The debate over charter schools, which has been waged largely in the political arena, looks like it’s heading to court.
The Globe reported on Sunday that three top Boston lawyers plan to file suit contending that the state’s constitutional obligation to provide all children an adequate education means the cap should be lifted on charter schools, which are public but independently run. The suit will argue that charters often provide better outcomes for poor children who are otherwise consigned to attending low-performing district schools.
“This is, frankly, an issue of civil rights, and this is an issue which the Legislature, for one reason or another, has failed to act on,” Michael Keating, a past president of the Boston Bar Association and one of the three lawyers filing the the suit, told the Globe. “It is not inappropriate, in those circumstances, to seek judicial relief.”
It is believed to be the first time a constitutional challenge has been filed against charter school caps in any state, and it is quickly roiling the waters in the Massachusetts education world.
Teachers union leaders came out swinging in response to news of the planned lawsuit. Barbara Madeloni, president of the Massachusetts Teachers Association, told the Globe: “Any claim that the charter school cap is the basis of Massachusetts children being denied their civil rights is appalling and deceptive.”
Charter school opponents have said the schools harm district systems because funding follows students who enroll in charter schools.
If there is any civil rights violation taking place in public schooling in Massachusetts, it is the inadequate funding of district schools, Richard Stutman, president of the Boston Teachers Union, told the paper.
There is plenty of precedent for education battles being waged in court, rather than in the political arena. Indeed, Stutman’s comments about funding are something of an echo of the battle leading up to passage of the state’s 1993 Education Reform Act, which brought a dramatic increase in school funding for poorer communities. The law, which also introduced the standards and accountability system that introduced MCAS, was an attempt by elected officials to stay a step ahead of court action, which was certain to mandate greater state spending on schools and greater equity in allocating those resources if lawmakers did not.
Adding a good bit of intrigue to the pending suit is the fact that two of the parties the lawyers plan to name as defendants, Gov. Charlie Baker and his education secretary, James Peyser, are both huge charter school supporters, who would like nothing more than to see the cap lifted.
One person who appears to have seen a move like this coming is national education policy analyst Andy Smarick. In December, he engaged in a discussion [behind Education Week’s paywall] with Holy Cross professor Jack Schneider on the topic of when courts should intervene in school issues. Smarick even envisioned a scenario in which a case is brought to increase the charter cap in Massachusetts based on studies showing the good results they deliver to low-income students.
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