Sheff v. O'Neill: An Unconstitutional Violation of Fundamental Rights Paper by Michelle K. Jacobs

    Sheff v. O'Neill: 

An Unconstitutional Violation 
of Fundamental Rights 

Submitted to Professor Haar in the Seminar on 
The Role of Courts in Institutional Litigation 

And the Reification of Change 
in Satisfaction of the Written Work Requirement 

Michelle K. Jacobs 
April 15, 1991  



  

Introduction 

  

Sheff v. O'Neilll is a desegregation case in the Hartford, 

Connecticut metropolitan area currently on the docket of the 

Superior Court of the Hartford/New Britain district. The 

plaintiffs in Sheff contend that the schools in the Hartford 

metropolitan area do not provide the students with equal 

educational opportunity and thus violate the plaintiffs’ 

fundamental rights to education. 

Sheff is brought under the Connecticut Constitution by 

Hartford and West Hartford school children who challenge the 

racial isolation throughout the metropolitan area and the 

inferior schools within the Hartford district. Unlike plaintiffs 

in federal desegregation suits, the plaintiffs do not argue that 

conscious policies by the state or by school officials led to a 

segregated system. They maintain only that the resulting de 

facto segregation of the Hartford metropolitan area school 

districts by race, ethnicity and poverty violates their right to 

equal educational opportunity. The plaintiffs request 

interdistrict relief so that the school districts will become 

racially and socioeconomically mixed. The plaintiffs argue that 

only interdistrict metropolitan relief can guarantee that their 

fundamental right to education will be realized. 

This paper outlines some of the issues plaintiffs are likely 

  

1No. cv 89-0360977S.  



  

to argue either at trial, or in the pre- or post-trial briefs. ? 

The paper argues that the state's intent is irrelevant when 

determining whether the state has violated its citizens 

fundamental rights. The court need not determine or evaluate the 

state's motivation for its actions or inaction. If state policy 

or a state system has created a situation which leads to the 

violation of fundamental rights, the state must remedy the 

situation, regardless of any lack of malintent. 

The paper is divided into three sections. The first section 

describes the background of the case. The second section argues 

that there is sufficient state action to bring a claim under the 

Connecticut Constitution. It contends that the states' intent is 

not an issue when determining whether state action exists -- the 

relevant question is whether "state action" has the effect of 

infringing a right. It maintains that the state's intense 

involvement with the school system makes any actions of that 

system actions of the state and further argues that state 

inaction when affirmative action is mandated by the constitution 

is a form of justiciable state action. 

The third section argues that the Hartford metropolitan 

area schools violate the plaintiffs' fundamental right to 

education by denying the plaintiffs an equal educational 

opportunity. This section maintains that state intent is 

  

2Many of the issues were raised by the defendants in their 
failed motion to dismiss (attached as Appendix 1). Because of 
the different nature of a motion to dismiss, most of the issues 
were not fully argued at that time. I use many of the issues 
raised by the defendants as an starting point for my arguments. 

2  



  

irrelevant when determining whether an individual has been denied 

a fundamental right. 

To some extent the two sections overlap. When determining 

whether state action exists, one must examine the right that 

action is alleged to have violated. Similarly, when determining 

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whether a fundamental right has been violated by the state, one 

must examine what policies the state has enforced to bring about 

that violation. I have tried to avoid repetition and to keep the 

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discussions in the correct sections but I think much overlap 

remains. I think the message to glean from this confusion is 

that the two are so closely tied that state action must exist 

whenever fundamental rights are violated.3 

  

3This paper is not unbiased. I did most of the research for 
the Connecticut Civil Liberties Union Foundation who represent 
the plaintiffs.   
 



  

  

  

The Case 

The plaintiffs in Sheff wv. O'Neill are white, black and 

Hispanic school children who attend schools in the Hartford and 

West Hartford school districts. They challenge both that the 

racial isolation of the Hartford metropolitan area schools 

violates each plaintiff's fundamental right to education under 

Article First Sections 1 and 20 and Article Eighth, Section 1 of 

the Connecticut Constitution and that the inferior Hartford 

district schools further violate the Hartford plaintiffs’ 

rights.4 In Horton v. Meskill,® the Connecticut Supreme Court 

held that these three sections read together establish that 

education is a fundamental right under the Connecticut 

Constitution. The court explained that all Connecticut students 

are constitutionally entitled to equal educational opportunity.® 
  

4The relevant constitutional provisions are: 
Article First, Section 1: All men when they form a social 
compact, are equal in rights; and no man or set of men are 
entitled to exclusive public emoluments or privileges from the 
community. 

Article First, Section 20: No person shall be denied the equal 
protection of the law nor be subjected to segregation or 
discrimination in the exercise or enjoyment of his civil or 
political rights because of religion, race, color, ancestry or 
national origin. 

Article Eighth, Section 1: There shall always be free public 
elementary and secondary schools in the state. The General 
Assembly shall implement this principle by appropriate 
legislation. 

5172 conn. 615, 376 A.2d 359 (1977) (Horton I). 

SHorton I, 172 Conn. at 649, 376 A.2d at 374. 

 



    
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Although schools separated by race have been found 

inherently unequal,’ the Hartford school district is racially and 

ethnically isolated. Ninety-one percent of the students in the 

Hartford district are black or Hispanic, and 47.6 percent live in 

families whose income is below the federal poverty line. On 

every side are contiguous or adjacent school districts that, with 

one exception, are virtually all-white, and without exception, 

are middle-class or upper-class.® 

The racial, ethnic, and economic isolation of the Hartford 

metropolitan school districts deprive the white plaintiffs of 

the opportunity to associate with, and learn from, minority 

children attending school within the Hartford school district. 

Similarly, the minority plaintiffs from the Hartford district are 

deprived of the opportunity to associate with and learn from 

white children. 

  

7Brown v. Board of Education, 347 U.S. 493 (1954).   

8see Complaint, paragraphs 30-34 (attached as Appendix 2). 
In 1986, blacks comprised only 12.1% of Connecticut's school-age 
population, Hispanics only 8.5%, and children in families below 
the United States Department of Agriculture's official "poverty 
line” ‘only 9.7%. As of 1987-88, these groups composed, 44.9%, 
44.9%, and 51.4% respectively of the school-age population of the 
Hartford school district. The percentage of black and Hispanic 
("minority") students enrolled in the Hartford City schools has 
been increasing since 1981 at an average annual rate of 1.5%. 

The school-age populations in all other suburban school 
district immediately adjacent and contiguous to the Hartford 
school district, ("the suburban districts"), by contrast, are 
overwhelmingly white. An analysis of 1987-1988 figures for 
Hartford, Bloomfield, and each of the suburban districts 
(excluding Burlington, which has a joint school program with 
districts outside the Hartford metropolitan area) reveals that 
only five of the twenty-one suburban districts have a minority 
population over 10% (Bloomfield 69.9%; East Hartford 20.6%; 
Manchester 11.1%; West Hartford 15.7%; and Windsor 30.8%). 

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Not only are the schools racially isolated, but the quality 

of education in the Hartford school district is inferior as well. 

The educational achievement of school children attending the 

Hartford schools is substantially lower than that of students 

educated in the surrounding communities. The plaintiffs assert 

that the disparities in educational achievement between the 

Hartford and suburban school districts are the result of the 

educational and social policies either pursued or accepted by the 

defendants, including the racial, ethnic and socioeconomic 

isolation of the Hartford and suburban school districts. The 

achievement variations are not the result of native inability: 

poor and minority children have the same potential to become 

well-educated as do other children. 

Public school integration of children in the Hartford 

metropolitan region by race, ethnicity, and economic status 

would significantly improve the educational achievement of poor 

and minority children, without diminishing the education 

afforded to their majority schoolmates. The state itself has 

found that: 

[T)he majority of studies indicate improved achievement for 
minority students in integrated settings and at the same 
time offer no substantiation to the fear that integrated 
classrooms impede the progress of more advantaged white 
students. Furthermore, integrated education has long-term 
positive effects on interracial attitudes and behavior... . 

The Hartford public schools provide inadequate education to 

the students because they are overwhelmed by the demand to 
  

9Connecticut State Department of Education, Quality and 
Integrated Education: Options for Connecticut 1 (1989).   

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educate a student population drawn from the poorest families in 

the Hartford metropolitan region.10 The racial, ethnic and 

economic segregation of the Hartford and suburban districts 

necessarily limits, not only the equal educational opportunities 

of the plaintiffs, but their potential employment contacts as 

well. 

For over two decades, the state has been aware of the 

separate and unequal pattern of public school districts in the 

greater Hartford metropolitan region; the strong governmental 

forces that have created and maintained racially and economically 

isolated residential communities in the Hartford region; and the 

consequent need for substantial educational changes, within and 

across school district lines, to end this pattern of isolation 

and inequality.l11 

The defendants are aware of the lasting harm inflicted on 

the poor and minority students by the maintenance of isolated 

urban school districts. Yet, despite this knowledge and their 

constitutional and statutory obligations to the plaintiffs, the 

defendants have failed to provide equal educational opportunity 

to the Hartford school children even though they have sufficient 

legal tools to remedy the problem.l2? The defendants claim that 
  

10see infra notes 81-88 and accompanying text. See also 
complaint at paragraphs 35-49. 

