Defendants' Supplemental Post-Trial Brief

    ag 

' DOCKET NO. CV 89-0360977S 

' MILO SHEFF, ET AL. : SUPERIOR COURT 

: JUDICIAL DISTRICT OF 
V. : HARTFORD/NEW BRITAIN 

: AT HARTFORD 

WILLIAM A. O'NEILL, ET AL. : JANUARY 28, 1994 

DEFENDANTS’ SUPPLEMENTAL POST-TRIAL BRIEF 

The court has asked the parties to submit additional memoranda on the question of 

whether the present controversy is justiciable. It is, and has been throughout this litjgation, 

the position of the defendants that this case is not justiciable because the nature of the 

state's education system is within the exclusive prerogative of the legislature and not the 

court, and that the defendants have in no way violated the constitution. This brief will 

further articulate the legal and factual basis for that conclusion. 

~ In Part I below the defendants put the question of justiciability in the context of the 

other related issues before the court. Now that the trial has been concluded, it is clear the 

plaintiffs have failed to establish that the defendants have violated the constitution and that 

judicial intervention is therefore unwarranted on the merits and on the grounds of 

non-justiciability. In Part II the defendants apply the Baker v. Carr, 369 U.S. 186 (1962), 

criteria for deciding justiciability to the facts and circumstances of this case as they were 

presented at trial. That analysis reveals the clear non-justiciability of this case. In Part III, 

 



  

the defendants focus on the specific conflicts between P.A. 93-263 and what the court is 

    

being asked to do in this case. This conflict underscores that the issues presented here are 

properly and exclusively within the province of the legislature, and the case is therefore not 

justiciable. 

Accordingly, judgment for the defendants should be entered on the alternative 

grounds that the case is not justiciable and that the defendants have not violated the 

constitution. 

L THE DEFENDANTS ARE ENTITLED TO JUDGMENT BECAUSE THIS "ASE 
DOES NOT PRESENT A JUSTICIABLE CONTROVERSY AND BECAUSE NO 
VIOLATION OF THE CONSTITUTION HAS BEEN SHOWN. 

Justiciability is one of several legal issues which the defendants have raised during 

the course of this action. The defendants have also urged the court to rule in their favor: 

(1) because there has been no state action which justifies the judicial intervention sought by 

the plaintiffs, Defendants’ Post-Trial Brief, Part IIL A., pp. 18-46; (2) because the plaintiffs 

still have not shown that there are specific requirements or standards, in law or in fact, 

against which the sufficiency of the General Assembly's response to social, demographic 

and economic conditions and the conduct of the defendants can be measured, Defendants’ 

Post-Trial Brief, Part IIL.B., pp. 46-70; (3) because the General Assembly has continuously 

been taking legitimate steps to address the particular conditions and problems described to 

the court, the most recent of which is the passage of P.A. 93-263, Defendants’ Post-Trial 

Brief, Part II1.C., pp. 70-120; and (4) because it is evident that only the General Assembly, 

and not the court, has the power and the ability to solve the root demographic, social, and 

 



  
      

"economic conditions which are responsible for the problems described to the court, 

; Defendants’ Post-Trial Brief Part IIL.D. and E., pp. 120-157. 

When the questions presented by the defendants’ arguments, including the question 

d of justiciability, are posed alongside the plaintiffs’ unprecedented legal theory, a common 

! thread appears. This thread is but a single question, one that is highlighted by the court's 

| own questioning of its jurisdiction under principles of justiciability. That is: "When can a 

f court, under our state constitution, substitute its judgment for that of the General Assembly 

on matters relating to education?” The answer to dis question is that, since, in this case, 

the General Assembly has not exceeded its authority or exercised its authority in a bay that | 

violates the constitution, the court cannot substitute its judgment for the judgment of the 

General Assembly. 

In this case, the plaintiffs do not claim that the defendants or the General Assembly 

exceeded their constitutional authority or that they exercised their authority in a way that 

violates the constitution. 1/ Thus this case is fundamentally different from Horton v. 

Meskill, 172 Conn. 615 (1977). It is the “sufficiency” and wisdom of the General 

Assembly's lawmaking which the plaintiffs call into question. In order to judge the 

sufficiency of the General Assembly's work the court must first make its own judgment as 

  

1/ As discussed in Defendants’ Post-Trial Brief, Part III. A. §§1,2, pp. 19-37, the 
plaintiffs have not presented evidence that the defendants or the General Assembly 
violated the plaintiffs’ rights to equal protection. Their claim that the General | 
Assembly has not taken sufficient steps to address conditions in the Hartford area | 
which are not of the state's making is, at best, a claim under Article VIII, §1 since 
Article VIII, §1 is the only theoretical source of the kind of affirmative obligation 
the plaintiffs are asking the court to read into the constitution. 

| 

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to what would be a “sufficient” legislative response. In doing so, the court would be 

substituting its judgment for the judgment of the General Assembly in a way that is 

unprecedented and inappropriate. 

The court cannot substitute its judgment for the judgment of the General Assembly 

without violating basic principles of separation of powers and Article VIII, Section 1. 

Article VIII, Section 1 clearly provides that [t]he General Assembly shall implement this 

principle [that ‘[t]here shall always be free public elementary and secondary schools in the 

state’] by appropriate legislation.” By substituting its judgment as to what is “appropriate” 

to provide free public elementary and secondary education in the Hartford area for ‘the 

decisions which have been made by the General Assembly, the court would be doing 

precisely what Supreme Court in Pellegrino v. O'Neill, 193 Conn. 670, 682 (1984) said the 

courts may not do. 

It is well established that a court cannot mandate performance 
of a constitutional duty by a legislature, particularly where that 
duty involves the exercise of discretion necessary to the 
enactment of legislation. ... [Furthermore] it is not given to the 
judiciary to compel action on the part of a coordinate branch 
of government. 

(Emphasis added). 

In Pellegrino the Court held that the judiciary could not, in order to implement the 

constitutional right to justice without delay, direct the legislature to appoint additional 

judges. 

