A School Desegregation Case in Connecticut: A Question of Intent and Failure to Act Paper by Felipe J. Farley

    A SCHOOL DESEGREGATION CASE IN CONNECTICUT: A QUESTION OF 
INTENT AND FAILURE TO ACT » 

by 

Felipe J. Farley 

Third Year Paper Requirement 
May 1991  



  

A SCHOOL DESEGREGATION CASE IN CONNECTICUT: A QUESTION OF 

INTENT AND FAILURE TO ACT 

Thirty-seven years ago the United States Supreme Court 

declared, "In the field of public education, the doctrine of 

separate but equal has no place." This declaration found 

immediate application in the context of statutory segrega- 

tion, such as existed in most of the southern states. 

There, the state’s intent to segregate, incurring legal and 

moral blame of constitutional dimensions, was easily 

demonstrated to the satisfaction of federal judges. ? 

But the battle lines were redrawn again elsewhere. 

Outside of the south, school segregation had not been 

mandated by law, though it may have been fostered by an ac- 

cumulation of practices, regulations, and attitudes of both 

government officials and private citizens in non-school 

settings. 3 Perhaps justice, and the Constitution required 

something to be done about it - or perhaps they did not. 

  

l. Brown v. Board of Education (Brown I), 347 U.S. 483, 495 
(1954) suppl. by Brown v. Board. of Education (Brown II), 
343 U.S. 294 (1955). 

  

2+ See, e.g. Hart vy. County Sch. Bd. of Arlington County, 
Ya., 329 F. Supp. 953 (E.D. Va. 1971) (School desegregation 
suit filed under the 14th Amendment); Godwin v. Johnston 
County BA. of Ed., 293 F. Supp. 1276 (E.D. N.C. 19569) {Class 
action against racially discriminatory practices in public 
schools). 

  

  

3. See, e.g. Note, Tipping the Scales of Justice: A Race- 
Conscious Remedy for Neighborhood Transition, 90 Yale L.J. 

  

  

377, 3%4 (1977): Hart v. Community School Bd. of Brooklvn, 
383 F.Supp. 699 (BE.D.N.¥. 1974), aff’d, 512 F.24 37 (24 Cir. 

1975) (Desegregation action by jr. high students and their 
parents). 

 



  

One side might claim desegregation, and the resultant equal- 

ity of opportunity as a promise, as a right, enforceable as 

a species of property, enforceable against those government 

officials who would deny it. The other side might point 

more strictly to the text of the Constitution, evincing 

sympathy for the plight of a minority, but noting that "the 

Constitution does not provide judicial remedies for every 

social and economic ill."4 According to this view, the gov- 

ernment has little, or no duty at all to provide a minimal 

level of services, unless those services have been guaran- 

teed specifically by statute. Therefore, the government 

cannot be held liable for a failure to act to provide this 

minimal level of services.?> 

This paper will examine the issues of the necessity of 

intent, and liability for failure to provide a minimally 

adequate education, in the context of a school desegregation 

6 case in Hartford, Connecticut. The case has been filed 

  

4. Lindsey v. Normet, 405 U.S. 56, 74 (1972) (14th amend- 
ment eq. pro. challenge to Oregon’s forcible entry and 
detainer statute). 

5. Youngberg v. Bomeo, 457 U.S. 307, 317 (1882) {Action for 
due process right to safe confinement and habilitation of 
  

retarded individual) - "As a general matter, a state is un- 
der no constitutional duty to provide substantive services 
for those within its burdens."; See, e.g. Harris v. McRae, 
1008S. Ck. 2671 (1980) reh. den. 101 S. Ct. 39 (1980) (Con~ 
stitutional and statutory challenge to Hyde amendment, which 
limits Medicaid reimbursement for abortions). 

6. Sheff v. O'Neill, complaint filed Conn. Super. Ct., 
April 26, 1989 (hereafter "complaint"). 

 



  

under the due process and equal protection clauses of the 

Connecticut Constitution, rather than the federal one.’ 

Unlike the federal constitution the Connecticut one 

specifically establishes a right to education, and its equal 

protection clause prohibits "discrimination" and 

"segregation."8 

I will argue that these provisions obviate the 

necessity of an intent requirement for a finding of 

infringement of the fundamental right to education, and 

provide for liability for public officials and the state for 

failure to provide a minimally adequate education. I will 

examine both Connecticut law and such federal law as 

provides guidance, as well as cases from states with similar 

equal protection and due process clauses. 

Background 
  

The plaintiffs of Sheff v. O0’Neill are several black, 

white, and hispanic children attending public school in 

Hartford, Connecticut. Among them is Milo Sheff, a ten-year 

old black child enrolled in the 4th grade at the Annie 

  

7. Equal Protection = Comm. Const. art. I, Sections 1, 20; 
Due process Conn. Const. Art. I, Sections 8,10 see appendix 
A for full text. 

8. Free public schools - Conn. Const. art. 8, Section 1. 
See appendix A for full text. 

 



  

Fisher School. The suit is brought on behalf of all 

children in the Hartford school district.?® 

The defendants are the governor of Connecticut, Mr. 

William O’Neill, the members of the state board of education 

and commission of education, the state treasurer, and the 

state comptroller.10 The plaintiffs’ complaint alleges 

deprivation of equal educational opportunity and a minimally 

adequate education under both the Connecticut constitution 

and Connecticut law. In the Hartford school district, 91% 

of the children are either black or hispanic while 47.6% are 

from poor families.ll The Hartford school district is 

racially isolated in the midst of virtually all-white, 

2 In Connecticut as a whole, middle-class school districts.?l 

20.6% of persons are black or hispanic, while 9.7% are poor. 

As a consequence of this racial segregation, and concomitant 

  

9. See appendix B for the full text of the complaint. It 
is also brought on behalf of white children in the suburban 
school districts deprived of the educational opportunity to 
mix with minority children. Complaint, p. 2. However, this 
paper will not analyze that claim. 

10. Under Conn. Gen. Stat. Section 10-4 (1958) the state 
board of education is charged with supervision of elementary 
and secondary education. See complaint, pp. 7-8 for the 
statutory duties of the other defendants. 

11. ' Complaint, p. 1. According to Reves yv. School District 
No. 1, 413 U.S. 189, 197 (1973), (14th amdmt. desegr. sult 
for the Denver school distr.), hispanics and blacks should 
be placed into the same category for purposes of defining a 
"segregated" school, since they both suffer many of the same 
educational inequities. 

  

12. Complaint, p. 2, PDP. 9-10. 

 



  

segregation of resources, many students in the Hartford 

public schools are "at risk" of low educational 

achievement. 13 

Dating back to at least 1965, the state of Connecticut 

has had knowledge of this racial isolation and its resulting 

educational risks and deprivations, but has done little to 

remedy the situation. 14 

Analysis 
  

Part I No necessity of intent - Equal protection 
      

In Connecticut, public primary and secondary education 

has long been considered a state function.l® The state acts 

through its agents, state and local boards of education, to 

carry out its mandate of providing a free system of public 

  

13. See complaint pp. 11-12 for poverty statistics; pp. 13- 
14 for reading and math scores on 1988 statewide mastery 
tests; p. 10 for race of professional teaching and adminis- 
trative staffs. 

14. For example, in 1968 the U.S. Civil Rights Commission 
presented a report to the governor, seeking legislation 
giving the bd. of ed. power to direct full integration of 
local schools. He did not act to implement the request. 
See p. 17, complaint. See complaint pp. 16-22 for other in- 
stances of official notice. 

i585. State v. D’Aulisa, 133 Conn. 414, 52 A.24 636, 638 
(Conn. 1947) (Action to compel comptroller to certify 
certain teachers’ and superintendents’ payroll items). 

 



  

schools. 16 The Connecticut Supreme Court case of Horton v. 

Meskill, as well as Connecticut Constitution article 8, 

Section 1, declare a free public education to be a 

"fundamental right," any infringement of which is subject to 

strict scrutiny.1’ It is settled constitutional doctrine 

that a demonstration of "intent" or "purpose" is not 

necessary to show infringement of a fundamental right: 

18 disparate impact is sufficient. 

The respondents in San Antonio v. Rodriguez failed in 
    

their challenge to Texas’ public school finance system 

precisely because the federal constitution does not 

  

16. Town of Cheshire v. McKenney, 182 Conn. 253, 438 A.2d 
88,91 (Conn. 1980) (Quo warranto to test public school 
teachers’ right to simultaneously hold office of Councilor- 
at-large) 

    

17. Horton v. Mgskill, 172 Conn. 618, .376 A2d 359 (Conn. 
1977) (Challenge to constitutionality of system of financing 
public elementary and secondary education). 

18. Reogh vy. City of Bridcdeport, 187 Conn 53, 444 A24 225, 

233 (Conn. 1982) (Wrongful death action by estate of fireman 
run over by fire truck) ("When a statutory classification 
impinges on an inherently suspect class or affects a funda- 
mental personal right, the statute is subject to strict 
scrutiny and is justified only by a compelling state inter- 
est."); as noted by the Connecticut Supreme Court, "Legis- 
lation that involves rights that may be significant, though 
not fundamental, or classifications that are sensitive, 
though not suspect, may demand some form of intermediate 
review." Eielson v. Parker, 179 Conn. 552, 427 A.2d 814, 
820 (Conn. 1980) (Class action challenging constitutionality 
of salary system of Superior Ct. judges). However, this 
paper uses a fundamental rights analysis. 