  

llsee infra note 37 and complaint at paragraphs 50-72. The 
defendants are the Governor, the State Board of Eduction, 
members of the State Board of Education, the State Treasurer and 
the State Comptroller. 

12gee Complaint, paragraphs 50 - 72. 

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because the school district lines have been coterminous with town 

boundaries almost cBrtiniolisly since 1650, before segregation 

could have been contemplated in Connecticut, the state is not 

required to change the school district lines.l13 

By tolerating districts sharply separated along racial, 

ethnic, and economic lines, the state has deprived the plaintiffs 

and other Hartford children of their rights to an equal 

educational opportunity, and to a minimally adequate education-- 

rights to which they are entitled under the Connecticut 

Constitution and Connecticut statutes.l4 By refusing to 

redistrict, the state has withheld equal educational opportunity 

from its citizens despite Connecticut's Constitutional and 

statutory guarantees of equal opportunity to education to every 

Connecticut child. 

  

13Memorandum in Support of Defendants' Motion to Strike at 
1-2, [hereinafter "Defendants' Memorandum"] (attached as Appendix 
B) citing Ames, History of Eduction in Connecticut, Part I in 5 
Osborne, History of Connecticut, 178-179. 

l4see e.g. C.G.S. 10-4(a) ("each child shall have...equal 
opportunity to receive a suitable program of educational 
experiences"). 

   



  

State Action 

"State action" exists whenever a state allegedly brings 

about a constitutional violation either by acting or by failing 

to act when action is constitutionally mandated. The plaintiffs 

challenge that Connecticut has allowed the development and 

maintenance of schools in the Hartford metropolitan area which 

are segregated on the basis of race, ethnicity and poverty and 

which deprive students of their fundamental rights to education. 

They assert that the state's action and inaction regarding the 

Hartford metropolitan area schools violates their fundamental 

right to education guaranteed by Article First Sections 1 and 20, 

and Article Eighth Section 1, and their due process rights under 

Article First Sections 8 and 10 of the Connecticut Constitution. 

Whenever litigants claim the protection of constitutional 

guarantees, the court must first determine whether the litigants 

are challenging government action. Because the Constitution 

does not control the behavior of private citizens, the 

Constitution's self-executing and judicially enforceable 

guarantees of individual rights shield individuals only from 

governmental conduct, usually referred to as "state action."13 

This section argues the current state of unequal education 

and segregation in the Hartford metropolitan area schools 
  

15chemerinsky, Rethinking State Action, 80 Northwestern 
L.Rev. 503, 507 (1985); L. Tribe, American Constitutional Law 
1688 (2d ed. 1988). The term "state action" refers to any action 
by government at any level -- federal, state or local. 

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resulted from state action and is thus justiciable under the 

Connecticut Constitution. Specifically, this section argues that 

the state is so intertwined with its school system that any acts 

taken by the education system, including the school board, 

cbnstitute state action under the Connecticut Constitution. It 

also maintains that when, as here, the state does not meet its 

affirmative constitutional duties, its inaction is properly 
  

defined as state action because the resulting violation to 

constitutionally guaranteed or statutory rights of individuals 

denies those individuals due process. The section further argues 

that when determining whether state action exists, the state's 

intent is not an issue. The state need not intend the 

unconstitutional results of its actions (or inactions) to be 

liable for them. Even if the injury is the result of a neutral 

policy, if it . infringes on a fundamental right it is 

unconstitutional state action. 

Finally, the section contends that the consequences of 

government action need not be foreseeable at the time the state 

initiates a policy for the state to be liable under that policy. 

The relevant question is whether a state policy results in rights 

violations. 

State System as State Action 
  

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# 

The sate cannot escape constitutional responsibility for 

its public schools.l16 The intense state involvement in the 

operation of public schools makes any discriminatory results of 

the state's education system the result of state action. Even 

if the unconstitutional condition is not the result of a 

specific act by the state, if the state system is involved in 

creating that violation, the state is deemed to have acted. 

Judge Berdon of the Connecticut Superior Court has argued that 

"[tlhe key to the state due process clauses [in the Connecticut 

Constitution] should be state involvement and not state action. 

State involvement refers to governmental conduct entwined in the 

activity challenged."l?7 as Justice Powell has observed: 

Public schools are creatures of the state, and whether the 
segregation is state created or state assisted or merely 
state perpetuated should be irrelevant to constitutional 
principle. The school board exercises pervasive and 
continuing responsibility over the long range planning as 
well as the daily operation of the public school system.... 
School board decisions obviously are not the sole cause of 
segregated school conditions. But if ... substantial 
school segregation still persists, the presumption is strong 
that the school board, by its acts or omissions, is in some 

  

16crawford v. Board of Education of City of Los Angeles, 130 
Cal. Rptr. 724, 732, 17 Cal 3d 280, 551 P.2a 28, 36 (1976); 
citing Santa Barbara School District v. Superior Court of Santa 
Barbara 13 Cal. 3d 315, 329, 118 Cal Rptr. 637, 530 P.2d4 605 
(1975); San Francisco Unified School District v. Johnson, 3 Cal 
3d 937, 951 -952, 92 Cal. Rptr. 309, 479 P.2d 669 (1971) Jackson 
v. Pasadena 59 Cal. 2d 87s, 879, 31 Cal. Rptr. 606, 382 P.24 878 
(1963); United States v. Texas Education Agency 467 F.2d 848, 
863-864 (5th Cir. 1972). 

  

17Berdon, Protecting Liberty and Property Under the 
Connecticut and Federal Constitutions: The Due Process Clauses, 
15 Conn. L. Rev. 41, 54 (1982). 

  

  

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part responsible.18 

  
When the california Supreme Court examined de facto 

segregation in its schools, it held: 

Wherever the origins or causes of school segregation may 
lie, ... under traditional constitutional doctrine, local 
school boards are so ‘significantly involved' in the 
control, maintenance and ongoing supervision of their school 
systems as to render any existing school segregation 'state 
action' under our...state constitutional Equal Protection 
Clause. 

Inaction as State Action 

The state owes affirmative duties to its people. 

Defendants' implication that state action cannot result from 

inaction belies this principle. The absence of an affirmative 

duty certainly does not follow from the principle that the 

Constitution addresses only the government. 2° There is 

  

18keves v. School District Number 1, 413 U.S. at 189, 227- 
228 (1973) (Powell, J. concurring). 

19crawford, 130 Cal.Rptr at 732, 551 P.2d at 36. See also 
Keyes Vv. School District Number 1, 413 U.S. 189, 234 (1973) 
(Powell, J concurring) ("Every act of a school board and school 
administration, and indeed every failure to act where 
affirmative action is indicated, must...be subjected] to 
scrutiny. The most routine decisions with respect to the 
operation of the schools, made almost daily, can affect in 
varying degrees the extent to which schools are initially 
segregated, remain in that condition, are desegregated, or -- for 
the long term future -- are likely to be one or the other.") 

  

20gee L. Tribe, American Constitutional law 1688, n.3. The 
United States Supreme Court has not succeeded in developing a 
body of state action "doctrine." There is no set of rules for 
determining whether governmental or private actors are to be 
deemed responsible for an asserted constitutional violation. 
"Only by sifting facts and weighing circumstances can the 
nonobvious involvement of the State in private conduct be 

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universal recognition "that the line between action and inaction, 

between inflicting and failing to prevent the infliction of harm" 

is less than clear.?l The line is blurred in race cases. There 

is double standard for state action -- the test for cases 

involving racial discrimination is less onerous. There is a more 

rigorous standard for other claims.22 This is especially true 

under the Connecticut Constitution where the Constitution 

explicitly creates an affirmative duty for the government to 

provide substantially equal education to all students.?23 

Defendants' failure to carry out the Constitution's command 

to maintain schools which are not segregated has denied the 

students an equal educational opportunity based on race, 

ethnicity and poverty. The state's continued maintenance of the 

Hartford schools which are not supplying even a minimally 

adequate education to their students, also violates the right to 

an equal educational opportunity. These failures are state 

action. 

The defendants incorrectly argued in their motion to dismiss 

that the due process and equal protection provisions of the state 

  

attributed to its true significance." Burton v. Wilmington 
Parking Authority, 365 U.S. 715,722 (1961). 

2lBowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). 
  

22g5e¢ e.dg., Jackson v. Statler Foundation, 496 F.2d 623, 629 
(2d Cir. 1979) Lefcourt v. Legal Aid Society, 445 F.2d 1150, 1155 
n.6 (2d Cir. '1971) 

  

23article Eighth, Section 1. See also Horton v. Meskill, 
195 Conn. 24, 35, 486 A.2d 1099, 1110 (1985). (Horton III). 

