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SJC-12275

 JANE DOE NO. 11 & others2 vs.   SECRETARY OF EDUCATION & others.3



           Suffolk.     October 2, 2017. - April 24, 2018.

 Present:    Gants, C.J., Lenk, Lowy, Budd, Cypher, & Kafker, JJ.


Education, Charter school. Education Reform Act.
     Constitutional Law, Education, Equal protection of laws,
     Standing. Jurisdiction, Constitutional question,
     Declaratory relief. Declaratory Relief. Practice, Civil,
     Declaratory proceeding, Standing.



     Civil action commenced in the Superior Court Department on
September 15, 2015.

     A motion to dismiss was heard by Heidi E. Brieger, J.

     The Supreme Judicial Court granted an application for
direct appellate review.




     1   A minor, by her parent and next friend.

     2 Jane Doe No. 2 and John Doe Nos. 1, 2, and 3, minor
children, each by their parent and next friend.

     3 Chair of the board of elementary and secondary education;
commissioner of elementary and secondary education; and members
of the board of elementary and secondary education.
                                                                   2


     Kevin P. Martin (Paul F. Ware, Jr., also present) for the
plaintiffs.
     Robert E. Toone, Assistant Attorney General (Juliana deHaan
Rice & Julia Kobick, Assistant Attorneys General, also present)
for the defendants.
     Melissa C. Allison for Savina Tapia & others.
     Ira Fader, Alan H. Shapiro, & John M. Becker, for
Massachusetts Teachers Association, amicus curiae, submitted a
brief.
     Brian C. Broderick & Ryan P. McManus, for Pioneer
Institute, Inc., & others, amici curiae, submitted a brief.


     BUDD, J.   Five students who attend public schools in the

city of Boston filed a complaint in the Superior Court against

the Secretary of Education, the chair and members of the board

of secondary and elementary education, and the Commissioner of

Education (commissioner), alleging that the charter school cap

under G. L. c. 71, § 89 (i), violates the education clause and

the equal protection provisions of the Massachusetts

Constitution because the students were not able to attend public

charter schools of their choosing.   A judge of that court

allowed the defendants' motion to dismiss.   We affirm the

judgment of dismissal and conclude, as did the motion judge,

that the plaintiffs have failed to state a claim for relief

under either provision.4




     4 We acknowledge the amicus briefs submitted by the
Massachusetts Teachers Association; Pioneer Institute, Inc.,
Cheryl Brown Henderson, and The Black Alliance for Educational
Options; and Savina Tapia, Samuel Ding, N.H., Z.L., A.Q., T.K.,
B.H, The New England Area Conference of National Association for
                                                                        3


     Background.     1.   Statutory framework and history.    Twenty-

five years ago, the Legislature enacted the Education Reform Act

of 1993 (1993 Act).       St. 1993, c. 71.   The 1993 Act "entirely

revamped the structure of funding public schools and

strengthened the board [of education]'s authority to establish

Statewide education policies and standards, focusing on

objective measures of student performance and on school and

district assessment, evaluation and accountability."5        Hancock v.

Commissioner of Educ., 443 Mass. 428, 437 (2005) (Marshall,

C.J., concurring).    Among other things, the 1993 Act added G. L.

c. 71, § 89 (charter school statute), authorizing charter

schools to operate in the Commonwealth to encourage innovation

in the educational realm.      St. 1993, c. 71, § 55.

     Policymakers established charter schools as a reaction to

what was seen as a traditional public school system resistance



the Advancement of Colored People, Boston Branch of the
N.A.A.C.P., and The Boston Education Justice Alliance.

     5 The Education Reform Act of 1993 (1993 Act) was enacted
with the intent "to ensure: (1) that each public school
classroom provides the conditions for all pupils to engage fully
in learning as inherently meaningful and enjoyable activity
without threats to their sense of security or self-esteem, (2) a
consistent commitment of resources sufficient to provide a high
quality public education to every child, (3) a deliberate
process for establishing and achieving specific educational
goals for every child, and (4) an effective mechanism for
monitoring progress toward those goals and for holding educators
accountable for their achievement."   St. 1993, c. 71, § 27.
See G. L. c. 69, § 1.
                                                                   4


to innovative education methods.   As the 1993 Act was making its

way through the Legislature, one policymaker publicly opined

that charter schools were needed because teachers wanted to

bring creative teaching styles to the public schools, but

principals, superintendents, and school committees often blocked

their innovations:    "The current system is too rigid, too

inflexible[,] and it doesn't adopt to change quick enough to

meet the needs of students."   State House News Service, Charter

Schools (Feb. 24, 1993) (statement of Undersecretary of

Education for Policy and Planning Michael Sentance).

Ultimately, charter schools were intended to provide "a

laboratory for testing different methods and those methods that

proved useful . . . would be replicated" in traditional public

schools.   Id. (statement of Senate Ways and Means Chairman

Thomas Birmingham).   A bill summary accompanying the conference

committee report described charter schools as "laboratories of

change, allowing for experimentation to encourage creative ways

of addressing the needs of the children of the Commonwealth."6


     6 The 1993 Act states: "The purposes for establishing
charter schools are: (1) to stimulate the development of
innovative programs within public education; (2) to provide
opportunities for innovative learning and assessments; (3) to
provide parents and students with greater options in choosing
schools within and outside their school districts; (4) to
provide teachers with a vehicle for establishing schools with
alternative, innovative methods of educational instruction and
school structure and management; (5) to encourage performance-
                                                                   5


The Education Reform Act of 1993, Conference Committee Report

Highlights (May 24, 1993).

      There are two types of charter schools:   "commonwealth"

charter schools and "Horace Mann"7 charter schools.    G. L. c. 71,

§ 89 (a) and (c).   Horace Mann charter schools are subject to

more statutory requirements than commonwealth charter schools.

See id. at § 89 (c).   Both types of schools operate under

charters granted by the board of elementary and secondary

education (board) and each is managed by a board of trustees.

Id.   However, a Horace Mann charter school must be "approved by

the school committee and the local collective bargaining unit in

the district where the school is located," whereas a

commonwealth charter school operates independently of the local


based educational programs and; (6) to hold teachers and school
administrators accountable for students' educational outcomes."
St. 1993, c. 71, § 55. In 1997, the Legislature added an
additional purpose: "to provide models for replication in other
public schools." St. 1997, c. 46, § 2.    See G. L. c. 71, § 89
(b).

