Plaintiffs' Reply Brief with Appendix and Certificate of Service

    Cv89-0360977S 

  

MILO SHEFF, et al. SUPERIOR COURT 

Plaintiffs 

JUDICIAL DISTRICT OF 

HARTFORD/NEW BRITAIN 
AT HARTFORD 

Vv. 

WILLIAM A. O'NEILL, et al. 

Defendants August 16, 1993 

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PLAINTIFFS’ REPLY BRIEF 

  

      
 



      

TABLE OF CONTENTS 

I. INTRODUCTION, sc vos vevssvecvsvevsinsosesvsenevsses cesses 

II. DEFENDANTS’ INTERPRETATION OF CONNECTICUT 
CONSTITUTIONAL PROVISIONS UPON WHICH PLAINTIFFS 
RELY IS FLAWED. . cc cstssesvevnscnscenns wo wise susie uuinine 

A. Delegation to legislature. ...evseveneevesiains “a 

B. "Segregation" and "Discrimination"............ 

III. DEFENDANTS CANNOT REFUTE THAT RACIAL AND ETHNIC 
ISOLATION AS WELL AS POVERTY CONCENTRATION 
HAVE A NEGATIVE IMPACT ON STUDENT ACHIEVEMENT...... 

A. Concentrations of Poor Students Have a 
Negative Effect on Academic Achievement 
Separate and in Addition to the Effect of 
the Individual Chlild’/s Poverty... c.ceeeas PL 

B. Racial and Ethnic Segregation Have 
Negative Impacts on Students.......... . eine ain viv 

IV. DEFENDANTS’ EFFORTS HAVE BEEN DISMAL IN 
LIGHT OF THE DISPARITIES WHICH ARE WORSENING....... 

A. Socio-Economic Conditions Are Worsening....... 

B. Conditions in the Schools are Worsening....... 

Cc. Academic Performance is Worsening........cee.. 

D. State’s Response To The Issues Continues 
To Be Inadequate... cesses soma ses a sani... 

Vv. THIS COURT HAS THE POWER TO ORDER A REMEDY. .voevees 

VI. A PLANNING PROCESS WITH SPECIFIC MANDATES CAN BE 
SUCCESSFUL. cet esccercecsee sis seve FRE IE ER 

vil. CONCLUSION. oc sis vive svn tisnsostnvin st ussersnsereneeseee 

APPENDIX : 

EXHIBITS A-O (1992-1993 Updates to Natriello Tables) 

15 

19 

19 

22 

27 

28 

29 

34 

39 

43 

47 

55 

  

  
 



      

I. INTRODUCTION 

A DREAM DEFERRED 

by Langston Hughes 

What happens to a dream deferred? 

Does it dry up 
like a raisin in the sun? 

The central issue before this Court is whether the most 

racially and economically isolated children in the state who are 

performing the worst academically with the least amount of resources 

are entitled to judicial protection to ensure that their 

constitutional right to equal educational opportunity is realized. 

Particularly revealing from the presentation of evidence in 

this case and defendants’ own admissions in their depositions and 

brief is the commonality of interests among the parties. Governor 

Weicker acknowledged that "we are failing many of our youngsters, 

particularly in our cities." Pls’ Ex. 90. "There is a Connecticut 

of promise, as seen in its suburbs, and a Connecticut of despair as 

seen in its poverty-stricken cities." Id. Former Commissioner 

Tirozzi conceded that Hartford’s children are not receiving an 

"equal educational opportunity or a minimally adequate education." 

Pls’ Ex. 494, pp. 89-90. Defendant Ferrandino, present Commissioner 

of Education, concurred that the state is making insufficient 

efforts to address the racial and economic isolation of the school 

children in Hartford. Pls’ Ex. 493, p. 84. Defendant John Mannix, 

former Chairperson of the State Board of Education, admitted that 

it is "generally accepted on the State Board of Education" that a 

"suitable education experience” and an "equal educational 

  

  
 



  

opportunity" are not now provided to Hartford’s students nor have 

they been for "a number of years." Pls’ Ex. 495, pp. 33-34.! 

Defendants, therefore, do not contest that Hartford’s children 

are racially and economically isolated. (Defendants’ Brief p. 120, 

hereinafter referred to as Defs’ Br.) Nor do they dispute that 

poverty has an impact on educational achievement, (Defs’ Br., pp. 

59, 112), or that concentration of poor children in schools may be 

harmful. (Defs’ Br., p. 59.) They concede that Hartford students 

enter the school system behind, (Defs’ Br., p. 117), and that 

reducing the performance gap between urban and suburban students is 

an "important public policy goal of the state and the defendants" 

(Defs’ Br., p. 109). Significantly, defendants admit that the state 

needs to do more than merely promote annual gains among urban 

children, (Defs’ Br., p. 119), and their goal of achieving diversity 

is far from being accomplished. (Defs’ Br., p. 73.) 

Moreover, three key pieces of evidence presented by plaintiffs 

have gone essentially unrebutted by defendants. Defendants did not 

refute the massive disparity study of Dr. Gary Natriello, with the 

exception of one minor table.? Indeed, they too referred to this 

      1 It is significant that in a case of this importance and 
magnitude, not one of the former or present defendants came into 
court to defend him or herself. Indeed, the defendants’ own 
statements were so supportive of plaintiffs’ position that they were 
introduced by the plaintiffs. See, e.g., Pls.’ Exs. 493, 494, 495.   

2 Although it appears that Dr. Natriello was given erroneous 

information in relation to Pls’ Ex. 163, part B, Table 4, p. 53, all 
other figures on that page and in his report are accurate. (Rindone 
P. 123-4; Forman pp. 40-42.) 

  

  
 



  

  

    

important evidence as a "poignant" summary. (Defs’ Br., p. 144.) 

Nor did the defendants factually discredit any of the evidence 

detailing the 25 year history of failed desegregation efforts and 

state inaction, as summarized in Pls’ Ex. 488 and the testimony of 

William Gordon. Defendants also agreed with the plaintiffs that 

diversity is a positive goal (Defs’ Br., p. 12), and even their own 

expert, Dr. David Armor, could not undermine the conclusions of 

plaintiffs’ expert Dr. Robert Crain, that life outcomes and 

employment opportunities are enhanced by an integrated setting. 

In response to the two-fold remedy sought by plaintiffs -- 

desegregation and educational enhancements -- defendants concede 

that racial, ethnic, and economic isolation should be eliminated, 

(Defs’ Br., pp. 70, 134, 139), an *tintradistrict ‘approach may not 

be enough" to achieve this, (Defs’ Br., p. 13), and there are "good 

models of programs which could be expanded." (Defs’ "Br., p. 986, 

99.) 

Given this obvious lack of factual disputes and the parallel 

interests of the parties, the major contested legal issues can be 

narrowed to three: the nature of a state action requirement, the 

power of the court to impose a remedy and the necessity for and 

scope of a remedy. 

II. DEFENDANTS’ INTERPRETATION OF CONNECTICUT CONSTITUTIONAL 
PROVISIONS UPON WHICH PLAINTIFFS RELY IS FLAWED. 

The defendants persist in pressing many legal arguments based 

on a misleading view of state constitutional interpretation that has 

already been resolved against them by this Court and by the 

  

  
 



  

      

Connecticut Supreme Court. They contend that constitutional 

provisions should be read narrowly unless the intent of the framers 

clearly supports a more expansive interpretation. {(Defs’ Br., Pp. 

31-32.) This shortsighted view, however, is contrary to the mandate 

of the Supreme Court: 

Constitutional provisions must be interpreted within the 
context of the times.... The Connecticut Constitution is 
an instrument of progress, it is intended to stand for a 
great length of time and should not be interpreted too 
narrowly or literally so that it fails to have 
contemporary effectiveness for all of our citizens. 

State v. Dukes, 209 Conn. 98 (1988). Cologne Vv. Westfarms 
  

Associates, 192 Conn. 48 (1984), upon which defendants rely, simply 

stands for the proposition. that history and authorial intent are 

among the analytical tools which courts may employ in construing 

constitutional provisions. However, defendants ignore the fact that 

other tools, including textual analysis, opinions of courts from 

other states, and examination of changing economic and social 

conditions, may be equally valid. State v. Geisler, 222 Conn. 672, 

685 (1992). Reliance on this broad range of tools exposes many 

flaws in defendants’ argument. 

A. Delegation to Legislature 

First, defendants rely heavily on Pellegrino v. O’Neill, 

193 Conn. 670, 480 A.2d 476 (1984), for the proposition that "the 

language of Article VIII, Section 1 provides precisely the sort of 

‘textually demonstrable commitment’ of such issues as those being 

raised by the plaintiffs here to the General Assembly." (Defs’ Br., 

P. 39.) 

  

  

 



    

Defendants’ reading ignores two important features of 

Article Eighth, §1 which belie the suggestion of textually 

demonstrable commitment to total legislative discretion. First, the 

duty to provide public education is made a mandatory one: "There 

shall always be free public elementary and secondary schools," which 

"(t]he general assembly shall implement" (emphasis added). Second, 

and more importantly, this duty must be implemented by "legislation" 

that is "appr jate” (emphasis added). The presence of that 

qualifying word clearly signifies that legislative discretion must 

be properly exercised; the qualifier plainly contemplates judicial 

oversight of the appropriateness of legislative action. This 

reading is fully supported by Horton I. There, the Supreme Court 

employs this precise constitutional phrase as a basis for striking 

down the former system of school finance: 

[The . . . legislation enacted by the General Assembly to 
discharge the state’s constitutional duty to educate its 
children . . . without regards to the disparity in the 
financial ability of the towns to finance and educational 
program and with no significant equalizing state support, is 
not ‘appropriate legislation’ (article eighth, §1) to 
implement the requirement that the state provide a 
substantially equal educational opportunity to its vouth in 

its free public elementary and secondary schools. 

172 Conn. at 649 (emphasis added). Under no coherent theory of 

    

  

judicial review could the courts of Connecticut have the power to 

review the General Assembly’s judgments on school finance under 

Article Eighth, §1 if that section provided a textually demonstrable 

(and therefore unreviewable) commitment of the issue to the General 

Assembly. Either §1 vests exclusive, unreviewable authority in the   
  

 



      

legislature, or it does not. As Horton I demonstrates, the Supreme 

Court has already authoritatively answered that question in the 

negative. 

Pellegrino involved a claim under Article First, §10, that 

civil trials were being unconstitutionally delayed by the failure 

of the Legislature to provide sufficient judges to handle the 

backlog of cases. The plurality’ in Pellegrino were understandably 

reluctant to "augment their numbers by writs of mandamus," 193 Conn. 

at 678, because to do so, they reasoned, would be "to enhance 

[their] own constitutional authority by trespassing upon an area 

clearly reserved as the prerogative of a coordinate branch of 

government." Ia. No similar danger of institutional 

self-aggrandizement exists in this case.* 

That Pellegrino was not meant to trench on Horton I can be 

seen by the fact that the plurality opinion cited Horton I without 
  

  
criticism. 193 Conn. at 683. Moreover, Horton I was reaffirmed 

after Pellegrino in Horton III, which did not even mention 

Pellegrino. Chief Justice Peters, the author of Horton III in 1985, 

stated one year later: 

  

} As this Court has noted, Pellegrino is a plurality opinion, 
with a strong dissent by the current chief justice. See Memorandum 
of Decision on the Defendants’ Motion to Strike, pp. 10-11. 

4 Defendants’ contention that this case would impermissibly 
enhance the power of the courts by encouraging a flood of plaintiffs 
to attempt to vindicate their constitutional rights smacks of a 
"fear of too much justice." McClesky v. Kemp, 481 U.S. 279, 339 
(1987) (Brennan, J., dissenting). 

  

  

 



      

Third, courts must respond to changes in ‘our moral 
environment, to greater sensitivity to the rights of 
minorities and women and children and the aged and the 
handicapped and students and teachers -- the list, thank 
goodness, keeps growing . . . . That litigation increasingly 
turns to state law, and state constitutions, as federal courts 
retreat from the commitments of the Warren Supreme Court. 

%* * %* %* %* 

Not all litigation, however, permits deference or allows 
invocation of the passive virtues. In the face of 
uncertainty, courts must resolve some questions, regrettably, 
because courts are not the best, but the only available 
decision-makers . . . . When litigants have exhausted other 
channels, however, when the political process is unresponsive, 
and when other situations in society have, in effect, thrown 
in the sponge, it is courts that must respond to our society’s 
self-fulfilling prophecy that for every problem, there ought 
to be a law. 