In its early decisions on the defendants’ motion to strike and the defendants’ motion 

for summary judgment this court recognized that the questions which the defendants were 

 



  

  

    

raising in those motions, including the question of justiciability, were being presented to the 

ne 

| court "in the abstract’ without a full hearing on the plaintiffs’ claims”. Memorandum of 

| Decision on the Defendants’ Motion to Strike, pp. 10-11 (5/18/90). The court noted that 

: at least two members of the Pellegrino court (the dissenters) cautioned against judging the 

scope of the court's authority without affording the plaintiffs a full hearing during which 

| the scope of the alleged violation of the constitution could properly be defined. Id. 

The court has now heard the evidence in this case and properly revisits the full 

range of questions raised by the defendants concerning the power of the court to resolve 

this matter.’ It is now clear that the plaintiffs have failed to prove that judicial 

intervention into the operation of the schools in twenty-two school districts in the Hartford 

area is justified or authorized. Whether this failure of proof is characterized as a failure to 

  

~The court is not barred by the “law of the case” doctrine from revisiting the question 
of justiciability. “New pleadings initiated to raise again a question of law which has 
been already presented on the record and determined adversely to the pleader are 
not to be favored. But a determination so made is not necessarily to be treated as 
an infallible guide to the court when dealing with all matters subsequently arising in 
the cause.” Wiggin v. Federal Stock and Grain Co., 77 Conn. 507, 516 (1905). 
Moreover, “although a judge should not lightly depart from a prior ruling on the 
motion before the same or a different judge, the prior ruling is not binding. ‘From 
the vantage point of an appellate court it would hardly be sensible to reverse a 
correct ruling by a second judge on the simplistic ground that it departed from the 
law of the case established by an earlier ruling.” Barnes v. Schlein, 192 Conn. 732, 
734 (1984). This is particularly true in conjunction with a claim of lack of subject 
matter jurisdiction, which may be raised at any time by the parties or by the court on | 
its own motion. Doe v. Heintz, 204 Conn. 17, 35 (1987). "The obligation of [the trial | 
judge] to revisit a claim of lack of jurisdiction made in the defendants’ answer to the | 
plaintiffs’ complaint tempers the application of the law of the case.” Lewis v. 
Gaming Policy Bd., 224 Conn. 693, 699 (1993).  



    

! present a justiciable controversy or a failure to establish a violation of the constitution, or 

| both, the result is the same.>/ Judgment should be rendered for the defendants. 

IL UNDER THE BAKER V. CARR CRITERIA THIS CASE IS NOT JUSTICIABLE. 

The court has noted that our State Supreme Court has applied the criteria for 

determining when a controversy is justiciable found in Baker v. Carr, 369 U.S. 186, 217 

(1962), when deciding whether a case is justiciable under state law. Pellegrino v. O'Neill, 
  

193 Conn. at 680-681. Justice Brennan's painstaking review of the federal precedent in 

regard to "justiciability” or the “political question” Qicirig in Baker v. Carr led to the 

delineation of several key factors to be considered i deciding whether a particular base 

presents a controversy within the power of the court to resolve, Le. a justiciable 

controversy. 

Prominent on the surface of any case held to involve a political 
question is found a textually demonstrable constitutional 
commitment of the issue to a coordinate political department; 
or lack of judicially discoverable and manageable standards for 
resolving it; or the impossibility of deciding without an initial 
policy determination of a kind clearly for nonjudicial 
discretion; or the impossibility of a court's undertaking 
independent resolution without expressing lack of the respect 
due coordinate branches of government; or an unusual need 
for unquestioning adherence to a political decision already 

  

In his dissenting opinion in Baker v, Carr, 369 U.S. 186, 330-331 (1962), Justice 
Harlan remarked that “[o]nce one cuts through the thicket of discussion devoted to 
jurisdiction’, ‘standing’, “justiciability’, and political question’, there emerges a 
straightforward issue which,...,is determinative of this case. Does the complaint 
describe a violation of a federal constitutional right...?” It seems appropriate to “cut 
through the thicket” in the present case and ask whether the plaintiffs’ evidence 
shows that the defendants have violated the state constitution. The defendants 
maintain that, even if this case presented a justiciable controversy, the evidence 
does not show that the defendants violated the state constitution. 

be  



  

  

      

made; or the potentiality of embarrassment from multifarious 
pronouncements by various departments on one question. 

Baker v. Carr, 396 U.S. at 217. When these factors are considered in the context of the   

facts of this case as presented at trial, the conclusion is inescapable that the court does not 

have a justiciable controversy before it. The Court in Baker listed these factors in the 
  

disjunctive; satisfaction of any one of them demonstrates that a case is nonjusticiable. 

Here, however, all of the factors weigh against justiciability, as discussed below. 

A. There Is A "Textually Demonstrable Commitment” To The General Assembly 
Of The Power To Decide How Best To Implement The Principle That, There 
Shall Always Be Free Public Elementary And Secondary Education Ih 
Connecticut. 

In its earlier decisions this court rejected, in the abstract, the notion that the Article 

VIII, Section 1 insulates the actions of the General Assembly from judicial review. The 

court noted that under the Horton v. Meskill decisions, courts do have a role in reviewing 

what the General Assembly has done to provide an education to the children of this State. 

The courts can prevent the General Assembly from acting toward the children in this State 

in a way which creates inequality of opportunity, i.e., by violating the State's Equality of 

Rights (Art I, §1) and Equal Protection (Art. I, §20) clauses. 

At the time the court ruled on the defendants’ motion to strike and the defendants’ 

motion for summary judgment, it was enough for the court to acknowledge the possibility 

that the State may have acted in ways falling within the court's power of review to de ny the 

defendants’ motions. 

 



  

id 
[|] 

  

  

  

  

Subsequent to the court's decisions on the defendants’ pre-trial dispositive motions, 

the plaintiffs withdrew the allegations in their original complaint that the demographic 

conditions in the Hartford area were caused by State housing policies. Furthermore, the 

evidence which the plaintiffs presented at trial does not support a finding that the State 

engaged in any wrongdoing. For example, the plaintiffs did not present evidence that the 

State caused the racial, ethnic and socioeconomic composition of the schools in the 

Hartford area; the plaintiffs were unable to show that the State distributes its resources to 

the Hartford area in a way that creates inequality (indeed the evidence showed that the 

State provides significantly more resources to the Hartford schools in recognition of the 

needs of that district); and the plaintiffs failed to show that the defendants and the 

General Assembly have ignored obvious solutions to the problems of racial, ethnic and 

socioeconomic concentrations and underachievement. These circumstances put this case in, 

a much different posture than when the court ruled on the defendants’ early dispositive 

motions. 