      7Horace Mann was the President of the Senate in 1836 and
1837 when the Legislature first created the board of education
and tasked its Secretary with reporting to the Legislature and
the public information about best practices in education. See
St. 1837, c. 241 (An Act relating to common schools); Manual for
the General Court, 2013-2014, at 340. Mann served as the first
Secretary of the board of education until 1848. 6 Dictionary of
American Biography 241-242 (1961). Mann's influence led to,
among other accomplishments, extending the length of the school
year, significantly increasing spending and appropriations for
schools, raising salaries for schoolteachers, enriching
curricula, and placing professional training of teachers on a
firmer basis. Id. at 242.
                                                                   6


school committee and local collective bargaining unit.8    Id.   The

Department of Elementary and Secondary Education (department)9

now identifies these "standard" Horace Mann schools as Horace

Mann I schools.   See 603 Code Mass. Regs. § 1.04(1)(a) (2014).

Additionally, charter schools may operate as Horace Mann II or

Horace Mann III charter schools.   See G. L. c. 71, § 89 (c) &

(i); 603 Code Mass. Regs. § 1.04(1)(a).   The latter two schools

are subject to requirements that are somewhat different from

those to which the Horace Mann I schools are subject.     See G. L.




     8 Although the legislative history is silent on this point,
the Legislature's decision in 1997 to rename the charter schools
set forth in the 1993 Act as "commonwealth" charter schools
reflects the fact that they are chartered and regulated only by
the State and have complete autonomy from local control. See
St. 1997, § 2; G. L. c. 71, § 89.

     9 The board of elementary and secondary education (board) is
established under G. L. c. 15, § 1E. In contrast, the
Department of Elementary and Secondary Education (department) is
established under G. L. c. 15, § 1, and is "under the
supervision and management of the commissioner of elementary and
secondary education" (commissioner). G. L. c. 15, § 1. The
commissioner is "secretary to the board, its chief executive
officer, and the chief [S]tate school officer for elementary and
secondary education." Id. at § 1F. Although the Secretary of
Education appoints the commissioner, the Secretary may only
appoint a candidate who has been recommended to him or her by a
two-thirds majority of the board. Id. The board may also
remove the commissioner. Id. The Legislature often assigns the
board, the commissioner, and the department separate statutory
duties. See, e.g., G. L. c. 69, §§ 1A, 1B, 1J. However, "[t]he
board may delegate its authority or any portion thereof to the
commissioner whenever in its judgment such delegation may be
necessary or desirable." G. L. c. 15, § 1F.
                                                                     7


c. 71, § 89 (c) & (i), as amended by St. 2010, c. 12, § 7; 603

Code Mass. Regs. § 1.04(1)(a).10

      Commonwealth and Horace Mann charter schools are also

funded differently.   See 603 Code Mass. Regs. § 1.07 (2014).

Horace Mann charter schools operate under budgets determined and

annually approved by the local school committee.     G. L. c. 71,

§ 89 (w).   For commonwealth charter schools, the department

calculates a tuition payment for each district sending students

to the school based on a statutory formula designed "to reflect,

as much as practicable, the actual per pupil spending amount

that would be expended in the district if the students attended

the district schools."   Id. at § 89 (ff).     The State treasurer

pays these amounts to the schools and then reduces education and

other aid payments to the sending districts by the same amounts.

Id.   See 603 Code Mass. Regs. § 1.07(2)(d).



       Creating a Horace Mann II charter school involves a
      10

conversion of an existing public school but does not require
approval of the local collective bargaining unit. G. L. c. 71,
§ 89 (c); 603 Code Mass. Regs. § 1.04(1)(a)(2) (2014). Horace
Mann III schools do not need an agreement with the local
collective bargaining unit prior to approval by the board.
G. L. c. 71, § 89 (i) (1); 603 Code Mass. Regs. § 1.04(1)(a).
Horace Mann III schools must "develop a memorandum of
understanding with the school committee and the local union
regarding any waivers to applicable collective bargaining
agreements." G. L. c. 71, § 89 (i) (1). "[I]f an agreement is
not reached on the memorandum of understanding at least 30 days
before the scheduled opening of the school the charter school
shall operate under the terms of its charter until an agreement
is reached." Id.
                                                                     8


    Since 1993, only a limited number of charter schools have

been authorized under the statute.   See St. 1993, c. 71, § 55;

G. L. c. 71, § 89 (i).   One explanation for the Legislature's

decision to limit charter schools is that the limited funds of

local school districts are allocated to charter schools and away

from traditional public schools each time charter schools

expand.   See G. L. c. 71, § 89 (w) & (ff).11   Widespread concern

over the impact of charter schools on public school district

revenues supports the conclusion that a primary purpose of caps

on charter schools is to limit this impact.




    11 This reasoning is supported by the legislative history of
statutes raising the charter schools cap. For example, in 2000,
members of the House of Representatives engaged in a vigorous
debate over a bill that would become a statute to increase the
charter school cap, discussed infra. During debate, many
legislators expressed their concerns with the financial effect
of charter schools on traditional public schools, with one
legislator noting that "[w]e will not take the money away from
struggling school systems." State House News Service (House
Sess.), June 21, 2000 (statement by Representative Byron
Rushing). See id. (statement by Representative Ronny M. Sydney
that charter schools "are good environments, but we cannot take
from the public schools to give to them"); id. (statement by
Representative Anne M. Paulsen that charter schools are
"undermining our public schools," and as result of expansion,
"education in public schools will be undercut"); id. (statement
by Representative Philip Travis that by expanding charter
schools, "[w]e are stealing from the towns"). Opponents of 2016
ballot question 2, discussed infra, argued to voters: "Every
time a new charter school opens or expands, it takes funding
away from the public schools in that district." Massachusetts
Information for Voters, 2016 Ballot Questions, State Elections
(Nov. 8, 2016), at 6 (2016 Ballot Questions).
                                                                      9


     As currently written, the charter school statute limits

commonwealth charter schools in two ways:   a net school spending

cap, which applies only to commonwealth charter schools, and a

limit on the total number of charter schools permitted to

operate in the Commonwealth.12   See G. L. c. 71, § 89 (i).     The

net school spending cap limits the amount of school district

money that must be set aside for commonwealth charter schools

(and therefore limits the amount of commonwealth charter school

seats in a district).   See id. at § 89 (i) (2).   Net school

spending comprises all school district spending on public

education, from both State aid and local sources.13   See G. L.


