Doe v. Sec'y of Educ.

• Decision Date: 24 April 2018
• Docket Number: SJC–12275
• Citation: 95 N.E.3d 241,479 Mass. 375
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Jane DOE No. 1 & others v. SECRETARY OF EDUCATION & others.

479 Mass. 375

95 N.E.3d 241

Jane DOE No. 1 ¹& others²

v.SECRETARY OF EDUCATION & others.³

SJC–12275

Supreme Judicial Court of Massachusetts, Suffolk..

Argued October 2, 2017

Decided April 24, 2018

Kevin P. Martin (Paul F. Ware, Jr., also present), Boston, for the plaintiffs.

Robert E. Toone, Assistant Attorney General (Juliana deHaan Rice & Julia Kobick, Assistant Attorneys General, also present) for the defendants.

Melissa C. Allison, Cambridge, for Savina Tapia & others.

Ira Fader, Alan H. Shapiro, Boston, & John M. Becker, for Massachusetts Teachers Association, amicus curiae, submitted a brief.

Brian C. Broderick & Ryan P. McManus, Boston, for Pioneer Institute, Inc., & others, amici curiae, submitted a brief.

Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.

BUDD, J.

Five students who attend public schools in the city of Boston filed a complaint in the Superior Court against the Secretary of Education, the chair and members of the board of secondary and elementary education, and the Commissioner of Education (commissioner), alleging that the charter school cap under G. L. c. 71, § 89 (i), violates the education clause and the equal protection provisions of the Massachusetts Constitution because the students were not able to attend public charter schools of their choosing. A judge of that court allowed the defendants' motion to dismiss. We affirm the judgment of dismissal and conclude, as did the motion judge, that the plaintiffs have failed to state a claim for relief under either provision.⁴

Background. 1. Statutory framework and history. Twenty-five years ago, the Legislature enacted the Education Reform Act of 1993 (1993 Act). St. 1993, c. 71. The 1993 Act "entirely revamped the structure of funding public schools and strengthened the board [of education]'s authority to establish Statewide education policies and standards, focusing on objective measures of student performance and on school and district assessment, evaluation and accountability."⁵ Hancock v. Commissioner of Educ., 443 Mass. 428, 437, 822 N.E.2d 1134 (2005) (Marshall, C.J., concurring). Among other things, the 1993 Act added G. L. c. 71, § 89 (charter school statute), authorizing charter schools to operate in the Commonwealth to encourage innovation in the educational realm. St. 1993, c. 71, § 55.

Policymakers established charter schools as a reaction to what was seen as a traditional public school system resistance to innovative education methods. As the 1993 Act was making its way through the Legislature, one policymaker publicly opined that charter schools were needed because teachers wanted to bring creative teaching styles to the public schools, but principals, superintendents, and school committees often blocked their innovations: "The current system is too rigid, too inflexible[,] and it doesn't adopt to change quick enough to meet the needs of students." State House News Service, Charter Schools (Feb. 24, 1993) (statement of Undersecretary of Education for Policy and Planning Michael Sentance). Ultimately, charter schools were intended to provide "a laboratory for testing different methods and those methods that proved useful ... would be replicated" in traditional public schools. Id. (statement of Senate Ways and Means Chairman Thomas Birmingham). A bill summary accompanying the conference committee report described charter schools as "laboratories of change, allowing for experimentation to encourage creative ways of addressing the needs of the children of the Commonwealth."⁶ The Education Reform Act of 1993, Conference Committee Report Highlights (May 24, 1993).

There are two types of charter schools: "commonwealth" charter schools and "Horace Mann"⁷ charter schools. G. L. c. 71, § 89 (a ) and (c ). Horace Mann charter schools are subject to more statutory requirements than commonwealth charter schools. See id. at § 89 (c ). Both types of schools operate under charters granted by the board of elementary and secondary education (board) and each is managed by a board of trustees. Id. However, a Horace Mann charter school must be "approved by the school committee and the local collective bargaining unit in the district where the school is located," whereas a commonwealth charter school operates independently of the local school committee and local collective bargaining unit.⁸ Id. The Department of Elementary and Secondary Education (department)⁹ now identifies these "standard" Horace Mann schools as Horace Mann I schools. See 603 Code Mass. Regs. § 1.04(1)(a) (2014). Additionally, charter schools may operate as Horace Mann II or Horace Mann III charter schools. See G. L. c. 71, § 89 (c ) & (i ) ; 603 Code Mass. Regs. § 1.04(1)(a). The latter two schools are subject to requirements that are somewhat different from those to which the Horace Mann I schools are subject. See G. L. c. 71, § 89 (c ) & (i ), as amended by St. 2010, c. 12, § 7; 603 Code Mass. Regs. § 1.04(1)(a).¹⁰

