Memorandum of Decision on the Defendants' Motion for Summary Judgment

    NO. 360977 

MILO SHEFF, ET AL. 

V. 

WILLIAM A. O'NEILL, ET AL. 

SUPERIOR COURT 

JUDICIAL DISTRICT OF 

HARTFORD-NEW BRITAIN 

AT HARTFORD 

FEBRUARY 24, 1992 

MEMORANDUM OF DECISION 
  

DEFENDANTS 
ON THE 

MOTION FOR SUMMARY JUDGMENT 
  

The defendants have moved for summary judgment in this 

case claiming that there is no dispute as to the material facts 

and that judgment should be entered as a matter of law in their 

favor because "the state has not engaged in conduct which 

violates the state constitution and because there is no 

< 

judicial remedy available to the plaintiffs."   
  

 



    

They make three specific claims in support of their 

motion: 

1. The plaintiffs’ constitutional rights have not been 

violated because the conditions alleged in their complaint are 

not the products of state action. 

2. The plaintiffs' constitutional rights have not been 

violated because "the state has satisfied any affirmative 

obligation which arises out of the constitution.” 

3. The controversy is not justiciable. 

This court; in its memorandum of decision dated May 18, 

1990, on the defendants' motion to strike, considered the first 

of the foregoing claims in the context of that motion at pages 

11 through 14, and ruled that at least at that stage of the 

proceedings the plaintiffs were entitled to a full hearing on 

the merits of their claims. The plaintiffs assert that the 

court should not reconsider that issue because the law of the 

case has been established by the court's prior decision. 

"New pleadings intended again to raise a question of law 

which has been already presented on the record and determined 

adversely to the pleader are not to be favored." Wiggin v. 
   



      

Federal Stock & Grain Co., 77 Conn. 507 at 516. Where a matter 
  

has previously been ruled upon by a judge in the same case, he 

may treat that decision as the law of the case and should 

hesitate to change his own ruling if he is of the opinion that 

it was correctly decided, "in the absence of some new or 

overriding circumstance." Breen v. Phelps, 186 Conn. 86, 99. 
  

The principal factual basis for the defendants' claim 

that proof of some type of state action is an indispensable 

element of the plaintiffs' constitutional claims is an 

affidavit of Gerald L. Tirozzi, a former commissioner of 

education for the state of Connecticut, which states that with 

the exception of regional school districts, "existing school 

district boundaries have not been materially changed over the 

last 80 or so years." He also asserts that no child in this 

State, to his knowledge, has ever been assigned to a school 

district in this State on the basis of race, national origin, 

socio-economic status, or status as an "at risk" student, and 

that children have always been assigned to particular school 

districts exclusively on the basis of their city or town of 

residence. 

  

 



      

The plaintiffs argue that the requirement of "state 

action" is not a prerequisite for the establishment of their 

constitutional claims because they have alleged "de facto” 

rather than "de jure" racial and economic segregation. The 

theory of their case as they state it in their brief (p. 5) is 

that they are seeking relief from "the harms that flow from the 

present condition of racial and economic segregation that in 

fact deprives Hartford area school children of their right to 

equality of educational opportunity [and that] the intent of 

the defendants is therefore immaterial.” 

Public schools are creatures of the state, and whether 

the condition whose constitutionality is being attacked is 

"state-created or state—assisted or merely state—perpetuated 

should be irrelevant" to the determination of the - 

constitutional issue. Keyes v. School District No. 1, Denver, 
  

Colorado, 413 U.S. 189, 227 (1973). Educational authorities on 
  

the state and local level are so significantly involved in the 

control, maintenance and ongoing supervision of their school 

systems as to render existing school segregation "state action” 

under a state's constitutional equal protection clause. 

  

 



      

Crawford v. Board of Education of the City of Los Angeles, 551 
  

P.2d 28, 36 (Cal. 1976). 

The defendants' claim, as stated in their brief (p. 50), 

that "direct and harmful state action 1s necessary to support 

claims under the education provision in Article VIII, §1 of the 

state constitution", is based on the Supreme Court's recent 

decision in Savage v. Aronson, 214 Conn. 256, which upheld the 
  

constitutionality of the action of the commissioner of income 

maintenance in reducing the period of eligibility for families 

on AFDC from 180 to 100 days. One of the claims made by the 

plaintiffs in that case was that their children's 

constitutional rights to equal educational opportunity would be 

violated because of the harmful effect upon them of frequent 

school transfers. Id. 286. : 
9 

The Court's response to this argument was that the 

children's hardship was a result of the "difficult financial 

circumstances they face, not from anything the state has done 

to deprive them of the right to equal educational opportunity." 

Justice Glass in his dissent (p. 288) stated that the majority 

had apparently adopted the state's argument that it was not 

  

 



    

responsible for the consequences of poverty. 

The United States Supreme Court has also stated in the 

public housing context that "the Constitution does not provide 

judicial remedies for every social and economic ill." Lindsey 

v. Normet, 405 U.S. 56 at 74 (1972). It has acknowledged, 
  

however, that although public education is not a right 

guaranteed by the Constitution, it is nevertheless not merely 

some governmental "benefit" indistinguishable from other forms 

of social welfare legislation. Plyler v. Doe, 457 U.S. 202, 
  

221-22 (1982). 

It is also important to recognize that the plaintiffs in 

this case have raised an issue that was not decided in Horton 

v. Meskill, 172 Conn. 615, namely, whether the state's 
  

constitutional obligation under its Education Clause imposes 

requirement of a specific substantive level of education" in 

particular area of the state. See Abbott v. Burke, 575 A.2d 
  

359 at 368 (N.J. 1990). In order to rule on the plaintiffs’ 

claims, therefore, the court must more particularly define "the 

scope and content of the constitutional provision[s]" upon 

which the plaintiffs rely. Id. 367.    



