Memo from Hershkoff and Cohen to Counsel Re: Quality Education Meeting with Slavin and Dolan

    fort fo 
Marianne Engelman Lado 

 



 



Educational and Racial Equity: 
Towards the Twenty-First Century 
—A Case Experiment in Connecticut 

John C. Brittain 

. INTRODUCTION 

fi: In April 1989, a group of African-American, Puerto Rican and white plain- 
* tiffs, school children in the state capitol of Hartford and a surrounding 
town, filed a lawsuit, named Sheff v. O'Neill, in Connecticut challenging ra- 
cial segregation in the schools and inequality of educational opportunity.! 

- This article presents a descriptive analysis of the Sheff case, a unique educa- 

" tional lawsuit commenced in state court. The lawsuit is based upon state 

onstitutional provisions, attacks de facto segregation and weaves a new 

theory of unequal educational opportunity due to a high concentration of 

poor children compacted in an urban school district. As a case experiment 

i designed to achieve educational and racial equity in education for all 

. school children, the lawsuit presents a new kind of civil rights legal strate- 
© gy to address the reality of conditions in education following a “Century 

-of Civil Rights Struggle.” 

+. The emphasis on education as the most effective solution to combat the 

inequality of opportunity for historically oppressed racial and language 

. minorities remains as much of a priority today as it did fifty years ago. 

! What is the status of racial progress in the United States thirty-six years 

after the 1954 decision in Brown v. Board of Education? and twenty-six years 
following the passage of the 1964 Civil Rights Act to attract continuing 

emphasis on education? John Jacobs, the President of the Urban League, 

© which annually reports on the “State of Black America,” said in 1989 that 

“half of our people have made advances [while] the other half are mired 

in poverty, joblessness and hardship.”’3 

Some evidence of progress is reflected in the recent electoral victories 

of L. Douglas Wilder of Virginia, the first African-American governor of 

a state and David Dinkins, the first African-American mayor of New York 

City. In addition, Colin Powell, a black American of West Indian ancestry, 

rose through the military ranks to become national security advisor to 

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people remain trapped 3 in a cycle of poverty and disadvantage, often riddled with crime, i     

   

    
   

     

   
     

    

   
   

       

  

    

   

     

II. BACKGROUND 

ministrative and managerial 
jobs; the rate of unemployment; the amount of median family income; the number of homes with only one parent; and the number of black high school graduates attending college.# While no one quite knows why such a disparity exists within our society, most social commentators point to enhanced education as an effective means of eliminating this inequality,’ One editorial comment on the twenty-second anniversary of the death of Martin Luther King, Jr. predicted that if Dr. King were alive today, “he : would stress education more than he did in 1960, when jobs and basic free doms were his main concerns.” The Census Bureau reports that “poverty rates decrease dramatically as years of school completed increase.” The educational research data demonstrate a correlation between wealth and ° racial segregation and educational equity. In turn, equal educati portunity leads to greater academic achievement and better life op 

ties. These opportunities for people, especially the historically o racial and language minorities, offer the bes 
and its 

  

onal op 

portuni- 

ppressed 
t hope of eliminating poverty attendant dreadful consequences on the society. 

  

A. Brown's Legacy 

Since the Brown decision, thre e generations of school desegregation cases have been develope d. The first era pursued the command of Brown to dis- mantle the dual, racially segregated school system located primarily in the southern states. This effort to break the resilient shield of legal and politi- cal resistance to racial integration in education took sixteen long years.” This first wave of school desegregation cases dismantled the dual system



EDUCATIONAL AND RACIAL EQUITY 221 

by imposing arithmetic mixing of white and black children in the same 
schools. However, the social phenomena of white flight from the inner city 
0 the suburbs and the massive opposition to busing to achieve greater ra- 

cial integration of school children soon produced de facto segregated 
ischool districts between urban, nonwhite schools and suburban white 
schools. 

'#' To address the inner city problem of racially segregated schools with 
‘unequal educational opportunities and academic results for nonwhite 
school children, school equity advocates pursued remedies designed to en- 
hance the educational opportunities for nonwhite students. The remedies 
onsisted largely of one-way efforts to assign nonwhite school children 

from inner city schools to suburban schools through voluntary minority 
.to majority transfers® or through court ordered interdistrict desegregation 
‘plans. In addition, school officials created magnet schools with attractive 
educational themes to induce white parents to send their children to school 
with a critical mass of nonwhite students. This second generation of edu- 
‘cational equity cases increased the educational opportunities for nonwhite 
children and the level of racial integration, but only on a marginal level. 
Federal common law decisions contributed to the limits on interdistrict 
remedies.’ A combination of the limits of federal law to achieve greater 
desegregation and the increasing segregation in housing, employment, and 
transportation established a de facto apartheid system of black and Latino 

