Order in the Court

gavelA lawsuit challenging Massachusetts’ charter school cap on civil rights grounds gets tossed. And that’s not a nothingburger…

No sooner had we been instructed to drain the words *drain* and *siphon* from our collective vocabularies than an order came down on from on high, ordering us to re-instate them. I speak, of course, about this week’s Superior Court decision tossing a lawsuit challenging the Bay State’s charter cap on civil rights grounds. It’s time to head to court, reader. And must I remind you that as t’is now after Labor Day, no white shoes allowed? That is unless you happen to be clad in white bucks on behalf of, well, white bucks.

Where were we?
A veritable aeon has passed since we last plumbed the depths of what Commonwealth Mag. once termed a *provocative challenge* to the state’s limit on charter schools. Quick studies will recall that the case was always somewhat, ahem, unusual, starting with the fact that it wasn’t actually about the charter nothingburgercap at all but justiciability, meaning the question of which branch of gov gets to rule the schools. Then there was the even unusualer detail that the defendants tasked with defending the charter cap were none other than the Brothers Nothingburger: Secretary of Education James Peyser, the very architect of the three-pronged assault on the charter cap (Look Ma, three branches!) and Board of Ed chief Paul Sagan, whose personal donation of $100K to the cap-lifting cause sent more than a few eyebrows rocketing skyward. 

Big issues
On the surface it sounded like the pilot for Law and Order: Conflicts of Interest Unit. But lurking ‘neath were big issues. Like was it time for Massachusetts to junk that whole *common* school thing and scale up Uncommon schools instead? And maybe that musty underpinning about public education being a common right needed to go as well, replaced by the much more contemporary *backpacks full of cash* approach. Finally, since it was proving difficult to get the representatives of the people to vote for items one and two, maybe it made sense to, well, switch to a branch where voting wasn’t involved.

Order, order
Do you hear that, reader? That’s the sound of deliberative silence. For months now, Superior Court Associate Justice Heidi Brieger has been weighing the assorted claims, revisiting history and deep diving into Massachusetts’ education policy. (Full disclosure: I saw Justice Brieger in action at a hearing this summer and nearly fan-girl rushed the bench.) So what was the verdict? Well, Brieger threw out the lawsuit against the charter cap, but the headlines don’t quite convey the importance of her decision. In a clear, thorough and well-reasoned argument, Brieger managed to cut through the heat and the noise of this silly, shilly season with its nothingburgers and dark money. She reaffirmed that public education in Massachusetts is a *common,* not an exclusive personal right. That the Commonwealth’s obligation to educate all children doesn’t extend to their right to attend a particular KIND of school. That funding for charter schools necessarily affects the funding of non-charters. And that decision-making over education belongs in the hands of the legislature. 

Expert opinion
Reader: I pored over all 22 pages of Judge Brieger’s decision and encourage you to do the same, especially the part where she bores right in on the apparent contradiction between an accountability framework premised on the idea that schools can improve vs. a political apparatus aimed at replacing said schools.  But as you have no doubt ferreted out by this time, I am no lawyer, even if I’ve been known to drop *justiciability* and *redressability* on the regular. It was time to summon an expert who has been involved in this case from the beginning: Matt Cregor, the Education Project Director for the Lawyers’ Committee for Civil Rights and Economic Justice, which opposed the lawsuit. Matt: are you there?

Matt Cregor: I’m here and ready to answer your questions.

EduShyster: I’ve summarized my take on what this decision was about and why it’s a big deal. Did I miss anything?

lawyers-committeeCregorWe thought this was a very clear decision. It reaffirms that the right to an education is fundamental, but it’s not a right to attend a particular kind of school. And don’t forget, the plaintiffs brought this a civil rights lawsuit. The court was concerned about the other side of this, the harm that lifting the charter cap would incur on other kids.  

EduShyster: I’m guessing that the judge must have finished writing her decision before she had a chance to read the recent editorials in both the Boston Globe and the Boston Herald establishing once and for all that charters do not *drain* or *siphon* money from district schools.

CregorThe judge was really clear that under our state law, to make charters work, they have to take money from district schools. Our school funding laws were designed to ensure that our schools could take all comers. The lawsuit would have cut right through that safety net.

 Our school funding laws were designed to ensure that our schools could take all comers. The lawsuit would have cut right through that safety net.

EduShyster: For readers who haven’t yet had a chance to pore over the 22-page decision, what’s the key takeaway, the one that’s going to be on the test?

Cregor: What I think the court did was cut through the noise and saturation of this issue and look clearly at the structure and intent of our education law and the intent to serve all students. The court also correctly determined that unfortunately, education questions are not for its purview but belong in the hands of the legislature.

EduShyster: How relieved do you think Secretary of Education James Peyser is that he’s not going to have to defend the charter cap? What a load off, eh?

