Correspondence from Tegeler to Westerman Re: The Issue of Causation in Sheff v. O'Neill

    Philip D. Tegeler 
Connecticut Civil Liberties Union 

Gayl S. Westerman 
Professor of Law 

The Issue of Causation in Sheff v. O'Neil   

July: 25, 1991 

  

  

Issue Presented: 
  

In a desegregation suit brought under the Connecticut 

state Constitution, particularly one seeking an interdistrict 

remedy, is plaintiff barred from proceeding without proof that 

affirmative acts of the state "caused" the condition of 

segregation existing in the Hartford public schools and those of 

its surrounding suburbs? 

Discussion 
  

The issue of causation is but a sub-set of the larger 

question of assessing government responsibility for 

constitutional violations. There is little doubt that under the 

current approach to this question taken by federal courts under 

the fourteenth amendment, plaintiffs would be required to show 

state action as well as discriminatory motive/intent on the part 

of state agencies as causing or at least significantly 

contributing to the segregated condition existing in the public 

schools of Hartford and its surrounding suburbs. (See Keyes, 
   



  

Milliken, Washington v. Davis and progeny). 
  

It is hardly surprising that all cases cited by the 

defendants to support their assertion that plaintiffs are barred 

in their claim without proof of causation are federal cases 

decided by the U. S. Supreme Court under the equal protection 

clause of the fourteenth amendment. No support can be found for 

this assertion, however, under Connecticut law. Instead, 

defendants rely on federal law combined with a aunber of now 

discredited precedents in Connecticut case law which appear to 

support the notion that federal and state equal protection 

provisions have "like meaning and impose similar limitations." 

Defendants must surely realize that the notion that states courts 

are bound to apply federal constitutional interpretation 

standards has been repeatedly rejected by Connecticut courts, 

particularly since the U. S. Supreme Court adopted a 

discriminatory intent/causation standard to equal protection 

cases in the mid-seventies. Two cases in particular, Fasulo Vv. 
  

Arafeh, 173 Conn. 473 (1977) and Horton v. Meskill, 172 Conn. 615 
  

(1977) (Horton I), have recognized the "primary independent 
  

vitality of the provisions of our own constitution," Horton I, 
  

172 Conn. at 641, and have clearly indicated that state and 

federal provisions do not have to be read with like meaning and 

limitations. Although Connecticut courts have sometimes inserted 

the old "like meaning" language into current cases, the term now 

stands for the proposition that the Connecticut Constitution 

"shares but is not limited by the content of its federal 

 



  

counterpart." - Fasulo v. Arafeh, 173 Conn. 473, 475 (1977). As 
  

to the issue of causation itself, the lesson of Fasulo also seems 

clear: when the state impinges on a fundamental right in any 

manner, whether or not the circumstances which cause the 

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

burden of justifying the intrusion. Although a due process case, 

Fasulo illustrates the willingness of Connecticut courts to 

depart from federal jurisprudence in effectuating state 

constitutional rights. 

Connecticut courts have consistently expanded protection of 

civil rights under Connecticut constitutional provisions beyond 

that offered by their federal counterparts, most notably in 

Horton v. Meskill, 172 Conn. 473 (1977) (rejecting the approach 
  

taken by the U. S. Supreme Court in Rodriquez and finding a 
  

fundamental right to education violated by state school finance 

  

laws); in Doe v. Maher, 40 Conn. Supp. 394 (1986) (rejecting the 

approach taken by the U. S. Supreme Court in Harris v. McRae and 
  

striking down regulation restricting right to medicaid payment 

for abortions under the state due process clause); in State v. 
  

Kimbro, 496 A.2d 498 (Conn. 1985) (rejecting the federal "Gates 

rule" on probable cause justifying search and seizure); in State 

v. Davis, 506 A.2d (Conn. 1986) (setting forth an independent 
  

Connecticut rule on the ultimate right to call a witness under 

Article first, § 8); in Griswold Thin, Inc. v. State, 441 A.24 16 
  

(Conn. 1981) (expanding state protection of religious freedom) ; 

in State v. Saidel, 159 Conn. 96 (1970) and State v. Licari, 153 
  

  

 



  

Conn. 127 (1965) (enlarging protections against unreasonable 

searches and seizures); and others. In State v. Dukes, 547 A.2d 
  

10, 18 (Conn. 1988), the Connecticut Supreme Court, citing State 

Vv. Stoddard, State v. Jarzbek, State v. Scully, State v. Couture 
  

(cites omitted) and others in addition to Horton I and Fasulo, 
  

reaffirmed that although Connecticut courts are free to follow 

the lead of the federal courts at their discretion, "this court 

has never considered itself bound to adopt the federal 

interpretation in interpreting the Connecticut Constitution . . . 

. [i]t is this court's duty to interpret and enforce our 

constitution . . . . Thus, in a proper case, 'the law of the 

land' may not, in state constitutional context, also be 'the law 

of the state of Connecticut.'" State v. Dukes, 547 A.2d4 10, 19   

(Conn. 1988). 

This trend in constitutional adjudication in Connecticut is 

part of a larger trend nationwide which finds many state supreme 

courts interpreting their state constitutions to afford more 

expansive protection to their citizens than is afforded under the 

federal constitution. See, e.9., Reeves v. State, 599 P.2d 727 
  

(Alaska 1979); State v. Sporleder, 666 P.2d 135 (Colo. 1983); 
  

Bierkamp v. Rogers, 293 N.W.2d 577 (Iowa 1980); People Vv. 
    

Hoshowski, 108 Mich. App. 321, 310 N.W.2d 228 (1981); People Vv. 
  

  

  
  

Williams, 93 Misc.2d 93, 402 N.Y.S.2d 289 (1978); State Vv. 

Flores, 280 or 273, 570 P.2d 965 (1977); People v. Neville, 346 
  

N.W.2d 425 (S.D. 1984); Miller v. State, 584 S.W.2d 758 (Tenn. 
  

1979); State v. Ringer, 100 Wash. 2d 686, 674 P.2d 1240 (1983); 
  

 



§:1 . » 

  

Helena Elementary School Dist. v. State, 769 P.2d 684 (Mont. 
  

1989); Stout v. Grand Prairie Ind. School Dist., 733 S.W.2d 290 
  

(Tex. Ct. App. 1987); Edgewood Indep. School Dist. v. Kirby, 777 
  

S.W.2d 391 (Tex. 1989); Jenkins v. Township of Morris School 
  

Dist., 279 A.24 619 (N.J. 1971); Booker v. Bd. of Educ. 
  

Plainsfied, 45 N.J. 161 (1965); and others. This trend is well-   

documented in the literature. See Developments in the Law--The 
  

Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 
  

1324 (1982); Brennan, State Constitutions and the Protection of 
  

Individual Rights, 90 Harv. L. Rev. 489 (1977).   

As undeniable as this trend may be, I believe that due to 

the strong rejection of an interdistrict remedy by the U. S. 

Supreme Court in Milliken, which relies in turn on the 
  

discriminatory intent/causation requirement for equal protection 

cases announced in Keyes, Washington v. Davis, and progeny, the 
  

defendant's argument that plaintiff's claim is barred without 

proof of state action which caused the segregated condition to 

exist and, further, that such a causal connection can only be 

established by showing defendant's discriminatory intent or 

expectation of harm, see Memorandum in Support of Defendant's 

Motion to Strike, at 33, may be more difficult to oppose than 

might be hoped. State courts, Connecticut included, still pay 

lip service, at least, to the notion that U. S. Supreme Court 

opinions are "persuasive authority" for state constitutional 

interpretations, and the issue of interdistrict remedies in 

desegregation cases has been a topic of heated debate between and 

 



  

among constitutional scholars since the decision in Milliken I 

was announced in 1973. (For an exhaustive review of most of 

these divergent views, see Liebman, Desegregating Politics: 
  

'All-Out' School Desegregation Explained, 90 Colum. L. Rev. 1463- 
  

1664 (1990)). Both sides in the current conflict over the 

Hartford area schools will be able to find ample support for 

their arguments in re: intent/causation in this literature. 

If the Court decides to follow the federal approach in 

assessing government responsibility and requires a showing of 

state action/intent/causation, I believe you are well prepared in 

this regard and may prevail even in obtaining an interdistrict 

remedy. A few lower federal courts have ordered such remedies 

since 1973 and the U. S. Supreme Court did so in Columbus Board 
  

of Education v. Penick, 443 U.S. 449 (1979) and Dayton Board of 
  

  

  

Education v. Brinkman, 443 U.S. 526 (1979) by, arguably, 

broadening the Keyes standard somewhat and taking note of 

precisely the kind of evidence which you propose to introduce. 

Nevertheless, I agree that by far the best result would be 

Connecticut's adopting its own approach under state law 

unburdened by these threshold tests. 

The majority opinions of the Connecticut courts in Horton, 

Fasulo and_Maher, as well as the forceful dissent by Justice 

Peters in Cologne v. Westfarms Associates, 469 A.2d 1201, 1211 
  

(Conn. 1984) (arguing that there is no textual basis for a state 

action requirement under the state constitution, but "if we are 

to import [one] into the Connecticut Constitution, we must 

 



‘t » & 

  

recognize that its contours will necessarily differ from the 

state action concept that has developed under the Constitution of 

the United States," id. at 1218, give me a basis for guarded 

optimism that the court will be amenable to an approach to 

desegregation under the Connecticut Constitution that differs 

markedly from that taken by the U. S. Supreme Court in Milliken - 
  

- i.e., that "Sheff is to Milliken as Horton is to Rodriquez".   
  

In my opinion, an excellent basis for a distinctive Connecticut 

approach to desegregation has already been created by the 

Connecticut Supreme Court in Horton I. In that case, the court, 
  

while retaining the "tiers of scrutiny" aspect of federal equal 

protection jurisprudence (later changed somewhat under Horton 

IIT), nevertheless declined to adopt a discriminatory intent 

and/or causation threshold test. At most, the court appears to 

have adopted an "effects" test which was satisfied in that case 

by a showing that a specific condition, i.e., inequity in school 

financing, which has "resulted" from delegating legislation may 

constitute a violation by the state of both the equal protection 

clauses of the Connecticut Constitution as well as the 

affirmative duty to provide for equal educational opportunity by 

"rappropriate’' legislation." Horton I, 172 Conn. at 649. It 
  

seems a very short step from this language to the approach which 

you have adopted in Sheff, i.e., that, once again, delegating 

legislation by the state has "resulted" in school district 

boundaries which have made racially balanced schools, mandated by 

state law as essential to equal educational opportunity, an 

 



  

impossibility in metropolitan areas such as Hartford and its 

surrounding towns. The question is, how to encourage the court 

to take this step? 

