JANE DOE NO. 1 & others
SECRETARY OF EDUCATION & others.
Heard: October 2, 2017.
action commenced in the Superior Court Department on
September 15, 2015. A motion to dismiss was heard by
Heidi E. Brieger, J.
Supreme Judicial Court granted an application for direct
P. Martin (Paul F. Ware, Jr., also present) for the
E. Toone, Assistant Attorney General (Juliana deHaan Rice
& Julia Kobick, Assistant Attorneys General, also
present) for the defendants.
Melissa C. Allison for Savina Tapia & others.
Fader, Alan H. Shapiro, & John M. Becker, for
Massachusetts Teachers Association, amicus curiae, submitted
C. Broderick & Ryan P. McManus, for Pioneer Institute,
Inc., & others, amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker,
students who attend public schools in the city of Boston
filed a complaint in the Superior Court against the Secretary
of Education, the chair and members of the board of secondary
and elementary education, and the Commissioner of Education
(commissioner), alleging that the charter school cap under G.
L. c. 71, § 89 (i), violates the education clause and
the equal protection provisions of the Massachusetts
Constitution because the students were not able to attend
public charter schools of their choosing. A judge of that
court allowed the defendants' motion to dismiss. We
affirm the judgment of dismissal and conclude, as did the
motion judge, that the plaintiffs have failed to state a
claim for relief under either provision.
Statutory framework and history.
five years ago, the Legislature enacted the Education Reform
Act of 1993 (1993 Act). St. 1993, c. 71. The 1993 Act
"entirely revamped the structure of funding public
schools and strengthened the board [of education]'s
authority to establish Statewide education policies and
standards, focusing on objective measures of student
performance and on school and district assessment, evaluation
and accountability." Hancock v. Commissioner of Educ.,
443 Mass. 428, 437 (2005) (Marshall, C.J., concurring). Among
other things, the 1993 Act added G. L. c. 71, § 89
(charter school statute), authorizing charter schools to
operate in the Commonwealth to encourage innovation in the
educational realm. St. 1993, c. 71, § 55.
established charter schools as a reaction to what was seen as
a traditional public school system resistance to innovative
education methods. As the 1993 Act was making its way through
the Legislature, one policymaker publicly opined that charter
schools were needed because teachers wanted to bring creative
teaching styles to the public schools, but principals,
superintendents, and school committees often blocked their
innovations: "The current system is too rigid, too
inflexible[, ] and it doesn't adopt to change quick
enough to meet the needs of students." State House News
Service, Charter Schools (Feb. 24, 1993) (statement of
Undersecretary of Education for Policy and Planning Michael
Sentance). Ultimately, charter schools were intended to
provide "a laboratory for testing different methods and
those methods that proved useful . . . would be
replicated" in traditional public schools. Id.
(statement of Senate Ways and Means Chairman Thomas
Birmingham). A bill summary accompanying the conference
committee report described charter schools as
"laboratories of change, allowing for experimentation to
encourage creative ways of addressing the needs of the
children of the Commonwealth." The Education Reform Act
of 1993, Conference Committee Report Highlights (May 24,
are two types of charter schools: "commonwealth"
charter schools and "Horace Mann" charter
schools. G. L. c. 71, § 89 (a.) and (c) . Horace Mann
charter schools are subject to more statutory requirements
than commonwealth charter schools. See Id. at §
89 (c). Both types of schools operate under charters granted
by the board of elementary and secondary education (board)
and each is managed by a board of trustees. Id.
However, a Horace Mann charter school must be "approved
by the school committee and the local collective bargaining
unit in the district where the school is located, "
whereas a commonwealth charter school operates independently
of the local school committee and local collective bargaining
unit. Id. The Department of
Elementary and Secondary Education (department)now identifies
these "standard" Horace Mann schools as Horace Mann
I schools. See 603 Code Mass. Regs. § 1.04(1) (a)
(2014). Additionally, charter schools may operate as Horace
Mann II or Horace Mann III charter schools. See G. L. c. 71,
§ 89 (c0 & (i) ; 603 Code Mass. Regs.
