Notice of Service of Defendants' Response to the Plaintiffs' Sixth Request for Production of Documents with Certification

    Cv89-0360977sS 

  

MILO SHEFF, et al. : SUPERIOR COURT 

Plaintiffs 

¥. : JUDICIAL DISTRICT OF 

2 HARTFORD/NEW BRITAIN 

WILLIAM A. O'NEILL, et al. : AT HARTFORD 

Defendants : SEPTEMBER 20, 1991 

  

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO DEFENDANTS’ 
MOTION FOR SUMMARY JUDGMENT 
  

  

Plaintiffs Milo Sheff et al. (7Plaintiffs”) submit this 

memorandum of law in opposition to the Motion for Summary 

Judgment filed by the defendants William A. O'Neill et al. 

(“Defendants”) on July 8, 1991, in this action. 

I INTRODUCTION 

Plaintiffs, young schoolchildren in the Hartford and West 

Hartford public schools, have brought this lawsuit to vindicate 

their personal rights to an equal opportunity for a free public 

education, and to enforce the State's affirmative duty to provide 

that opportunity. They have made four claims: 

first, the defendants have permitted school districts 
to emerge in the Hartford area that are sharply 
segregated, de facto, on grounds of race and ethnic 
background (Plaintiffs’ Complaint, Paragraphs 73-75); 

  

  

 



  

  

    

second, although the defendants recognize that racial 
and economic segregation has serious adverse 
educational effects, denying equal educational 
opportunity, they have permitted it to continue 
(Plaintiffs’ Complaint, Paragraphs 76-78); 

third, the segregation that has arisen by race, by ethnicity 
and by economic status places Hartford schoolchildren at a 
severe educational disadvantage, denies them an education 
equal to that afforded to suburban schoolchildren, and fails 
to provide a majority with even a “minimally adequate 
education” (Plaintiffs’ Complaint, Paragraphs 79-80); and 

fourth, under Connecticut’s education statutes, the 
defendants are obliged to correct these problems, and their 
failure to have done so violates the schoolchildren’s rights 
(Plaintiffs’ Complaint, Paragraphs 81-82). 

The remedy plaintiffs seek is a declaration by this Court 

that the present circumstances violate the Connecticut 

Constitution, and an injunction enjoining the defendants from 

failing to provide equal educational opportunity. 

In the defendants’ Motion for Summary Judgment they claim 

that (1) the conditions are not the result of state action, (2) 

the state has satisfied its affirmative obligation and (3) the 

controversy is not justiciable. To a large extent this motion is 

simply the defendants’ latest effort to rehash their previous 

arguments set forth in their Motion to Strike. 

Issues (1) and (3) were explicitly raised in the defendants’ 

Motion to Strike, which this Court denied on May 18, 1990. Issue 

(1), which concerns the construction that should be given to the 

three state constitutional provisions in question, Article First, 

$81 and 20, and Article Fighth, §l1, was discussed in detail at 

  

  

  
 



  

    

    

pages 11-14 of this Court’s Memorandum of Decision on the 

Defendants’ Motion to Strike. This Court indicated that a 

conclusive disposition of this issue prior to trial would not be 

appropriate. Likewise, the issue of justiciability was discussed 

in detail at pages 5-11 of the Court's decision, with the same 

result. These rulings being the law of the case, "a judge should 

hesitate to change” the ruling unless there is “some new or 

overriding circumstance.” Carothers vy, Capozziello, 215 Conn. 
  

82, 107, 574 A.2d 1268 (May 22, 1990). The defendants point to 

no new or overriding circumstance to justify reexamination of 

these issues before trial. Indeed, in their 90-page brief, there 

is not one case cited that has been decided since May 18, 1990. 

The test for summary judgment is a strict one. Practice 

Book §384 provides that summary judgment “shall be rendered 

forthwith if the pleadings, affidavits and any other proof 

submitted show that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a 

matter of law.” Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 
  

A.2d (1991). The defendants must show the absence of 

any genuine issue as to all material facts, which under 

applicable principles of substantive law, entitle them to 

judgment as a matter of law. To satisfy their burden, the 

movants must make a showing that it is quite clear what the truth 

is, and that excludes any real doubt as to the existence of a 

  

  

 



  

  

    

  
  

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genuine issue of material fact. Fogarty v. Rashaw, 193 Conn. 

442, 445, 476 A.2d 582 (1984) (emphasis added). Fogarty is 

directly applicable in this case. There the court held that 

summary judgment was improper and did not even consider the 

opposition papers because the papers filed by the moving party 

were insufficient as a matter of law. Similarly, the papers 

filed by the defendants herein fail to satisfy the minimum 

threshold for the grant of summary judgment. 

