Memorandum of Decision

    NO. CV-88-341471sS 

1 STATE BOARD OF EDUCATION ET AL 

h : SUPERIOR COURT 

i V. : JUDICIAL DISTRICT OF 

: HARTFORD/NEW BRITAIN 

AT HARTFORD 

WATERBURY BOARD OF 
EDUCATION ET AL 

JUNE: 27, 1991 

MEMORANDUM OF DECISION 
  

The state board of education and the commissioner of 

' 
education, Gerald N. Tirozzi, bring this action against the 

Waterbury Board of Education, the City of Waterbury, the Mayor 

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Lepy [o ~~ of Waterbury, and the Board of Alderman of Waterbury to enforce 

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the provisions of C.G.S. §§10-226a to 10-226e, which require 

local boards of education to correct conditions of racial 

imbalance in the public schools. The complaint is in three 

counts. In Count I, the plaintiffs seek a writ of mandamus 

compelling the defendants to implement a certain plan for 

eliminating racial imbalance in the Waterbury schools. In 

Counts I1 and 111, the plaintiffs seek essentially the same 

result by injunction and declaratory judgment. All parties 

have moved for summary judgment and have filed memoranda of 

law, affidavits, and other materials in support of their 

respective positions. There are no issues of material fact in 
J 

dispute. The pleadings are closed. The court concludes that 

the plaintiffs are not entitled to judgment as a matter of law. 

Sections 10-226a through 10-226e of the General Statutes 

establish a system for identifying public schools where racial 

imbalance exists and for establishing plans to eliminate it. 

Racial imbalance is defined as a condition wherein the 

proportion of pupils of racial minorities in one school in a 

district "substantially exceeds or falls substantially short" 

of the proportion of such pupils in all of the schools in the 

  

 



  

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district. Using data submitted by the local boards, the state 

board of education notifies the appropriate local board 

whenever it identifies a school which is racially imbalanced. 

That local board of education is then required "to prepare a 

plan to correct such imbalance" and submit it to the state 

board of education for approval. The state board reviews the 

plan and, if it determines it to be satisfactory, approves it. 

The local board is then required to "submit quarterly reports 

on the implementation of the approved plan, as the state board 

of education may require." Section 10-226e provides the state 

board the authority 'to establish regulations "for the Eperation 

of sections 10-226a to 10-226e, inclusive, including times and 

procedures for reports..., and the criteria for approval of 

plans to correct racial imbalance and fix standards for 

determination as to racial imbalance." The state board has 

promulgated regulations. Pertinent to this case are 

Regulations of State Agencies §§10-226e-6(b) and 7. Section 

10-226e-6(b) provides, in part, that if the state board 

approves the local board's plan, the local board "shall 

implement the plan in accordance with the timetable indicated 

  
 



  

  

  

in such plan." Section 10-226e-7 provides, in part, that if 

the local board fails to implement the approved plan, the state 

board "may undertake such other actions as may be authorized by 

law to cause the (local) board of education to be in 

compliance" with the law and regulations. 

A threshold issue raised by the defendants is whether 

the statutes and regulations authorize the state board to bring 

an action in this court to compel the Waterbury Board of 

Education and the other defendants to implement a corrective 

plan for the Waterbury schools. This court concludes that the 

plaintiff state board has the requisite statutory authorises, 

Section 10-4a of the General Statutes identifies the 

educational interests of the state, including "that each child 

shall have...equal opportunity to receive a suitable program 

of educational experiences" and "that the mandates in the 

general statutes pertaining to education within the 

jurisdiction of the state board of education be implemented.” 

Clearly, the elimination of racial imbalance in the public 

schools, as mandated by C.G.S. 10-226a et seq., falls within 

the broad general educational interests of the state. Section 

  

 



  

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10-4b of the general statutes authorizes the state board to 

seek orders from this court to compel local boards to carry out 

its orders implementing the educational interests of the state. 

These statutes, read in conjunction with C.G.S. §10-226a et 

seq. and the regulations, authorize the state board, in an 

appropriate case, to obtain judicially enforced compliance 

with the racial imbalance statutes. 

