On April 24, 2018, the Supreme Judicial Court held in Doe No. 1 v. Secretary of Education (SJC-12275) that students who attend public schools in Massachusetts are not constitutionally entitled to attend charter schools.  Five students filed a complaint in Superior Court challenging G.L. c. 71, § 89(i), which caps the number of all charter schools in the state (with the exception of “Horace Mann II” schools) and also caps the funding that commonwealth charter schools receive.  The plaintiffs alleged that the statutory caps violate both the education clause and the equal protection clause of the Massachusetts Constitution.  The Superior Court dismissed the complaint and the students appealed.

Under the statute, there is a cap of 120 total charter schools allowed in the Commonwealth. No more than 72 of those schools may be “commonwealth charter schools,” which operate independently of the school district where they are located but still receive funding from that district.  In addition, the statute provides that the funding from the sending district to commonwealth charters may not exceed 9% of the district’s net school spending; unless the sending district is in the lowest 10% of performing districts statewide, in which case the funding limits are raised to 18%.  (The other type of charter school, a Horace Mann charter, must be approved by the school district and the bargaining unit in which it is located, and receives funding as determined by the district.)

On appeal, the court first decided that the plaintiffs had sufficiently asserted a justiciable controversy and their right to bring their claims. It then addressed the merits of those claims.

The plaintiffs attend schools that are subject to the 18% cap and have been unable to obtain spaces in charter schools through a lottery process. They alleged that the education they are receiving is constitutionally inadequate under the education clause, which imposes a duty on the Commonwealth to educate all children.  The plaintiffs claimed that this deprivation is caused by the charter school cap, which prevents them from attending a better-performing school and thereby receiving a constitutionally adequate education.  The court disagreed, ruling that while the plaintiffs may be receiving an inadequate education at the moment, they would need to demonstrate that the Commonwealth had failed to fulfill its duty to educate all of its children and that the Commonwealth’s public education plan does not offer reasonable assurance of an opportunity for an adequate education.

Alternatively, the plaintiffs alleged that the charter caps violate the equal protection clause of the Massachusetts constitution because they create two classes of children: those guaranteed to receive the opportunity for an adequate education because their districts provide one, and those in failing districts that rely on the charter lottery system for the prospect of an adequate education. The court rejected this claim as well.  It held that because the charter caps did not significantly interfere with any fundamental right to an education or target a suspect class, the court would not evaluate the statute by applying “heightened scrutiny.”  Instead the court decided that the statute could be upheld so long as it was rationally related to the furtherance of a legitimate state interest.  Noting that charter school funding affects the funding available to the district’s traditional public schools, the court concluded that the caps further the interests of students who do not attend charter schools by limiting the funding impact on their schools and serve as an effort to allocate educational funding among the Commonwealth’s students.  The court therefore held that the caps further a legitimate state interest and satisfy the “rational basis” test.

Obviously, this case has importance for school districts in Massachusetts which must annually wrestle with school budgets and enrollment issues. The court noted that charter schools and the caps continue to be a source of public debate in and outside the Legislature.  School districts are well-advised to keep abreast of developments.

If you have any questions regarding the content of this update, or any other questions regarding school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

On April 5, 2018, the Supreme Judicial Court held in Boelter v. Board of Selectmen of Wayland, SJC-12353, that the email circulation of employee performance evaluations among a quorum of a public body in advance of an open meeting violates the Open Meeting Law, G.L. c. 30A, §§ 18, 20 (the “OML”) unless the evaluations are publicly disclosed at the same time. This decision overrules guidance previously issued by the Attorney General, which provided that the circulation of evaluations to a quorum falls within the law’s exemption for the simple distribution of materials, as long as the body of the email itself expresses no “opinion.”

In the Wayland case, the board of selectmen was preparing for its annual evaluation of the town administrator.  In advance of an open meeting, the board members submitted individual evaluations to the chair, who then compiled the individual evaluations into a composite evaluation.  The chair circulated an e-mail to all members of the board containing the composite evaluation and the individual evaluations as attachments.  The covering email expressed no opinion.