II. FACT 1 IS IRRELEVANT TO THE CLAIMS BEFORE THIS COURT 

Defendants cavalierly assert the existence of three facts 

that they claim are undisputed by plaintiffs. Closer scrutiny of 

each of these, however, belies defendants’ conclusions in this 

regard. Indeed, plaintiffs take serious issue with each “fact” 

as stated by defendants. For purposes of defendants’ Motion, 

however, it is neither timely nor appropriate for this Court to 

resolve the factual dispute. The mere existence of even one 

genuine issue of material fact is enough to defeat defendants’ 

Motion for Summary Judgment. Moreover, as the discussion below 

demonstrates, even if there were no factual dispute, defendants 

are not entitled to judgment as a matter of law. 

Defendants’ “Fact 1”, set out at pages 6-9 of their brief, 

is that they have not affirmatively assigned children to the 

Hartford public schools based on their race, national origin or 

  

  
 



  

  
socioeconomic status. This statement is neither relevant to 

plaintiffs’ case nor accurate. 

A. Intent 

As plaintiffs have repeatedly maintained and as the 

defendants specifically acknowledge in their motion,l it is the 

present condition of racial segregation in the region’s schools 

that violates the Connecticut Constitution as a matter of law, 

and the harms that flow from the present condition of racial and 

economic segregation that in fact deprive Hartford area school 

children of their right to equality of educational opportunity. 

The intent of the defendants is therefore immaterial. 

Even if Fact 1 were considered material, that would 

merely put the burden on the plaintiffs to provide evidence to 

rebut that fact. The purpose of a summary judgment motion is to 

determine whether there exists an issue of fact, not to try that 

fact, Spencer v. Good Earth Restaurant Corporation, 164 Conn. 
  

  

1844 197, 319 A.2d 403 (1972). See Conference Center Ltd. v. 

TRC, 189 Conn. 212, 217, 228, "45% .A.2d 857 (1983) (issues 

"necessarily fact bound require a full trial and preclude summary 

judgment”); Batick v. Seymour, 186 Conn. 632, 645-46, 443 A.2d 
  

471 (1982) ("genuine issue over the defendant’s intentions”). 

      N “[Tlhis is a case where the plaintiffs charge ‘de facto’, not 
‘de jure’, segregation.” Memorandum in Support of Defendants’ 
Motion for Summary Judgment ("Def. Br."”) at 7. 

  

  

  

 



  

  
  

    

B. State Action 
  

Defendants have claimed that the requisite “state 

action” is not present here, because, as they argue, the state 

has taken no affirmative steps to cause segregation. As 

plaintiffs have tried to impress upon the Court, the state's 

argument has no basis in law. The state controls public 

education, and the state has an affirmative duty to guarantee 

equal educational opportunity. The extensive involvement of the 

state satisfies every standard of state action of which 

plaintiffs are aware. 

The defendants misunderstand the concept of state action 

as 1t applies to this case. While there is ample evidence of 

state actions that caused the problems in the present case, proof 

of such state action is not a necessary element for liability. 

In Horton I, there was no finding that the state created the wide 
  

variations in property tax revenues available to the various 

towns. Yet, the Supreme Court found that the State bore the 

affirmative responsibility, in providing a free public edubation; 

to mitigate those private economic differences. 

Even the case the defendants most heavily rely on, 

Savage v. Aronson, recognizes “the burden imposed on the state by 
  

our decision in Horton to insure approximate equality in the 

public educational opportunities offered to the children through- 

out the state;....” 214 Conn. 256, 286-87 (1990) (emphasis added). 

  

  

 



  

  

    

Savage was a housing case. The 30-page opinion primari- 

ly concerns procedural issues, the proper construction of state 

housing statutes, and due process of law (pp. 257-284). The 

Horton issue appears at the very end and the Supreme Court 

disposes of it quickly on the ground that Horton does not 

"guarantee that children are entitled to receive their education 

at any particular school or that the state must provide housing 

accommodations for them and their families close to the schools 

they are presently attending.” 214 Conn. at 287. The plaintiffs 

make no such claims in the present case. Savage does nothing to 

advance the defendants’ cause; it reaffirms the vitality of 

Horton. 