Peters, "Coping with Uncertainty in the Law," “T3™*5hn.L. Rev, a, 

6 (1986). 

The law elsewhere supports the plaintiffs’ position that 

the Pellegrino principle has nothing to do with education. Almost 
  

every state constitution in the United States has a provision 

guaranteeing free public education and mandating the legislature to 

implement that provision. Catalano and Modisher, "State 

Constitutional Issues in Public School Funding Challenges," Emerging 

Issues in Constitutional Law 1989, pp. 207-08; Hubsch, "Education 

and Self-Government: The Right to Education Under State 

Constitutional Law," Journal of Law and Education, Vol. 18, No. 1 

(Winter 1989), Appendix (listing state constitutional education 

clauses in all fifty states). 

  
Since Horton I, claims that the legislature has sole and 

exclusive authority to assess the constitutional mandate, have been 

  

  

  
 



      

rejected by the highest courts of Massachusetts, McDuffy wv. 

Secretary of Education, 415 Mass. 545, 615 N.E.2d 516 (1993); Texas, 

Edgewood Independent School Dist. v. Kirby, 777 S.W.2d 391, 393-94 

(1989); Kentucky, Rose v. Council for Better Education, Inc., 790 

S.wW.2d4 186, 208-09 (1989) ; Montana, Helena Elementary School Dist. 

v. State, 236 Mont. 44, 769 P.2d 684, 689-90 (1989); Arkansas, 

Dupree v. Alma School District No. 30, 279 Ark. 340, 651 S.w.2d 

92-93 (1983); Wyoming, Washakie Co. Sch. Dist. No. 1 v. Herschler, 

606 P.2d 310, 317-18 (1980); West Virginia, Pauley v. Kelly, 162 

W.Va. 672, 255 S.E.2d 859, 874 (1979); Washington, Seattle Sch. 

Dist. No. 1 v. State, 90 Wash.2d 476, 585 P.2d 71, 83-97 (1978); and 
  

by an Alabama trial court in a decision not appealed by the 

defendants, Alabama Coalition for Equity, Inc, v. Hunt, 
  

CV-91-0117-R, Montgomery Cy. (1993) (slip opinion attached, see pp. 

75-80). As stated by the Texas Supreme Court in Edgewood, 
  

"[f]lortunately...for the people, the function of the judiciary in 

deciding constitutional questions is not one which it is at liberty 

to decline." Edgewood, 777 S.W.2d at 394 (citation omitted). A 

similar proposition is reflected in Rose, which noted that "the 
  

issue before us -- the constitutionality of the system of statutes 

that created the common schools -- is the only issue." Rose, 790 

S.W.2d at 209. "To avoid deciding the case because of ‘legislative 

discretion,’ ‘legislative function,’ etc., would be a denigration 

of our own constitutional duty." Id. 

  

  

 



      

The defendants’ reliance on Pellegrino is an attempt to 

reargue law that was settled in 1977 in Connecticut and has since 

then been settled elsewhere in favor of the plaintiffs. Pellegrino 

provides no ground for the judiciary to withdraw from the field when 

the voices of tens of thousands of students cry out for help. 

The defendants also rely heavily on Savage v. Aronson, 214 

Conn. 256, 571 A.2d 691 (1990), for the proposition that, unless 

they caused the problem, the defendants have no duty to remedy what 

they repeatedly call "conditions" adversely affecting the right to 

an equal educational opportunity (Defs’ Br., pp. 23-31). 

Horton I makes it clear that Article Eighth imposes an 

affirmative duty on the defendants to provide a substantially equal 

education. Horton I, 172 Conn. at 644-49. The Court reaffirmed 

this principle in Horton III, 195 Conn. at 35. Thus Article Eighth 
  

is fundamentally different from the Bill of Rights, which, as the 

defendants emphasize frequently in their brief, generally states 

negative duties (i.e., what the defendants shall not do). Article 

Eighth, on the other hand, states what they shall do.’ 

  

> Dpefendants’ characterization of the state constitution as 
merely limiting the exercise of governmental power overlooks the 
affirmative role that state constitutions play in directing the 
exercise of state power. "Most state constitutions are enabling 
documents designed to authorize, not restrain, the government. Most 
state constitutions are acutely aware that it is the responsibility 
of the states to deal with education and to deal with breakdowns in 
the availability of food, shelter and health care." Burt Neuborne, 
State Constitutions and the Evolution of Posjtive Rights, 20 Rutgers 
L.J. 881, 898 (1989). Other state constitutions include affirmative 
provisions regarding supporting the poor, providing for the aged, 
establishing charitable institutions, providing old-age pensions, 

  

  
 



  

  

    

- 10 - 

What the defendants essentially are saying is that Article 

Eighth states merely a negative duty. If that were so, they could 

have complied with Horton I by simply repealing all the offending 

school finance statutes (principally the flat grant). The 

defendants in Horton III surely would have been laughed out of court 

if that were all they had done in response to Horton I. And yet 

that is precisely the disingenuous argument the defendants now make 

in claiming that Horton I had nothing to do with "conditions." It 

is obvious that Horton I had to do with conditions -- that there 

were property rich towns and property poor towns -- and the 

defendants’ responsibility for providing a remedy for those 

conditions even though the defendants did not cause them. No one 

in Horton claimed that these "conditions" were caused by the state, 

and certainly no one in Horton even suggested that the school 

finance formula caused these "conditions." Thus what caused the 

disparities in Horton was not the financing system, but the economic 

and demographic inequalities that made some towns rich and some 

towns poor. 

  

“- providing. medical care for indigents, providing treatment for the 
insane, providing public housing, providing food and shelter in 
times of emergency, aiding abandoned children, the blind, the 
handicapped, orphans, and children of incapacitated fathers, 
providing unemployment compensation, and providing for public 
health, jd. at 893-95, as well as providing for public education. 
The United States Constitution, by contrast, does not contain such 
positive textual provisions and the United States Supreme Court has 
rarely read the Federal Constitution to contain positive rights. 
Id. at 887. 

  

  
 



    

In the face of Horton I and IIT, the defendants cite 

Savage. Savage was a housing case which had nothing to do with what 

schools were or were not doing. The thirty-page opinion primarily 

concerns procedural issues, the proper construction of state housing 

statutes, and due process of law. 214 Conn. at 257-86. The Horton 

issue appears as a peripheral one at the very end and the Supreme 

Court disposed of it quickly on the ground that Horton does not 

"guarantee that children are entitled to receive their education at 

any particular school or that the state must provide housing 

accommodations for them and their families close to the schools they 

are presently attending." 214 Conn. at 287.° The plaintiffs make 

no such claims in the present case. 

Savage actually has language supporting the plaintiffs with 

an express recognition that "the burden imposed on the state by our 

decision in Horton to insure approximate equality in the public 

educational opportunities offered to the children throughout the 

state" (pp. 286-87); (emphasis added). Savage, therefore, does 

nothing to advance the defendants’ cause, other than reaffirming the 

  

°® This language readily explains the principal distinguishing 
feature of Judge Zoarski’s decision in Broadley v. Meriden Board of 
Educatjon, No. 273507 (New Haven J.D., 1992). Judge Zoarski held 
only that Horton does not mandate that a child be given a particular 
program merely because that child or the parents demand that choice. 

Defendants’ reliance on some of the broader dicta in Judge 
Zoarski’s decision is also questionable, since that Court ruled 
without trial whereas this Court has had the benefit of a full and 
hotly contested trial which involved many of the country’s leading 
education experts.   

  

 



      

vitality of Horton, and has little to do with the momentous issues 

before this Court. 

Significantly, defendants do not contest that education is 

a governmental function, overseen and controlled by the state. Nor 

could they claim this. The Connecticut Supreme Court has repeatedly 

stated that public education is, in every respect, a responsibility 

of the state. See Plaintiffs’ Memorandum of Law in Opposition to 

Respondents’ Motion to Strike (November 9, 1989) (pp. 7-15). This 

control is also reflected in the Connecticut education statutes.’ 

  

7 pefendants discharge a broad range of statutory obligations 
that demonstrate their control over and responsibility for 
Connecticut’s system of public education. Defendants provide 
substantial financial support to schools throughout the State to 
finance school operations. See §§10-262f, et seq. They also 
approve, fund, and oversee local school building projects, see §§10- 
282, et seqg., and reimburse towns for student transportation 
expenses. See §10-273a. 

Defendant State Board of Education has "general supervision and 
control [over] the educational interests of the state," §10-4, and 
exercises broad supervision over schools throughout the State. It 
prepares courses of study and curricula for the schools, develops 
evaluation and assessment programs, and conducts annual assessments 
of public schools. See id. The Board also prepares a comprehensive 
plan of long-term goals and short-term objectives for the 
Connecticut public school system every five years. See id. 

Defendants exert broad control over school attendance and 
school calendar requirements. They establish the ages at which 
school attendance is mandatory throughout the State. See §10-184. 
They determine the minimum number of school days that public schools 
must be in session each year, and have the authority to authorize 
exceptions to this requirement. See §10-15. They also set the 
minimum number of hours of actual school work per school day. See 
§10-16. In addition, defendants promulgate a list of holidays and 
special days that must be suitably observed in the public schools. 
See §10-29a. 

  

  
 



      

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Defendants are directly involved in the planning and 
implementation of required curricula for the State’s public schools. 
They promulgate a list of courses that must be part of the program 
of instruction in all public schools, see §10-16b, and they make 
available curriculum materials to assist local schools in providing 
course offerings in these areas. See id. Defendants impose minimum 
graduation requirements on high schools throughout the State, see 
§10-221a, and they exercise supervisory authority over textbook 
selection in all of the State’s public schools. See §10-221. In 
addition, defendants require that all public schools teach students 
at every grade level about the effects of alcohol, tobacco, and 
drugs, see §10-19, and that they provide students and teachers with 
an opportunity for silent meditation at the start of every school 
day. See §10-1l6a. 

Defendants exert broad authority over the hiring, retention, 
and retirement, of teachers and other school personnel. They set 
minimum teacher standards, see §10-145a, and administer a system of 
testing prospective teachers before they are certified by the State. 
See §10-145f. Certification by defendants is a condition of employ- 
ment for all teachers in the Connecticut public school system. See 
§10-145. All school business administrators must also be certified 
by defendants. See §10-145d. The Board of Education specifies quali- 
fications for intramural and interscholastic coaches. See §10-149. 
Defendants also prescribe statewide rules governing teacher tenure, 
see §10-151, and teacher unionization, see §10-153a, and maintain 
a statewide teachers’ retirement program. See §10-183b, et seq. 

Defendants supervise a system of proficiency examinations for 
students throughout the State. See §10-14n. These examinations, 

provided and administered by the State Board of Education, test all 
students enrolled in public schools. See id. Defendants require 
students who do not meet State standards to continue to take the 
examinations until they meet or exceed expected performance levels. 
See id. Defendants also promulgate procedures for the discipline 
and expulsion of public school students throughout the State. See 
§10-233a et seq. 

Defendants also exert broad authority over language of 
instruction in public schools throughout the State. They mandate 
that English must be the medium of instruction and administration 
in all public schools in the State. See §10-17. But they also 
require local school districts to classify all students according 
to their dominant language, and to meet the language needs of 
bilingual students. See §10-17f. Defendants require each school 
implementing a program of bilingual education for the first time to 
prepare and submit a plan for implementing such a program to the 
State Commissioner of Education. See id. 

  

  
 



      

- 14 ie 

What defendants misunderstand is the legal significance of this 

point. While certain aspects of administration are delegated to 

local districts, such delegation is only at the pleasure of the 

state, and in no way diminishes the state’s ultimate duty to provide 

public education. Because education is a state function, the 

threshold "state action" requirement is satisfied, regardless of 

whether the state’s role in the alleged deprivation of rights was 

actively or passively carried out. 

The defendants also point to Professor Collier’s testimony 

to show Connecticut’s educational leadership over the years and 

centuries compared with other states. But this case has nothing to 

do with comparing the quality of education in Connecticut with that 

in, say, Rhode Island. This case has to do with comparing the 

quality of education in Hartford with that in nearby suburban towns. 

The defendants in Brown v. Board of Education, 347 U.S. 48 (1954), 

did not defend their position by claiming that the plaintiffs were 

receiving a better education in the United States than they would 

have received in Mexico, for instance. 

