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AG defends cap on charter schools in legal brief

Maura Healey wants the court to dismiss the suit.Barry Chin/Globe Staff/File 2015

Attorney General Maura Healey, acting on behalf of the Baker administration, moved Friday to crush a lawsuit that would overturn the state cap on the number of charter schools, forcefully challenging the argument that limiting these schools deprives children of a quality education.

The lawsuit, filed in Suffolk Superior Court in September, 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 defendants include James A. Peyser, Governor Charlie Baker's secretary of education, and other Baker administration officials who are officially responsible for enforcing the cap, even though they strongly support lifting it to allow more charter schools.

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That tension has raised questions in legal and political circles about how Baker, a Republican, and Healey, a Democrat, might respond to the lawsuit, which argues that the cap unfairly deprives thousands of Massachusetts students of their constitutional right to a quality education.

On Friday, Healey, acting as the attorney for Peyser and other education officials, made clear that the state intends to aggressively fight the suit. In two strongly worded legal filings, the attorney general argues the lawsuit should be dismissed on several grounds.

She contends that the argument advanced by the five plaintiffs that there is a direct link between the charter school cap and the poor education they claim to be receiving is "illogical, highly speculative, and remote."

"Numerous other factors" other than the charter cap could be responsible for the poor performance of some schools, Healey writes. And simply opening more charter schools won't necessarily help because there is no guarantee that they would be high-quality charters, she contends.

"Not all charter schools in Massachusetts are high-performing," Healey writes. "In fact, it is not unusual for the department or the board to impose conditions on existing charter schools, or close them because they do not perform as required."

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Healey also asserts that Boston has not, as the plaintiffs argue, reached its limit on the number of charter schools because it still has seats available in so-called Commonwealth and in-district charter schools, which are given more flexibility than traditional public schools, though not as much as full-fledged charter schools.

Healey also argues that the court should not step in to lift the cap because the state Constitution "leaves the details of education policy making to the governor and the Legislature."

A Baker administration official said Friday that neither the governor's office nor Peyser had any input on Healey's legal briefs, even though they were officially submitted to the court by Peyser; Paul Sagan, a Baker appointee who chairs the Board of Elementary and Secondary Education; and other education officials.

"While the administration generally does not comment on pending litigation, the Baker-Polito administration strongly supports lifting the cap on public charter schools so that kids stuck in low-performing districts can access the high-quality education that they deserve," said Tim Buckley, a Baker spokesman.

Healey's office declined to comment.

The lawsuit 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 highly charged charter-school fight to court.

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"We are confident in the legal merits of the complaint," Lee said in a statement Friday. "And along with the plaintiffs and their families, we strongly believe that the charter cap arbitrarily deprives children of their constitutional right to an adequate education."

Charter school supporters are also pushing legislation, backed by Baker, that would lift the cap and have collected enough signatures to place a question on the 2016 ballot that would also authorize more charter schools statewide.


Michael Levenson can be reached at mlevenson@globe.com. Follow him on Twitter @mlevenson.