As ‘this Court noted in ‘its decision on the Motion to 

Strike (p. 12), the defendants are resurrecting Justice 

Loiselle's. dissent in Horton v. Meskill, 172 Conn. 615, 658, 3756 
  

A.2d 359 (1977)(Horton 1), that the constitution requires only 
  

that education be free. The majority in Horton rejected this 

interpretation of the Constitution, holding that public education 

is "a fundamental right,” that “pupils in the public schools are 

entitled to equal enjoyment of that right,” and that ‘any 

infringement of that right must be strictly scrutinized;” 172 

Conn. at 645, 646, 649. The court unanimously reaffirmed its 

holding in Horton v. Meslkill, A9% Conn. 24, 35, 486 A.2d 1099 
  

      

  
 



  

  (1985) (Horton III) and restated this position in Savage v. 
  

  

Aronson, 214 Conn. 258, 286, 571 A.2d 696 (1930). 

As in their Motion to Strike, the defendants once again 

strain to isolate constitutional provisions that, as Horton I and 
  

Horton III held, must be read together. The State -- under 
  

  

    

Article Eighth, $1, read in conjunction with Article First, $51 

and 20 -- is "required to assure to all students in Connecticut's 

free public elementary and secondary schools '‘a substantially 

equal educational opportunity.’” Horton III, 195 Conn. at 35. 
  

C. Affirmative Acts 
  

Nonetheless, if defendants persist in this line of 

argument, plaintiffs are prepared to show that defendants have 

taken numerous actions that have “caused” or “contributed to” 

segregation, and that defendants are responsible for existing 

school boundaries that exacerbate segregation. 

While defendants in the technical sense may not have 

checked the race or ethnic status of any particular child before 

assignment of that child to a particular school within Hartford, 

the defendants by their “affirmative acts” certainly have 

“confined” and perpetuated the confinement of Hartford children 

in racially segregated schools. 

It 1s clear from Defendants’ own documents that they 

also had knowledge of the growing racial isolation within 

Hartford city schools, and yet took no corrective action. As 

  
  

  
 



  

  

    

early as 1909, the year in which the State changed its policy and 

mandated student assignment coterminous with town district lines, 

there was established a pattern of black migration and racially 

identifiable housing within the city. 

In 1969, the General Assembly officially recognized this 

"growing racial isolation” (Report of the Governor's Commission 

on Quality and Integrated Education, Dec. 1990, p. 1) in some of 

its cities, including Hartford, and passed the Racial Imbalance 

Law in an attempt to correct racial imbalances within a single 

district. The Act has become an empty promise in Hartford, 

however, since its breadth was limited to intradistrict 

segregation and it took the State ten years to pass racial 

imbalance regulations. 

As outlined in Plaintiffs’ Amended Responses to 

Defendants’ First Set of Interrogatories (attached to defendants’ 

brief as Exhibit 1), nos. 1l, 2, 3, 4, there are numerous other 

"affirmative actions” by the State that have perpetuated the 

segregation of Hartford's school system, including the state 

requirement that school-age children attend public school within 

the school district where they reside, p. 8, the perpetuation of 

a massive program of new school construction and school additions 

or renovations in Hartford and the surrounding communities with 

direct knowledge of the increasing segregation in Hartford area 

schools, p. 9, the establishment and maintenance of an unequal 

  

 



  

    

    

and unconstitutional system of educational financing, p. 16, and 

the contribution to racial and economic segregation in housing, 

P. 18. 

These actions stand in contrast to other compelling 

circumstances where the State has passed appropriate legislation 

to allow students to cross district lines. ee C.G.S. §10-39 et 

seg. (Regional school districts); C.G.S. §10-76d(d) (special 

education); and C.G.S. §10-95 et seg. (vocational education). 

Indeed, the Governor's Commission Report even suggests that 

traditional school registration policies of local school 

districts should be changed to allow attendance at schools 

nearest a parent or guardian's place of employment (Report, p. 

5 Yo 

III. WHAT THE DEFENDANTS CHARACTERIZE AS FACT 2 IS AN ATTEMPT TO 
AVOID THEIR GOVERNMENTAL ROLE TO EFFECTIVELY ADDRESS 
UNCONSTITUTIONAL SITUATIONS 

Defendants assert, as an “undisputed fact,” that "there is 

not now, and never has been, a distinct affirmative act, step, or 

plan, which, if implemented, would have ‘sufficiently’ addressed 

the conditions about which the plaintiffs complain.” 

The defendants do not seem to understand that they, not the 

plaintiffs, have a duty under the Constitution. The gravamen of 

the plaintiffs’ claims is that the present condition is 

unconstitutional and the defendants have a duty to change the 

condition; plaintiffs are not complaining about what did or did 

  

  

  
 



  

  

    

not happen in the past. There certainly was no suggestion in 

Horton I or III that Barnaby Horton had a duty to prove what the 
  

defendants could have done to solve the school finance problem 

before he brought his lawsuit. 