If anything, the reference to Professor Collier’s testimony 

highlights the historical importance Connecticut’s citizens have 

  

Defendants are also directly responsible for the requirement, 
pursuant to C.G.S. §10-240, that school district boundaries be 
coterminous with municipal boundaries, and the requirement, pursuant 
to C.G.S. §10-184, that school-age children attend public school 
within the school district wherein the child resides. It is also 
uncontroverted that defendants have overseen and funded the 
development of the very system of segregated and unequal schools 
that is challenged in this case. 

  

  
 



      

- 15 = 

always given to a proper education. Far from giving the defendants 

an excuse to rest on seventeenth through nineteenth century laurels, 

Collier’s testimony supports the plaintiffs’ position that this 

Court cannot turn its back on the 26,000 children in the Hartford 

public schools. 

B. "Segregation" and "Discrimination® 

The debates of the 1965 Constitutional Convention have been 

discussed in detail by both the plaintiffs (Pls’ Post-Trial Br., pp. 

96-98) and the defendants (Defs’ Br., pp. 33-37). No purpose will 

be served by repetition. The defendants point to Collier’s opinion 

about the conservative cast of the 1965 delegates (Defs’ Br. p. 36). 

There are two responses. In the first place, scholars have said the 

same thing about the 1787 delegates. This has not stopped the 

United States Supreme Court from interpreting the United States 

Constitution in ways that would not have commended themselves to the 

delegates in 1787. The reason the United States Supreme Court has 

done this is obvious. As Chief Justice Marshall once said: "We 

must never forget, that it is a constitution we are expounding." 

McCulloch v. Marvland, 17 U.S. (4 Wheat.) 316, 407 (1819). What 

Marshall was saying is that a constitution is written to set a 

general framework of government and its broad provisions are meant 

to be flexible enough to cover situations decades or centuries hence 

that never could have been dreamt of by the framers. 

In the second place, the conservative cast of the framers 

cuts two ways. Educational leadership and equal educational 

  

  
 



    

opportunity were not new concepts in 1965. The framers were 

constitutionalizing what they and their ancestors firmly believed 

in, which is that, whatever may be the "conditions" in the decades 

and centuries to come, every student in Connecticut will be 

guaranteed an equal educational opportunity. 

The defendants point out that racial isolation existed in 

1965 and the framers could have done something about it had they 

wanted to. As well might the defendants point out that property 

poor and property rich districts existed in 1965 and the framers 

could have done something about that had they wanted to. Yet only 

twelve years later a Supreme Court, whose members surely knew and 

undoubtedly shared the values and aspirations of the 1965 framers 

ruled that the school finance system existing in 1965 violated the 

1965 Constitution. 

The claim by the defendants (Defs’ Br. p. 34) that 

"segregation" and "discrimination" mean essentially the same thing 

violates the rule of construction that every word in a document has 

a meaning. State v. amme, 216 Conn. 172, 177 (1990). The 

defendants’ argument essentially makes "segregation" redundant. 

Moreover, even if the defendants’ position is correct, this just 

moves them from the frying pan to the fire. If segregation and 

discrimination are synonymous, then they both must apply to 

"conditions," for otherwise they both would be redundant with the 

equal protection language of §20, which says, "no person shall be   
  

 



    

denied the equal protection of the law nor be subjected to 

segregation or discrimination . . . ." (emphasis added). 

While the remarks of Justices Baldwin and O‘’Sullivan (Defs’ 

Br., p. 35) may support the defendants’ position that segregation 

and discrimination have similar meanings, their remarks do not at 

all support the defendants’ position that the two phrases have the 

same meaning as the equal protection clause. This would require a 

double redundancy. As the plaintiffs have already stated (Pls’ 

Post-Trial Br., p. 97), Justice Baldwin in his closing remarks 

discussed §20 as something entirely new in Connecticut and he also 

praised Connecticut’s leadership role in civil rights (1965 Debates, 

p. 696). In referring to something entirely new, he could not have 

been thinking of the equal protection clause, for Connecticut 

already had one in Article First, §1. It is a total perversion of 

his remarks to suggest that he would have thought §20 protected 

nothing that was not already protected by the Fourteenth Amendment.? 

In addition to the textual analysis of §20 and the debates 

themselves, there is judicial authority for the proposition that a 

prohibition of "segregation" and "discrimination" protects more than 

an "equal protection" clause. In NAACP v. Dearborn, 173 Mich. App. 

602, 434 N.W.2d 444 (1988), cert. denied, 433 Mich. 904, 447 N.W.2d 

751 (1989), the Michigan Court of Appeals held that the 

  

! In addition, the defendants ignore the fact that §20 forbids 
"segregation or discrimination in the exercise or enjoyment of his 
or her civil or political rights." (emphasis added) "Enjoyment 
must mean more than "exercise," or it too is redundant.   

  

 



      

"discrimination" provision of the Michigan Constitution showed that 

the Michigan framers intended that language to be broader than the 

equal protection clause of the Fourteenth Amendment. The case 

involved the city of Dearborn, which had enacted an ordinance 

limiting use of its parks to residents of Dearborn. The plaintiff’s 

sole claim was that the ordinance had a disparate effect on black 

citizens of Michigan because of the "condition" that blacks mostly 

lived in nearby Detroit or Inkster rather than in Dearborn. 

This is a claim that would have led to judgment for the 

defendants under the Fourteenth Amendment. But the Michigan Court 

ruled for the plaintiffs, holding that the Michigan Constitution 

bars an ordinance simply because of its disparate effect. If the 

court can say that as to a park, for which there is no affirmative 

constitutional duty, a fortiori the court can say that to education, 

for which there is a clear affirmative constitutional duty. 

Daly v. Delponte, 225 Conn. 499, 513, 624 A.2d 876 (1993) 

is also important precedent: 

In appropriate circumstances, we have interpreted the equal 
protection provisions of the state constitution differently 
than that contained in the federal constitution, particularly 
when the distinctive language of our constitution calls for an 
independent construction. See Horton v. Meskjll, 172 Conn. 
615, 641-45, 376 A.2d4 359 (1977). 

First, it reaffirms the importance of Horton in areas other than 

school finance. Second, it shows the importance of the language in 

Article First, §20 other than the equal protection clause in 

strengthening the rights of Connecticut citizens. 

  

  
 



      

-i] Gd - 

The whole discussion of the "segregation" and 

"discrimination" language in §20 must be kept in perspective. While 

that language reinforces and strengthens the effect of the equal 

protection clause, it is not necessary for plaintiffs to prevail. 

The plaintiffs also prevail on the separate and independent argument 

that the equal protection clause combined with the education clause 
  

furnishes the protection Hartford’s children need regardless of what 

the Court determines concerning the meaning of the 

segregation/discrimination clause. Td 

III. DEFENDANTS CANNOT REFUTE THAT RACIAL AND ETHNIC ISOLATION AS 

WELL AS POVERTY CONCENTRATION HAVE A NEGATIVE IMPACT ON 

STUDENT ACHIEVEMENT. 

A. Concentrations of Poor Students Have a Negative Effect on 
Academic Achievement Separate and in Addition to the 
Effect of the Individual Child'’s Poverty. 

The plaintiffs presented evidence that the concentration 

of poverty has a negative impact on student achievement and 

outcomes.’ See Pls’ Post-Trial Br. pp. 14-25. Dr. Mary Kennedy, 

who did a national assessment of this Program! found that there was 

a definite and significant relationship between the percent of poor 

students in a school and achievement. Kennedy at 16. By performing 

  

® The defendants did not present evidence to rebut plaintiffs’ 
proof that concentrations of poverty have long-term negative effects 
apart from questions of academic achievement. See Pls’ Ex. 481 
(Negative impacts on occupation, income, educational attainment, 
later working in an integrated environment and ratings of co-worker 
friendliness.) 

© pr. Kennedy’s study was a commissioned report to the United 
States Congress and was not done in contemplation of this 
litigation. Kennedy at 10. 

  

  

 



      

- 0 - 

a statistical analysis in which she controlled for such individual 

variables as the mother’s education, the family poverty, the 

student’s gender, whether the mother worked outside the home, the 

number of siblings and whether the family language was English, 

Kennedy at 30-31, Dr. Kennedy found that poverty concentration still 

had a "significant effect on students’ achievement...at virtually 

every grade level." Kennedy at 31. 

Dr. Kennedy further testified that this concentration 

effect is not limited to students who are themselves poor: 

(T]he effect of the concentration, then, is something 
that affects not only those students who are officially 
poor, but the other students in the school as well. 

Kennedy at 26. Indeed, Dr. Kennedy’s data showed that the effect 

of the concentration of poverty was larger than the effect of the 

students’ individual poverty. Pls’ Ex. 508b (High poverty school 

causes 36 point reduction in score; individual poverty causes 8 

point reduction) .! 

  

1 Dr. Kennedy testified that other researchers are starting 
to look at the relationship between poverty concentration and 
achievement and are observing patterns "generally similar to what 
[I have] shown here." Kennedy at 41. 

2 The defendants did not present evidence to rebut Dr. 
Kennedy. Instead they seek to mischaracterize her testimony. They 
stated, for example, that Dr. Kennedy "fail[s] to give a clear 
picture of how the concentration of poor children, as distinguished 
from the strong impact of individual poverty, operate on overall 
achievement." Defs’ Br. p. 61. This statement is simply false. 
See also Kennedy at 36-37. Similarly, the defendants falsely assert 
that Dr. Kennedy "suggests that the full impact of the 
‘concentration effect’ can be observed in the first grade." Defs’ 
Br. p. 62, citing Kennedy at 95. On page 95, Dr. Kennedy merely 
agrees that there is "an effect" in the first grade. 

  

  
 



  

    

- 21 - 

The defendants somewhat disengenuously assert that this 

effect "is less certain." {Defs’ Br., Pp. 59) The defendants, 

however, failed to present any evidence to contradict plaintiffs’ 

experts. Indeed, their own internal documents admit the harmful 

effects of poverty concentration. See, e.g., Pls’ Ex. 60; Pls’ Ex. 
  

70; Pls’ Ex. 455. The present and former commissioners of the State 

Department of Education also acknowledged this effect. See, e.q., 

Pls’ Ex. 493 at 36, 40; Pls’ Ex. 494 at 67-69. Even their main 

expert on individual poverty effects, Dr. Armor, appears to concede 

this point.” And while Dr. Armor indicated that he was seeking to 

use individual socioeconomic factors, the only individual factor he 

had available was the free or reduced lunch measure. The other 

factors he relied on were community factors such as percent single 

parent families and percent bachelor degrees, which really measure 

  

B While Dr. Armor stressed the effect of individual 
socioeconomic factors on academic achievement, he admitted that this 
did not explain the entire difference in achievement and that 
compensatory programs such as Chapter 1 can make a difference: 

Q. So it’s not your testimony that socioeconomic factors 
explain all of the difference in achievement, is it? 

A. No, it is not, not everything. 

Armor at 148. 

Dr. Crain testified that Dr. Armor’s data (p. 148) could not 
support the theory that student socio-economic status accounts on 
average for nearly the entire difference in achievement between 
black students in the Hartford schools and students in the suburbs. 
(Crain at 74). 

  

  
 



      

- iD 

concentrations of poverty. Moreover, Dr. Armor was not able to 

separate out the effect of individual poverty and poverty 

concentrations.” Dr. Armor has even acknowledged that a community 

level measure could have a greater effect than an individual 

measure. See Armor at 159-60. 

In sum, the evidence establishes that concentrations of 

poverty have negative impacts on student achievement as well as 

other long-term negative effects. 

B. Racial and Ethnic Segregation Have Negative 
Impacts on 8tudents. 

The defendants apparently do not contest plaintiffs’ 

evidence that racial and ethnic isolation has long-term negative 

consequences for students. Instead their brief focuses on a limited 

challenge to plaintiffs’ evidence that racial and ethnic segregation 

negatively affects academic performance. !® Defs’ Br. pp. 127-139. 

  

4 gSee Armor at 155: [I] would say that variable [percent 
single parent families] does measure, by its nature, by its 
definition, concentration of poverty. 

15 See Armor at 155: 

Q. So that for the factors you measured that were 
community-based measures, you can’t separate out the 
effect of the individual SES from the separate effect 
of the community based SES? 