  

 



  

guarantee such a right.1° The plaintiffs in Horton won 

precisely because the Connecticut Constitution guarantees 

such a right.20 As a fundamental right, the right to a free 

public education is protected by the equal protection clause 

of the Connecticut Constitution. This clause may perhaps 

offer broader protections than the 14th amendment of the 

U.S. constitution.?l But its interpretation is still 

strongly influenced by the opinions of the U.S. Supreme 

Court. In the case at hand, what is alleged is racially 

disparate impact, triggering the equal protection clause, 

which calls for the application of Washington v. Davis.?? 
  

  

19. San Antonio v. Rodriouez, 411 U.S. 1, 35 (1972) {(chal~- 
lenge to Texas’ public elementary and secondary school fi- 
nance system). Although, in Plyler v. Doe, 457 U.S. 202 
(1982) (14th amendment equal protection challenge to state 
statute witholding funds to school districts educating il- 
legal aliens), the Court called public education something 
between the status of a "right" and a "privilege" (p. 221), 
and gave something more than rational basis review. 

    

20. Horton, 379: A.24 at 373. 

21. Horton, 376 A2d at 370 ("This court has many times 
noted that the equal protection clauses of the state and 
federal constitutions have a like meaning and impose similar 
limitations"); Cologne v. West Farms Associates, 37 Conn. 
Supp. 90, 442 A.24 471, (Conn. Super. Ct. 1982) (use of com- 
mon area in shopping mall to solicit ERA petition signa- 
tures) (fn. 4 "Horton here is acted solely for the purpose 
of showing a willingness by the Connecticut Supreme Court to 
interpret this state’s constitution more expansively than 
the federal one."); see Pruneyvard Shopping Center v. Robins, 
447 U.S. 74, 81 (1980) (solicitation of signatures for peti- 
tion in shopping mall) (A state may "adopt in its own con- 
stitution individual liberties more expansive than those 
conferred by the Federal Constitution."). 

  

  

22. Washington v. Davis, 426 U.S. 229 (1976) (Negro ap- 
  

plicants for police officer positions alleged racially dis- 
criminatory recruiting procedures). 

 



  

The Washington v. Davis Standard 
    

The Court in Keyes v. School District No. 1 noted that 
  

the difference between de jure and de facto segregation is 

"purpose or intent to segregate. "23 However, Keyes left 

unclear whether or not the broad mandate of Brown applied 

equally to the de jure and de facto segregated school 

settings. Though never statutorily segregated, the court 

still found a purposefully segregated school system in 

24 Denver. This de jure system then required correction, 

25 despite respondents’ contentions. The Court went on to 

  

23. Xeves vy. School District No. 1, 413 U.S. 189, 208 
(1973) (Desegregation suit under 14th amdmt. for the Denver 
School district). 

  

24. Keyes, at 196 ("What is or is not a segregated school 
will necessarily depend on the facts of each particular 
case. In addition to the racial and ethnic composition of a 
school’s student body, other factors, such as the racial and 
ethnic composition of staff and the community and adminis- 
tration attitudes toward the school, must be taken into ac- 
count."); On this point see also Swann v. Charlotte- 
Mecklenburg Bd. of Ed., 402 U.S. 1, 18 (1971) (Desegregation 
plan by district court proves unsatisfactory) reh. den. 403 
U.S. 912 (1971) ("Independent of student assignment, where 
it is possible to identify a "white school" or a "Negro 
school" simply by reference to the racial composition of 
teachers and staff, the quality of school buildings and 
equipment, or the organization of sports activities, a prima 
facie case of violation of substantive constitutional rights 
under the Equal Protection Clause is shown."). 

  

25. Keyes, at 212 (mere assertion of a neighborhood school 
policy is not dispositive where authorities have committed 
acts constituting de jure segregation). 

 



  

note that a finding of intentional segregative actions by 

the school board in a meaningful portion of a school system 

shifted the burden of proof to the school authorities to 

show that other segregated schools within the system are not 

the result of intentionally segregative actions.?® This 

burden-shifting principle is not limited to former statutory 

dual systems. 2” 

Washington v. Davis answered the question left open by 
  

Keves. There, the Supreme Court noted that a few lower 

federal court decisions had held that substantially 

disproportionate racial impact of a statute or official 

practice, without compelling justification or indication of 

racially discriminatory purpose, was enough to make out an 

Equal Protection Clause violation.?28 Nevertheless, "to the 

extent that those cases rested or expressed the view that 

proof of discriminatory racial purpose is unnecessary in 

  

26. Reyes, 413 U.S. at 209. 

27. Reyes 413 U.S. at 210. 

28. Washington, 426 U.S. at 244. For example Norwalk CORE 
Vv. Norwalk Redevelopment Agency, 395 F.2d 920 (2d Cir. 1968) 
(Action by blacks and Puerto Ricans displaced by urban 
renewal project); Hawkins v. Town of Shaw, 461 F.2d 1171 
(5th Cir. 1972) (Negro citizens sue town officials for dis- 
crimination by race and poverty in provision of municipal 
services); Kennedy Park Homes Assoc., Inc. v. City of Lack- 

  

  

aAwanna, 436 F.2d 108 (2d Cir. 1970) cert. den. 401 U.S5. 1010 
(1971) (Suit to compel city to allow construction of a low- 
income housing project in certain area of the city). 

 



  

making out an equal protection violation, we are in 

disagreement. "22 

This principle was affirmed in Village of Arlington 
  

Heights v. Metropolitan Housing Development Corp. ,30 and 
  

refined in the context of a school desegregation suit in 

columbus Bd. of Ed. Vv. Penick.31 "Intent" to racially 
  

discriminate was still necessary to establish a 

constitutional violation, but, actions having foreseeable 

and anticipated disparate impact are relevant to show that 

"intent."32 

This line of cases appeared to sound the death knell 

for the purely "discriminatory impact" test, at least at the 

federal level. However, at the state level, several states 

with constitutional equal protection provisions similar to 

Connecticut’s chose to retain this test, some in a pure 

form. These state interpretations argue for the proposition 

that Connecticut, like these states, need not adopt a 

requirement of "racially discriminatory intent.” 

  

29. Washington, 426 U.S. at 244-5. 
  

30. Village of Arlington Heights v. Metropolitan Housing 
Development Corp., 429 U.S. 252 (1977) (challenge to denial 
of rezoning for multi-family housing). 

  

  

31. Columbus Bd. of Ed. v. Penick, 443 U.S. 449 (1979), 
reh. den. 444 U.S. 887 (1979) (school desegr. suit under the 
14th amdmt). 

  

32. Columbus, 443 U.S. at 464. 
  

10 

 



  

New York - At the line 
    

Article 1, Section 11 of the New York Constitution 

guarantees equal protection of the laws, and that "No person 

shall, because of race, color, creed or religion, be 

subjected to any discrimination in his civil rights by any 

other person or by .... the state or any agency or 

subdivision of the state.33 1In People v. Smith, the New 

York Supreme Court noted that the breadth of coverage 

afforded by. the New York and federal constitutions is 

1.34 However, New York has adopted a slightly different equa 

line of reasoning than the United States Supreme Court in 

terms of the intent requirement in school desegregation 

cases. In Hart v. Community School Bd., a 1974 case, the 
  

court noted "the rule in this district for more than ten 

years has been that de facto segregation which can be 

avoided is unconstitutional.3® In this case, the court made 

  

33. N.Y. Const. art. XI, Section 1 also provides for a sys- 
tem of free public schools. 

34." People Vv. Smith, 411 N.Y.5. 24 1468, 148 (N.Y. Co. Ct. 
1978) (challenge to rape statute as discriminatory against 
men). 

35. Hart v. Community School Bd., 383 F.Supp. 699, 727 
(E.D.N.Y. 1974) (Desegregation action under the 14th amend- 
ment by jr. high students and parents); See, e.g. Branche Vv. 
Bd. of Ed. of Town of Hempstead, 204 F. Supp. 150, 153 
(E.D.N.Y 1962); But see a New York case under N.Y. Const. 
Art. I, Section 11 and the 14th amendment: DiSano ¥v. 
Storandt, 22 A.D. 2d 6, 8-9 (N.Y. App. Div. 1969) (Voluntary 
transfer plan for non whites out of predominantly minority 
school constitutional) ("We do not agree with the reasoning 
of Special Term... Those decisions hold merely that a school 
board may not be required, by reason of constitutional pro- 
visions, to end de facto segregation.") See lower ct. 
Opinion at 43 Misc. 2d 272 (¥.Y. Sup. Ct. 1964). 

  

  

 



  

much of the contributions of residential segregation to 

school segregation and vice versa. It concluded that the 

state’s goal is not to isolate the components of this 

circle, but simply to end the state’s complicity in the 

36 wacts of omission as well as acts of commission affair. 

constitute state action," according to this state court’s 

interpretation of the mandate of Brown, Yick Wo wv. Hopkins, 
  

and Keves.S’ Three years later, the Second Circuit decided 

that Hart in fact holds that "a finding of de jure 

segregation could be based on acts of omission or commission 

which have the ‘natural and foreseeable consequence of 

causing educational segregation.’ "38 The court believed the 

Hart test remains valid even after Washington v. Davis and 
  

Arlington Heights, as a cogent application of the Supreme 
  

Court’s requirement of proof of segregative intent. 32 

The southern district of New York qualified this 

40 holding still further eight years later. This court found 

  

36. Hart, 383 F.Supp at 736-7. 

37. Yick Wo v. Hopkins, 118 U.S. 356 (1885) (challenge to 
racially neutral statute regulating launderies). The two 
other cases are cited above. 