The defendants’ real complaint may be that the plaintiffs 

have set forth no plan to solve the problem in the future. But 

that has to do with remedy, not liability. The plaintiffs will 

be prepared to discuss the remedy when the Court wishes to do so, 

but a motion for summary judgment is surely not the appropriate 

time. 

In any event, the defendants’ assertions are untrue. The 

history of racial segregation in Hartford's schools and the 

failure of its students to achieve minimally adequate education 

have been documented in task force report after task force report 

since 1965. Generated as an essential part of these reports are 

recommendations to remedy the problems which, for the most part, 

have been largely ignored. ee Plaintiffs’ Amended Response No. 

5 to Defendants’ First Set of Interrogatories, attached to 

defendants’ brief as Exhibit 1. For example, in 1965, the 

Committee of Greater Hartford School Superintendents put forth a 

Proposal to Establish a Metropolitan Effort Toward Regional 

Opportunity (METRO). The Legislative Commission on Human Rights 

and. Opportunities in 1968 issued a Plan for the Creation and 

Funding of Educational Parks. The Hartford Board of Education in 

  

  

 



  

  

  

  

    

1970 issued a report entitled “Recommended Revision in School 

Building Program.” 

In 1988, the defendants themselves issued a “Report on 

Racial/Ethnic Equity and Desegregation in Public Schools,” which 

recommended, inter alia, that the state,”through administrative 
  

and legislative means, endorse the concept of ‘collective 

responsibility’ for desegregating the public schools of 

Connecticut” (p. 11); "make available substantial financial 

incentives to school districts that plan and implement voluntary 

interdistrict programs” (p. 18); and “undertake broad-based 

planning with other agencies concerned with housing, 

transportation and other factors that contribute to segregation” 

(D+ 1319), None of these recommendations have been fully 

implemented. A year later, defendants reinforced the earlier 

recommendations in a report titled “Quality and Integrated 

Education: Options for : Connecticut,” which included such 

recommendations as a challenge program that would serve as a 

corporate component of the Interdistrict Cooperative Grant (p. 

35); enhancement of Project Concern (p. 36); refinement of summer 

school grant program (p. 36); development of magnet schools (p. 

39): advancement of school construction options (p. 39) and 

better recruitment of minority teachers. (p. 40). Again, in the 

two years since its issuance, the recommendations have not come 

to fruition. 

  

  

 



  

    

    

13a 

Most recently, although the Report of the Governor's 

Commission Report on Quality and Integrated Education, issued in 

December 1990, made many recommendations, (pp. 12-31), there has 

been virtually no agency or legislative response to these in the 

seven months since their issuance. Indeed, the legislature has 

flagrantly ignored some of the recommendations, including one to 

"increase funding to $2 million’ for interdistrict grants? and 

one to expand the Summer School Grant Program. 3 Report, pp. 15, 

There have been no regional efforts as described on page 12 nor 

has there been establishment of any Interdistrict Transfers Grant 

program as recommended on page 14. The State has failed to fund 

any significant expansion of Project Concern and has failed to 

fund any efforts to “reverse” the program in order for suburban 

students to attend school in Hartford. See Affidavit of John 

Allison, Executive Director of Capitol Region Education Council, 

attached hereto as Exhibit A, 94, p. 2. Only a few interdistrict 

programs funded by the state even apply to Hartford and all were 

funded at a level less than requested. Id. Other grant 

applications to address the racial and economic isolation, such 

as the Saturday Academy, Center for Regional Educational Policy 

and Action, Program to Advance Quality Integrated Education and 

  

2 The legislative response fell approximately $500,000 short of 
this recommendation. See Affidavit of John Allison, €8. 

3 The legislature failed to allocate any monies for this 
program. See Affidavit of John Allison, 418. 

  
  

  
 



  

  
  

    

Performance-Based Consequence-Driven Schools all went unfunded. 

Id. Recommendations to “provide, through the appropriate health 

department staff, preventive health-care programs at all schools 

where there is a significant percentage of low-income students;” 

and to “provide at least one year of preschool for all at-risk 

students,” Report, p. 20, have fallen on deaf ears. 

IV. THE ITEMS LISTED IN FACT 3 ARE INSUFFICIENT TO MEET THE 

DEFENDANTS’ BURDEN TO PROVIDE AN EQUAL EDUCATIONAL 

OPPORTUNITY FOR ALL STUDENTS. 