The court is now in the position to address the more specific question of whether, in 

the context of this case, the second sentence of Article VIII, Section 1 puts it beyond the 

power of the court to determine the “sufficiency” of the General Assembly's response to the 

“conditions” brought to the court's attention at trial given the clear evidence that the State 

is not the cause of those conditions. 

The plaintiffs urge the court to find that it has the power to determine whether the 

General Assembly has addressed a problem “sufficiently”, regardless of how that problem 

 



        

| may have arisen. The plaintiffs’ theory, in which the court, not the General Assembly, 

} determines what is a “sufficient” or an “appropriate” response to the problems affecting 

| schools in the Hartford area and schools throughout the State, would render the language 

I of Article VIII, Section 1, which reserves to the legislature the power to implement by 

| appropriate legislation the guarantee of a free education, meaningless. The plaintiffs ask 

} this court to rewrite the plain language of Article VIII, Section 1 to transfer to the judiciary 

a constitutional power that is textually committed to the General Assembly. 

In terms of justiciability, the defendants do not claim that the court can never review 

what the General Assembly has done in regard to education. The defendants ackndwledge 

the court's authority to rule on a challenge to the constitutionality of specific action taken 

by the General Assembly. But where, as here, (1) the General Assembly has created a 

system of free public schools for all children in the Hartford area, (2) the plaintiffs do not 

challenge the constitutionality of anything the General Assembly has done, and (3) the 

plaintiffs rest their case solely on the claim that the General Assembly has not done enough 

under Article VIII §1, enough, in essence, to solve the myriad problems associated with 

urban poverty, there is no justiciable controversy. 

B. There Are No "Judicially Discoverable And Manageable Standards” For 
Resolving The Question Of The Sufficiency Of The General Assembly's 
Response To The Conditions Described To The Court. 

The plaintiffs maintain that P.A. 93-263, like every other effort by the legislature 

and the executive to promote diversity in our schools and attack underachievement in 

school districts with large concentrations of poor children, is an “insufficient” response to 

 



  

  

    

conditions in the Hartford area. To accept the plaintiffs’ claims that the “insufficiency” of 

the State's response to various conditions amounts to a violation of the constitution, the 

court must first find a constitutionally discernible standard of “sufficiency”. As the 

defendants have pointed out in their Post Trial Brief, Part III B., pp. 46-70, no such 

standards can be found in the constitution itself and no such standards can be found even in 

the field of education. 

While the plaintiffs’ experts and other witnesses were quick to criticize the State's 

response as “insufficient”, none of their witnesses offered the court judicially manageable 

standards which would make it possible for the court to factually delineate the begihning 

and the end of the kind of "constitutional violation” the plaintiffs are urging the court to 

define. Without being arbitrary the court cannot define a constitutional violation based 

upon the racial, ethnic, or socioeconomic characteristics of a student body, the achievement | 

levels of students, or the particular ways in which resources, equal in the aggregate, are 

allocated to particular activities by those making the allocations at the local level. 

A great deal of discretion must be exercised in making these kinds of decisions. The | 

constitution does not invest the courts with this kind of discretion. As Justice Douglas | 

pointed out in his concurring opinion in Baker v. Carr, 369 U.S. at 245: "There are, of 

course, some questions beyond judicial competence. Where the performance of a ‘duty’ is | 

left to the discretion and good judgment of an executive officer, the judiciary will not 

compel the exercise of his discretion one way or the other [citation omitted], for to do so 

would be to take over the office.” The same would apply to any effort by the court to 

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define standards by which the “principle” that "[t]here shall always be free public 

elementary and secondary education in the State” must be carried out. Article VIII, Section 

| 1. To set such standards would be to take over the role specifically assigned to the General 

| Assembly by the second sentence of Article VIII, Section 1. Thus, the present controversy 

| is not justiciable. 

C. The Court Cannot Decide This Case Without Making "An Initial Policy 
Determination Of A Kind Clearly For Nonjudicial Discretion.” 

The plaintiffs could not and did not present the court with evidence of a specific 

course of conduct which would be “sufficient” under the constitution. It is, therefor, 

impossible for the court to clearly identify the role it is being asked to play in the operation | 

of the schools in the Hartford area and throughout the State. However, the eight 

parameters of the plan which the plaintiffs are asking the court, through planning groups 

supervised by the court, to create and to order implemented (Plaintiffs’ Post-Trial Brief, 

p.112), present a reasonably clear picture of some of the policy determinations the 

plaintiffs expect the court to make. It is clear that these are nonjudicial policy decisions 

that are not properly left to a court. 

To resolve this case, as plaintiffs seek, the court would be forced to make 

non-judicial policy decisions regarding (1) the basic structure of local government, (2) the 

general allocation of State resources, and (3) educational policy issues on which reasonable 

minds can and do disagree.  



  

    

The Basic Structure of Local Government. 

First on the plaintiffs’ list of parameters of the court ordered plan they envisage, is 

| the requirement that the plan be “interdistrict in its design.” Plaintiffs’ Post-Trial Brief, 

! p.112. In other words, the system by which municipalities and school districts in 

i Connecticut are coterminous and interdependent and in which students are assigned to the 

I school district serving the town in which they reside would be abandoned or, at least, 

compromised by order of the court. It is important to emphasize that the court would not 

be undoing a system created for purposes of invidious discrimination if it accepted the 

plaintiffs’ invitation to impose some sort of ‘interdistrict plan” on the region.*/ Here the 

court is being asked to make a fundamental policy decision whether the advantages of 

some form of regionalization of schools outweigh the advantages of the current system by 

which school districts and municipalities are politically, fiscally, and geographically bound 

together. 