§ 1.04(1) (a). The latter two schools are subject to
requirements that are somewhat different from those to which
the Horace Mann I schools are subject. See G. L. c. 71,
§ 89 (c) & U), as amended by St. 2010, c. 12, §
7; 603 Code Mass. Regs. § 1.04(1) (a).
and Horace Mann charter schools are also funded differently.
See 603 Code Mass. Regs. § 1.07 (2014). Horace Mann
charter schools operate under budgets determined and annually
approved by the local school committee. G. L. c. 71, §
89 (w). For commonwealth charter schools, the department
calculates a tuition payment for each district sending
students to the school based on a statutory formula designed
"to reflect, as much as practicable, the actual per
pupil spending amount that would be expended in the district
if the students attended the district schools."
Id. at § 89 (ff) . The State treasurer pays
these amounts to the schools and then reduces education and
other aid payments to the sending districts by the same
amounts. Id. See 603 Code Mass. Regs. § 1.07(2)
1993, only a limited number of charter schools have been
authorized under the statute. See St. 1993, c. 71, § 55;
G. L. c. 71, § 89 (i) . One explanation for the
Legislature's decision to limit charter schools is that
the limited funds of local school districts are allocated to
charter schools and away from traditional public schools each
time charter schools expand. See G. L. c. 71, § 89 (w)
& (ff),  Widespread concern over the impact
of charter schools on public school district revenues
supports the conclusion that a primary purpose of caps on
charter schools is to limit this impact.
currently written, the charter school statute limits
commonwealth charter schools in two ways: a net school
spending cap, which applies only to commonwealth charter
schools, and a limit on the total number of charter schools
permitted to operate in the Commonwealth. See G. L.
c. 71, § 89 (i) . The net school spending cap
limits the amount of school district money that must be set
aside for commonwealth charter schools (and therefore limits
the amount of commonwealth charter school seats in a
district) . See Id. at § 89 (i) (2) . Net
school spending comprises all school district spending on
public education, from both State aid and local
sources. See G. L. c. 70, § 2. For most
school districts in the Commonwealth, the statute limits net
school spending to nine per cent of total public education
spending. G. L. c. 71, § 89 (i) (2) . However, in
districts that the board has designated as the lowest
performing ten per cent of school districts Statewide, the
net school spending cap is eighteen per cent of total public
education spending. Id. The charter school
statute also limits the total number of charter schools
permitted to operate in the Commonwealth to 120, only
seventy-two of which may be commonwealth charter schools. See
G. L. c. 71, § 89 (i) (1) .
history of charter school caps in Massachusetts encompasses
multiple legislative enactments spanning several decades. The
Legislature has steadily increased the number of permissible
charter schools and charter school seats. See St. 1993, c.
71, § 55 (limiting number of charter schools in each
city or town and total number of students attending charter
schools in Commonwealth to no more than three-quarters of one
per cent of public school students; and permitting no more
than twenty-five charter schools to operate in Commonwealth
at any one time); St. 1997, c. 46, § 2 (increasing total
number of charter schools permitted to operate and total
number of Commonwealth's public school students permitted
to attend charter schools, and setting net school spending
cap at six per cent for all districts); St. 2000, c. 227,
§ 7 (increasing total number of charter schools
permitted, but authorizing only seven each year until
reaching new total cap; increasing total number of public
education students permitted to attend charter schools; and
increasing net school spending cap to nine per cent); St.
2010, c. 12, § 7 (increasing net school spending cap to
eighteen per cent for commonwealth charter schools located in
districts designated as having student performance in lowest
ten per cent Statewide,  eliminating cap on total number
of Commonwealth's public school students permitted to
attend charter schools, and exempting Horace Mann II schools
from all caps) .
the charter school cap should be lifted continues to be
debated vigorously in the Commonwealth. Although the
Legislature has not increased the caps since 2010, both
chambers have frequently considered and voted on measures
that would have done so. See 2016 Senate Doc. No. 2203,
§ 93; 2016 Senate J., Uncorrected Proof (Apr. 7, 2016);
2014 Senate Doc. No. 2262; 2014 House Doc. No. 4108; 2014
House J. 1396-1400; 2014 Senate J., Uncorrected Proof (July
16, 2014). On November 8, 2016, voters considered and
rejected ballot question 2, which would have permitted up to
twelve new charter schools or enrollment expansions in
existing charter schools each year.