Lastly, defendants claim that plaintiffs do not dispute the 

fact that “the General Assembly has adopted and the defendants 

have implemented legislation designed to address the conditions 

about which the plaintiffs complain.” Plaintiffs make no such 

concessions. 

In light of the admitted fact that the Hartford public 

schools are about 90% minority and that the surrounding public 

schools, except for Bloomfield and Windsor, average about 90% 

non-minority (see defendants’ answer to 133 of the Complaint), 

the defendants’ 29-page list of “facts” supports plaintiffs’ 

position that the defendants have made a wholly inadequate 

attempt to address a monumental violation of constitutional 

rights. The list on its face provides no basis to enter a 

summary judgment. 

    

  
 



  

  
  

    

    

A. Not A Funding Case 
  

The defendants repeatedly forget that this is not a 

funding case. The fact that the state may have directed and 

continues to direct extra dollars into the Hartford system may 

have been a plausible defense if this case was a repeat of Horton 

v., Meslkill. But the funding formula for urban schools is not 
  

what 1s directly at issue here. It is the racial, ethnic and 

economic segregation which has caused the unequal educational 

opportunities that are at the heart of plaintiffs’ case. Even if 

some of the statements are material on finance issues, they fail 

to address all of the material issues. The statements, for 

example, do not address the detrimental effects of the racial and 

socioeconomic segregation in the schools of the Hartford area. 

See Affidavit of Hernan LaFontaine, former Superintendent of 

Schools, Hartford, attached hereto as Exhibit B. 

Moreover, the defendants’ evidence is silent on the 

issue of causation, for even if every factual statement made by 

the defendants is true, there remains a factual question about 

what results have been or will be accomplished. 

  

in Lomangino v. LaChance Farms, Inc., 17 Conn. App. 436, 

553 A.2d 197 (1989), the court reversed a summary judgment for 

the defendant because the defendant did not eliminate factual 

questions concerning the issue of proximate cause. Quoting four 

  

  

 



  

    
  

    

Supreme Court cases, the Appellate Court noted that “proximate 

cause is ordinarily a question. of fact.” 17 Conn. App. at 440. 

Finally, as presented below, an analysis of these 

“facts” demonstrates that there is no conceivable basis for 

summary judgment. 

B. Failure to Address Hartford's Special Needs 
  

The present financial commitment by the State to 

Hartford has no significant impact on the educational advantages 

that the children in the Hartford system enjoy. While it is true 

that Hartford receives a larger share of funding as compared to 

its suburban counterparts, Hartford's students start school with 

a number of burdens unlike those of any surrounding community. 

For instance, Hartford does receive substantial funds in special 

education, but no school system in the surrounding towns has a 

school population with such numbers of special education 

students. Similarly, while the State funds Hartford's bilingual 

programs, there is only one other system in the region that has 

had a sufficient number of limited English proficient students to 

warrant state funding for bilingual education. See Affidavit of 

Catherine Kennelly, Director of Financial Management, Hartford 

Public Schools, attached hereto as Exhibit C. 

A careful analysis of Defendants’ Exhibit 4 provides 

further evidence as to the ways in which this Exhibit either is 

misleading or grossly overstates the impact on the Hartford 

  
  

  

 



  

    

    

- 17 

school system. ee Affidavit of Catherine Kennelly, attached 

hereto. For instance, while there appears to be a slight 

increase in the amount of money the state has given to Hartford 

pursuant. to the Priority School District Grant and Drop-ocut 

Prevention Grant, these figures on their face do not take into 

account inflation as well as contracted salary increases. As a 

result, there is actually a net decrease in terms of staff 

avallability. Id. at p. 2. As to the amount of state aid as 2 

percentage of the overall budget, “there was a 3.24 percentage 

point increase in Hartford while a 2.76 percentage point increase 

in the suburbs. Therefore, the relative level of state funding 

has remained approximately equal, even though Hartford's system 

has grown substantially and at a much faster rate than the 

suburban communities.” Id. at p.s2. As to the EERA funding, 

some suburban communities received larger increases than Hartford 

on a percentage basis. Id. at p. 3. 

