Wednesday, April 25, 2018

Massachusetts Supreme Judicial Court Rejects Policy Ploy to Use Constitutional Right to Education to Eliminate Charter Cap

--image by Swampyank

Yesterday, the Massachusetts Supreme Judicial Court dismissed the attempt by charter school advocates to use the state's education clause to force more charters on the state.  This basic holding is, no doubt, reason to celebrate.  It is an enormous victory for those who support traditional public schools--or at least offers a huge sigh of relief.  The opinion, unfortunately, should also make us cry because it continues a troubling pattern of judicial disengagement on the right to education that began in 2005.

We should applaud the decision because it refused to allow policy dictate the outcome:


[E]ven if the plaintiffs had successfully stated a claim under the education clause, the specific relief that they seek would not be available. The education clause provides a right for all the Commonwealth's children to receive an adequate education, not a right to attend charter schools. The education clause provides a right for all the Commonwealth's children to receive an adequate education, not a right to attend charter schools. "[T]he education clause leaves the details of education policymaking to the Governor and the Legislature."

Thus, here, although the remedy the plaintiffs seek by way of this action, i.e., expanding access to charter schools, could potentially help address the plaintiffs' educational needs, other policy choices might do so as well, such as taking steps to improve lower-performing traditional public schools. There may be any number of equally effective options that also could address the plaintiffs' concerns; however, each would involve policy considerations that must be left to the Legislature.

This part of the Court’s decision is exactly in line with my analysis of Vergara v. California.  There, plaintiffs had attempted to use the education clause to argue that teacher tenure was unconstitutional.  The Court ultimately dismissed that case as well for much of the same reasons as the current Massachusetts case.

But this new decision should also make us cry.  Turning away this charter claim does not guarantee that the state will provide adequate educational opportunities to students in the public schools.  And this decision said nothing that would increase the pressure on the state to do so.  The Court wrote:

We agree with the plaintiffs that the education clause imposes an affirmative duty on the Commonwealth to provide a level of education in the public schools for the children there enrolled that qualifies as constitutionally "adequate." However, we conclude that . . . plaintiffs would need to plead facts suggesting not only that they have been deprived of an adequate education but also that the defendants have failed to fulfil their constitutionally prescribed duty to educate. . . .

To allege that the Commonwealth has failed to fulfil its duty to educate, plaintiffs must plead sufficient facts that, accepted as true, demonstrate that the Commonwealth's extant public education plan does not provide reasonable assurance of an opportunity for an adequate education to "all of its children, rich and poor, in every city and town," over a reasonable period of time, or is otherwise "arbitrary, nonresponsive, or irrational."

 I am working on a longer analysis, so stay tuned for an update to this one or a separate one all together.

 --on Twitter @DerekWBlack

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