  

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Constitution do not require the defendants or the legislature to 

take affirmative steps to address the problem of de facto 

segregation in the Hartford schools or the problem of lower 

quality Hartford schools. They argue these results are not the 

result of government action.?24 This argument is flawed for 

several reasons. First, unlike the fourteenth amendment due 

process prohibitions which are directed specifically against 

state action, the Connecticut Constitution makes no reference to 

state action in either of its due process clauses.?23 

The New York Court of Appeals in Sharrock v. Dell Buick- 
  

cadillac, Inc.,?26 explained the "absence of any express State 

action language [in the New York Constitution] simply provides a 

basis to apply a more flexible State involvement ‘requirement than 

is currently being imposed by the Supreme Court with respect to 

the federal provision."27 

Second, Article First Section 20 asserts that "no person 

shall be denied equal protection of the law nor be subjected to 

Segregation or discrimination in the exercise of his civil or 

E: rolitical rights...," it does not require that the state "act", 

but only that a person has been denied those rights. This 

= Command differs from the federal Constitution which states "Nor 
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24pefendants’ Memorandum at 26. 

25Berdon, Supra n. 17 at 53. 

Ki 4 : 26 oll 45 N.Y.2d 152, 379 N.E.2d 1169, 408 N.Y.S.2d 39 (1978). 
= 27 
Be citaci Sat 160, 379 N.E.24 at 1174, 408 N.Y.S5.24 at 44 Et-itation omitted). 

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shall any state deprive any person ... nor deny to any person..." 

Like the state due process clauses, the state equal Protection 

clause requires a less active government to be implicated. If.a 

person is deprived of equal protection or denied equality by the 

effects of a state system there is state action regardless of 

whether the government actively denies equal protection.28 1t 

has been argued that "the state can be said to authorize all 

conduct that it does not prohibit."22 Connecticut has neither 

prohibited nor discouraged the development or maintenance -of 

unequal and segregated schools. 

Third, the defendants argument implies that there is no 

Constitutional mandate that the government act in a specific way. 

The defendants are wrong. If the government does not act in a 

way that fosters equal educational opportunity, indeed, if it 

enforces policies that hinder it, as it has in this case, it has 

not lived up to an affirmative command of the Constitution. Even 

if the Constitution is generally "charter of negative rather than 

positive liberties, "30 Article First, Sections 1 and 20 and 

Article Eighth, Section 1 of the Constitution taken together 

have been held to create an affirmative government obligation. 

The government's failure to act in accordance with that 

  

o- - 

28gee Chemerinsky, supra note 15, at 521. See also Glennon 
and Nowak, A Functional Analysis of the 14th Amendment "State 
Action" Requirement, 1976 Sup.Ct. Rev. 221, 229. 

29Karst & Horowitz, Reitman v. Mulley: A Telophase -of 
Substantive Equal Protection, 1967 Sup.Ct. Rev 39, 55. Sv 

30pefendants' Memorandum at 23, citing Jackson v. city of 
Jolliet, et al, 715 F.2d 1200, 1203 (7th Cir. 1983). 

  

  

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obligation constitutes state action. Similarly, the unequal 

schools violate C.G.S. 10-4(a)(1)31 which in turn violates 

plaintiffs' due process rights. Violation of due process is also 

state action. 

The defendants have argued and are likely to continue 

arguing that neither the segregation of the Hartford and 

suburban schools nor the inferior education provided by the 

Hartford schools are constitutional violations by the state 

necessary to maintain a desegregation suit.32 Although the 

defendants cannot dispute that the Hartford schools are 91% 

minority and the surrounding suburbs are roughly 90% white, they 

argue that the segregated schools have come about as the result 

of socioeconomic evolution and personal preferences, not 

government action. Similarly, they argue that the disparity 

between the Hartford and suburban schools test scores are not the 

result of unequal educational experiences, but are the result of 

poverty -- that is, because more at risk children are in the 

school, lower achievement is to be expected. They claim the 

schools themselves are equal. It is outside forces which the 

state did not create, affecting the students in unequal ways. 

The defendants argue there is therefore no state action. 

Even though the demographic shift has been determined by the 

personal preferences of Connecticut residents who have chosen 

  

3lc.g.s. 10-4(a) (1) guarantees each child "shall have 
...equal opportunity to receive a suitable program of educational 
experience." 

32pefendants' Memorandum at 22-29. 

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the neighborhoods in which they want to live, Connecticut is 

responsible for the imbalances those choices have had on the 

school populations in its districts. "The right to an equal 

opportunity for education and the harmful consequences of 

segregation require that school boards take steps, insofar as 

reasonably feasible, to alleviate racial imbalance in schools 

regardless of its cause."33 If the defendants had adjusted the 

district lines, the rights would not have been violated. The 

defendants incorrectly imply that the schools have been a passive 

institution collaterally effected by the demographic changes in 

the area. The important issue in this case is not where the 

children live, but where they are required to attend school. 

Where [residential] segregation exists, it is not enough for 

a school board to refrain from affirmative discriminatory 

conduct. The harmful influence on the children will be 

reflected and intensified in the «classroom if school 

attendance is determined on a geographic basis without 

corrective measures.34 

In a system of compulsory education, the distinction 

between natural evolution of neighborhoods and state action is 

illusory. It is unreasonable to contend that the state 

involvement is not "action" in the constitutional sense.32 The 

state's present passivity is a continuation of past action -- the 

  

33gackson, 31 Cal.Rptr 606, 610, 59 Cal. 2d 876, 880, 382 

P.2d 878, 882 (1963) (emphasis added). See also Crawford, 130 

Cal. Rptr. 731, 17 Cal 34 280, 55) P.24 35. 

34pooker v. Board of Education of Plainfield, N.J., 212 A.2d 

i, 7, 45 N.J. 161, 168 (1965); citing Jackson, 59 cal 24 876, 31 

Cal. Rptr. 606, 382 P.2d 878, 881-882 (1963). 

  

  

, 35Note, Segregative Intent and the De Facto/De Jure 

Distinction, 86 Yale L.J. 317, 330, 354-355 (1976). 
  

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state drew the original school district lines and retains the 

power to change them. 36 Laws mandate that the state provide an 

equal education to all of its students. The state's ‘passivity 

violates those laws. 

Although the state did not singlehandedly create the 

residential patterns, the Connecticut Board of Education has been 

aware of the increasing segregation within the schools and the 

damaging effects that segregation has on the students for over 

twenty-five years but has taken little action to balance the 

schools.37 

  

36The state's history with regard to public housing and 

other actions that may have had a segregative effect on the 

Hartford metropolitan area by race, ethnicity and poverty. This 

jssue is not discussed in this paper but is another form of 

state action that could be challenged. 

371n 1965, the United States civil Rights Commission 

presented a report to Connecticut's Commissioner of Education 

which documented the widespread existence of racially segregated 

schools in Connecticut. The Hartford Board of Education and the 

city Council hired educational consultants who determined low 

jevel of achievement was closely correlated with a high level of 

poverty among the student population in Hartford; that racial and 

ethnic segregation caused educational damage to minority 

children; and that a plan should be adopted, with substantial 

redistricting and interdistrict transfers funded by the State, to 

place poor and minority children in suburban schools. No such 

plan was ever -implemented. over the next 25 years other 

proposals were made but no substantial action was taken. (See 

Complaint at paragraphs 53-62.) 

In January 1988, a report prepared by the Department of 

Education's committee on Racial Equity, was presented to the 

State Board. Entitled "A Report on Racial/Ethnic Equity and 

Desegregation in Connecticut's Public Schools," the report 

informed the Board that 

Many minority children are forced by factors related to 

economic development, housing, zoning and transportation to 

live in poor urban communities where resources are limited. 

They often have available to them fewer educational 

opportunities. Of equal significance is the fact that 

separation means that neither they nor their counterparts in 

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By not acting to change the district lines as the 

demographics shifted, the state government denied students an 

equal educational opportunity. School officials must 

immediately remedy the segregation when they are faced with 

statistics indicating segregated conditions exists. "Any failure 

to act can only be construed as an act of discrimination."38 

The state's omission from action has had as damaging effects 

on the students as specific acts would have had. Indeed, "when 

the power to act is available, failure to take the necessary 

steps so as to negate or alleviate a situation which is harmful 

is as wrong as is taking affirmative steps to advance that 

  

the more affluent suburban school districts have the chance 
to learn to interact with each other, as they will 
inevitably have to do as adults living and working in a 
multi-cultural society. Such interaction is a most 
important element of quality education. 

Report, at 7. 
In April of 1989, the State Department of Education issued a 

report, "Quality and Integrated Education: Options for 
Connecticut," in which it concluded that 

racial and economic isolation have profound academic and 
affective consequences. Children who live in poverty -- a 
burden which impacts disproportionately on minorities -- are 
more likely to be educationally at risk of school failure 
and dropping out before graduation than children from less 
impoverished homes. Poverty is the most important correlate 
of low achievement. This belief was borne out by an 
analysis of the 1988 Connecticut Mastery Test data that 
focused on poverty....The analysis also revealed that the 
low achievement outcome associated with poverty are 
intensified by geographic and racial concentrations... 