  

  
lands in the cities and white lands in the suburbs. These two lands only 

interact on the most superficial level.’® Gerald Tirozzi, Commissioner of 
Education in the state of Connecticut, referred to this condition in his first 
report in January 1988, as “two Connecticut school systems,”’—one white, 

ig i suburban, affluent and performing at or above the minimum levels of com- 
h 3 A petency and the other black or Latino, urban, poor and performing below 

1 SI) { the minimum levels of competency.!! This condition leads to the new and 
Op third generation of school desegregation actions. rtuni- 

essed 

verty : 'B. Educational Equity 

The concept of educational equity has replaced the term school desegrega- 
tion (often referred to in its short term “deseg”). In concept, educational 
equity offers learning opportunities on an equal basis for the urban, poor 
nonwhite school children as the suburban, affluent, virtually all white 
children enjoy. Enhanced educational opportunities for African-American 
and Latino students include racial balance as a strong component. Thus, 
the new terminology becomes educational and racial equity. Output mea- 
sures such as performance on mastery tests, drop-out rates, graduation 
rates, and college admission rates are initially used to assess educational 
equity. The output factors, however, do not completely measure educa-  



   
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tional equity. Other factors include educational financing, experience of 

the faculty, resources, and curricula. Further, the involvement of the par- 

ents in the education of their children and the aspirations of the children 

contribute to student performance. Nevertheless, the quest for educational 7 : 

and racial equity attempts to overcome the differences in family and racial 3 Mo 

isolation to restructure education in a manner that will give nonwhite chil- 50 | 

dren a better opportunity and provide white and nonwhite children both 

with increased racial and cultural diversity in their education. 

1. “Controlled Choice” 

A recently enacted school assignment plan in Boston, called “Controlled : cen 

Choice,” illustrates this new concept. The Controlled Choice plan in Bos- J ‘seg 

ton divides the district into large geographic areas based mainly on the 3 : 

achievement of racial balance. Parents within the areas list several choices 

of schools for their child to attend in order of preference. The plan does 

not guarantee parents their first choice. However, school officials believe 

that more than 75 percent of the parents will receive their first or second ; 

choice. If parents receive their lowest choice of school, the plan offers them 24% acct 
an automatic transfer to the next or higher preference the following year, 

In addition, the district, in conjunction with the staff of the school with 

the lowest number of first choices by parents, will give priority attention 

and resources to improve the competitiveness of the school. The choice 

feature is designed to insure educational equity largely by the market fac- 

tor of parent selection. Hence, the purpose of the controlled choice plan 
is to produce educational and racial equity. 

III. THE CONNECTICUT EDUCATIONAL EXPERIENCE 

In Connecticut, both the State Department of Education and a statewide 

coalition of parents, children, and community activists launched a move- 

ment for educational and racial equity in the schools. Professor Charles 

Willie, the highly-regarded Harvard University sociologist and expert on 

school desegregation, best expressed the goals of the Connecticut lawsuit. 

According to Willie, the early desegregation lawsuits sought to mix the 

races of children. Later lawsuits stressed educational equality. The current 

goal encourages parental choice in schooling under controlled and limited 

options to accomplish both racial and educational equity. 

A. Connecticut Department of Education Report 

A report by the Connecticut Department of Education? described the state E. X of 

 



   

   
    
   

   
    

   
   

   
   

  

    

    
   

    

    

    

   
   

  

   
    
     

    

   

   

      

EDUCATIONAL AND RACIAL EQUITY 223 

   as “two Connecticuts—the affluent and the poor, participants and nonpar- 

ticipants, white and minority.”’!3 This report found extensive racial segre- 

gation in the Connecticut schools with over 60 percent of the nonwhite 
students enrolled in the five largest school districts, three of which have 

more than 80 percent nonwhite enrollment and the other two approaching 

50 percent. Of the 166 school districts in the state, 14 districts enroll more 

+ than 25 percent nonwhite, 37 districts enroll between 5 percent to 25 per- 

cent nonwhite students and the other 115 school districts have less than 

5 percent nonwhite enrollment.!# This reality reflects the residential racial 

, segregation in Connecticut's major cities with black and Puerto Rican per- 
“sons highly concentrated in the central cities and the overwhelming per- 

centage of white people settled in suburbs. In addition to the racial 

iF segregation, economic isolation exists too. While Connecticut enjoys the 

+ highest per capita income in the United States, three of its largest cities 

; are deeply impoverished and heavily populated by nonwhites.!® This is 

especially reflected in the public school enrollment. Currently, nonwhite 

; enrollment in Connecticut totals over 21 percent.!® The Department of Ed- 

ucation predicts increased racial and economic segregation in the future 
according to projected population trends. These twin conditions of racial 

and economic segregation in the schools often lead to fewer educational 

- opportunities available to the children most at risk. Furthermore, segrega- 

i= tion deprives white students in the suburbs of a multiethnic and multicul- 

tural education; an enriching element of quality education necessary to 

: prepare these students for later adult life. 