Furthermore, plaintiffs will present evidence that the 

educational resources currently provided through the combined 

efforts of the State are insufficient to meet the needs of 

Hartford schoolchildren and unequal as compared with educational 

resources available to students in suburban towns. As set out in 

the attached affidavits of Hernan LaFontaine and Catherine 

Kennelly, the high concentration of poor and at-risk students in 

the Hartford district creates additional demands on the Hartford 

  
  

  
 



  

  
    

  

    

system. These demands are not met by current funding and, in 

attempting to address these demands, educational resources are 

diverted from regular education. More importantly, as set out in 

Mr. LaFontaine'’s affidavit, and to be further discussed by 

plaintiffs’ other expert witnesses, while increased targeting of 

financial resources in the future would help to remedy part of 

the educational harm alleged by plaintiffs, there would still 

remain serious harms. Even 1f the programs set out in the 

defendants’ brief were funded at an adequate level, they would 

only address part of the problem. 

C. Benefit To Places Other Than Hartford 
  

The State's efforts in other regions of Connecticut that 

are the beneficiaries of many of the interdistrict desegregation 

grants are irrelevant for the purposes of this lawsuit. The 

plaintiffs challenge Hartford's racial, ethnic and economic 
  

isolation, and the fact that the state may be funding an 

interdistrict cooperative program in Fairfield, New Haven, or 

Middlesex Counties is immaterial. See Affidavit of John Allison, 

attached hereto as Exhibit A, €5. (Only seven of the thirty-four 

interdistrict programs listed by defendants apply to Hartford 

school system.) 

D. Failure To Address Racial Segregation. 
  

Legislative efforts to address the specific problem of 

racial isolation by the Connecticut legislature have been dismal   

  

  
  

 



  

  

    

at best. It took the legislature over ten years to pass racial 

imbalance regulations at a time when it was too little, too late. 

The interdistrict programs that have been funded, such as Project 

Concern, are minimal in comparison with the need, and touch only 

a small fraction of students within the Hartford system. See 

Affidavit of John Allison, attached hereto as Exhibit A. See 

also Governor's Commission Report, p. 15 (“Because of limited 

funding, however, only 27 programs [statewide] were awarded 

grants, and they received only 63 percent of the amount 

requested. State funding limits forced cutbacks in many of these 

programs, some of which were in their third year of funding and 

had student waiting lists.”) Several of those that have been 

started within the past few years, such as the Hartford/West 

Hartford Montessori program and the Friday Academy have been 

discontinued or have seen their funding cut or eliminated. See 

Affidavit of John Allison, attached hereto as Exhibit A. 

In addition, focusing only on the past ten years, many 

bills have been unsuccessfully introduced in the legislature to 

address the problem. (See attached Exhibit D.) They have ranged 

from SB-235 "An Act Concerning Funding for Local Desegregation 

Efforts” (1991), to HB-5448 “An Act Concerning Racial Segregation 

in Public Schools” (1989), to HB-5378 “An Act Concerning Funding 

for Local Desegregation Efforts (1988), to HB-5755 "An Act 

Concerning Interdistrict Cooperative Efforts to Remedy Racial 

  

  
  

 



  

  

    

Imbalance” (1981). All have died either in Committee or on the 

floor. 

The State's position, as a factual (and legal) matter, 

that the legislature has taken appropriate legislative steps 

flies in the face of these failed efforts. 

V. THE DEFENDANTS’ ARGUMENT ON  NON-JUSTICIABILITY IS NOT 
SUPPORTED BY JUDICIAL AUTHORITY 

Although the defendants present a lengthy catalog of state 

programs, the thrust of their brief seems to be the question of 

justiciability. What the defendants are really saying is that 

the unconstitutional school situation in the Hartford area 

presents a difficult societal problem and the courts should stay 

out of it. 

The problem with this philosophy is the lack of judicial 

authority to support it. Rather the courts have a special power 

and obligation to see that all children in the state receive an 

equal opportunity to a free public education. 

This Court has already discussed the subject af 

justiciabllity in its 1990 ruling. At page 8, this Court stated: 

The fact that the legislative branch is given plenary 
authority over a particular governmental function does 
not insulate it from judicial review to determine 
whether it has chosen "a constitutionally permissible 

  

  

means of implementing that power.” Immigration & 
Naturalization Service v. Chadha, 462 U.S. 919, 940-41 
(1383). “"[Tlhe legality of claims and conduct is a 
traditional subject for judicial determination”, and 
such adjudication may not be avoided on the ground of 
nonjusticiability unless the particular function has 
been assigned "wholly and indivisibly” to another 

  

  
 



  

  

    

department of government. Baker yv, Carr, 369 U.S. at 
245-46 (Douglas, J. concurring). 

  

In light of Horton I and III, the defendants cannot possibly 
  

claim that guaranteeing an equal opportunity to a free public 

education has been assigned ‘wholly and indivisibly to’ the 

Legislature. 