This is not a decision for the court to make, but it is a decision from which the court 

cannot escape if the court accepts the plaintiffs’ invitation to impose the kind of plan the 

plaintiffs are looking for on the Hartford area. The first time a child from one town is 

assigned or even permitted to attend school in another town, when the school in that other 

  

4/ Of course, a court might have the power to alter the manner in which schools are 
operated if the current structure was, in fact, the product of de jure segregation. But 
even under those circumstances the court would not have the power to impose its 
own notions of what might be a good way to run the schools on the people. The 
court would only have the power to undo the particular discriminatory acts and to 
correct the vestiges of those acts. Freeman v. Pitts, U.S. _, 112 S.Ct. 1430 (1992). 

12.  



  

3 town is supported by the taxpayers of that town and the board of education of that town is 

| selected by and from the electorate of that town, the basic structure of our system of 

~ finance and governance of public schools will no longer fit and will require significant 

alteration. Whether, when, and to what extent the political structure of local government 

should be changed as a means of pursuing social goals or educational concerns has never 

| been and should never be a matter for the courts to decide absent evidence of 

  

  

  

discrimination or of other unlawful action by the State. It may be foremost among 

non-judicial controversies. 

2. Allocation of Resources. 

Sovereign immunity has long been a principle which separates the power of the 

legislative and judicial branches of state government. The courts cannot impose fiscal 

burdens on the State by judicial decree unless the General Assembly has clearly and 

unequivocally waived sovereign immunity. Doe v. Heintz, 204 Conn. 17, 32 (1987); 
  

Fetterman v. University of Connecticut, 192 Conn. 539, 550 (1984). The allocation of the 

State's resources, like the decision to waive or not to waive sovereign immunity, is and 

always has been, a matter for the General Assembly. As long as the means chosen by the 
  

General Assembly to allocate resources do not violate the constitution, the court plays no 

role in decisions as to when and to what extent the resources of the State should be 

allocated. This is evident from the Supreme Court's decision in Horton v. Meskill, 195 

Conn. 24, 40-41 (1985) (Horton IIT) wherein the Court rejected the 50/50 state /local split 

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which the plaintiffs in that case were urging the court to require as a matter of 

constitutional law. 

Decisions as to how resources should be allocated to meet the problems and 

conditions in the Hartford area, and the many other problems and conditions which are of 

concern to State government, involve policy considerations that are not in the province of 

the courts. For example, in the present case there was a great deal of evidence that the 

conditions about which the plaintiffs are complaining are rooted in complex social, 

economic and demographic problems far beyond what goes on in our schools. Defendants’ 

Post-Trial Brief, Part IIL.D., pp. 120-148. That the problems of poverty, inadequate health 

care, limited housing opportunities, environmental hazards, unemployment, crime, drugs 

and other social problems are having an impact on our children and that these problems 

deserve the State's attention are not in dispute. The question that remains is who should 

decide when and how much of the State's resources should be devoted to attacking these 

problems at their root as opposed to addressing the manifestation of these problems in our 

schools. 

In its simplest form, the plaintiffs’ case asks the court to make extraordinary policy 

decisions about the hllocation of State resources in order to address broad social, 

demographic, and economic problems that can affect educational performance. The court 

cannot, however, in the context of this case, order the State to create and fund programs to 

address poverty, inadequate health care, limited housing opportunities, environmental 

hazards, unemployment, crime and other social problems. Only the General Assembly can 

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create the kinds of programs that attack the the real problems before the court. Deciding 

. whether these problems should be addressed at their root or as they manifest themselves in 

our schools is a crucial decision, a decision that cannot be made by the courts. Moreover, it 

is a decision which the General Assembly would not be able to make effectively if the court 

takes it upon itself to determine the allocation of resources to the manifestations of these 

problems in the classroom. Not only would it be improper for the court to make basic 

policy decisions about the allocation of state resources, it would be unwise for the court to 

attempt to make these kinds of decisions because it simply does not have the broad power 

and perspective needed to do the job properly. ; 

Only the General Assembly has the perspective and power to determine whether 

and to what extent more should be done in the schools or outside the schools to meet the 

problems and concerns that face our children and our State as a whole. 

3. Educational Policy Decisions. 

The plan which the plaintiffs envisage the court ordering in this case would put the 

court in control of virtually every aspect of the operation of schools in the Hartford area. 

As a result, the court would be forced to resolve a host of questions of educational policy 

on which reasonable educators and experts might disagree. By deciding these matters the 

court would be taking the authority to make these decisions away from the elected 

representatives of the people, State and local leaders, parents, and the community as a 

whole. 

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Under the plaintiffs’ plan the court would decide whether and when voluntary or 

mandatory measures should be implemented to promote diversity in our schools. In other 

words, the court, rather than the General Assembly, will resolve the widely debated 

question of whether voluntary or mandatory measures work better and the court's decision 

will be forever engrafted onto the constitution. 

Under the plaintiffs’ plan, the court would also be forced to invent criteria for 

racial, ethnic, and socioeconomic balance in our schools, an issue which is unsettled and 

fiercely debated in educational circles and in the body politic throughout the country. 

: 
The broad power over the school districts in the Hartford area which the plaintiffs 

are asking the court to exercise would force the court to make a host of other nonjudicial 

policy decisions as well, including decisions about when and where bilingual education 

should be offered, what the curriculum in the schools should be, how faculty and staff 

should be assigned, when and to what extent compensatory education should be provided, 

when and to what extent pre-school programs, school breakfast and lunch programs, health 

service programs, parent training programs, and other services should be provided by the 

schools, and many other policy decisions. Each of these decisions involves consideration of 

educational philosophy, needs assessment, resource management, and a multitude of 

practical considerations that are not part of traditional judicial decision making. By asking 

the court to make these kinds of decisions and by asking the court to direct the General 

Assembly and executive branch officials to carry out the court's decisions, the plaintiffs are 

asking the court to take away the discretion vested in these coordinate branches of 

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government by the constitution. Under Baker v. Carr the court cannot and should not 
  

make these kinds of decisions. 

D. The Court Cannot Undertake "An Independent Resolution” Of This Case 
"Without Expressing A Lack Of Respect Due Coordinate Branches Of 
Government.” 