   

1. “Collective Responsibility” for Education 

The report concludes with a recommendation for “collective responsibili- 

ty”17 for education. This principle of collective responsibility applies to 

. school districts with a racially imbalanced school population. In these cir- 

' cumstances, contiguous and adjacent school districts will join with the ra- 

cially imbalanced districts in the pursuit of a better and more integrated 

Er: education. The school district boundary lines could not defeat the efforts 

® to achieve greater racial integration in education. The recommendation 

Bi called for voluntary measures to implement the racial balance in the 
3 schools. Plaintiffs and other advocates for educational equity in Connecti- 
cut applauded the Tirozzi I report. 

wide 

ove- 

arles 

IV. SHEFF v. O'NEILL 

The plaintiffs in Sheff concurred with the Tirozzi I report’s recommendation 

f “collective responsibility” for educational and racial equity among 

  

     

 



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urban and suburban school districts in the region.!® Plaintiffs agreed bes 

cause it recognizes the adverse educational harm on poor, nonwhite chile 3 

dren highly concentrated and isolated in large urban school districts. With #8 

no escape from the high concentrations of poverty and racial segregatio 

in the urban school districts, the solution must involve some form of re 

gional or interdistrict remedies. Another thrust of the suit embarks up 
a creative concept of liability. 

Plaintiffs challenge the condition of racial and ethnic segregation, in; 

Hartford, the capital and largest school district in the state of Connecticuf 

Equal educational opportunity, however, is not a matter of sovereign grace, a 

to be given or withheld at the discretion of the Legislature or the Executive ny 

branch. Under Connecticut's Constitution, it is a solemn pledge, a covenant 

renewed in every generation between the people of the state and their chil- 

dren. The Connecticut Constitution assures to every Connecticut child, in 

every city and town, an equal opportunity to education as the surest means 

by which to shape his or her own future.1® 

This claim, of an equal opportunity to education and the factual condi 

tion of racial segregation in the urban and suburban school districts, at-' 

tempts to impose liability upon the state of Connecticut for de facto racial 

segregation.2? ; 

A. Impact of Race, Ethnicity, and Poverty 

In addition, the suit presents a novel theory that the segregation by race} 

and ethnicity, and economic poverty places Hartford school children at 

severely adverse educational disadvantage, and thus denies them an edu 

cation equal to that afforded to suburban, virtually all white, school chil-: 

dren. The plaintiffs expect to prove, through the assistance of educational} 

experts, the correlation between racial segregation and lower educational! 

performance of nonwhite students in racially segregated schools. 

Furthermore, plaintiffs will show the link between family income of: 

school children and their academic performance. The poverty factor direct- 

ly correlates to lower educational performance of school children.?! The 
Tirozzi I report found that “many minority children are forced to live in 
poor urban communities where resources are limited by factors related to 

economic development, housing, zoning and transportation. As a result, 

they not only have available to them fewer educational opportunities,”’22 

but they also feel a great sense of separation from mainstream white chil- 

dren. 

[This] separation [therefore], means that neither they nor their counterparts 

in the more affluent suburban school districts have the chance to learn to



ties,”’22 

te chil- 

parts 

rn to 

EDUCATIONAL AND RACIAL EQUITY 225 

interact with each other, as they will inevitably have to do as adults living 

. and working in a multi-cultural society. 

F In conclusion, the report said, “such interaction is a most important ele- 

i ment of quality education and it benefits both minority and nonminority 

tudents alike.””23 Plaintiffs blame the state of Connecticut, both the Exec- 

‘utive and Legislative branches, for either creating, maintaining, or failing 

. to prevent segregation. The most unique feature of the legal action for edu- 

ational and racial equity is the reliance upon the Connecticut State Con- 

stitution. 