Article Eighth, §1, states that “the general assembly should 

implement this principle [free public schools] by appropriate 

legislation.” The word "appropriate” signifies that legislative 

discretion must be properly exercised; the qualifier plainly 

contemplates judicial oversight of the appropriateness of 

legislative action. This reading is fully supported, once again, 

by Horton I. There, the Connecticut Supreme Court employs this 
  

precise constitutional phrase as a basis for striking down 

Connecticut's former system of school finance: 

[Tlhe...legislation enacted by the General Assembly to 
discharge the state's constitutional duty to educate 
its children...without regards to the disparity in the 
financial ability of the ‘towns to finance an 
educational program and with no significant equalizing 
state ‘support, "is not “'aporopriate legislation’ 
(Article Eighth, §1) to implement the requirement that 

the state provide a substantially equal educational 
opportunity to its youth in its free public elementary 

and secondary schools. 

  

  

  

  

  

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

justiciability could the courts of Connecticut have jurisdiction 

to review the General Assembly's judgments on school finance, yet 

be disempowered as a matter of djurisdiction from reviewing the 
  

  

 



      

legislature’s Article Eighth, $1, duties on another ground. 

Either §1 vests exclusive, unreviewable authority in the 

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

Supreme Court has already authoritatively answered that question. 

In one respect the present case ‘is a stronger one for 

justicliability than Horton. While Horton relies on the 

construction of Article Pirst, $§1 and 20,-and Article Eighth, 

§1, the present case, in addition to the same reliance, relies 

independently on the history and language of Article First, §20. 

The Supreme Court recently stated: 

We have also, however, determined in some instances 
that the protections afforded to the citizens of this 
state by our own constitution go beyond those provided 
by the federal constitution, as that document has been 
interpreted by the United States Supreme Court. 

  

State v., Marsala, 216 Conn. 150, 160, 579 A.2d 58 (1990). Accord 

Horton I, at 641-42: State v., Barton, 219 Conn. 529, 54s, 
  

  

A.2d (1991). Indeed, in talking about “the full panoply of 

rights” that Connecticut citizens "have come to expect as their 

due,” Barton cites Horton I. 
  

Article First, §20 states that “no person shall be denied 

the equal protection of the law nor be subjected to segregation 

or discrimination in the exercise of his civil or political 

rights because of...race....” 

"It cannot be presumed that any clause in the Constitution 

is intended toc be without effect;....” Marburv wv. Madison, 1 
  

  
  

  

  
 



      

Cranch:138, 174. (1803), "Unless there is some clear reason for 

not doing so, effect must be given to every part of and each word 

in the constitution.” Stare v. Lamme, 216 Conn. 172, 177,579 
  

A.2d 484 (1990). 

In Lamme, the Supreme Court examined the text and history of 

Article First, §8, to determine if more rights should be given to 

Connecticut citizens than under the United States Constitution. 

If we analyze the text of Article First, §20 carefully, we see 

that segregation and discrimination are treated as in addition to   

equal protection of the law, and that segregation is treated as 

in addition to discrimination. 
  

The plaintiffs claim that the right to a minimally adequate 

education is one of their civil rights. This includes the right 

to.-be free from a segregated school system. As Brown v. Board of 
  

Education itself stated 35 years ago, separate schools are   

inherently unequal. 347 U.S. 483, 495 (1954). Article First, 

§20, was added to the Connecticut Constitution in 1965. In 1965, 

the framers knew about Brown and knew about prohibited 

discrimination, but they also prohibited segregation. 

The term “segregation” in §20 was specifically debated at 

the 1965 Constitutional Convention. Not only was it debated, but 

the word was actually deleted in Committee, and reinserted on the 
  

floor of the Convention after debate on its reinclusion. See 

"Journal of the Constitutional Convention” at 174. See also pp. 
  

  

  
 



  

  

    

691-632 ("We have spent a lot of time on this particular 

provision... .”). 

The debate demonstrates that the purpose of including the 

term “segregation” was “so that it [§20] would not be interpreted 

as an exclusion or limit rights” (p. 691) and to provide as broad 

and as expansive rights to equal protection as possible. See 

remarks of Mrs. Woodhouse (p. 691)(Constitution should 

“unequivocally oppose the philosophy and the practice of 

segregation’), Mr. PEddy (p. 691), Mr. Kennelly (p. 63%2)(egqual 

protection clause "all inclusive” and “the very strongest human 

rights principle that this convention can put forth to the people 

of Comnecticut’y, and Mrs. Griswold (p. 693). In his closing 

remarks, former Chief Justice Baldwin described §20 as “something 

entirely new in. Connecticut’ -(p. 1192). The debate also 

expressly acknowledges that the new section, including the 

prohibition against “segregation”, would apply to “rights of 

freedom in education.” (Page 694). 