There are several avenues of argumentation which might prove 

helpful in lending support to your argument that a "causation" 

requirement in any of its various forms does not, and, further, 

  

should not exist under Connecticut constitutional jurisprudence. 

I have set forth some of these avenues for you in the following 

memorandum which, in outline form, makes these points: 

l. Connecticut courts should not adopt the federal 

standard in school desegregation cases because: 

The current federal approach to assessment of 

government responsibility in school desegregation 

cases is not mandated by the U. S. Constitution or 

prior federal case law; is based on flawed legal 

theory; and is incapable of providing a 

satisfactory remedy to metropolitan-wide 

segregation. 

The federal approach is based on federalist and 

other institutional concerns which do not limit 

the power of Connecticut courts to resolve issues 

under the Connecticut Constitution. These and 

other differences in the two systems of 

 



y ! % 

  

adjudication militate in favor of an independent 

Connecticut approach which does not reflect the 

federal model. 

2. Connecticut courts should develop an independent 

approach to school desegregation cases under the 

Connecticut state Constitution because: 

a. A clear understanding of the problems to be 

remedied demands an effects-based jurisprudence 

focused on segregative condition. Such an 

approach is fully supported by the express 

language of the Connecticut Constitution and 

Connecticut case law. 

b. A per se approach to segregative condition under 

the Connecticut Constitution is supported by 

empirical research studies which unequivocally 

affirm the value of racially balanced schools to 

minority and white students alike, to their 

parents, and to the society at large. Deprivation 

of an opportunity to attend such schools in 

metropolitan areas such as Hartford and its 

surrounding suburbs is a per se denial of the 

fundamental right to equal educational 

opportunity, mandated by Horton I. 

 



1. Connecticut courts should not adopt the federal 
  

standard in school desegregation cases because: 

The current federal approach to assessment of 
  

government responsibility in school desegregation 
  

cases is not mandated by the U. S. Constitution or 
  

prior federal case law; is based on a flawed legal 
  

theory; and is incapable of providing a 
  

satisfactory remedv to metropolitan-wide 
  

segregation. 
  

Two important cases decided by the U. S. Supreme Court in 

the early seventies seemed to point the way toward an enlightened 

school desegregation doctrine in which courts moved away from 

condemning only those cases of segregation where assignments were 

made on the basis of race to a result-oriented approach that 

focused on the segregated patterns themselves. Fiss, The 

Charlotte-Mecklenburg Case - Its Significance for Northern School 
  

Desegregation, 38 U. Chi. L. Rev. 697 (1971). In Green v. New 
  

  

  

Kent County School Board, 391 U.S. 430 (1968), the U. S. Supreme 

Court invalidated a presumedly race-neutral student assignment 

plan based on "freedom-of-choice", where the result of the plan 

was continued racial segregation. The Court expanded on this 

approach in Swann v. Charlotte-Mecklenburg Board of Education, 
  

402 U.S. 1 (1971), by declaring "geographic proximity" an 

10  



impermissible basis for student assignment, again, because the 

plan did not "work" in diminishing the segregated condition of 

the schools, and by ordering an interdistrict remedy in which the 

greatest degree of actual desegregation must be achieved. 

Many commentators at the time would have agreed with Fiss 

that "the net effect of Charlotte-Mecklenburqg is to move school 
  

desegregation doctrine further along the continuum toward a 

result oriented approach . . . [in] retrospect, Charlotte- 
  

Mecklenburg will then be viewed, like Green, as a way station to 
  

the adoption of a general approach to school desegregation which, 

by focusing on the segregated patterns themselves, is more 

responsive to the school desegregation of the North." Fiss, 

supra at 704-705. 

Two factors, one internal and the other external, conspired 

against the continuation of this trend. The Swann case itself, 

though result-oriented in part and enormously productive in terms 

of remedy (Charlotte-Mecklenburg is now widely seen as one of the 
  

most successful of court-ordered desegregation plans), carried 

within it the seeds of a doctrinal trend which veered away from a 

focus on segregated condition alone and toward a focus on past 

discriminatory practices as forming a causal link to segregated 

conditions in the present. Fiss himself noted the danger in this 

element of the Court's approach but discounted it for two 

reasons: first, he believed that the predominant concern of the 

Court was the segregated pattern of school attendance, otherwise 

such an "all-out" remedy could not be defended. Second, the  



Court's theory of causation itself seemed contrived. Although 

discriminatory practices had undeniably played a role in the 

past, the Court did not attempt to determine the degree to which 

such practices had contributed to the present condition. In 

Fiss' words, the Court had merely used past 

discrimination/causation as a "trigger . . . for a cannon", i.e., 

the all-out desegregation remedy, as well as a way to preserve 

continuity with Brown and add a moral foundation for the 

decision. Id. at 705. 

Fiss predicted that the result-oriented language of Swann 

would outlive the past discrimination/causal link requirement, 

largely because the Supreme Court would be unable to treat 

segregated conditions in northern and southern schools 

differently: 

A complicated analysis of causation might . . . serve 
to justify the differential treatment afforded these 
otherwise identical patterns. But such an analysis is 
not likely to be understood or believed by most people. 
And no National institutions can afford to be 
unresponsive to the popular pressures likely to be 
engendered by an appearance of differential treatment 
of certain regions of the county. 

Fiss, supra pg. 10, at 705. 

These confident predictions of a trend toward a result- 

oriented jurisprudence in school desegregation cases seemed well- 

founded immediately following Swann. Lower federal courts, while 

paying heed to the discriminatory intent/causal link elements of 

the Court's decision, found these requirements to be easily 

satisfied in a variety of creative ways, such as holding the 

government responsible for the reasonably foreseeable and 

2  



  

» 
' % 

avoidable results of its actions or for its failure to act when 

under a duty to do so, even if no actual causal link to 

discriminatory animus could be proved. Courts often adopted the 

burden shifting approach taken in Swann to force the state, once 

a segregated condition had been shown to exist by plaintiff, to 

prove that its actions had not caused that condition to be 

created or maintained. 

This jurisprudential trend might have continued had not an 

external factor intervened in the form of process-oriented 

constitutional theorists (Ely, Brest, and others) who maintained 

that in a democratic society, essentially nondemocratic 

institutions such as courts should avoid reviewing the substance 

or the fairness of governmental decisionmaking and should 

intervene only if the process of the decision making had become 

adulterated in some way. See Ortiz, The Myth of Intent in Equal 
  

  

Protection Cases, 41 Stan. L. Rev. 1105, 1105 (1989). In equal 

protection terms, this adulteration was seen as resulting from 

forbidden discriminatory motivations. Id. at 1106. The rapid 

ascendancy of process-based theories in the scholarly literature 

coincided with the beginning of a period of retrenchment in the 

Supreme Court which occurred precisely at the time the Court 

decided the first "northern" school desegregation case in 1973. 

In Keyes v. School District No. 1, Denver, Colorado, 411 U.S. 189 
  

(1973), the Court held that the desegregation remedies approved 

in Swann were equally applicable to northern school districts 

which had never been segregated by law, but only where local 

a3. 

 



  

officials had pursued deliberately segregative policies. Keyes 

was followed by Milliken v. Bradley (Milliken I), 418 U.S. 717 
  

(1974), in which the Supreme Court rejected a metropolitan-wide 

remedy for Detroit, holding that "it must be shown that racially 

discriminatory acts of the state or local school districts, or of 

a single school district, have been a substantial cause of 

interdistrict segregation." Id. at 744-45. This rejection left 

uncorrected the dual school system and the vestiges of school 

segregation which the district court had found to exist in 

Detroit, vestiges which the Supreme Court had ordered removed 

"root and branch" throughout South. 

The final pieces of the current Court's equal protection 

doctrine were put into place with three cases which left no doubt 

as to the emerging doctrinal trend: Washington v. Davis, 426 
  

U.S. 229 (1976), which held that in the absence of a racially 

discriminatory motive or purpose, a facially neutral governmental 

action, such as the use of screening tests in hiring, which has 

an adverse racial impact will not be subject to strict scrutiny; 

Village of Arlington Heights v. Metropolitan Housing Development 
  

Corp., 429 U.S. 252 (1977), which held that race must be shown to 

be a motivating factor in the refusal to rezone land for low- 

income housing and disproportionate impact alone would not 

satisfy the intent standard; and Personnel Administrator v. 
  

Feeney, 442 U.S. 256 (1979), in which the Court refused to import 

into equal protection jurisprudence the familiar doctrine that a 

person intends the natural and foreseeable consequences of her 

14 

 



  

voluntary actions, a doctrine which had been used productively by 

lower federal courts in satisfying the intent/causation 

requirement in school desegregation cases. 

These decisions have not been totally fatal to school 

desegregation. The Court has ordered desegregation plans 

implemented in both Dayton, Dayton Board of Education v. Brinkman 
  

(Dayton II), 443 U.S. 526 (1979) and Columbus, Columbus Board of 
  

  

Education v. Penick, 443 U.S. 449 (1979), on grounds which, it 
  

could be argued, relaxed the Keyes discriminatory 

intent/causation standard to some degree while retaining it 

doctrinally. Nevertheless, all commentators, whether in favor of 

an intent/causation requirement or adamantly opposed, agree that 

such a standard has made it very difficult for plaintiffs to 

prevail in school desegregation cases, and almost impossible to 

prevail in those involving metropolitan-wide segregation of the 

type currently existing in Hartford and its surrounding suburbs. 

Many commentators have criticized the Supreme Court's use of 

a discriminatory intent/causation requirement in school 

desegregation cases which, in addition to other rationales often 

used to limit the reach of judicial remedies, such as the de jure 

- de facto distinction, federalism concerns, and respect for 

school district lines and local control, has become a formidable 

obstacle to the invalidation of public policies alleged to 

violate the fourteenth amendment. See Goodman, De facto School 
  

Segregation: A Constitutional and Empirical Analysis, 60 Cal. L. 
  

