Don’t Cheer Too Loudly at Massachusetts’ Charter-School Ruling

It protects public schools, but offers no help in improving them.

A sign against a ballot question to lift the cap on charter schools in Massachusetts is seen at McKinley South End Academy in Boston on Sept. 28, 2016.
A sign against a ballot question to lift the cap on charter schools in Massachusetts is seen at McKinley South End Academy in Boston on Sept. 28, 2016.
David L. Ryan/The Boston Globe via Getty Images

Last week, the Massachusetts Supreme Court upheld the statutory cap on the number of charter schools that can operate in the state. Traditional public school supporters hailed the decision as a major policy victory, one they hope will stave off extensive charter-school growth and subsequent negative effects on traditional public schools. The court suggested these fears may have been the state’s primary motivation in capping charter-school growth.

But the impact of the decision will extend well beyond charter-school policy, because it speaks more broadly to what the right to education means and how it is relevant to education reform. All 50 state constitutions, in one way or another, guarantee access to equal, adequate, and stable public education. Beginning in the 1970s, disadvantaged students and school districts used this state right to education to try to force legislatures to equally and adequately fund public education. In about half the states, this so-called school-finance and education-quality litigation prevailed, with generally positive results.

In the past few years, though, a new group of education reformers who believe schools should operate more like businesses have tried to push this precedent in a new direction. Their movement began with legislation to reform the teaching profession. They asked policymakers to restrict the influence of unions, narrow or eliminate tenure, and rate teachers based on how their students perform on standardized tests. They were successful at passing these laws in several states. Where they failed, they’ve turned to the courts, trying to leverage older legal precedent regarding the right to adequate and equal public education to further their current policy agendas.

The highest-profile example was Vergara v. State, a case filed in California in 2012. It relied on California precedent from the 1970s that recognized a fundamental right to education under the California Constitution. The Vergara plaintiffs made a claim analogous to those from the 1970s, arguing that students in predominantly minority schools were receiving qualitatively inferior instruction. The difference, however, was that while inadequate funding was the cause of the educational inequalities in the 1970s, the Vergara plaintiffs argued that teacher tenure was the cause of today’s inequality. Tenure, they argued, prevented schools from removing grossly ineffective teachers. If true, teacher tenure should be unconstitutional just like any other policy that deprives students of their fundamental right to education.

Vergara’s general theory about challenging deprivation of education was on point. The problem was that the plaintiffs made a huge logical leap regarding the causes of unequal access to quality instruction, a leap that rested on faulty assumptions. Many other factors—most importantly inadequate funding and segregation—cause unequal access to quality instruction, not teacher tenure. And even if tenure plays some role, that does not necessarily make tenure protections unconstitutional. The remedy could just as easily be to require the state to provide districts with the assistance they need to remove tenured teachers who are no longer meeting teaching expectations.

The trial court ignored these factual and policy distinctions and famously declared teacher tenure unconstitutional in 2014. The state Supreme Court would later see through the trial court’s flawed reasoning and reverse its decision in 2016, but the trial court decision had already produced ripple effects across the nation. Within months, the trial court decision emboldened anti-tenure advocates to bring copycat lawsuits in New York and Minnesota, which are still pending today.

Vergara also provided the model for the Massachusetts charter lawsuit. If plaintiffs could dictate tenure policy by claiming it denied students equal education, charter advocates might be able to use the constitutional right to education to similarly further their own interests. In 1993, in McDuffy v. Secretary, the Massachusetts Supreme Court held that the state constitution guarantees students the right to an adequate education. When the McDuffy plaintiffs established that their schools lacked the necessary resources to obtain an adequate education, the court ordered the state to reform the way it funded public schools.

The new Massachusetts charter lawsuit argued that rather than increasing school funding, another remedy could be appropriate when the state fails to provide an adequate education in its public schools—eliminating the cap on charter schools in the state. If charter schools can provide a better education, the argument goes, the remedy to inadequate public schools should be to open more charter schools.

The Massachusetts Supreme Court rejected the claim for the same reasons that the California Supreme Court dismissed the tenure case: While students have a right to equal and adequate education—and a remedy when the state fails to provide it—the precise remedy falls within the state’s discretion. Even in McDuffy, the court had not ordered a specific remedy or level of funding; it had simply emphasized that schools’ resources were inadequate and left it to the state to develop a plan to fix it. The charter-school claim asked the Court to go further and dictate a precise policy remedy—something courts almost never do.

No doubt, then, the Massachusetts Supreme Court’s decision comes as a rebuke to those who would highjack the right to education for their own agenda. But those who support traditional public schools should not cheer too loudly: The court also indicated that it was not receptive to school-finance and education-quality claims either. It wrote that “the education clause imposes an affirmative duty on the Commonwealth to provide … constitutionally ‘adequate’ ’’ education opportunities, but to succeed, plaintiffs must “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.’ ” So no matter what remedy plaintiffs are seeking—more charters or money—educational opportunities have to be really bad for a really long time for plaintiffs to state a valid claim.

A similarly sad story played out in Vergara, where teacher tenure survived but so too did poor educational opportunities for disadvantaged students. The fact that the state was denying students in predominantly minority schools a good education was pretty clear. The disagreement was over the cause and the remedy. The fact that plaintiffs got the cause and remedy wrong did not mean that the state was doing anything right.

Court decisions that turn away charter and teacher-tenure claims may help public school advocates, but they can be hollow victories for public school students. While the decisions prevent the perversion of the right to education—which is a good thing—they do nothing to actually improve the educational opportunities that students receive. To the contrary, when the Massachusetts Supreme Court indicates it will only entertain claims involving widespread and protracted education failures, it makes it harder for plaintiffs to bring otherwise valid challenges to serious and continuing funding inequalities and inadequacies in public schools. When courts do this, they create their own perversion of the right to education. And this trend—the increasing reluctance to enforce students’ right to education right now—is the most troubling of all.