The need for a variety of initial policy determinations by a body with a broad 

perspective on the issues and concerns facing the State as a whole is obvious. The General 

Assembly has made these decisions. Yet the plaintitis do not point to any of the means 

chosen by the General Assembly to provide an education to the children of this stath and 

claim that those means violate the constitution. Since the plaintiffs have not suggested that 

the defendants or the General Assembly have acted in a way which violates the 

constitution, and since the court is bound by the presumption that the actions of the 

General Assembly are constitutional; Horton v. Meskill, 172 Conn. 615, 650 (1977) 
  

(Horton I); the court must accept what the General Assembly has done to date to provide 

free public elementary and secondary education as a valid exercise of its authority.>/ 

When the actions of the General Assembly are taken as legitimate (albeit “insufficient” in 

the plaintiffs’ eyes), the question of whether the court can step in and resolve the problems 

  

5/ "If a statutory scheme is clearly comprehensible and can be applied, we will apply 1t 
although it may mandate a result which appears illogical. If the enactment is 
constitutional, its wisdom is not for the court to determine. hers v. Allyn, 142 
Conn. 697, 705 118 A.2d 318 (1955).” Brunswick Corporation v. Liquor Contro] 
Commission, 184 Conn. 75, 81 (1981). 

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; before the court without expressing a lack of respect for the coordinate branches of 

| government comes into clear focus. The court clearly cannot do so. 

The court cannot choose and impose upon the people of this State means and 

| measures for providing a free public elementary and secondary education to the children of 

; this State that differ from the legitimate means and measures chosen by the General 

Assembly without expressing the highest disrespect and disregard for the role of the 

| General Assembly. 

The court cannot direct an interdistrict remedy when such a remedy is at ods with 

the legitimate decision by the General Assembly to make school districts contiguous with 

and dependent on municipalities and with the General Assembly's legitimate decision to 

assign each child to a school district on the neutral basis of where the child lives. The 

wisdom of these decisions is not for the court to measure once it is clear, as it is here, that 

these decisions are legitimate under the constitution. 

The court cannot order measures for promoting diversity in our schools which are at 

odds with the legitimate approaches to this objective chosen by the General Assembly. 

Without expressing complete disrespect for the role of the General Assembly, the court 

cannot direct measures that are at odds with the General Assembly's decision in 1969 to 

address racial balance on an intradistrict basis, Conn. Gen. Stat. §10-226a et seq.; that are 

at odds with the decision by the General Assembly in 1987 to promote voluntary 

interdistrict initiatives to bring children of different backgrounds together through the 

Interdistrict Cooperative Grant Program, Def. Ex. 3.7; and, that are at odds with the  



  

  

    

| decision by the General Assembly in 1993 to take the next step and require all 

| municipalities and school districts in the State to engage in a regional planning process 

| designed to foster quality and diversity in our schools and in our communities as a whole, 

P.A. 93-263. The court cannot order measures that are greater than, less than, or in some 

} way different from these legitimate legislative initiatives without usurping the function of 

f the General Assembly -- the highest form of disrespect for that coordinate branch of our 

|| government. 

The open ended invitation the plaintiffs have made to the court to set the goals, 

design the standards, and issue timetables for a planning process that will result in Apia 

for the Hartford area that will then be ordered, monitored, and enforced by the court, 

exposes the magnitude of the threat the plaintiffs’ case holds for direct conflict between 

any orders this court might make and the legitimate measures which have already been 

taken by the General Assembly. The U.S. Supreme Court pondered the scope of the 

power the court would have to exercise if it were to assume the kind of judicial power 

postulated by the plaintiffs in this case when that Court rejected a similar invitation under 

the federal constitution. 

[I]t is obvious from the scope of the interdistrict remedy itself 
that absent a complete restructuring of the laws of Michigan 
relating to school districts the District Court will become first, 
a de facto "legislative authority’ to resolve these complex 
questions. ["What would be the status and authority of the 
present popu orgy elected school boards? Would the children 
of Detroit be within the jurisdiction and operating control of a 
school board elected by the parents and residents of other 
districts? What board or boards would levy taxes for school 
operations in these 54 districts constituting the consolidated 
metropolitan area? What provisions could be made for 

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- assuring substantial equality in tax levies among the 54 
districts, if these were deemed requisite? What provisions 
would be made for financing? Would the validity of long-term 
bonds be jeopardized unless approved by all of the component 
districts as well as the State? What body would determine that 
portion of the curricula now left to the discretion of local 
school boards? Who would establish attendance zones, 
purchase school equipment, locate and construct new schools, 
and indeed attend to all the myriad day-to-day decisions that 
are necessary to school operations affecting potentially three 
quarter of a million pupils?], and then the school 
superintendent for the entire area. This is a task which few, if 
any, judges are qualified to perform and one which would 
deprive the people of control of schools through their elected 
representatives. i 

Milliken v. Bradley, 418 U.S. 717, 743-744 (1974). Judicial exercise of the kind of pgwer 

the plaintiffs are asking the court to exercise in this case would directly conflict with the 

power the General Assembly has already exercised. 

The legitimate exercise of legislative power in the area of education must be 

honored by the court. The court has no justiciable controversy before it when the 

plaintiffs’ only claim is that the legislature has not gone far enough to meet certain 

concerns. 

E. There Is, In This Case, "An Unusual Need For Unquestioning Adherence To 
Political Decisions Already Made.” 

This case does not present the court with the kind of controversy in which the 

objects sought by the parties are diametrically opposed. The leaders of this State have long 

and vigorously sought to promote quality and diversity in our schools. As a result our State | 

stands out as a leader in this regard. Defendants’ Post-Trial Brief, Part II., pp. 7-18. What 

-20- 

 



      

the State has accomplished to date is the product of the will of the people. P.A. 93-263 is 

the most recent expression of that will. 

P.A. 93-263 is grounded on several premises. Among these are: (1) that the people 

of this State through their leaders seek quality and diversity in our schools, (2) that 

voluntary measures will prove the most reasonable and effective means to advance these 

goals, (3) that the support of the people is essential to effective pursuit of these goals, and 

(4) that there is no one right way to achieve quality and diversity. Accordingly, P.A. 93-263 

(1) provides for a local and regional planning process that includes municipal and local 

school officials, (2) encourages voluntary measures, 3) requires substantial public hut 

and (4) leaves it to the regional planning group to decide upon the approach which best 

suits the needs and concerns of the particular region. The court cannot and should not 

reject these premises. 

