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New Bedford Educators Association v. Chairman of Massachusetts Board of Elementary and Secondary Education

Appeals Court of Massachusetts, Middlesex

August 23, 2017

NEW BEDFORD EDUCATORS ASSOCIATION
v.
CHAIRMAN OF THE MASSACHUSETTS BOARD OF ELEMENTARY AND SECONDARY EDUCATION & others (and two consolidated cases).

          Heard: May 4, 2017.

         Practice, 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.

         Civil 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, J.

          Laurie R. Houle for the plaintiffs.

          Iraida J. Alvarez, Assistant Attorney General (Pierce O. Cray, Assistant Attorney General, also present) for the defendants.

          Present: Trainor, Vuono, & Sullivan, JJ.

          VUONO, J.

         In 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.[3] 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.

         1. Statutory framework.

         To give 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.[4] 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.) .

         Once 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.[5] 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.[6] 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 group. Ibid.

          When 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."[7] 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, § 1J(n).

         Within 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." Ibid.

         Within 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.[8] See ibid. The decision of the board regarding an appeal shall be made within thirty days and "shall be final." Ibid.

         2. Factual and procedural background.

         We 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.

         In 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 conditions. ...


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