Rev. 275 (1972); Fiss, The Fate of an Idea Whose Time Has Come: 
  

15 

 



  

Antidiscrimination Law in the Second Decade after Brown v. Board 
  

of Education, 41 U. Chi. L. Rev. 742 (1974); Binion, Intent and 
  

  

Equal Protection: A Reconsideration, Sup. Ct. Rev. 397 (1983); 
  

L. H. Tribe, American Constitutional law (2d Ed.) (1988); Tribe, 
  

The Puzzling Persistence of Process-Based Constitutional 
  

Theories, 89 Yale L.J. 1063 (1980); Tribe, The Curvature of   
  

Constitutional Space: What Lawvers Can Learn From Modern 
  

Physics," 103 Harv. L. Rev. 1 (1989); Stein, Attacking School 
  

Desegregation Root and Branch, 99 Yale L.J. 1983 (1990); See also 
    

Ortiz and Liebman, supra. Most if not all of these legal 

scholars would agree that such a standard is in no way implied or 

required by the general language of the equal protection clause 

of the fourteenth amendment. Nor was it required under prior 

federal case law which in general held intent to be irrelevant in 

equal protection cases. See, e.qg., Palmer v. Thompson, 403 U.S. 
  

217, 224 (1971) ("[N]o case in this court has held that a 

legislative act may violate equal protection solely because of 

the motivations of the men who voted for it"). Other 

explanations must therefore be provided for such a radical change 

of course. 

Ortiz' theory is that several factors combined to produce 

the Court's approach to equal protection under the fourteen 

amendment. By the early seventies, the Court had so thoroughly 

fleshed-out its "tiers of scrutiny" jurisprudence that results in 

equal protection cases had become predictable. Once the groups 

deserving of strict scrutiny had been put in place, the key 

16 

 



  

question became identifying the group targeted by the 

governmental decision. This was a fairly simple task as long as 

laws discriminated on their face against protected groups. When 

government officials began to use "proxy" classifications, i.e., 

classifications such as wealth and education which appear 

facially neutral but which correlate with race and other 

protected classifications, the Court needed an intent requirement 

to uncover these covert, proxy classifications in order to know 

how to proceed with their tiers of scrutiny analysis. Ortiz, 

supra p. 13, at 1117-1119. This development coincided with the 

ascendancy of process-based theories in constitutional law, 

discussed supra, which required a show of intentional 

discrimination in the decisionmaking process in order to justify 

court intervention. 

As necessary or as laudable as such a doctrinal development 

may have been, Ortiz argues that it has not served its purpose 

and is in fact applied differently depending on the type of case 

being adjudicated. In equal protection cases involving housing 

and employment, a plaintiff prevails only with absolute proof of 

discriminatory motive, an approach which protects the cohort 

classifications of wealth and education by which such benefits 

are traditionally allocated. In cases involving voting and jury 

selection, benefits not traditionally allocated by wealth and 

education, discriminatory intent can be considered the "cause" of 

an adverse impact by showing the impact on an identifiable group 

  
combined with either the susceptibility of the selection process 

17 

 



  

to manipulation (jury selection cases) or discrimination in other 

areas of life (voting cases). Id. at 1135. 

It is in the school desegregation cases that the 

intent/causation requirement has been most bizarrely applied. At 

the initial phase of litigation, plaintiffs must still show 

evidence of discriminatory motivation at some time from Brown I 

on. Once that has been accomplished by plaintiffs, which is 

increasingly hard to do as motivations become more and more 

attenuated and causal links to current segregated conditions 

become all but impossible to discern, the state can rebut such 

evidence only with a compelling justification for segregation, 

which no state has ever done. Should a plaintiff prevail in 

establishing liability, the state is under an affirmative duty to 

achieve a unitary system, and its efforts in this regard are 

judged solely on the basis of effect. Once unitariness has been 

achieved and the district court has relinquished its jurisdiction 

over the case, however, should resegregation occur, plaintiffs 

must now carry the burden of showing actual discriminatory 

motivation in the current decisionmaking process much as 

plaintiffs are required to do in housing and employment cases 

discussed above. Id. at 1135-1140. Needless to say, this 

approach has not only made the problem of metropolitan-wide 

segregation very difficult to remedy but has also made it 

virtually impossible to attack de facto resegregation in areas 

where the original problem had once been alleviated. 

There are other problems inherent in such an approach, not 

18 

 



  

the least of which is its failure to properly take note of the 

effect of unconscious racism in the decision-making process. 

Lawrence, see Lawrence, The Id, the Ego, and Equal Protection: 
  

Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987) 
  

has said: 

[T]raditional notions of intent do not reflect the fact 
that decisions about racial matters are influenced in 
large part by factors that can be characterized as 
neither intentional . . . nor unintentional . . . a 
large part of the behavior that produces racial 
discrimination is influenced by unconscious racial 
motivation. | 

Id. at 322. Lawrence argues that Americans share a common 

cultural heritage in which racism has played a dominant role. 

Out of this has developed a common cultural belief system 

containing certain tacit understandings of which we are largely 

unaware. Because they are so widespread in society and are 

never, or rarely, directly taught, these beliefs and 

understandings are less likely to be experienced at the conscious 

level, and even if they do surface occasionally, are quickly 

refused recognition because they conflict with a shared moral 

code which rejects such thoughts as "racist". Lawrence 

continues: 

In short, requiring proof of conscious or intentional 
motivation as a prerequisite to constitutional 
recognition that a decision is race-dependent ignores 
much of what we understand about how the human mind 
works . . . . The equal protection clause requires the 
elimination of governmental decisions that take race 
into account without good and important reasons. 
Therefore, equal protection doctrine must find a way to 
come to grips with unconscious racism. 

gd. at 322. 

19 

 



  

Tribe has criticized the doctrine as applied in school 

desegregation cases on the same grounds. Rather than contracting 

the judicial role in cases of de facto segregation, Tribe 

believes the arguments in favor of expanding it are much more 

compelling, precisely because the exact motivations, purposes, 

intentions and causes in such cases are so difficult to discern: 

The harms of both de facto and de jure discrimination 
are similar if not identical: racially specific harm 
to members of politically less-powerful minority 
groups, with discriminatory intent much more often 
present than provable, and with even truly unintended 
racial consequences reflecting unconscious bias and 
blindness traceable to a legacy of racial subordination 
initially decreed by law. 

L. H. Tribe, supra p.:16, at 1500. Tribe contends that until our 

society's widespread racial prejudice recedes and minority 

members gain power enough to affect decisions vital to the 

exercise of their fundamental rights, 

[JJudicially compelled integration may be the only 
acceptable response to the high probability of 
governmental prejudice and corruption behind all 
segregation. 

Id, at 1500. See also Goodman, supra p. 15; and Dworkin, Social 
  

Sciences and Constitutional Rights: The Consequences of 
  

  

Uncertainty, 6 3. of L. and Bduc. 3 (1977). 

Other commentators have criticized the current federal 

approach on the grounds that it has developed from a form of 

legal analysis which seeks to identify wrongdoers and hold them 

responsible for "causing" harm to a protected group. Tribe has 

identified the problem as one resulting from reliance on 

"antidiscrimination" as the mediating principle underlying the 

20 

 



  

equal protection clause. L. H. Tribe, supra p. 16, at 1514. The 

problem is that discrimination is an act based on prejudice, and 

its essential elements are therefore an actor and an action based 

on invidious grounds. Id. at 1515. When mediated by an 

antidiscrimination principle, the fourteenth amendment then 

becomes a tool for overturning acts motivated by racial or other 

bias. Because the focus is on the "perpetrator", this leads 

inexorably to the state action, discriminatory intent, and 

causation standards currently employed and, therefore, to the 

results in Washington v. Davis, Milliken and other cases. In 
  

each case, Tribe asserts, the Supreme Court has noted the 

disparate, harmful effect on the victim and then focused on the 

intent of the perpetrator rather than the impact. Tribe suggests 

that at the present stage, when the problems have become so 

entrenched that intent/causation is almost impossible to prove, a 

far better mediator for equal protection purposes would be the 

principle of antisubjugation which aims not at preventing 

discriminatory acts of wrongdoers but rather at breaking down 

legally created or legally reinforced systems which treat some 

people as second class citizens. L. H. Tribe, supra p. 16, at 

  

1515. (See infra for an application of such an approach to equal 

protection under the Connecticut Constitution). 

Liebman raises similar concerns. He describes the Court's 

move in desegregation cases from reliance on equal educational 

opportunity or integration theories in the fifties and sixties, 

which tended to focus on remedying the effects of government 

21 

 



  

decisionmaking, to the what he terms the "Correction Theory", 

Liebman, supra p. 6, at 1501, which focuses on the evil acts of 

wrongdoers. The moral imperative of the Correction Theory is 

identical to that which motivates the law of torts, i.e., a "deep 

sense of common law morality that one who hurts another should 

compensate him." Id. In the desegregation context, this theory 

translates into the moral claim that purposeful discrimination is 

a wrong whose effects must be eliminated. 

Liebman argues that the tort analogy, which fits in neatly 

with process-based theories discussed above, has been appealing 

to courts because it is "simple, individualistic, and by 

hypothesis nonredistributive." Id. Ultimately, however, private 

law solutions to public law problems are inherently unsatisfying 

and ineffective. In particular, they fail to respond 

satisfactorily to "insidiously prevalent, decades-long, 

metropolitan-wide, multi-disciplinary and variously harmful 

public racial discrimination" for the same reasons that private 

law compensatory tort approaches fail to respond satisfactorily 

to mass toxic disasters. Id. at 1518. 

Liebman draws convincing analogies between the two cases. 

He argues that the complicated character and the massive scale of 

the problem in both scenarios cause the correctively critical 

prerequisites of an identifiable plaintiff and an identifiable 

defendant to elude proof, notwithstanding the fact that 

"wrongdoers" have undoubtedly visited harms on large numbers of 

plaintiffs. As a result, in both the mass toxic tort and school 

22 

 



segregation contexts, the supposed moral integrity of the 

compensatory system evaporates. d. at 1519. 