38. Arthur v. Nvouight, 873 P.24 134, 141 (24 Cir. 1978), 

cert. den. by Manch v. Arthur, 439 U.S. 860 (1978) (Civil 
rights action under 14th amdmt. against city officials for 
creation of maintenance of segregated city schools). 

39. Arthur, 573 F.24 at 143. 

40. UH.8. v. Ionkers Bd. of Ed., 624 PF. Supp. 1276 (S.D.N.Y. 
1988) aff’d 837 F.24 1181, cert. den. 486 U.S. 1055 (1983) 

(action to remedy alleged racial segregation in housing and 
public schools in Yonkers). 

2 

 



  

Hart and Arthur still consistent with the forseeable 

segregative impact analysis of Columbus. 41 But, "a careful 
  

reading of the district court and circuit court opinions in 

Arthur confirms that the findings of segregative intent did 

not rest solely on the foreseeability presumption but on an 

examination of alternative courses of action, the reason 

proffered for the school board’s segregated conduct, and the 

school board’s response to the known segregative impact of 

its policies and practices."42 

The New York position is thus unclear, but leaning 

towards a requirement of intent. Cases brought in the state 

courts under state statutes suggest that while education 

officials may act affirmatively to correct de facto 

43 segregation, nothing in the case law-post Washington v. 
  

Davis, has been held to require the dismantling of purely de 
  

44 facto segregation. At least a niggling portion of intent, 

  

41. Yonkers, 624 F.Supp. at 1380. 

42. 14. 

43.  Addabo v. Donovan, 256 N.Y.S8. 24 178,.182 (N.Y. Sup. 
1965) aff’d 261 N.Y.S. 2d 68 (NY 1965), cert. den. 382 U.S. 
905 (1965) (challenge to school pairing for racial balance); 
Yetere v. Allen, 15 N.Y. 24 259, 208 N.E. 24 174 (Ct. App. 
N.Y. 1965), cert. den. 382 U.S. 825 (1965) (Fd. Cmmr. orders 
reorganization of attendance areas to promote integration); 
Board of Ed. yv. Nyquist, 69 A.D. 24 182 (3rd App. Dept. N.Y. 
1979) (Cmmr. of Ed. orders elementary schools to eliminate 
de facto segregation). 

  

44, See, e.g. lora yv. Bd. of £3. of N.Y¥.C., 623 P.24 248 
(2d Cir. 1980) (Alleged racial discrimination in education 
of emotionally handicapped kids). 

13 

 



  

perhaps expressed through "foreseeability," is required. 

Thus despite the strong language of article I, Section 11, 

New York law may not provide any broader protection against 

public school segregation and discrimination that does the 

14th amendment. 42 

New Jersey - Straddling the Line 
  

Article I, Paragraph 5 of the 1947 New Jersey 

Constitution provides that "[n]o person shall be denied the 

enjoyment of any civil or military right .. nor be 

segregated in the militia or in the public schools, because 

of religious principles, race, color, ancestry, or national 

origin."46 The New Jersey Supreme Court in Booker v. Bd. of 

Ed. of Plainfield suggests that even fortuitous racial   

imbalance, if extreme, might require remedial action.%*?7 The 

court noted that "an official policy of segregation would 

not be consistent either with sound legal principles or 

sound educational policies, "and de facto segregation 

  

45. See Dorsey v. Stuyvesant Town Corporation, 299 N.Y. 
512,87 N.B. 2d 841, 548 (Ct. App. N.Y. 1949) cert. den. 339 
U.S. 981 (1950) (challenge to rental corporations who denied 
tenancy to Negroes). 

  

46. N.J. Const. Art I, Paragraph 5 

47." Booker v. Bd. of Ed. of Plainfield, 45 N.J. 161, 212 
A.2d 1, 10 (N.J. 1965) (Appeal from decision of Cmmr. of Ed. 
allowing local bd. to choose from 3 desegregation plans) 
[The court cited N.J. Const. art. I, Paragraph 5 on p. 8]. 

  

14 

 



  

"presents much the same disadvantages. "48 The court 

referred "approvingly" to a California case which had 

required that "school boards take steps, insofar as 

reasonably feasible, to alleviate racial imbalance in 

schools regardless of its cause" .4® 

An instructive comparison can be made with the New 

Jersey federal district court case of Spencer v. Kugler.>0 

The case was filed both under the 14th amendment, and N.J. 

Const. art. VIII, Section 4, Paragraph 1, guaranteeing free 

and efficient schools.>1 However, citing Swann, the court 

concluded that a federal court is precluded from imposing on 

school authorities the affirmative duty to cure "de facto" 

racial imbalance.>?2 

New Jersey’s animus against racial segregation in 

schools is of long standing. In 1881, the legislature 

declared it unlawful to exclude a child from any public 

school because of race.®3 "When called upon, our courts 

  

48.. 14. 

49. Jackson v. Pasadena City Sch. Distr., 382 P.2d 878, 882 
(Cal. 1963) (mandamus proceeding by 13 yr. old black boy to 
allow him to transfer to another jr. high). 

  

580.. Spencer Vv. Rudley, 6K 326 F.Supp. 1235 (D.N.J. 1871), 

aff’d 404 U.S. 1027 (1972) (14th amendment action by black 
pupils alleging unconst. racial imbalance in schools). 

51. See appendix. 

52. Spencer, 326 F.Supp at 1243. 

53. L.:1881,"¢c.. 142, now N.J.S.A. 18:14-2. 

15 

 



  

have not hesitated to strike down direct and hesitated to 

strike down direct and indirect efforts to circumvent the 

legislative direction."24 

The case and statutory law of New Jersey, then, seem 

to edge across the boundary of the intent/no intent 

requirement. What seems to have obviated the need for a 

firm ruling on this point at the state level is the 

Commissioner of Education’s firm steps toward the 

elimination of de facto segregation.>> The language of 

Booker, however, and the thrust of the line of cases above 

lends some assurance that in an extreme case of de facto 

segregation, filed under N.J. Constitution Article 1, 

  

54. Booker, 212 A.2d at 8. See Pierce v. Union District 
School Trustees, 46 N.J.L. 76 (N.J. Sup. Ct. 1834), 'aff’qd, 
47 N.J.L. 348 (N.J. E & A 1885) (Action to compel trustees 
of Burlington public schools to admit four Negro children); 
Patterson Vv. Bd. of Ed. of City of Trenton, 11 N.J. Misc. 
179, 164 A.892 (N.J. Sup. Ck. 1933), aff’d, 112 N.J.L. 99, 

169 A. 690 (N.J. E & A 1934) (colored high school student 
prohibited from taking swimming lessons, except with 
coloreds); Hedgepeth v. Bd. of Ed. of City of Trenton, 131 
N.J.L. 153, 35 A.2d 822 (N.J. Sup. Ct. 1944) (Black children 
denied admission to jr. high nearest their home). 

  

  

  

85. Eliot v. Bd. of Ed. of Neptune, 94 N.J. Super 400, 228 
A.24 696 (N.J. Super. Ct. App. Div. 1987) (State BA. of EQ. 
directed local bd. to make integration plan for next year): 
Piscataway Township Bd. of Ed. v. Burke, 158 N.J. Super. 
436, 386 A.2d 439 (N.J. Super. Ct. App. Div. 1978) {(Cmmr. of 
State Ed. Dept. orders local school Bd. to submit desegrega- 
tion plan) motion to dismiss appeal granted 79 N.J. 473, 401 
324 230 (N.J. 1978) Fuller v. Yolk, 230 F.Supp. 25 {(D.N.J. 
1964) vacated by 38] F.2d 323 (34 Cir. 1963), rmd 250 

F.Supp. 81 (D.N.J. 1966) (Plan upheld) (Challenge to school 
board’s plan to eliminate de facto segregation in elementary 
schools). 

  

16 

 



  

Paragraph 5, it would not be necessary to show "intent" to 

make out a constitutional violation. 

Michigan - Across the Line 
  

The equal protection clause of the Michigan 

Constitution provides that: "No person shall be denied the 

equal protection of the laws ... or be discriminated against 

... because of religion, race, color or national origin."56 

Michigan also provides for "the education of its pupils 

without discrimination as to religion, creed, race, color or 

n."o7 national origi 

In the case of Berry v. School District of the City of 
    

Benton Harbor, the district court put into practice these 
  

constitutional mandates.®8 "It is plainly evident that Art. 

I, Section 2 and Article VIII, Section 2 of the Michigan 

Constitution go beyond the limits of the 14th amendment by 

prohibiting all racial segregation, without regard to 

whether it was caused by a segregative purpose. "22 The 

court continued: "Each provision prohibits discrimination: 

  

86. Mich. Const. Art. I, Section 2. 

87. Mich. Const. Art. VIII, Section 2. 

  

58.  Rerrv v. School District of Benton Harbor, 467 7.Supp. 
721 (W.D. Mich. 1978) (Appeal from order requiring Mich. of- 
ficials to do survey of discriminatory acts). 

  

B89. ‘Ik, at 730. 