Report, at 1. 

38Berry v. School District of Berton Harbor, 467 F. Supp- 
721, 734 (W.D. Mich. 1978); But Cf. Higgens v. Board of Ed of 
city of Grand Rapids, 508 F.2d 779, 791 (6th cir. 1974). (The 
law imposes no affirmative duty upon school officials to correct 
the effects of segregation resulting from factors over which -they 

have no control.) 

  

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situation."39 

The state's argument that residential segregation itself is 

the result solely of personal preference ignores this country's 

history. 

"Private" acts of intentional discrimination by individuals 
are not the only obstacles to social equality. The residual 
effects of past discrimination and exclusion have also 
impeded the progress of blacks, even in the absence of a 
current intent to discriminate.40 

State Intent Irrelevant 

Even though the Connecticut government may not have taken 

purposeful discriminatory steps to create separate schools, the 

segregated and inferior schools that have developed under its 

education system are subject to constitutional challenge because 

they violate the Connecticut Constitution's mandate of equal 

educational opportunity for all students and the constitutional 

prohibitions against segregation. In their motion the defendants 

incorrectly asserted that because the district lines were drawn 

without malintent, no fault can lie with the state for any impact 

those lines have had. Therefore, they argue, any effects cannot 

be subject to court challenge. The defendants argue that 

longstanding history of the district lines somehow insulates them 

  

3%pavis v. School District of Pontiac, 309 F.Supp 734, 741- 
42 (E.D. Mich. 1970). 
  

gs 40KReith, What Happens to A Dream Deferred: An Assessment of 
Civil Rights Law 20 Year After the 1963 March on Washington, 19 
Harv. C.R.-C.L. L.Rev. 469, 492 (1984). 

  

  

20  



  

  

    

from review.4l But, reaffirmation of an old policy is no less 

subject to constitutional review than the adoption of a new 

one. 42 

Regardless of the intent of the statute creating school 

districts coterminous with town lines43, its enforcement has lead 

to the violation of the state Constitution and statutes and must 

be remedied. The state Constitution creates an affirmative duty 

for the government to educate all in a substantially equal 

manner. Retaining district lines, when the Constitution 

requires a change so that individual rights will not be violated, 

disregards the Constitution's command for affirmative state 

action. 

In Tinsley v. Palo Alto Unified School District,44 the 
  

4lgee Defendants' Memorandum at 1-3. The school districts 
have been drawn on the basis of town lines almost consistently 
since 1650 when the General Court adopted a provision that every 
Township with fifty households had to appoint a teacher and any 
town with one hundred families had to set up a school. 

42Note, Segregative Intent and the De. facto / De dure 
Distinction, 86 Yale L.J. 317, 330-331 (1976). See also, Evans Vv. 
Buchanan, 393 F.Supp 428 (D.Del) (three judge ct), aff'd mem., 
423 U.S. 963 (1975) (decision by state legislature to retain 
school district boundaries held denial of equal protection); U.S. 
Vv. Missouri 388 F. Supp 1058, 1069 (E.D. Mo.), Aff'd and quoted 
with approval, 515 F.2d 1365, 1370 (8th Cir.), cert. denied, 423 
U.S. 951 (1975) (failure to merge white school district with 
black school district thirty years previously "amounted to a 
constitutional wrong"). Cf. Norwood v., Harrison, 413 U.S. 455 
(1973) (continuation of pre-Brown policy of lending textbooks to 
discriminatory private school held unconstitutional); Daily v. 
City of Lawton 425 F.2d 1037 (10th Cir. 1970) (failure to alter 
zoning unconstitutional). 

  

  

  

  

  

  

43¢c.G.S. 10-240. 

44154 cal.Rptr. 591, 91 Cal.App.3d 871 (1979). 

21 

 



  

    

  

California court examined de facto segregation and determined the 

state's creation of the school district lines amounted to state 

action despite the fact that the lines had been drawn without 

discriminatory intent. Because government action had drawn the 

school district lines which created the racial imbalances 

questioned, the court determined: 

If those lines serve to create or maintain an imbalance 
which deprives minority groups of a right to equal 
educational opportunities, free from isolation and 
segregation, there has been a violation or our state 
provisions granting equal protection of the law.%> 

Similarly, the court in Serrano Vv. Priest?5, held that 

"[glovernmental action drew the school district boundary 

lines.... It is that action, which we reiterate is the product of 

Legislative determination, that we today hold to be in violation 

of the state provisions guaranteeing equal protection of the 

laws. "47 

The Horton I plaintiffs did not challenge intent. Instead 

like the Sheff plaintiffs, they argued that the effect of the 

education system was denial of equal educational opportunity. In 

their motion to dismiss, the defendants tried to distinguish the 

justiciability of this case from that of Horton I, by arguing . 

that Horton I had the requisite state action because the 

plaintiffs in that case challenged the statute that provided 

unequal funding to the schools. By contrast, they argue this 

  

451d. at 613, 91 cal. App. 3d 894. 

4696 cal Rptr. 601, 5 Cal.3d 590, 487 P.2d 1241 (1971). 

4714. at 614, 5 Cal.3d at 603, 487 P.2d at 1254. 

22 

 



  

case does not assert state action because the plaintiffs 

challenge government inaction.48 

Like Horton I, this case challenges the denial of the equal 

application of the fundamental right to education by the state 

education system. The true challenge in Horton I was to the 

unequal education that resulted from the radical difference in 

funding to different towns because of the differences in property 

taxes. In that case the Connecticut Supreme Court held that 

education was a fundamental right to which all children were 

entitled on an equal basis. The state funding system led to 

unequal educational opportunities and was therefore 

unconstitutional state action. The challenged state statute was 

a vehicle used to challenge the lack of appropriate legislation 

for education as required under Article Eighth, Section 1 of the 

Connecticut Constitution. 

Similarly, Article First Sections 1 and 20 and Article 

Eighth Section 1's affirmative command for appropriate 

legislation to ensure equal educational opportunity for all 

children is not met by the state statutes that result in racially 

separate attendance zones and unequal schools. In Sheff, the 

attendance zones are the vehicles by which the constitutional 

rights of the children of the state are Peing violated. The 

plaintiffs challenge that the defendants’ inaction violates 

  

487+ is interesting to note that the defendants in Horton 1 
tried and failed to convince the court that the issue was 

nonjusticiable. See Memorandum of Decision of Defendant's Motion 

to Strike, p.10 citing Horton v. Meskill, 31 Conn. Supp. 377, 389. 

23 

 



  

  

  

  

  

statutory and constitutional law. This is state action =-- the 

making and enforcement of laws which serve to limit guaranteed 

rights.42 

The defendants incorrectly assert that as long as there are 

free public and secondary schools that are equally funded, the 

constitutional command is met.%0? The mere existence of schools 

is not enough. The schools must provide an equal educational 

opportunity. The defendants have argued that the Hartford 

schools are not less equal even though the students have 

substantially lower achievement levels, graduation rates, and 

college placements. The state asserts these inequalities are the 

result of poverty. The defendants argue the state is not 

required to subsidize the schools of the poor -- that it is up to 

the people, through the legislature, to decide whether the state 

should mitigate the effects of poverty or other circumstances. 

While this may be true with respect to rights that are not 

constitutionally guaranteed, "[a] citizen's Constitutional rights 

can hardly be infringed simply because a majority of people 

  

491f the defendant's arguments were plausible, the court in 
Horton I would have held that there was no state action in that 
case -- state action did not determine who lived in what 
neighborhoods and state action did not create the wealth 
disparity that led to the differences in school funding. Since 
the funding scheme itself was not facially discriminatory, the 
court would have held there was no state action. That the court 
in Horton I found state action, should be a guide in this case. 
The state need not act with malintent either to act or to violate 
the constitution. 

  

S50pefendants' Memorandum at 27-28. 

24 

 



  

  

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choose that it be.n31 

The defendants claim "the state need do no more than insure 

that state action does not frustrate the right of its citizens to 

enjoy that privilege in a way which offends the due process or 

equal protection clauses."32 They ignore the fact that the 

Hartford metropolitan area schools do frustrate the right of 

Connecticut citizens to enjoy their fundamental right to 

education as guaranteed by the state Constitution and violate the 

due process protections. It is the Constitutional right of 

minority students to be free from the isolating and debilitating 

effects of segregation -- regardless of its source -- and to 

attend schools providing a substantially equal education. 

In their motion to dismiss, the defendants cite Harris v. 