A. That is correct. 

"18 The studies of Drs. Braddock and Trent are basically treated 
in footnotes 65 and 67 of Defendants’ Brief. The defendants 
apparently want the court to disregard these studies because they 
are "national" although they are professionally accepted and form 
the bases of the expert opinions presented at trial. The 
defendants, however, do not present any rebuttal to the actual 

  

  
 



      

To reach their desired result, defendants essentially ignore a body 

of research which has concluded that there are indeed negative 

consequences that result from racial and ethnic isolation.!’2 

First of all, plaintiffs do not assert that the benefits 

of desegregation flow from the mere fact that African-American or 

Latino students are somehow magically transformed because they are 

"expos([ed] to suburban children." Defs’ Br. p. 137. Rather, the 

evidence shows that all children benefit from a diverse educational 

background. See Pls’ Post-Trial Br. pp. 4-9. Secondly, plaintiffs 

do not assert that every study documents the positive impact of 

desegregation or that every study is methodologically sound. 

Rather, the evidence shows that there was a substantial body of 

research confirming this positive impact, that the defendants were 

aware of this research, and that they failed to take appropriate 

action to address the issue. 

  

findings in these studies that segregation perpetuates itself over 
a variety of long-term social and economic outcomes. 

7 The defendants cannot claim that they were unaware of this 

connection. Commissioner Ferrandino candidly admitted that it was 
commonly accepted by educators: 

Q. Many educational leaders...indicated that racial and 
ethnic isolation harms students academically. Do you 
agree with that statement? 

A. Yes, and I think we have, we do have some indication of 
that at the state level. 

Pls’ Ex. 493, at 35. 

  

  

 



      

Recognizing this problem, the defendants seek to minimize 

the findings summarized in the Schofield Report, Pls’ Ex. 58, Defs’ 

Ex. 12.25, since this report specifically explored the topic and its 

actual findings support the position presented by plaintiffs. 

Significantly, this report, was commissioned and distributed by the 

Connecticut Department of Education. As an initial matter, 

Schofield pointed out that every study has found that desegregation 

had no negative impact on achievement of any group of students. 

Thus there is no need to balance the possible gains from 

desegregation by one group with losses experienced by any other 

group. It is also helpful to divide the studies in the Schofield 

Report into two distinct categories: (1) descriptive reviews which 

qualitatively evaluate the body of literature and (2) reviews which 

use statistical methods to quantitatively evaluate the impact of 

desegregation as shown in the literature. In the first category, 

for example, is a 1975 study which found that there was not adequate 

data to determine the causal connection between desegregation and 

achievement, but found that younger black children benefitted more 

from desegregation than older ones. Pls’ Ex. 58 at 7. Similarly, 

a 1977 review of 71 studies "concluded that the majority of studies 

... indicated improved minority achievement." Pls’ Ex. 58 at 8. 

Another 1977 review agreed that "a majority of the studies conclude 

that desegregation has positive effects on black achievement." Id. 

A 1978 review found that "a substantial number suggested positive 

outcomes." Id. 

  

  
 



      

- 25 = 

Schofield reports that in 1978 reviewers began using 

statistical methods to measure quantitatively the impact of 

desegregation by combining the results of separate studies. In 

general, these analyses confirmed the positive effect from 

desegregation and one review argued that the studies had 

underestimated the real potential of desegregation because they 

included students who had transferred from segregated schools to 

desegregated systems." Dr. Schofield found this argument 

persuasive.? 

Dr. Schofield noted that the researchers had treated 

mathematics achievement separate from reading achievement. While 

the results in mathematics were either positive or neutral, "[a]ll 

of the panelists who dealt with the issue agreed that reading gains 

occurred.” Pls’ Ex. 58 at 1ll. 

  

3 One of the authors of this last review, Dr. Robert Crain, 
one of plaintiffs’ witnesses and an expert in research methods, is 
uniformly respected for his care in analysis. The defendants’ 
experts agreed that Dr. Crain’s methods are first rate. Dr. Armor 
testified that he thought "Dr. Crain’s work has been of a high order 
of methodological clarity, or methodological standards." Armor I 
at 99. Dr. Rossell "agreed that "Dr. Robert Crain does 
scientifically valid research." Rossell II at 82. Dr. Rossell also 
indicated that Dr. Crain was her dissertation advisor, that they had 
co-authored a book together and that he was a contributor to the 
book she co-edited, The Consequences of School Desegregation. 
Rossell I at 11. 

9 w[Dr.] Crain’s paper raises the very real possibility that 
the panel has somewhat underestimated the academic impact of 
desegregation. This caveat should be kept in mind as I proceed next 
to summarize the results of the panel’s work." Pls’ Ex. 58 at 10. 

  
 



  
    

The Schofield Report thus put the defendants on notice that 

reading would be positively affected and that there was statistical 

evidence that mathematics would be positively affected. 

While it is true that there is not a significant body of 

literature on the effect of desegregation on Hispanic achievement, 

Schofield points out that the research which exists "is consistent 

with the information on its impact on black achievement. Results 

appear to be neutral or positive." Pls’ Ex. at 14. 

The defendants also seek to minimize the results of Dr. 

Crain’s analysis of Project Concern, which is Hartford specific. 

Dr. Crain presented two analyses comparing educational outcomes for 

Project Concern students and relevant control groups. He found 

statistically significant positive results for male Project Concern 

students with respect to college retention rates and with respect 

to high school drop out rates. Table 2 of Pls’ Ex. 386 (at page 

14). controlling for self-selection bias and for socioeconomic 

status, he still found that the differences "are large enough to 

suggest that desegregation has important educational effects." Id. 

at 66. Even using "the most rigorous and conservative approach," 

Crain at 116, controlling for family background, there is an average 

educational attainment difference of 0.4 years, which is 

statistically significant.® Id. at 117. 

  

2X this did not give a complete picture of the difference: 

[T]he ones from Project Concern were likely to 
still be in college, more than the control group 

  

  
 



      

- 7 

Dr. Crain also analyzed seven other later-life outcomes, 

both with and without family background controls. "[T]he results 

when the family background and second grade test scores are 

controlled show a pattern which 1s very similar to that obtained 

before the controls are introduced." 

In an attempt to rebut plaintiffs’ evidence, the defendants 

rely on a combination of distortions and the inadequate data set 

used by Dr. Armor.Z 

  

kids were. Which means that if we waited another 
year or two these educational attainment 
differences would get larger. 

Crain at 117. 

x Separating out males and females, he found one or more 
significant effects in the following categories: 

O Male perception of college discrimination 
O Male contact with whites 
O Female childbearing before age 18 
O Female househunting in predominately white neighborhoods 
O Female complaints of few friends in college 

In addition, although male police/violence was just below 
significance, "the weight of the evidence is probably in favor of 
an effect." Pls’ Ex. 386, p. 82. 

Z pr. Armor spent much time testifying about the individual 
effect of poverty, but he simply did not have individual data to do 
his studies. As Dr. Crain pointed out in response to Dr. Armor’s 
assertions: | 

"I wouldn’t base my study of the effects of racially 
segregation on a cross-sectional study of six towns.... 
[YlJou know, ([Dr. Armor’s] paper’s not publishable, I 
mean, no journal would accept this. The work isn’t good 
enough. And mostly because the data set’s not good 
enough. It’s not the kind of data set you’d bother to do 
this with."   
 



  

    

    

- 28 =- 

IV. DEFENDANTS’ EFFORTS HAVE BEEN DISMAL IN LIGHT OF THE 
DISPARITIES WHICH ARE WORSENING. 

The defendants recite a litany of events as supposed evidence 

of Connecticut’s historical commitment to education. (Defs’ Br. pp. 

7-11) In reviewing each of these, it becomes all the more 

indefensible that, given our State’s renowned interest in educating 

our young, the defendants have perpetuated a system of inequality 

for the most vulnerable among us. While the defendants attempt to 

resurrect a glimmer of hope that circumstances are improving, Defs’ 

Br. pp. 91-92, 117-119, the facts and statistics unfortunately belie 

their arguments. Instead of the plight of the students in Hartford 

becoming better, it is sadly and inexcusably worsening. 

A. Socio-Economic Conditions Are Worsening 

Examination of defendants’ own data supports plaintiffs’ 

proposition that the socio-economic conditions for Hartford's 

children are degenerating. Hartford found itself last in comparison 

to the twenty-one surrounding communities in 1980 on eve single 

socio-economic indicator, and it remained in last place ten years 

later in 1990. (Rindone, p.110; Def. Ex. 8.1 and 8.2) Close 

scrutiny of these documents shows that in all six areas the gap 

between Hartford and the suburbs has actually widened.? 

  

Crain IX at 73. 

BZ gee Rindone at 111; While median family income in the 
suburbs has more than doubled, Hartford’s has risen only $10,000. 
Rindone at 120. In fact, the median income of every suburb except 
East Hartford and Windsor Locks has more than doubled. See Defs’ 
Exs. 8.1 & 8.2. 

  

  
 



    

While the percent of families below the poverty level decreased in 

seventeen of the twenty-one suburban towns, it not only increased 

in Hartford, but the increased percentage differential was greater 

than in all of the other towns. Similarly, Hartford’s median income 

grew at a slower rate than any of the suburban towns’ median 

incomes. The poor are getting poorer in comparison to the other 

twenty-one towns, Rindone, p. 121, placing even greater burdens upon 

the schools to deal with the problems. 

The racial isolation of the Hartford schools also continues 

to increase, and shows no signs of reversing. Although a few 

suburbs have seen increases in minority population over the past ten 

years,” this development does not affect the increasing racial 

isolation of Hartford students. Moreover, the wast majority of 

suburban towns remain segregated. See Pls’ Exs. 126, 130. 

B. Conditions in the Schools are Worsening 
  

Not only are children in Hartford falling victim to 

worsening socio-economic conditions and increasing racial isolation, 

they are being subjected to deteriorating conditions in their 

schools. This crisis has been exacerbated, even since plaintiffs 

  

Defendants grossly distort the evidence in regard to the 
percentage gain in those attaining a high school diploma. Defs’ Br. 
p. 7 n. 3. While the 1990 data show only a slight discrepancy in 
percentage gain between Hartford and the suburbs, (4.2% vs. 5.8%), 
there is still an overall 25.8% differential among the two 
populations. Defs’ Exs. 8.1 and 8.2. 

# Most suburban towns have had insignificant gains in Black 
and Latino population. See Pls’ Exs. 85, 127, 138; Steahr at 99- 
101.    



  

    

    

filed this case. While Defendants concede in their brief that 

Hartford "has some problems," p. 84, what is particularly telling 

in the presentation of their case is the total absence of any 

evidence refuting the moving testimony of the many Hartford 

administrators and teachers called by the plaintiffs. Indeed, 

defendants offered no Hartford school personnel or other witnesses 

to refute the touching stories presented by plaintiffs’ witnesses. 

Defendants rely most heavily upon expenditure 

comparisons to bolster their claim that Hartford offers "an 

educational program which is comparable to and in some ways better 

than that being offered in other school districts in the area.” 

(Defs. Br. p. 84) But as Dr. Natriello so eloquently stated in 

summarily dismissing this superficial analysis, one "must look 

beyond some of the surface level aggregate data," and "move down to 

the program level." (Natriello p. 132) In doing so, one finds that 

in every category which reflects the important programmatic 

resources, i.e. textbooks and instructional supplies, library books 

and periodicals, equipment, and plant operation, "the difference 

between the average statewide expenditures and the average Hartford 

expenditures is substantial." Pls’ Ex. 163, p. 79. 

Significantly, defendants concede that Hartford’s spending 

on crucial items is "almost the lowest of any district in the 

state," (Defs. Br. p. 101). They also do not, because they cannot, 

refute plaintiffs’ evidence which showed that Hartford students are 

attending schools where there are not enough pencils, paper, 

  

  
 



      

textbooks, library materials, reading consultants, guidance 

counselors, nurses, social workers, psychologists, field trips, 

science equipment, computers, advanced placement courses, etc. (See 

Pls’ Post-Trial Br. pp. 28-42.) Instead, they use an argument of 

local control as a scapegoat for state responsibility. This 

analysis is flawed in three respects. First, in deciding which 

programs to preserve and which to cut, Hartford officials have been 

merely exercising forced choices. Given the overwhelming needs 

which the students bring to the schoolhouse door, the administration 

has been compelled to choose the least among all evils. See 

generally Testimony of Mary Wilson, Assistant Director of Curriculum 

and Staff Development, pp. 9-23.” Thus, the resulting disparities 

are a clear result of local conditions, not local decision-making. 

Principal Freddie Morris answered for his peers when asked: 

Q. Do you have the resources to meet the academic needs of 
your students? 

A. Absolutely not. 

Morris at 141. See also Senteio at 26. 

