Lawyers plan to appeal dismissal of suit

BOSTON - The dismissal of a lawsuit that aimed to provide greater access to charter schools in Massachusetts sets up potential clashes in appellate courts as the plaintiffs' lawyers intend to appeal.

William Lee, an attorney for the plaintiffs - five unidentified Boston public school students - told the News Service he plans to appeal the decision "immediately."

Suffolk Superior Court Judge Heidi Brieger on Tuesday dismissed the suit initially filed about a year ago, seeking to upend the state's education system by deeming the charter school statute unconstitutional.

"Plaintiffs have not alleged the kind of 'egregious, Statewide abandonment of the constitutional duty necessary to show a violation of the education clause," Brieger wrote.

The dismissal arrives amid a fierce campaign for and against Question 2, which would allow for up to 12 additional charter schools per year beyond statutory caps. With diverging priorities, the House and Senate have failed to pass legislation addressing the state's charter school law in recent years and voters are set to decide the fate of Question 2 on Nov. 8.

"The ruling sets the record straight, finding that the cap is consistent with the constitutional requirement to 'cherish' public education," Barbara Madeloni, the president of the Massachusetts Teachers Association and an opponent of Question 2, said in a statement.

"Public school students are going to benefit from this ruling. Charters by and large are not inclusive of all types of students, so this ruling helps protect equity in our school systems," said Savina Tapia, a recent Boston Latin Academy graduate, in a statement. Tapia joined an intervention an attempt to participate in the case with the New England Area Conference of the NAACP.

Attorneys for the plaintiffs said the ruling did not address their clients' "inadequate education" in the public school system.

"The superior court's decision recognizes a constitutional right to an adequate education, but decides that five students seeking to represent a class of thousands cannot enforce that right so long as other students, attending other schools, are receiving an adequate education," attorneys Paul Ware of Goodwin Procter, Michael Keating of Foley Hoag, and Lee of WilmerHale said in a statement to the News Service. They said, "If this decision stands, they will remain in those inadequate schools. We intend to seek immediate review in the Supreme Judicial Court."

Brieger was an appointee of former Gov. Deval Patrick. Gov. Charlie Baker, an avowed champion of expanding access to charter schools, has already made an imprint on the state's highest court, appointing three new justices to the seven-judge Supreme Judicial Court.

Baker has argued that charter schools provide the opportunity for students throughout the state to receive a top-rate education, even if schools in their home districts are struggling.

Brieger said that only 56 of the state's 71 Commonwealth charter schools - which do not require local approval - count toward the statewide cap of 72 Commonwealth charter schools. There is an additional per district cap on the amount of public dollars that can go toward charter schools, and the plaintiffs' attorneys argued that "arbitrarily reduces their chances of admission to a charter school."