Tort scholars, see P. Schuck, Agent Orange on Trial: Mass 
  

  

Toxic Disasters in the Courts (1986) (distinguishing private law 

and public law toxic tort litigation), have drawn attention to 

the problems of victims of cancer who can prove beyond doubt 

their exposure to a toxic agent that is known to increase the 

incidence of cancer in the population but which may be only one 

of many "causes" of the victims' cancers. Typically, these 

plaintiffs can also show that the agent was produced at a given 

time by one or several chemical companies, but ultimately cannot 

prove which. Leibman argues that the case of residentially and 

educationally segregated minority children is similar, in that 

they can show "exposure" to myriad acts of school, housing and 

other government officials, any one of which, in addition to a 

like-myriad of "neutral" factors, may have "caused" the 

segregation. Liebman sees the most problematic feature of both 

mass toxic tort and desegregation litigation to be the difficulty 

of proving specific causation of injuries that cannot be proven 

to be either "substance- or discrimination-specific." Liebman, 

supra p. 6, at 1519. A further problem is linking the 

plaintiffs' provable harms, known to have been "caused" by some 

one or some group of defendants, to the defendant who can be 

found "responsible" under the current preponderance of the 

evidence rule. 

Liebman concludes that as in toxic torts, the traditional 

23  



tort approach is not an effective legal response to the 

polycentric problems posed by school desegregation cases but is 

instead "an ostrich-like avoidance of them." Id. at 1521. 

Moreover, the current public law approach being taken to some 

mass toxic torts, using a classwide solution which relies on 

proportional liability (e.g., market share) and probabilistic 

proof of causation, is not transportable to the school 

desegregation context; and even if it were, continued reliance on 

a tort model makes even less sense when the version of that model 

chosen for application completely vitiates the moral imperative 

of the Correction Theory -- i.e., holding a specific wrongdoer 

liable for the specific harm "caused" in the most fundamental 

way. Liebman favors the abandonment of the Correction Theory in 

federal jurisprudence, but, curiously, argues for the retention 

of some form of the intent standard, even though he admits that 

to do so makes the problem of metropolitan-wide segregation 

nearly impossible to resolve. Id. at 1663. 

Many commentators have argued that it would be better by far 

to abandon the tort model completely as having failed to 

eliminate a society-wide harm in any but the most ad hoc and 

arbitrary fashion. Under the current federal approach, the Court 

appears to be saying to plaintiffs, "If you can prove by a 

preponderance of the evidence that a given actor's discriminatory 

animus during the decisionmaking process caused the harm you are 

currently suffering, in an era in which a reluctant society is 

ever more skillful at disguising such animus and obliterating the 

24  



  

causal links, then we will use the full force of declaratory and 

injunctive relief to remedy your suffering. If you fail to 

surmount this burden, however, we must turn a blind eye to your 

suffering" and, in some cases, actually deny that it exists, 

thereby legitimating it. 

Tribe has been a harsh critic of that particular result of 

the current federal approach: 

A corollary of responsible modernism is to admit that 
we can see more than we can do. But this does not mean 
that we should lie about what we see. 

Tribe, supra p. 16, at 38. 

Tribe argues that by utilizing a reference point of detached 

neutrality to selectively reach in to society, make a few "fine- 

tuning adjustments", and step back out, the federal courts are 

ignoring the lesson of modern quantum mechanics which tells us 

that the act of observing always affects what is being observed, 

and that the observer is never really "detached" from the system 

being studied. Id. at 13. The results courts announce, the way 

they view the legal terrain, and what they say about it have 

continuing effects that reshape the nature of what the courts 

initially undertook to review. Id. at 20. Fiss has also 

observed the power of a court's response to a given claim to 

reshape both the legal and societal framework from which the 

claim arose: 

Shrouded in the mantle of the Constitution, dedicated 
to the reasoned elaboration of our communal ideals, 
courts have a unique capacity to create the terms of 
their own legitimacy . . . . The moral status of a 
claim may derive from its legal recognition: morality 
shaped the judgment in Brown v. Board of Education and 
  

25 

 



  

that judgment then shaped our morality. 

O. M. Fiss, The Civil Rights Injunction 95 (1978). 
  

Tribe points out that the legal landscape that creates the 

perception that white flight is an inherently private matter 

beyond the scope of law and that the resulting ghettoization of 

inner cities is therefore inevitable has itself been explicitly 

shaped by Supreme Court decisions. Pierce v. Society of Sisters, 
  

  
  

Swann, Milliken, and even Brown I (due to its original focus on 

the school district rather than the state as the responsible 

party) read together say in effect that white parents have the 

right to keep their children in white, affluent classes by moving 

to the suburbs. Tribe, supra p.16, at 27. Fiss has also 

recognized that the clear legitimating message of a state's rigid 

adherence to geographic criteria for school attendance is to say 

to the parent who does not want her children to attend an 

integrated school, your desire can be fulfilled simply by moving 

to a white neighborhood. Fiss, Racial Imbalance in the Public 
  

Schools: The Constitutional Concepts, 78 Harv. L. Rev. 564 
  

(1965) . 

Criticizing the Supreme Court's decision in Milliken as a 
  

failure to create a rights-remedy dialogue in society which might 

have eventually located a solution to the problem of 

metropolitan-wide segregation, Tribe says: 

Even if it would have had no impact on judicial 
remedies, a judicial proclamation that inner-city 
ghettoization was constitutionally infirm might have 
avoided legitimating this nation-wide travesty. Had 
the Court exerted the one thing it clearly can 
control -- its rights declaration powers -- to 

26 

 



  

w» 

: A 

recognize the role of law and of state action in 
creating ghettoization, the Court could at least have 
created positive social and political tension, the sort 
of tension that makes kids grow up thinking that 
something is wrong, instead of inevitable, about 
ghettoization. 

Tribe, supra p.16, at 30. 

Counselling abandonment of the current federal approach to 

equal protection, Tribe suggests that the Court should be much 

more willing than it has been to recognize government 

responsibility for the "racially separationist consequences of 

neutrally motivated acts." Id. at 33. Such recognition, he 

continues, demands less an effort by courts to uncover the 

"hidden levers, gears, or forces" that causally link governmental 

action to objective effects than an attempt to "feel the contours 

of the world government has built -- and to sense what those 

contours mean for those who might be trapped or excluded by 

them." Id. at 39. To announce that government bears no 

responsibility for problems it has not intended to cause is to 

legitimate both the governmental actions and their effects and, 

worse, to relieve both governmental and non-governmental actors, 

as well as other remedial fora such as state courts, executives, 

and legislatures, of the responsibility for resolving these 

problems. Id. at 33-34, citing Sager, Fair Measure: The legal 
  

Status of Under-Enforced Constitutional Norms, 91 Harv. L. Rev. 
  

1212 (1978). A far better outcome, in Tribe's view, would be a 

court's admission that a protected group has been impermissibly 

harmed but this court has no way to remedy it, than to say no 

harm has been done or that government is not responsible for 

27 

 



  

finding a remedy. Arguing for a theory of government 

responsibility based on the government's ability to avoid harmful 

effects rather than on its intent to cause such effects, Tribe 

says: 

We may all be engulfed by, and dependent upon, the 
structure of the law, but we are not all rendered 
equally vulnerable by it. If the special dependance 
upon the law and its omissions that is experienced by 
the most vulnerable among us could be dismissed as 
irrelevant because it was not directly created by any 
state force targeting such individuals, their 
heightened dependence might be seen as irrelevant. But 
if the systemic vulnerability of some . . . is instead 
regarded as centrally relevant to how the law's shape 
should be understood, then one is more likely to ask 
whether the legal system's failure to do more for such 
persons might not work an unconstitutional deprivation 
of their rights. 

  

Id. at 13, (emphasis added). 
  

b. The federal approach is based on federalist and other 
  

institutional concerns which do not limit the power of 
  

Connecticut courts to resolve issues under the Connecticut 
  

Constitution. These and other differences in the two systems of 
  

adjudication militate in favor of an independent Connecticut 
  

approach which does not reflect the federal model. 
  

The federal courts comprise a crucial bulwark against 
evulsive depredation of constitutional values; but 
against scattered erosion they are relatively 
powerless. 

Sager, supra p. 27, at 122s. 

Like Sager, other commentators (see, e.g., L. H. Tribe, 
  

supra p. 16, at 1513) have observed that while federal courts 

28 

 



  

have been effective against overt apartheid -- Jim Crow and 

"white's only" signs -- the "contemporary symptoms of inertial 

and unconscious prejudice are more subtle" and have proven much 

more difficult to eradicate. The federal courts have been 

retarded in their eradication efforts by many limitations, some 

institutional, some doctrinally self-imposed, which do not apply 

to state courts. The current trend, noted above, of independent 

state constitutional interpretations which carve out additional 

protections to those offered under the fourteenth amendment has 

led to a growing perception among judges and legal scholars that 

Supreme Court decisions, which we have tended to consider as the 

end of the constitutional decisionmaking process, represent 

instead the mid-point of an evolving system in which, if the 

decision strikes down the action complained of, it sets a federal 

minimum but if it upholds the action as constitutional, it may 

lead to a series of "second-looks" by state decisionmakers in 

which Supreme Court decisions no longer carry presumptive 

validity. Williams, In the Supreme Court's Shadow: Legitimacy 
  

of State Rejection of the Supreme Court's Reasoning and Result, 
  

  

35 S.C.L. Rev. 353 (1984); See also Brennan, supra p. 5; Mosk, 

The Law of the Next Century: The State Courts in American law: 
  

  

The Third Century, 213, 220-25 (B. Schwartz ed. 1976)). There is 
  

now an extensive literature favoring this trend as well as 

numerous court decisions, both state and federal, which attest to 

its validity. 

One justification for this evolving pattern is found in the 

29 

 



  

fact that state courts simply are not bound by the same 

institutional limitations which, whether implicitly (Milliken) or 

  

explicitly (Rodriquez) expressed, often form the basis for a 

federal decision. The first of these limitations is the Court's 

concern for federalism, especially in equal protection cases. 
  