As indicated, the facts giving rise to this case are 

undisputed. On December 5, 1984, the plaintiff state board 

found the Driggs, Carrington, Walsh, and Maloney Schools in 

Waterbury to be racially iba labed within the meaning of the 

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statutes and regulations. Following a hearing, the state board 

ordered the Waterbury Board of Education to submit a 

district-wide plan by September 5, 1985. On September 5, 1985, 

the Waterbury Board submitted a plan, but the state board 

disapproved it. The Waterbury Board was ordered to submit a new 

plan by January 2, 1986. On December 30, 1985, the Waterbury 

Board submitted another plan. On February 5, 1986, the state 

board gave only conditional approval to this new plan because 

the Maloney School portion of the plan did not adequately 

  

 



    

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correct the racial imbalance in the Maloney School. 

Thereafter, the Waterbury Board submitted a plan to correct the 

| racial imbalance in the Maloney School by constructing a new 

i school and merging the Maloney school with the Barnard School. 

on June 4, 1986, the state board conditionally approved the 

Maloney School portion of waterbury's plan subject to 

| submission of a detailed timetable for construction of the new 

| school. On September 4, 1986, the Waterbury Board of Education 

| provided the state board with the timetable and on October 8, 

1986, the state board gave full approval to the Maloney School   
portion of the plan.’ 

| 

On May 6, 1987, the state board found, pursuant to Conn. 

Dept. Reg. §10-226e-7(a), that the Waterbury Board of Education 

|! had failed to take substantial steps to implement its plan and 

directed the Board to amend the timetable for the construction             
of the new school. On September 3, 1987, the state board 

approved the amended timetable for acquisition, construction,         
and opening of the new school by September 1989. According to 

the amended timetable, the site for the new school was 

identified as the "pathmark" site and the bonding necessary for 

    
 



  

acquiring the site and constructing the new school and 

renovating some existing buildings was to be approved by the 

Waterbury Board of Aldermen by December 1987. 

On October 26, 1987, a serious obstacle developed when, 

the Board of Aldermen rejected the bonding for the "Pathmark" 

site. This action was based on questions concerning 

condemnation procedures, property appraisals, economics of the 

proposal, costs, zoning, alternate sites, the size of the 

parcel of land, the displacement of residents, the loss of jobs 

through displacement of businesses, the distances to other 

schools, traffic problems the new school would generate, 
| 

renovation of existing schools, an underground waterway flowing 

under the parcel, environmental hazards, bussing, satety of the 

children, and state assistance and bonding procedures. The 

Board of Alderman's action was actually the result of an 

insufficient number of votes in favor of the bond issue, even 

though a bare majority approved it. There is no evidence 

before the court in this case even suggesting that there was 

any reason other than those stated for the Board's action. 

Furthermore, the Board of Aldermen has consistently taken the 

  
 



  

  

position in oral argument before this court that it supports 

the purposes of the racial imbalance statutes. The court's 

decision on these motions for summary judgment, therefore, is 

based on the assumption that the Board acted in good faith and 

for the reasons it expressed in voting to deny the bond issue. l 

On January 6, 1988, the state board again found that 

the Waterbury Board of Education had failed to take substantial 

steps to implement the plan (as amended) and notified that 

board of its finding. On January 21, 1988, the state board 

filed this action against the defendants seeking an order to 

  

1 
The court's assumption concerning the board's action is not a 

finding of fact on a contested issue. The intervening 
Plaintiffs (see note 2) are not, therefore, barred by 
collateral estoppel or otherwise from raising issues regarding 
the board's intentions in their case. 

  

 



  

implement the plan, including construction of the new school . 2 

On February 1, 1989, after the filing of this suit, the 

Waterbury Board of Education requested the Waterbury Board of 

Aldermen to approve a new site designated as the "Everybody's 

Market" site for acquisition and construction of a new school 

for the racial balancing plan; and on February 6, 1989, the 

Board of Aldermen voted to approve the "Everybody's Market" 

site. Thereafter, however, the Waterbury Board of Education 

withdrew the "Everybody's Market" site because of cost and 

environmental concerns revealed in subsequently obtained 

reports. 

| 

To date, the Driggs, Carrington and Walsh Schools are in 

compliance with the racial balance statutes and regulations. 