     12 Horace Mann II charter schools, which are schools
converted from existing public schools, are exempt from any cap
on the number of charter schools. See G. L. c. 71, § 89 (c).
     13 Net school spending is defined as


     "the total amount spent for the support of public
     education, including teacher salary deferrals and tuition
     payments for children residing in the district who attend a
     school in another district or other approved facility,
     determined without regard to whether such amounts are
     regularly charged to school or non-school accounts by the
     municipality for account purposes; provided, however, that
     net school spending shall not include any spending for long
     term debt service, and shall not include spending for
     school lunches, or student transportation. Net school
     spending shall also not include tuition revenue or revenue
     from activity, admission, other charges or any other
     revenue attributable to public education. Such revenue
     will be made available to the school district which
     generated such revenue in addition to any financial
     resources made available by municipalities or state
     assistance. The department of education, in consultation
     with the department of revenue shall promulgate regulations
                                                                     10


c. 70, § 2.   For most school districts in the Commonwealth, the

statute limits net school spending to nine per cent of total

public education spending.    G. L. c. 71, § 89 (i) (2).   However,

in districts that the board has designated as the lowest

performing ten per cent of school districts Statewide, the net

school spending cap is eighteen per cent of total public

education spending.   Id.14   The charter school statute also

limits the total number of charter schools permitted to operate

in the Commonwealth to 120, only seventy-two of which may be

commonwealth charter schools.    See G. L. c. 71, § 89 (i) (1).

    The history of charter school caps in Massachusetts

encompasses multiple legislative enactments spanning several

decades.   The Legislature has steadily increased the number of

permissible charter schools and charter school seats.      See St.



    to ensure a uniform method of determining which municipal
    expenditures are appropriated for the support of public
    education and which revenues are attributable to public
    education in accordance with this section. The regulations
    shall include provisions for resolving disputes which may
    arise between municipal and school officials." G. L.
    c. 70, § 2.

    14 General Laws c. 71, § 89 (i) (2), provides: "In any
fiscal year, no public school district's total charter school
tuition payment to commonwealth charter schools shall exceed
[nine] per cent of the district's net school spending; provided,
however, that a public school district's total charter tuition
payment to charter schools shall not exceed [eighteen] per cent
of the district's net school spending if" the school fails
certain student performance criteria for a number of consecutive
years as determined by the board.
                                                                  11


1993, c. 71, § 55 (limiting number of charter schools in each

city or town and total number of students attending charter

schools in Commonwealth to no more than three-quarters of one

per cent of public school students; and permitting no more than

twenty-five charter schools to operate in Commonwealth at any

one time); St. 1997, c. 46, § 2 (increasing total number of

charter schools permitted to operate and total number of

Commonwealth's public school students permitted to attend

charter schools, and setting net school spending cap at six per

cent for all districts); St. 2000, c. 227, § 7 (increasing total

number of charter schools permitted, but authorizing only seven

each year until reaching new total cap; increasing total number

of   public education students permitted to attend charter

schools; and increasing net school spending cap to nine per

cent); St. 2010, c. 12, § 7 (increasing net school spending cap

to eighteen per cent for commonwealth charter schools located in

districts designated as having student performance in lowest ten

per cent Statewide,15 eliminating cap on total number of

Commonwealth's public school students permitted to attend

charter schools, and exempting Horace Mann II schools from all

caps).

     15In those districts, the Achievement Gap Act of 2010
phased in increased school-district funding of commonwealth
charter schools between fiscal years 2011 and 2017. St. 2010,
c. 12, § 9.
                                                                   12


     Whether the charter school cap should be lifted continues

to be debated vigorously in the Commonwealth.    Although the

Legislature has not increased the caps since 2010, both chambers

have frequently considered and voted on measures that would have

done so.   See 2016 Senate Doc. No. 2203, § 93; 2016 Senate J.,

Uncorrected Proof (Apr. 7, 2016); 2014 Senate Doc. No. 2262;

2014 House Doc. No. 4108; 2014 House J. 1396-1400; 2014 Senate

J., Uncorrected Proof (July 16, 2014).    On November 8, 2016,

voters considered and rejected ballot question 2, which would

have permitted up to twelve new charter schools or enrollment

expansions in existing charter schools each year.16

     2.    Factual and procedural history.   The following facts

are taken from the plaintiffs' complaint.    The plaintiffs are

five students who attend, or are assigned to attend, schools in

the city of Boston.    Each plaintiff attends a school that is

designated as a level three or level four school, that is, a

school that is in the bottom fifth of all schools Statewide.17


     16The ballot question was rejected by sixty-two per cent of
voters (2,025,840 to 1,243,665) voting on the question, with
three per cent of Massachusetts voters (109,296) not voting on
the measure. See Secretary of the Commonwealth, The Elections
Division, Massachusetts Election Statistics 2016, Pub. Doc. No.
43, at 529 (Election Statistics 2016).

     17The department classifies schools by level based on
performance for purposes of accountability and providing
assistance to improve student achievement. 603 Code Mass. Regs.
§ 2.03 (2012). The department may designate a school at level
                                                                  13


Few students in each of the plaintiffs' schools have achieved a

level of proficiency or above on subjects tested by the

Massachusetts Comprehensive Assessment System (MCAS), which

include English language arts, mathematics, and science.18    Each




three if it is in the lowest-performing twenty per cent of
schools. Id. at § 2.04 (2017). The commissioner may designate
a subset of the lowest performing twenty per cent of schools as
level four or level five schools. See G. L. c. 69, § 1J (a);
603 Code Mass. Regs. § 2.05(2)(a)(2017). The commissioner's
decision to designate a school at level four is based on
indicators of school performance set forth in the regulation.
See 603 Code Mass. Regs. § 2.05(2)(b). Superintendents of
school districts containing a level four school must develop a
turnaround plan, approved by the commissioner, designed to
improve the school's performance. See G. L. c. 69, § 1J; 603
Code Mass. Regs. § 2.05(5). The commissioner may place a level
four school in level five if performance-improvement attempts
have failed. See 603 Code Mass. Regs. § 2.06(2) (2017). If the
commissioner places a school in level five, the commissioner may
select an external receiver to operate the school. See G. L. c.
69, § 1J (r); 603 Code Mass. Regs. § 2.06(5). Not more than
four per cent of the total number of public schools may be in
levels four and five, taken together, at any given time. See G.
L. c. 69, § 1J (a); 603 Code Mass. Regs. § 2.05(2)(c).

     18The Massachusetts Comprehensive Assessment System (MCAS)
is a standardized test that the Commonwealth uses to assess
student performance at public schools. See Student No. 9 v.
Board of Educ., 440 Mass. 752, 753 (2004) The four possible
achievement levels on MCAS are advanced, proficient, needs
improvement, or failing. See id. at 758-759 (2004); FY2015
Annual Report, Massachusetts Board of Elementary and Secondary
Education (Jan. 2016) Appx. 2.

     The complaint presented detailed statistics showing the low
performance of the students in the plaintiffs' schools on the
MCAS test. In 2014, the percentage of students who attended the
plaintiffs' schools scoring as proficient or higher in the
English language arts ranged from a high of thirty-nine per cent
to a low of ten per cent; in mathematics the high was thirty-
                                                                  14


applied to attend a charter school, but failed to secure a seat

through the lottery.19

     In September, 2015, the plaintiffs commenced an action in

the Superior Court seeking declaratory and injunctive relief.

