GloucesterTimes.com, Gloucester, MA

August 23, 2010

Judge: State 'blatantly violated' law

By Patrick Anderson
Staff Writer

A Superior Court judge Monday denied a bid by 15 local parents and the city to stop the Gloucester Community Arts Charter School from opening this fall.

But, in a ruling that turns the spotlight back on state officials, Judge Richard Welch III refused to dismiss the parents' lawsuit and wrote that the case presents "considerable evidence" that the state education commissioner and Board of Education "blatantly ignored and violated state law when granting the GCA charter for political reasons."

And while he denied the plaintiffs' preliminary injunction to stop the charter school from opening, Welch rejected the argument that charter schools movement bring only benefits and no financial harm to public schools systems where they are located, an axiom of the Massachusetts charter movement.

Welch suggested that by January, when the city is working on a budget for next year that will not include full state reimbursement for charter school expenses, another preliminary injunction might be successful.

"As the court stated at the hearing on this matter, the calculus regarding preliminary injunctive relief changes markedly during the next academic year," Welch wrote in the decision. "At that time, the traditional Gloucester public schools will suffer significant financial harm. The GCA cannot claim any justifiable reliance regarding financial commitments/staffing if this court reconsiders the injunctive request early enough to allow planning by both sides for the next academic year."

"Likewise, any student who chooses to attend GCA this September will be aware of the inherent uncertainty involving the next academic year," Welch added.

In his final remarks during oral arguments before Welch last Thursday, charter lawyer Tad Heuer called the awarding of a charter in Gloucester, or any other community in the state, a "windfall" for the city because of state reimbursements during the first several years of each new school's arrival.

But while the question of who would suffer the most from a shutdown was decisive in the preliminary, the strongest language in Welch's decision was targeted at co-defendant Mitchell Chester, the state education commissioner, who endorsed the Gloucester charter against the advice of his own Charter School Office staff, which conducted a close review of each charter application.

While he dismissed the parents' argument that the commissioner is legally bound to follow the recommendation of his Charter School Office, Welch — echoing state Sen. Bruce Tarr and state Inspector General Gregory Sullivan — said there is no evidence Chester made any attempt to independently judge the application against the established criteria.

"... There is a strong factual showing that the Commissioner, despite his affidavit to the contrary, did not perform his own independent evaluation of the GCA application but, to the contrary, ignored the state regulations and caved to political pressure to recommend the project to a Board eager to approve at least one charter application regardless of its merit," Welch wrote.

If the plaintiffs press forward with the case as expected, the judge's opinion that the scales "appear to tip in favor of the plaintiffs" on their case against Chester could put the onus on the commissioner to explain his endorsement of the Gloucester charter in a way he hasn't addressed to date.

"Among many things the judge has done wisely, he has zeroed on the fact that there is nothing on the record that answers why the school was approved," Tarr said Monday. "A lot of what the judge has said has validated the parents' claims."

Welch also wrote that the failure of any member of the Board of Education to attend the public hearing in Gloucester charter was a "clear cut" violation of state regulation.

After the board retroactively waived the attendance requirement, Chester and education department lawyers, have argued that hearings in other communities on the 2009 round of charter school applications satisfies the regulation — including before an oversight hearing of the state Joint Education Committee.

Attempts to reach Chester's office for comment late Monday afternoon were unsuccessful.

On top of signalling that the allegations against Chester may have merit, Welch went against the state bureaucracy in ruling that the parents even have the standing to bring a case against a charter award in court.

Representing Chester, lawyers from Attorney General Martha Coakley's office had argued that no matter how egregious the violation or injustice, the Board of Education's authority to award charters is absolute and cannot be challenged.

"The parents are thrilled with the judge's decision and we look forward continuing to prevail in the next phase of the case," said Ian Roffman, the lawyer representing the parents in the case.

On the other hand, Welch did rule that the city does not have standing in the case and dismissed the city from the case.

Despite seeing his firm's prediction of a swift end to the lawsuit go by the boards, Gloucester Charter Arts school attorney Heuer also claimed victory in the judge's ruling, especially the denial of the preliminary injunction and finding that the internal charter school office opinion was not binding on the Board of Education.

"I think that it is unfortunate that, due to the late filing, (Welch) ruled faster than he wanted," Heuer said. "We are pleased that the judge agreed with the vast majority of our arguments, and the school will not be prevented from opening on time."

It's unclear whether Welch's opinion will increase either the state or charter school's incentive to try to negotiate a settlement, something on which there had been little progress previously.

If the case continues on to trial, the last possible deadline for a ruling is June 2013.

Patrick Anderson can be reached at 978-283-7000, x3455, or panderson@gloucestertimes.com.