MTA files amicus brief opposing charter cap lift lawsuit

The state’s largest educators’ union filed a legal brief on May 11, 2016, in support of Attorney General Maura Healey’s motion to dismiss a lawsuit that seeks to strike all limits on the number of charter schools in the state and on how much funding these schools can divert from district public schools.

The lawsuit was filed on Sept. 15 on behalf of five Boston students who did not secure seats in a charter school and were subsequently assigned to Boston public schools rated as Level 3 or lower. Although the MTA does not represent educators in the Boston Public Schools, the association’s interest in this case is that the constitutional challenge seeks to eliminate caps on charter schools across the state.

Plaintiffs "make grandiose claims for charter schools but research indicates that, at best, students at some charter schools perform better than their district school peers, while students at other charter schools perform worse."

“The reasoning behind the lawsuit is deeply flawed, and this case should be dismissed,” said MTA President Barbara Madeloni. “We should instead be talking about fully funding our public schools and the rights of students who attend schools without adequate funding. If the plaintiffs are successful, the negative impact on district public schools across the state would be dramatic.”

The MTA amicus brief states that plaintiffs "make grandiose claims for charter schools but research indicates that, at best, students at some charter schools perform better than their district school peers, while students at other charter schools perform worse. Left out of the comparison are the deleterious effects charters have on the district public schools by draining financial resources from the system.”

A key argument in the MTA amicus brief is that the financial impact of permitting an unlimited number of charter schools would impair the state’s ability to meet its constitutional obligation to adequately fund public education. Testifying at the State House against a more modest — but still dramatic — cap lift proposal that is likely headed to the ballot in November, Boston Mayor Marty Walsh stated, “It would wreak havoc on municipal finances, undermining our ability to support either new or existing schools in Boston.”

A recent Foundation Budget Review Commission report found that Massachusetts public schools are already being underfunded by about $1 billion. Increasing the number of charter schools would make the funding problems far worse for district public schools.

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The MTA brief also attacks the contention that charter schools are, in all cases, superior to district public schools. In fact, the state has had to close 12 charter schools for poor student performance or bad fiscal management, and another 11 of the 71 currently operating Commonwealth charter schools are operating “under conditions” or have been placed on probation by the Department of Elementary and Secondary Education.

The MTA brief debunks several reports cited by the plaintiffs claiming that Boston’s charter schools are superior to the city’s public schools. The brief notes that this claim relies heavily on “independent research” published in non-peer-reviewed journals funded by the staunchly pro-charter Boston Foundation. The brief cites other highly regarded national studies that find some charter schools have higher test scores, some lower and some about the same as their sending districts.

The brief also takes issue with the plaintiffs’ claim that students assigned to Level 3 schools have been deprived of their rights. Level 3 schools are those whose performance is in the bottom 20 percent statewide. By definition, 20 percent of all schools will be in the bottom quintile, but that doesn’t mean they are failing, much less failing to meet constitutional standards of adequacy. Nor does the existence of Level 3 schools somehow imply that the only way to improve performance is to create new charter schools.

Another issue raised by the brief concerns the fact that charter schools are governed by private boards of trustees, not publicly elected school committees. Lifting the cap would create a renewed interest in the question of whether the charter school statute is unconstitutional because it authorizes the payment of public money to enterprises that are not “publicly owned,” violating the anti-aid amendment in the Massachusetts Constitution.

The motion to dismiss is scheduled to be heard on June 24.

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