Accordingly, the plaintiff's complaint is directed only at the 

Maloney School portion of the plan. 

In October 1990, the Maloney School Parent Teachers 
Association, along with individual parents and their children, 
filed an intervenor complaint, pursuant to the decision 
in State Board of Education v. City of Waterbury et al, 21 
Conn. App. 67 (1990). In thelr complaint, the plaintiffs 
allege the same statutory violations as do the original 
plaintiffs, and they also allege intentional violation of their 
rights to equal protection of the law under the Fourteenth 
Amendment to the United States constitution and 42 U.S.C. 1983. 
On Pebruary 21, 1991, this court granted the plaintiff - 
intervenors motion for a separate trial of their constitutional 
claims. Accordingly, those claims are not presently before the 
court. 

  

  

 



  

Summary judgment is to be rendered it pleadings, 

affidavits and any other proof submitted show that there is no 

genuine issue as to any material fact and that the moving party 

is thus entitled to judgment as a matter of law. Yanow v. Teal 
  

Industries, 178 Conn. 262, 268 (1979). ' The general rules   

governing writs of mandamus, injunctions and declaratory 

judgments are well established. "Mandamus is an extraordinar, 

remedy, available in limited circumstances for limited 

purposes." Golab v. New Britain, 205 Conn. 17, 19 (1987). The 
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writ is proper only when "(l) the law imposes on the party 

against whom the writ would run a duty the performance of which 

is mandatory and not discretionary; (2) the party applying tor 

the writ has a clear legal right to have the duty performed; 

and (3) there is no other specific adequate remedy." Bahramian 
  

v. Papandrea, 184 Conn. 1, 3 (1981). The party seeking the   

mandamus has the burden of establishing a clear legal right .to 

have the duty performed. Sampietro w. Board of Fire 
  

Commissioners, 200 Conn. 38, 41 (1986). "The court 
  

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will...render declaratory judgments as to the existence...of 

any right, power, privilege or immunity." Conn. Practice Bk. 

§389 (rev'd to 1978, as updated to October 1, 1990). 

Declaratory judgment is appropriate where "there is an actual 

bona fide and substantial question in dispute or substantial 

uncertainty of legal relations which requires settlement 

between the parties." Conn. Practice Bk. §390(b). The sole 

function of the trial court in a declaratory judgment action is 

to ascertain the rights otf the parties under existing law. 

Halpern v. Board of Education, 196 Conn. 647, 654-55 (1985). 
  

"'The issuance of arn injunction is the exercise of an 
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extraordinary power which rests within the sound discretion of 

the court, and the justiciable interest which entitles one to 

seek redress in an action for injunctive relief is at least 

founded on the imminence of substantial and irreparable 

injury.'" Karls v. Alexandra Realty Corporation, 179 Conn. 390, 
  

401 (1980) (quoting Scoville v. Ronalter, 162 Conn. 67, 74 
  

(1971) (citations omitted)). The rule of proving irreparable 

harm and lack of an adequate remedy. at law is relaxed in the 

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case of a public agency seeking to enforce the provisions of a 

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statute. Conservation Commission v. Price, 193 Conn. 414 
  

(1984). For some uses, a mandatory injunction is 

indistinguishable from a writ of mandamus. Monroe v. Middlebury 
  

Conservation Commission, 187 Conn. 476, 481 (1982). Moreover,   

the two may be used in aoniiinat lon. 1d. 

In support of their motion for summary judgment, the 

plaintiffs argue that the defendants have a ministerial duty 

pursuant to Conn. Gen. Stat. §§10-220 and 10-226 through 

10-226e to eliminate racial imbalance in the Waterbury Schools. 