Connecticut Constitutional Theories 

The plaintiffs in Sheff heavily rely upon three Connecticut constitutional 

provisions—Article First, § 1, Article First, § 20, and Article Eighth, 81.24 

i Article First creates a fundamental right to an education. Articles First, §§ 

'1 and 20 are known as the equal protection provisions. Section 1 is a gener- 

: al equal protection clause. Section 20 begins with a sentence on equal pro- 

tection identical to a portion of the fourteenth amendment to the United 

¢ States Constitution, 25 and it also expressly prohibits “segregation or dis- 

' crimination” on the basis of “race or color.” In the precedent setting case, 

Horton v. Meskill, 26 the Connecticut Supreme Court interpreted these three 

, constitutional articles to guarantee a person a fundamental right to an edu- 

ation on an equal basis with others similarly situated. In Horfon, the Con- 

necticut Supreme Court held that the state system of financing public 

education with equal flat grants to all school districts created a disparity 

"in educational funding. Local governments were authorized by state legis- 

"lation to raise additional funds for education through taxes assessed on 

‘local property. The state flat grants plus the local government revenues 

generated from property taxes totaled the combined funds for education. 

The differences in the tax base for property rich and property poor districts 

. created a disparity in funding for education. The state perpetuated the un- 

. equal financing of local education by contributing equal amounts of 

money to local districts despite the knowledge of unequal monies raised 

by the local governments from property taxes. Since the state, and not the 

“local school districts, had the constitutional obligation to provide for edu- 

cation, all monies appropriated for local education either from the state 

flat grants or the local property taxes constituted state spending for educa- 

tion. This financing system resulted in unequal spending among school 

districts. And the state supreme court determined that unequal spending 

led to unequal educational opportunities.?’” Consequently, the Supreme 

Court found that the unequal financing system for education in Connecti- 

‘cut violated a student’s right to the equal enjoyment of the fundamental  



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right to education secured by Article Eighth and Article First of the Con. 
necticut Constitution.?8 

The Connecticut experiment in Sheff seeks to extend the jurisprudence 
of Horfon beyond funding and into educational equity. Armed with thes 
principle established in Horton that education is a fundamental right guar: 
anteed by Article Eighth, to be enjoyed with equal opportunity support 

by Article First, §§ 1 and 20, plaintiffs submit that the de facto racial segri 
gation, like the unequal financing, deprives school children of equal educa 
tional opportunities. Racially segregated education is inherent 
unequal.?? According to plaintiffs’ theory of the case, de facto segregation! 
in education abridges Article First, § 20, which states that 

no person shall be denied the equal protection of the law nor be subjected - 
to segregation or discrimination in the exercise or enjoyment of his civil or 
political right because of . . . race, color . . . . 

The Connecticut Supreme Court has not decided any cases concerning 

claims of racial segregation or discrimination under section 20. Passed a 
an amendment to the Connecticut Constitution in 1965, the legislative his 
tory reveals a clear intent to include the words “segregation” and “discrim 
ination.”3% Thus, this case presents a question of first impression in the 
interpretation of this state constitutional provision in Connecticut. The 
plaintiffs hope that the court will interpret section 20 to prohibit racial 
segregation, at least in the exercise of the right to an education, as a condi 
tion itself without a legal requirement of proving intent to discriminate 
by any actors as a precondition either for establishing liability or imposi 
an interdistrict remedy.3! ¥ 

1. Effects of Racial Segregation on Learning 

Not only is racial segregation in education illegal, but it is detrimental to 
the learning ability of African- Americans. Research in school desegrega 
tion discloses many of the expected benefits.32 The benefits of integrated 
education accrue beyond the classroom, in the nonacademic success of Af 
rican-American children in interpersonal relationships with whites, inte 
grated housing, and higher educational and vocational achievemen 
According to Crain and Weisman, “alumni of integrated schools are more 
likely to move into occupations traditionally closed to Blacks . . . [where]: 
they earn slightly more money.”3? The Schofield Report also offered 
strong proof of the ability of desegregation to improve the reading scores 
of black children. Thus, the evidence points to the positive impact of a 4% 
desegregated experience on both the education and income achievement 
of African- Americans. Moreover, the desegregation studies document that’ 
the beneficial aspects of integrated education for black school children in    
 



EDUCATIONAL AND RACIAL EQUITY 227 

ino way diminished the educational opportunity of white children in the 

$ame classrooms. These advantageous academic and nonacademic results 

or African-American children, however, derived mainly from metropoli- 

an programs, similar to the collective regional approach sought in Sheff. 34 

, Impact on Latino Children. Unfortunately the data on the beneficial aspects 

Bof an integrated education is that focused almost exclusively on African- 

gAmerican children. This data may not predict, with the same degree of cer- 

fEfainty, the impact upon Spanish dominant speaking Puerto Rican and 

i other Latino children comprising half of the school population in Hartford. 