Although the results of P.A. 93-263 will not be known for some time, what the 

legislature has done in P.A. 93-263 is consistent with the concerns put before the court by 

the plaintiffs in this case. For the court now to impose whatever notions the court might 

have about how the problems in the Hartford area should be addressed would be an 

unwarranted intrusion into the process set up by the General Assembly. See Part III below. 

The legislature has spoken sympathetically to the concerns presented to the court about 

quality, equality, and diversity in our schools on many occasions and in many different 

ways. P.A. 93-263 is the most recent expression of concern. The court should not 

undertake to address problems that are already the subject of legislative action because 

+3 

 



      

legitimate and properly directed legislation represents a political decision which is entitled 

to the judiciary’s adherence. 

F. If The Court Were To Proceed To Determine This Matter There Is The 
Potential For "Embarrassment From Multifarious Pronouncements By 
Various Departments” Of State Government. 

It is evident that the court, by assuming the power to direct the means by which the 

social, demographic, economic and other problems which manifest themselves in the 

schools in the Hartford area ought to be addressed, will run head long into conflict with 

measures already taken and measures yet to be taken by the General Assembly to deal with 

these problems on a statewide basis. In Part III of this brief the present and potential 

scope of the looming conflict between the judiciary and the legislature and the looming 

conflict between the judiciary and executive departments charged with carrying out the 

legislature's directives, is described in some detail. Accordingly, it is clear that there is an 

obvious potential for conflicting pronouncements by different departments of the 

government. 

Because this case is limited to the Hartford area, it poses the additional risk of 

inconsistent rulings and policies for different regions of the state. The social, demographic 

and economic problems presented to the court in this case are statewide problems that 

must be dealt with on a statewide basis. The court cannot direct statewide solutions 

because, among other things, the state, as a whole, is not before the court. The court 

cannot direct a regional solution because that would undoubtedly conflict with legitimate 

legislative and executive department efforts to address the problems on a statewide basis. 

22. 

 



Only the General Assembly can design and direct the implementation of a statewide 

! and comprehensive attack on these complex social, demographic and economic problems, 

-- an attack which must go beyond simply meeting the problems as they present themselves 

1 in our schools. The General Assembly has taken many steps on many different fronts to 

| attack the social, demographic and economic problems that hinder our society and our 

| children. There is no basis in this case to find that the defendants have acted 

| unconstitutionally and for the court to intervene in the legislature's responsibilities. 

III. THE IMPORTANCE OF P.A. 93-263 TO THIS LITIGATION. 

While the court was hearing evidence in the present case, the General Assembly 

passed and the Governor signed "An Act Improving Educational Quality and Diversity”, 

P.A. 93-263. This Act is an ambitious effort to build upon existing legislative initiatives 

designed to promote quality and diversity in our schools and set the stage for new 

initiatives. The Act continues, and in some ways expands, existing initiatives, including the 

Interdistrict Cooperative Grant Program, P.A. 93-263, §6 (see Def. Ex. 3.3 through 3.7)%/ 

and the Urban and Priority School District Grant Program, P.A. 93-263, §§7, 13 (see Def. 

Ex. 7.1, pp. 154-160, and Def. Ex. 7.21, p. 160A)."/ The Act also offers new fiscal 

incentives for the creation and operation of interdistrict programs that promote quality and 

  

6/ This grant program is expanded to make it possible for districts participating in the 
program to obtain grant money to support the operation of interdistrict ventures as 
well as the planning and start up costs. 

The criteria which a district must meet in order to be eligible for this grant program 
have been changed.      



        

| diversity, including; (1) a special grant program for interdistrict initiatives which involve at 

i least one school district serving a student population that, as a whole, is not doing well on 

the CMTs, P.A. 93-263, §8; (2) the opportunity to receive 100 percent State funding for 

| capital expenditures relating to the construction of interdistrict magnet schools, P.A. 

| 93-263, §9; and (3) the opportunity to receive 100 percent State funding for the costs 

| associated with transporting children to interdistrict magnet schools or other interdistrict 

| programs, P.A. 93-263, §10. 

The portion of the Act that has received the ost public attention is found in the 

sections which divide the State into eleven regions and require a grass roots planniniz 

process designed to foster consideration of the needs of the region as a whole and 

development of regional plans which promote quality and diversity. The expectation is that 

these regional plans will be supported under existing programs designed to promote quality 

and diversity and/or under new grant programs established by the General Assembly. 

P.A. 93-263 is important to the present case for two reasons. First, it is important 

because it is yet another indication of the continuing concern which the General Assembly 

and the executive officers of this State have for the problems described in this case, as well 

as another indication of the willingness of these coordinate branches of government to take 

appropriate steps to address these problems. Second, the passage of the Act is important 

because it gives further evidence of the kind of conflict between what the court is being 

asked to do in this case and what the General Assembly has done that makes it even 

24- 

 



  
  

| Judgment that has already been exercised through the legislative process. 

  

clearer that the controversy before the court is not justiciable and that the defendants and 

the General Assembly have not violated the constitution. 

The court has asked the parties to consider the degree to which the new Act might 

conflict with what the court is being asked to do in this case. The court properly recognizes | 

that it may not disregard what the legislature has done just because the court might think 

that a different approach to the problem would be better. Consideration of how what the 

court is being asked to do would conflict with what the General Assembly has chosen to do, | 

demonstrates that the court is being asked to substitute its judgment for the legitimate 

¢ 

An examination of the precise conflicts between what the court may eventually be 

asked to do in this case and what the General Assembly has already done cannot be done 

at this time because the plaintiffs did not present the court with a specific remedial plan. 

However, it is possible to get some sense of how far into the legitimate exercise of 

legislative authority the plaintiffs are asking the court to go by considering the differences 

between the planning process the plaintiffs espouse and the planning process created by the | 

General Assembly in P.A. 93-263. The differences are fundamental and set the stage for 

even more direct conflicts. 