Therefore, plaintiffs argue, implementation of the plan is not 

discretionary, especially after the plan was approved by the 
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state board. The plaintiffs also argue that since local boards 

of education are agents of the state for purposes of carrying 

out the educational interests of the state, the defendants’ 

failure to carry out an obligation, such as the plan in this 

case, is a breach of fiduciary duty. Particularly with regard 

to the Waterbury Board of Aldermen, the plaintiffs argue that 

the Board of Aldermen stand in the same position as the 

Waterbury Board of Education because Conn. Gen. Stat. §10-240 

provides that "[e]lach town shall through its board of 

  

 



  

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education...be a school distinct and shall have the powers and 

duties of school districts...." According to the plaintiffs, 

the Board of Aldermen, the City of Waterbury, the Mayor and the 

Superintendent of Schools are agents of the state by virtue of 

the City of Waterbury being a school district. 

The critical event which caused the Waterbury Board of 

Education's state approved plan to expire on the launch pad was 

the vote by the Board of Aldermen which denied the bond issue. 

The parties have pointed to no other impediment to the plan's 

success. But without that financing, the merger of the Barnard 

and the Maloney Schools in a new building on newly acquired 

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land, which was the cornerstone of the plan, was impossible to 

effectuate. Therefore, the state's claims and requested 

remedies must be examined in the context of the circumstances 

of the Board of Aldermen's vote. As indicated, the Waterbury 

Board of Education's plan for correcting the racial imbalance 

called for the acquisition of land and extensive renovation of 

existing buildings to create a new school large enough to 

accommodate the pupils of the Barnard and Maloney Schools. 

Such a plan would obviously require significant capital 

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financing, and just as obviously, under the Waterbury charter, 

such financing would require favorable action by the Board of 

Aldermen. The Board of Education, however, submitted the plan 

to the state board without first securing the financing. For 

its part, the state board approved the plan on October 8, 1986, 

even though it was aware that the necessary financing had not 

been obtained or approved. Eight months later, in June 19&7, 

atter some official prodding by the state board, the Waterbury 

Board of Education wrote to the Board of Aldermen requesting 

the necessary financing action. The letter engendered 

considerable discussion at a subsequent meeting of the Boaty of 

Alderman, including the expression of some misgivings and 

concern relating to zoning issues. (See Exhibit B attached to 

plaintiffs’ reply brief dated January 12, 1990). Nevertheless, 

on September 3, 1987, after the above described meeting of the 

Board of Aldermen but before that board had voted on the bond 

issue, the Waterbury Board of Education submitted and the state 

board approved a new, and what would be the final, timetable 

for the plan. This called for bond approval by December 1987. 

This final version of the plan was submitted and approved, 

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therefore, at a time when both the plaintiff state board and 

the defendant Waterbury Board of Education knew or should have 

Known that they douid not expect rubber stamp action by the 

defendant Board of Aldermen. In fact, they knew or should have 

known that the crucial financing element of the plan was in 

doubt, even at the moment when the state board was approving 

it. 

The defendant Waterbury Boad of Aldermen argues that it 

was exercising the discretion granted to it by C.G.S. 10-222 

when it declined to approve the bond issue necessary to finance 

the racial imbalance corrective plan. That statute requires 

local boards of education to seek funding for educational 

expenses from the local boards of finance, the equivalent in 

this case being the Board of Aldermen. The statute then 

authorizes the finance board to make appropriations. It thus 

Creates "divided responsibilities." Waterbury Teachers Assn. 
  

ve. Furlong, 162 Conn. 390, 395 (1972). The board of finance   

has discretion to approve or disapprove requests for additional 

funds and make appropriations accordingly. However, it may not 

refuse to appropriate funds where the "expenditure (is) for a 

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purpose which the statutes make it the duty of the board of     
| education to effectuate or they vest in the board of education 

a discretion to be independently exercised as to the carrying 

out of some purpose...." Id. 398, citing Board of Education of | 
| — 

  

