Tuesday, March 17, 2015
Partners in some of Boston's largest law firms plan to file suit against Massachusetts, arguing that its cap on charter schools violates the state constitution's education clause. Their theory, at this point, is not clear. They say the suit will be brought on behalf of children who wanted to attend charter schools, but were not afforded a seat through the lottery procedures. Instead, the students enrolled in underperforming traditional public schools. “We don’t think they should be denied that opportunity, and we don’t think the Constitution allows them to be denied that opportunity,” Lee said. “We’d like to see the cap removed so that supply meets demand.” Their impetus appears to be a belief in studies claiming the academic superiority of charter schools.
The lawsuit is significant on several fronts beyond just the particular claims it might raise. First, it would appear to attempt to expand the scope of school finance precedent. This same type of strategy is at play in the constitutional challenges to tenure in Vergara v. California and similar litigation in New York. As analyzed here, the tenure theory can find some support in school finance precedent (although the plaintiffs' facts are lacking on causal questions), but how charter caps would fit into school finance precedent is far from obvious. To the contrary, the better constitutional arguments have been that charter schools violate the education clause (although courts have been reluctant to hold as much). Absent some revolutionary theory, the challenge to charter school caps is unlikely to go far. Nonetheless, it is an important example of how malleable school finance precedent could expand or, at least, how many different types of lawsuits might be brought in the attempt to expand it.
Second, this lawsuit also represents another instance of what David Sciarra has called grandstanding in education cases by certain big law firms. Education reformers' political theories are being transformed into constitutional claims by big law firms looking for pro bono work. It is unclear as to whether the firms are being duped by education reformers self-righteousness and their civil rights rhetoric or the firms are just looking to grab headlines through controversial litigation. Either way, the litigation is potential dangerous to long term education rights. The constitutional right to education is not political and never should be treated as such, but educational constitutional claims push separation of powers concerns to the brink in school quality and quality cases. Voyeurism into this area with these new claims looks like politics rather than vindication of constitutional rights. In this respect, litigation of this nature has the potential to undermine current rights .
Third is the question of litigation resources. With all the fundamental funding, quality, and racial inequalities in public education systems, the notion that a major law firm would skip past those issues to litigate on behalf of charter school interests is ironic to say the least.