in the case dismissed by the SJC are in that same cohort. All five attend traditional public schools in Boston that rank in the bottom 20 percent of all state public schools when it comes to test scores.

And, all five students tried — and failed — to gain admission to better-performing charter schools with many more applicants than they have seats.

The plaintiffs argued that missed opportunity amounted to a violation of their shared right to an adequate public education, or to equal protection under the laws, as laid out in the state constitution.

The SJC opinion accepts the plaintiffs' arguments that, under the Massachusetts Constitution, state leaders must provide all students with an "adequate education," and that "the education provided at their schools is, at the moment, inadequate" based on testing data. But the court rejected the plaintiffs' conclusions.

The opinion holds that state officials and lawmakers must be allowed to work to improve poorly performing schools, and that the plaintiffs failed to demonstrate that the state's current approach -- including oversight and takeover of chronically under-performing schools — couldn't jump-start progress "over a reasonable period of time."

Rodrigues wasn't persuaded. "Over what period of time are we talking about? Because parents get roughly 12 years to get their kids an adequate education," she said. "So are we just supposed to roll the dice and hope the commonwealth is able to figure this out?"

But the SJC opinion goes further. It argues that even ifstudents' constitutional rights were definitively being violated, it still wouldn't mean the chart r program must be expanded.

The opinion states, "There is no constitutional entitlement to attend charter school," and further, that the court is barred from enforcing any "fundamentally political" remedy of that kind.

The issue has been almost entirely political in Massachusetts in recent years — especially since Baker's election in 2014. Baker, a longtime charter advocate, played a prominent role in the "Yes on Two" campaign two years ago.

But the argument advanced by teachers' unions and then-City Councilor Tito Jackson won out at the polls. Jackson and others held that charter schools — which attract local and state funding in proportion to their enrollment — were already draining too much money from traditional public schools.

As the SJC deliberated, attorney Matt Cregor, who runs the education project of the Lawyers' Committee for Civil Rights and Economic Justice, filed a brief making that argument again. Cregor was representing his own student-clients — English learners and students with disabilities that are still under-represented at charter schools.

Cregor suggested that students in those sensitive populations tend not to thrive at charter schools. For them, he said, lifting the cap would be "doubly harmful": "First, it takes money from the schools that are required to serve everybody. And second, it eliminates the number of choices they have available, as their schools shrink or close and the number of charters increase."

What's Next After The SJC's Opinion?

For Cregor, Tuesday's opinion was an invitation to move on from the now years-old fight over these caps. "We need solutions as a state that positively improves education for all of our students, across the board," he said.

It's unclear what options are left for those who want to see charter schools expand their presence in Massachusetts after this series of political setbacks.

In a statement, Tim Nicolette, executive director of the state's charter school association, complained that the cap will "continue to arbitrarily deny families the high-quality choices that charter public schools offer." He added that many communities still have not met their charter cap, and that the sector will continue to expand "in the slow, steady way we have for the past 20 years."

Rodrigues said she hasn't given up the fight. "Our children have a constitutionally protected right to an adequate education," she said.

"I haven't seen a definitive plan — from anyone — with concrete steps as to how we're going to overcome the achievement gap. Until I see those steps, I don't have any assurance that if I send my kid to a traditional district school, they're going to get that adequate education."

It's worth noting that litigation of this kind did spark comprehensive change back in 1993. In the famous McDuffy case, plaintiffs headed by Brockton sixth-grader Jami McDuffy argued that state under-funding meant that some students weren't getting the "adequate education" to which they were entitled. The court supported the claim, ushering in a wave of new spending and comprehensive education reform.

Now, Brockton is weighing another such suit as it faces a budget shortfall. The SJC signaled an openness to that complaint in Tuesday's opinion. And Rodrigues, speaking for her organization, says she would support that initiative, too — anything that would make an "adequate education" available to more young people throughout Massachusetts.

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