See L. H. Tribe, supra p. 16, at 1510-12. Tribe believes that 

the Supreme Court's deep reservations about the efficacy and 

legitimacy of intrusive federal injunctive remedies lie at the 

base of their decisions in cases involving a discriminatory 

intent/causation requirement. In each case, the remedies sought 

posed the risk that the federal court would become deeply 

enmeshed in the machinery of state and local government, an 

institutional concern that is serious and legitimate but does not 

excuse the Court from ignoring the underlying problem by imposing 

a threshold test. In Tribe's view (discussed in part supra), 

rather than saying "there is no constitutional violation here 

because no discriminatory intent has been shown," the Court 

should say "there is a constitutional violation here but 

institutional considerations (such as our awareness of our role 

in the federal system) prevent us from offering a remedy." The 

significance of this very different message is that the problem 

is then passed on to other branches of government, who are 

equally obliged to uphold constitutional values, for resolution. 

Officers of state governments, regardless of branch, are not 

restrained by the principles of federalism that may hinder a 

federal court's ability, or reluctance, to enforce a decree. In 

30 

 



  

particular, state courts may play a role vis-a-vis the other 

branches of state government that differs markedly from the 

limited "interstitial" role of the federal courts. Id. at 1513. 

Presumably, Tribe would approve of the U. S. Supreme Court's 

approach in Rodriquez which, while denying a basis for a federal 
  

right to education under the U. S. Constitution, clearly stated 

that their decision was not to be viewed as placing its judicial 

imprimatur on the status quo and, as the Connecticut Supreme 

Court interpreted it in Horton I, issued a call to arms for   

states to resolve the issue, unburdened by the federalist 

concerns made explicit by the Supreme Court in that case. Horton 

I, 172 Conn. at 634-35. Justice Peters, dissenting in Pellegrino 
  

  

V. O'Neill, 193 Conn. 670, 673 (1984), expressed the idea 

clearly: "We are free to consider this matter unencumbered by 

the considerations of federalism which have led federal courts to 

doubt the propriety of federal intervention in the administration 

of state judicial systems." 

A second limitation on federal constitutional analysis, 

overlapping somewhat with federalist concerns above, is the state 

action requirement which federal courts have derived from the "No 
  

state shall . . ." language of the fourteenth amendment. In 

addition to the obvious lack of any such limiting, state-specific 

language in either of the equal protection provisions of the 

Connecticut Constitution, there is an even more fundamental 

reason for not importing a state action requirement into state 

constitutional decisionmaking: the purpose served by that 

31 

 



  

requirement in interpreting the federal constitution does not 

exist in the state context. 

The original purpose of the state action requirement was to 

shield some portion of state sovereignty from the seemingly broad 

reach of the fourteenth amendment. Margulies sees the 

requirement of state action as a misleading shorthand expression 

which implies a balancing of interests of the complainant with 

two countervailing factors: the interests of the wrongdoer and 

the interests of the state in resolving the matter without 

federal interference. The latter factor is missing in state 

court adjudication. Margulies, A lawyer's View of the 
  

constitution, 15 Conn. L. Rev. 107,111 (19582).   

Justice Peters, dissenting in Cologne v. Westfarms 
  

Associates, 469 A.2d 1201, 1211 (Conn. 1984), argues that the 
  

state action requirement was designed by the federal courts to 

address the demands of federalism, to create space for state 

regulation. Id. at 1218, citing Tribe, supra p. 16, at 1149-50. 

As discussed above, Peters believes there is no basis for a state 

action requirement under state constitutions because this 

"federalism component" is missing; but if the state courts should 

decide to devise one independently, it should not conform to 

federal law but be more flexible and "more readily found for a 

claim of racial discrimination." Id. at 1218, citing Lockwood Vv. 
  

Killian, 172 Conn. 502, 503. Justice Peters cites, Cologne, 469 

A.2d at 1212-1213, numerous decisions in other state courts 

rejecting a state action requirement under their state 

32 

 



  

“« 
. 

constitutions. E.g., Robins v. Pruneyard Shopping Center, 23 
  

Cal. 34 899 (1979), aff'd, 447 U.S. 74 (1980); State v. Schmid, 
  

84 N.J. 535, 599-60 (1980), appeal dismissed, sub nom; Princeton 
    

Univ. v. Schmid, 455 U.S. 100 (1982); Batchelder v. Allied Stores 
  

  

Int'l, Inc., 388 Mass, 83, 88-89 (1983).   

When defendants assert, therefore, that plaintiffs in the 

Sheff case cannot proceed without first satisfying "the state 

action requirement", they are once again invoking a federal 

doctrine devised by federal courts for federal purposes under the 

fourteenth amendment. Technically, there is no state action 

requirement under the Connecticut or any other state 

constitution. In Connecticut, this assertion could be based 
  

solely on the different language in the federal and state 

provisions, a difference which many state courts have used 

persuasively to avoid implying a state action requirement into 

state constitutional adjudication. Williams, supra p. 29, at 
  

369-70. But even if the language of the state and federal 

provisions were exactly the same, many would agree that there 

would be no inherent reason for state courts to read that 

language as imposing the same limitations as have their federal 

counterparts. Id. at 389-90. As Brennan has observed, supra p. 

5, at 495, an increasing number of state courts have construed 

state constitutions and state bills of rights as guaranteeing 

even more protection than the federal provisions, even if 

identical in wording. Brennan cites several cases in New Jersey, 

Hawaii, Michigan, South Dakota, Maine, and other states as 

33 

 



  

examples of this phenomenon, id. at 499-501, and in particular 

these exemplary words of the California Supreme Court: "We 

declare that [the decision to the contrary of the United States 

Supreme Court] is not persuasive authority in any state 

prosecution in California . . . . We pause . . . to reaffirm the 

independent nature of the California Constitution and our 

responsibility to separately define and protect the rights of 

California citizens, despite conflicting decisions of the United 

States Supreme Court interpreting the Federal Constitution." 

  

Nor are U. S. Supreme Court statements in Pruneyard and 

other cases to the effect that state courts are free to interpret 

their constitutions to expand constitutional rights as they see 

fit the source of state power in this regard. It is now widely 

accepted that a state constitution is an independent source of 

rights, to be elaborated on its own terms. The majority opinion 

in Cologne v. Westfarms Associates, 469 A.2d 1201, 1206, 
  

reaffirms this principle, citing State v. Ferrell, 191 Conn. 37, 
  

45 n.12 (1983), Griswold Inn, Inc. v. State, 183 Conn. 552, 559 

n.3 (1981): Fasulo v. Arafeh, 173 Conn. 473, 475 (1977); and 
  

Horton v. Meskill, 172 Conn. 615, 641-42 (1977). 
  

Brennan agrees that federal court decisions are not the 

source of a state's power to interpret its own constitution, and 

points out further that the notion that state constitutional 

provisions were intended to mirror the federal does not comport 

with history, which reveals that the drafters of the federal Bill 

of Rights drew on provisions of already existing state 

34 

 



constitutions as their source. Additionally, prior to the 

adoption of the fourteenth amendment, the state bills of rights 

were independently interpreted, since the federal Bill of Rights 

had been held inapplicable. Therefore, Supreme Court decisions 

"are not, and should not be, dispositive of questions regarding 

rights guaranteed by counterpart provisions of state law." See 

Brennen, supra p. 5, at 501-502; See also generally, Brennan, The 
  

Bill of Rights and the States, in The Great Rights (E. Cohn ed. 
    

1963). 

In sum, despite the obvious language differences between the 

Connecticut and federal equal protection provisions, the 

institutional limitations on federal courts which produced the 

state action requirement under the fourteenth amendment provide 

Connecticut courts with ample reason to reject a state action 

requirement in Connecticut equal protection cases, most 

fundamentally because this requirement has nothing to do with the 

substantive Connecticut constitutional guarantee of equality. 

Federal doctrine is also dictated in part by other 

institutional limitations which do not hamper state courts. 
  

First, U. S. Supreme Court decisions must operate in all areas of 

the nation and must, therefore, represent the lowest common 

denominator of rights protection. Second, the doctrine of 

selective incorporation used for applying the Bill of Rights to 

the states leads to questions regarding the dilution of those 

rights in a state context. Williams, supra p. 29, at 389. 

Third, "state courts that rest their decisions wholly or even 

35  



partly on state law need not apply federal principles of standing 

and justiciability that deny litigants access to the Courts." 

Brennan, supra p. 5, at 501. 

In addition to the institutional infirmities cited above, 

Williams has cited many functional differences between federal 
  

and state courts which militate against adopting a federal 

approach to a state constitutional question. First, state courts 

are often deeply involved in the state's policymaking process, 

which reflects a very different institutional position from that 

of the U. S. Supreme Court. Second, a state court's judicial 

function is often quite different. State courts perform a great 

deal of nonconstitutional law making, a power which federal 

courts have been denied since Erie Railroad v. Tompkins, 304 U.S. 
  

64 (1938). Most state supreme courts promulgate law through 

their rulemaking powers and exercise various inherent powers, 

often devolved upon state courts from the legislature. Williams, 

supra p. 29, at 399. 

In addition to the fact that state constitutional rights 

provisions may differ qualitatively from the federal, other "non- 

rights" provisions of state constitutions may differ from the 

federal constitution so greatly as to profoundly change the 

balance of power in state government. For example, many state 

constitutions contain provisions enlarging judicial authority at 

the expense of the legislature. Also, the text of a state 

constitution may explicitly provide for judicial review of 

legislative and executive action. In fact, Williams asserts, 

36  



judicial review was a phenomenon of state law long before Marbury 

v. Madison; and contrary to the federal experience, most   

judiciary provisions of state constitutions have been revised and 

ratified in this century, often quite recently, without a serious 

struggle over the exercise of judicial review. Williams, supra 

P. 29, at 398-403. 

For all of the institutional and functional differences 

cited above and others, see Williams, supra p. 29, at 397-401, 

the judicial review exercised by the court in the Sheff case 

should be qualitatively and doctrinally different from that 

exercised by the federal courts. This is particularly so in an 

era in which the federal approach to school desegregation cases, 

including the state action and discriminatory intent/causation 

requirements, has failed overall to address so fundamental a 

societal problem as metropolitan-wide segregation. Viewing U. S. 