The plaintiffs claimed that their existing schools do not

provide a constitutionally adequate education and that the

defendants' enforcement of G. L. c. 71, § 89 (i), violates the

education clause and the equal protection provisions of the




seven per cent and the low was fifteen per cent; and in science
the high was thirty per cent and the low was ten per cent.

     Moreover, in each of the last five years no more than
thirty-five per cent of students in John Doe No. 1's school
tested as proficient or higher in any subject.

     19Where there are fewer seats available at a charter school
than eligible students who apply to attend, the charter school
must hold an admissions lottery to enroll students. See G. L.
c. 71, § 89 (n); 603 Code Mass. Regs. § 1.05(6)(c), (7)(a).
John Doe No. 1 applied to attend Edward Brooke East Boston
Public Charter School. Jane Doe No. 1 applied to attend the
Match Charter Public School. John Doe No. 2 applied to attend
the Edward Brooke Roslindale Public Charter School. John Doe
No. 3 applied to attend "multiple charter schools in each of the
last two years." Jane Doe No. 2 applied to attend multiple
public charter schools. In their brief, the plaintiffs state
that since their complaint was filed, only one plaintiff, Jane
Doe No. 1, again entered and lost a charter school lottery and
remains in the school to which she was assigned in 2015. During
the pendency of the litigation, John Doe No. 1's family has
moved outside Boston to ensure that their children could obtain
an adequate education. John Doe No. 2 did not enter the most
recent charter school lottery. John Doe No. 3 was accepted to a
charter school in Boston after another charter school lottery.
Jane Doe No. 2 applied and was accepted to a selective Boston
district high school for the school year beginning in 2016.
                                                                  15


Massachusetts Constitution.20   In their complaint, the plaintiffs

sought to represent a class including themselves and all other

children attending or assigned to attend constitutionally

inadequate schools in Boston who have applied to public charter

schools, but have failed to gain entry via the lottery.

     In 2015, the defendants filed a motion to dismiss the

plaintiffs' complaint.   The motion judge granted the motion,

concluding that, although an actual controversy between the

parties existed and the plaintiffs had standing to bring their

claims against the defendants, the plaintiffs had failed to

state a claim under either the education clause or the equal

protection provisions of the Massachusetts Declaration of

Rights.   The plaintiffs appealed, and we allowed their

application for direct appellate review.

     Discussion.    "We review the allowance of a motion to

dismiss de novo."   Curtis v. Herb Chambers I-95, Inc., 458 Mass.

674, 676 (2011).    "For purposes of that review, we accept as

true the facts alleged in the plaintiffs' complaints and any

exhibits attached thereto, drawing all reasonable inferences in


     20The plaintiffs' complaint also asserts a cause of action
under the due process and liberty provisions of the
Massachusetts Declaration of Rights. However, as they failed to
argue these claims in their brief before this court, we do not
address them. See Mass. R. A. P. 16 (a) (4), as amended, 367
Mass. 921 (1975); Doe v. New Bedford Hous. Auth., 417 Mass. 273,
275 n.3 (1994).
                                                                    16


the plaintiffs' favor."   Revere v. Massachusetts Gaming Comm'n,

476 Mass. 591, 595 (2017).   Before turning to the substance of

the plaintiffs' claims, we must determine whether there is

jurisdiction to adjudicate them.

    1.    Jurisdiction.   "[A] plaintiff seeking declaratory

relief must demonstrate not only the existence of an actual

controversy but also 'the requisite legal standing to secure its

resolution'" (citations omitted).   Entergy Nuclear Generation

Co. v. Department of Envtl. Protection, 459 Mass. 319, 326

(2011).   "The purpose of both the actual controversy and the

standing requirements is to ensure the effectuation of the

statutory purpose of G. L. c. 231A, which is to enable a court

'to afford relief from . . . uncertainty and insecurity with

respect to rights, duties, status and other legal relations.'"

Massachusetts Ass'n of Indep. Ins. Agents & Brokers v.

Commissioner of Ins., 373 Mass. 290, 292 (1977), quoting G. L.

c. 231A, § 9, inserted by St. 1945, c. 582, § 1.    The questions

whether an actual controversy and standing exist are closely

related in actions for declaratory relief.    Id., citing South

Shore Nat'l Bank v. Board of Bank Incorporation, 351 Mass. 363,

366-367 (1966).   In declaratory judgment actions, both

requirements are liberally construed.    " Massachusetts Ass'n of

Indep. Ins. Agents & Brokers, supra at 293. Notwithstanding the
                                                                  17


defendants' arguments to the contrary, the plaintiffs have

adequately demonstrated both an actual controversy and standing.

     a.   Actual controversy.   The plaintiffs here assert that

the "actual controversy" here is the fact that they are assigned

to inadequate schools and the cap restricts the number of

commonwealth charter schools, which, in turn, impedes the

plaintiffs' access to an adequate education.21   The defendants

argue that because (1) there is no limit on the number of Horace

Mann II charter schools, (2) the numerical cap for Horace Mann I

and III charter schools has not been reached, and (3) the net

school spending cap does not apply to Horace Mann charter

schools, the plaintiffs have not presented an "actual

controversy."   Here, however, we agree with the motion judge

that when the plaintiffs refer to "public charter schools" in

their complaint, their focus is solely on commonwealth rather

than Horace Mann charter schools and they implicitly contend

     21The complaint contains claims that G. L. c. 71, § 89 (i),
is unconstitutional because of its charter school cap. Section
89 (i) presently contains two types of commonwealth charter
school caps, or limits on commonwealth charter schools. There
is a limit on the total number of charter schools in the
Commonwealth. G. L. c. 71, § 89 (i). There also is the net
school spending cap, which limits the amount of any school
district's total payment to commonwealth charter schools to a
percentage of that district's net school spending in any fiscal
year. Id. The net school spending cap does not apply to Horace
Mann charter schools. Id. In 2010, the Legislature eliminated
another cap that had limited the State's total charter school
population to four per cent. See St. 2010, c. 12, § 7; St.
2000, c. 227, § 2.
                                                                 18


