Massachusetts State House.
Boston Bar Journal

Education Reform: Doe v. Secretary of Education

August 15, 2018
| Summer 2018 Vol. 62 #3

fraywitzerby Ryan P. McManus

Case Focus

On April 24, 2018, the Supreme Judicial Court (SJC) upheld the constitutionality of a Massachusetts law regulating the number of Commonwealth charter schools that can been established in each school district.  The case, Doe v. Secretary of Education, 479 Mass. 375 (2018), marks the SJC’s latest foray into the complex and often controversial subject of education reform.

Education Reform in Massachusetts and the Establishment of Charter Schools

Understanding the Court’s decision in Doe requires some context on prior education reform litigation, legislative responses, and the current statutory limitations on charter schools.  In McDuffy v. Secretary of the Executive Office of Education, 415 Mass. 545 (1993), the SJC held that the Education Clause of the Massachusetts Constitution imposes an enforceable obligation on the Commonwealth to provide all students with a public education, and that individual students denied that right can sue to enforce it.  McDuffy addressed the constitutionality of the public school financing system, which was then primarily dependent on local funding (and local property taxes).

In the wake of McDuffy, the Legislature enacted the sweeping Massachusetts Education Reform Act (MERA).  MERA introduced a number of reforms, among them the establishment and funding of a “foundation budget” for each district, state oversight of school performance, examination-based assessments and data collection (the “MCAS” tests), and, for the first time, the authorization of charter schools.  (This article uses the term “charter school” to refer to Commonwealth Charter Schools, which were primarily at issue in Doe.  State law also authorizes the establishment of Horace Mann Charter Schools, which, unlike Commonwealth Charter Schools, require the approval of the local school district.)

From the beginning, charter schools have been subject to limitations.  The current statutory framework (at issue in Doe) limits charter schools in two ways.  First, the total number of charter schools that may operate in the state is capped at 120.  Second, no more than 9% of total public-school spending in each district may be spent on charter schools.  For school systems performing in the lowest decile statewide, that spending cap is increased to 18%.

The SJC’s Decision in Doe

In Doe, five students in Boston public schools alleged, on behalf of themselves and a class, that the spending cap applicable to charter schools violates the Education and Equal Protection Clauses of the Massachusetts Constitution.  Each of the students alleged that he or she was enrolled in a level three or level four school, meaning that under the Commonwealth’s system of classification, their schools were performing in the bottom fifth of all schools in Massachusetts.  Each of the students had applied to a charter school, but failed to secure a seat through the lottery used to determine admission.  The students alleged that additional charter schools capable of providing a constitutionally sufficient education to them and other Boston students were prevented from being established solely because Boston had reached its statutory spending cap for charter schools.

The Superior Court dismissed the students’ Education Clause claims, holding that they do not have a constitutional “right to choose a particular flavor of education.”  The Superior Court likewise rejected the students’ Equal Protection claim, holding that the cap on charter schools is rationally related to the Commonwealth’s interest in allocating funding between charter schools and district schools.  The students sought and obtained direct appellate review of the Superior Court’s decision by the SJC.  After affirming that the students had standing to bring their claims, the SJC addressed the merits under the Education Clause and Equal Protection Clause.

With respect to the Education Clause, the SJC agreed with the students that “the education clause imposes an affirmative duty on the Commonwealth to provide a level of education in the public schools for the children there enrolled that qualifies as constitutionally adequate.”  Doe, 479 Mass. at 387.  The Court further agreed that the students had pled sufficiently that “they have been deprived of an adequate education” and that their “complaint supports the claim that the education provided in their schools is, at the moment, inadequate.”  Id. at 388–89.  Nevertheless, the Court reasoned that the students failed to plead a violation of the Education Clause because they had not alleged facts suggesting that the “defendants have failed to fulfil their constitutionally prescribed duty to educate.”  Id. at 388.  In particular, the students had “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.”  Id. at 389.  Put differently, because the Legislature had enacted measures aimed at remedying failing schools (including those contained in MERA), and because the students had not adequately alleged that those measures were ineffective, the SJC suggested that temporary deficiencies in the quality of a particular school or district, or in a particular student’s educational opportunities, do not amount to a violation of the Commonwealth’s constitutional duty to provide an education.

In affirming the dismissal of the students’ Education Clause claim, the SJC also faulted the students’ exclusive focus on the charter school cap, where charter schools are not “the Commonwealth’s only plan for ensuring that the education provided in the plaintiffs’ schools will be adequate.”  Id. at 390.  Even if a violation of the Education Clause had been properly alleged, the Court emphasized that the “specific relief [plaintiffs] seek”—striking the statutory cap on charter schools—“would not be available” because “‘[t]he education clause leaves the details of education policymaking to the Governor and the Legislature.’”  Id. (quoting Hancock v. Comm’r of Educ., 443 Mass 428, 454 (2005) (Marshall, C.J., concurring)).

With respect to the students’ Equal Protection claim, the SJC first concluded that the charter school spending cap was not subject to heightened scrutiny because it does not “significantly interfere” with any fundamental right to education.  Id. at 392.  The Court reasoned that charter schools were originally intended to serve as laboratories for the development of innovative approaches to public education, and as such there was no fundamental right to attend charter schools that that the cap could be deemed to interfere with.  Id. at 392–93.  The Court thus applied rational basis scrutiny to the charter school spending cap, concluding that it is rationally related to (among other things) the Commonwealth’s legitimate “attempt to allocate resources among all the Commonwealth’s students” – both those who attend charter schools and those who do not.  Id. at 394.

Implications of the Doe Decision for Education Reform Litigation

Although the SJC’s decision in Doe surely was a disappointment to charter school advocates, its implications for further school reform litigation is less than clear.

Doe does clarify that, to state a claim under the Education Clause, it is not enough to allege that certain students are not currently receiving a constitutionally adequate education.  Instead, a student must successfully plead, with supporting factual allegations, both (i) that he or she is not receiving a constitutionally required education and (ii) that state law “does not provide reasonable assurance of improvements for their schools’ performance over a reasonable period of time.”  Doe, 479 Mass. at 389.

Doe also demonstrates the SJC’s reluctance to mandate any particular policy reform to remedy a violation of the Education Clause.  Plaintiffs pursuing Education Clause claims should therefore expect that Massachusetts courts will not order any particular policy reform as a remedy.  Rather, the courts will at most – at least in the first instance – enter declaratory relief regarding the Commonwealth’s fulfillment of its constitutional duty to educate, and leave the choice of policy reform to the political branches.  Only if the political branches fail to respond might a court consider ordering specific reforms.

Ryan P. McManus is a partner at Hemenway & Barnes in Boston, where he concentrates his practice in the areas of appellate, fiduciary, and business litigation.  Ryan authored an amicus brief in Doe v. Secretary of Education on behalf of the Pioneer Institute, Inc., Cheryl Brown Henderson, and the Black Alliance for Educational Options.