Supreme Court decisions as presumptively valid for state 

constitutional analysis, as many of the older state cases tended 

to do when parallel decisionmaking under provisions of both the 

federal and state constitutions was still the norm, denigrates 

the importance of state constitutional jurisprudence. Efforts to 

limit state decisionmaking by analytical formulations and 

doctrines designed to serve the purposes of the fourteenth 

amendment and the federal judicial system constitute an 

unwarranted delegation of state power to the federal courts and a 

resultant abdication of state judicial responsibility to provide 

to some of its most vulnerable citizens "the full panoply of 

37  



  

rights which Connecticut residents have come to expect as their 

due." Horton I, 172 Conn. at 641.   

2. Connecticut courts should develop an independent 
  

approach to school desegregation cases under the 
  

Connecticut State Constitution because: 
  

a. A clear understanding of the problem to 
  

be remedied demands an effects-based 
  

jurisprudence focused on seqregative 
  

condition. Such an approach is fully 
  

supported by the express lanquage of the 
  

Connecticut Constitution and Connecticut 
  

case law. 
  

Through a series of events and doctrinal missteps described 

above, federal school desegregation law has moved away from the 

early promise of Brown I, Green, and Swann, which held the 
  

segregated condition of schools an unconstitutional deprivation 

of equal protection, and into a process-oriented jurisprudence 

which has erected a progressively more impenetrable 

intent/causation barrier to resolving the unique problems posed 

by metropolitan-wide segregation. It would be possible, of 

course, for the Connecticut courts to avoid the full chilling 

38 

 



  

. v Ee 

effect of this approach by carving out a narrow path through the 

federal jurisprudential wilderness, much as was done by some 

lower federal courts following Swann. This path could be 

constructed by adopting a doctrine of state responsibility based 

on the foreseeable segregative consequences of state acts. See 

in general Binion, supra p. 16; Goodman, supra p. 15; Liebman, 

supra p. 6. See also Note: School Desegregation after Swann: A 
  
  

Theory of Government Responsibility, 39 U. Chi. L. Rev. 421, 424- 
  

29 (arguing that segregative intent can easily be shown in 

facially neutral acts such as attendance zone designation or 

school site location which have the natural and probable effect 

of fostering residential segregation and which may subsequently 

result in racially imbalanced schools); and Fiss, supra p. 26, at 

584-85 (arguing that a deliberate choice of geographic criteria 

with knowledge of the probable consequences, combined with a 

deliberate decision not to mitigate the consequences of the prior 

choice reinforces the ascription of responsibility). The same 

result could be achieved by enlarging the categories of evidence 

deemed relevant in establishing intent/causation to include 

"root" evidence, such as community attitudes and their effect on 

elected officials and/or "branch" evidence, such as the decisions 

of other branches of state government in addition to school 

boards which have played a part in creating or maintaining a 

segregated system in both schools and housing. See Stein, supra 

p. 16, at 2005; Tribe, supra p. 16, at 1500 (this is also the 

approach taken by the federal district court in Milliken). The 
  

39 

 



  

path could also be constructed by shifting the burden of proof on 

intent/causation to defendants once racial isolation has been 

established by objective criteria, as the U. S. Supreme Court did 

in Swann. (The Connecticut Supreme Court took a similar burden 

shifting approach in Horton v. Meskill, 195 Conn. 24, 37-38 
  

(1985) (Horton IIXI)). 
  

One might also argue that current federal doctrine 

encourages the approaches described above, based on the language 

in Columbus Board of Education v. Penick, 443 U.S. 449, 464-65 
  

(1979) which blurred the de facto-de jure distinction by 

suggesting that, even in a city like Columbus which had had no 

statutorily mandated segregation in this century, disparate 

racial impact and foreseeable consequences could be "fertile 

ground for drawing inferences of segregative intent," even though 

they "do not, without more, establish a constitutional 

violation." Even under federal law, the argument has been made 

that the textual, philosophical and practical difficulties that 

militate against the recognition of an affirmative constitutional 

duty to act -- the negative constitutional language of the 

fourteenth amendment, the state action doctrine, and the problem 

of tangible standards and remedies -- do not apply, at least not 

as forcefully, to questions of exclusion once the state has 

undertaken to act. See Goodman, supra p. 15. 

All of these avenues could be utilized by Connecticut courts 

seeking a "way around" the federal standards. Constructing such 

a pathway under Connecticut law would, however, be a mistake. 

40 

 



  

All of the approaches suggested above were developed in response 

to federal decisions which were dictated by federal concerns and 

the language of the fourteenth amendment. In addition, all have 

been designed to conform to the so called process theory of 

  

constitutional law which holds (see supra) that courts must not 

intervene to remedy the conditions of segregation which have 

resulted from myriad government and private decisions unless this 

condition was "caused" by defects in the decisionmaking process 

itself, i.e., that the process was infected with discriminatory 

bias. Agreeing with Fiss that "[t]here is no independent or 

objective standard that can fairly ensure that race has not 

influenced governmental decisions," Fiss, supra p. 26, at 575 

(emphasis added), we strongly suggest that the Connecticut courts 
  

reject the federal approach in full and carve out a distinctive 

jurisprudence based solely on the original understanding that 

informed Brown and all school desegregation cases prior to 

Keyes -- i.e., that it is the seqregative condition itself which 
  

constitutes the wrong which must be remedied. 

The Connecticut approach should take note of the fact that 

the goal of a school desegregation case is structural reform. 
  

Structural reform is premised on the notion that the quality of 

our social life is affected in important ways by the operation of 

large scale organizations. The structural suit is one in which a 

judge, confronting a state bureaucracy over values of 

constitutional dimension, undertakes to restructure the 

organization to eliminate the threat to those values posed by the 

41 

 



  

R A : : 

present institutional arrangement. Fiss, The Supreme Court 1978 
  

Term: Forward: The Forms of Justice, 93 Harv. L. Rev. 1, 2 
  

(1978). The ultimate focus of the judicial inquiry is not 

particularized and discrete events or acts, but rather a social 

condition that threatens important constitutional values and the 

organizational dynamic that perpetuates that condition. Id. at 

18. 

In the structural context, Fiss continues, one function, 

that of the "wrongdoer", virtually disappears. The concept of 

"wrongdoer" presumes personal qualities: the capacity to have an 

intention and to choose. In a structural suit, however, the 

focus is not on incidents of wrongdoing but, rather, on a social 

condition and the bureaucratic dynamics that produced that 

condition. The costs and burdens of reformation are placed on 

the organization, not because it has "done wrong" in either a 

literal or metaphysical sense "for it has neither an intention 

nor a will," but because reform is needed to remove a threat to 

constitutional values posed by the operation of the organization. 

Id. at 22-23. A school desegregation case is a paradigmatic 

structural lawsuit, in which it is alleged that the segregated 

condition of the schools in and of itself violates the 

constitutional right of students attending those schools to equal 

protection of the laws. 

The remedy at issue in a structural case is the structural 
  

injunction. O. M. Fiss, supra p. 25. As opposed to preventive   

or reparative injunctions, the structural injunction is used to 

42 

 



  

effectuate the reorganization of an ongoing social institution. 

Id. at 7. In a structural injunction context, like a school 

desegregation case, it is imperative to see that "the 

constitutional wrong is the structure itself; the reorganization 

is designed to bring the structure within constitutional bounds." 

Id. at 11. Such an injunction does not require a judgment about 

wrongdoing, future or past. The structural suit and its 

injunctive (and/or declarative) remedy seeks to eradicate an 

ongoing threat to our constitutional values . . . . [I]t speaks 

to the future. Fiss, supra p. 41, at 23. 

An understanding of the need for structural reform in 

achieving equal educational opportunity, as well as the 

usefulness of the structural injunction in achieving that reform, 

was expressed clearly by the Connecticut Supreme Court in Horton 

IX11: 

Our own cases have similarly acknowledged that a court, 
in the exercise of its discretion to frame injunctive 
relief, must balance the competing equities of the 
parties to assure the relief it grants is compatible 
with the equities of the case, Dukes v. Durante, 192 
Conn. 207, 225 (1984); and takes account of the 
possibility of embarrassment to the operations of 
government. CEUI v. CSEA, 183 Conn. 235, 248-49 

(1981). 

  

  

Horton TIX, 195 Conn. at 47. 
  

In a school desegregation case, the courts focus must turn 

away from the process by which schools become segregated toward 

the segregated condition itself and the effects of this condition 

on the lives of school children, their families, and their 

communities. This is, in fact, the constitutional wrong to be 

43 

 



  

remedied, because it is the effects of racial isolation which 

constitute, per se, the deprivation of equal protection and equal 

educational opportunity which the Connecticut Constitution 

forbids. 

Many commentators agree with the structural approach 

advocated by Fiss under which government responsibility attaches, 

regardless of intent or causation, when the state fails to remedy 

the racial imbalance which the state has within its power to 

avoid. Since public school attendance is compulsory and the 

state and its delegated agents have complete control over 

attendance zones, school sites, student assignments, and all 

other components of a school system, not to mention the other 

units of state government which impact upon the problem, it is 

proper to hold the state accountable for harm which can be 

prevented. Note, supra p. 39, at 440. All governmental units 

are interconnected in many ways, and it would not be unreasonable 

to think in terms of the cumulative effect of all governmental 

activity and to hold particularly responsible the unit that has 

within its power the most effective method of correcting one 

facet of the cumulative impact, racially imbalanced schools. 

Fiss, supra p. 26, at 587. Tribe has strongly advocated such 

an approach, based on a new mediating principle which better 

comports with the underlying goal of equal protection. Tribe 

argues that the antidiscrimination principle, which has been used 

as an equal protection mediator for many years in school 

desegregation cases, requires a "perpetrator" who engages in the 

44 

 



  

invidious act of discriminating. This requirement leads 

inexorably to a jurisprudence based on state action, 

discriminatory intent and causation, and the subsequent 

"travesty" of Milliken. Tribe suggests that at the present 
  

stage, when the problems have become so entrenched that 

intent/causation is almost impossible to prove, a far better 

mediating principle for equal protection cases would be the 

antisubjugation principle, which aims not at preventing 

discriminatory acts, but rather at breaking down legally 

reinforced systems of subordination that treat some people as 

second class citizens. "The core value of this principle is that 

all people have equal worth," which comes much closer to the core 

value underlying the equal protection clause. L. H. Tribe, supra 

P. 16, at 1515. 

The goal of the equal protection clause is not to stamp out 

impure thoughts, Tribe continues, but to guarantee a full measure 

of dignity to all citizens. The Constitution may be offended not 

only by discrete acts of social discrimination, but also by 

governmental rules, policies, and practices that perennially 

reinforce the subordinate status of any group. Mediated by the 

antisubjugation principle, the equal protection clause asks 

whether the particular conditions complained of deprive a 

particular group of its right to be fully human. Id. at 1516. 

