By Patrick Anderson
Staff Writer
—
NEWBURYPORT — The legal fight over the future of Gloucester's first charter school, a dispute with potential statewide ramifications, could go either way, the Superior Court judge who will decide the case told both sides at a hearing Thursday.
After more than an hour of oral arguments on the lawsuit, in which 15 local parents and the city of Gloucester call the state approval of the Gloucester Community Arts Charter School an act of corruption, Judge Richard Welch said he did not have "an inkling" on how he would rule on cross motions asking him to either shutter the charter school or broom the case.
Noting that the scheduled Aug. 31 opening date for Gloucester Community Arts is now less than two weeks away, Welch told lawyers from both sides that he would try to have a decision by next week.
Although the sweep of the lawsuit covers everything from the fine points of Massachusetts' charter school policy to nearly a year of suspicious behavior from the state's top two education officials, based on Welch's questions, the case will likely hinge on narrower legal questions.
The most critical of those Thursday centered on whether a judge has the authority to even hear the case — regardless of how bad the state's charter school policy, or procedural flaunting of it, may have been.
According to the defense — which includes both the charter school and, represented by lawyers from the Attorney General's office, Education Commissioner Mitchell Chester — the state Board of Education's authority to grant charter schools in Massachusetts is absolute, no matter how sloppy or unjust they might be.
But Welch questioned Thursday whether there may be some cases in which particularly corrupt acts by state officials would leave room for a judge to intervene.
He floated the hypothetical of an education board knowing without a doubt that a specific charter school application is poor and would produce a bad school, yet approving it anyway because the governor wanted one in his hometown.
According to the plaintiffs, that scenario is not far from what actually happened in 2009, when the state education board approved the Gloucester Community Arts application in a 6-5 vote despite a then-secret recommendation from education department experts not to approve it.
As for why the board approved it, the plaintiffs point to the blessing of Chester, who himself was leaning against the Gloucester bid until Education Secretary Paul Reville, Gov. Deval Patrick's top aide on education, asked him to advance it to please pro-charter political allies. In the real case, one of the charter applications that was not recommended for approval was in Reville's hometown, Worcester.
Whether such behavior opens a charter school up to challenge from parents or a city, could determine whether the case goes any further.
"No matter how bad the violation; no matter how corrupt, is there no standing for the court?" Welch asked Assistant Attorney General Kenneth Salinger, representing the defense.
The legal precedent that hangs over the case is a challenge brought by the Hudson School Committee against a charter school approval and rejected by justices from the state Supreme Judicial Court.
The state high court found that the School Committee did not have standing to bring the suit, prompting Gloucester charter opponents to bring the case on behalf of parents of public school students and the city itself instead of the School Committee.
In a sign that this strategy may have hope, Welch asked some of the parents to provide by Monday morning personal accounts of the harm they expect their children to suffer because of the opening of the charter school.
To date, the plaintiffs' exhaustive series of affidavits has focused on the expected harm to the city, estimated at $2.4 million in diverted state aid when the charter is fully enrolled and a series of state reimbursement payments ends.
Welch said he wanted proof of more direct personal harm to students, in comparison to the accounts of hardships to the public school system provided by former Superintendent Christopher Farmer, which Welch described as suggesting "the sky is falling." Farmer, now superintendent of the Triton Regional School District, was in the courtroom for the Gloucester hearing Thursday.
Another question debated at length Thursday was who would be hurt the most if a court order does squash Gloucester Community Arts before the start of school.
For the plaintiffs, the eventual annual loss of $2.4 million provides the greatest potential harm in the form of closed schools and larger class sizes, or fewer police and firefighters and the shuttering of the Sawyer Free Library and Rose Baker Senior Center.
Aside from potentially higher crime, neglected seniors and no books, they describe children already displaced by the elementary redistricting three years ago as being shuttled around to different schools again.
The defense, on the other hand, points to the now 82 children (out of what they hope will be 95) who have committed to the charter school and who would be displaced by its closure. The defendants also point to the loss of jobs for the 14 employees who have been hired by the charter school, specifically one teacher who left California to come here.
And then there is the impact on Massachusetts' wider charter school policy, which state lawmakers, prodded by the federal government, expanded this year and which they say could face new challenges if a precedent is set allowing parents to challenge controversial charter awards in the courts.
With those things in mind, the defense argued that, far from being harmed, the city actually reaps a "windfall" from getting a new charter school because of the state reimbursements.
Stop-work order remains
With the fate of the Gloucester Community Arts Charter School dangling in Superior Court, the effort by charter leaders to actually open the school on time this month was complicated again Thursday when it was learned that a stop work order on two of its four trailer classrooms will not be lifted until Monday at the earliest and possibly much later.
The mobile classrooms, wheeled to the Blackburn Industrial Park site of the charter school, are being used because renovations to the permanent school building will not be ready until October.
But on Wednesday afternoon, Gloucester Building Inspector William Sanborn halted installation of the two of the four modulars because they lacked a required state certification seal.
Mayor Carolyn Kirk had said Wednesday that a state inspector was scheduled to tour the charter site and possibly resolve the issue Thursday morning.
But Sanborn Thursday said the state inspector was not expected to visit Gloucester until Monday.
The state seals are put on mobile classroom units so they can be moved from site to site without having to be reinspected for fitness each time they are used.
But only two of the trailers had Massachusetts seals when he inspected them, Sanborn said Thursday, indicating they may have been trucked in from another state and might not meet building codes here.
Sanborn said an independent, third-party inspector would be brought in to look at the modulars. If they are found to be in compliance, the stop-work order could be lifted Monday or Tuesday.
If not, the units, now sitting awkwardly on piles of cinder blocks, might have to be replaced, a process that could take six to eight weeks.
Patrick Anderson can be reached at 978-283-7000, x3455, or panderson@gloucestertimes.com,