Second, defendants ignore the fact that the Hartford school 

system has been forced to spend a disproportionate share of its 

resources on social workers, guidance counselors, psychologists, 

nurses, security officers (Senteio p. 19), and programs made 

  

¥ cuts have come in the wake of reduced state funding in the 

amount of $600,000 (Kennelly at 63). See Pls’ Ex. 423. While the 
Hartford administrators asked for an additional 90 positions, they 
received a cut of 108.7 positions (Kennelly at 65). 

  

  
 



      

necessary by the special needs of Hartford students.” It also 

spends a tremendous amount on bilingual education and special 

education transportation. Id. at 20. When looking at the regular 

program expenditure per pupil, Hartford "fell down" to a rank of "a 

hundred and thirty-third" (Kennelly at 107). 

Third, a related problem is municipal overburden. Hartford 

is forced to spend a disproportionate amount on fire and police 

protection and other municipal services, straining local tax 

revenues. See Defs’ Ex. 6.3, pp. 9, 72-74, 79. 

Defendants next devote five pages of their brief arguing 

that deteriorating conditions at Hartford’s physical plants are 

primarily isolated at McDonough School and will be addressed with 

the new bonding package passed by Hartford taxpayers. (Defs’ Br. 

pp. 104-108) This argument ignores the many deficiencies in 

buildings other than McDonough referenced throughout the trial and 

in documents introduced by defendants. See Pls’ Ex. 153, pp. 5-11, 

"Hartford Public Schools Space Utilization Study 1991-2001," Defs’ 

Ex. 2.24, 2.27; Calvert p. 83-85. It also ignores the fact that the 

bonding package addresses only one phase of Hartford’s serious 

building needs. Haig at 62. 

  

% The fact that 18% of the population is special education 
places "an inordinate burden on the school in order to address those 
youngsters, and the services those youngsters need in order to move 
the youngsters from a special education program into a mainstream 
program." Haig at 67. 

  

  
 



      

Defendants also contend that the Hartford staff and their 

suburban counterparts are equally qualified. (Defs’ Br. pp. 89-93) 

Plaintiffs never throughout the trial suggested nor meant to suggest 

that Hartford’s teachers were not dedicated to their work. Dr. 

Natriello’s testimony in regard to quality and quantity of staff was 

elicited to show that given the overwhelming number of problems 

students bring into the classroom, the staffing composition is 

insufficient.” | 

Lastly, defendants tout a selected number of programs as 

evidence that Hartford offers a "unique" program sufficient to meet 

the educational needs of its students. (Defs’ Br., Pp. 953-97) 

careful examination of each of these programs, however, demonstrates 

that they affect only a very small proportion of the total numbers 

within the Hartford system, and that Hartford has been consistently 

8 
unable to expand or sustain such programs.? That defendants concede 

  

7 Hartford has 1.26% fewer general elementary teachers and has 
4% fewer contact specialist teachers than the statewide average. 
(Natriello at 103) Substantially fewer teachers have masters 
degrees putting them in less of a position to "address a variety of 
student needs and learning problems." (Natriello at 105-106) The 
number of first year teachers is twice the size of the statewide 
average (Natriello at 106), leaving the most inexperienced group of 
teachers to confront "the most challenging groups of students in the 
Connecticut public school system." (Natriello at 107) 

94 of defendants’ brief is present in only seven of thirty-three 
schools, and cannot be expanded due to staffing cuts and other 
fiscal constraints. Haig at 63-64. The preschool programs are 
available for only 600 out of an eligible pool of 2,300. Slavin at 
36. The Family Resource Center (Defs’ Br. p. 96) is established in 
only one school in Hartford, and is "severely strapped" because of 
state funding. (Negron at 81.) Hartford’s bilingual program (which 

» ee Wilson at 6-19. The Comer program referred to on p. 

  

  
 



  
        

"these programs are models that might be expanded to other schools 

serving large numbers of disadvantaged children as more funds for 

these kinds of programs become available," (Defs’ Br. p. 96), is 

precisely the point. Because of the failure of the state to 

implement such educational enhancements, in the face of knowledge 

about both the glaring disparities and the success of such programs, 

(Slavin at 37-38), Hartford students’ access to equal educational 

opportunities has remained elusive. 

C. Academic Performance is Worsening 

Defendants attempt to refute plaintiffs’ reliance on test 

scores by arguing, first, that Hartford students are "holding their 

own" in relation to other students, Defs’ Br., p. 117, and 

alternatively, that test scores are not an adequate measure of 

quality education. Defs’ Br. pp. 64-60. Defendants are clearly 

wrong on both counts. 

Perhaps the most glaring example of the continuing failure 

of the Hartford public schools and of the need for immediate court 

intervention is the widening of the gap in student performance. 

Defendants’ assertion that the results of the MAT show that "annual 

gains are being made," (Defs. Br. p. 117) is patently false. In 

fact, Defs. Ex. 13.10 shows that Hartford students are "falling 

farther and farther behind grade level" (Nearine, p. 137) in all 

  

is not now found in most suburban districts for the obvious reason) 
is flawed in numerous respects. Pls’ Post-Trial Br. pp. 36-38. The 
Classical Magnet program at Quirk (Defs’ Br. p. 97) includes only 
115 students of 1,417 (see Calvert at 110-111). 

  

  
 



    

three areas measured by the MAT as they progress from second to 

tenth grade. (Nearine, pp. 136-37). So too is their claim that 

"the gap in CMT performance between Hartford and the suburbs has not 

been increasing." (Defs’ Brief p. 119) As the attached exhibits 

  

¥» pr. Nearine’s statement was made in reference to MAT scores 
at a particular grade level from one year to the next -- not as 
students progress from grade to grade. Examining Defs. Ex. 13.11, 
which traces the progress of Hartford students who are in the same 
school for two consecutive administrations of the MAT, Dr. Nearine 
agreed that, in a single year, Hartford students fell further behind 
grade level in reading in seven of the eight grade levels studied. 
(Nearine, pp. 139-40). Defs. Ex. 13.11 shows similar results in 
mathematics (five of eight grades) and language (six of the eight 
grades). 

The NCE scores from the MATs reveal a similar picture. Tables 
1, 3, and 5 of Defs. Ex. 2.34 show that in each of the years from 
1989 to 1992, Hartford tenth graders had lower NCE results than 
Hartford first graders in each of the three areas tested. In the 
language area, the difference between the first grade NCE and the 
tenth grade NCE in 1992 was 18.8 points. The overall school system 
average NCE scores were lower in 1992 than they were in 1989 in all 
three categories tested. 

Defendants’ reliance on Defs. Exs. 13.13 and 13.14 is also 
misplaced. Dr. Nearine acknowledged that the Hartford 1991 MAT NCE 
scores were lower than the 1990 scores recorded in Exs. 13.13 and 
13.14 (Nearine, p. 146). In fact, the 1992 MAT NCE scores for 
second and ninth graders were even lower than the 1991 scores (see 
Defs. Ex. 2.34, Table 1). Defs. Exs. 13.13 and 13.14 are also of 
questionable accuracy. Ex. 13.13 reports an average Hartford second 
grade reading NCE of 46, whereas according to Defs. Ex. 2.34, Table 
1, that average was actually 44.7. Similarly, Ex. 13.14 reports an 
average Hartford ninth grade reading NCE of 45, whereas Ex. 2.34, 
Table 1 reports an average of 43.3. Even disregarding these 
problems, Dr. Nearine stated that it would be a "very fair" reading 
of Exs. 13.13 and 13.14 that "while there’s a somewhat comparable 
distribution between Hartford and the national norm in grade two, 
that there’s a real pattern of falling behind by the time you get 
to grade nine." (Nearine, p. 143)   

  

 



      

from Dr. Natriello depressingly indicate, the data from as recent 

as three months before the commencement of this trial show that 

Hartford students’ performance on the CMT in comparison to the state 

average actually declined from the previous year in the number of 

mathematics objectives mastered, (See attached Exhibit A, Fourth 

grade- Figure 1; attached Exhibit B, Sixth Grade- Figure 2;) and the 

number of language arts objectives mastered (Attached Exhibit C, 

Fourth Grade- Figure 7; attached Exhibit D, Sixth Grade- Figure 8). 

In comparison to the surrounding twenty-one districts, 

Hartford students scored the lowest average number of objectives 

mastered in both mathematics and language arts in all three grade 

levels (Attached Exhibits E-J, Figures 59-64). Hartford’s average 

numbers of mathematics objectives mastered were lower at all three 

grade levels in 1992-93 than they were three years before, in 1989- 

90.7% 

The most discouraging evidence of this continued pattern 

of failure is that which shows the increasing numbers of Hartford 

students, compared to last year, who cannot even meet the very basic 

remedial standards on the mastery test. When 72% of students in the 

  

¥ pr. Natriello’s report and testimony was based on 1991-1992 
CMT data. During the course of the trial, plaintiffs received 1992- 
93 CMT data. See Pls’ Ex. 512 a, b, c. The exhibits attached in 
the Appendix as Exhibits A-O merely update Dr. Natriello’s original 
charts on pp. 85, 87, 89, 97, 99, 101, 198-99, 201, 203-04, 206, 
251, 253-54 of his report with the 92-93 data already introduced at 
trial. 

31 For 1989-90 figures, see Pls’ Ex. 300, p. 70; Pls’ Ex. 301, 
p. 78; and Pls’ Ex. 302, p. 77. :   
 



      

- 3 

fourth grade (up from 64% the year before) 67% of sixth graders (up 

from 62%) and 57% of eighth graders (up from 55%) (see attached 

Exhibits K-M, Figures 95-97; Pls’ Ex. 163, pp. 251-54, Figures 95- 

97) are not able to reach the bare minimum levels of performance in 

reading, the state should be ashamed to make an argument that the 

circumstances are improving. Unless this Court intervenes, and 

relief is ordered quickly, generations of Hartford’s children will 

continue to fail in enormous proportions. 

Defendants’ alternative attack on mastery test data is that 

it cannot measure "educational quality" or be used to prove lack of 

a "minimally adequate education." (Defs’ Br., pp. 42, 65) In doing 

so, defendants confuse the legal standard with the factual proof 

necessary to support such legal claim. 

First, defendants’ position is clearly inconsistent with 

their own practice of making cross-district comparisons (see, e.q., 
  

Pls’ Exs. 56, 70). It is also inconsistent with former Commissioner 

Tirozzi’s admission that mastery test data is an essential document 

upon which to determine "the context of a quality education," and 

a "minimally adequate education." Pls’ Ex. 494, pp. 82; 86. See 

also Ferrandino Deposition, Pls’ Ex. 494, p. 37 (mastery tests are 

the "best measure" of student achievement); Mannix Deposition, Pls’ 

  

3 Percentages of Hartford students not meeting remedial 
standards have also increased since the previous year in fourth 
grade mathematics and holistic writing and sixth grade mathematics. 
Attached exhibits K-L, Figures 95-96; Pls. Ex. 163, pp. 251-253, 
Figures 95-96. 

  

  
 



      

Ex. 495, p. 17 ("Consensus on the board; that it’s a valuable tool 

in judging the outputs of the school systems."). 

Moreover, the legislative history of the program also 

indicates that one of the anticipated uses of the test was to permit 

such comparisons and to spur accountability among districts and 

individual schools. Upon Connecticut’s initial effort to undertake 

a statewide testing program in 1978, Representative Orcutt indicated 

that one of its purposes was "to provide data for the State Board 

of Education and the State Department of Education concerning the 

achievement of basic skills in schools in Connecticut and to 

identify the relative needs of the different school districts with 

respect to this problem." 21 House Procs., part 7, April 21, 1978 

at 2963.% 

In 1984, when P.A. 84-293 expanded the program to its 

current scope, Former Commissioner Tirozzi acknowledged that the 

testing would be used to "give the state a type of instrument that 

it can use in a very positive way to truly assess the educational 

condition of the state and in turn, to divert our resources 

accordingly." Joint Committee on Education, 1984 Session, p. 12 

(February 27, 1984). Deputy Commissioner Aronson was even more 

explicit: 

  

33 One member of the State Board of Education, at hearings on 
the 1978 bill, noted that proficiency testing "can be a starting 
point for a broader assessment of educational equity and quality." 
Joint Committee on Education, 1978 session, p. 479, March 22, 1978. 

  

  

 



      

We are mandated by law, we are required by Constitution, 
to see to it that children have appropriate, equal access 
to suitable programs of educational experience.... With 
the enormous amount of state money that is going into the 
educational program in this state, it is fair for us to 
assess the success of our progran. A real assessment 
cannot be a snapshot at one grade as we have currently in 
the night grade. A true assessment will require looking 
at more than one grade.... 