that charter operators are seeking to expand as commonwealth,

not Horace Mann, charter schools.22

     One or more of the differences in regulatory treatment of

commonwealth charter schools and Horace Mann charter schools

under G. L. c. 71, § 89, may explain why charter school

operators have opted to apply for and operate commonwealth

charter schools in much greater numbers than Horace Mann charter

schools.   At any rate, the limit on commonwealth charter funding


     22The plaintiffs provided evidentiary support for their
contention that charter school operators would open more
commonwealth charter schools if the net school spending cap were
increased. The plaintiffs submitted a memorandum entitled
Charter Schools -- Amendments for Boston Schools, authored by
the commissioner and dated February 12, 2016, that was sent to
the members of the board, and that noted that existing
commonwealth charter schools requested significantly more new
seats at their schools in Boston than can be accommodated under
the net school spending cap. Id. at 1. The memorandum pointed
out that "existing [commonwealth charter] schools requested
2,701 new seats in Boston." Id. at 1. However, it also
indicated that "[u]nder the eighteen per cent [net school
spending cap] for Boston, the [d]epartment estimates that [only]
approximately 1,275 seats remain." Id. at 2. As a result, the
memorandum provides recommendations regarding which commonwealth
charter schools within Boston should have their requests for
additional seats granted and which should not, while ensuring
compliance with the net school spending cap. Id. at 1, 6. The
commissioner further noted that applications for more seats
"came from schools with track records of performance that, if
more seats were available in Boston, have the potential to be
strong candidates for my recommendation[,]" id. at 6, but that
"[b]arring any reallocation of unused seats, I anticipate that
no additional increases in enrollment in [c]ommonwealth charter
schools in Boston will be available in future years under the
current statute." Id. at 2. No evidence in the record suggests
that the operators of these schools or others are considering
opening Horace Mann charter schools in Boston.
                                                                    19


in the charter school statute has been reached in the

plaintiffs' district.    We need not divine the reason why charter

operators favor the commonwealth charter school framework in

order to conclude that, for the purposes of determining whether

an actual controversy exists, the plaintiffs have an

identifiable interest in the opportunity to attend a

commonwealth charter school that is actually limited by the caps

in the charter school statute.    We conclude, as did the motion

judge, that the plaintiffs have presented an actual controversy.

See G. L. c. 231A, § 1.

    b.    Standing.    A party has standing when it can allege an

injury within the area of concern of the statute, regulatory

scheme, or constitutional guarantee under which the injurious

action has occurred.    School Comm. of Hudson v. Board of Educ.,

448 Mass. 565, 579 (2007), quoting Enos v. Secretary of Envtl.

Affairs, 432 Mass. 132, 135-136 (2000).     "[I]t is not enough

that the plaintiff be injured by some act or omission of the

defendant; the defendant must additionally have violated some

duty owed to the plaintiff."     Penal Insts. Comm'r for Suffolk

County v. Commissioner of Correction, 382 Mass. 527, 532 (1981),

quoting L.H. Tribe, American Constitutional Law § 3-22, at 97-98

(1978).   The plaintiffs have set forth sufficient facts to

demonstrate standing as to both counts in their complaint.
                                                                   20


    First, the plaintiffs claimed their injury, i.e., an

inadequate public education, falls within the area of concern of

the education clause of the Massachusetts Constitution.      The

education clause imposes a duty on the Commonwealth to provide

an adequate public education to its schoolchildren.    McDuffy v.

Secretary of Executive Office of Educ., 415 Mass. 545, 618-619,

621 (1993).

    Second, the equal protection principles of the

Massachusetts Constitution prohibit lawmakers from treating

similarly-situated citizens differently without adequate

justification.   See Goodridge v. Department of Pub. Health, 440

Mass. 309, 330 (2003); Massachusetts Fed'n of Teachers, AFT,

AFL-CIO v. Board of Educ., 436 Mass. 763, 778-779 (2002).      Thus,

the plaintiffs' alleged equal protection injury --

discrimination in the provision of public education without

adequate justification -- is within the area of concern of the

Constitution's equal protection guarantee.    The plaintiffs

therefore have standing to bring their declaratory judgment

action.

    2.    Substantive claims.   "To survive a motion to dismiss,

the facts alleged must 'plausibly suggest[] (not merely be

consistent with) an entitlement to relief.'"    Edwards v.

Commonwealth, 477 Mass. 254, 260 (2017), quoting Iannacchino v.

Ford Motor Co., 451 Mass. 623, 636 (2008).   "Factual allegations
                                                                  21


must be enough to raise a right to relief above the speculative

level . . . [based] on the assumption that all the allegations

in the complaint are true (even if doubtful in fact)."

Iannacchino, 451 Mass. at 636, quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007).   "[W]hen the allegations in a

complaint, however true, could not raise a claim of entitlement

to relief, 'this basic deficiency should . . . be exposed at the

point of minimum expenditure of time and money by the parties

and the court.'"   Bell Atl. Corp., 550 U.S. at 558, quoting 5

C.A. Wright & A.R. Miller, Federal Practice and Procedure

§ 1216, at 233-234 (3d ed. 2004).

    a.   Education clause claim.    The plaintiffs allege that

they attend noncharter public schools that are constitutionally

inadequate.   They assert that their assignment to inadequate

schools is caused by a statutory provision prohibiting more than

eighteen per cent of their school district's funding from being

allocated to commonwealth charter schools.    See G. L. c. 71,

§ 89 (i).   Accordingly, they contend that the charter school cap

statute violates the education clause.

    We agree with the plaintiffs that the education clause

imposes an affirmative duty on the Commonwealth to provide a

level of education in the public schools for the children there
                                                                  22


enrolled that qualifies as constitutionally "adequate."23   See

McDuffy, 415 Mass. at 618-619, 621.   However, we conclude that

they have failed to state a claim under the education clause

because, to state a claim, the plaintiffs would need to plead


     23The Commonwealth's duty requires the Commonwealth to have
a State public education plan to ensure that our children are
educated in a manner so that they possess capabilities that
"accord with our Constitution's emphasis on educating our
children to become free citizens on whom the Commonwealth may
rely" to ensure the functioning of our democracy and society.
McDuffy v. Secretary of the Executive Office of Educ., 415 Mass.
545, 619 (1993). The McDuffy court described those capabilities
as follows:

     "(i) sufficient oral and written communication skills to
     enable students to function in a complex and rapidly
     changing civilization; (ii) sufficient knowledge of
     economic, social, and political systems to enable students
     to make informed choices; (iii) sufficient understanding of
     governmental processes to enable the student to understand
     the issues that affect his or her community, state, and
     nation; (iv) sufficient self-knowledge and knowledge of his
     or her mental and physical wellness; (v) sufficient
     grounding in the arts to enable each student to appreciate
     his or her cultural and historical heritage; (vi)
     sufficient training or preparation for advanced training in
     either academic or vocational fields so as to enable each
     child to choose and pursue life work intelligently; and
     (vii) sufficient level of academic or vocational skills to
     enable public school students to compete favorably with
     their counterparts in surrounding states, in academics or
     in the job market."

