Heard: May 4, 2017.
Civil, Standing, Declaratory proceeding, Action in
nature of mandamus, Relief in the nature of certiorari.
Administrative Law, Standing, Judicial review.
Declaratory Relief. Mandamus. Board of
Education. Commonwealth, Education.
Education. School and School Committee.
Labor, Public employment.
actions commenced in the Superior Court Department on
July 18, July 23, and October 21, 2014. After consolidation,
motions to dismiss were heard by Kimberly S. Budd,
R. Houle for the plaintiffs.
J. Alvarez, Assistant Attorney General (Pierce O. Cray,
Assistant Attorney General, also present) for the defendants.
Present: Trainor, Vuono, & Sullivan, JJ.
these consolidated cases, we consider the propriety of
actions taken by the Commissioner of the Massachusetts
Department of Elementary and Secondary Education
(commissioner) and by the Massachusetts Board of Elementary
and Secondary Education (board) in creating and approving
"turnaround plans" for chronically underperforming
schools pursuant to the so-called Achievement Gap Act (Act),
G. L. c. 69, § 1J. The plaintiffs, New Bedford Educators
Association (NBEA), Holyoke Teachers Association (HTA), and
Boston Teachers Union (BTU) (collectively, the unions), filed
separate complaints, later amended, in the Superior Court
against the commissioner, the board, and its chairman
(collectively, the defendants), alleging that the defendants
failed to satisfy the requirements of the Act with regard to
four chronically underperforming schools located in New
Bedford, Holyoke, and Boston. The unions sought declaratory
relief pursuant to G. L. c. 231A. NBEA and HTA also sought
certiorari review under G. L. c. 249, § 4, and relief in
the nature of mandamus pursuant to G. L. c. 249, § 5.
The defendants moved to dismiss the unions' complaints
under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), for lack
of subject matter jurisdiction. Following a hearing, a judge
dismissed the complaints, concluding that the unions did not
have standing to challenge the turnaround plans because the
unions' primary concerns were outside the area of
interest protected by G. L. c. 69, § 1J, and because the
defendants' statutory duty was to students, not to local
teachers' unions. On appeal, the unions contend that the
judge erred in dismissing their complaints solely on the
basis of standing. For the reasons that follow, we affirm.
context to the unions' claims, we set forth in some
detail the provisions of the Act. When the Legislature
enacted the Education Reform Act of 1993, it declared that a
paramount goal of the Commonwealth was "to provide a
public education system of sufficient quality to extend to
all children . . . the opportunity to reach their full
potential and to lead lives as participants in the political
and social life of the commonwealth and as contributors to
its economy." G. L. c. 69, § 1, as amended through
St. 1993, c. 71, § 27. In furtherance of this goal, the
Legislature rewrote the Act in 2010 to remedy deficiencies in
underperforming and chronically underperforming schools,
thereby improving student achievement. See G. L. c. 69,
§ 1J, as amended through St. 2010, c. 12, § 3. The
"chronically underperforming" designation is
reserved for the most challenged schools, such as those in
the present case, and is based on multiple indicators of
school quality. See G. L. c. 69, § 1J (a.); 603 Code
Mass. Regs. § 2.06(2) (2012). This designation can only
be imposed where a school previously has been deemed
"underperforming" and has failed to improve. G. L.
c. 69, § 1J (a.) .
the commissioner designates a school as chronically
underperforming, the commissioner is required to create a
turnaround plan for the school in accordance with specific
provisions of the Act. See G. L. c. 69, § 1J(m); 603 Code
Mass. Regs. § 2.06(6) (2012). The commissioner
"shall convene a local stakeholder group of not more
than 13 individuals for the purpose of soliciting
recommendations on the content of such plan in order to
maximize the rapid academic achievement of students." G.
L. c. 69, § 1J(m). As relevant here, two members of the
stakeholder group shall be the president of the local
teacher's union (or a designee), and a teacher from the
chronically underperforming school who is chosen by the
faculty of that school. Ibid. The commissioner must
convene the local stakeholder group within thirty days of a
school being designed as chronically underperforming, and the
group must make its recommendations to the commissioner
within forty-five days of its initial meeting. Ibid.