17 

 



  

the words ‘discriminate,’ rdiscrimination’ and ‘non- 

discrimination’ are words that do not appear in the 14th 

amendment, and it is clear that the drafters of the Michigan 

Constitution, by the use of these words, intended that the 

Michigan Constitution was to have a broader reach than the 

14th amendment."®0 

This decision, positing an affirmative duty to correct 

segregation, 1 marks a break with previous Michigan school 

desegregation cases. ®2 Those decisions required a finding 

of de jure segregation to establish a constitutional 

violation. Although, a presumption of segregative intent 

could arise when "the natural, probable, and foreseeable 

result of public officials’ action or inaction was an 

increase or perpetuation of public school segregation. "®3 

  

50. Xd. 

61. Id, ak 73«. 

62. See Higgins v. Bd. of Ed. of City of Grand Rapids, 508 
F.2d 779, 791 (6th Cir. 1974) (School desegregation suit) 
(School officials have no duty to correct effects of 
segregation over which they have no control); Davis v. 
School Distr. of City of Pontiac, Inc., 309 F, Supp. 734, 
742 (E.D. Mich 1970) aff’d 443 F.2d 873 (6th Cir. 1971), 
cert. den. 404 U.S. 913 (1971), appeal after r’md 474 F.2d 
46 (6th Cir. 1973), (14th amendment school desegregation 
suit) ("This court acknowledges the recently enunciated 
position that a Board of Education has no affirmative duty 
to eliminate segregation when it has done nothing to create 
ply ogg) 

  

  

  

63. Oliver v. Mich. State Bd. of E&., 508'F.24 178, 182 
(6th Cir. 1974) (School desegregation suit) cert. den. by 
Kalamazoo Bd. of Ed. v. Oliver, 421 U.S. 963 (1975), and by 

Mich. St. Bd. of Ed. v. Oliver, 421 U.S. 963 (1975); 
Oliver’s three-part test for de jure segregation required a 
finding of: 1) action or inaction by public officials 2) 
with a segregative purpose 3) which actually results in in- 
creased or continued segregation in the public schools. 
Oliver, at 182; also NAACP v. Lansing Bd. of Ed., 559 F.2d 

  

  

  

1042, 1047, 1056 (6th Cir. 1977) cert. den. 434 U.S. 997 

 



  

These decisions, most importantly, all involved the 14th 

amendment, not the Michigan Constitution. Or, they 

mistakenly gave the Michigan Constitution the same 

interpretation as the 14th amendment.®% 

The interpretation of Michigan Constitution article I, 

Section 2 providing more protection than the 14th amendment 

has been followed by the Michigan Court of Appeals. ®® It 

remains a valid line of argument for Michigan courts to 

employ. ©® 

California - Far from the line 
  

  

(Suit to desegregate public elementary schools in Lansing). 

64. Berry, 467 F.Supp. at 730 footnote 4. Also, "the 
Michigan constitution distinguishes between equal protection 
under the law and discrimination." id; compare with Bradley 
¥Y. Milliken, 338 F.Supp 382 (B.D. Mich. 1971) aff’d 484 
F.2d 218 (6th Cir. 1973), reversed 418 U.S. 717 (1974) 
(School segregation case filed under the 14th amendment, and 
also Mich. Const. art. 8, Sections 1,2,3). 

  

65. Detroit Branch, NAACP v. City of Dearborn, 173 Mich. 
App. 602 (Mich. Ct. App. 1988) (Challenge to ordinance 
limiting use of park to Dearborn residents and guests) Ap- 
peal den. by 433 Mich. 906, 447 N.W. 2d 751 (Mich. 1989). 

    

66. The Supreme Court has noted that: "Specifically, it 
must be shown that racially discriminatory acts of the state 
or local school districts, or of a single school district 
have been a substantial cause of interdistrict segregation." 
Milliken v. Bradley, (Milliken I), 418 U.S. 717, 745 (1974) 
(Action for multi-district remedy for de jure segregation in 
a single district). However, this case came four years be- 
fore Berry, and appears to be based primarily on a 14th 
amendment, not a state law, analysis. As noted in Berry, 
the Michigan courts may go further than federal ones to 
prohibit segregation. 

io 

 



In 1963, the Supreme Court of California declared 

that: "The right to an equal opportunity for education and 

the harmful consequences of segregation require that school 

boards take steps, insofar as reasonably feasible, to 

alleviate racial imbalance in schools, regardless of 

cause."%” By 1976 the court had occasion to note that "for 

more than a decade this court had adhered to the position 

that school boards in this state bear a constitutional 

obligation to attempt to alleviate school segregation, 

regardless of its cause."®8 In California, for equal 

protection purposes, education has been recognized as a 

"fundamental interest."®? 

These principles have survived Washington, Columbus, 
  

and the "intent" line of Supreme Court desegregation cases. 

  

In Buston. "Inc. VY. The Bd. of Ed. of the City of los 
  

Angeles, Justice Rehnquist, writing for the court, observed: 

"So far as this court is concerned, they [the California 

Supreme Court] are free to interpret the Constitution of the 

State to impose more stringent restrictions of the operation 

  

67. Jackson, 382 P.2d at 882. Note that this case was 
filed under the 14th amendment. 

68. Crawford v. Bd. of Ed of the City of Los Angeles, 130 
Cal. Rptr. 724, 58] P.24 28, 36 (Cal. 1976) (School desegra- 
tion suit under Eg. pro. clause of Cal, Const. - art. I, 
Section 7(a)). 

      

69. Id, at 39.  



  

of a local school board."’0 nT think the fairest 

construction is that the Supreme Court of California 

continues to be of the view which it announced in Jackson 

and adhered to in Crawford."’1l 
  

In Serrano Vv. Priest, the California Supreme Court 

applied this line of reasoning to a challenge to the public 

72 school financing system. This case was filed under the 

equal protection clauses of both the federal and the 

73 California constitutions. Noting that education is a 

"fundamental interest" in California, 74 the discriminations 

  

70.  Bustop, Inc... v. The Bd. of Ed. of the City of los 
Angeles, 439 U.S. 1380, 1382 (1978) (Application for stay of 
large California school-busing desegration order involving 
60,000 students). 

    

7%. Id. at 1381. 

72. Serrano Vv. Priest (Serrano I), 96 Cal. Rptr. 601, 487 
P.24 1241, appeal after r/md 135 Cal. Rptr. 345, 557 P.24 
929 (Cal. 1976), cert. den. by Clowes vy. Serrano, 432 U.S. 

807 (1977) (State and federal constitutional challenge to 
public school financing system relying heavily on local 
property taxes). 

  

73. The equal protection clause of the Cal. Const. was 
formerly composed of Cal. Const., art. I, Sections 11 and 
21. Together they were held to be substantially the equi- 
valent of the equal protection clause of the 14th amendment. 
Dept. of Mental Hygiene v. Kirchner, 43 Cal. Rptr. 329, 400 
P.2d 321 (Cal. 1965) (clarification of whether former order 
was based on the equal protection clause of Cal. or the 
U.S.) However, in 1974, both were repealed, and Cal. Con- 
st. art. I, Section 7, derived from Cal. Const. art. I, Sec- 
tion 21 is now the equal protection and due process clause 
of California, and art. 4, Section 16, derived from art. 1, 
Section 11 is another equal protection provision. See ap- 
pendix for the text of these provisions. 

    

74. Serrano at 1258, 1263. 

21 

 



  

based on district wealth in the system of financing could 

not stand.’® Even if it were analogized to de facto 

segregation, as Jackson had made clear, it could not stand. 

School boards had an affirmative duty to eliminate de facto 

racial segregation. ’® 

Serrano (II), affirming the reasoning of Serrano (I), 

was cited approvingly by the Connecticut Supreme Court in 

Horton. ’’ The Connecticut court found its thinking to be 

"substantially in accord" with that of the California court 

as to the fundamentality of the right to education.’® It 

remains to be decided whether or not Connecticut will adopt 

the subsidiary reasoning of Jackson. 

  

75."  I14., at 1252. 

76. Id, at 1255. However, the system of financing was held 
not to violate Cal. Const. art. IX, Section 3, providing for 
free public schools p.1248. Also, as Serrano Vv. Priest 
(Serrano II) 557 P.2d 929, 949 (1977) made clear, San 

Antonio v. Rodriquez undercut the 14th amendment claim. But 
the state constitutional claim was still valid. 

  

77.  Borton, at 373. 

78... Id. 

22 

 



  

Conclusion 

The legal precedents and constitutional language exist 

in Connecticut for it to follow the lead of any of these 

four states. 

The least bold of the four, New York, uses a variation 

on a tort standard test, where an ASE is held to intend 

the reasonably foreseeable consequences of his actions.’® 

In New York’s approach, omissions can show intent as well as 

actions. 80 New York had followed a straight "discriminatory 

impact" test for a number of years, then chose to weaken 

it,81 citing "with approval" the Michigan courts’ approach 

in Oliver.82 However, the plain words of N.Y. Const. art. 

I, Section 11, and the case law make New York’s position 

somewhat unclear. If intent is indeed required, it may be 

such a niggling showing as to eviscerate this requirement. 

In any case, both California and Michigan considered 

New York’s approach, and have rejected ix.83 Apart from 

  

79. See W. Keeton et al., Prosser and Keeton on Torts, Sec- 
tion 8 (5th Ed. 1984). 

  

80. Arthur, at 141. 

81. See Branche, Arthur. 

82. Arthur, at 142. 

83. The lower court’s opinion of Berry, 442 F.Supp. 1280, 
1293 (W.D. Mich. 1977), applies an "intent" test, and cites 
part of Hart'’s "foreseeable effect" analysis [Hart, at 50]: 
Crawford, at 39, cites Hart [at 50] and Oliver [at 182] for 
comparison to the California approach. 