McRae®3 to support their position that if poverty or private 

action cause interference with the enjoyment of a privilege or 

right, the government need not mitigate the effects by taking 

affirmative actions.®? The defendants argument is flawed both 

under the state and federal constitutions. First, Connecticut 

has explicitly rejected McRae. In Doe Vv. Maher®3 the 
    

Connecticut court held that denying funding for medically 

  

Slrucas wv. Fortyfourth General Assembly of Colorado, 377 

U.S. 713, 736~737 (19564).   

52pefendants’ Memorandum at 28. 

53448 U.S. 297 (1980). 

S54pefendants’ Memorandum at 28-29. 

5540 Conn. Supp 394, 515 A. 2d 134 (1986). 

25 

 



  

  

  
  

  

necessary abortions violates the fundamental right to privacy and 

therefore violates the Connecticut due process clause. The 

Connecticut court held "the denial of medical care is all the 

more cruel in this context, falling as it does on ‘indigents who 

are often without means to obtain alternative treatment.">6 

In Sheff, Connecticut is again infringing on a fundamental 

right -- the right to education. Again, the burden falls 

primarily on the poor who have no alternatives. The dour should 

hold that state action exists, and that the state has deprived 

individuals of their fundamental rights. 

Even if the court used the federal standard, McRae would be 
  

inapposite. In that case, because Congress was not 

constitutionally required to provide any medicaid funding, the 

Court reasoned that a woman was not any more hurt by the lack of 

abortion funding than she would be if there were no funding at 

all. 

By contrast, the Connecticut Constitution mandates that 

there be substantially equal elementary and secondary schools 

provided by the government. If those schools are not equally 

available to all, regardless of the reason, the Constitution is 

violated. If poverty leads to unequal schools the state has an 

affirmative obligation to mitigate the effects. 

Questions of Foreseeability 

  

5614. at 404, 515 A.2d 145. 

26 

 



  

  

  

The fundamental rights violation caused by the Hartford 

metropolitan area schools is directly traceable to the school 

district lines. The defendants' allegation that there is an 

insufficient causal connection between the school district lines 

and the asserted injury makes no sense. Even if the state could 

have had no knowledge when it originally drew the district lines, 

the lines presently condemn all Hartford area school children to 

attend schools that are either virtually all white and middle 

class or virtually all-black and Hispanic and disproportionately 

poor. As the fundamental rights section argues, this segregative 

effect, without more is sufficient to create a remediable 

fundamental rights violation. 

Even if foreseeability or causation must be proven, the 

state will still be liable. The plaintiffs will argue that they 

need not prove more than discriminatory impact because their 

fundamental rights have been violated. But, they can also show 

that at some point the segregated schools became foreseeable and 

that the state inaction was a direct cause of their rights being 

violated. "A presumption of segregative purpose arises when 

plaintitte establish that the natural, probable and foreseeable 

result of public officials' action or inaction was an increase or 

perpetuation of public school segregation."57 In the Hartford 

metropolitan area, for at least the past twenty-five years, 
  

  

°70liver v. Michigan 508 F.2d 178, 182 (6th Cir. 1974), 
cert. denied, 421 U.S. 963 (1975). (the presumption becomes proof 
unless the defendants affirmatively establish that their action 
or inaction was a consistent and resolute application of racially 
neutral policies.) 

27 

 



segregation has been more than just foreseeable -- it has been a 

reality. . 

Regardless of the foreseeability at the time the districts 

were first drawn, the school district lines are a key in the 

chain of causation. Because the lines did not shift when the 

population changed, those lines became a link in the chain to the 

effect of violating the plaintiffs rights. 

Even if the state is not the cause for the segregated 

residential patterns, the state is still responsible for the 

resulting schools. 

While it is true that but for the ghettoized residential 
pattern the ... use of geographic criteria [for creating 
district lines] would not result in racially imbalanced 
schools, the school board is not absolved of all 
responsibility for imbalanced schools. In familiar tort 
terms, the "chain of causation' is not broken; at the most 
the residential pattern is a "concurrent" cause. 
Ghettoization is a known fact, a part of the social reality 
that the school board must consider when it makes 
decisions. 

The defendants have been aware of the problem and its 

consequences for over twenty-five years. They have both the 

power and constitutional obligation to act but have not done so. 

If the lines were drawn differently, the schools would not be 

racially isolated. By diminishing the concentration of the poor 

in the schools, achievement among those students would rise.>° 

The defendants claim that any causal connection between the 
  

S8piss, Racial Imbalance in the Public Schools: The 
Constitutional Concepts, 78 Harv. L. Rev. 564, 585 (1968). 
  

59gee state Department of Education Report (1988). 

28  



  

school district lines and infringement of constitutional rights 

is too attenuated to be judicially recognized. The defendants 

cite Martinez v. california®®? as support for their claim. 

  

Martinez was a much more attenuated situation than this one. 1In 

Martinez, the Court rejected a plaintiff's argument that the 

state is responsible for violence inflicted by a parolee. The 

Court recognized that all parolee's are a potential danger, but 

said the state cannot be held liable for every action taken by 

them. The court analogized that having a speed limit of 55 is 

less safe than a 45 MPH speed limit. But, the court said, the 

state cannot be held liable to a bystander who is hit by a car 

going 55.61 

Martinez is inapposite. A closer analogy would be if the 
  

state built a road in the 1800s without traffic lights. At the 

time, the automobile was an unforeseeable invention. As years 

passed, the road became a major traffic area. Every year there 

were several major accidents on the road. Each time, the police 

reported that a traffic light would prevent the accidents. The 

state studied the problem but did not act. By 1991 if someone is 

killed on the road, the state will be liable. At that point, the 

state could foresee the accident that it could not when it built 

the road. It had an obligation to act but did not do so. It is 

a cause of the accident. 

Similarly, no one knew in 1650, when the lines were first 

  

60444 u.s5. 277, 285 (1980). 

6lsee memo P-:31. 

29 

 



  

drawn, that town lines would serve to deny students equal 

educational opportunities. But, for at least the past twenty- 

five years defendants have been collecting evidence, studies and 

statistics which make that denial clear. They have an 

affirmative duty to act. The defendants failure to alter the 

district lines is a cause of the racial isolation and the 

inadequate schools. 

30 

 



  

Fundamental Rights 

This section argues that the segregated and inferior 

Hartford schools deny the plaintiffs' their constitutionally 

guaranteed rights to equal educational opportunity. It maintains 

that the state's intent is irrelevant when determining whether 

the fundamental right to education has been violated. The 

section further argues that there is no compelling state interest 

that justifies this fundamental rights denial. 

In Brown v. Board of Education, 62 the Supreme Court of the 
  

United States declared: 

[E]ducation is perhaps the most important function of local 

and state governments.... It is required in the performance 

of our most basic public responsibilities.... It is the very 

foundation of good citizenship. Today it is a principal 

instrument in awakening the child to cultural values, in 

preparing him for later professional training, and in 

helping him to adjust normally to his environment. In these 

days, it is doubtful that any child may reasonably be 

expected to succeed in life if he is denied the opportunity 

of an education. Such .an opportunity where the state has 

undertaken to provide it is a_ right which must be made 

available to all on equal terms.%3 

Under Connecticut law, the importance of public education-- 

as a personal right, and as an affirmative state obligation -- is 

even more securely established than under the federal law. 

Public education is a "fundamental right,"®% and "pupils in the 
  

62347 U.S. 483 (1954). 

6314. at 493, cited with approval in Horton I, 172 Conn. at 

643, 376 A.2d 369. 
  

64Horton I, 172 Conn. at 645, 376 A.2d at 372. 

31 

 



  

public schools are entitled to equal enjoyment of that right."63 

The Connecticut Supreme Court has held that "the right to 

education is so basic and fundamental that any infringement of 

that right must be strictly scrutinized." 66 

When the court examines this case, it must first determine 

whether the current system of education affords all Hartford 

metropolitan area children an equal educational opportunity. 

That is, are their fundamental rights being enforced? If the 

answer is no, the court must next decide whether there is a 

compelling state interest that justifies the denial of the 

children's constitutional rights. If the answer is no again, 

the court will order that the Hartford metropolitan area's 

education system be restructured in a way that allows all 

children to enjoy their fundamental right to education. 

The standards the court will use are those that have been 

established under the Connecticut Constitution, which grants 

broader individual rights than the federal Constitution. ®” 

  

6514. at 649, 376 A.2d at 374. 

6614. at 646, 376 A.2d at 373. 

67a1though it may seem obvious that a case brought in state 

court under the state Constitution would be analyzed under state 

constitutional law, the defendants invoke federal caselaw 

throughout the Defendants' Memorandum as if it were binding 

precedent on the Connecticut courts that could limit 

interpretation of the Connecticut Constitution to the bounds of 

the federal. 
Connecticut courts are not bound by federal court decisions 

unless those decisions provide more protection than is guaranteed 

by the state Constitution. Horton I, 172 Conn. at 642, 376 A.2d 

at 372. (when declaring education a fundamental right the court 

stated that the United States Supreme Court decisions "are to be 

followed by Connecticut courts only when they provide no less 

32 

 



  

Connecticut courts have not limited the meaning of the state 
due process clauses to the interpretations placed on the 
fourteenth amendment by the federal courts.... In other 
constitutional areas, such as the protection of the 
fundamental right to education, religious freedom, the right 
to be secure from unreasonable seizures, and free speech, 
Connecticut has shown a willingness to expand state civil 
liberties as well as conform to the changing needs of 
society. 