Stamford v. Board of Fianance, 127 Conn. 345 (1940). In this 
  

case, the relevant statutes do not impose on the Waterbury 

Board of Education the duty to acquire or construct a new 

school. Indeed, the relevant provision, C.G.S. 10-226c¢c(b),   
provides that the plan 

i -..shall include, the proposed changes in existing 
1 : school attendance districts, the location of proposed 
| school building sites as related to the problem, any 

proposed additions to existing school buildings and all 
other means proposed for the correction of said racial 
imbalance. The plan shall include projections of the 
expected racial composition of all public shools in the 
district. The plan may include provision for coopera- 
tion with other school districts to assist in the 
correction of racial imbalance.     
Plainly, the statute contemplates a variety of 

appropriate measures for correcting racial imbalance. These 

may include redistricting or expanding existing buildings, in 

| addition to the possibility of land condemnation and new 

} construction. The statute detinitely does not require the 

school board to choose a solution involving major capital 

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expenditures. Furthermore, all of the parties to this suit 

regarded the racial imbalance statutes as permitting a wide 

range of flexibility. Thus, the plan was periodically 

modified, with the approval of the state board, to accommodate 

different tinetables. Even after this suit was commenced, the 

Waterbury Board of Education and the Board of Alderman reached 

a temporary agreement on an alternative site, and it was the 

Board of Education which subsequently decided not to amend the 

Plan to utilize the new site. The point is that the racial 

imbalance statutes do not provide that a plan, once approved, 

imposes a specific, rigid, immutable statutory duty on the 

board of education or the municipality as a whole. Rather, the 

board of education and the municipality have the general duty 

to correct racial imbalance by utilizing a plan that is subject 

to amendment to meet changing circumstances and subject to the 

approval of the state board. 

It follows that the racial imbalance statutes do not 

"vest in the board of education a discretion to be 

independently exercised as to the carrying out" of a plan for 

correcting racial imbalance. There is nothing in these 

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statutes which excludes the participation of the board of 

finance in accordance with C.G.S5. 10-222. Rather, these 

statutes must be read in harmony with C.G.S. 10-222, in 

accordance with normal rules of statutory construction, not so 

as to create an exception to the role of the board of finance. 

“(0)nly when a board of education is acting directly and in a 

reasonable manner to fulfill a statutory duty can it accurately 
  

be said that it functions outside the municipal governing 

structure. To hold otherwise would be tantamount to the giving 

of a blank check to boards otf education to spend the money of 

the municipality without regard to economy, efficiency or other 

local needs." Waterbury Teachers Assn. v. Furlong, supra, 399. 
  

(Emphasis added). In the present case, the Board of Aldermen 

cited those precise considerations in refusing to approve the 

bond issue. 

Based on all of the facts of this case, the court 

reaches the following preliminary conclusions: 

1. The Waterbury Board of Education submitted 
an incomplete plan in that it called for a large 
capital expenditure without the assurance of the 
necessary financing. : 

2. The state board of education approved a plan 
that was incomplete and which is impossible to 
effectuate in its present form. 

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3. The Waterbury Board of Alderman had discretion 
pursuant to C.G.S. 10-222 to reject the bond issue, 
based on the reasons cited in their affidavit. 

The conclusions of the court set forth above lead to the 

further conclusion that the plaintiffs do not have a clear 

legal right to compel the defendants, or any of them, to 

implement the plan approved by the plaintiff state board, as 

amended, on September 2, 1987. The plaintiffs are not, 

therefore, entitled to a writ of mandamus, injunction or 

declaratory judgment. The plaintiffs are entitled, however, to 

an order requiring the defendant Waterbury Board of Education 

to submit for approval to the plaintiff state board an 

amendment to the plan or a new plan consistent with this 

decision. Accordingly, the plaintiffs' motion for summary 

judgment on Counts I, II and III of their complaint is denied, 

and the corresponding motions of the defendants in opposition 

are granted. In accordance with paragraph 4 of their prayer 

for relief in their complaint and pursuant to the suggestion in 

the conclusion of their brief in support of their motion for 

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summary judgment, the plaintiffs are invited to move for a 

hearing to determine what additional orders of the court should 

be entered with respect to submission of a new plan. 

Nil arr 

Maloney Los 
  

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