By Wendy Lecker

A pro-charter group has lost its Connecticut lawsuit seeking a federal constitutional right to attend a charter school. California-based Students Matter filed the case, Martinez v. Malloy, in 2016. The case was dismissed on September 28 by Judge Alvin W. Thompson of the United States District Court in Hartford.

Students Matter, founded by Silicon Valley entrepreneur David Welch, is a major proponent of charter school expansion. The organization initiated, and lost, the Vergara case in California, which unsuccessfully challenged that state’s laws governing teacher tenure.

In Martinez, Students Matter challenged in federal court Connecticut laws governing public school “choice” programs, specifically charter and magnet schools. Those laws determine funding levels and set limits on the expansion of charters and magnets. The Martinez complaint asserted that these laws violate the Equal Protection and Due Process clauses of the United States Constitution.

Education as a Right Under the U.S. Constitution

In bringing this case, the Martinez plaintiffs faced two hurdles: establishing education as a fundamental right under the United States Constitution, and then securing a court ruling that public school “choice” is an element of the federal right.

The State moved to dismiss the case, contending that while there is a right to education under Connecticut’s constitution, there is no federal constitutional right to education based on the United States Supreme Court’s 1973 ruling in San Antonio v. Rodriguez. Further, the State contended that it is rational for Connecticut to decide to fulfill its obligations under the state constitution’s education guarantee by funding a system of public schools governed by local school districts. Any alternatively-governed schools, such as charter schools, are not constitutionally required, but rather are a policy choice left to the State, and which the State can discontinue or restrict at any time.

The District Court concluded that there is no federal constitutional right to education. The Court further agreed with the State that Connecticut’s policy toward providing school governance options is rational. As the Court correctly noted, “the legislature could rationally believe that the best and most effective way to address [any shortcomings in some district public schools] is to take steps to improve the education opportunities provided in those schools, as opposed to creating and funding an entirely new and more expensive system of charter and magnet schools.” [Emphasis added.]

Charters as a Constitutional Right?

In other states, charter advocates have unsuccessfully attempted to incorporate charter schools as an element of the right to public education guaranteed by state constitutions. In Massachusetts, New York, Arizona, and New Jersey, courts have consistently ruled that while states are obligated to provide an adequate education, “this obligation does not mean that Plaintiffs have the constitutional right to choose a particular flavor of education,” as a Massachusetts court held. In fact, a New York appellate court opined that choice may undermine that state’s right to education and that diverting “public education funds away from the traditional public schools and towards charter schools would benefit a select few at the expense of the ‘common schools, wherein all the children of this State may be educated.’”

Charters in Connecticut

The Connecticut charter school program has been cited for undermining education equity for all public school children. A 2014 Connecticut Voices for Children report found that these schools underserve English Language Learners, students with disabilities and economically disadvantaged students. The report further found that the majority of Connecticut charter schools are hyper-segregated. In Hartford, segregation in charter schools has hampered achieving integration targets established by the settlement in the landmark Sheff v. O’Neill school desegregation case. Connecticut charter schools have also been cited for civil rights violations against students with disabilities, and for suspending children as young as five years old at alarming rates.

As in other states, Connecticut concentrates charter schools in the state’s highest poverty districts, posing a fiscal threat to district school systems. Credit agencies have determined that charter expansion lowers district bond ratings. Staunch opposition by Bridgeport district officials to charter expansion has been repeatedly ignored by the State education agency. State-approved charter expansion has resulted in an increasing diversion of Bridgeport funding to charters, leaving the district unable to provide essential educational resources, such as guidance counselors, bilingual education, and interventions for the district’s high need student population.

As in other states, Connecticut concentrates charter schools in the state’s highest poverty districts, posing a fiscal threat to district school systems. Credit agencies have determined that charter expansion lowers district bond ratings. Staunch opposition by Bridgeport district officials to charter expansion has been repeatedly ignored by the State education agency. State-approved charter expansion has resulted in an increasing diversion of Bridgeport funding to charters, leaving the district unable to provide essential educational resources, such as guidance counselors, bilingual education, and interventions for the district’s high need student population.

The Real Fight for Educational Justice in Connecticut

Advocates for education equity in Connecticut waged a decade-long legal fight to increase funding and resources in high poverty districts in the CCJEF v. Rell litigation. Unfortunately, in a January 2018 ruling, the Connecticut Supreme Court rejected the CCJEF claim for adequate school funding.

In ruling against the CCJEF plaintiffs, the Court acknowledged that Connecticut’s poorest districts suffered severe deprivations in educational resources, especially resources to help at-risk students. The Court also acknowledged that “the lack of such support services makes it extremely difficult for many students in the state’s neediest school districts to take advantage of the state’s educational offerings.”

Yet Connecticut’s high court ruled that these proven deprivations do not amount to a constitutional violation. Instead, the Court held that the State is only obligated to provide the “bare minimum” of teachers, facilities, curricula and instrumentalities of learning, such as books, computers and desks.

In his dissent, Justice Palmer articulated the central principle that must drive the fight for educational justice in Connecticut. He declared that “[i]t is not enough to seek success in some places, for some children.” Justice Palmer lays bare the stark difference between the strategies in the Martinez and CCJEF cases. Expanding a parallel, selective system of charter schools is a piecemeal approach that results in the exclusion of at-risk students, leaving district school systems with fewer resources to meet their needs. As Justice Palmer made clear, “the educational system must be reasonably designed to achieve results in every district and neighborhood. Our state constitution simply will not allow us to leave our neediest children behind.”

The CCJEF ruling is a major blow to efforts to improve outcomes and opportunities for Connecticut’s most vulnerable school children. With the Connecticut courts now on the sidelines, advancing education equity for all – and not a few – public school children now requires a concerted and sustained effort to hold the Legislature and Governor accountable to provide vulnerable students with more than the “bare minimum.”