¥ Nevertheless, the Connecticut experiment in Sheff for educational and ra- 

equity includes substantial support from the Latino community. Span- 

h dominant and English dominant speaking Latino persons have not 

A raditionally pursued desegregation as a means to better quality education. 

fF Rather, Spanish dominant speaking students and their parents have con- 

§ sistently demanded bilingual and bicultural education to be taught in their 

: ive language until they have mastered enough English to transfer into 

ainstream classes.3% Bilingual education needs a critical mass of Spanish 

; ominant children, preferably near the Spanish communities and culture, 

® fo succeed economically and politically. Enriching bilingual programs exist 

exclusively in the inner cities where the mass of Latino children, largely 

rom Spanish neighborhoods, justify the educational necessity and ex- 

pense. Hence, the dispersal of concentrations of Spanish dominant speak- 

g school children to suburban school districts with little or no bilingual 

rograms, may not, at face value, provide these students with the best edu- 

‘cation. However, there are study models of multi-linguistic educational 

groupings of Latino and Anglo school children which demonstrate some 

:benefits for both groups of children. The Latino children in these multi- 

linguistic groups tended to increase their educational learning ability in 

omparison to Latino children in one-race bilingual schools. And white 
or Anglo children raised their learning level over a period of time and clear- 

ily became more fluent in Spanish.3¢ 

'V. THE CONNECTICUT EXPERIMENT 

This Connecticut experiment offers the opportunity to restructure all of 

education in a manner to enhance the quality of education for Latino, 

hite, and African-American school children. The combination of Afri- 

can-Americans and Puerto Ricans from the inner city and the whites from 

the suburban districts makes the case truly tri-ethnic. Not only is educa- 

onal equity a moral imperative, but an economic necessity too. 

Educational and racial equity and economic growth have a direct corre-  



    
  

  

  

228     CIVIL RIGHTS LITIGATION HANDBOOK 

   
      

lation. As we approach the twenty-first century, the United States is 
creasingly becoming a multi-racial society. The population of African 
Americans will increase from 11.7 percent in 1980 to 15 percent by 2020, 
As this multi-racial character becomes more prevalent, the citizenry m ! 
necessarily rely upon a varied background to successfully adapt. With 
current system of dual schooling, both white and minority school childre 
will lack access to a multicultural educational experience, i : 

The educational training that the youth of America receive in sc ool 28 
is of vital importance to the economic health of the nation. A trend ig 
emerging in the U.S. economy that can be referred to as the “upskillis 
of American jobs. These occupations are changing from a basis of observe 
learning to learning acquired through verbal and mathematical symbols, ¥ 
Unfortunately, the new entrants to the job market may well lack th 
basic skills required for the jobs. Over one million American students dro 
out of high school each year.3? Already, four out of every ten labor force! 
additions in Connecticut are minority group members, the same grou 
that have disproportionately high school dropout rates. This shortage of; 
high quality labor may well serve to retard economic growth in the fut 

During the past decade Connecticut has had an average increase in prig= 
on population of 6.5 percent with a general population rise of .9 percent 
This trend seems bound to continue as the typical Connecticut inmate: 
comes from an area where the school dropout and the crime rates are corre 
spondingly higher.#® Connecticut can look forward to an increase in pris 
population of 32.7 percent over the current level. As the President of Con 
necticut College observed: ¢ 

  

      

  

     

   
   
     

   

                

   
   
   

    

  

   
   

        

        

    

   

  

[Slociety will pay for young adults in the criminal justice system or the wel- 
fare system or the education system, and only one of those is a good invest- 
ment.41 

t 

If the inequities in the educational system continue, the society will fa 
a situation where the minority groups, on whom businesses depend for 
continued economic growth, lack the basic skills necessary to succeed. As 
the report of the National Research Council stated: “Many members of 
the next generation of young adults live in conditions ill suited to prepare 
them to contribute to the nation’s future.”42 All Americans, rich and poor; 
white and minority, urban, suburban and rural, have an economic stake 
in insuring access to quality education for the advancement of business 
and industry. The achievement of educational equity sought in the Con- 
necticut experiment represents a great stride toward the realization of a 
better job and life for all Americans. 

During this century of civil rights struggle, African-Americans fought 
for quality education through the elimination of segregation in public 
schools. In the past twenty-five years, Latino and Asian Americans with    
 



EDUCATIONAL AND RACIAL EQUITY 229 

hites joined the battle. The Connecticut experiment in Sheff continues 
at legacy. In addition, the Sheff case adds a few slightly new strategies. 
he Connecticut case incorporates integrationist and nonintegrationist 

om eans. In addition, the lawsuit seeks relief in a state court under state con- 
tutional grounds instead of the historic reliance upon federal courts and 

11.5. constitutional provisions. 