The plaintiffs’ planning process is in conflict with the planning process established 

pursuant to P.A. 93-263 in regard to (1) the geographic area encompassed in the planning | 

process, (2) the mechanics of the planning process, (3) the individuals and organizations 

having direct input into the formulation of the plan, (4) the authority responsible for 

a5. 

 



  

choosing the final plan, (5) the authority responsible for choosing the means by which the 

| plan is implemented, and (6) the authority responsible for monitoring implementation of 

    

| the plan. 

In P.A. 93-263, the General Assembly has set about to address quality and diversity 

issues on a statewide basis. The law does not focus on the limited area targeted by the 

plaintiffs in this case. If this court were to find for the plaintiffs, the court would have no 

authority to act beyond the area defined by this case. In effect, the court is being asked to 

act on issues relating to quality and diversity blind to the needs and concerns of other parts 

of the State. The chances that a court ordered plan, developed under such circumstances 

would be consistent with the statewide approach being directed by the General Assembly 

are so remote as to be virtually nonexistent. A coordinated effort to promote quality and 

diversity statewide is what is needed, but this kind of effort cannot be mounted when a 

portion of the State has been removed from the General Assembly's consideration by a 

court. 

This problem becomes even more acutely obvious when it is noted that the Hartford 

region as defined by the General Assembly in P.A. 93-263, §12 is not identical to the 

Hartford area as it has been donstructed by the plaintiffs. Under the General Assembly's 

configuration of the Hartford region, Bolton and Enfield are included in the region, but 

these towns are not part of the Hartford area as far as the court is concerned. P.A. 93-263, 

§12(9). Furthermore, the General Assembly chose to assign Farmington and Newington to 

what might be deemed the New Britain region, but, for the purposes of this case, the court 

Wy) 9 

 



  

  

    

is being asked to treat these towns as part of the Hartford area. P.A. 93-263, §12(10). 

Since the court has no plausible jurisdictional basis for including Bolton and Enfield in any 

| court created plan, should a plan be developed under court order without considering 

Enfield or Bolton as part of the Hartford area even though the General Assembly has 

directed these towns to be party to the legislatively directed planning process for the 

| Hartford region? Should the court include Farmington and Newington in the court 

directed planning process even though the General Assembly has decided that those towns 

should participate in the New Britain region planning process? It is clear that the court 

would have to take measures which are in direct conflict with legitimate legislative ; 

decisions, if it accepts the plaintiffs’ invitation to order a planning process for the Hartford 

area, as defined by the plaintiffs. 

In P.A. 93-263 the General Assembly created a planning process which, in the 

collective wisdom of the General Assembly, will best suit the objectives of improving 

quality and diversity. The Act creates a local advisory committee to work with each local 

board of education in the State to assess the needs of that particular community and to 

offer suggestions as to how those needs might be addressed by a regional approach that 

promotes quality and diversity. P.A. 93-263, §2(b)and(c). The Act also creates a regional 

advisory committee to advise the regional forum which, in the end, develops a plan for the 

entire region. P.A. 93-263, §§1(4), 3(b). 

The plaintiffs ask the court to construct a very different planning process for their 

configuration of the Hartford area. The process the plaintiffs ask the court to order has 

27. 

 



      

| two levels, a planning group and an oversight group. The planning group would consist of 

"educational experts, desegregation experts, demographers, school board and 

superintendent representatives, teachers, parents and selected community 

representative."S/ Plaintiffs’ Post-Trial Brief, p. 111. This planning group would present 

plan recommendations to the oversight group. The oversight group has a very specific and 

select membership. "The oversight group consists of representatives of the plaintiffs, 

defendants (Board of Education, Commissioner and Governor), and attorney 

representatives.” Plaintiffs’ Post-Trial Brief, p. 111. This select oversight group makes the 

final decision regarding the plan which will be presented to the court. Clearly the gfoup 

which chooses a plan for the Hartford area under the court supervised planning process 

sought by the plaintiffs bears no resemblance to the region forum set up by P.A. 93.263, 

§1(4), and charged with the responsibility of coming up with a plan for the Hartford area.”/ | 

Not only are there significant differences in the composition of the planning body 

that will select a plan for the region, there are also substantial differences in the individuals 

and organizations that have direct input into the planning process. The plaintiffs’ planning 

process is heavily bound with input from litigation type “experts”, the litigants themselves, 

and "attorney representatives”. School district representatives, teachers, parents and 

"selected community representatives” play only a minor role in the plaintiffs’ planning 

  

8/ Presumably the court or the litigants would choose the particular individuals who 
would be members of this group. 

9/ The regional forum is a group comprised of the chief elected officer of each 
municipality in the region, the chairman of the board of education for each school 
district in the region, two teachers and four parents. 

28. 

 



  

  

    

process. By contrast, the General Assembly has chosen the Institute for Public Service of 

the University of Connecticut, the Regional Educational Service Centers established under 

Conn. Gen. Stat. §10-66a et seq., and established regional planning agencies within the 

particular regions to provide the planning process with the needed technical and 

. professional guidance (P.A. 93-263, §81(5), 2(a), 3(a)), and the General Assembly has 

made broad public input a hallmark of that process. Input from elected officials from each 

of the municipalities in the region, representatives of each of the school districts in the 

region, parents, teachers, administrators, and representatives of business, civic 

organizations and the general public, is not only encouraged, it is required by P.A. 93-263, 

§81(4), 2(b), 2(c), 3(b). Public hearings are also an integral part of the legislatively created 

planning process. P.A. 93-263 §§2(c), 3(d). | 

Clearly, the legislature has endeavored to establish a planning process that will, 

along the way, build community confidence in and support for the plan that eventually 

evolves. The plaintiffs’ proposed planning process does not hold the same hope for 

building community support and it is in direct conflict with the legislature's process. 

Ultimately, under the plaintiffs’ planning process, the court chooses the plan for the 

area, and the court is free to ignore or override the legitimate exercise of power by the 

General Assembly and/or the regional planning groups established under P.A. 93-263. 

Even the legislature's decision that voluntary measures hold the best hope for effectively 

promoting quality and diversity (P.A. 93-263, §1(3)) can be ignored by the court according 

29. 