23 

 



  

lofty sentiments regarding education, which all states 

express, these courts seemed more willing to recognize the 

independent vitality their own constitutional provisions 

have from those of the federal government. 84 They are also 

willing to read several in conjunction to find a stronger 

right than the 14th amendment. 8° 

New York, by contrast, seems to adhere to the line of 

cases stating that its equal protection clause has only the 

sane reach as the fourteenth amendment. 86 Most importantly, 

California, like Connecticut, declared public education to 

be a "fundamental interest."87 Hence, California case law 

has had a longer history of rooting out public school 

segregation than Michigan. New York, by contrast, has 

emphasized the importance of public education, but has not 

declared it a "fundamental right." 

New Jersey, it seems, would not require a showing of 

intent in an extreme case of de facto segregation. 88 Its 

  

84. Dept. of Mental Hygiene, at 322; Bustop, at 41-2; 
Berry, at 730. 
  

85. See Serrano II; Also NAACP v. San Bernardino City 
Unified School Disty., 187 Cal. Rptr. 646 (Cal. Ct. App... 
4th District 1982) (School desegregation order invalid be- 
cause it used precise numerical quotas) (Crawford upheld 
again); Berry. 

  

  

  

86. Dorsey, at 548. 

87. .Serrsno (I), at . 1255, 12863. 

88. See Booker, at 10. 

24 

 



  

Supreme Court noted in Morean v. Bd. of Ed. fF Montclair 
  

that the local school board, "Could not, consistently with 

either sound legal principles or with sound educational 

practices, maintain an official policy of segregation with 

its inherent inequalities of educational opportunities and 

its withholding of the democratic and educational advantages 

of heterogeneous student populations.®2 This Supreme Court 

took long notice of affirmative New York actions to 

eliminate segregation, 2° and cited Jackson at length, 

referring to it "approvingly."?l And given the extreme 

situation of de facto segregation in Hartford, were 

Connecticut to adopt the New Jersey line of reasoning, it 

might well find itself compelled to adopt Jackson as well. 

All four lines of cases express concern over the 

interplay of residential segregation and school 

  

89. Morean v. Bd. of Ed. of Montelaly, 42'N.J3. 237,200 
A.2d 97 (N.J. 1964) (challenge to plan to relocate pupils 
from closed jr. high) (Case under both 14th amdmt. and N.J. 
Const. art. I, Paragraph 5). 

  

20. See Booker, at 6, citing Addabbo. Booker, at 7, citing 
Vetere v. Allen; See also lee yv. Nyquist, 318 F.Supp. 710, 
714 (W.D.N.Y. 1970), aff’d 402 U.S. 935 (1971) (Class action 
to enjoin enforcement of New York statute on student assign- 
ment to achieve racial equality) ("Although there may be no 
constitutional duty to undo de facto segregation, see Of- 
fermann v. Nitlowski, 378 F.2d 22,24 (24 Cir. 1967), it'is 
by now well documented and widely recognized by educational 
authorities that the elimination of racial isolation in the 
schools promotes the attainment of equal educational op- 
portunity and is beneficial to all students, both black and 
white."). 

  

S11. Booker at 10. 

25 

 



  

92 Given the difficulty of determining where segregation. 

government complicity lies, and the slipperiness of the 

concept of intent when applied to complicated government 

operations, 23 Connecticut would do well to follow the lead 

of Michigan and California, and do away with the requirement 

of intent. For, as noted by Crawford, the distinction means 
  

little to the children exposed to the harmful effects of a 

segregated education. 4 

The Supreme Court in Green v. County School Bd. of New 
    

Kent County envisioned a system "without a ‘white’ school 
  

and a ‘Negro’ school, but just schools."23 Given 

Connecticut’s commitment to free public education, and its 

animus against racial discrimination and segregation, 

eliminating the intent requirement would be a good place to 

start.2® 

  

92. See Jackson, at 88; Berry (lower Court) at 1298; Hart, 
at 736; Cf. Morean, at 100. Note that Horton does not give 
a right to education at a particular school, or a right to 
housing near the school a pupil attends. Savage v. Aronson, 
214 Conn. 256, 571 A.24 6968, 712 (Conn. 1990) (AFDC 

recipients challenge Cmmr’s reduction of emergency housing 
eligibility period). 

93. See Hart at 737-8. 

94... Crawford, at 37, 41-2. 

S05. Green Vv. County Sch. BA. of New Kent County, 391 U.S. 
430 (1968) (School Bd.’s "freedom of choice" plan for school 
attendance held not to meet Brown’s mandate). 

    

96. Interestingly, a strong equal protection clause which 
prohibits discrimination by race does not always favor mi- 
nority groups. In a Wyoming case, the Shoshone and the 
Arapahoe were prevented from setting up a separate Indian 
Reservation school district, because it did not provide ade- 
quately for the enrollment of students from other county 
districts who wished to attend. Geraud v. Schrader, 531 
P.2d 872 (Wyo. 1975) cert. den. by Wind River Indian Educa- 

  

tion Association, Inc. v. Ward, 423 U.S. 904 (1975) (Filed 
  

 



  

Part II 

Liability for Failure to Provide a Minimally Adequate 
    

Education 
  

De Shaney v. Winnebago Dept. of Social Services 
  

reaffirmed the principle that the federal constitution is a 

charter of "negative liberties" - that, absent a specific 

constitutional duty, even a judge should resist the urging 

of "natural sympathy" to compensate the victim of a grievous 

injury.2” "The state had no [federal] constitutional duty 

to protect Joshua from his father’s violence, its failure to 

do so - though calamitous in hindsight - simply does not 

constitute a violation of the due process clause."?8 

Moreover, as was stated in Youngberg v. Romeo, "As a general 

  

under Wyo. Const. art. 7, Section 10, which prohibits dis- 
crimination between pupils by race). 

97. De Shaney v. Winnebago Dept. of Social Services, 109 S. 
Ct. 998, 1007 (1989) (14th amdmt. due pr. claim against wel- 
fare agency for boy’s beating by father); Bowers v. Devito, 
686 F.2d 616, 618 (7th Cir. 1982) (Wrongful death suit by 
estate of woman against doctors who released murderous men- 
tal patient) ("There is no constitutional right to be pro- 
tected by the state against being murdered by criminals or 
madmen. It is monstrous if the state fails to protect its 
residents against such predators but it does not violate the 
due process clause of the 14th amendment or, we suppose, any 
other provision of the Constitution"). 

    

98. De Shaney, at 1007. 

27 

 



  

matter, a state is under no constitutional duty to provide 

substantive services for those within its borders."2° 

State law provides a more ready source for these 

minimum duties, and a more ready avenue for liability to 

enforce them. The state of Connecticut gives a 

constitutional right to a free public education, no racial 

discrimination or segregation in the provision of that 

education, and a number of statutes to create a system of 

public schools. 100 

In this section I argue that these laws and 

constitutional provisions provide for both the right to a 

minimally adequate education in the public schools, and 

liability against government officials for failure to 

enforce that right. 

The violation 
  

In Brown I, the Supreme Court noted that "separate 

educational facilities are inherently unequal."101 In the 

  

99. Youngberg v._ Romeo, 457 U.S. 307, 317 (1982) (In- 
voluntarily confined retarded man has 14th amendment right 
to safe confinement and habilitation); See Maher wv. Roe, 432 
U.S. 464, 468 (1977) (No equal protection violation when a 
state prohibits funding of abortions not medically neces- 
sary) ("The constitution imposes no obligation on the 
states, to pay the pregnancy-related medical expenses of in- 
digent women, or indeed to pay any of the medical expenses 
of indigents."). 

  

100. See appendix. 

101. Brown-i, at 495, 

28 

 



  

case at hand, the plaintiff Milo Sheff does not allege mere 

inequality. He has produced a body of evidence 

demonstrating the inadequate nature of the education 

Hartford school children will receive in their segregated 

schools.192 As noted by Yick Wo v. Hopkins, even seemingly 

race-neutral laws and policies cannot be used to further 

race discriminations, and deprive a minority group of 

constitutional rights.103 

  

102. See complaint, at pp. 13-14; Or as stated in Robinson 
¥Y. Cahill, 62 N.J. 473, 303 A.24 273, 298 (N.J. 1973) (Chal~ 

lenge to constitutionality of N.J. public school financing 
system), "The Constitution’s (of N.J.) guarantee must be un- 
derstood to embrace that educational opportunity which is 
needed in the contemporary setting to equip a child for his 
role as a citizen and as a competitor in the labor force." 

