Troubling takeaways from the SJC ruling on charter schools

These would be the best of times for Boston public charter schools were education policy decisions driven by evidence.  Boston’s charters are nationwide models and uniquely successful at closing pernicious achievement gaps.  But in education politics, where “momentum” is too often the benchmark, charter skeptics are crowing about the loss of a ballot initiative to expand school choice for disadvantaged students, unionization of three charters, and a recent SJC decision affirming a lower court’s dismissal of a challenge to the state cap on charter schools.

A close look at the SJC’s decision should keep even the most ardent charter haters from crowing.

Twenty-five years ago, in a case known as McDuffy, the state’s highest court declared that the Massachusetts Constitution requires the Commonwealth to provide an adequate education “for all its children, rich and poor, in every city and town.”  Many of Boston’s district schools continue to fall short of even basic performance levels.

The lawsuit was brought by five anonymous Boston Public Schools students whose parents applied for them to attend a charter school but lost out in the lottery.  As a result, each was forced to attend district schools that scored in the bottom 20 percent of state schools on standardized tests.  Their legal claim was that legislatively imposed limitations on charters in the city were arbitrary and denied them the adequate education guaranteed by the Massachusetts constitution.

Certainly the SJC’s decision was a blow to the students and charter schools, but the language in the decision points to a more portentous outcome.

First, the positive outcome of the decision: The Court recognized that the five plaintiffs relegated to low-performing Boston district schools were receiving an inadequate education.  The court established that set of facts primarily on MCAS scores.  Score one for education reformers.

But the court then went on to deny the students a remedy.  Americans don’t generally accept the notion that an individual has a constitutional right but lacks a remedy when his or her rights are violated.  It is all the more troubling where the right to an adequate education has been recognized by the U.S. Supreme Court as foundational at least since the 1954 Brown v. Board of Education decision.  Score one for defenders of the status quo.

Faced with evidence that many students are receiving an inadequate education, the court stated only that the Legislature must “provide reasonable assurance of an opportunity for an adequate education . . . over a reasonable period of time.” “Reasonable assurance” over a “reasonable period of time” in this case means no remedy and no urgency.  What exactly is a “reasonable period of time” to a child who is not receiving a meaningful education?

Unfortunately, this is not the first time we’ve seen such language.  If, in Brown, the Supreme Court concluded that segregated schools violated the equal protection clause of the U.S. Constitution, the very next year, in a case often called Brown II, the Court wrote that de-segregation need not occur immediately or even on a fixed timeline, but instead with “all deliberate speed.”  Decades of litigation followed over what that phrase meant, with many wondering why children who had been denied an equal education had to wait indefinitely for a remedy.

The fact that the SJC reaffirmed the constitutional right to an adequate education but punted on a remedy suggests the courts are stepping back from enforcing basic educational rights.  The charter dismissal suggests that even a case like McDuffy, which centered on education funding equity and adequacy, faces a steeper climb in 2018 than in 1993.

The imperative in Massachusetts’ 1780 Constitution to “spread the opportunities and advantages of education” across the Commonwealth and “among the different [stations] of [its] people” now goes back to the Legislature.  And, short of renewed leadership on the issue at the State House, parents and children in our lowest performing public school districts are left to wait for their rights to be upheld.