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The Struggle to Ensure Educational Opportunity in Massachusetts

amy reichbach

I looked around the dilapidated North Philadelphia classroom I shared with another teacher six years ago and thought, “There’s got to be more I can do.” After four years, I still loved teaching and especially loved my students, but there were challenges that I could not address. I had thirty-five students in each class – and only twenty-six desks and twenty-eight copies of the novel we were reading. Because the one hundred forty students in my four sections of ninth grade English had to share these books, a student who had been unable to follow the in-class reading or discussion could not take one home. Many could have used the extra time to review, as several were reading at the second- or third-grade level. My average ninth grader was fifteen years old but could only read at the seventh grade level.

I left my position as a teacher thinking I would have more freedom to help young people learn from outside the system that was failing them. But after two years running a delinquency-prevention program in the same troubled community, I wanted more for my students. I realized that I needed additional tools in order to effect both individual and systemic change in urban education. When I applied to law school, Boston College offered me a Public Service Scholarship, which made it possible for me to study and practice new approaches to familiar problems.

When I began my first year of law school in 2002, prospects for reforming education through law in Massachusetts were promising. Twenty years after the United States Supreme Court held in San Antonio Independent School District v. Rodriguez, that there is no federal constitutional right to education, the Supreme Judicial Court of Massachusetts (SJC) in 1993 ruled in McDuffy v. Secretary of the Executive Office of Education that the state constitution imposes on the Commonwealth an “enforceable duty” to “provide education in the public schools for the children there enrolled, whether they be rich or poor and without regard to the fiscal capacity of the community or district in which such children live.” Although the court declined to adopt as its own the word “adequate” to describe the education that all students must be provided, it did hold that this education must “prepare all students to participate as free citizens of a free State to meet the needs and interests of a republican government.” Moreover, the SJC declared that the state was not fulfilling its constitutional duty. Rather than find any specific legislation for school funding unconstitutional, the SJC set forth "broad guidelines" concerning the capabilities that an educated child must possess and "presume[d] ... that the Commonwealth will fulfill its responsibility with respect to defining the specifics and the appropriate means to provide the constitutionally required education." Three days after the release of the McDuffy decision, the Legislature enacted the Massachusetts Education Reform Act (ERA). With the aim of providing “a consistent commitment of resources sufficient to provide a high quality public education to every child,” the ERA substantially restructured education funding in Massachusetts and established “uniform, objective performance and accountability measures for every public school student, teacher, administrator, school, and district in Massachusetts.” In 1996, the Massachusetts Board of Education announced that all students, beginning with the class of 2003, would have to pass the Massachusetts Comprehensive Assessment System (MCAS) examinations in order to receive a high school diploma.

But McDuffy’s promise of an adequate education for all children of the Commonwealth was never fully realized. A new group of plaintiffs representing nineteen school districts brought the case back to the SJC, seeking further remedial relief. A single justice of the SJC, the one remaining judge who had participated in McDuffy, referred the case to a specially assigned judge of the Superior Court to make findings of fact and recommendations. On April 26, 2004, after a seventy-eight day trial that focused on evidence from four “focus” school districts and included the testimony of 114 witnesses and entry of over 1000 exhibits, Judge Botsford issued a 318-page report detailing educational inequities and inadequacies. She observed that none of the focus districts was presently “equipping its students with the capabilities described in McDuffy,” and that in “every one of these districts, therefore, the students are not receiving the level of education that the Commonwealth has a constitutional duty to provide.” Eleven years after McDuffy, the Commonwealth was still in violation of its constitutional obligation to educate children in its poorer communities. Despite “substantial improvements in public education [that] had occurred since 1993, significant failings persisted in the focus districts,” and the funds that the focus districts received from the State were insufficient to allow them to meet the standards of McDuffy. Judge Botsford recommended, in essence, that the SJC direct the Commonwealth’s educational officials to determine the actual cost of providing a constitutionally adequate level of education for all children in the focus districts, and further direct them to implement the funding and administrative changes required to accomplish those goals. Finally, she recommended that the defendants be given a “definite but limited” amount of time to make these changes, and that the SJC retain jurisdiction over the remedial efforts.

A year ago, in February 2005, the Supreme Judicial Court declined to adopt Judge Botsford’s conclusion “that the Commonwealth presently is not meeting its obligations under” the Massachusetts Constitution, and “rejected her recommendation for further judicial action.” In Hancock v. Commissioner of Education, the plurality determined that although “serious inadequacies in public education remain,” the Commonwealth “is moving systemically to address those deficiencies.” The court noted that the legislature was doing its best to tackle a difficult problem, and declined the plaintiffs’ invitation to intervene. The irony of this holding is palpable in a state where doing one’s best is not sufficient for a student to earn a high school diploma if she is unable to pass MCAS, but we accept from our Governor and our legislators a plan that is only “beginning to work in significant ways.” Apparently, our legislators are held to a lower standard than our students. In Hancock, the SJC denied the plaintiffs’ motion for further relief, terminated the single justice’s ongoing jurisdiction, and disposed of the case in its entirety.

While Hancock was making its way through the courts of Massachusetts, on the national level, No Child Left Behind (NCLB) was signed into law in January, 2002. Like the ERA, NCLB emphasizes stronger accountability and aims to ensure educational opportunity for all children. Many educators oppose NCLB for its focus on testing as the primary assessment of schools’ progress. Furthermore, NCLB appears to have been drastically under-funded, prompting several states to challenge the Act’s constitutionality or to opt out of its requirements, thereby losing significant federal funding. Although NCLB promises to free children from persistently failing schools, such promises, like those of McDuffy, appear empty to the thousands of children who struggle, every day, to learn in overcrowded, under-resourced classrooms like the one I left in North Philadelphia.


After Hancock, what is left? What can lawyers and others do to realize McDuffy’s promise of an adequate education “in the public schools for the children there enrolled, whether they be rich or poor and without regard to the fiscal capacity of the community or district in which such children live”?

The Boston College Third World Law Journal spring symposium will address these issues. The symposium will examine the next generation of challenges in obtaining access to adequate education for at-risk students. A national panel will discuss the role that courts and legislatures might play in determining what constitutes an adequate education under state constitutions and in the current context of education reform requirements. A state panel will focus on how Massachusetts can improve education for at-risk students in the wake of the court’s decision in Hancock v. Commissioner of Education, which refused to issue an order requiring the state to increase funding to fully realize the commitment of the Education Reform Act “to provide a high quality public education to every child.”

The keynote speaker will be Derrick Bell, who now teaches at New York University, and is an active proponent of educational equity. He has most recently authored Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform.

National panelists include:
Michael Rebell, Executive Director and Counsel, Campaign for Fiscal Equity, Inc.
William Koski, Professor of Law, Stanford University
Diana Pullin, Professor of Education Law & Public Policy, Boston College
Lawrence C. Johnson, Project Coordinator, Fifth Street Renaissance
Dr. Joseph O'Keefe, S.J., Dean of the Lynch School of Education, Boston College, Moderator
State panelists include:
Michael Weisman, lead plaintiff’s attorney in Hancock v. Commissioner of Education
Kathy Boundy, Co-Director, Center of Law and Education
Tom Birmingham, former state legislator and chief architect of Mass Education Reform Act
Alan Rom, Massachusetts Appleseed Center for Law & Justice.
The Symposium will take place on April 21 from 1:30 - 5:30 p.m. at the law school in East Wing 200. All are invited to attend. Please contact Joyce Dalrymple at for more information.