The highest court in Massachusetts ruled unanimously that the cap on charter schools is constitutional. 

It tossed out an effort by charter advocates to win in the judicial system what they lost at the polls in a state referendum in 2016, when the public voted against expanding the number of charter schools.

In an opinion issued Tuesday, Massachusetts’ Supreme Judicial Court dismissed a complaint that the cap on the number of charter schools allowed to operate in state violates students’ rights under the state’s constitution.

The unanimous opinion, authored by Justice Kimberly Budd, affirmed a lower-court decision made in October 2016. It holds that even when public schools under-serve their students, that doesn’t mean state actors are failing in their constitutional duties — or that opening more charter schools is the only way to make it right.

The decision represents a third and possibly decisive setback for the proposal to lift the longstanding cap. In 2015, legislators decided against advancing Gov. Charlie Baker’s bill for more charter schools, instead leaving the choice to voters — who then voted it down by a 24-point margin in 2016.

It’s cause for disappointment and frustration among supporters of those schools, and for students and families who hoped to get in off their wait lists.

“Watching your own children have to suffer in a school that’s underperforming — and knowing that it’s the result of a political turf war… it’s crushing. It’s devastating.”

Keri Rodrigues

 Keri Rodrigues is one of those people. She’s an education activist who supported Question 2 in 2016. Now, she runs Massachusetts Parents United — an advocacy group supported in part by the pro-charter Walton Foundation. She has two sons who have tried and failed to get seats in a charter school. “Watching your own children have to suffer in a school that’s underperforming — and knowing that it’s the result of a political turf war… it’s crushing. It’s devastating…”

The plaintiffs argued that missed opportunity amounted to a violation of their shared right to an adequate public education, or to equal protection under the laws, as laid out in the state constitution.

The SJC opinion accepts the plaintiffs’ arguments that, under Massachusetts’ constitution, state leaders must provide all students with an “adequate education,” and that “the education provided at their schools is, at the moment, inadequate” based on testing data.

But the court rejected the plaintiffs’ conclusions. The opinion holds that state officials and lawmakers must be allowed to work to improve poorly-performing schools, and that the plaintiffs failed to demonstrate that the state’s current approach — including oversight and takeover of chronically underperforming schools — couldn’t jump-start progress “over a reasonable period of time.”

Rodrigues wasn’t persuaded. “Over what period of time are we talking about? Because parents get roughly 12 years to get their kids an adequate education,” she said. “So are we just supposed to roll the dice and hope the commonwealth is able to figure this out?”

But the SJC opinion goes further. It argues that even if students’ constitutional rights were definitively being violated, it still wouldn’t mean the charter program must be expanded. The opinion states, “There is no constitutional entitlement to attend charter school,” and further, that the court is barred from enforcing any “fundamentally political” remedy of that kind.

The decision, in short, says that the state has an affirmative duty to improve low-performing schools, not an affirmative duty to open privately managed charter schools.

Rodrigues was state director for the now-defunct Families for Excellent Schools (also Walton-funded), which bundled millions of dollars for the failed “Yes on 2” charter expansion referendum; she is now executive director of Massachusetts Parents United, another astroturf group created by Walton and other charter advocacy organizations.

Unlike most parent organizations, Massachusetts Parents United started its life with $1.5 million in projected income and more on the way from the Waltons and other friends. 

The decision affirmed that the charter advocacy groups cannot rely upon the judicial system to overturn the 2016 referendum that said NO to more charter schools.