Integrationist versus Nonintegrationist Models 

e Sheff case adopts the integrationist model of obtaining quality educa- 
n for nonwhite school children. This model posits that quality is found 

\ here the money exists to pay for it, and since the money follows white 
idents, quality education is in the white schools. Opponents of the inte- 
ationist model have attacked this policy as ineffective.43 
The nonintegrationist model shares a common goal with the integra- 

¥ tionist means of achieving the end result of quality education. Thirty plus 
ears of frustration and pessimism in integration with white opposition 

fo one-way black busing, black school closing, tracking and resegregation, 
: and a disproportionate number of black suspensions, all lead to the nonin- 

grationist viewpoint. As a result, the nonintegrationist model relies more 
self-help within the minority community and the predominantly non- 
ite schools and less on integration remedies. For example, the noninte- 

ationist view believes that quality education can occur in nonwhite 
rban schools by using identified techniques employed in the most effec- 
ve inner city schools across the nation. The Sheff case features some of 

this thinking too. For this reason, Sheff appeals to inner city school district 
; and elected government officials. They seek to improve city schools with 

‘substantial amount of financial and educational resources to eliminate 
tthe inequalities. 

If educational authorities restructure urban schools to become more ef- 
ective and attractive, the result gives nonwhite parents a meaningful 

A choice of schools for their children. In addition, enhanced, educationally 
§ effective, inner city schools will enable school administrators to redesign 
[district assignment plans to include white students and make integration 

fia two-way proposition. Thus the Connecticut experiment in Sheff reduces 
f the apparent conflict between the integrationist and nonintegrationist 
models by strengthening the urban schools and increasing racial balance. 

BB. Federal versus State Court 

In one last respect Sheff deviates from the traditional practice of choosing 
the federal courts to enforce claims of educational equality by going into 
state court. Justice Thurgood Marshall, the only nonwhite and Afro-  



   
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CIVIL RIGHTS LITIGATION HANDBOOK 

American to serve on the U.S. Supreme Court, advised civil rights advo 

cates in remarks to the Second Circuit Judicial Conference, Septembet$ 
1989, that litigants “should not give up on the Supreme Court, and whil adm 
federal litigation on civil rights issues still can succeed, in the 1990s wi in | 
must broaden our perspective and target other governmental bodies as we 

as the traditional protectors of our liberties.” In the spring of 1989, 

United States Supreme Court decided several very significant cases co : 

cerning civil rights.#4 Justice Marshall noticed a marked change in thi 

Court from friendly to unfriendly towards civil rights. This cha 

prompted him to suggest alternative approaches for civil rights enforc 
ment. 

VI. CONCLUSION 

It is too soon to predict the attitude of the Connecticut courts towards 

equal education opportunities. Certainly the precedent of Horton v. Mesh 

and the Connecticut constitutional provisions on education and equal P 
tection provide a reasonable and alternative strategy for this pursuit. Fur. 

ther, the novel theory of one claim in the case, one that asserts a deni 

of equal educational opportunity based upon a high concentration 0 

school children from poor families, broadens the legal concept of equalif 
to indirectly encompass economic rights. 

The lack of quality of education and the close association of this phe= 

nomena with nonwhite schools has remained constant through this centu 

ry. Segregation of the nonwhite and white races contributes to t 

condition. Therefore, advocates of quality education for children of color; 

must continue in the struggle to eliminate segregation. At the same time, 

schools occupied by virtually all African-American and Latino children 

must improve in academic quality. The Connecticut experiment in Sheff 

presents a unique strategy for educational and racial equity to benefit ric 

and poor, suburban and urban, white and nonwhite alike. 

NOTES 

1 Sheff v. O'Neill, No. CV89-0360977S, p.3, para. 5 (Superior Court, Judicial Prd 
Hartford/New Britain, Apr. 27, 1989). 4 

2 Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1955). 
3 N.Y. Times, Jan. 15, 1990, at A16, col. 1. 

4 Kilpatrick, The Plight of Black America—Why?, Hartford Courant, Feb. 3, 1990, at C10, col 

3, dting The National Urban League, The State of Black America (1990).    
 



EDUCATIONAL AND RACIAL EQUITY 231 

White Black 

of employed holding executive, 

administrative, and managerial positions 

% in professional careers 
% in sales 

mployment rate (men) 

ployment rate (men ages 16 to 19) : 
median family income (1984) $27,686 $15,432 

Only 37 percent of black families have two parents at home. Black high school graduates 
attending college have dropped from almost 40 percent in 1976 to 30 percent in 1988. 