The commissioner is statutorily required to give "due
consideration" to the recommendations of the stakeholder
considering such recommendations, the commissioner has broad
authority under the Act to implement changes to resolve the
deficiencies that have caused a school to be designated as
chronically underperforming. See G. L. c. 69, § 1J(n).
Among other remedial measures, and "[n]otwithstanding
any general or special law to the contrary, " the
commissioner may expand, alter, or replace a school's
curriculum and program offerings, may provide additional
funds to the school from the district's budget, may
expand the school day or the school year or both, may add
full-day kindergarten classes if none exist, and may
"establish steps to assure a continuum of high expertise
teachers." G. L. c. 69, § 1J (O) . The
commissioner also may limit, suspend, or change the
provisions of any collective bargaining agreement, provided
that he "shall not reduce the compensation of an
administrator, teacher or staff member unless the hours of
the person are proportionately reduced, " and the
commissioner "may require the school committee and any
applicable unions to bargain in good faith for 30 days before
exercising authority" under the relevant statutory
provision. Ibid. In addition, after consultation
with local unions, the commissioner may "require the
principal and all administrators, teachers and staff to
reapply for their positions in the school, with full
discretion vested in the superintendent regarding his
consideration of and decisions on rehiring based on the
reapplications." Ibid. The turnaround plan
shall include quantifiable annual goals to facilitate
assessment of the school across numerous "measures of
school performance and student success." G. L. c. 69,
thirty days of the local stakeholder group making
recommendations, the commissioner must submit a preliminary
version of the turnaround plan to the stakeholder group, the
superintendent, and the school committee, all of whom may
propose modifications to the plan within thirty days of its
submission. See G. L. c. 69, § 1J(p). The commissioner
"shall consider and incorporate the modifications into
the plan if the commissioner determines that inclusion of the
modifications would further promote the rapid academic
achievement of students at the applicable school."
Ibid. The commissioner is free to alter or reject
any of the proposed modifications. See ibid. Within
thirty days of receiving such modifications, "the
commissioner shall issue a final turnaround plan for the
school and the plan shall be made publicly available."
thirty days of the issuance of the final turnaround plan, the
superintendent, the school committee, or the local union may
appeal to the board regarding one or more of the components
of the plan, including the absence of any proposed
modifications. See G. L. c. 69, § 1J(q) . Based on its
consideration of the challenged components, a majority of the
board may vote to modify the final turnaround
plan. See ibid. The decision of the
board regarding an appeal shall be made within thirty days
and "shall be final." Ibid.
Factual and procedural background.
summarize the relevant facts alleged in the unions'
amended complaints and supporting exhibits. See Dartmouth
v. Greater New Bedford Regional Vocational Technical High
Sch. Dist., 461 Mass. 366, 368 (2012). In March, 2010,
the commissioner designated the Paul A. Dever Elementary
School (Dever School) and the John P. Holland Elementary
School (Holland School), both in Boston, as underperforming
schools. The superintendent of the Boston public schools
created and implemented a turnaround plan for each one. In
the fall of that same year, the Morgan Full Service Community
School (Morgan School) in Holyoke and the John Avery Parker
Elementary School (Parker School) in New Bedford also were
designated as underperforming schools. The superintendents of
their respective school districts created and implemented
turnaround plans. Over the next three years, improvement
efforts at the four schools were unsuccessful. Consequently,
on October 30, 2013, the commissioner designated all four
schools as chronically underperforming and thereafter
appointed a receiver for each one.
accordance with the Act, the commissioner convened local
stakeholder groups to provide recommendations regarding a new
turnaround plan for each school. The commissioner also
notified the school committee and the teachers union in each
city that he intended to exercise his authority under G. L.
c. 69, § 1J(o), to change the provisions of each
school's collective bargaining agreement. In particular,
the commissioner stated that each turnaround plan would
include a longer school day, a longer school year, a
performance-based compensation system, and new working