For the foregoing reasons, as this court stated in its 

ruling on the defendants' motion to strike, the question of 

whether or not the state's action or failure to act rises to 

the level of a constitutional violation goes to the merits of 

this case because it constitutes a "bona fide and substantial 

question or issue in dispute ... which requires settlement 

between the parties ..." by way of the declaratory judgment 

which the plaintiffs seek. Practice Book §390(b). 

The defendants' second claim in support of their motion 

is that "the state has satisfied any affirmative obligation 

which arises under the constitution." They point to the 

"undisputed fact" that the plaintiffs have been unable in the 

course of pretrial discovery to disclose "any distinct 

affirmative act, step or plan which, if implemented, wou gd have 

sufficiently addressed the conditions about which the 

plaintiffs complain.” 

They also argue that despite the complexity of the 

problems reflected by the plaintiffs' inability to offer any 

alternative approaches that would pass constitutional muster, 

the general assembly has adopted, and the defendants have        



      

implemented, a great number of programs "specifically designed 

to assist the Hartford public schools ... in their effort to 

meet the special needs of urban children who are largely 

members of minority groups, often poor, and, in large numbers, 

'at risk'". Defendants' Brief, p. 61. They have submitted a 

large amount of data furnished by the department of education 

(Exhibits 3 and 4) describing the various state and 

interdistrict programs that have been developed to address 

these problems. 

The materials furnished by the defendants tend to show 

that the objectives of these programs are being met and are 

having a positive effect on the problems that they were 

designed to address. The plaintiffs, on the other hand, have 

submitted counteraffidavits from Hartford area school ‘ 

administrators who state that in their opinion the Se ta’s 

efforts have been ineffectual and that the fiscal and 

statistical data in the defendants' affidavits are inaccurate 

and misleading. 

Although the defendants acknowledge that Article VIII, 

§1, imposes an affirmative obligation on the state to provide 

  

 



      

free public elementary and secondary education and also makes 

education a fundamental right, they claim that it cannot be 

construed either alone or in conjunction with the equality of 

rights clause (article first, §1), and the equal protection 

clause (article first, §20), to impose a specific obligation on 

the general assembly to address the problems of which the 

plaintiffs complain in any way other than it deems appropriate 

in its legislative judgment. The defendants' argument, in 

essence, is that what is "appropriate legislation" within the 

meaning of the Education Clause MAY be determined by the courts 

only where it involves the funding of the state's educational 

system but they may not constitutionally impose a requirement 

of a specific substantive level of education. 

9 
The state's arguments in this case are much the same as 

those made in Abbott v. Burke, 575 A.2d 359 (N.J. 1990), to 
  

justify a ruling by the state commissioner of education that 

his department's funding and administration of the Public 

School Education Act, which that court had found to be 

constitutional in prior cases "assured a thorough and efficient 

education" as required by the state constitution. Id. 365. 

  

 



      

The court reversed the commissioner's ruling on the ground that 

"[tlhe proofs compellingly demonstrate that the traditional and 

prevailing educational programs in these poorer urban schools 

were not designed to meet and are not sufficiently addressing 

the pervasive array of problems that inhibit the education of 

poorer urban children." Id. 363. 
  

The New Jersey Supreme Court stated in Abbott that the 

constitutionally mandated educational opportunity was not 

limited to "expenditures per pupil, equal or otherwise, but 

[was] a requirement of a specific substantive level of 

education.” Id. 368. It should also be noted that the opinion 

makes reference to the failure of the so-called "effective 

schools" programs in both New Jersey and Connecticut to fully 

achieve their goals. Id. 404-405 n.38. : 
3 

The defendants' restrictive views as to the permissible 

scope of judicial inquiry into the state's constitutional and 

statutory responsibilities in the field of public education 

bring to mind the views of the lone dissenting Justice in 

Horton I, who took the position that the constitution requires 
  

only "legislation which makes education free." Horton v. 
  

-10- 

  

 



      

Meskill, 172 Conn. 615 at 658. Nevertheless, in his dissenting 

opinion, he acknowledges that a minimal substantive level of 

education may be constitutionally required in that "[a] town 

may not herd children in an open field to near lectures by 

illiterates [but] there is no contention that such situations 

exist, or that education in Connecticut is not meaningful or 

does not measure up to standards accepted by knowledgeable 

leaders in the field of education.” Id. 639. 

The plaintiffs in this case have alleged that they have 

been deprived of a "minimally adequate education" and are 

therefore entitled to a judicial determination of whether the 

constitution requires a particular substantive level of 

education in the school districts in which they reside. 

The defendants' final claim that the conditions of which 

the plaintiffs complain are not justiciable was thoroughly 

briefed and argued on the defendants' motion to strike, and the 

court's reasons for rejecting that claim are fully stated at 

pages 7 through 11 of the court's memorandum. 

The court will treat that portion of its decision on the 

motion to strike as the law of the case because "it is of the 

k4 3 

  

 



    

opinion that the issue was correctly decided" and the 

defendants' argument is repetitive. Breen v. Phelps, 186 Conn. 
  

86, 99. "Parties cannot be permitted to waste the time of 

courts by the repetition in new pleadings of claims which have 

been set up on the record and overruled at an earlier stage of 

the proceedings." Hillyer v. Borough of Winsted, 77 Conn. 304 
  

at 306. 

For all of the foregoing reasons, the defendants’ 

motion for summary judgment is denied.