 



    

| to the plaintiffs, who insist that mandatory measures are an essential part of any court 

; ordered plan. Plaintiffs’ Post-Trial Brief, pp. 113-114. 

There are many decisions which must be made as to how any plan for the Hartford 

I area should be carried out. Again, the difference between how these decisions would be 

made under the plaintiffs’ court ordered plan and how these decisions would be made 

under the General Assembly's planning process is dramatic. The plaintiffs see these 

decisions as resting ultimately with the court. According to P.A. 93-263, these decisions are 

made, consistent with Connecticut's centuries’ long radition of local control over local 

education, by the affected school districts and municipalities through the regional phining 

process and then by the General Assembly in regard to any components of the plan that 

require new or additional State support. 

Aside from the problem of the direct conflict as to who makes these kinds of 

| decisions, it is also important to recognize that the court has a very narrow range of options 

to choose from when it is deciding how a plan should be implemented. The court can only 

act in respect to the parties properly before it, and the only parties properly before the 

court in this case are State executive branch officials. Significantly, the court has no 

jurisdiction to direct the action of local officials in the context of this case. Important 

questions, including questions such as how much of the cost of the plan should be allocated 

to the State and how much to the localities and how much of the plan should be carried out | 

directly by the State and how much by local officials, cannot be answered by the court 

simply because of the procedural posture of this case. The power of the General Assembly  



  

is broader and better suited to making the kinds of decisions which need to be made to 

1 effectively and efficiently carry out an “appropriate” plan for the Hartford region and the 

    

other regions created by P.A. 93-263. 

Finally, P.A. 93-263 and the plaintiffs’ court directed planning process significantly 

depart on the matter of plan monitoring. Under P.A. 93-263, §§3(a), 5(b), the 

Commissioner of Education monitors plan implementation and reports to the General 

Assembly. The General Assembly makes any decisions which need to be made about 

changes in the course or direction of the State's eiiorss to promote quality and diversity. 

The plaintiffs and their experts at trial envision indefinite judicial monitoring with, 

presumably, endless opportunities for the plaintiffs to call upon the court to choose new 

means and modify old measures to suit ever changing demographic and social conditions. 

The plaintiffs’ proposal is nothing short of a wholesale judicial takeover of decision making 

which is not judicial in nature and which is properly vested in the legislative and executive 

branches of government. 

IV. CONCLUSION 

Each of the Baker v. Carr factors for determining justiciability discussed above point 

to the conclusion that the present case is not justiciable. However, it is important to note 

that the question of justiciability is, in this case, significantly enmeshed with the question of 

whether the plaintiffs have proven that the State violated the constitution. The question of 

justiciability and the question of whether the constitution has been violated are enmeshed 

because the defendants are not claiming that every dispute relating to the legislature's 

231- 

 



  

exercise of its power under Article VIII, §1 is not justiciable. The defendants agree that 

i claims that the General Assembly has acted in a way that violates the constitution are 

  

    

| justiciable. It is the defendants’ more limited position that cases, like the present, in which 

only the “sufficiency” of what the General Assembly has legitimately done is being 

questioned, are not justiciable. The completion of trial in the present case makes it 

possible for the court to reach this narrower conclusion. 

In the end, saying that the present case is not justiciable because it only raises 

questions regarding the sufficiency of what the GEndial Assembly has legitimately done, 

and saying that the present case should be decided in favor of the defendants becaule the 

plaintiffs have not proven that the defendants or the General Assembly violated the 

constitution, are two ways of saying the same thing. At this stage of the proceedings it 

makes no practical difference whether the court concludes that it has no jurisdiction 

because the controversy before the court is not justiciable or whether the court simply finds 

that the plaintiffs have not proven that the defendants or the General Assembly violated 

the constitution. In either case, judgment must be rendered for the defendants. 

The defendants urge the court to render judgment in their favor on the alternative 

grounds that this case does not present a justiciable controversy and that the facts of this 

case, as presented at trial, do not establish that the defendants or the General Assembly 

violated the constitution. 

32. 

 



      

By: 

   

FOR THE DEFENDANTS 

RICHARD BLUMENTHAL 
ATTORNEY GENERAL 

Bernard F. McGovern, Jr. 
Assistant Attorney General 

  

J ohn R. Whelan - Juris 085112 
Assistant Attorney General 

i 110 Sherman Street i 
 Hartford,-Connecticut 06105 ; 
"Tel. 566-7173 

    Assistant At forney General 
110 Sherman Street 
Hartford, Connecticut 06105 
Tel. 566-7173 

Alfred A. Lindseth 
Sutherland, Asbill, & Brennan 
999 Peachtree Street, NE 
Atlanta, GA 30309-3996 

33. 

 



  

  

    

This is to certify that on this 28th day of January, 1994 a copy of the foregoing was 

mailed to the following counsel of record: 

John Brittain, Esq. 
University of Connecticut 
School of Law 
65 Elizabeth Street 
Hartford, CT 06105 

Philip Tegeler, Esq. 
Martha Stone, Esq. 
Connecticut Civil 
Liberties Union 
32 Grand Street 
Hartford, CT 06105 

Sandra Del Valle, Esq. 
Ruben Franco, Esq. 
Jenny Rivera, Esq. 
Puerto Rican Legal Defense 
and Education Fund 
99 Hudson Street 
14th Floor 
New York, NY 10013 

John A. Powell, Esq. 
Helen Hershkoff, Esq. 
Adam S. Cohen, Esq. 
American Civil Liberties Union 
132 West 43rd Street 
New York, NY 10036 

JRW1081AC 

CERTIFICATION 
  

34. 

Wilfred Rodriguez, Esq. 
Hispanic Advocacy Project 
Neighborhood Legal Services 
1229 Albany Avenue 
Hartford, CT 06112 

Wesley W. Horton, Esq. 
Moller, Horton & 
Fineberg, P.C. 
90:Gillett Street 
Hartford, CT 06105 

Julius L. Chambers 
Marianne Engleman Lado, Esq. 
Theodore M. Shaw 
Dennis D. Parker 
NAACP Legal Defense Fund and 
Education Fund, Inc. 
99 Hudson Street 
New York, NY 10013 

/ 

  

John KR. Whelan 
Assistant Attorney General