  

103. Yick Wo v. Hopkins, 118 U.S. 356, 373-4 (1885) (San 
Francisco regulations had effect of preventing operation of 
Chinese laundries) holding limited by U.S. v. Verdugo- 
Urquidez, 110 S.Ct. 1056 (1990), rehearing denied by U.S. Vv. 
Verdugo-Urquidez, 110 S.Ct. 1839 (1990) ("Though the law it- 
self be fair on its face and impartial in appearance, yet, 
if it is applied and administered by public authority with 
an evil eye and an unequal hand, so as practically to make 
unjust and illegal discriminations between persons in 
similar circumstances, material to their rights, the denial 
of equal justice is still within the prohibition of the con- 
stitution."); What is alleged here is a violation of a fun- 
damental right, not the state simply making discretionary 
choices about allocation of resources and enforcement of 
laws. See Dandridge v. Williams, 397 U.S. 471, 478 (1970) 
reh. den. 398 U.S. 914 (1970) (AFDC recipients sue to enjoin 
application of Md’s maximum grant regulation as violating 
equal protection of the 14th amendment and the Social 
Security Act of 1935) ("Thus the starting point of the 
statutory analysis must be that the federal law gives each 
state great latitude in dispensing its available funds."): 
McGowan v. Md., 366 U.S. 420, 427 (1961) (Md. law prohibit- 
ing sale of certain items of Sunday) (The Equal Protection 
Clause relates to equality between persons as such, rather 
than between areas and that territorial uniformity is not a 
constitutional prerequisite). 

  

  

  

    

29 

 



  

In the leading case of Horton, the Supreme Court of 

Connecticut concluded: "In Connecticut, the right to 

education is so basic and fundamental that any infringement 

of that right must be strictly scrutinized."104 under the 

substantive due process clause of the Connecticut 

Constitution, if impairment of a fundamental right is found, 

the questioned government regulation would be subjected to 

strict scrutiny to see if it was compellingly justified and 

narrowly drafted.103 However, only those regulations 

impairing the right to a "substantially equal educational 

opportunity" in the free public schools trigger strict 

06 scrutiny.l This due process clause, composed of 

  

104. Horton, at 373; The Connecticut Supreme Court has 
said: "If children are deprived of the full benefits of the 
state’s system of education, then the school patrons should 
have a right to complain." Sherman v. Kemish, 29 Conn. 
Supp. 198,279 A.24 871, 572 (Conn. Super. Ct. 1971) app. 
den. 287 -A.24 739 (Conn. 1971) (Action to enjoin election to 
recall chairman of bd. of ed. from office). 

105. Campbell v. Bd. of Ed. of New Milford, 193 Conn. 93, 
475 A24.289, 295 (Conn, 1984) (Under Conn. Const. art. 1, 
Section 8, students challenged policy of local school kd. 
imposing academic sanctions for non-attendance). 

  

106. Id., at 295-6. Note that Connecticut has long recog- 
nized the right to sue a school district. See Mcloud Vv. 
Selby, 10 Conn. 390, 394 (Conn. 1835) (Action of assumpsit 
on a receipt of property taken on execution); Horton, at 
365, also permitted suit against the state; Government offi- 
cials, and state officials performing discretionary func- 
tions are generally shielded from liability from civil 
damages if their conduct does not violate clearly estab- 
lished constitutional or statutory norms a reasonable person 
would have known. Parillo v. Sura, 652 F.Supp. 1517, 1519 
(D. Conn. 1987) (Qualified immunity for doctors of mental 
patient who hung himself outside of the hospital, since in 
1982 no constitutional right to treatment existed). How- 
ever, this paper argues that these functions are not discre- 
tionary, that clear rights exist, and that officials have 
had long awareness of violations of these rights. 

30 

 



  

Connecticut Constitution article I, Sections 8 and 10, may 

offer broader protections than the due process clause of the 

14th amendment.l07 1n any case, the Connecticut court is 

not bound by the federal interpretations of the federal 

clause. 108 

These substantive due process rights, I argue, can 

constitute a form of property.l0° 

Education as property 
  

In Board of Regents wv. Roth, the Supreme Court 
  

observed that: "Property interests, of course, are not 

  

107. See State v. Brigandi, 186 Conn. 521, 442 A.2d 927, 
937 (Conn. 1982) (Defdt. in sexual assault case challenges 
admission of alleged victim’s out of court statements) ("We 
have held that the due process clauses of both the United 
States and Connecticut Constitutions have the same meaning 
and impose similar limitations"); but Cologne v. Westfarms 
Associates, 37 Conn. Supp. 90, 442 A.2d 471, 477-8 (Conn. 

Super. Ct. 1982) (NOW members sought to use common area of 
shopping mall to solicit signatures for ERA) ("Horton is 
cited here solely for the purpose of showing a willingness 
by the Connecticut Supreme Court to interpret this state’s 
constitution more expansively than the federal constitu- 
tion"); see Berdon, Due Process Clauses, 15 Conn. L. Rev. 41 
(1982). 

  

  

108. Fasulo v. Arafeh, 173 Conn, 473, 378 'A.24 '553, 8554-5 

(Conn. 1977) (Mental patients charge illegal confinement in 
a mental hospital) ("The due process clause of the Con- 
necticut constitution shares but is not limited by the con- 
tent of its federal counterpart."). 

109. See generally Reich, The New Property, 73 Yale L.J. 
733 (1964); Wald, Government Benefits: A New Look at an 01d 
Gift Horse, 65 N.Y.U. L. Rev. 247 (1990); Tushnet, The Con- 
stitution of the Bureaucratic State, 86 W. Va. L. Rev. 1077 
(1984). 

  

  

  
  

  

31 

 



  

created by the [federal] constitution. Rather they are 

created and their dimensions defined by existing rules or 

understandings that stem from an independent source such as 

state law. "110 

  

Perry v. Sindermann broadened this principle: 

"’Property’ denotes a broad range of interests that are 

secured by ‘existing rules or understandings. /"111l In 

Connecticut, these "understandings" have a long history: 

"Connecticut has for centuries recognized it as her right 

and duty to provide for the proper education of the young. 

Town school committees exist as part of her agencies for 

regulating the due performance of that obligation."112 

  

110. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (Un- 
tenured professor not renewed); Cf. Lee v. Bd. of Ed. of 
City of Bristol 181.Conn. 89, 434 A.24 333, 335-6 (Conn. 
1980) (Tenured teacher terminated for cause); see also Gold- 
berg v. Kelly, 397 U.S. 254, 261-2 (1970) (termination of 
welfare benefits) ("Appellant does not contend that proce- 
dural due process is not applicable to the termination of 
welfare benefits. Such benefits are a matter of statutory 
entitlement for persons qualified to receive them."). 

111. Perry v. Sindermann, 408 U.S. 593, 601 (1972) (College 
professor may have a property interest in employment 
entitled to due process protection, despite having no con- 
tract); Cf. Mathews v. Eldridge, 424 U.S. 319 (1976) 
(Evidentiary hearing not required before termination of dis- 
ability benefits, present procedures met due process); Con- 
necticut Education Association, Inc. ¥. Tirozzi, 210 Conn. 
286, 554 .A.24: 1065, 1070 (Conn. 1989) (Court finds that in- 
validated teaching certificates are "property’); Harwinton 
Drilling v. Public Utilities, 188 Conn. 90, 448 A.2d 210, 
214 (1982) (Suit to keep telephone exchanges from merging, 
plaintiffs fail to establish property right). 

  

  

  

  

112. State v. Huntington Town School Committee, 82 Conn. 
563, 74 A.882, 883 (Conn. 1909) (Action by town to compel 
town school committee to reopen a school); also see State Vv. 
Hine, 59 Conn. 50, 21 A.1024, 1029 (Conn. 1890) (Challenge 

to Act making sec’y of state bd. of education an ex officio 
member of every town school committee). 

  

32 

 



  

The Supreme Court applied these federal principles to 

public education in Goss Vv. Lopez. 113 The court noted that 
  

since Ohio had statutorily established a public school 

system and required its children to attend, "the state is 

constrained to recognize a students’ legitimate entitlement 

to a public education as a property interest which is 

protected by the due process clause."11l4 nThe court’s view 

has been that as long as a property deprivation is not de 

minimis, its gravity is irrelevant to the question of 

whether account must be taken of the Due Process Clause."11l3 

In the case at hand, I refer again to the several 

Connecticut constitutional and statutory provisions 

establishing a right to education.l1® As established by 

  

113. Goss Vv. Lopez, 419 U.S. 565 (1975) (students facing 
temporary school suspension entitled to 14th amendment due 
process). 

114. Goss, at 574; Note that public education has enjoyed 
protected status even at the federal level. It is not quite 
a "right" but neither is it merely a "privilege." Plyler Vv. 
Doe, 457 U.S. 202,:221 (1982) reh. den. by 458 U.S. 1131, 

and holding limited by U.S. v. Verdugo-Urquidez, 110 S.Ct. 
1839 (1990) (14th amdmt. equal protection challenge to Texas 
statute withholding funds to school districts educating il- 
legal aliens). 

115, goss, at 576, See ‘also Bartlett v. Krause, 209 Conn. 
352, 551 A.2d 710, 715, 717 (Fire marshall discharged) (Dis- 
charge from $70 per month position not a de minimis property 
interest). 

  

116. See appendices. Note that Jackson found a due process 
violation based on racial segregation, even though physical 
facilities and roughly equal among the schools. Jackson, at 
880; The Supreme Court has held that segregation in public 
education can constitute an arbitrary deprivation of stu- 
dents’ liberty, in violation of the due process clause. 
Bolling v. Sharpe, 347 U.S. 497, 500 (1954) op. suppl. by 
Brown Vv. Bd. of Fd. (Brown IY), 349 U.8. 294 (1958) (school 
desegregation case in D.C., where the 14th amendment does 
not apply). 

 



  

defendant’s own testing system, the deprivation of 

plaintiff’s right of an education of even a minimal sort is 

clearly demonstrated. 

Closely allied to the property argument is one based 

in custody, which I will next consider. 

