The recent announcement by high-powered Boston-based attorneys of their plan for litigation on behalf of students on waiting lists to charter schools has created a furor between supporters and non-supporters of the charter school genre in an already super-charged political arena.

Paul F. Ware Jr., Michael B. Keating and William F. Lee, Esquires, are offering their services pro bono to represent litigants who claim their constitutionally protected civil rights are being violated because of the charter school cap that the Legislature upheld last year.

If the linkage can be established between a student’s civil right to a free and appropriate education, their attempt to enter a charter school and subsequent denial of same because of an existing law (the charter school cap), then the aforementioned barristers will have created the potential for a landmark case, comparable to any in the annals of education law in Massachusetts.

And charter school proponents are queueing with enthusiasm to board this bullet train.

“This is, frankly, an issue of civil rights, and this is an issue which the Legislature, for one reason or another, has failed to act on,” said Keating recently in a Boston Globe interview, and “it is not inappropriate, in those circumstances, to seek judicial relief.”

“We don’t think they should be denied that opportunity, and we don’t think the Constitution allows them to be denied that opportunity,” Lee said.

In their Globe responses, president of the Boston Foundation, Paul Grogan, and Mark Kenen, executive director of the Massachusetts Charter Public School Association, were positively gleeful at the prospects of pushing through the legislative barriers to the charter school model.

“It’s a new development and a wild card that might shake things loose, and we’re in need of that (and) I think, if nothing else, it will build moral pressure,” said Grogan.

“This is the argument we’ve been making for 30 years, that charter schools are a proven success, and (the charter school cap legislation) seems wrong on all levels, legal as well,” said Kenen.

On the other side of the question as to whether a lawsuit is appropriate in an area where charter school money, media shills and political pressure have all failed, labor unions were unanimous in their enmity.

“Any claim that the charter school cap is the basis of Massachusetts children being denied their civil rights is appalling and deceptive,” said Barbara Madeloni, president of the Massachusetts Teachers Association. 

“It’s a civil rights issue for the kids who remain in public schools, not a civil rights issue for those who wish to escape,” said Richard Stutman, president of the Boston Teachers Union.

“I see this as something that’s going to detract from the great bulk of students in our public schools,” said Thomas Gosnell, president of the American Federation of Teachers-Massachusetts.

And the common thread among pro- and anti-charter camps is an implicit moral posturing, that to each, the other’s position is wrong, harmful, a violation of “civil rights.” As it pertains to the imminent lawsuit, it is safe to say the case of Any Aggrieved Charter Waiting List Student v. Charlie Baker, James Peyser, Et al., is best suited for the Supreme Judicial Court if the plaintiff (pro-charters) have any chance at victory. This is not Brown v. Board of Education or even the 1993 SJC decision granting an opportunity for each student to receive a good education in every town in the commonwealth. This is a last-gasp, silver-bullet attempt to win a charter cap lift on a narrow judicial interpretation.

The troika of Lee, Keating and Ware — at all costs — wants to avoid a courtroom where the traditional legal briefs are filed in the protocol known as “discovery.” This is where the plaintiffs have to actually provide measurable, evidentiary proof that charter schools service English Language Learners and Special Education students better than the traditional public schools or that charters have higher graduation rates, more innovative curricula or better disciplinary codes. Frankly, such proof does not exist, and continuing the promotion sounds like Evil Knievel claiming he can leap across the Grand Canyon on a rocket-powered pogo stick.

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