Suing to Lift the Charter School Cap

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Lawsuit – who is part of it – Michael Keating (Foley-Hoag), William F. Lee (WilmerHale), Paul F. Ware Jr. (Goodwin Procter).  Good on them for doing it.  Is it a civil rights issue?  You bet it is.  The long history of the Civil Rights movement runs right through the Brown v Board of Education decision 60 years ago.  Education has been a central battleground.

Does that make bringing a lawsuit the wise course of action?  I admittedly have multiple (and not exactly aligned) views on the merits of legal action.

All kids deserve access to great schools – and all parents deserve choices.  In a free society – supposedly, a society of merit – education is the variable that determines if a young boy or girl will have the ability to rise socially and economically.  If that child has no good educational options, mobility is at best an exception, for most a chimera.

If needed, court intervention is a means to correct that situation, but what kind of statement does that make about all the supposed progress we’ve made on civil rights and equality of opportunity?  Really, in 2015 we have to resort to court action to uphold the most basic right of parents – that is, to secure a decent education?

Then there is the institutional, long-ball view.  Generally, I think we should be really prudent in when we push politics into what we hope are non-political venues like the courts.  Is this a political question?  It is certainly and substantially a question of vision and culture.  For me, that is politics.  My institutional, health-of-our-civics concern is this: If we draw politically charged matters to the courts too often, we end up politicizing the courts.  It’s unavoidable when we face the intransigence of special interests that care most about their own bottom line, but jamming change through the courts is not good for the state or the country.  And remember that the courts are pretty ham-handed in their decisions.  By definition, courts lack the nuance and the ability to bring settlement in a way that legislation can.

Then what about the arguments – what are the weak points for each side?

The strongest argument that the unions have is that charter schools serve fewer schoolchildren with language limitations or special needs currently enrolled in charters.  Charter proponents are addressing that issue, and frankly in the run-up to the lawsuit (if it happens) should redouble efforts to take that issue off the table.  As regards special needs students, the unions’ argument ignores the preferences of parents of children with special needs and includes some overheated exaggerations.

The weaknesses in the unions’ position are in my mind many:

  • The Massachusetts constitution established, in the court’s mind, an enforceable constitutional right to access to adequate education.  (The unions used this to sue regarding equitable funding in the 1990s and in the 2000s.)  The 16,000 students on waitlists for charters suggest that their parents want to choose something a better school option for their children.  Saying that all kids should have equal access to poorly performing schools is hardly a winning argument.  And it flies in the face of the history of the Civil Rights movement, which features across time parents and children who seek admittance into new and different institutions, who want a choice that is available to others.  The inability over time for the Boston Public Schools to right their programs and serve children at a high level, notwithstanding repeated infusions of money is a hard place from which to argue.
  • At a February 26 event Pioneer held on Civil Rights, Teachers Unions and Charter Schools, Barbara Madeloni, the head of the state’s largest teachers union, made a general claim that charters are creating separate but unequal schools.  If all parents can choose the schools, and if the selection of students is based on a lottery system, that is not separate but unequal.  With 16,000 Boston students on waitlists for charters, again, that demand is relevant.
  • The unions’ talking point that commonwealth charter schools are depleting their funding does not stand the test of reason.  District schools receive two-plus times the annual “tuition” amount for every student choosing to attend a charter school.  How is this hurting district school funding?  In districts across the country, when parents choose to have their children leave the district for a charter, there is no reimbursement at all.  That is the case in the DC Public Schools, where 44 percent of school-aged children in the city attend charter schools.  No reimbursement.  So, again, tell me how the district schools are suffering?   A few years back, when a charter school was failing to meet its goals, the state was going to close it.  Lowell district officials actually argued for the state to find another operator to take over the charter, because they were afraid of losing their “reimbursement.”  So much for financial suffering associated with the establishment of charters.
  • The unions’ contention about damage to the district schools is also complicated by the very good case one could make that the presence of charter schools actually strengthens and elevates the performance of district schools.  When forced by competitive pressures to raise their game, district schools do respond.  We’ve seen it in Boston, where a number of schools have improved, where some turnarounds have benefited students and where new flexibility was made available to Horace Mann, in-district charters and pilot schools.

There is a big wild-card in my mind.  The education world is not simply a question of charters-yes and charters-no toggle switches.  There are many approaches to improving our schools – some of which may show the kind of promise that some charters have to drive long-term sustainable improvements in achievement.

This points to a weakness in the lawyers’ case.  After all, can’t the unions say that the charter cap is only one way of approaching reform?  They could suggest we expand METCO.  The student achievement in that program is quite good.  Why not the intensive math sessions that Jeff Riley is employing in Lawrence?  I personally believe that charters are a better way to scale high-quality educational programs for students, given that the governance model is more likely to maintain progress over time.  But these responses might very well lead the court to say that it is not an either or on charters and civil rights.

On the other hand, the unions are also making an arbitrary (implicit) argument: That only a monolithic district system can provide adequate and equal opportunity.  That’s a pretty weak hand to play.

To go back to my first point, Pioneer believes public discourse and the health of our civics should have us all focused on hammering this out in public, in the court of public opinion, with residents feeling the need and the calling to address this issue.  Lee, Keating, and Ware want it addressed now and feel like they have a winning hand.

My question to them is: What if you lose in the courts?  What does it mean for the prospects for advancing more educational options?  Good questions.  Obviously something we will be writing about in the future.

Follow me on twitter at @jimstergios, visit Pioneer’s website, or check out our education posts at the Rock The Schoolhouse blog.

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