Five students sue to lift state’s charter school cap

Three prominent Boston lawyers filed a class-action lawsuit on Tuesday that seeks to lift the state cap on the number of charter schools, arguing that the limit unfairly denies thousands of Massachusetts students their constitutional right to a quality education.

The suit, filed in Suffolk Superior Court, names as plaintiffs five Boston students who were unable to secure charter school seats during the lottery earlier this year and were assigned instead to traditional Boston public schools that have been classified by the state as underperforming.

“The relief sought by these children is modest,” the lawsuit states. “They do not ask the court to direct their admission to any school; nor do they ask the courts to assume oversight of the failing schools to which they have been assigned. All these children ask is that the court remove an arbitrary impediment to their ability to obtain a quality education.”

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

It was filed by Paul F. Ware Jr., Michael B. Keating, and William F. Lee, who are partners at three top law firms, and who had announced earlier this year their plan to take the charter-school fight to court.

“Some people may call it a constitutional right; some people may call it a civil right,” said Lee, a partner at WilmerHale.

“It doesn’t matter what you call it: It’s a right to a minimally adequate education.”

The lawsuit reflects growing frustration among charter school advocates who have seen recent attempts to expand the number of these schools in Massachusetts defeated by state lawmakers.

Last month, a separate group of charter-school backers proposed a 2016 ballot question that would authorize the creation or expansion of up to a dozen charter schools statewide each year.

Both are attempts to pressure lawmakers into lifting the charter cap rather than face a mandate from voters or from a judge, said Paul S. Reville, who was state education secretary in 2010, when Governor Deval Patrick signed a bill that effectively doubled the number of charter school seats in the lowest-performing districts.

Reville said he doubts the lawsuit will prevail because while charter schools in Boston have performed well, “it’s not clear to me all charter schools are necessarily superior to all public schools.”

“But I understand the impulse to pressure the system to allow more choice,” he said.

Barbara Madeloni, president of the Massachusetts Teachers Association, which strongly opposes charter schools, said the lawsuit shows charter advocates are anxious about what she called growing opposition to the schools among students and parents.

“It looks a little desperate,” she said of the court case.

While a court could find that some traditional public schools are failing to properly educate students, it would be “extremely improbable” for the court to strike down the charter cap, said Peter D. Enrich, a professor at Northeastern University School of Law.

Courts, he said, are generally reluctant to set education policy, since that is the role of the Legislature.

“The real goal of this is not a legal goal, it’s a political goal, which is to push the state to remove the charter cap,” said Kevin Murray, a Boston public school parent and member of Quality Education for Every Student, a grass-roots group critical of charter schools.

The lawsuit cites studies, disputed by critics, showing that charter schools often achieve better results than traditional public schools.

It argues that by denying students access to these schools, the state is violating 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 commonwealth’s Constitution, dating to 1780, that states that lawmakers and officials must “cherish” the public schools.

The lawsuit refers to the five plaintiffs as John and Jane Doe, to spare the students undue scrutiny and publicity, according to the lawyers. They range in age from 6 to 13. Four are from Dorchester, and one is from South Boston. Two are African-American; two are Hispanic; one is of Haitian descent.

The mother of one of the children, a 32-year-old who emigrated from the Dominican Republic and grew up in Dorchester, said she applied the last two years to send her 6-year-old son to charter schools, believing they are safer and more academically rigorous than the traditional Boston public schools she attended.

After he was put on a waiting list, the woman, a single mother, said she made the choice to send him to Catholic school, even though she said she cannot, over the long-term, afford the school for her son and her daughter, who is 3. “I made it out somehow, but some of it, honestly, was luck and I don’t want to take certain risks with my kids,” said the mother, who works in marketing and went to an Ivy League college. “I want them to be challenged, and I want them to be exposed to more diversity, and I didn’t get any of that growing up.”

The suit names as defendants James A. Peyser, Governor Charlie Baker’s secretary of education; Paul Sagan, a Baker appointee who chairs the Board of Elementary and Secondary Education; Mitchell Chester, the commissioner of elementary and secondary education; and the nine members of that board.

Peyser and Sagan are being targeted because they are responsible for enforcing the charter cap even though they, like Governor Baker, oppose it. Peyser is a nationally known charter school advocate who helped launch the charter school movement in Massachusetts. Sagan is a former chairman of Massachusetts Business Leaders for Charter Public Schools.

“It’s curious, and it’s going to create some really interesting litigation politics,” raising questions about just how vigorously the Baker administration might fight the case in court, Enrich said. Adding to the intrigue, the administration will be represented in court by Attorney General Maura Healey, a Democrat who was endorsed by the Massachusetts Teachers Association.