The term “segregation” was commonly used in 1965, as it o 

today, to describe the actual separation of racial groups, 

without regard to cause. Thus, in the influential Coleman Report 

in 1966, segregation is described as a demographic phenomenon: 

The great majority of American children attend schools 
that are largely segregated -- that is, where almost 
all of their fellow students are of the same racial 
background as they are. 

James Coleman et l., Equality of Educational Opportunitv at 3. 
  

  

  
  

 



  

  
  

  

    

Furthermore, at the time the Connecticut Constitution was 

adopted, the United States Supreme Court had not yet incorporated 

an intent requirement into the Equal Protection Clause and the 

lower courts were divided as to whether municipalities could be 

held liable for purely de facto school segregation. Against this 

background, if the framers had sought to limit the meaning of the 

term segregation to “intentional” or “de jure” actions, they 

certainly would have done so explicitly. Section 20 is an 

appropriate and independent basis for the plaintiffs’ claims. 

The only case the defendants seriously rely on for their 

  

justiciability argument is Pellegrino v. O'Neill, 193 Conn. 670, 

480 A.2d 476 (11984). As this Court noted, Pellegrino is a 
  

plurality opinion, with a strong dissent by the current chief 

justice. 

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

civil trials were being unconstitutionally delayed by the failure 

of the Legislature to provide a sufficient number of judges to 

handle the backlog of cases. The plurality in Pellegrino were 
  

understandably reluctant to “augment their numbers by writs of 

mandamus,” 193 Conn. at 678, because to do so, they reasoned, 

would be “to enhance [their] own constitutional authority by 

trespassing upon an area clearly reserved as the prerogative of a 

coordinate branch of government.” Sd. No similar danger of 

institutional self-aggrandizement exists in this case. 

  

  
 



      

Furthermore, Horton I was reaffirmed after Pellegrino in Horton 
  

  

III, which does not even mention Pellegrino. Pellegrino is 
    

inapplicable to plaintiffs’ right to an equal opportunity for a 

free public education. 

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

stated one year later: 

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

commitments of the Warren Supreme Court. 

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

Peters, “Coping with Uncertainty in the Law,” 19 Conn.L.Rev. i 

3,:..6+:{1986). See also Peters, “Common Law Antecedents of   

Constitutional Law in Connecticut,” 53 Albany L.Rev. 259 (1989). 

We are told that "the Court stands at the crossroads in this 

case.” (Defendants’ br. p. 5). What the defendants see is just 

a mirage. The crossroads still lie ahead -- at the end of a 

trial on the merits. The motion for summary judgment should be 

denied. 

  
  

  
 



  

  
Li ftusz— 
  

Lr Horton 
iL A. Knox 
Moller, Horton, & Fineberg 
90 Gillett Street 
Hartford, CT 06105 

A : il Ra 

Y ida 0 Dvn 

Respectfully Submitted, 

A mn Ell. 
  

    

    

Martha Stone 

Connecticut Civil Liberties 

Union Foundation 

32 Grand Street 

Ron Ellis 
Julius L. Chambers 
Marianne Engelman Lado 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street 
New York, NY 10013 

Chit Totals 
  

  

     iversity of Connecticut 
School of Law 

65 Elizabeth Street 
Hartford, CT 06105 

Le. teva). 
  

Helen Hershkoff 
John A. Powell 

Adam Cohen 

American Civil Liberties 

Union Foundation 

132 West 43rd Street 

New York, NY 10036 

Philip D. Tegeler 
Connecticut Civil Liberties 

Union Foundation 

32 Grand Street 

Hartford, CT 06106 

Wille dd (oligo, 
  

Wilfred Rodriguez U ~~ 
Hispanic Advocacy Project 
Neighborhood Legal Services 
1229 Albany Avenue 
Hartford, C7 06112 

inn Kcr, 
  

Jerny Rivera 
Ruben Franco 

Puerto Rican Legal Defense 
and Education Fund 

99 Hudson Street 
New York, NY 10013 

  

  
 



  

CERTIFICATE OF SFRVICE 
  

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

mailed postage prepaid to John R. Whelan and Diane W. Whitney, 

Assistant Attorney Generals, MacKenzie Hall, 110 Sherman Street,   Bartford, CT 06105 this 20Dyay of September, 1991 

[tee MY   
  

Wesley W. GE ioe