Tribe observes that the anitdiscrimination principle may be 

sufficient to contend with the deprivations of equal protection 

that result from isolated instances of overt impropriety or 

45 

 



[BJut the subjugation of blacks, women, and other 
groups today persisting is usually neither isolated nor 
hysterical. Regimes of sustained subordination 
generate devices, institutions, and circumstances that 
impose burdens or constraints on the target group 
without resort to repeated or individualized 
discriminatory actions. 

Id. at 1518. Tribe cites Kovel, J. Kovel, White Racism: A 
  

Psychohistory 60-66 (1971), as reminding us that the inequities 
  

that persist in American society have survived this long because 

they have become ingrained in our modes of thought. And as the 

U. S. Supreme Court recognized a century ago in Strauder v. West 
  

Yiraginia, 100 U.S. 203, 306 (1880), habitual discrimination is   

the hardest to eradicate. Tribe criticizes the Supreme Court's 

current approach to equal protection under the fourteenth 

amendment because the government cannot be held accountable to 

the constitutional norm of equality unless it has actively 

created a particular set of conditions at least in part "because 

of", not merely "in spite of", its adverse effects upon an 

identifiable group. (Citing Personnel Administrator v. Feeney, 
  

422 U.S. 256 (1979). This process-oriented approach, which Tribe 

has criticized harshly in other writings, see Tribe, supra p. 16, 

at 564, overlooks the fact that minorities can be harmed when the 

government is only "indifferent" to their suffering, or merely 

blind as to how prior official discrimination contributed to it, 

and how current official acts or omissions will perpetuate it. 

L. H. Tribe, supra p. 16, at 1518-19. (Fiss has described the 

same phenomenon as the "policy of disregard." See Fiss, supra p. 

26, at 565). Tribe argues that the pseudo-scienter requirement 

46  



26, at 565). Tribe argues that the pseudo-scienter requirement 

of Washington v. Davis, Keyes, and other cases is, therefore, 
  

utterly alien to the basic concept of equal justice under law. 

Whereas the antidiscrimination principle and the intent/causation 

requirement which it has spawned look inward to the perpetrator's 

state of mind, the antisubjugation principle looks outward to the 

victim's state of existence, L. H. Tribe, supra p. 16, at 1519, 

and allows the court to focus on the denial of humanity which 

that state imposes on certain citizens. In a school 

desegregation case, the anitsubjugation principle implies that by 

focusing on the condition of segregation existing in the schools 

of the nation's metropolitan ghettoes and by declaring outright 

that subjecting children to inherently unequal conditions 

constitutes a per se violation of the constitutional right to 

equal educational opportunity, courts can more fully realize the 

goal of equal protection in the constitutional framework. 

Such an approach may, at the present time, be beyond the 

reach of the federal courts; but it is fully supported, and 

arguably required, by the express language of Article first, § 
  

20, of the Connecticut Constitution, which states in part that 

"[N]o person shall be denied the equal protection of the laws nor 

be subjected to segregation or discrimination in the exercise or 
    

enjoyment of his civil or political rights . . . ." Conn. Const. 

art. I, § 20 (emphasis added). 
  

Under the standard rules of constitutional interpretation, 

the word "subjected" must be construed as having some meaning and 
  

47  



meaning was clearly intended by the drafters. The ordinary 

meanings of "subjected", see, Random House Dictionary of the 
  

English Language 1893 (2d ed. unabridged 1987), when used as a 
  

verb and particularly when followed by "to", as it is in § 20, 

are: to bring under domination, control, or influence; to cause 

to undergo or to expose to something specified (i.e., in § 20, to 

segregation or discrimination); to make liable or vulnerable, lay 

open, or expose. Interestingly, in light of the antisubjugation 

principle discussed above, the word "subjugate", also a verb, is 
  

defined, id., as: to bring under complete control or 

"subjection"; to conquer, to master; to make submissive or 
  

subservient; to "enslave". The importance of the definitional 

interrelationship between the two terms, "subjugation" and 
  

"subjection", cannot be overlooked in the construction of the 
  

phrase, "be subjected to . . ." in Article first, § 20. 

In addition to the plain meaning rule, Connecticut courts 

have also ascribed to the fundamental tenet of constitutional 

construction which directs that a constitutional provision should 

be construed so as to give it effective operation and to suppress   

the mischief at which it was aimed, Palka v. Walker, 124 Conn.   

  

121, 198 A. 265 (1938) (emphasis added). The insertion by the 
  

drafters of very particularized language into the second equal 

protection clause of the Connecticut Constitution in 1965, in 

full awareness of the major expansion of political and civil 

rights then occurring, must have been aimed at suppressing the 

mischief of the continued subjugation of blacks and other target 

48  



mischief of the continued subjugation of blacks and other target 

groups in Connecticut. To follow the words "subjected to" with   

  

words as uncompromisingly negative as "segregation" and 

"discrimination" clearly indicates that the drafters did not 
  

  

intend "subjected to" to carry the sunnier meaning of "to bring 

indies government dominion," but rather to carry the full negative 

burden of the phrase -- to expose, to make vulnerable -- to 

subjugate -- to enslave. It is reasonable to assume that the 

drafters recognized that, in 1965, the fact that some Connecticut 

citizens were still being subjected to segregation and 

discrimination constituted the subjugation of these citizens to 

second-class citizen status and could no longer be tolerated in a 

state committed to the equal worth of all persons under the law. 

The Connecticut Supreme Court expanded on this recognition in 

Horton I by declaring that "in Connecticut, elementary and 
  

secondary education is a fundamental right, [and] that pupils in 

the public schools are entitled to the equal enjoyment of that 

  

right . . . ." Horton I, 172 Conn. at 648. Reading that holding 

into the language of Article first, § 20, it seems clear that the 

Connecticut Constitution forbids subjecting any person to 

segregation or discrimination in the exercise or enjoyment of 

their fundamental right to education. 

Connecticut courts have also adopted the rule of 

construction that effect must be given to every part of and each 

word in the constitution unless there is a clear reason for not 

Qoing so, Cahill v. leobold, 141 Conn. 1, 103 A.24 3818 (1954). 
   



  

"discrimination", the drafters must have intended the words to 

carry different import. Discrimination, as noted above by Tribe, 

Fiss, and others, implies an invidious act by a wrongdoer. But 

to this constitutionally impermissible act, the drafters added a 

second violation -- not to segregate, which might also imply a 
  

conscious act of isolation, but rather a person's being subjected 
  

  

to segregation, which arguably occurs whenever a person is left 

to endure a segregated condition which the state might reasonably 

prevent. By regarding state-imposed school district lines as 

sacrosanct and refusing to abridge them; by valuing a child's 

fundamental right to an equal education less highly than a town's 

interest in maintaining impermeable borders, which can of course 

be readily breached to achieve cost savings in police and fire 

protection or garbage removal, the state has knowingly subjected 

these children to segregation and to its known harmful effects, 

and has consented to their continued subjugation as second-class 

citizens in the majority culture. 

Many states have adopted the per se approach to government 

responsibility advocated here, based on the premise that racially 

unbalanced schools are inherently unequal and that the failure of 

the state to remedy this unequal treatment of minorities is a 

denial of equal protection regardless of the underlying causes. 

On this reasoning, intent and/or foreseeability are irrelevant. 

In People v. San Diego Unified School District, 19 Cal. App. 3d 
  

252, 96 Cal. Rptr. 658 (4th Dist. Ct. App. 1971), cert. denied 92 
  

S. Ct. 1288 (1972), the California State Court of Appeals, 

50 

 



  

S. Ct. 1288 (1972), the California State Court of Appeals, 

reversing the trial court, found that the knowing failure of the 

school board to remedy the imbalance, when it was shown to have 

resulted in inferior education for black students, was sufficient 

to attribute responsibility for curing the problem to the state. 

While recognizing that the presumption of educational inequality 

was rebuttable and that practical limits might make complete 

integration impossible, the court ultimately adopted an approach 

that would require a finding of government responsibility in most . 

if not all cases of racially imbalanced schools. Note, supra p. 

39, at 430. A similar approach was taken by the New Jersey 

Supreme Court in Jenkins v. Township of Morris School District, 
  

58 N.J. 483, 469 (1971). Recommending an. interdistrict remedy to 

solve racial imbalance, that court eschewed the seemingly 

inviolate nature of school district lines, saying "governmental 

subdivisions of the state may readily be abridged when necessary 

to vindicate state constitutional rights and policies." The 

holdings in Horton I-III and the principle of "basic fairness" 
  

which the Connecticut Supreme Court announced as underlying all 

equal protection cases under the Connecticut Constitution in 

Moscone v. Manson, 440 A.2d 848 (1981), militates in favor of 
  

this approach in Connecticut, particularly in light of the clear 

and convincing evidence which we now possess and of which the 

state is fully aware (see discussion infra) in re: the severe 

social, academic, and intellectual detriments suffered by 

children in segregated schools as opposed to those in racially 

51 

 



  

The state's own experts originally recommended just such a 

per se approach to the segregative conditions in the Hartford 

area schools, as well as in other metropolitan areas throughout 

Connecticut, calling for "collective responsibility" among the 

cities and their contiguous and adjacent suburbs in eradicating 

racial imbalance in the schools. See A Report on Racial/Ethnic 
  

Equity and Desegregation in Connecticut's Public Schools, 
  

Prepared for Presentation to the Connecticut State Board of 
  

Education by The Committee on Racial Equity, Appointed by the 
  

Commissioner of Eduction, Conn. St. Bd. of Educ., at 11-18 (Jan.   