Factual and procedural history.
following facts are taken from the plaintiffs' complaint.
The plaintiffs are five students who attend, or are assigned
to attend, schools in the city of Boston. Each plaintiff
attends a school that is designated as a level three or level
four school, that is, a school that is in the bottom fifth of
all schools Statewide. Few students in each of the
plaintiffs' schools have achieved a level of proficiency
or above on subjects tested by the Massachusetts
Comprehensive Assessment System (MCAS), which include English
language arts, mathematics, and science. Each applied to
attend a charter school, but failed to secure a seat through
September, 2015, the plaintiffs commenced an action in the
Superior Court seeking declaratory and injunctive relief. The
plaintiffs claimed that their existing schools do not provide
a constitutionally adequate education and that the
defendants' enforcement of G. L. c. 71, § 89
(i), violates the education clause and the equal
protection provisions of the Massachusetts
Constitution. In their complaint, the plaintiffs
sought to represent a class including themselves and all
other children attending or assigned to attend
constitutionally inadequate schools in Boston who have
applied to public charter schools, but have failed to gain
entry via the lottery.
2015, the defendants filed a motion to dismiss the
plaintiffs' complaint. The motion judge granted the
motion, concluding that, although an actual controversy
between the parties existed and the plaintiffs had standing
to bring their claims against the defendants, the plaintiffs
had failed to state a claim under either the education clause
or the equal protection provisions of the Massachusetts
Declaration of Rights. The plaintiffs appealed, and we
allowed their application for direct appellate review.
review the allowance of a motion to dismiss de novo."
Curtis v. Herb Chambers 1-95, Inc., 458 Mass. 674,
676 (2011). "For purposes of that review, we accept as
true the facts alleged in the plaintiffs' complaints and
any exhibits attached thereto, drawing all reasonable
inferences in the plaintiffs' favor." Revere v.
Massachusetts Gaming Comm'n, 476 Mass. 591, 595
(2017). Before turning to the substance of the
plaintiffs' claims, we must determine whether there is
jurisdiction to adjudicate them.
plaintiff seeking declaratory relief must demonstrate not
only the existence of an actual controversy but also 'the
requisite legal standing to secure its resolution'"
(citations omitted). Entergy Nuclear Generation Co.
v. Department of Envtl. Protection, 459 Mass. 319,
326 (2011). "The purpose of both the actual controversy
and the standing requirements is to ensure the effectuation
of the statutory purpose of G. L. c. 231A, which is to enable
a court 'to afford relief from . . . uncertainty and
insecurity with respect to rights, duties, status and other
legal relations.'" Massachusetts Ass'n of
Indep. Ins. Agents & Brokers v. Commissioner of
Ins., 373 Mass. 290, 292 (1977), quoting G. L. c. 231A,
§ 9, inserted by St. 1945, c. 582, § 1. The
questions whether an actual controversy and standing exist
are closely related in actions for declaratory relief.
Id., citing South Shore Nat'1 Bank v. Board
of Bank Incorporation, 351 Mass. 363, 366-367 (1966). In
declaratory judgment actions, both requirements are liberally
construed. " Massachusetts Ass'n of Indep. Ins.
Agents & Brokers, supra at 293.
Notwithstanding the defendants' arguments to the
contrary, the plaintiffs have adequately demonstrated both an
actual controversy and standing.
plaintiffs here assert that the "actual
controversy" here is the fact that they are assigned to
inadequate schools and the cap restricts the number of
commonwealth charter schools, which, in turn, impedes the
plaintiffs' access to an adequate
education. The defendants argue that because
(1) there is no limit on the number of Horace Mann II charter
schools, (2) the numerical cap for Horace Mann I and III
charter schools has not been reached, and (3) the net school
spending cap does not apply to Horace Mann charter schools,
the plaintiffs have not presented an "actual
controversy." Here, however, we agree with the motion
judge that when the plaintiffs refer to "public charter
schools" in their complaint, their focus is solely on