Joint Committee on Education, 1984 Session, p. 145 (February 29, 

1984). See also 27 House Procs., part 8, April 25, 1984, at 2966, 

2944. Again in 1990, when the program was expanded to 10th grade, 

the role of the test in evaluating educational performance was 

generally acknowledged. See Joint Committee on Education, 1990 

Session, pp. 814, 815-16, 838-39 (March 16, 1990). 

Achievement test scores have also been used as an 

assessment of education quality in other educational equity and 

school desegregation cases. In Abbott v. Burke, 595 A.2d 359 (N.J. 

1990), the New Jersey Supreme Court acknowledged widespread poor 

performance on the state’s high school proficiency test as evidence 

of "inadequate performance" of districts. Id. at 400. The court 

also rejected the state’s argument that test comparisons were to be 

used "solely for the purpose of curriculum planning and evaluation." 

Id. at 385 n.16. Achievement test scores were also used in West 

Virginia as a basis for finding that education in poorer districts 

was not "thorough and efficient." Pauley v. Kelly, 255 S.E. 2d 859, 

862 n.4, 878 (W.Va. 1979). See also Rose Vv. Council for Better 

Education, supra at 22, 23; Alabama Coalition for Equity, Inc. v. 

Hunt, supra, slip op. at 41, 62. In the Kansas City desegregation 

  

  
 



      

case, the federal court accepted achievement test scores 

deficiencies as evidence of systematic educational inadequacy: 

Segregation has caused a system wide reduction in student 
achievement in the schools of the KCMSD.... Test results 
from the Iowa Test of Basic Skills in grades 1 through 6 
show that there are only a few elementary schools of the 
50 in the KCMSD which are presently performing at or 
above the national norm in reading and mathematics. 

Jenkins v. Missouri, 639 F.Supp. 19, 24 (W.D. Mo. 1985). 

D. State’s Response To The Issues Continues To Be Inadequate. 

Defendants point to four pieces of legislation which deal 

with school equity as support for their proposition that they are 

adequately addressing the problems. Despite defendants’ 

protestations to the contrary, none of these legislative actions, 

taken alone or in concert, in any way diminish plaintiffs’ claims. 

First, defendants point to the existing school financing 

scheme as evidence that they are eliminating the disparities. 

(Defs’ Br. p. 76) This Court in its decision on defendants’ Motion 

for Summary Judgment recognized what defendants repeatedly refuse 

to acknowledge -- that this case raises "an issue that was not 

decided in Horton v. Meskill, 172 Conn. 615, namely, whether the 

state’s constitutional obligation under its Education Clause imposes 

‘a requirement of a specific substantive level of education’ in a 

particular area of the state." p. 6 (emphasis added). The testimony 

at trial also made obvious that even if the state has given 

extensive amounts of money to the Hartford school system, and even 

if such amounts are equal to that received by suburban counterparts, 

  

  

 



    

they have not been sufficient to equalize educational resources or 

student outcomes. Sheff begins where Horton leaves off. While the 

former began the effort to address the financial inequities, the 

latter addresses the programmatic and achievement inequalities, in 

the context of racial and economic isolation. 

Second, they claim that the racial imbalance law is 

significant in addressing the problems. (Defs’ Br. pp. 4, 72) But 

witness after witness exposed the flaws in this argument. See, 

e.qg., Gordon II, p. 49. Even defendants conceded that while the law 

may successfully address racial balance in certain districts, it is 

ludicrous to argue it can be used successfully in cities such as 

Hartford where the minority population is so high. Ferrandino 

Deposition, Pls’ Ex. 493, pp. 108-09; Mannix Deposition, Pls’ Ex. 

495, pp. 31-32; Tirozzi Deposition, Pls’ Ex. 494, pp. 25. Former 

Commissioner Tirozzi went so far as to concede that the Racial 

Balance Act itself has been responsible, "to some extent," for 

increased racial segregation among school districts. Pls’ Ex. 494, 

p. 144. 

Third, defendants attempt to utilize the interdistrict 

grant legislation as evidence that their efforts are making a 

substantial difference. {Defs’ Br. pp. 73) They do so in the 

absence of any citations to testimony, because the three witnesses 

who are most familiar with the program =-- Dr. Williams, its 

administrator, Dr. Allison, the Director of CREC, and Mary Carroll, 

Director of Project Concern, testified to exactly the opposite   
  

 



  

  

    

conclusion. See Williams, pp. 94,-97, 119, 121; Allison, pp. 29-30, 

36-54; Carroll, pp. 17-19, 21-22, 30, 41-42. See also Plaintiffs’ 
  

Post-trial Brief, pp. 81-85. 

Lastly, defendants refer to the recent legislation, Public 

Act 93-263, An Act Improving Educational Quality and Diversity, to 

support their claim that the legislature is affirmatively reacting 

to the problems raised by this case. (Defs’ Br. pp. 4, 73) Despite 

Governor Weicker'’s clarion call, however, the legislature’s latest 

efforts can only be labeled as feeble.* That the legislative branch 

  

¥ The flaws in this bill are obvious. The planning process is 
so protracted that funding applications for interdistrict 
construction or plans can not even be entertained, let alone funded, 
by the SBOE until 1995. More importantly, even if a regional forum 
agrees to plan, there are no mandates requiring implementation of 
a plan at the conclusion of the process. Not only does any 
municipality within the region retain the power to reject a plan, 
and escape any sanctions, but a plan, even if approved, is funded 
only after a competitive grant process. As one of the drafters of 
the legislation emphasized on the day of the vote, any town can 
refuse to participate in the plan. (House Proceedings, May 27, 
1993, Rep. Wyman, pp. 349, 351) 

At the present time, there is no commitment of state monies to 
fund anything. Id. p. 309. Even if there was, because of limited 
funds, the state will be forced to prioritize the most needy 
projects. (Housing Proceedings, May 27, 1993, pp. 307-308) There 
are no provisions requiring racial goals or goals relating to 
deconcentration of poverty within a school, school system, or 
region. There are no provisions requiring housing integration 
measures, and no guaranteed funding for educational enhancements for 
the city schools. The wholly voluntary nature of the planning 
process coupled with the lack of guarantees as to implementation 
renders this legislation meaningless for those school children 
presently suffering in Hartford. As Representative Wollenberg 
stated: 

...don’t be concerned because this is a plan to do a plan 
to do a plan and nothing is going to happen for a couple 
of years. So, I hope the press isn’t going to write 

  

  
 



  

  

  

I     

- 43 - 

of government once again has missed the opportunity to legislate a 

meaningful remedy,* makes all the more compelling the necessity for 

the judicial branch to protect the children of Hartford. Without 

judicial intervention at this critical juncture, these children have 

nowhere else to turn. 

Vv. THIS COURT HAS THE POWER TO ORDER A REMEDY. 

There can be no doubt that this Court has the power to grant 

the remedy requested by plaintiffs. In Marbury v. Madison, 5 U.S. 

(1 Cranch) 137, 177 (1803), Chief Justice Marshall established the 

uncontroverted proposition that "it is emphatically the province and 

duty of the judicial department to say what the law is." Courts may 

not abdicate their judicial responsibility to enforce constitutional 

  

tomorrow morning that we have done anything tonight, 
because we haven’t. It is a long time between now and 
anything happening in the classroom or to our children. 

We are going to plan and then we are going to plan. So, 
there is no fear that we are going to disrupt anything 
that is happening right away. I wish there were.... 
People have spent hours and hours. But we didn’t deal 
with it. Politically, we are going to tell our 
constituents, desegregation plan passes. It is phony. 
It is phony. We are fooling them, again. 

Another sham on the people of the State of Connecticut. 
We haven’t done anything. We haven’t made the tough 
decisions. 

House Proceedings, pp. 622-623. 

33 An amendment to Public Act 93-263 was introduced on behalf 
of the Black and Puerto Rican caucus of the legislature which would 
have addressed some of the concerns in footnote 34, supra, but the 
amendment was subsequently withdrawn. See LCO No. 8193 Amendment 
by Rep. Hyslop. 

  

  
 



      

mandates merely because remedial solutions are complex, far reaching 

or time-consuming. See, e.g., I.N.S. v. Chadha, 462 U.S. 919 (1983) 

(declaring Congressional veto provision of statute 

unconstitutional); Gideon v. Wainwright, 372 U.S. 335 (1963) 

(applying Sixth Amendment right to counsel to the states); Baker v. 

Carr, 369 U.S. 186 (1962) (interpreting U.S. Constitution to require 

"one person one vote" notwithstanding implications for legislative 

redistricting). 

Despite the defendants’ efforts to misstate the remedy 

plaintiffs seek, this court clearly has power to grant a request for 

injunctive as well as declaratory relief. Plaintiffs do not seek 

a writ of mandamus as defendants erroneously argue. (Defs’ Br. pp. 

149-153) They merely ask the court to exercise the equitable powers 

that are the unique province of the judicial department. See Conn. 

Const. art. II, as amended. Equitable remedies are particularly 

well suited to educational settings as the United States Supreme 

Court has recognized since the earliest days of school 

desegregation. "Traditionally, equity has been characterized by a 

practical flexibility in shaping its remedies and by a facility for 

adjusting and reconciling public and private needs. Brown v. Board 

of Education, 349 U.S. 294, 300 (1955) (Brown II). Defendants have 

not cited a single authority which suggests that an exercise of 

these powers is in any way equivalent to a mandamus. They rely 

instead on d o duc. v. Town of Ellington, 151 Conn. 1, 193 

A.2d. 466 (1963) and Baston v. Ricci, 174 Conn. 522, 391 A.2d 161 

  

  
 



      

(1978) to argue that the strict requirements for a mandamus should 

be applied to plaintiffs’ request for injunctive relief. Neither 

¢ Plaintiffs are not seeking to compel of these cases is applicable.’ 

a public official to perform a ministerial duty. Nor have 

plaintiffs named the legislature as a defendant.” Rather, the 

plaintiffs are asking the court to enjoin actions of the defendants 

that deny them rights guaranteed by our constitution, and to take 

affirmative measures to safeguard those rights. 

This request is well within the scope of equitable powers that 

courts have traditionally exercised. For example, federal courts 

have long recognized the broad scope of their authority to craft 

remedies that enforce the mandate of the federal Constitution. 

"Once a right and a violation has been shown, the scope of a 

district court’s power to remedy past wrongs is broad, for breadth 

  

and flexibility are inherent in equitable remedies." Swann Vv. 

  

3 In Town of Ellington, the court let stand an injunction 
ordering the town to transfer funds to the school board, holding the 
town had no discretion to place the funds elsewhere. In Baston, the 
court did not address the plaintiff’s request for a mandamus or 
mandatory injunction requiring the defendant to allocate funds to 
reinstate their jobs, because it found that the lower court had 
correctly ruled that there was no violation of state law. Neither 
case supports the proposition that plaintiffs’ request for 
injunctive relief should be considered a form of mandamus. 

3 It is for this reason that defendants’ reliance on Rose v. 
council for Better Educ., 790 S.W.2d 186 (Ky. 1989), is misplaced. 
(Defs’ Br. pp. 16, n.10 and 45, n. 18) The trial court ordered the 
Speaker of the House and President of the Senate to report on its 
progress toward remedying the constitutional violations. In this 
case, however, plaintiffs do not seek to impose any such reporting 
requirements on the Connecticut General Assembly. 

  

  

  

 



      

- 45 - 

Ccharlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 15 (1971). Accord 
  

United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1236 (24 Cir. 
  

1987), cert. denied 486 U.S. 1055 (1988). Any doubt that the 

Connecticut courts have similar power to enforce the state 

constitution is preposterous in light of Horton ITI, which endorsed 
  

the use of equitable remedies and specifically referred to "racial 

discrimination in education." 195 Conn. at 47. This accords with 

the general principle that equity may be used "to provide effective 

convenient, direct, and complete relief." Monroe Vv. widdlebury 

Conservation Comm’n, 187 Conn. 476, 482, 447 A.2d 1 (1982). 

Defendants’ argument that a court-ordered remedy would intrude 

upon the functioning of other branches of the government fails to 

take into account the balancing of equities which is an inherent 

component of any request for injunctive relief. In deciding whether 

to grant relief, courts must carefully weigh the competing interests 

of the parties. See Berin v. Olson, 183 Conn. 337, 343, 439 A.2d 

357 (1981). Where fundamental constitutional rights are at stake, 

the Connecticut Supreme Court has directed that "equitable 

principles require a balance of three factors: the nature and scope 

of the constitutional violation, the plaintiff’s right to meaningful 

relief, and the interests of state and local authorities in managing 

their own affairs.™ Horton III, 195 Conn. at 47 (citing Milliken 
  

v. Bradley, 433 U.S. 267, 279-81). When the balance of equities 

favors injunctive relief, courts in this state have not hesitated 

to impose obligations on defendants. For example, in Dukes V. 
  