Commonwealth and Horace Mann charter schools are also funded differently. See 603 Code Mass. Regs. § 1.07 (2014). Horace Mann charter schools operate under budgets determined and annually approved by the local school committee. G. L. c. 71, § 89 (w ). For commonwealth charter schools, the department calculates a tuition payment for each district sending students to the school based on a statutory formula designed "to reflect, as much as practicable, the actual per pupil spending amount that would be expended in the district if the students attended the district schools." Id. at § 89 (ff ). The State treasurer pays these amounts to the schools and then reduces education and other aid payments to the sending districts by the same amounts. Id. See 603 Code Mass. Regs. § 1.07(2)(d).

Since 1993, only a limited number of charter schools have been authorized under the statute. See St. 1993, c. 71, § 55; G. L. c. 71, § 89 (i ). One explanation for the Legislature's decision to limit charter schools is that the limited funds of local school districts are allocated to charter schools and away from traditional public schools each time charter schools expand. See G. L. c. 71, § 89 (w ) & (ff ).¹¹ Widespread concern over the impact of charter schools on public school district revenues supports the conclusion that a primary purpose of caps on charter schools is to limit this impact.

As currently written, the charter school statute limits commonwealth charter schools in two ways: a net school spending cap, which applies only to commonwealth charter schools, and a limit on the total number of charter schools permitted to operate in the Commonwealth.¹² See G. L. c. 71, § 89 (i ). The net school spending cap limits the amount of school district money that must be set aside for commonwealth charter schools (and therefore limits the amount of commonwealth charter school seats in a district). See id. at § 89 (i ) (2). Net school spending comprises all school district spending on public education, from both State aid and local sources.¹³ See G. L. c. 70, § 2. For most school districts in the Commonwealth, the statute limits net school spending to nine per cent of total public education spending. G. L. c. 71, § 89 (i ) (2). However, in districts that the board has designated as the lowest performing ten per cent of school districts Statewide, the net school spending cap is eighteen per cent of total public education spending. Id. ¹⁴ The charter school statute also limits the total number of charter schools permitted to operate in the Commonwealth to 120, only seventy-two of which may be commonwealth charter schools. See G. L. c. 71, § 89 (i ) (1).

The history of charter school caps in Massachusetts encompasses multiple legislative enactments spanning several decades. The Legislature has steadily increased the number of permissible charter schools and charter school seats. See St. 1993, c. 71, § 55 (limiting number of charter schools in each city or town and total number of students attending charter schools in Commonwealth to no more than three-quarters of one per cent of public school students; and permitting no more than twenty-five charter schools to operate in Commonwealth at any one time); St. 1997, c. 46, § 2 (increasing total number of charter schools permitted to operate and total number of Commonwealth's public school students permitted to attend charter schools, and setting net school spending cap at six per cent for all districts); St. 2000, c. 227, § 7 (increasing total number of charter schools permitted, but authorizing only seven each year until reaching new total cap; increasing total number of public education students permitted to attend charter schools; and increasing net school spending cap to nine per cent); St. 2010, c. 12, § 7 (increasing net school spending cap to eighteen per cent for commonwealth charter schools located in districts designated as having student performance in lowest ten per cent Statewide,¹⁵ eliminating cap on total number of Commonwealth's public school students permitted to attend charter schools, and exempting Horace Mann II schools from all caps).

Whether the charter school cap should be lifted continues to be debated vigorously in the Commonwealth. Although the Legislature has not increased the caps since 2010, both chambers have frequently considered and voted on measures that would have done so. See 2016 Senate Doc. No. 2203, § 93; 2016 Senate J., Uncorrected Proof (Apr. 7, 2016); 2014 Senate Doc. No. 2262; 2014 House Doc. No. 4108; 2014 House J. 1396–1400; 2014 Senate J., Uncorrected Proof (July 16, 2014). On November 8, 2016, voters considered and rejected ballot question 2, which would have permitted up to twelve new charter schools or enrollment expansions in existing charter schools each year.¹⁶

2. Factual and procedural history. The following facts are taken from the plaintiffs' complaint. The plaintiffs are five students who attend, or are assigned to attend, schools in the city of Boston. Each plaintiff attends a school that...