There is little doubt that the schools will fail the 

fundamental rights inquiry. Under the Connecticut Constitution, 

"when state action impinges upon a fundamental right in any 

manner, whether or not the circumstances that cause the 

impingement are of the state's own creation, the state bears the 

burden of justifying the intrusion. This is a substantial 

departure from the current holding of the Supreme Court of the 

United States."®° 

When the court questions whether the plaintiffs' fundamental 

rights to education are violated, it will examine whether each 

plaintiff has an educational opportunity equal to those in other 

  

individual protection than is guaranteed by Connecticut 1law.") 
The Connecticut Supreme Court has declared that it "fully 
recognizes] the primary and independent vitality of the 
provision of [its] own constitution." Jd. at 641, 376 A.24 at 
371. 

68Berdon, supra note 17, 54-55. (citations omitted). 

6914. at 51 discussing Fasulo v. Arafeh, 173 Conn. 473, 378 
A.2d 533 (1971). (Connecticut due process goes beyond the federal 

~ == continued mental confinement must be in accordance with a 
judicial proceeding) and Doe Vv. Maher Conn. L. Tribune, May 3, 
1982 at 7, col. 1 (Super Ct. Oct. 9, 1981) (abridged opinion) 
(right to privacy guarantees right to state funding for medically 
necessary abortions under due process clause); compare Harris Vv. 
McRae 448 U.S. 297 (1980) (state's failure to pay for medically 
necessary abortion does not violate due process). See discussion 
supra at notes 50 - 56 and accompanying text. 

33 

 



Hartford-area districts. The court must inquire whether the 

racial isolation of the schools impacts the educational 

opportunities of the children. Further, the court must compare 

the quality of the schools and the education received in Hartford 

and the surrounding suburban areas. 

Over 35 years ago in Brown, Chief Justice Warren writing for 

a unanimous Supreme Court declared that schools separated on the 

basis of race are inherently unequal -- separate schools hurt the 

hearts and minds of minority children.’0 Evidence accumulated 

since Brown confirms and enhances this declaration. In 1967 the 

United States Commission of Civil Rights reported that when all 

other factors are equal, black educational achievement in 

segregated schools is lower than black achievement integrated 

schools. ’1 The commission found that black children "suffer 

serious harm when their education takes place in public schools 

which are racially segregated, whatever the source of such 
  

segregation may be."72 The commission noted that transferring 

blacks to integrated schools substantially betters their 

educational performance without harming the performance of white 

students. ’3 The commission explained its finding: 

The environment of schools with a substantial majority of 
  

70347 U.S. at 494. 

  

7lunited States Commission of Civil Rights, Racial Isolation 
in the Public Schools, Finding 8, p.204 (1967). (Hereinafter 
"Report".) 

72Report, 193, (emphasis added). 

73Report at 100-109.   
  
 



  

[black] students offers serious obstacles to learning. The 
schools are stigmatized as inferior in the community. The 

students often doubt their own worth, and their teachers 

frequently corroborate these doubts. The academic 

performance of their classmates is usually characterized by 

continuing difficulty. The children often have doubts about 

their chances of succeeding in a predominantly white 

society and they typically are in school with other students 

who have similar doubts. They are in schools which, by 

virtue of their racial and social class_ composition, are 
isolated from models of success in school. 

It is clear that racially isolated schools substantially 

harm minority children. The harm is inflicted upon the children 

regardless of whether the segregation is the result of laws, 

policy, or demographics. ’> Former Chief Justice Burger agreed 

that the effects of segregation are not mitigated just because 

the district lines have not been unconstitutionally altered. ’® 

The benefits if integrated schools continue after the formal 

secondary school education ends. In the longer term black 

children attending desegregated schools are more likely to 

complete high school, to enroll in and graduate from four year 

colleges and to major in non-traditional subject for minority 

students -- majors that lead to more remunerative jobs and 

  

74Report at 106. 

75gee San Francisco Unified School District wv. Johnson, 3 
Cal 34 937, 942, 92 Cal.Rptr. 1309, 479, 479 P.2d 669, 676, 
(1971). Cert. denied, 410 U.S. 1012. ("[I]Jt is the presence of 
racial isolation, not its legal underpinnings that creates 
unequal education.") 

76Milliken Vv. Bradley, 418 ‘U.S. 717, 747, n.22.(1974) 
(Milliken I) ("The pupil in an imbalanced school because of an 
assignment in accordance with a district boundary line is no less 
segregated than one similarly situated because of assignment in 
accordance with discriminatory attendance zones fixed within a 
district or because district lines have been unconstitutionally 
altered.") 

35 

 



  

professions. ’” 

Unfortunately, the drawbacks of segregated schools also have 

lasting effects. 

Children who have been...educationally and culturally set 
apart from the larger community will inevitably acquire 
habits of speech, conduct and attitudes reflecting their 
cultural isolation. They are likely to acquire speech 
habits, for example, which vary from the environment in 
which they must ultimately function and compete, if they are 
to enter and be a part of that community. This is not 
peculiar to race; in this setting, it can affect any 
children who, as a group, are isolated by force of law from 
the mainstream. ’S 

The Civil Rights Commission also noted that racial isolation in 

the schools 

fosters attitudes and behavior that perpetuate isolation in 
other important areas of American life. [Black] adults who 
attend racially isolated schools are more likely to have 
developed attitudes that alienate them from whites. White 
adults with similarly isolated backgrounds tend to resist 
desegregation in many areas housing, jobs and schools. ’?® 

Studies show that black children achieve the most dramatic 

educational gains when participating in metropolitan or county 

wide integration plans that often entail substantial busing. In 

this case, the busing required to integrate the schools would be 

minimal.®80 Metropolitan plans, like the one which could be 
  

77McPartland, Deseqregation and Equity in Higher Education 
and Employment: Is Progress Related to the Desegregation of 

Elementary and Secondary schools?, 42 Law & Contemporary 

Problems 108, 110-13, 124, 131 (Summer 1978). 

78villiken v. Bradley, 433 U.S. 267, 287-88. (1972) 
(citations omitted). (Milliken II). 

79Report at 110. 

80Because the suburbs are so close to the city, plaintiffs 
assert that most of the bus rides would be no more than roughly 
20 minutes. (Phil Tegler, speaking at Harvard Graduate School of 

36 

 



  

implemented in the Hartford suburban area, are beneficial in part 

because they achieve substantial desegregation across 

socioeconomic class as well as race lines. 

The findings are consistent with research showing that 
disadvantaged children fare better in schools and classrooms 
which are made up largely of advantaged students rather than 
being isolated with others of the same background. One 
explanation is that in schools consisting predominantly of 
advantaged children, the norms set out by the parents and 
teachers, and by the students themselves, ordinarily are 
high. Academic success and advancement to college are 
expected or demanded. Where schools fall short, middle- 
class parents are practiced in wielding influence to bring 
about change.81 : 

There should be no doubt that the nearly complete racial 

isolation of the schools violates the students' fundamental right 

to education. A two part syllogism explains this conclusion: 

First, (a) the Hartford area schools are separated by race and 

ethnicity; (b) the courts have held (and substantial evidence 

supports the conclusion) that racially separated schools are 

inherently unequal. Therefore, (c) the Hartford area schools are 

inherently unequal. Second, (a) the Connecticut Constitution 

guarantees all students a substantially equal education; (b) the 

Hartford area schools are unequal (from (c) above); therefore, 

(c) the students are not receiving a substantially equal 

education. Regardless of the state's lack of intent to 

segregate, the basic logic of the above equations points to a 

fundamental rights violation by the state. 

  

Education, October 23, 1990.) 

8lraylor, Brown, Equal Protection and the Isolation of the 
Poor, 95 Yale L.J. 1700, 1710 (1986) (citations omitted). 

37 

 



  

The schools are inferior not only because they are racially 

isolated, but also because the Hartford schools do not even 

provide the students with minimally adequate education.®2 In 

their motion to dismiss, defendants assert that the fundamental 

right to education includes no more than a "basic education" 

without regard to equal educational opportunity for students or 

equal quality among schools and school districts.83 Neither the 

Connecticut Constitution nor the cases interpreting it support 

that conclusion. Indeed, the Connecticut Supreme Court refuted 

this proposition in Horton I. 
  