Cregor: Don’t forget that Paul Sagan was also sued to defend the charter cap. It’s quite a thing for the chair of the Board of Education to donate a significant amount of money to support an education ballot initiative while serving as chair.

Send tips, comments and nothingburger recipes to jennifer@haveyouheardblog.com. Like my work? Help me do more of it. 



  1. Not a lawyer here either, but it seems that we’re moving from
    a right to an adequate public education, to a right to an adequate and equitable education.

    1. There’s so much that’s really interesting and affirming in this decision, but the rejection of a civil rights argument for a policy that would disadvantage the majority of kids is right at the heart. It will be interesting to see if this, along with the outcome of the Question 2 vote, forces some kind of a rethinking of how we fund charter schools. And here’s to not being lawyers!

  2. Jennifer: “No sooner had we been instructed to drain the words *drain* and *siphon* from our collective vocabularies than an order came down on from on high, ordering us to re-instate them.”

    Wouldn’t go that far. The order tells us that those alleging draining and siphoning shouldn’t be constrained by any need for mathematical exactitude, even if the result is some inequality. Seems a reasonable interpretation of the constitution to me.

  3. A fundamental part of a working democracy is a vibrant and impartial media. It must have taken a lot of cash and the shoddiest of reporters to make the claim that charters won’t drain the coffers of the school budgets. Even for the corporate shills at the Herald and Globe, it’s an astonishing conclusion, far beyond Orwell.

    1. Ah, you know how those wordsmiths are… like to distinguish between drain, divert, fail to fully replenish after students depart…

      1. At the hearing I attended this summer, the lead lawyer for the plaintiffs was waving around a copy of the Boston Municipal Research Bureau’s study finding that charter expansion hasn’t resulted in either “draining” or “siphoning” of money from the Boston Public Schools. The lawyer was proffering up the study as evidence that BPS students wouldn’t be harmed by the lifting of the charter cap… Alas, the judge appears not to have been convinced. Perhaps she noticed that the Boston Municipal Research Bureau can’t take a position on Question 2 because of municipal financial concerns!

        1. FWIW, I never heard back from the authors of the MTA Amicus in that case after, in an email, I pointed out inexactitudes in their brief. Don’t know if they confessed the errors of their ways to the judge.

          Did Tyler/BMRB issue a statement about Q2? You have a link to it? Looking at their site I see this prominently featured: “Next Teachers’ Contract Must Be About Reform”: http://bmrb.org/wp-content/uploads/2016/08/SR16-6BPScontract.pdf

          Would be interesting to see you to have a dialog with Tyler about that issue on this blog. And have a teacher or two offer opinions about contract changes that might improve their efficacy and job satisfaction.

          1. The BMRB’s non position on Question Two is cited in the very story so prominently featured on the BMRB’s website. To save you time (!) I am helpfully pasting the money quote in right here:

            The bureau, a government watchdog funded by businesses and nonprofits, has been supportive of charter schools. But it has not taken a formal position on the ballot question because it is concerned about the financial impact, Tyler said.

            That was the first inkling I got, by the way, that Q2’s goose was cooked.

            I would not be interested in dialog-ing with Tyler as he seems completely disinterested in either teaching or learning. And were I to take him up on a generous offer of a steak dinner at one of Boston’s MANY fine new steakhouses, (have you seen the size of Tyler’s salary??? Note to self: come back in next life as *municipal watchdog*!), I fear that after a glass or two of something expensive and expensed, I’d be unable to resist insulting his BFF Scot Lehigh…

            But I’d definitely be interested in talking to your teacher or two. I got into this extraordinary non-lucrative racket because I got really interested in successful examples of teacher-led reform and school turnaround.

            Sorry to hear that the MTA didn’t want to be your Amicus. Just curious – are you aware that the MTA doesn’t represent teachers in Boston? The BTU is part of the AFT, my former employer.

          2. Thanks for the link to the codcast. That Michael Jonas certainly is an excellently well-informed and capable moderator.

            Scary to have so many lucidly articulate people in one room, and on the air, who all had made it to that final paragraph secreted at the end of the MTF report…

            Jennifer: “That was the first inkling I got, by the way, that Q2’s goose was cooked.”

            It’ll be interesting to see what the “Beyond Goose” folks can come up with as an arguably more humane option that minimizes the painful cutting and slashing of our school programs and educators.

            Jennifer: “Just curious – are you aware that the MTA doesn’t represent teachers in Boston? The BTU is part of the AFT, my former employer.”

            Yes, though that doesn’t keep the MTA from vigorously stirring the pot in my neighborhood of Beantown. BTW, I commonly cite, approvingly, work of the Shanker Institute, and once in a while spring to the defense of the BTU with statements like this one, last week, in Boston Globe comments: “My understanding is that the Boston Teachers Union (BTU) has merited praise for being relatively receptive to well-designed reforms at times over the decades.”

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