The SJC concluded that the chair’s email to the board members, containing the attached evaluations, constituted a “deliberation” outside of a properly posted meeting in violation of the OML. Under the OML, a “deliberation” is any oral or written communication “between or among a quorum of a public body on any public business within its jurisdiction,” but the law contains an exception for the “distribution of a meeting agenda, scheduling information or distribution of other procedural meeting [sic] or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.” G.L. c. 30A, § 18.

Because the attached evaluations contained board members’ opinions about the town administrator, they did not fit within the law’s exception for the distribution of reports and documents. It did not matter that the body of the email itself expressed no opinion. Thus, the court ruled that the evaluations could not lawfully be distributed among a quorum of the board members prior to an open meeting.

The court recognized, however, that efficiency often requires members of public bodies to be able to review evaluations in advance. The court suggested that email distribution of evaluations among a quorum is permissible if the evaluations are publicly disclosed at the same time, such as on the town website. That way, members can review the documents in advance without thwarting the OML’s fundamental goal of transparency in government.

This ruling substantially alters the evaluation process conducted by boards of selectmen, school committees, and other governmental bodies. While it appears that members may still submit individual evaluations to the chair, from which the chair may then prepare a composite evaluation, the chair now cannot circulate the evaluations to a quorum in advance of the open session at which the evaluation is discussed without ensuring that the documents are also made publicly available in advance.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

In a decision released February 6, 2018, the Massachusetts Supreme Judicial Court defined the circumstances in which a child “willfully fails to attend school” pursuant to the Commonwealth’s Child Requiring Assistance (“CRA”) statute, G.L. c. 119, § 21.

The decision, Millis Public Schools v. M.P., SJC-12384, held that a child who “acts purposefully, such that his or her behavior arises from reasons portending delinquent behavior” qualifies as a child willfully failing to attend school under the law.

The Legislature enacted the CRA in 1973 with the intention of diverting children from delinquent behavior while providing nonpunitive care. To accomplish this task, the statute authorizes the Juvenile Court to intervene and potentially alter custody arrangements in cases of children deemed as requiring assistance. The CRA defines a child requiring assistance as one between the ages of six (6) and eighteen (18) that either: (i) repeatedly runs away from home; (ii) repeatedly fails to obey the lawful commands of their parent or guardian; (iii) is habitually truant; or (iv) is a sexually exploited child. A “habitually truant” child, as the court addressed in this case, is defined as a “school-aged child, not excused from attendance under the lawful and reasonable regulations of such child’s school, who willfully fails to attend school for more than 8 school days in a quarter.” The court must assess the child’s reasons for not attending school to determine whether the child’s absences are “willful.”

In the present case, Millis Public Schools filed a petition seeking to determine a determination that a fifteen (15) year old student, M.P., was a child requiring assistance. M.P. had been diagnosed with several medical, cognitive, and emotional conditions that severely impeded her ability to leave her home and attend school on a regular basis. For the 2016-2017 academic year, M.P.’s parents enrolled her in the school district so she could receive special education services. M.P. did not attend any classes from the beginning of the year through late October, prompting the district to file a CRA petition in November 2016. While the Juvenile Court noted that M.P.’s medical and emotional conditions hindered her ability to attend school, they were still found to be willful “actions taken by the child not to attend school.” M.P. appealed the Juvenile Court’s determination that she was habitually truant, bringing forth to the Supreme Judicial Court the issue of whether she “willfully failed to attend school.”

Looking to the Legislature’s goals in effectuating the CRA, as well as similar statutes in other jurisdictions, the court opined that a willful failure to attend school requires “more than voluntary or intentional conduct…when [the child] acts purposefully…his or her behavior arises from portending delinquent behavior.” The court emphasized that a willfulness inquiry is a fact-based inquiry and that each child’s rationale for truancy must be examined individually. Applying the court’s definition of “willfully” to M.P., the court held the record did not support a finding that M.P. willfully failed to attend school. M.P.’s failure to attend school did not arise from delinquent behavior; rather, she wanted to attend school but stayed home to address her medical and emotional conditions. Additionally, the court reasoned, no potential custodial modifications would have improved M.P.’s attendance record.

The court made a final point that districts should carefully consider the venue in which they bring attendance cases for children with disabilities. In some cases, the Bureau of Special Education Appeals may be more appropriate. Should you have concerns about how this decision impacts you, we advise you to contact us with your questions.

This update is provided for informational purposes only and should not be considered legal advice.