[Tlhis Court has never suggested that because some 
"adequate" level of benefits is provided to all, 
discrimination in the provision of services is therefore 
constitutionally excusable. The Equal Protection Clause is 
not addressed to the minimal sufficiency but rather to the 
unjustifiable inequalities of state action. It mandates 
nothing less that all persons similarly circumstanced shall 
be treated alike.84 

The Hartford school children are not treated the same as 

those in suburban schools. The Hartford schools contain a far 

greater proportion of students, at all levels, from backgrounds 

that put them "at risk" of lower educational achievement than do 
  

821t is hard to separate how much of the lack of achievement 
stems each from the schools, the poverty and the racial 
isolation. The line separating poverty from race and ethnicity 
issues is artificial. The poor and the minority population are, 
in large part, the same population. Racial poverty can be 
attributed to racial discrimination. 

83pefendants’ memorandum at 37. 

84Horton I 172 Conn. at 615, quoting San Antonio Indep. 
School Dist. v. Rodriquez, 411 U.S. 1, 89 (1973) (Marshall, J. 
dissenting) (citations omitted). 

38 

 



  

the suburban schools.85 The severe educational burdens placed on 

the Hartford schools by the high numbers of at risk children have 

left the Hartford schools unable to provide educational 

opportunities that are substantially equal to those received by 

school children in the suburban districts. As a result, the 

overall achievement of school children in the Hartford school 

district -- assessed by virtually any measure of educational 

performance - is substantially below that of school children in 

the suburban districts.86 

The Hartford students, measured by the state's own 

standards, do not receive a "minimally adequate education." 

Fifty-nine percent of all the Hartford sixth graders read below 

the state's remedial level.8’7 The suburban also schools rank far 

ahead of the Hartford schools when measured by: the percentage 

of students who graduate from high school versus the percentage 

who drop out; the percentage of graduates who enter four-year 

  

85Indices for identifying at-risk students include (i) 
whether a child's family received benefits under the federal Aid 
to Families with Dependent Children program; (ii) whether a 
child has limited English proficiency; or (iii) whether a child 
is from a single parent family. In Hartford, 47.6% of the 
children are on AFDC, 40.9% have limited English proficiency and 
51% are from single parent families. See Complaint at paragraph 
37 for a more complete discussion. 

86see complaint, at paragraphs 35 - 49. 

87wnile 34% of all suburban sixth graders scored at or 
above the "mastery benchmark" on state administered reading 
test, only 4% of Hartford children met that standard. Similarly, 
74% of suburban sixth graders exceeded the state's remedial 
benchmark which measures "essential grade level skills," while 
only 41% of Hartford children met the test. See Complaint at 
paragraphs 43-44 for charts showing a breakdown by town. 

39 

 



colleges or any program of higher education; or the percentage of 

graduates who obtain full-time employment within nine months of 

completing their schooling.88 It is implausible that students 

entering the Hartford schools will have an educational 

opportunity equal to those ‘entering the suburban schools. 

The defendants have argued that the key to the inferior 

achievement of the Hartford students is their poverty, not racial 

isolation or state policy. They assert that the state is not 

responsible to correct rights violations that are the result of 

poverty. 82 The Connecticut courts have held that the state 

cannot act in a way that impacts on poverty. 20 

In their motion to dismiss, defendants repeatedly and 

incorrectly alleged that their lack of intent to create 

segregated schools when they drew the school district lines in 

some way insulates them from constitutional review.2?l When the 

court examines whether the students' fundamental rights have been 

violated, it will not consider whether the defendants 

  

88complaint, at paragraphs 40-46. 

89But separating the "poor" from "minorities" is a pointless 
enterprise. "It should come as no surprise ... that many of the 
poor are also the minorities. Most blacks live in racially 
isolated environments that are deprived if not devastated. A law 
having the effect of burdening the poor or poorly educated or of 
reinforcing racial isolation will have the further effect of 
disproportionately disadvantaging blacks." Perry, The 
Disproportionate Impact Theory of Racial Discrimination, 125 

. U.Pa.L.Rev. 540, 557 (1977). 

90see supra notes 50-56 and accompanying text. 
  

9lpefendants' Memorandum at 7, citing Milliken I, 418 U.S. 
at 721-722.  



  

consciously allowed the segregated and inferior schools to 

develop. How or why the district lines were developed is 

irrelevant when determining whether the fundamental right is 

infringed. The motivation analysis defendants suggest is only 

relevant when challenging the constitutionality the deprivation 

of gratuitous goods, not fundamental rights.22 The court in 

Horton I never questioned the motivation behind the disparity in 

the school funding. It examined only the unconstitutional effect 

the funding scheme had on the connecticut children. The 

motivation test has been applied in federal desegregation cases, 

like Milliken because education is not a federal fundamental 

right.293 

The deference shown to the government entity by the Court in 

  

921n washington v. Davis 426 U.S. 229 (1976), the Supreme 
Court established an intent or motivation requirement for racial 
discrimination claims. Washington v. Davis concerned a question 
of public employment. Although individuals are entitled to be 
free from purposeful discrimination in public employment, they 
have no constitutional right to a government job. The court held 
racial discrimination is entitled to strict scrutiny as a suspect 
classification under the Equal Protection Clause of the 
Fourteenth Amendment only when it is a product of discriminatory 
urpose; disperate impact is insufficient to create a federal 
constitutional claim. 

  

93gee e.g. San Antonio Independent School District v. 
Rodriquez, 411 U.S.1 (1973); Keyes Vv. School Dist. No. 1, 
Denver, Colo., 413 U.S. 189 (1973). Even though the United 
States Supreme Court has recognized the importance of education, 
it has held that because the text of the Constitution does not 
mention education, it is not a fundamental right. Federal 
challenges to segregated schools must therefore be brought as a 
suspect classification test under the Equal Protection Clause of 
the Fourteenth Amendment. If the challenge is brought under a 
race neutral statute, the plaintiffs must prove discriminatory 
intent on behalf of the school board for the court to apply 

strict scrutiny. : 

41 

 



  

Washington v. Davis is inapplicable in a fundamental rights case. 

  

Proof of impact is sufficient to establish an unconstitutional 

violation of a fundamental right.%4 As Professor: Ely has 

written: 

It ... cannot be emphasized too strongly that analysis of 
motivation is appropriate only to claims of improper 
discrimination in the distribution of goods that are 
constitutionally gratuitous .... However, where what is 
denied is something to which the complainant has a 
substantive constitutional right -- either because it is 
granted by the terms of the Constitution or because it is 
essential to the effective functioning of a democratic 
government -- the reasons it was denied are irrelevant.... 
To have a right to something is to have a claim on it 
irrespective of why it is denied.®° 

To require proof of discriminatory intent with regard to 

the infringement of fundamental rights would be illogical. 

Fundamental rights are affirmative rights guaranteed by the 

Constitution. Any infringement on those rights is a violation, 

regardless of the reason why they have been infringed. 

Constitutional guarantees cannot be ignored or subverted. If it 

were otherwise, the Connecticut Legislature could eliminate the 

state's budget gap by simply closing the public schools. If the 

  

94gee e.g. Terry v. Adams, 345 U.S. 461, 466 (1953) ("No 
election machinery could be sustained if its purpose or effect 
was to deny Negroes on account of their race an effective voice 
in the governmental affairs of their country, state, or 
community.") (emphasis added); City of Mobile, Alabama v. Bolden, 
446 U.S. 85, 104 (1980). (Marshall, J. dissenting) ("Vote 
dilution decisions require only a showing of discriminatory 
impact . . . and because they are premised on the fundamental 
interest in voting protected by the Fourteenth Amendment, the 
discriminatory impact standard adopted by them is unaffected by 
Washington v. Davis and its progeny."). 

93g1y, The Centrality and Limits of Motivation Analysis, 15 
San Diego L.Rev. 1155, 1160-1161 (1978) (emphasis in original). 

42 

 



% 

  

courts were to allow these actions, they would render the 

Constitution meaningless. 

Once the court recognizes the violation of the fundamental 

right. it will apply strict scrutiny to test whether there is a 

compelling state interest to justify this invasion. In Mobile v. 

Bolden,®® and in Harris wv. McRae, 27 the Supreme Court of the 

  

United States clearly stated that if a law impinges upon a 

fundamental right explicitly or implicitly secured by the 

Constitution, it is unconstitutional unless the intrusion is 

justified by a compelling state interest. In Hortonn . I The 

Connecticut Supreme court declared that "the right to education 

is so basic and fundamental that any infringement of that right 

must be strictly scrutinized."98 

The defendants have asserted incorrectly that strict 

scrutiny is an inappropriate standard of review for questions 

involving the fundamental right to education.?9°® Defendants 

assert that Horton IIT rejected the strict scrutiny test when   

assessing education rights violations. But the Horton III court 

reaffirmed Horton I's holding that all state legislation   

affecting the right to education must be strictly scrutinizegl00 

and then carved out a narrow exception for school financing. 
  

96446 U.s. 55, 76 (1980). 

97448 U.S. at 312. 

98Horton I, 172 Conn. at 646, 376 A.2d at 373. 
99pefendants' Memorandum at 44-45. 

100,95 conn. at 38, 376 A.2d at 1106. 

