AuthorGans, Perry

"The funds available for public education on the whole have shrunk dramatically over the past decade. Available data suggests that the decline correlates with the expansion of choice and that the overall pot of public education funding, even if charters were included, is shrinking. In other words, states ' choice policies are not simply robbing Peter to pay Paul. They are robbing Peter under the auspices of giving it all to Paul, but actually shaving a chunk off of public education funding and leaving Peter and Paul to fight one another. The push for choice makes the ruse possible." (2)


In 1635, Boston, Massachusetts became the birthplace of the United States' first public school. (3) Fast forward almost four hundred years, and access to a free, public education has become commonplace. (4) Though the Supreme Court of the United States has held that the right to an education is not a fundamental right granted by the United States Constitution, the Court still recognizes public education as one of society's most important institutions, vital for the developmental growth and success of its citizens. (5) Inherent in the assertion that education is necessary to cultivate a productive society is the notion that where public education is available, everyone should be afforded equal access to its proffered benefits. (6) But, the public education system in the United States is not without its flaws, and many school districts throughout the country lack sufficient funding to provide students with what is deemed to be an "adequate" education. (7)

In an effort to remedy the inequities in some of these struggling districts, education reformers have turned to charter schools as one possible solution. (8) Still, whether charter schools are the solution to the problematic state of traditional public school systems remains a hotly contested subject of debate. (9) Consequentially, there are a growing number of challenges to the constitutionality of charter school legislation. (10)

This Note seeks to explore certain constitutional challenges brought by charter school opponents and the viability of future challenges to Massachusetts charter school law. (11) Though the plaintiffs in Doe No. 1 v. Secretary of Education, a recent challenge to the constitutionality of certain Massachusetts charter school legislation, were charter school proponents seeking to expand the creation of charter schools in Massachusetts, this case will become the focal point of the following discussion as it may prove to be a vital guide for future plaintiffs who believe they have a case against the Massachusetts charter school system. (12) But, before turning to the case law, it is necessary to discuss some of the legal history surrounding the right to an education under the United States Constitution as compared to state constitutions, to describe what makes a charter school a charter school, and to explain how these schools are typically funded. (13)


In the landmark case, Brown v. Board of Education, a unanimous Supreme Court took a strong stance in favor of providing all of the country's children with equal access to an education. (14) The Court opined,

In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. (15) The Court implied, however, that the right to an education is only guaranteed in states that have implemented a public education system. (16) The Court later clarified this implication and held that although its "dedication to public education" has remain unchanged since Brown, education is not a fundamental right granted by the United States Constitution. (17) But, if a state grants its citizens the right to a public education, all of its citizens must be afforded equal access to the state's education system. (18)

Today, all fifty state constitutions include provisions mandating statewide public education systems. (19) Generally, these constitutional provisions have been interpreted to guarantee that the applicable state's public education system will provide its students with an "adequate" level of education. (20) This theory that state constitutions guarantee an adequate level of education emerged in cases addressing disparities between the quality of education provided by different districts as a direct result of the state's school funding scheme. (21) However, unless state courts have defined "adequate" in the context of public education, its meaning can be difficult to discern. (22) This quest for assuring the provision of adequate educational opportunities has helped catalyze the charter school movement, but it is also the foundation for the argument that the creation of charter schools prevents traditional public schools from providing adequate levels of education. (23)

What Is A Charter School?

Charter schools are independently operated schools authorized by statutes that vary from state to state. (24) Despite these variations, charter schools across the board do share characteristics relevant to understanding how they typically differ from "traditional public schools." (25) First, charter schools are independent from public school districts as they are operated by nonprofit organizations, private corporations, teachers, parents, and a number of other groups. (26) They are publicly funded, tuition free schools that are governed by charter agreements, which are contracts between the school and an agency designated to authorize the school. (27) These agreements outline the conditions of operation, renewal, and other rights and responsibilities of the parties including the school's performance expectations. (28) Depending on the state, "authorizers" will take different forms including, but not limited to certain government agencies, educational entities, local school boards, or nonprofit private entities. (29) Additionally, charter schools are not required to comply with many of the state and local regulations imposed on "traditional" public schools, such as those pertaining to curriculum, staffing, and budget, among others. (30)

Students are not "assigned" to attend charter schools, but rather, students choose to attend as an alternative to the available "traditional" public schools. (31) Charter schools are technically open to all students and typically do not require applicants to meet eligibility standards such as prior academic performance or test scores. (32) But, enrollment is often limited by statute, and when a charter school reaches capacity, it will begin to admit applicants at random through a lottery, and ultimately many applicants are unable to enroll. (33) Further, a number of states do allow charter schools to give preference to certain applicants, such as siblings of students who already attend the school and children of the school's founders and employees. (34) Charter schools are also granted more freedom than "traditional" public schools when it comes to student discipline and are able to exclude students whose behavior would not otherwise justify expulsion. (35)

Charter Schools in Massachusetts

Massachusetts charter schools "ha[ve] the freedom to organize around a core mission, curriculum, theme, and/or teaching method and [they] control [their] own budget and hire (and fire) teachers and staff." (36) In Massachusetts, there are two categories of charter schools: Commonwealth charter schools and Horace Mann charter schools. (37) Both Commonwealth and Horace Mann charter schools are governed by a board of trustees, they operate independently of any school committee, and their charter agreements must be approved by the Massachusetts Board of Elementary and Secondary Education (the "Board"). (38) If approved, the charter agreements remain in place for five years. (39) At the end of the five year term, a school's agreement may be renewed if it has attracted students and produced "positive results" during the initial five year term. (40) The main difference between Horace Mann charter schools and Commonwealth charter schools is that, in addition to approval by the Board, Horace Mann charter schools must also be approved by the local school committee and, in certain cases, the local teacher's union. (41)

For each student who attends a Commonwealth charter school, the school receives a "tuition payment" from the state equal to the amount that the Massachusetts Department of Elementary and Secondary Education ("DESE") deems to be the cost of educating one student; this is referred to as the "per-pupil amount." (42) The state then deducts this per-pupil amount from the aid received by the school district (the "sending district) where the student would have otherwise attended. (43) Simply put, the state reallocates funding from the sending district to the Commonwealth charter school(s) in an amount equal to the per-pupil expense multiplied by the number of students in the sending district that have chosen instead to attend a charter school. (44) Commonwealth charter schools are also eligible to receive funding through federal and state grants, and they may also apply for private grants and receive contributions. (45)

Horace Mann charter school funding "comes directly from the school district in which the school is located, through a memorandum of understanding with the district." (46) During the first year of operation, Horace Mann applications "may specify a total budget allocation" that has been approved by the local school committee, and "each year thereafter, the board of trustees ... will submit a budget request for the following year to the superintendent and school committee under the district." (47) These schools may also apply for private grants and receive individual contributions. (48)

Massachusetts also imposes a limitation on the number of charter...

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