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Students seek say in charter cap case

Lawyers file for intervention on behalf of BPS kids who say cap lift harms them

Jule Pattison-Gordon

Seven Boston Public School students, along with the New England Area Conference of the NAACP, moved on Thursday to intervene in a pending lawsuit over the cap on charter schools. The intervention seeks to introduce a viewpoint some regard as insufficiently present in the case — that of the defense.

That lawsuit, filed in September, calls for completely lifting the cap. Several defendants in the case — education officials in the Baker administration — have stated support for such a measure.

The intervenors — students of color, English language learners and students with disabilities — aim to present the voice of those who would believe their education would be harmed should the plaintiffs win, said Matthew Cregor, education project director of the Lawyers’ Committee for Civil Rights and Economic Justice and one of the lead attorneys for the student intervenors.

“It is critical that the voices of students in traditional public schools be heard in this lawsuit,” Cregor said.

Intervenors and their counsel claim that charter schools serve proportionately fewer students who are ELL or have disabilities, and push out students of color using harsh disciplinary measures. Exacerbating the problem, they say: Charter schools draw millions of dollars from district schools, making it harder for BPS to serve students that charters do not, or will not.

The motion, filed last Thursday, enables the lawyers to bring the seven students’ testimony and perspective to the next court hearing.

The lawsuit

In September, lawyers Paul F. Ware Jr., Michael B. Keating and William F. Lee brought a lawsuit against the Baker administration officials responsible for enforcing the charter cap, charging that the limit on charter school seats deprives thousands of students across the state of their constitutional right to quality education.

The lawyers filed on behalf of five Boston students who, after failing to receive seats in charter school lotteries, were assigned to district schools. These particular BPS schools are classified by the state as “underperforming.”

The defendants on the case include James Peyser, secretary of education; Mitchell Chester, the commissioner of elementary and secondary education; Paul Sagan, chair of the Board of Elementary and Secondary Education; and nine of the board’s members. Peyser, Sagan and Governor Charlie Baker have come out in support of lifting the cap.

This makes it imperative that the views of those opposing a cap lift are featured in the case, Cregor said.

“The plaintiffs and a number of the defendants are aligned in this lawsuit,” stated Alan J. Rom, another attorney representing the proposed intervenors. “Unlike the current defendants, the students we represent have a vested interest in seeing this lawsuit defeated. If the cap is lifted, their schools would face devastating cuts. That perspective should be heard in this litigation.”

Possible dismissal

Last fall, Attorney General Maura Healey, acting as attorney for the defendants, moved to dismiss the case to lift the charter cap. She contested the plaintiffs’ argument that the allegedly poor education they received was a result of the charter school cap, noting, in part, that not all charter schools are high performing. She called the plaintiffs’ reasoning “illogical, speculative and remote” and stated that “numerous factors other than the cap could be responsible for the poor performance of some schools.”

The dismissal motion is currently pending. Should it fail, Cregor expected the case’s next hearing would happen in spring.

Students for the cap: BPS services

One of the intervenors’ arguments is that lifting the cap on charters would pull more money from BPS, damaging the quality of services the district schools can offer.

BPS officials have pointed to unpaid charter school reimbursements as a major cause of the school system’s projected $50 million budget shortfall. And the financial gap directly impacts services: BPS’s current funding shortages prevent one of the intervenors —a grade 8 student identified as B.H., who has significant developmental disabilities — from receiving services he needs, said Scott P. Lewis, partner at Anderson & Krieger LLP, which is representing the proposed intervenors pro bono.

“This diversion of funds is doubly harmful to the students of color, students with disabilities, and English language learners we represent,” Lewis said. “These are the students who are disproportionately excluded from charter schools. Moreover, when funds are diverted from traditional public schools to charter schools, these same students experience devastating cuts to services they desperately need.”

ELL and special education

Intervenors and their counsel also charge that charter schools do not serve all students.

In 2014, charter schools enrolled ELL students at approximately half the rate of BPS schools, and students with disabilities at three-quarters the rate, according to Roger Rice of Multicultural Education, Training and Advocacy and Kathleen Boundy, co-director for the Center for Law and Education, who are among the attorneys for the student intervenors.

Marc Kenen, executive director of the Massachusetts Charter Public School Association, contests this.

“The Committee’s arguments that public charter schools exclude children with special needs and English Language Learners (ELL) are patently false,” Kenen said in a statement. “It’s unfortunate that the Lawyers Committee for Civil Rights and Economic Justice are fighting on the wrong side of the civil rights issue of our time.”

He cited Department of Elementary and Secondary Education data demonstrating that across the state, the percent of special education student enrollment in charters is approaching district levels. A DESE Dec. 2015 report also attests that the percent of ELL students enrolled in Massachusetts charters currently surpasses the statewide enrollment average.

However, charter schools may be enrolling ELL and special education students with less intensive needs than those attending district schools.

“The number of ELLs with the lowest levels of English language proficiency is a small fraction of the few ELLs enrolled by charter schools,” Rice said.

Boundy noted that BPS takes in pupils with greater levels of needs, enrolling twice as many pupils who were developmentally delayed, had intellectual disabilities or had autism

Some families of students with higher levels of special education needs have found that not all charters provide the range of supports and services offered by BPS, said Carolyn Kain, chair of the Boston Public Schools Special Education Parents Advisory Council.

“This has previously resulted in some special needs students returning to BPS,” she said.

One reason for the difference is that a charter school operates as a separate legal education agency. An individual school may not have services in place for needs it has not previously encountered.

Kain said that BPS and charter schools are currently sharing information on programs and teaching strategies in the effort to ensure the needs of all kinds of students are met.

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