  

  
 



    

Durante, 192 Conn. 207, 471 A.2d 1368 (1984), the court upheld, with 

some modifications, a mandatory injunction requiring a city agency 

to provide temporary shelter and permanent housing to persons 

displaced from their homes when the city condemned their buildings. 

Given the severity of the constitutional deprivation at stake here 

and the legislature’s persistent failure to remedy the situation, 

the balance of equities clearly favors the plaintiffs. 

VI. A PLANNING PROCESS WITH SPECIFIC MANDATES CAN BE SUCCESSFUL. 

In an area as sensitive as this litigation, plaintiffs have 

always deemed it essential to approach any discussion of remedy in 

an extremely cautious, calm, and rational manner. Indeed, that is 

precisely one of the reasons that plaintiffs have called for a 

planning process to thoroughly and carefully craft the best method 

to achieve the equity goals, rather than foisting a detailed plan 

upon the court at the present time. 

Defendants parade a list of horribles before this Court as if 

the plaintiffs were asking for a judicial coup d’etat (Defs’ Br. pp. 

148-157). Their hyperbole that plaintiffs want the court to take 

over all issues of school finance (Defs’ Br. p. 16) or that the 

Court will become a superintendent of the region (Defs’ Br. p. 15) 

both feeds into the frenzy which plaintiffs have painstakingly 

avoided and grossly misrepresents plaintiffs’ position. 

The plaintiffs have put on evidence concerning remedy because 

of the language in Horton III that right and remedy should be   
  

 



      

considered jointly. 195 Conn. at 46-47. But that does not mean 

that the plaintiffs are required to ask the Court to commit itself 

to any specific remedial "plan" at this time. That the Court 

considers right and remedy together does not mean that the ultimate 

detailed plan has to be determined when the initial right is 

determined. ” 

It should be remembered that Horton III concerned a proceeding 

occurring after the initial appellate decision setting the governing 

principles had already been decided (Horton I). Thus Horton III was 

concerned with judging the constitutionality of the legislative 

response to the initial holding that the funding system was 

unconstitutional. At the Horton III stage of the proceedings, it 

was appropriate for the trial court to be weighing specific 

alternatives before ruling on the legislative response. 

In the present case, in compliance with Horton III the 
  

plaintiffs have produced a large amount of evidence concerning the 

feasibility of injunctive relief consistent with the nature and 

scope of the violation, the plaintiffs’ right to relief, and the 

interests of state and local authorities. 

The plaintiffs urge this Court to order a planning process to 

address the specific components of a remedy. This method of 

devising a remedy in fact is quite common in desegregation cases. 

See Gordon III, pp. 24-29; Orfield I, pp. 44-47. Past experiences 

with interdistrict school desegregation demonstrate that such a 

  

  
 



      

- 49 - 

planning process can successfully define the interests of many 

parties and lead to successful results. 

Some courts have chosen to appoint a panel of experts to design 

a desegregation plan.?® Others courts have ordered the submission 

of plans by both parties at the outset, with a remedial hearing to 

follow.? Still others require defendants, in the first instance, 

to devise a specific and detailed plan within a short period of 

time.® As an alternative to requiring the submission of plans by 

  

33 In Bradley v. Milliken, 345 F. Supp. 914, 916-17 (E.D. Mich. 
1972), an expert panel was appointed after plans submitted by the 
parties proved to be inadequate. Members of the panel included 
local education administrators, outside experts and representatives 
of the parties. See also Board of Education v. Dowell, 375 F.2d 158 
(10th Cir. 1967) (upholding district court’s order to implement 
desegregation plan based on report of expert panel). Expert panels 
have also been appointed to monitor implementation of desegregation 
plans. See Pls’ Ex. 455. Note that the citations in this footnote 
and those in footnotes 39-41 omit subsequent histories which are not 
relevant for the purposes for which they are cited herein. 

¥ see Armstrong v. O’Connell, 463 F. Supp. 1295, 1310 (E.D. 
Wis. 1979) (plaintiffs’ and defendants’ plans to be submitted within 
1 month; hearing within 2 months); Evans v. Buchanan, 379 F. Supp. 
1218, 1224 (D. Del. 1974); Bradley v. Milliken, 345 F. Supp. 914 
(E.D. Mich. 1972). See also Conley v. Lake Charles Sch. Bd, 303 F. 
Supp. 394, 399 (W.D. La. 1969). 

  

© gee Davis v. East Baton Rouge Parish Sch. Bd., 498 F. Supp. 
580, 588 (M.D. La. 1980) (45 days); Penick v. Columbus Bd. of Educ., 
429 F. Supp. 229, 267-68 (S.D. Ohio 1977) (90 days); Alvarado v. El 

istrict, 426 F. Supp. 575, 613-14 (W.D. 
Tex. 1976) (3 months) (detailed list of goals to be achieved by 
order); Quality Education for All Children, Inc. v. School Board, 
  

362 F. Supp. 985, 1002-03 (N.D. Ill. 1973) (6 months). 

  

  
 



      

- B50 ~ 

the parties, some courts have appointed a special master to design 

a plan. 

Whichever planning process the court orders, it is evident now 

upon conclusion of the trial that there is an obvious coalescence 

of remedial goals among the parties. Although defendants try to use 

scare tactics to ward off judicial intervention, their fears are 

exaggerated and unjustified, particularly in light of the 

defendants’ own statements and the testimony of Sefendants’ 

witnesses. 

Significantly, several of the defendants agree with plaintiffs 

that diffusion of racial segregation and poverty concentration is 

one of the primary goals to be accomplished. See, Pls’ Ex. 494, 

Tirozzi Dep., p. 55 ("Another part of this answer is in the whole 

issue of breaking down these huge pockets of poverty..."); Pls’ Ex. 

493, Ferrandino Dep., Pp. 139 ("[P]Jublic 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 diminution of the 

education afforded their majority schoolmates."). Defendants’ 

witnesses stated similar conclusions. ee Calvert pp. 62-63. 

  

4 See Hart v. Community School Board, 383 F. Supp. 699, 762-67 
(E.D.N.Y. 1974); Swann v. Charlotte-Mecklenburg Board of Education, 
306 F. Supp. 1291, 1313 (W.D.N.C. 1969); Reed v. Rhodes, 422 F. 
Supp. 708, 797 (N.D. Ohio 1976). See generally Aronow, "The Special 
Master in School Desegregation Cases: the Evolution of Roles in the 
Reformation of Public Institutions Through Litigation," 7 Hastings 
Constitutional law Quarterly 739 (1980).   
 



      

- 51 - 

Defendants also agree with plaintiffs regarding the need for 

a multi-district solution or regional school planning. See Pls’ Ex. 

493, Ferrandino Dep., pp. 85, 151, 165 ("I don’t believe that within 

the confines of the city of Hartford we can provide for both the 

quality and integrated learning environment without engaging 

communities outside of Hartford in that process.") ; Pls’ Ex. 494, 

Tirozzi Dep., p. 144 (requirement that students attend school in 

their own district contributes to segregated school patterns); Pls’ 

Ex. 323, Mannix Dep., pp. 32-33; Mannix Dep. p. 25 ("I don’t think 

[school district boundary lines] are sacrosanct...."). Former 

deputy commissioner of the Department of Education, Robert Margolin, 

concurred that restructuring school district boundary lines is 

appropriate. (Pls’ Ex. 506, p. 60) The Governor’s Commission on 

Quality and Integrated Education (hereinafter Governor’s Commission) 

also recognized the need for interdistrict solutions. (Pls’ Ex. 73, 

PP. 5). 

Defendants Ferrandino and Tirozzi both support controlled- 

choice plans. (Pls’ Ex. 493, p. 51; Pls’ Ex. 494, p. 38)... A 

subcommittee of the Governor’s Commission, in its report entitled 

"Critical Components of Integration Plans," advocated for two-way 

transfers, available at all grade levels. Pls’ Ex. 66g. 

To the extent that plaintiffs urge that housing patterns must 

be looked at as part of the remedy,* defendants concur. See Pls’ 

  

“ In federal cases, housing integration measures may be 
employed as an effective means of remedying school segregation, even 

  

  

  
 



      

Ex. 494, Tirozzi Dep., p. 34 ("[T)lhe issue really resides...in 

housing, housing patterns..."); Tirozzi Dep., pp. 14, 39-40, 49-50, 

135; Pls’ Ex. 493, Ferrandino Dep., p. 161 ("The net result of 

providing for integrated housing would be a more integrated 

educational system."); Pls’ Ex. 495, Mannix Dep., p. 22 ("[T}he 

solution is to...build scattered housing in the suburbs."). In his 

deposition, Commissioner Ferrandino expressed support for providing 

low income rental certificates for Project Concern families.’ (Pls’ 

Ex. 493 p. 161). The Governor’s Commission similarly stressed the 

need for housing initiatives to solve the problems of school 

segregation. Finding "a significant relationship between the 

concentration of minority students and the occurrence of publicly 

assisted housing" (Pls’ Ex. 73, p. 5), the Commission noted that 

"affordable housing in suburban and rural communities could increase 

the diversity of their student populations. In particular, 

affordable housing could help integrate schools in the outer suburbs 

and rural communities where interdistrict programs with urban 

schools now present long-distance transportation problems." Id. 

The need for integrated school construction has been 

43 
acknowledged by defendants,” see Pls’ Ex. 494, Tirozzi Dep., pp. 

159-60 ("The school funding formula and school construction...within 

  

absent any finding of housing segregation. See Hart v. Community 
School Board, 383 F.Supp. 699, 759-761 (E.D.N.Y. 1974). 

4 pefendants were aware of the cost savings from this for the 
past 4 years. See Pls’ Ex. 144.. 

  

  

 



  

   
   

  

    

    

a matter of a few years could have a dramatic impact. I would go 

so far as to say if those are not addressed, this whole problem will 

be further exacerbated because we’ll continue to build segregated 

schools and we’ll continue to fund districts for having segregated 

schools..."); Ferrandino Dep., pp. 42-44, as well as by former 

deputy commissioner Margolin (see Margolin Dep., p. 60). 

3 ve. 2 "necessity of including educational enhancements as an 

I aly rededy. as repeatedly Greed by plaintiffs, also 

has defendants’ concurrence. (Pls’ Ex. 493, Ferrandino Dep., p. 153 

("[I]ntegration...has to be dealt with within the framework of a 

quality program.")). Former deputy commissioner Margolin agreed 

that educational enhancements should be part of a desegregation 

plan. (Pls’ Ex. 506, p. 63). Specific educational enhancements 

cited with approval by Commissioner Ferrandino include family 

resource centers (Pls’ Ex. 493, p. 90), summer school programs (Id. 

at 112), and preschool for at-risk students (Id. at 124). Those 

recommended by the Governor’s Commission include summer school 

programs (Pls’ Ex. 73, p. 15), preschool programs (id. at 16, 20), 

school breakfast and lunch programs (id. at 20), and technological 

innovations such as computer networking, interactive television, and 

distance learning (id. at 18). 

There is also overwhelming consensus with Professor Orfield’s 

powerful statement that effective schools can make a real difference 

in the educational outcomes of children regardless of their 

socioeconomic background. (Orfield I, p. 138). See Pls’ Ex. 493, 

  

 



      

Ferrandino Dep., pp. 50-51, 131, 148; Pls’ Ex. 494, Tirozzi Dep., 

p. 91; Williams at 31, 83; Pls’ Ex. 506, p. 59; Pls’ Ex. 73, Finding 

#3, Pp. 11. 

Defendants appear to raise two specious arguments to 

plaintiffs’ call for a plan. First, defendants argue that 

programmatic enhancements are "too expensive" to implement, given 

the state’s financial constraints. But remedies to the kinds of 

constitutional violations raised in this case cannot be unduly 

limited by fiscal concerns. See Arthur v. Nyquist, 712 F.2d 809 (24 

cir. 1983); Milliken v. Bradley, 433 U.S. 267, 290 (1977). 

