Civil rights fight looms on charter schools cap

Citing burden on poor, lawyers ready challenge

The highly charged charter school debate, waged for years in the Legislature, could soon become a constitutional court fight, launched by three prominent lawyers who believe students in Boston and other urban districts are being denied their right to a quality education.

Paul F. Ware Jr., Michael B. Keating, and William F. Lee, who are partners at three top law firms, say the lawsuit they will file to overturn the state cap on the number of charter schools will break ground on two fronts.

It will be the first constitutional challenge to a charter school cap in any state and the product of an unusual alliance among lawyers from rival firms — “a unique occurrence in Boston legal history,” according to Lee.

Their decision to challenge the cap in court reflects growing frustration among charter school advocates who have seen recent efforts to expand the number of these schools in Massachusetts defeated by state lawmakers.

“This is, frankly, an issue of civil rights, and this is an issue which the Legislature, for one reason or another, has failed to act on,” said Keating, a past president of the Boston Bar Association. “It is not inappropriate, in those circumstances, to seek judicial relief.”

The lawsuit promises to escalate the long-running battle over charter schools, which are controversial because they do not have to be unionized, operate independently of local districts, and are given more flexibility to set their curriculums, budgets, and staffing.

Supporters say the schools have proven one of the only alternatives for low-income children and families who are unhappy with the traditional school system and unable to afford private or parochial schools. Critics worry about charter schools’ financial impact on local school budgets, because students who attend charter schools take with them a certain amount in state aid from their hometown districts.

Massachusetts currently has 80 charter schools, and Boston, with 34, has hit the limit. Holyoke and Fall River are near the cap. Statewide, more than 30,000 students attend charter schools, about 3 percent of the total student population.

The lawsuit will cite studies, disputed by critics, showing that charter schools often achieve better results than traditional public schools, and will point out that about 40,000 students are on the wait list for charters statewide, including about 18,000 in Boston.

The suit will be filed on behalf of children who want to attend charter schools but could not find seats and had to enroll in underperforming district schools. The lawyers have been interviewing parents and students and plan to name them as plaintiffs if they are rejected in the charter school lottery this week.

“We don’t think they should be denied that opportunity, and we don’t think the Constitution allows them to be denied that opportunity,” Lee said. “We’d like to see the cap removed so that supply meets demand.”

The lawsuit will cite a landmark 1993 Supreme Judicial Court decision that established that the Massachusetts Constitution requires an adequate education for children, rich and poor, in every city and town. That ruling was based on a clause in the Constitution, dating to 1780, that states that lawmakers and officials must “cherish” the public schools.

The lawyers said they plan to file the lawsuit either in state Superior Court or in the SJC, which can hear constitutional cases directly.

The lawyers will name as defendants James A. Peyser, Governor Charlie Baker’s secretary of education, as well as the Board of Elementary and Secondary Education. They are being targeted because, as of January, they are responsible for enforcing the law, even though they disagree with it.

Baker is a strong proponent of lifting the cap and Peyser is a nationally known charter school advocate who helped build the charter-school movement in Massachusetts.

“The administration does not comment on pending litigation, but the governor has consistently supported raising the charter school cap and continues to believe strongly that all students should have access to high quality schools, especially in underperforming districts,” Baker’s spokesman, Tim Buckley, said in a statement.

Massachusetts has limited the number of charter schools it allows since the first ones were authorized under the Education Reform Act of 1993.

Lawmakers have increased the cap several times since then, most recently in 2010, when Governor Deval Patrick signed a bill that effectively doubled the number of charter school seats statewide. But that move was driven by a large financial reward: It unlocked $250 million in federal funding.

Without that sort of financial incentive, momentum for charter schools has waned in recent years.

The most recent expansion plan was rejected by the state Senate in July, after teachers’ unions and parents of traditional public school students argued that charter schools drain money from district schools and create a two-tiered educational system.

The lawsuit could once again increase pressure on lawmakers to raise the cap, rather than face a court mandate that could eliminate it entirely.

The three lawyers said Lee, a partner at WilmerHale and intellectual-property lawyer, was the original catalyst behind the lawsuit.

Lee said he had been thinking about how the legal community could push the charter school movement and called Ware and Keating. Both are friends, he said, and agreed to collaborate. Each brings significant experience to the case.

Ware, a partner at Goodwin Procter, prosecuted companies responsible for the fatal Big Dig ceiling collapse in 2006 and was appointed by the SJC to investigate patronage in the state Probation Department in 2010.

Keating, a partner at Foley Hoag, recently led the SJC’s search for the state’s first Trial Court administrator. He is also chairman of the board of The Boston Foundation, which strongly supports the expansion of charter schools. He said the foundation has no role in the lawsuit.

Lee helped investigate the Iran-Contra scandal and was appointed by Massachusetts’ attorney general to investigate alleged racial bias in the state courts in 1988.

All three cast their involvement in altruistic terms, saying they believe in charter schools and see the lawsuit as a vehicle for social justice.

“We’re coming to it as people who built their careers in the city of Boston and who have realized many benefits of living and working in the city,” Ware said. “It’s our community, and we think this is an important aspect of the community.”