Id. at 618-619, quoting Rose v. Council for Better Educ., Inc.,
790 S.W.2d 186, 212 (Ky. 1989).

     The above-listed aptitudes comprise "broad guidelines."
McDuffy, supra at 618. See Hancock, 443 Mass. at 455 n.29
(Marshall, C.J., concurring). Significantly, the capabilities
considered to be essential "necessarily will evolve together
with our society." McDuffy, supra at 620.
                                                                    23


facts suggesting not only that they have been deprived of an

adequate education but also that the defendants have failed to

fulfil their constitutionally prescribed duty to educate.     See

Hancock, 443 Mass. at 435 (Marshall, C.J., concurring); McDuffy,

415 Mass. at 621.   Here, the plaintiffs have fulfilled the

former but not the latter condition.

     To allege that the Commonwealth has failed to fulfil its

duty to educate, plaintiffs must plead sufficient facts that,

accepted as true, demonstrate that the Commonwealth's extant

public education plan does not provide reasonable assurance of

an opportunity for an adequate education to "all of its

children, rich and poor, in every city and town," McDuffy, 415

Mass. at 606, over a reasonable period of time, or is otherwise

"arbitrary, nonresponsive, or irrational."    See Hancock, 443

Mass. at 435 (Marshall, C.J., concurring); id. at 457, 459; Doe

v. Superintendent of Schs. of Worcester, 421 Mass. 117, 129

(1995); McDuffy, supra at 606, 618, 621.     Here, although the

plaintiffs' complaint supports the claim that the education

provided in their schools is, at the moment, inadequate,24 they


     24For example, the plaintiffs claim substandard performance
on standardized student performance assessment examinations in
their schools. Although sufficient for the motion to dismiss
stage, we note that performance levels on such examinations
should be relied on with caution as evidence of a
constitutionally inadequate education without an examination of
other factors that may bear on test results and an examination
                                                                   24


have not alleged any facts to support a claim that the

Commonwealth's public education plan does not provide reasonable

assurance of improvements for their schools' performance over a

reasonable period of time.    As was the case in Hancock, there

may be moments in time where particular public schools are not

providing an adequate education to their students.     See Hancock,

supra at 457 (Marshall, C.J., concurring) (although some

students were not at full academic competency, coordinate

branches were satisfactorily acting on their education clause

duty).    This alone is insufficient to support a claim that the

Commonwealth has failed to fulfil its constitutional

obligation.25   See id.




of whether those test results actually measure whether an
education is constitutionally adequate. McDuffy, 415 Mass. at
618-619.

     25In describing the differences between the public
education system under review in McDuffy with the system under
review in Hancock, the plurality in Hancock noted that the
latter's "shortcomings, while significant in the focus
districts, do not constitute the egregious, Statewide
abandonment of the constitutional duty identified in" McDuffy.
Hancock, 443 Mass. at 433 (Marshall, C.J., concurring). We
disagree with the motion judge that this language implies the
need for a "Statewide abandonment" of the education clause duty
in order to state an education clause claim. If the
Commonwealth's public education plan were to abandon students
attending schools in a particular city or town, those students
may seek recourse under the clause. See McDuffy, 415 Mass. at
618 ("The crux of the Commonwealth's duty lies in its obligation
to educate all of its children").
                                                                  25


     In order to establish that their schools are performing

poorly, the plaintiffs utilize classifications established by

the department's regulations classifying schools based on

performance in order to "hold districts and schools accountable

for educating their students well and to assist them in

improving the education they provide."   603 Code Mass. Regs.

§ 2.01(3) (2012).   See id. at § 2.02 (defining "[l]evels 1

through 5" as "the levels in the [d]epartment's framework for

district accountability and assistance . . . in which schools

and districts in the Commonwealth are placed"); id. at

§ 2.03(1).26 See note 17, supra.   Although the plaintiffs allege

that their education is inadequate because two of their schools

have been designated by the Commonwealth as level four schools

and three have been designated as level three schools, they do

not claim that the Commonwealth's framework for ensuring that

all schools, including the plaintiffs', meet constitutional


     26The department's regulations provide that the
"[d]epartment shall implement a five-level system for school
accountability and assistance, approved by the [b]oard and known
as the framework for district accountability and assistance, for
the purpose of improving student achievement. Both the priority
for assistance and the degree of intervention shall increase
from [l]evel 1 to [l]evel 5, as the severity and duration of
identified problems increase. Under the framework, districts
shall hold their schools accountable for educating their
students well and assist them in doing so; the [d]epartment
shall hold districts accountable for both of these functions and
assist them in fulfilling them" (emphases added). 603 Code
Mass. Regs. § 2.03(1) (2012).
                                                                  26


educational adequacy fails to satisfy the requirements of the

education clause.   They instead focus solely on the charter

school cap.   As there is no constitutional entitlement to attend

charter schools, and the plaintiffs' complaint does not suggest

that charter schools are the Commonwealth's only plan for

ensuring that the education provided in the plaintiffs' schools

will be adequate, the Superior Court judge did not err in

dismissing the plaintiffs' education clause claim.

    Furthermore, even if the plaintiffs had successfully stated

a claim under the education clause, the specific relief that

they seek would not be available.   The education clause provides

a right for all the Commonwealth's children to receive an

adequate education, not a right to attend charter schools.

"[T]he education clause leaves the details of education

policymaking to the Governor and the Legislature."   Hancock, 443

Mass. at 454 (Marshall, C.J., concurring).   Although a violation

of the education clause may result in judicial action to remedy

the wrong, the clause does not permit courts to order

"fundamentally political" remedies or "policy choices that are

properly the Legislature's domain."   Id. at 460.

    Thus, here, although the remedy the plaintiffs seek by way

of this action, i.e., expanding access to charter schools, could

potentially help address the plaintiffs' educational needs,

other policy choices might do so as well, such as taking steps
                                                                    27


to improve lower-performing traditional public schools.     There

may be any number of equally effective options that also could

address the plaintiffs' concerns; however, each would involve

policy considerations that must be left to the Legislature.     See

id. at 460.   Whether to divert an increased amount of school

district funds from traditional public schools to charter

schools to comply with the education clause mandate is a choice

for the Legislature, not for the courts.27   See id.   See also id.

at 484 (Greaney, J., dissenting) (acknowledging "the

disagreement between competent experts on how best to remediate

a nonperforming or poorly-performing school district").

     b.   Equal protection claim.   "The Declaration of Rights of

the Constitution of this Commonwealth in arts. 1, 6, 7, [and] 10

. . . contain[s] ample guarantees for equal protection [of the

laws]."   Brest v. Commissioner of Ins., 270 Mass. 7, 14 (1930).