Second, they argue that "the courts were not successful in promoting 

diversity ...." (Defs’ Br., p. 141). They do so, despite their 

failure to challenge any of the successful school desegregation 

plans alluded to by plaintiffs in their brief. (See Pls’ Post-Trial 

Br. at 110, n.75). In an attempt to rebut the solid evidence of 

successful plans, the defendants refer to the decrease in the 

percentage of white students in the Boston public schools over two 

decades. In doing so, the defendants create a straw target. The 

original plan was not metropolitan in scope and was not listed by 

the plaintiffs as a successful school desegregation plan. See Pls’ 

Post-Trial Br., p. 110, n.75. Moreover, when the defendants proceed 

to narrowly focus on only one plan, i.e. Boston, that only one of 

plaintiffs’ witnesses described as successful, they do so out of 

context. However, they conveniently ignore any description of the 

local circumstances involving this plan such as the school 

  

  

 



      

- 55 =- 

districts’ legal liability, type of desegregation plan, level of 

court intervention or the districts’ progress towards attainment of 

the goals. 

Even more, the defendants attempt to totally distort the 

testimony of the plaintiffs’ school desegregation expert, Dr. 

Charles Willie of Harvard University. School desegregation plans 

frequently contain racial goals to measure the accomplishment of 

racial balance.¥ Dr. Willie testified that he ideally prefers a 

racial goal for schools within the district to consist of 1/2 to 2/3 

of the prevailing majority race and 1/3 to 1/2 of the numerical 

minority race be they white, black, Latino or other. (Willie 

1/13/93 at 22-23). Although Dr. Willie never testified about the 

means or timetable for achieving this goal, the defendants 

unilaterally create an inflammatory simulated condition of an 

immediate massive transfer of students by race in and out of 

districts to accomplish the racial balance under Dr. Willie’s ideal 

goals. (Defs’ Br. at Appendix 3, Tables.) In effect, the 

defendants substitute their fantasized recreation of a desegregation 

plan where none exists, in lieu of performing the standard cross- 

examination needed to understand the full meaning of the witness’ 

testimony. Although the plaintiffs presented eight components of 

  

4 Even the current Connecticut Racial Imbalance Act requires 
each school to substantially contain the same racial minority 
population within a certain variance percentage of the total racial 
minority population in the school district. Conn. Gen. Stat. §10- 
226Db. 

  

  
 



      

a school desegregation plan, which featured a regional approach with 

a combination of voluntary and mandatory back-ups, the defendants 

challenged none of these and indeed, acquiesced by silence in their 

post-trial brief, to the soundness of this well-utilized strategy. 

(Pls’ Post-Trial Br. at 112). 

VII. CONCLUSION 

If the nation had not implemented school desapbensbion plans 

after Brown, plaintiffs imagine that the aotintry would resenble the 

conditions of racial apartheid in South Africa to an Sven greater 

extent than currently exists in our urban areas. In criticizing the 

federal courts for retaining jurisdiction in school desegregation 

cases for decades, the defendants forget the history of state 

interposition and nullification of these court orders.¥ 

Thus, the test of successful school desegregation is not the length 

of the court-ordered supervision, but the decrease in racial 

isolation and the enhancement of educational opportunities for all 

students regardless of race and poverty. Hence, the remedy in this 

case must now concentrate on the planning process to achieve these 

goals. 

  

4 see U.S. v. Jefferson County, 372 F.2d 836 (5th Cir. 1966) 
aff’d on reh’g en banc and modified, 380 F.2d 385 (5th Cir. 1957). 
Jefferson is considered by many to be one of the most important 
school desegregation cases after Brown. The rich history of the 
role of the federal court judges in dismantling racial segregation 
is depicted by Jack Bass in "Unlikely Heroes," (Touchstone, New 
York, 1981). 

  

  

 



    
  

-“' BF Em 

As Jonathan Kozol has written, "government, of course, does not 

assign us to our homes, our summer camps, our doctors -- or to 

Exeter. It does assign us to our public schools.... Thus the 

state, by requiring attendance but refusing to require equity, 

effectively requires inequality. Compulsory inequity, perpetuated 

by state law, too frequently condemns our children to unequal 

lives.® Jonathan Kozol, Savage equalities: Child 

Schools, (Crown Publishers, 1991) at p. 56. 

  

  

 



  

- 58 = 

Respectfully Submitted, 

i ry h no 5 / tg nas 

John Brittain 
University of Connecticut 

School of Law 

65 Elizabeth Street 
Hartford, CT 06105 | 

Sand. AS Def Valle. 

Sandra Del Valle 
Ken Kimerling 
Puerto Rican Legal Defense 

and Education Fund 
99 Hudson Street 
New York, NY 10013 

  

  

Rove td Eris, 

Ronald L. Ellis i 
Elaine R. Jones : 
Marianne Engelman Lado 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street 

New York, NY 10013 

  
  

elo +ezh [oY]... 
  

Helen Hershkoff 
John A. Powell 

Adam Cohen 

American Civil Liberties 
Union Foundation 

132 West 43 Street 
New York, NY 10036       
 



    

4 

} 

F 54 / / 

TT —— 

  

Wesley W. Horton 
Kimberly A. Knox 
Moller, Horton & Rice 

90 Gillett Street 
Hartford, CT 06105 

  

Wil{ed Rodrigues, 
Wilfred Rodriguez’ 
Hispanic Advocacy Project 
Neighborhood Legal Services 
1229 Albany Avenue 
Raritford, CT 06112 

Mart Shona 
  

Martha Stone 

Connecticut Civil Liberties 

Union Foundation 

32 Grand Street 
Hartford, CT 06106 

pr, are 

  
  

Philip D. Tegeler 
Connecticut Civil Liberties 

Union Foundation 
32 Grand Street 
Hartford, CT 06106 

Attorneys for Plaintiffs    



  

APPENDIX 

  

    
      
 



@ BT A 

  

Figure 1 — Average Number of Mathematics 
Objectives Mastered — 1987 — 1992 

Connecticut Average and Hartford Average 
Fourth Grade 
  

==
 

un
 

RC
I 

Mi
 

N
R
 

a
 
B
E
 

R
B
 

  

  

    1987 1988 

 



  

» EXHIBIT B 

Figure 2 — Average Number of Mathematics 
Objectives Mastered — 1987 — 1992 

Connecticut Average and Hartford Average 

  

  TELE NEE
E
E
E
I
E
E
E
 

C
E
 
U
N
S
T
C
E
N
R
N
C
S
S
S
S
N
S
S
N
™
N
 

  
    

  

Sixth Grade 

23.7 23.8 24.1 24.6 24.7 24.7 

16.9 17.4 17.3 18.3 17.1 57 

7 

1987 1988 1989 1990 1991 

    

  

    

  

    

  

    

  

    

    

   



  

Ct Cc 

Figure 3 — Average Number of Mathematics 

Objectives Mastered — 1987 — 1992 
Connecticut Average and Hartford Average 

T
I
E
E
E
E
E
E
E
T
E
T
C
T
C
C
E
T
N
R
N
T
N
N
R
N
N
N
S
S
N
S
S
N
N
N
A
N
Y
 

  

    
    

  

    

  

    

  

    

  

    

  

    

  

Eighth Grade 

25 25.1 25.3 257 25.8 257 

17.6 18.7 Iss 18.6 17.8 18.1 

1987 1988 1989 1990 1991 1992 

  

   



  

75 

S.0 

25 

Figure 7 — Average Number of 

Lang. Arts Objs. Mastered — 1987 — 1992 
Connecticut Average and Hartford Average 

“bea D 

  

    OE ER 
I 

E
E
 

TR
 
R
T
 

RR
) 

    

Fourth Grade 

62 63 62 8.3 6.3 6.2 

33 3s 32 34 33 a1 

1987 1988 1989 1990 1991 1992 
  

    

  

    

  

    

  

    

  

    

    

   



bo @ i: E 

Figure 8 — Average Number of 

Lang. Arts Objs. Mastered — 1987 — 1992 
Connecticut Average and Hartford Average 

Sixth Grade 
  

                

  

  

  

  

  TE, O
E
 

E
L
 

0.
 
N
R
 

T
T
 

RT
 

T
Y
 

                
1991 

 



  

10.0 

75 

5.0 

25 

Figure 9 — Average Number of 

Lang. Arts Objs. Mastered — 1987 — 1992 
Connecticut Average and Hartford Average 

@ F 

  

  FRR EER 
T
A
R
T
 
A
R
R
 

ER
 

E
R
R
 

TL
 

TR
 

Th
 

  
    

Eighth Grade 

8 84 8.3 8.3 
77 72 

53 S54 5.3 54 
47 A 

1987 1988 1989 1990 1991 192 
  

    

  

    

  

    

  

    

  

    

    

   



1 = G 

Figure 59 — Average Number of 4th Grade 
Math Objectives Mastered — 1992-1993 

Hartford & Surrounding Districts 

    

  

  

  

                

  

JT to ae ee nt YY 
Bloomfield = 21.9 
mrt SR ———— D0 0 

East Granby ] 20.9 
East Hartford ] 20.9 
East Windsor 1 21.8 

Ellington J 21.6 
Farmington S 
Glastonbury | 21.6 

Granby 1 23.1 
Fiarttor] RRR 

Manchester ) 224 
Newington 1 223 

: Hill a 224 
Si EE EE 233 

South Windsor } 22 
Suffield } 22.4 
Vernon } 223 

West Hartford } 22.7 
Wethersfield ] 21.9 

Windsor 215 
Windsor Locks He —— oS 4     

0 5 10 15 20 25 

 



i @ =r H 

  

Figure 60 — Average Number of 6th Grade 
Math Objectives Mastered — 1992-1993 

Hartford & Surrounding Districts 

Avon 
Bloomfield 
    

  

Windsor Locks       

 



RE arte I 

Figure 61 — Average Number of 8th Grade 
Math Objectives Mastered — 1992-1993 

Hartford & Surrounding Districts 

  

  

       

316 
) 29.8 

31.1 

Si es sas] 

South Windsor im 318 

= p— 20.8 
Windsor Locks w——-— ——. 
  

   



% @<ieT J 

Figure 62 — Average Number of 4th Grade 
Lang. Arts Objectives Mastered 

1992 - 1983 

Hartford & Surrounding Districts 

  

  

  

  

  

  

  
  

              

      

Avon , 
CRITI AY Coy fo me po? 5hl ll i le DS XE 

y 6.6 
Tee fl em ee _ es 
East windsor el mH lI la EN a tama Sects tete tate tetatamtitgse steam) 6.4 

ane IN FarmminG ton ——— 7.4 
EET es eee ra ITA 

Granby } 73 
Hartford 0 3.1 

Manchester 
Newington . 7.1 

ocky Hill 
Si : ) 76 

South Windsor - £3 

Vemon ) 7.1 
West Hartford ) 7.1 
Wethersfield ) 64 

Windsor ad au ) 6 
Windsor Locks I a  ——  ——  — 88: 

0 2 4 6 : 8 

 



® @“-" K 

Figure 63 — Average Number of 6th Grade 
Lang. Arts Objectives Mastered 

1992 - 1993 
Hartford & Surrounding Districts 

West 
WwW   

ord 

indsor 
Windsor Locks     

«Alt. Test or Not All 6th Graders Inc. 

 



pe Pair L 

  

Figure 64 — Average Number of 8th Grade 
Lang. Arts Objectives Mastered 

1992 - 1993 

Hartford & Surrounding Districts 

  

Windsor   
    

 



@zeIT M 

  

Figure 95 — Percentages of Hartford 4th 

Grade Students Not Meeting 
Remedial Standards — 1992-1993 
  

Mathematics 

DRP 

Holistic Writing       100 

  

vom ada 

 



“dean N 

  

Figure 96 — Percentages of Hartford 6th 

Grade Students Not Meeting 
Remedial Standards — 1992-893 
  

Mathematics 

DRP 

Holistic Writing       100 

 



. = 0 

Figure 97 — Percentages of Hartford 8th 

Grade Students Not Meeting 
Remedial Standards — 1992-893 

  

  

  
DRP 

  
  

oo” ho SEE ? : 
rn A - ak, Pan 

—rp ie a i 
Reon NSE 
A TI alt Wout: REG 
Angi ta 

N 

- Ti 

Lx 
as 

BL . 

2 eile zs 
—ge= . Fi | 

 



  

    

c CA OF SERVIC 

This is to certify that one copy of the foregoing has been 

mailed postage prepaid to John R. Whelan and Martha Watts, Assistant 

Attorney Generals, MacKenzie Hall, 110 Sherman Street, Hartford, CT 

06105 this 16th day of August, 1993. 

Morte Stowe 
  

Martha Stone