Mass. high court rejects challenge to cap on number of charter schools in the state

The Massachusetts Supreme Judicial Court dealt a blow Tuesday to advocates who have sought to lift the ceiling on the number of charter schools permitted to operate statewide.

The high court agreed with a lower court’s dismissal of a lawsuit challenging the legality of the state’s charter school cap.

In 2016, Suffolk Superior Court Judge Heidi E. Brieger dismissed the lawsuit, which was brought by the families of five students who attend traditional Boston public schools designated as low-performing.


The defendants were officials with the state Department of Elementary and Secondary Education and its board.

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In Tuesday’s 37-page opinion, SJC Justice Kimberly S. Budd wrote that the plaintiffs hadn’t shown the state failed in its “constitutionally prescribed duty to educate” because of the cap.

“Here, although the plaintiffs’ complaint supports the claim that the education provided in their schools is, at the moment, inadequate, they have not alleged any facts to support a claim that the Commonwealth’s public education plan does not provide reasonable assurance of improvements for their schools’ performance over a reasonable period of time,” Budd wrote in the 6-0 opinion.

The lawsuit argued that caps on charters were arbitrary and denied students the opportunity for a quality education.

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


Critics routinely cite charter schools’ financial impact on local school budgets, because students who attend charters take with them a certain amount in state aid from their hometown districts.

“As there is no constitutional entitlement to attend charter schools, and the plaintiffs’ complaint does not suggest that charter schools are the Commonwealth’s only plan for ensuring that the education provided in the plaintiffs’ schools will be adequate, the Superior Court judge did not err in dismissing the plaintiffs’ education clause claim,” Budd wrote Tuesday.

She added that while “the remedy the plaintiffs seek by way of this action, i.e., expanding access to charter schools, could potentially help address the plaintiffs’ educational needs, other policy choices might do so as well, such as taking steps to improve lower-performing traditional public schools. There may be any number of equally effective options that also could address the plaintiffs’ concerns; however, each would involve policy considerations that must be left to the Legislature.”

Budd noted that “the expansion of charter schools has detrimental effects on traditional public schools” because some funding for charters comes from school districts’ overall budgets.

But funding concerns may not be the sole reason for the cap, which limits the total number of charter schools permitted to operate in the state to 120, Budd wrote.


“For example, limits on charter schools may be based on a policy concern regarding the departure from local democratic control over public schools by local school committees because charter schools are instead governed by private boards of trustees,” she wrote.

“Additionally, a limit on charter school growth permits education administrators to assess, manage, and develop for replication any innovative educational practices that develop in charter schools for the students enrolled in traditional public schools.”

Tim Nicolette, executive director of the Massachusetts Charter Public School Association, said Tuesday in a statement that efforts to expand charter schools will continue.

“Although the Association did not join the lawsuit, we firmly believe that enrollment caps continue to arbitrarily deny families the high quality choices that charter public schools offer families and children,” Nicolette said.

“However, there are many communities in the Commonwealth that still have room under existing caps, and we expect to continue to grow in those communities in the slow, steady way we have for the past 20 years. We believe every child should have access to a great public school, and we will continue to deliver on our promise to families to provide just that in every charter school across the state.”

Barbara Madeloni, president of the Massachusetts Teachers Association, a union that represents more than 110,000 members across the state, welcomed the charter advocates’ appellate defeat on Tuesday.

“This is the third leg of the charter expansionists’ strategy to be rejected,” Madeloni said in a statement. “They filed charter expansion bills, which have been rejected by the Legislature.”

She noted that a 2016 ballot measure to lift the charter cap was “soundly rejected by the voters” and said pro-charter advocates “filed this lawsuit, which has such weak claims that the SJC won’t even allow it to go to trial.”

Local civil rights groups also applauded the SJC’s decision.

“We hope our Commonwealth’s attention can now be properly turned to improving education in every school, particularly for students of color and our most vulnerable youths,” the Lawyers’ Committee for Civil Rights and Economic Justice said in a statement.

James Vaznis, Michael Levenson, and Mark Arsenault of the Globe staff contributed to this report.