The plaintiffs claim the charter school cap violates their right

to equal protection because it creates two classes of children:

those who are guaranteed to receive an opportunity for an

adequate education because all traditional public schools in

     27In fact, as set out in the first section of this opinion,
not only has the Legislature modified the commonwealth charter
school cap numerous times since 1993, the voters of the
Commonwealth considered and rejected an initiative petition in
November, 2016, that would have provided the similar policy
relief that the plaintiffs request here under the education
clause. See St. 2010, c. 12, § 7; St. 2000, c. 227, § 2;
St. 1997, c. 46, § 2; Election Statistics 2016, supra at 529.
                                                                  28


their districts provide one, and those in districts with many

failing schools whose educational prospects are determined by a

lottery.   Even assuming that the statute at issue meets the

requirement of being discriminatory for the purposes of an equal

protection analysis,28 we conclude that the plaintiffs do not

state a plausible claim.

     In order to evaluate whether the plaintiffs' complaint

contains factual allegations plausibly suggesting that the

statute violates the equal protection, we must determine the

appropriate standard of review that would apply to their claim.

     For purposes of equal protection analysis, strict scrutiny

of a statute is appropriate where the statute either burdens a

fundamental right or targets a suspect class.   Goodridge, 440

Mass. at 330; Murphy v. Department of Correction, 429 Mass. 736,

739-740 (1999).   Here, although the plaintiffs do not allege

that a suspect class is involved, they argue that the charter

     28"Classification, and differing treatment based on a
classification, are essential components of any equal protection
claim . . . ." Doe v. Acton-Boxborough Regional Sch. Dist., 468
Mass. 64, 75 (2014). On its face, the net school spending cap
operates in a way to encourage more commonwealth charter schools
in the plaintiffs' school district than in higher performing
districts. See G. L. c. 71, § 89 (i) (subjecting most school
districts to nine per cent net school spending cap for
commonwealth charter schools while subjecting bottom ten per
cent of districts to eighteen per cent net school spending cap).
Under the plaintiffs' theory of discriminatory injury, they are
part of the advantaged class associated with the statute's
facial discrimination, and likely would not have standing to
challenge it.
                                                                    29


school cap statute deserves strict scrutiny because it burdens a

fundamental right to education protected by the Massachusetts

Constitution.29

     We have had occasion to hold that the Massachusetts

Constitution does not guarantee each individual student the

fundamental right to an education in circumstances in which a

student's behavior leads to expulsion.   See Doe v.

Superintendent of Schs. of Worcester, 421 Mass. at 129-130

(declining "to hold . . . that a student's right to an education

is a 'fundamental right' which would trigger strict scrutiny

analysis whenever school officials determine, in the interest of

safety, that a student's misconduct warrants expulsion").

Although heightened scrutiny does not apply in the individual

student misconduct context, whether the education clause implies

heightened scrutiny of education-related discriminatory

classifications in other circumstances is an open question.    We

need not determine whether such circumstances exist and, if so,

what they might be, in order to conclude that heightened

scrutiny does not apply to the charter school cap statute.     See

Lee v. Commissioner of Revenue, 395 Mass. 527, 530 (1985) (where

     29In addition to those rights afforded explicit protection
under our Constitution, "[h]istory and tradition guide and
discipline" the process of identifying and protecting
fundamental rights implicit in liberty. See Obergefell v.
Hodges, 135 S. Ct. 2584, 2598 (2015); Gillespie v. Northampton,
460 Mass. 148, 153 (2011).
                                                                  30


fundamental right is at issue, not every statute that affects

that right must be supported by compelling State interest).

     Under an equal protection analysis, only a statute that

"significantly interfere[s] with" the fundamental right at issue

burdens that right and justifies application of strict scrutiny.

Zablocki v. Redhail, 434 U.S. 374, 386 (1978).30     Even if we were

to conclude that circumstances exist where the Constitution

protects a fundamental right to education, we do not think that

the right could be characterized in such a manner that, on these

alleged facts, the charter school cap statute interferes with it

significantly.

     The Legislature first created charter schools as

laboratories only twenty-five years ago to accomplish purposes

such as "simulat[ing] the development of innovative programs

within public education" and "provid[ing] models for replication

in other public schools."   G. L. c. 71, § 89 (b).    Although the

charter school statute is simultaneously intended to provide




     30In Zablocki v. Redhail, 434 U.S. 374, 387-388 & n.12
(1978), the Court considered "[t]he directness and
substantiality of the interference" with a fundamental right in
determining whether a statute significantly interfered with that
right; however, under the Massachusetts Constitution, "it is
unimportant whether the burden imposed is direct or indirect,"
because only the substantiality of the interference is relevant.
Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 652 (1981).
                                                                   31


parents and students with greater options in selecting schools,31

and to encourage and even pressure traditional public schools to

innovate and improve,32 the plaintiffs have no constitutional

right to attend charter schools, and the charter school cap does

not interfere with the students' ability to attend traditional

public schools.    Where the charter school cap statute "neither

burdens a fundamental right nor targets a suspect class," it is

subject to rational basis review.     Murphy, 429 Mass. at 739-740;

Lee, 395 Mass. at 532.

     Under rational basis review, a law "will be upheld as long

as it is rationally related to the furtherance of a legitimate

state interest."    English v. New England Med. Ctr., Inc., 405

Mass. 423, 428 (1989), quoting Dickerson v. Attorney Gen., 396

Mass. 740, 743 (1986).      At the same time, under the

Massachusetts Constitution, "equal protection analysis requires

the court to look carefully at the purpose to be served by the

statute in question and at the degree of harm to the affected

class."   English, supra.




     31See G. L. c. 71, § 89 (b) (including express purpose "to
provide parents and students with greater options in selecting
schools within and outside their school districts").

     32See, e.g., G. L. c. 71, § 89 (i) (providing for higher
net school spending cap in school districts that board
determines among lowest ten per cent Statewide).
                                                                  32


    "[C]haracterizing the tests to be applied to determine the

constitutional validity of legislation as '[rational basis]' and

'strict scrutiny' is shorthand for referring to the opposite

ends of a continuum of constitutional vulnerability determined

at every point by the competing values involved."   Id. at 428-

429, quoting Marcoux v. Attorney Gen., 375 Mass. 63, 65 n.4

(1978).   This method of analysis highlights that the "rational

basis test 'includes a requirement that an impartial lawmaker

could logically believe that the classification would serve a

legitimate public purpose that transcends the harm to the

members of the disadvantaged class."    English, supra at 429,

quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,

452 (1985) (Stevens, J., concurring).   That standard is met

here.