8 Editorial, How fo Honor Dr. King, N.Y. Times, Jan. 16, 1990, at A16, col. 1. 

8 Brown, 347 U.S. at 483. 

7 Carter v. West Feliciana Parish School Bd., 396 U.S. 290 (1970); United States v. Hinds 
County School Bd., 417 F.2d 852 (5th Cir. 1969), cert. denied, 396 U.S. 1032 (1970); United 

8 States v. Jefferson County, 380 F.2d 385 (5th Cir. 1967). 
8 See, e.g., Iwanicki & Gable, The Hartford Project Concern Program: A Synthesis of the Findings from 

1976-1980 (1980) (commissioned by the Hartford Public Schools Office of Research and Eval- 
uation). 
"9 Milliken v. Bradley, 418 U.S. 717 (1974). 
"10 See, e.p., National Research Council, Common Destiny: Blacks and American Society (National 
demy Press 1989) [hereinafter Common Destiny]. 

11 Tirozzi, Report on Three Perspectives on the Educational Achievement of Connecticut Students (1988), 
fv, Part III, pp. 37-39. This unpublished report was submitted by Gerald Tirozzi, Commission- 

i= er of Education to the Connecticut State Board of Education. 
"12 Committee on Racial Equity, Connecticut State Board of Education, A Report on Ra- 

dlal/Ethnic Equity and Desegregation in Connecticut's Schools (1988) [hereinafter Tirozzi I]. 
131d at 4. 
14/4 at 1. 

© 15 Hartford is ranked the fourth poorest city in the country, New Haven is the seventh, 

and Bridgeport is the twenty-sixth, according to U.S. Department of Commerce, Bureau of 

the Census. See, Cities with a 1980 Population of 100,000 or More Ranked by Persons, Poverty Rate in 
1979, U.S. Census of Population and Housing (1980). 

16 Tirozzi I, supra note 12, at 1. 

"17 Tirozzi I, supra note 12, at 11. 
18 /4, 

+ 19 Sheff v. O'Neill, No. CV89-0360977S, p.3, para. 5 (Superior Court, Judicial District 

f Hartford/New Britain, Apr. 27, 1989). 

20 Milliken v. Bradley, 418 U.S. 717 (1974) added the requirement of intent in actions 
seeking to remedy de facto segregation. This requirement severely limited the earlier court- 

imposed busing remedies and hampered efforts to achieve integration. 
: Crawford v. Board of Educ. of the City of Los Angeles, 17 Cal. 3d 280, 551 P.2d 28, 130 

Cal. Rptr. 724 (1976), aff d, 458 U.S. 527 (1982), is an example of the only other reported case 

similar to Sheff of a state case alleging de facto segregation in education. In 1976, the California 
upreme Court found that the state constitution provided for a stronger duty to desegregate 

. than did the federal Constitution, and it ordered pupil transportation to discharge that duty. 

;The voters of California amended the California Constitution to limit the duty to desegregate 
: by requiring a showing of intent to discriminate as required by Supreme Court interpretations 

f the fourteenth amendment to the United States Constitution. The United States Supreme 
¢ Court then ruled that the amendment was within the power of the state. This ruling nullified 

i: the State Supreme Court finding of de facto segregation in the Los Angeles School District. 
© 21 Coleman, Equality of Educational Opportunity (1969). The Coleman Report still remains the 

most authoritative publication on the correlation between socio-economic composition of 
. schools and student achievement. 

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232 CIVIL RIGHTS LITIGATION HANDBOOK 

22 Tirozzi I, supra note 12, at 7. 

23 Jd. ; 
24 Article First, § 1 provides: “All men when they form a social compact, are equal Is 

rights; and no man or set of men are entitled to exclusive public emoluments or privileges] ; 
from the community.” 

Article First, § 20 provides: “No person shall be denied the equal protection of the law, 
nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil 
or political rights because of religion, race, color, ancestry or national origin.” 4 . 

Article Eighth, § 8 provides: “There shall always be free public elementary and seconda : Rig 
schools in the State. The general assembly shall implement this principle by appropriate legi 
lation.” 3 

25 “No state shall . . . deny to any person within its jurisdiction the equal protection of! : 
the laws.” U.S. Const. amend. XIV, § 1. Edw 

26 172 Conn. 615, 376 A.2d 359 (1977). Public education is “a fundamental right,” and; 
“pupils in the public schools are entitled to the equal enjoyment of that right.” 172 Con 
at 648, 649, 376 A.2d at 374. 

27 The court in Horton found that there had arisen a great disparity in the quality of educa 
tion available to the youth of the state. 127 Conn. al 648, 376 A.2d at 374. ! 

