The controversial and polarizing charter school debate could soon become a civil rights battle in Massachusetts, where three lawyers prepare to mount a legal challenge to the state’s charter school cap. Currently, Massachusetts law limits the number of charter schools to 72 and total enrollment to 30,034. It also restricts local charter spending to nine percent of the district total, generating binding or near-binding caps in specific districts, such as Boston, where charter enrollment is high.[1] Paul Ware, Michael Keating, and William Lee, partners at three Boston law firms, will attempt to challenge these charter caps on constitutional grounds, arguing that the government does not have the right to deny Massachusetts students a quality education. They believe that access to education is a civil rights issue and that, in the absence of effective legislative action to expand the number of charter schools in the state, it is appropriate to seek judicial relief.

The decision to challenge the cap reflects a growing frustration among Massachusetts charter school advocates, who have repeatedly seen efforts to expand the number of these schools defeated by the state legislature. The most recent legislative fight occurred last July, when the state senate voted 26 to 13 against a proposal that would have made charter school expansion contingent on the state reimbursing school districts for each student transferred from a traditional public school to a charter school. A House version of the same bill was also rejected 30 to 9. The new legal challenge represents an alternate avenue through which advocates hope to gain traction in expanding charter school access in the state.

Charter schools are controversial because they are not unionized, operate independently of local school districts, and have more latitude to develop their own curricula, budgets, and hiring procedures. Supporters of charter schools argue that they often achieve better results than traditional public schools and provide an alternative for low-income families who cannot afford to send their children to private or magnet schools. They believe that more students should have access to the quality education offered by these schools, and that it is unjust to impose a cap that leaves many students’ only chance at a quality education in the hands of a lottery system.

Opponents to charter school expansion argue that these schools create “separate but unequal” conditions for academic achievement. Because students who attend charter schools take with them state aid from their hometown districts, the presence of charter schools can have an adverse financial impact on traditional public schools. In addition, because charter lottery systems are opt-in and not opt-out, they tend to be self-selective. The combined effects of these phenomena force many student populations (such as immigrants, refugees, and the uneducated poor, whose parents may not know to enter them into a lottery system) to fend for themselves in an underfunded traditional public school system.

Plaintiffs will likely invoke the Supreme Judicial Court’s decision in McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545, 615 N.E.2d 516 (1993), a suit brought on behalf of students in property-poor communities who alleged that the school finance system violated the education clause of the Massachusetts Constitution. The education clause states that it “shall be the duty of the legislatures and magistrates…to cherish…the public schools and grammar schools in the towns.”[2] The Supreme Judicial court held in McDuffy that the education clause imposes an enforceable duty to provide an education for all children through the public schools, and that the Commonwealth had failed to meet its constitutional obligation in this case. Charter schools are publically funded, meaning they fall under the category of “public schools” referred to in the state constitution and the McDuffy opinion.

Since the legal challenge to the charter school cap is based on a rights rationale, the plaintiffs will likely have to show that charter schools perform as well as, if not better than, traditional public schools. This assertion will be difficult to prove, as the data does not provide clear evidence either way. For example, in 2010 a national study by the National Center for Education Evaluation and Regional Assistance found that, on average, charter middle schools that held lotteries were neither more nor less successful than traditional public schools in improving math or reading test scores, attendance, grade promotion, or student conduct within or outside of school.[3] The data for Boston schools looks slightly better; in 2009, the School Effectiveness and Inequality Institute conducted a study where they found that attending a charter school in Boston significantly boosts, on average, student scores on the Massachusetts Comprehensive Assessment System (MCAS).[4] However, the lack of conclusive national data will make it difficult to argue that limiting access to charter schools categorically restricts the rights of Massachusetts students to a quality education.

In addition to the charter cap challenge being legally problematic, I would argue that it is not the optimal solution to closing the achievement gap in Massachusetts. Framing the issue in binary terms—by labeling charter schools as “good” and public schools as “bad”—will not be effective in increasing student achievement. This assumption presents a false dichotomy because while there are many charter schools that perform exceptionally well, others are mismanaged and produce low student achievement. Similarly, Massachusetts has some of the best public schools in the country, but there are a number of counties where student achievement has remained low and stagnant for decades.[5] What the Massachusetts education system really needs is an effective blanket system of accountability for all schools, and a solution to the public funding issue that causes so much controversy in the charter debate. Legislation such as the failed July 2014 bill may be a good start in addressing the financial concerns of charter school expansion; however, they should be coupled with additional initiatives that increase teacher and administrative accountability, improve and align testing standards, and increase overall funding to the school system. Boosting student achievement should not be a question of “charters or no charters” but one of accountability and transparency for the education system as a whole.


[1]Atila Abdulkadiroglu, Joshua Angrist, Susan Dynarski, Thomas J. Kane, Parag Pathak (November 2009). “Accountability and Flexibility in Public Schools: Evidence From Boston’s Charters and Pilots” 1 (1). p. 52.

[2]Mass. Const., pt. II, ch. V, § II.