1988). The state's knowing failure to eradicate the condition of 

metropolitan-wide segregation currently existing in Connecticut 

is all the more intolerable because of the state's power, through 

both its acts and omissions, to "define expectations, confer 

legitimacy, establish a status quo, and thus necessarily shape 

the nature and distribution of interests and attitudes in society 

itself." Tribe, supra p. 16, at 1078. By refusing to resolve 

the problem, the state affirms this aspect of the status quo, 

racial imbalance in metropolitan-area schools and its effects, as 

inevitable. Surely this is a constitutionally impermissible 

result. 

b. A per se approach to seqregative condition under 
  

the Connecticut Constitution is supported by 
  

empirical research studies which unequivocally 
  

52 

 



  

affirm the value of racially balanced schools to 
  

minority and white students alike, to their 
  

parents, and to the society at large. Deprivation 
  

of an opportunity to attend such schools in 
  

metropolitan areas such as Hartford and its 
  

surrounding suburbs is a per se denial of the 
  

fundamental right to equal educational 
  

opportunity, mandated by Horton I. 
  

"In the short run, it may seem to be the easier course 
to allow our great metropolitan areas to be divided up 
each into two cities -- one white, the other black -- 
but it is a course, I predict, our people will 
ultimately regret." 

Justice Thurgood Marshall, dissenting in Milliken v. Bradley, 418 
  

U.S. at 814. 

It seems especially fitting at the time of Justice 

Marshall's retirement from the Supreme Court to recall these 

words from Milliken and to use them as a starting point for 
  

assessing the results of school desegregation plans in the 

nation's cities. There is a bittersweet irony in this 

assessment. James Liebman has answered the question, "Is school 

desegregation dead?" by observing that school desegregation 

appears to be "alive and well" throughout the South in cities 

like Charlotte-Mecklenburg, Greenville, Jacksonville, Louisville, 

Nashville-Davidson, and Tampa-St. Petersburg, as well as in 

cities in the North such as Buffalo, Columbus, Dayton, Denver, 

Minneapolis, St. Louis, San Diego, and Wilmington-New Castle 

53 

 



  

where mandatory school desegregation plans were initiated. 

Liebman, supra p. 6, at 1463, 1465-67 and nn. 6 & 7. To this 

exemplary list must be added Stamford, Connecticut, which alone 

among Connecticut's cities has succeeded in effectively 

integrating its schools, also under a mandatory school 

desegregation plan. The most authoritative current research has 

established the fact that tremendous progress has been achieved 

in areas with court or administratively-ordered desegregation 

plans, whereas little or no progress has been noted in 85% of 

districts without such plans. Id. at 1467-69, citing F. Welch 

and A. Light, New Evidence on School Desegregation, 40, 67, and 
  

Table 12 (U.S. Commission on Civil Rights, Clearinghouse Publ. 92 

1987). The same research has shown that the highest level of 

progress has been achieved in areas in which the desegregation 

plan was mandatory rather than voluntary and where the plan 

included interdistrict desegregation techniques such as pairing 

and clustering. Countywide plans were particularly effective. 

The irony, of course, is that many such plans were implemented in 

the South which, as a region, has demonstrated more progress in 

integration than any other in the country. ld. at 6, Tables 1, 

Al, and A2. 

In the generation since these executive branch and 

court-ordered desegregation plans were initiated, widespread 

progress has been substantiated through empirical research, 

progress which could only be predicted in 1954. Writing in 1965, 

54 

 



  

progress which could only be predicted in 1954. Writing in 1965, 

Fiss catalogued the various harms which were then said to result 

from segregation: the psychological harm to black children, who 

feel insult and stigma whether their schools have been de jure or 

de facto segregated; the academic and intellectual harms 

resulting from inferior school plants, educational materials, 

teachers, and curriculums; and the perpetuation of social 

barriers which results from minority children being "deprived of 

one further opportunity to develop relationships with members of. 

the dominant class." Fiss, supra p. 26, at 568-570. Fiss 

acknowledged the difficulty in drawing causal connections in the 

absence of empirical data showing that such harms can be remedied 

by attacking the segregated condition itself, but argued that 

support for this proposition "is suggested by the embryonic 

indications of improved . . . achievement by [minority students] 

in integrated schools." Id. at 568. 

The indications are no longer embryonic. Research data now 

unequivocally shows that minority performance in desegregated 

schools has improved. See M. Weinberg, The Search for Quality 
  

Integrated Education 146-76 (1983) (reviewing literature); Taylor 
  

& Brown, Equal Protection and the Isolation of the Poor, 95 Yale 
  

L.J. 1700, 1700-11, nn. 36-42 (1986). Minorities' performance on 

standardized achievement tests have risen in desegregated 

settings. Mahard & Crain, Research on Minority Achievement in 
  

Deseqgregated Schools, in The Consequences of School Deseqregation 
  
  

124 (C. Rossell & W. Hawley eds. 1983). It is well documented 

55 

 



  

schools have improved. T. Cook, Black Achievement and School 
  

Desegregation 985 (1984) (finding that black students educated in   

desegregated schools are more likely to graduate from high school 

and college and to major in more remunerative subjects). Liebman 

has also cited research, see, supra p. 6, at 1624, n.675, 
  

indicating that in addition to improvements in standardized test 

scores and career options, minority students have made 

substantial gains in I.Q. scores which erase a third to one half 

of the overall difference between black and white students. 

These gains, widely believed to be due to the changing 
  

expectations of black students by teachers in deseqgreqgated 
  

settings, are strongest when deseqregation begins in the early 
  

grades, has a metropolitan-wide plan, and takes place in 
  

predominately white schools with a critical mass of black 
  

students. Braddock & McPartland, The Social and Academic   

  

Consequences of School Desegregation, Equity & Choice, Feb. 1988, 
  

at 6. Moreover, "the preponderance of empirical evidence 

suggests that [desegregated] schools can contribute to reducing 

the social stigma of being black . . . [and also] make both black 

and white students more comfortable in racially integrated 

settings." Liebman, supra p. 6, at 1630 citing sources noted at 

n. 696. 

None of this progress has been achieved, as had been feared 

in 1954, at the expense of white Students’ progress, nor has 

racial animosity or "white flight", which may occur at the 

beginning stages of a given implementation plan, been the 

56 

 



  

ee » 

beginning stages of a given implementation plan, been the 

permanent result. Id. at 1621-1630 and particularly nn. 664-693. 

  See also F. Welch and A. Light, supra p. 54, at 3-4. These 

results have been further documented by the State of 

Connecticut's own experts, relying inter alia upon the Mahard and 
  

Crain study cited above as well as their own commissioned study 

by J.W. Schofield, Review of School Desegregation's Impact on 
  

Elementary and Secondary School Students, State of Connecticut, 
  

Board of Education (1989). 

It should also be noted that this solid empirical record of 

progress has not been matched by any of the alternative 

approaches to providing equal educational opportunity in racially 

isolated settings, such as "separate but enhanced schools" 

(termed the "gilded ghetto" approach by Liebman and others), 

"effective schools", school-based management methodologies, all- 

minority high schools, minority control of city school boards and 

other political institutions, and decentralized school districts. 

Liebman, supra p. 6, at 1489 n. 142. This failure by minority 

students to achieve equal educational and social progress in 

segregated as opposed to integrated school settings, i.e., under 

plans which focus on "equal treatment and equal access" or other 

"make-do in segregated schools" methodologies, has also been 

noted by the Governor's Commission on Quality and Integrated 

Education, the state's second group of experts which has stressed 

the vital importance of racially balanced school settings to the 

school achievement and to the social adjustment of minority 

57 

 



  

3 
$ ACL 

Equity and Excellence: A Vision of Ouality and Integrated 
  

Education for Connecticut, The Report of The Governor's 
  

Commission on Quality and Integrated Education (December 1990.) 

Perhaps if the research data were not so conclusive, it 

would still be possible to argue that the state can provide equal 

educational opportunity in the public schools in ways other than 

assuring integrated school settings to all Connecticut public 

school students. But the evidence is now in, and it is 

overwhelming. In Brown I, the U. S. Supreme Court declared that 

segregated schools are inherently unequal, largely on the basis 

of tentative sociological data which appeared to point in that 

direction. There is now irrefutable proof that this statement 

was correct. Separate but equal can never be equal. To deprive 

students, their parents, and their communities of the documented 

social, intellectual, academic, and career achievements possible 

in integrated schools is a per se deprivation of the fundamental 

right to equal educational opportunity mandated in Horton I   

because we now know, and the state well knows, that a like 

opportunity cannot be provided in any other way. 

Like the minority children in the Detroit public schools, 

which both the federal district court and the U. S. Supreme Court 

recognized as impervious to racial balancing without an 

interdistrict plan, minority children in the Hartford schools are 

unable to obtain an equal educational opportunity because their 

schools are now attended by a school population of which over 90% 

are members of minority groups. These students, as well as 

58 

 



* 

nonminority students in both city and suburban schools, are also 

deprived of a racially-balanced school setting which is mandated 

for all students under Connecticut school law. 

By adopting a constitutional interpretation which says, as 

the Supreme Court in effect said in Milliken, "We know that 

Hartford-area school children are being deprived of an equal 

educational opportunity due to their forced attendance in 

racially unbalanced schools within state-authorized attendance 

zones -- but unless affirmative discriminatory acts of state 

officials can be shown to have caused the problem, the state has 

no duty to correct it," the court will be perpetuating the 

serious error made at the federal level which has made 

metropolitan-wide segregation all but impossible to remedy in the 

federal courts. The court will also be reducing the affirmative 

duty of the state to provide for equal educational opportunity in 

racially balanced schools by appropriate legislation to 

meaningless rhetoric. Instead, the court should build on the 

excellent foundation laid by Horton I-III, perhaps taking the 
  

lead from other states such as Montana where in Helena Elementary 
  

School District v. State, 769 P.2d 684 (Mont. 1989), the Montana 
  

Supreme Court declared a fundamental right to education and held 

that the state constitutional guarantee of equality of 

educational opportunity was not merely an aspirational goal but a 

real guarantee, binding on all three branches of government, 

whether at the state, local, or school district level. Id. at 

684-688. Surely, in light of what we now know can be achieved by 

59  



* 

making good on such a guarantee, Horton requires no less.