28 Jd. 
29 Brown v. Board of Educ. of Topeka, 347 U.S. 483 (1955). ! 
30 Journal of the Constitutional Convention of Connecticut (1965), p. 174; Proceedings 

of the Third Constitutional Convention of the State of Connecticut (1965), pp. 684-697; s 
1185-1196; Constitutional Resolution No. 168, the Rule’s Committee Substitute for Constitu const) 
tional Convention Resolution No. 168. 3 

31 Such a development makes a giant legal advancement over the federal common la : 
requirement of intent. The Supreme Court developed rather stringent requirements of proof 
of intent before a court may order a metropolitan school desegregation remedy. Columbus 7268 Cl 
Bd. of Educ. v. Penick, 443 U.S. 449 (1979); Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 : again: 
(1977); Milliken v. Bradley, 418 U.S. 717 (1974). . 

32 See, e.g., Schofield, Review of Research on School Desegregation's Impact on Elementary and Seconda 
School Students (1989) (commissioned by the Connecticut State Department of Education), : : 

33 R. Crain & C. Weisman, Discrimination, Personality, and Achievement: A Survey of Northern: : press, 
Blacks (Seminar Press, 1972), p. 161. ‘ Social 

34 Crain & Mahard, Desegregation and Black Achievement: A Case Survey of the Literature (1978), {8 La 
in C. Russell & W. Hawley, The Consequences of School Desegregation (Temple Press 1983), pp. 103- 
125. 

35 Lau v. Nichols, 414 U.S. 563 (1974). SFauSe 
36 Interview with Catherine E. Walsh, Ed. D., Professor, University of Massachusetts at : fits ing le 

Boston; Director, New England Multifunctional Resource Center for Language and Culture” Cent 
in Education (Feb. 22, 1990). y that 

37 Common Destiny, supra note 10, at 5. ¢ 
38 Evans, One America or Two Americas?: A Buc Aground Paper (1989) (unpublished manuscript ens. 

available at the University of Connecticut School of Law Library). : : 1976 
39 /4. at 26. 

40 /4. at 40. ment 

41 Hartford Courant, Nov. 4, 1989, at 7. % 8 th 
42 Common Destiny, supra note 10, at 8. 

43 See Brittain, Book Review, Shades of Brown, New Perspectives on School Desegregation, 14 Conn.’ 
. Rev. 457 (D. Bell ed. 1981). 

44 Richmond v. Croson, 488 U.S. 469 (1989); Wards Cove v. Atonio, 109 S. Ct. 2115 (1989); 
Price-Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989); Lorance v. AT&T, 109 S. Ct. 2261 
(1989); Patterson v. McLean, 109 S. Ct. 2363 (1989). 

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CHAPTER 12 

Defending Malicious Prosecution 
Suits By Police Officers Against Civil 
Rights Plaintiffs* 

Edward M. Chen and Carin T. Fujisaki 

Ul Civil rights victims secking legal redress in the federal courts for police 

misconduct face ever mounting legal obstacles created by the Bur- 

ger/Rehnquist Court. Recent rulings on issues of standing, mootness, 

ualified immunity, due process rights, and limitations on damages for 

constitutional injuries, to name a few, have made civil rights litigation 

against the police increasingly problematic. 

%. The doctrinal impediments confronting civil rights victims are exacer- 

bated by the threat of retaliatory lawsuits brought by public officials 

against complaining victims. Professors Canan and Pring have warned of 

the danger generally posed by “strategic lawsuits against public participa- 

Hon” or “SLAPPs”—attempts to use civil tort actions to stifle political ex- 

pression. P. Canan & G. Pring, Strategic Lawsuits Against Public Participation, 35 

Social Problems 506 (1988). 
Lawsuits brought by police officers in response to civil rights claims 

filed by victims of police misconduct constitute a variant of SLAPPs, be- 

cause they threaten to “chill” or stifle political expression by citizens seek- 

ing legal redress in the courts. A 1986 study by the Libel Defense Resource 

Center (LDRC) reveals a rise in the number of libel and other tort suits 
‘that have been brought by public officials against the media or private citi- 

zens. LDRC Study #7, Public Official Libel Actions: A Comparison of Reported Cases 

1976-1979 and 1979-1984 (1986). 

A disproportionate number of these suits were brought by law enforce- 

‘ment personnel who comprised 30 percent to 34 percent of the plaintiffs 

in these cases. This statistic evidences a new strategy by law enforcement 

personnel to stifle political expression: 

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* The views expressed herein are those of the authors only. The authors wish to acknowl- 

edge Youseef Elias, third year law student, University of California, Davis, for his able assis- 

tance in researching for this article. Copyright 1990. 

233