43 

 



  

Even if the test articulated in Horton III were to be applied in 

this case, the Hartford metropolitan area schools would not 

withstand the heightened scrutiny analysis. under the Horton 

III test, the plan as a whole must "provide significant 

enualizing state support to local education." The Horton III 

Court explicitly held that no plan will be constitutional "if the 

remaining level of disparity continues to 'emasculate the goal of 

substantial equality. '"102 

Although the defendants could argue that neighborhood 

schools and local control are a legitimate state purpose, they 

cannot possibly justify the resulting disparities among the 

schools. The schools are separated on the basis of race, 

ethnicity and poverty. The Hartford schools provide an education 

grossly inferior to that provided by the suburban schools. 

Unless the school residential populations change drastically, the 

remaining level of disparity will continue to '"emasculate 

substantial equality" and deprive more children of their 

constitutionally guaranteed rights. 

If the court applies a strict scrutiny analysis, the 

  

101lrhe test applied in Horton III was a three part test. 
First, a plaintiff must establish a prima facie case by showing 
that the disparities in educational expenditures are more than de 
minimus and that they jeopardize the plaintiffs' fundamental 
right to education. Second, if the plaintiffs establish a prima 
facie case, the burden shifts to the state to justify the 
disparities are incident to the advancement of a legitimate state 
policy. Third, if the policy is acceptable, the state must 
demonstrate that the continuing disparities are not so great as 
to be unconstitutional. Horton III 195 Conn. at 38. 

  

102gorton III 195 Conn.at 38, 486 A.2d at 1106, guoting, 
Mahan v. Howell, 410 U.S.315, 326 (1973). 
  

  

Ad 

 



  

defendants will lose. The defendants cannot credibly argue that 

the benefits of neighborhood schools and local control over the 

schools offer compelling reasons to leave the schools as they 

are. While local control and neighborhood schools are 

undoubtedly rational policy objectives, they are hardly 

compelling justifications for violating the fundamental rights of 

“the children of their state. 

Although the defendants argue that the neighborhood school 

policy is too vital for the proper functioning of the schools to 

redistrict, state created political vines cannot protect the 

state against the .constitutional command of Equal Protection for 

its citizens, or relieve the state from the obligation of 

providing educational opportunities for minority inner-city 

children equal to those provided for its white children in the 

more affluent suburbs.103 

All things being equal, neighborhood schools may slightly 

enhance students' education. All things are not equal in 

Connecticut -- the demographics mean that neighborhood schools 

will lead to unequal schools. The court cannot sanction this 

result. "[I]f a voter's address may not determine the weight to 

which his ballot is entitled, surely it should not determine the 

quality of his child's education."104 
  

  

  

103Note, De Facto Segregation -- the Northern Problem, 40 
Conn. Bar Journal 493, 504 (1966), citing Wright, Public School 
Desegregation: Legal Remedies for De Facto Seqregation, in De 
  

Facto Segregation and Civil Rights 4, 24 C. Schroeder & Smith ed. 
(1965). 

104serrano, 96 Cal.Rptr. at 621-22, 487 P.2d at 1261-1262. 

45 

 



[Bl]lack children need quality schools now .... The 
educational needs of today's black children can be met only 
if the relief to which they are entitled under the Brown 
decision is structured to reflect demographic and 
educational conditions that have developed since 1954. 

The defendants are likely to argue that the state cannot be 

forced to redistrict with every population shift. The expense 

and effort required will inflict great cost and disruption on the 

state. While the plaintiffs must concede that redistricting may 

take time, effort, and money, the plaintiffs do not ask that the 

- schools be redistricted with every minor population shift. The 

redistricting in this case is long overdue. The districts are 

not slightly imbalanced, or a little unequal. The disparities 

are huge (as are the rights violations). 

In Tinsley v. Palo Alto Unified School Districtl9® the 
  

California courts addressed a similar case to this one. The 

plaintiffs in Tinsley had requested interdistrict relief from de 

facto segregated schools.l107 The plaintiffs claimed the racial 

isolation mandated interdistrict relief. They argued that 

operation of the racially isolated schools denied them their 

constitutional rights. The court held that under the California 

Constitution racial imbalance in education is itself a violation 

  

  

105Be11, Is Brown Obsolete? Yes!, Integrated Education 28, 
32. (March/April 1976). 

1061534 cal. Rptr. 591, 91 ca. App. 3d 591 (1979). 

107The plaintiffs did not allege any intentional segregative 
acts by the defendants. They claimed only that the defendants 
had knowledge of the segregated schools within the districts. 

46  



  

of the state Constitution regardless of cause.l98 The court 

declared: 

[TlJhe pupil who is discriminated against today because of 
the maintenance under state law of preexisting school 
district lines is as entitled to relief as the pupil who 
finds himself in the same position because of intradistrict 
assignment policies or because of the discriminatory 
reorganization of district lines. 

The holding in this case was constitutionally mandated. As 

a result, Californians who sought to avoid interdistrict 

remedies amended the Constitution so that it went no further than 

the federal. The same must be in this case. When the court 

examines the facts and arguments, it must find that the Hartford 

metropolitan area schools unconstitutionally deny Connecticut 

children their fundamental right to equal educational 

opportunity. Nothing short of a constitutional amendment will 

release the defendants from liability. 

  

108The relevant portions of the California Constitution were 
the due process provisions, Article IX, section 1 which 
provided: "A general diffusion of knowledge and intelligence being 
essential to the preservation of the rights and liberties of the 
people, the Legislature shall encourage by all suitable means the 
promotion of intellectual, scientific, moral, and agricultural 
improvement." and Article IX, section 14 providing: "The 
Legislature shall have power, . . .to provide for the incorporation 
and organization of schools districts...." 

109154 cal Rptr. at 614. 

47 

 



  

Conclusion 

This paper has argued that the racially and 

socioeconomically isolated schools in the Hartford metropolitan 

area and the inferior schools in the Hartford school district 

unconstitutionally violate Connecticut school children's 

fundamental rights to equal educational opportunity. Because the 

state is constitutionally required to provide ail school children 

with a substantially equal education, the state must integrate 

the Hartford metropolitan area schools through an interdistrict 

plan before more children's rights are violated. 

The paper has stressed that in Connecticut, where education 

  

is a fundamental right, the condition of segregation in the 

schools is itself a constitutional violation. To be liable, the 

state need not intend to segregate. Indeed, segregation does not 

even have to be foreseeable at the time a policy is developed for 

the state to be liable under that policy. The state's liability 

rests on its affirmative obligation to supply the students with 

schools offering substantially equal educational opportunity. If 

any of the state's policies contribute to the denial that 

opportunity, the state has violated the Constitution. 

Specifically, this paper has argued that the current 

conditions in the Hartford metropolitan area are the result of 

state action. The state is so entwined with its school system 

that it must be responsible for any actions of that system. A 

48 

 



  

state's inaction can have as Great and as damaging an effect on 

individuals within the state as a state's actions can. 

Therefore, state inaction is properly viewed as a form of state 

action -- especially when, as in Connecticut, the Constitution 

affirmatively commands the state to act. Regardless of the 

intent behind the state's lack of action, when Constitutionally 

mandated action is avoided, the state must be judged to have 

acted. Any unconstitutional outcomes are the results of state 

action. 

Similarly, the when the courts examine the state's alleged 

violation of a right (or the violation by an agent of the state), 

if it is a fundamental right, the state's intent is irrelevant. 

The court must determine whether the state is bound to ensure 

that the right is protected. If it is, the only relevant 

question is whether the right is being fully protected. 

The paper argued that under this standard, the defendants in 

Sheff are liable for the unconstitutional infringement on the 

rights of the Connecticut school children. The state system of 

education unconstitutionally impacts the lives of the children it 

serves. Although the state did not cause the poverty or the 

residential segregation which have led to the unequal schools, it 

does have the duty to enforce the fundanental rights of its 

citizens. By choosing not to act in the face of evidence that 

the schools were unequal, the defendants "acted" in a 

constitutional sense. The effect of that action has been to deny 

the plaintiffs a fundamental right. 

49 

 



  

The defendants are properly viewed as a cause of the 

segregated conditions in the schools. It is the boundary lines 

they set up and have not changed that unconstitutionally impact 

on the school children. Even if there have been other 

intervening factors, they are best viewed as concurrent causes. 

If, for some reason the defendants' intent must be shown, it 

can be imputed through the defendants' inaction when action was 

constitutionally mandated. The "state action" led to segregated 

conditions, regardless of the conscious decisions. While it was 

far from obvious when the district lines drawn what effect they 

would have, for over twenty-five years that effects have been 

painfully clear. But the state has refused to act. 

When the court examines this case it must find that the 

state's actions have resulted in the unconstitutional deprivation 

of the Connecticut school children's fundamental right to 

education. Although the state did not create the poverty or the 

racial isolation in the Hartford metropolitan area, it is the 

state's responsibility to deliver schools offering equal 

educational opportunity to all students. It has failed to do so. 

50