    Although the charter school cap cannot be said to burden

any potential fundamental right, based on the facts alleged in

the plaintiffs' complaint, the charter school cap nevertheless

may impose a serious degree of harm on the plaintiffs and others

in the plaintiffs' position given the nature of the educational

interest at stake.   The plaintiffs' educational interest is

undeniably greater than an interest in operating a self-service

gasoline station, see Shell Oil Co. v. Revere, 383 Mass. 682,

683 (1981); an interest in selling alcoholic beverages on

Sundays, see Chebacco Liquor Mart, Inc. v. Alcoholic Beverages
                                                                   33


Control Comm'n, 429 Mass. 721, 721-722 (1999); a math teacher's

interest in not taking an assessment test prior to license

renewal, see Massachusetts Fed'n of Teachers, AFT, AFL-CIO, 436

Mass. at 777; or an interest in possessing marijuana, see

Commonwealth v. Leis, 355 Mass. 189, 195 (1969).   See also

Hancock, 443 Mass. at 485-486 (Ireland, J., dissenting), quoting

Brown v. Board of Educ. of Topeka, 347 U.S. 483, 493 (1954) ("it

is doubtful that any child may reasonably be expected to succeed

in life if he is denied the opportunity of an education").

However, the purposes of the charter school cap reflect a

legislative attempt to balance the plaintiffs' strong

educational interest with other interests that are just as

strong.   As a result, we conclude that no plausible set of facts

exist to overcome the statute's presumption of rationality.

    The charter school cap reflects the education interests of

students in the Commonwealth who do not attend charter schools.

As the Superior Court judge noted in this case, funding for

charter schools necessarily affects the funding for traditional

public schools.   The cap is an effort to allocate education

funding among all the Commonwealth's students attending these

two types of publicly funded schools.   Because of the statutory

funding mechanism that mandates payment of charter school

tuition from resources that would otherwise go to traditional

public schools, the expansion of charter schools has detrimental
                                                                    34


effects on traditional public schools and the students who rely

on those schools and their services.   See G. L. c. 71, § 89.

The process of balancing these competing values in education

"calls for . . . legislative judgments as to the desirability,

necessity, or lack thereof of" charter schools.    Zayre Corp. v.

Attorney Gen., 372 Mass. 423, 437 (1977).    This attempt to

allocate resources among all the Commonwealth's students

represents the rational basis for the statutory cap.

       There are other legitimate public purposes that would

provide a rational basis for the statute as well.    For example,

limits on charter schools may be based on a policy concern

regarding the departure from local democratic control over

public schools by local school committees because charter

schools are instead governed by private boards of trustees.

Additionally, a limit on charter school growth permits education

administrators to assess, manage, and develop for replication

any innovative educational practices that develop in charter

schools for the students enrolled in traditional public schools.

It cannot be said that these goals and the charter school cap

are "so attenuated as to render the [cap] arbitrary or

irrational."   Murphy v. Commissioner of the Dep't of Indus.

Accs.   415 Mass. 218, 230 (1993), quoting Cleburne, 473 U.S. at

446.
                                                                  35


     The plaintiffs argue that the Legislature's specific

decision to set the charter school cap at eighteen per cent of

net school spending in their school district is irrational.

However, "[l]egislative line drawing . . . does not violate

equal protection principles simply because it 'is not made with

mathematical nicety or because in practice it results in some

inequality.'"   Chebacco Liquor Mart, Inc., 429 Mass. at 723,

quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970).

     Although deciding the issue whether a law is supported by a

rational basis on a motion to dismiss rather than later in

litigation may present the exception rather than the rule,33 for

the foregoing reasons, we conclude that the motion judge

properly dismissed the equal protection claim because there is

no plausible set of facts that the plaintiffs could prove to

     33Compare Shell Oil Co. v. Revere, 383 Mass. 682, 688 n.11
(1981) ("we express no views on whether the judge could have
granted summary judgment . . . [or] a motion to dismiss . . .
rather than have a protracted hearing" on constitutional
challenge that legislation was without rational basis [citations
omitted]), with Marcoux v. Attorney Gen., 375 Mass. 63, 63-64,
71-72 (1978) (statute deemed constitutional on motion to
dismiss). See Polk Co. v. Glover, 305 U.S. 5, 6, 9-10 (1938)
(per curiam) (motion to dismiss inappropriate way to resolve
claim challenging constitutionality of State statute regulating
labels of canned citrus fruit or juice). But see Wroblewski v.
Washburn, 965 F.2d 452, 459-460 (7th Cir. 1992) (noting that
"[a] perplexing situation is presented when the rational basis
standard meets the standard applied for dismissal under Fed. R.
Civ. P. 12[b][6]" and "[t]o survive a motion to dismiss for
failure to state a claim, a plaintiff must allege facts
sufficient to overcome the presumption of rationality that
applies to government classifications").
                                                                  36


support a conclusion that the charter school cap does not have a

rational basis.   See Iannacchino, 451 Mass. at 636 ("What is

required at the pleading stage are factual allegations plausibly

suggesting [not merely consistent with] an entitlement to

relief" [quotations and citation omitted]).

     Additionally, the Constitution demands respect for the

products of the democratic process.   See Commonwealth v. Henry's

Drywall Co., 366 Mass. 539, 544 (1974) ("It is not our function

to consider the expediency of an enactment or the wisdom of its

provisions").   As outlined supra, charter school funding and

caps have been subject to frequent and intense scrutiny by the

Legislature and the public at large,34 see note 17, supra, with

advocates advancing arguments on behalf of legitimate student

interests on both sides.   Where a statute does not use a suspect

classification or burden a fundamental right, is supported by a

rational basis, and does not otherwise violate the Constitution,

advocates may not turn to the courts merely because they are

unsatisfied with the results of the political process.   See

Zayre Corp., 372 Mass. at 433 ("principle of judicial restraint

includes recognition of the inability and undesirability of the


     34As discussed supra, a majority of voters, including those
in the plaintiffs' own school district, recently rejected a
ballot measure that would have provided similar relief. See
note 17, supra, and accompanying text; Election Statistics 2016,
supra at 529, 534.
                                                                  37


judiciary substituting its notions of correct policy for that of

a popularly elected Legislature"); Commonwealth v. Perry, 155

Mass. 117, 123-125 (1891) (Holmes, J., dissenting) (emphasizing

importance of judicial restraint when evaluating popular public

policy).   See also Lochner v. New York, 198 U.S. 45, 74-78

(1905) (Holmes, J., dissenting) (stressing restraint from

judicial adaptation of policies "which a large part of the

country does not entertain").

    Conclusion.    For the reasons stated above, we conclude that

the plaintiffs failed to state a claim that G. L. c. 71, § 89

(i), violates the education clause or equal protection rights

embodied in the Massachusetts Constitution.   The judgment of the

Superior Court is affirmed.

                                   So ordered.