Custody and Parens Patriae as the Basis of Entitlement and 
      

Liability 

In Youngberg v. Romeo, the Supreme Court concluded 
  

that "respondent’s liberty interests require the state to 

provide minimally adequate or reasonable training to ensure 

safety and freedom from undue restraint."11? This rather 

slim educational right must be read in light of 

Connecticut’s longstanding promotion of education, and the 

corresponding lack of an educational right at the federal 

level.l1l8 However, this concept of affirmative duties was 

  

117. Youngberg Vv. Romeo, 457 U.S. 307, 319 (1982) (14th 
amdmt right to safe confinement and habilitation of in- 
voluntarily committed mentally retarded individual); Mahoney 
¥. ILengsink, 213 Conn. 548, 569 A.2d 518, ‘530 (Conn. 1990) 

(Voluntary patient in state mental hospital commits 
suicide); see generally Jackson v. Indiana, 406 U.S. 715, 
738 (1972) ("At the least, due process requires that the na- 
ture and duration of commitment bear some reasonable rela- 
tion to the purpose for which the individual is committed.") 

118. See San Antonio, at 35. One is naturally hesitant to 
use prisoners and madmen as a model demonstrating positive 
rights of school children. However, as detailed above, and 
below, the case law emphasizes "custody" as that which calls 
for affirmative duties. E.g. Goss, above. The Supreme 
Court has declared that, "the prisoner and the school child 
stand in wholly different circumstances." However, this was 
in the context of denying school children 8th amendment pro- 
tections, not providing them with basic services. Ingraham 
v. Wright, 430 U.S. 651, 669 (1977) (Jr. high students claim 
corporal punishment violates 8th amendment, and requires 

 



  

qualified still further in De Shaney: "The affirmative duty 

to protect arises not from the state’s knowledge of the 

individual’s predicament or from its expressions of intent 

to help him, but from the limitation it has imposed on his 

£,1n119 De Shaney rejected freedom to act on his own behal 

the notion that the due process clause imposed an 

affirmative obligation on the states to provide protective 

services where a "special relationship" had been 

created."120 However, the state law version of the "special 

relationship" test was not rejected by De Shaney.121 

Special Relationship 
  

In Connecticut, the teacher and the school stand in 

loco parentis toward the pupils.122 And as noted by the 

  

14th amendment due process). 

119. De Shaney, at 1006; Cf. White v. Rochford, 592 F.2d 
381, 385 (7th Cir. 1979) (Due process violated when police 
officer arrested uncle, leaving children stranded on high- 
way) . 

  

120. 1d, at 1004. 

121. Cf. Coffman v. ¥llson Police DPept., 739 F. Supp. 287, 
265 (E.D. Pa. 1990) (Spousal abuse victim brings action 
against police for failure to protect). 

  

122. Sheehan v. Sturges, 53 Conn. 481, 2 A.841l, 842 (Conn. 
1885) (Action for assault and battery by teacher whippping 
pupil); Calway Vv. Williamson, 130 Conn. 575, 36 A.2d 377, 
378 (Conn. 1944) (Teacher administers corporal punishment) 
Schall v. Martin, 467 U.S. 253, 265 (1984) (Due process 
challenge to statute authorizing pretrial detention of ac- 
cused juvenile delinquents) ("Juveniles, unlike adults, are 
always in some form of custody. Children, by definition, 
are not assumed to have the capacity to take care of them- 
selves. They are assumed to be subject to the control of 
their parents, and if parental control falters, the state 
must play its part as parens patriae."). 

 



Superior Court of Connecticut, "The policy of the law 

attempts in every way possible to protect infants."123 

These two principles, taken together, may create a "special 

relationship" between the pupil and the state. Just as for 

some state actors it may trigger an affirmative duty to 

protect, in the case of state educators, it may trigger a 

duty to educate, in fulfillment of statutory and 

constitutional mandates. 124 

  

123. Fedor v. Mauwehu Council, 21 Conn. Supp. 38, 143 A.2d 
466, 467 (Conn. Super. Ct. 1958) (Action by minor for per- 
sonal injuries sustained while attending boy scout camp). 

  

124. For instance, in Cleveland v. Cleveland, 161 Conn. 
452, 289 A.2d 909, 913 (Conn. 1971) appeal after rmd 165 
Conn. 95, 328 A2d 691 (Conn. 1973) (Proceedings to modify 
divorce judgement and recover costs of educating minor chil- 
dren from father), the court noted that "courts have the 
power to direct one or both parents to pay for private 
schooling, if the circumstances warrant." It could be in- 
ferred from this that courts might also be willing to order 
public educators simply to carry out their legal obliga- 
tions, a less bold case of judicial intervention. For in- 
stance, Connecticut has noted that even for a special educa- 
tion, no costs may be charged to a child without infringing 
on his fundamental right to education under Connecticut law. 
State v. Stecher, 35 Conn. Supp. 501, 390 A.2d 408, 410 

(Conn. Super. Ct. 1977) (state filed for reimbursement from 
man for cost of retarded son’s special education at a state 
institution); For instance, the Connecticut Court has said: 
"The neglect or omission to provide money therefore does not 
absolve a public corporation from the duty to discharge a 
statutory liability ... or, ordinarily, for expenditures in- 
volved in action by the municipality itself upon subjects 
not foreseen when the annual appropriations are made." 
Groton and Stonington Traction Co. v. Town of Groton, 115 
Conn. 151, 160 A.902, 903 (Conn. 1932) (Town bd. neglects to 
appropriate money for transportation of students). 

  

   



  

In the case of Clark v. State, a state doctor decided 

not to hospitalize a previously violent, psychotic 

outpatient. However, he had neglected to carefully examine 

the medical record, and evinced "an almost casual 

consideration of the problems of a dseply troubled 

patient."125 He also ignored repeated warning from persons 

closely in contact with the man, who subsequently, 

"inexplicably" attacked the plaintiff. Based on these 

factors, the court concluded that the doctor’s decision 

could not be called a "professional judgment," and the state 

could be held liable under New York law.X2® wIn this case, 

a member of the general public should not be required to 

accept such a risk."127 The analogies to the repeated 

warnings given to the state board of education I only note 

  

125. Clark v. State, 472 N.¥.8. 24 170,172 N.Y. App. Div. 

1984) (Action for injuries by woman assaulted by state men- 
tal health facility out-patient). 

136, 14. 

127.  I4., at 173. Compare with Thompson Vv. County of 
Alameda, 107 Cal. Rptr. 70, 614 P.24 728, 738 (Cal. 1980) 
(Juvenile delinquent released into custody of mother kills 5 
year old) (No state liability because "plaintiff’s decedent 
was not a known, identifiable victim, but rather a member of 
a large amorphous public group of potential targets."); 
Martinez v. State of California, 444 U.S. 277, 285 (1980) 
reh. den. 445 U.S. 920 (1980) (No deprivation of property or 
life without due process by official immunity statute when 
parolee kils girl five months after release) ("Her life was 
taken by the parolee fire months after his release. He was 
in no sense an agent of the parole board. Further, the 
parole board was not aware that appellants’ decedent, as 
distinguished from the public at large, faced any special 
danger."). 

37 

 



  

28 More important is the New York court’s in passing.l 

willingness to impose liability for "risk" to the general 

public. Given the "fundamental" nature of education in 

Connecticut, the Connecticut courts may well be able to 

provide liability for failure to remedy the "risk" to the 

general Hartford student body. 

Custody (and Policy) 
  

Even absent the "special relationship" grounds, De 

Shaney left open the possibility for suits against state 

actors acting in thelr official capacities. 129 Thus, 

various "protective services" cases are still good law, 130 

  

128. Complaint, pp. 16-22. 

129. De Shanev at 1006. "Had the state by the affirmative 
exercise of its power removed Joshua from free society and 
placed him in a foster home, we might have a situation suf- 
ficiently analogous to incarceration or institutionalization 
to give rise to an affirmative duty to protect. We express 
no view on the validity of this analogy, however, as it is 
not before us in the present case." 

130... 2.9. Doe vy. N.¥.C. Dept. of Social Services, 649 P.24 
134 (24 Cir. 1981), app. after remand, 709 F.2d 782 (2d Cir. 
1983), cert. den. by Catholic Home Bureau v. Doe, 464 U.S. 
864 (1983) (Foster child raped by foster father sues agency 
for failure to adequately supervise placement); Taylor Vv. 
Ledbetter, 818 F.2d 791 (11th Cir 1987) cert. den. by 489 
U.S. 1065 (1989) (Foster child sues Georgia officials for 
injuries received while in custody of foster parents); also 
Meador v. Cabinet for Human Resources, 902 F.2d 474 (6th 
Cir. 1990) cert. den. by 111 8. Ct. 182 (1990) (5th and 14th 
amdmt. due process actions on behalf of children allegedly 
abused in state-regulated foster home). 

