A provocative court challenge to charter cap
Suit would essentially say Boston district schools deliver inferior education
By 
TWO MONTHS AGO, three prominent Boston lawyers made a big splash with news on the front-page of the Boston Globe that they plan to file a lawsuit challenging the state cap on charter schools.
The suit has yet to be filed — the lead attorney in the case says it will be in the coming months. But it is already stirring debate, with some questioning whether the issue is one that a court will see fit to rule on. Meanwhile, Boston charter school leaders, who have been trying to build bridges to leaders of district schools, find themselves walking a fine line: They are voicing support for the broad goals of a suit, while making it clear that they had no role in conceiving or planning a legal challenge that will argue students forced to attend Boston district schools are getting an inferior education.
The reaction underscores how charged the debate is over charter schools, which are publicly funded but operate independent of local districts and with considerably more leeway over staffing, budgeting, and the structure of their school day.
The lawyers, William Lee, Paul Ware, Jr., and Michael Keating, plan to challenge the charter school cap by arguing that it violates the state constitution’s guarantee of an adequate education for all children. They plan to point to several studies carried out in recent years that identify Boston charter schools in particular as delivering superior outcomes to those obtained by students in the city’s district school system.
The three attorneys say it will be the first case in the country to challenge a charter school cap on constitutional grounds. There are 80 charter schools in the state. Current law caps spending on charters to no more than 18 percent of a district’s school spending, a limit that Boston, with 34 charter schools, has reached and several other communities are nearing.
The lawyers plan to cite the Supreme Judicial Court’s landmark 1993 McDuffy ruling, which established the right of all children in the state to a “minimally adequate” education. The ruling drew on a provision of the state constitution mandating that the state “cherish” the “public schools and grammar schools in the towns.”
Within days of the McDuffy decision, the Legislature passed the 1993 Education Reform Act, which dramatically increased state education aid to poorer districts and introduced new standards and accountability for school performance.
One fundamental question in a suit will be whether the constitutional guarantee of an adequate education, which has been used here and in other states with similar provisions to press for more equity in school funding, can be applied to something as specific as a state limit on charter schools.
Peter Enrich, a professor at Northeastern University law school, said at a forum convened last month to discuss the planned lawsuit that he was skeptical of whether Massachusetts courts would find the charter-cap challenge to be a “justiciable” issue that is within their purview to rule on. It is a “very high bar” to think a court will order a remedy as specific as the lifting of a cap on charter schools, he said.
Michael Rebell, a professor of law and educational practice at Teachers College and Columbia Law School, agrees. Courts are “usually very cautious,” he said. “They don’t want to get into the weeds of what legislatures should deal with.”
Matt Cregor, an attorney with the Lawyers’ Committee for Civil Rights and Economic Justice, raised another potential hurdle at the Northeastern University forum. If the plaintiffs plan to argue that the cap has prevented some students from accessing a better education at charter schools, that could imply that other children are being provided a constitutionally inadequate education if they are “stuck” in a low-performing district school. “That’s a problem for the lawsuit,” Cregor told the audience.
The suit will be filed in Superior Court or directly with the Supreme Judicial Court.
Lee and his colleagues are partners at three of Boston’s name-brand firms: Lee is at WilmerHale, Ware is at Goodwin Procter, and Keating at Foley Hoag. Lee said the three firms are committing pro bono resources to the case. In March, lawyers from the firms attended the lotteries held to award seats at four Boston charter schools. The lawyers are working to identify families who sought seats at a charter schools but weren’t selected in the lottery to serve as plaintiffs in the lawsuit.
Marc Kenen, director of the Massachusetts Charter Public School Association, says the statewide organization is not involved in the case, but “strongly supports the lawsuit.”
The suit is creating a delicate situation, however, for Boston charter school leaders. “We’re not a party to the suit. Many of us were as surprised as anyone else was to hear about it,” said Shannah Varon, executive director of Boston Collegiate Charter School. Varon serves as chair of an alliance of charter schools within Boston. “That said, we support any effort that would increase the number of high quality seats for children of Boston and choices for parents,” Varon said.
Four years ago, leaders of Boston charter schools and the district school system signed a compact pledging a new era of collaboration across the two sectors to improve education for all children in the city. The Archdiocese of Boston schools later joined the school compact. Charter school leaders say they don’t want the planned lawsuit to disrupt the working relationship they’ve developed with district officials.
Nevertheless, some of them are now cooperating with Lee and his colleagues, within the bounds of privacy restraints they operate under, to identify families who did not win charter seats in the recent lottery to serve as potential plaintiffs in the lawsuit.
Lawsuits of this kind are often used to put political pressure on legislatures or other offices to take action. Enrich, the Northeastern University law professor, thinks that’s what’s happening here. “This ultimately is probably much more about the politics than the law,” he said at the recent forum.
It’s not clear that the case is more about politics than law. Lee and his colleagues believe they can build a sound legal case to support the removal of the charter cap. But the case certainly is about politics in addition to being about the law.
“It is one piece of a larger puzzle,” Lee said of the legal action. “These same issues are being considered in the Legislature, they’re being considered in City Hall, they’re being considered by the executive branch at the State House.”
The Legislature balked last year at raising the cap on charter schools. Charter schools now have huge allies in Gov. Charlie Baker and his education secretary, Jim Peyser. But it’s not clear that the political prospects have improved in the Legislature.
At a forum earlier this week on school reform issues, Alice Peisch, the House cochair of the Legislature’s Education Committee, expressed some exasperation with the current stalemate on the issue. Although the House passed a cap-raising measure last year, the Senate did not go along with what Peisch described as a fairly “modest” bill. She said some House members may be reluctant to “go out on a limb again” by taking another vote on the contentious issue if there isn’t clear support in the Senate.
Charter school opponents say the independently-run schools hurt district schools by drawing funding away from local districts, and they say charters don’t educate as many English language learners or students with special needs.
In a sign of how tangled the politics of education reform have become, some of the staunchest supporters of the McDuffy argument that there is a constitutional guarantee of an adequate education strongly oppose use of the case to argue for removal of the charter school cap.
State Sen. Patricia Jehlen, who was part of the Northeastern panel discussion, was a Somerville school committee member in the early 1990s and fully behind the McDuffy challenge. But she views the expansion of charters as the wrong approach to deal with struggling district schools. If urban schools are not meeting their education obligation, she said, “is the remedy to repair the ship or to launch more lifeboats?”
Further complicating the alignment of players and politics is the fact that Peyser, as Baker’s education secretary, would be named as a defendant in the suit, even though he’s a strong charter school supporter.
Baker’s office released the same statement that was provided to the Globe in March: “The administration does not comment on pending litigation, but the governor has consistently supported raising the charter school cap and continues to believe strongly that all students should have access to high quality schools, especially in underperforming districts.”
“There is nothing more important than the education of our next generation,” he said. “The children in Massachusetts have a constitutional right to a minimally adequate education, and we’re just trying to make sure they get it.”