Fax to Berrien From Hodgkiss RE: Suggested Changes to Report Continued

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state of the state address, called on the legislature to 

address ‘(t]he racial and economic isolation in 

Connecticut’s school system,’ and the related educational 

inequities in Connecticut’s schools." Paragraph 66b, which 

is admitted by the defendants only insofar as it alleges the 

passage of the public act, states that " [als in the past, 

the legislature failed to act effectively in response to the 

Governor’s call for school desegregation initiatives [and 

instead], a voluntary desegregation planning bill was 

passed, P.A. 93-263, which contains no racial or poverty 

concentration goals, no guaranteed funding, no provisions 

for educational enhancements for city schools, and no 

mandates for local compliance." 

In the introduction to their reply brief dated 

August 16, 1993, the plaintiffs refer to the "commonality" 

of the interests of the parties in this case, particularly 

as reflected in the deposition testimony of Tirozzi, 

Ferrandino, Margolin and Mannix, as well as in Governor 

Weicker’s message to the legislature. They go on to state 

that the first of the major legal issues that must be 

addressed by the court is, as they put it, "the nature of a 

state action requirement." 

The issue of whether state action exists under the 

facts and circumstance of this case was first raised by 

the defendants in their motion to strike, and was denied 

at that time as being premature, and 

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wag again raised by the defendants in their motion for 

summary judgment on the ground that state action of some 

kind must be found to exist before the constitutional issues 

raised by the plaintiffs in the complaint may be considered, 

and again denied by this court because, "the question of 

whether or not the state’s action rises to the level of a 

constitutional violation goes to the merits of the present 

case . . ." Sheff, supra, 42 Conn. Sup. 176. 

Professor Lawrence Tribe, in his treatise, American 

Constitutional Law, states in his introduction to chapter 18 

entitled "The Problem of State Action", that: 

[njearly all of the Constitution’s self -executing, 
and therefore judicially enforceable, guarantees 
of individual rights shield individuals only from 
government action. Accordingly, when litigants 
claim the protection of such guarantees, courts 
must first determine whether it is indeed 
government action -- state or federal -- that the 
litigants are challenging. 

Tribe, supra, American Constitutional Law, p. 1688 (2d EQ. 
1988) . 

Therefore, the issue of whether state action exists under 

the facts and circumstances of this case must now be 

addressed in the light of all the relevant evidence that has 

been offered on that question in the course of the trial. 

Christopher Collier, a professor of history at the 

University of Connecticut and the officially designated 

state historian for Connecticut, was called as a witness by 

the plaintiffs and testified (16/53) that education in 

Connecticut "has always been under the full control of the 

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The preliminary injunction that was denied by Justice 

Douglas in Gomperts, supra, 404 U.S. 1237, had previously 

been denied by the District Court for the Northern District 

of California in Gomperts v. Chase, 329 F. Supp. 1192 (N.D. 

Cal. 1971), based on that court’s conclusion that " [t]he 

most that can be said for plaintiffs’ showing is that the 

district has not moved as rapidly and effectively to adjust 

racial imbalance as plaintiffs would like [but this] 

involves no constitutional deprivation." 1Id., 1196. The 

court also stated that "[i]f school boards are permitted, as 

they are, to do nothing to cure racial imbalance which is 

the product of a neighborhood plan impartially administered, 

it would be self defeating to hold" that the board cannot 

constitutionally take curative action [and if) neutrality is 

not unconstitutional, certainly action designed toPcure 

undesirable imbalance is not, even though it may fall short 

of its goal." 14. 

Finally, another expression of Douglas’s views can be 

found in his dissent from the Supreme Court's affirmance, 

without opinion, of Spencer v. Kugler, 326 F. Supp. 1235, 

1237 (D. N.J. 1971), aff'd 404 U.S. 1027 (1972), in which 

the plaintiffs claimed that because the New Jersey statutes, 

subject to certain exceptions, required that school district 

boundaries be coterminous with municipal boundaries, racial 

balance became "mathematically impossible in many districts, 

thus providing unequal educational opportunities." Id. ’ 

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municipalities are beyond the pale of either judicial or 

legislative intervention." 1Id., 1240. The court therefore 

finds that the plaintiffs have failed to prove that "state 

action is a direct and sufficient cause of the conditions" 

which are the subject matter of the plaintiffs’ complaint as 

alleged in the defendants’ sixth special defense, and that 

accordingly the constitutional claims asserted by the 

plaintiffs need not be addressed. 

For the foregoing reasons, judgment ig entered in favor 

of the defendants. 

  

Judge o he Superior Court 

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