    

  

  

  

38 

 



  

or a state may simply focus on the state action, and leave 

aside any sort of "functional custody" analysis.131 In 

Robert G. v. Newburgh City School District, the plaintiff, a 
  

school child, was allegedly sexually assaulted by a 

substitute teacher at her school.l32 The Court noted that, 

"Nothing in De Shaney suggests that state officials may 

escape liability arising from policies maintained in 

deliberate indifference to actions taken by their 

subordinates. "133 

Stoneking and Robert G. edge over to yet another 
  

ground for liability. According to Monell v. N.Y. Dept. of 
  

Social Services, a municipality may be sued for 
  

constitutional deprivations visited according to 

  

131. Stoneking v. Bradford Area School District, 882 7.24 
720, 723-4 (34 Cir. 1989), cert. den. by Spith v. Stoneking, 
110 S.Ct. 840 (1990) (14th amdmt. due process action against 
school district and officials for teacher’s alleged sexual 
assault on pupil) (Focusing on "state action" instead of 
custody because De Shaney made that avenue uncertain); But 
see J.0. v. Alton Community Unit School Dist. 11, 909 F.2d 
267, 272 (7th "Cir. 1990) (Action for violation of liberty 
interest of pupil as result of alleged sexual molestation by 
teacher) ("The government, acting through local school ad- 
ministrations, has not rendered its school children so help- 
less that an affirmative constitutional duty to protect 
arises. Whatever duty of protection does arise is best left 
to laws outside the constitution, as Illinois has done."). 

    

    

  

132. Robert G. v. Newburgh City School District, 1990 WL 
3210 (S.D.N.Y. 1990) (14th amdmt. action for sexual assault 
of teacher on student). 

    

333... Robert Gc., 'at #1}. 

39 

 



governmental "custom" or "practices."134 As long as there 

is a direct causal link between the municipal policy or 

custom and the injury, and a finding of deliberate 

indifference to the rights of persons the municipality’s 

agents come into contact with, liability can be found. 132 

As noted by Pembaur v. City of Cincinnati, this liability 

only attaches where "a deliberate choice to follow a course 

of action is made from various alternatives" by city policy 

makers with authority to make final policy.136 Under 

appropriate circumstances, "municipal liability may be 

imposed for a single decision by municipal policy 

makers. "137 

  

134. Monell v. N.Y. Dent. of Social Services, 436 U.S. 6538 
(1978) (Female employees challenge policy of requiring preg- 
nant employees to take unpaid leaves of absence before medi- 
cally necessary); In the background of this argument lie 
cases like this, though not quite at this level of state in- 
volvement: Burton v. Wilmington Parking Authority, 365 U.S. 
715 (1961) (State a joint participant in restaurant dis- 
crimination against Negroes); Nixon v. Condon, 286 U.S. 73 
(1932) (Black man prevented from casting vote at primary 

elections); Violations of state law are not cognizable under 

42 U.S.C. Section 1983. Parillo, at 1519, footnote 4. This 

line of argument is used only to illustrate an avenue Con- 
necticut could choose to follow. 

  
  

  

135. City of Canton v. Harris, 489 U.S. 378 (1939) (Section 

1983 suit for alleged violation of right to receive neces- 
sary medical care while in police custody). 

136. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) 

(Section 1983 action for forcible attempt by sheriff’s 

deputies to serve capiases on physician’s employees). 

137. Pembaur, at 479 " ... because even a single decision 

by such a body unquestionably constitutes an act of govt. 

policy." Id, at 480. See Ruge v. City of Bellevue, 892 F.2d 

738, 741 (8th Cir. 1989) (Mother of city employee killed 

when ditch collapses sues city) (plaintiff’s complaint of 

"policy" of city to not warn of danger sufficient to make 

out 1983 claim); Cf. Tedesco v. City of Stamford, 215 Conn. 

450, 576 A.2d4 1273, 1277 {(Comn. 1990) (Section 1983 suit by 

city employee claiming lack of procedural due process in 

   



  

In the present case, plaintiffs have produced long 

evidence of deliberate choice on the part of government 

officials to pursue educationally inadequate policies.138 

This line of argument falls under the heading of 

"educational malpractice." These actions are based ona a 

school’s failure to teach, test, or counsel adequately, with 

resultant intellectual harm.13% They have generally been 

unsuccessful, even when brought under state constitutional 

provisions for education. 140 

Courts entertaining these suits have given similar 

reasons for denying relief: an absence of workable 

standards; inherent uncertainty in determining the nature 

  

termination). 

138. These facts have been elaborated on above. 

139. W. Keeton, Prosser and Keeton on Torts, Section 131, 
Pp. 1048-9 (5th ed. 1984); e.g. Hoffman v. Bd. of Ed. of 
City of N.V.. 424 N.¥.S.20:376, 400 'N.BE. 24317 (Ct. of 
App. N.Y. 1979) (Alleged failure to properly evaluate mental 
capacity of student erroneously placed in retarded classes); 
Smith v. Alameda County Social Services Agency, 90 Cal. App. 
34 929,153 Cal. Rptr., 712 (Cal. App. Ct. 1979) (Failures to 
provide plaintiff or adoptive home, and failure to give ade- 
quate educational training). 

    

  

140. Donohue Vv. Cobiacgne, 418 N.¥.5.24: 375,391 N.E. 24 
1352, 1353 (Ct. App. N.Y. 1979) (High school graduate claims 
he lacks even rudimentary English skills, sues for educa- 
tional malpractive) ("The state constitution (Art. XI, Sec- 
tion 1) commands that ‘[t]he legislature shall provide for 
the maintenance and support of a system of free common 
schools...’ ...this general directive was never in- 
tended...to ensure that each pupil receives a minimum level 
of education."). 

  

41 

 



  

and cause of damages; and the extreme burden that might be 

placed on both the school system and the judiciary.l41 

It is doubtful that the Connecticut courts would wish 

to embark on a different course after noting the strong 

judicial animus against these suits. However, the 

Connecticut situation is slightly different. First, the 

educational harm alleged is from segregation, and the remedy 

sought is desegregation. This brings a certain clarity to 

the analysis the other cases lacked. Second, the remedy 

would not require more diligent supervision of the school 

system than in the ordinary school desegregation case. 

Finally, the "educational standard" to be met could simply 

be measured by that of the surrounding school districts.l42 

  

141. Hunter v. Bd. of Ed. of Montgomery County, 292 Md. 
481, 439 A.24 582, 584 (Md. 19382) (Action against bd. of ed. 
for educational malpractice); Cf. Peter W. v. San Francisco 
Unified School District, 60 C.A. 34d B14, 825, 131 Cal. Rptr. 
854 (Cal. Ct. App. 1976) (Action by recent graduate against 
local public school for failure to provide an adequate edu- 
cation). This page also cites to Serrano and Jackson as 
burdens the public schools already face); D.S.W. v. Fair- 
banks No. Star Borough School Dist., 628 P.2d 554, 556 
(Alaska 1981) (Action to recover from school district for 
negligent classification, placement, or teaching of dyslexic 
students) (Agreeing with Donohue, Peter W., and Smith and 
stating: "In particular, we think that the remedy of money 
damages is inappropriate as a remedy for one who has been a 
victim of errors made during his or her education."). 

  

  

  

  

  
  

142. This standard of care is a familiar one in the medical 
malpractice field. See, e.g. Van Steensburg v. Lawrence and 
Memorial Hospitals, et al., 194 Conn. 500, 481 A.2d 750, 753 
fn. 8 (Conn. 1984) (Medical malpractice action against 
psychiatrist whose patient jumped or fell from hospital 
window); Parowski v. Bridgeport Hospital, 144 Conn. 531, 134 
A.2d 834, 835 (Conn. 1957) (Action against hospital for 
death of patient who jumped hospital window); Also see El- 
son, A Common Law Remedy for the Educational Harms Caused by 

Incompetent or Careless Teaching, 73 Northwestern L. Rev. 

641, 722-745 (1978). 

  

  
  

  
  

  
  

42 

 



  

This would be a narrow theory of liability, and a 

workable standard for educational relief.l43 However, as 

this may be the most speculative ground for liability, I 

will not pursue it further.l44 

In conclusion, the analytical tonAdat tons are 

available for the Connecticut court to find liability for 

failure to provide a minimally adequate education. The 

right is grounded in judicial history, and has taken on the 

character of a property interest from constitutional and 

statutory enactments. From Brown, and facts developed by 

the plaintiffs, it is clear that the separate education 

Hartford children receive is inherently unequal, and 

demonstrably inadequate. 

The Connecticut court is free to find a "special 

relationship" under Connecticut law, based on quasi-custody 

or long-standing notions of parens patriae state 

obligations. Or it may simply find state action in the 

deprivation of the right to education. 

This might constitute a "policy" of deliberate 

indifference, on the part of government officials long aware 

  

143. But compare Myers v. Medford Lakes Bd. of Ed., 199 
N.J. Super. 311, 489 A.2d 1240, 1242 (N.J. Super. Ct. 1985) 
(Student brings eduational malpractive action for failure to 
provide him with special remedial education) (Suit held not 
to fit into New Jersey Tort Claims Act). 

  

144. Although, City of Canton’s "failure to train" claim is 
provocative: "... the lack of training was so reckless or 
grossly negligent that deprivation of person’s constitu- 
tional rights was substantially certain to result." at 378. 

  

43 

 



of the educational harm their policies inflicted on Hartford 

school children. Even if it does not, the aforementioned 

reasons state grounds enough for liability. And none of the 

them conflicts with De Shaney, in letter or in spirit. 

The plaintiff has alleged a wrong, and seeks a remedy. 

Both appear available under Connecticut case, statutory, and 

constitutional law. Intent need not be proven to find 

infringement of the right to education, and liability may be 

imposed for failure to provide a minimally adequate one. 

For these conclusions, the court need not reach - the 

law exists already. And the plaintiffs should not wait - 

they have waited long enough.