NeSmith v. YMCA of Raleigh, NC, Inc. Brief for Appellant

    TO: Sheff Lawyers 

FROM: Phil regelerf] 

RE: Kit Collier 

DATE: May 15, 1991 

The revised version of Kit Collier's l1ll5-page manuscript, "A 
Connecticut Dichotomy: Town and State in History, Law and Myth,” 
is now available. Portions of this manuscript will be useful to 
us. Kit eventually plans to publish the manuscript as an article 
or as part of a book, and he has circulated it to several 
readers. A copy of the introduction is attached. 

Attachment 

 



  

A CONNECTICUT DICHOTOMY: 

TOWN AND STATE IN HISTORY, LAW AND MYTH 

Introduction 
  

Central to the image of New England -- in the eyes not only 

of New Englanders themselves, but of Americans, generally, and 

for all I know, the world -- is the independent town. "The 

township," proclaimed Alexis de Tocqueville, "seems to come 

directly from the hand of God," and "forms the common center of 

interests and affections of [New England] citizens." After 

describing the constitutionally limited sphere of town activity, 

the French observer then went on to express the central myth: "I 

believe that not a man is to be found who would acknowledge that 

the state has any right to interfere in their town affairs." 

But in Massachusetts and Connecticut the colony/state government 

was a constant regulator of town affairs and had been since the 

1630s. The constitutional and legal history of the relations 

between perifery and center, village and commonwealth, was always 

one of agent and principal.? Thus in 1864 the Connecticut 

Supreme Court declared that town powers "instead of being 

inherent or reserved, have been delegated and controlled by the 

supreme legislative power of the state from its earliest 

organization."3 

 



2 

This split between constitutional reality and popular 

perception is as alive today as it was when Tocqueville wrote in 

1835. But today myth and reality collide with increasing 

regularity and greater public confusion as modern life permits no 

islands, and all social problems cross town bounds. Matters of 

waste disposal, land use and zoning, mass transportation, 

segregated housing and schools, environmental protection and many 

others regularly create intertown conflicts that call for state 

intervention.! And every time a town discovers anew the limits 

of its range of independent activity, some one is sure to protest 

state intrusion in the name of town autonomy.’ 

Statement of the Case 
  

The myth lives and frequently extends beyond popular 

impression to breathe life into actions of municipal officials 

and their minions at the bar who prepare briefs asserting the 

inherent authority of towns to perform this or that public 

function.® That it is still necessary for lawyers on the other 

side to demonstrate that towns in Connecticut not only have no 

inherent powers today, but never have, tells a good deal about 

the power of the ideological tradition. 

Over and over again state and national courts have driven 

what they hoped was the final stake through the spectral body of 

the myth of New England town autonomy. But specters do not die, 

especially when riven with stakes. So popular perception and  



  

3 

legal determination travel often parallel but frequently 

colliding paths into the 21st century. 

Among the public, even those whose rational beings recognize 

the juridical "truth" have hearts committed to the idea of town 

autonomy. This prevailing dichotomy -- it is more than mere 

ambivalence -- was nicely summed up by a delegate to the abortive 

Connecticut Constitutional Convention of 1902. ". . . towns of 

Connecticut are not . . . independent units . . . each having 

sovereign rights itself," he admitted. "The modern historian has 

proved that to his satisfaction, and the Supreme Court has 

announced such to be the law. But, Sir, ’As a man thinkich, in 

his heart so is he.’"™ And from the time of the settlement of 

Connecticut’s 17th-century towns "this State and the United 

States in which we live, have believed that our towns were 

integral units and independent bodies, . . . . I suppose we must 

admit we are not little states in ourselves. But the towns 

believed that they were . . . and to this day we ourselves feel 

that the towns are miniature commonwealths."’ 

This dichotomy separated historical facts and constitutional 

and legal "truths" from the observed conduct of everyday life and 

governance in Connecticut towns until the recent past. 

Historically the Connecticut towns had never been independent; 

oF i from their inception in 1634 they were continuously subject 

to superior government. But so remote from the colony and state 

government were most of them that few individuals had any 

concrete relations with that body at all. And by the mid-19th 

 



  

4 

century the General Assembly was so apt to let towns go their own 

way that intrusion from that quarter usually came as a surprise 

to the insular farmer. Thus, when the state supreme court spoke 

on the issue over the course of the 19th century, Connecticut 

citizens heard and understood their words, but didn’t really . 

believe them. 

This essay surveys the historical reality of the 

relationship between the towns and the colony/state government; 

describes court determinations about that relationship; analyzes 

the historiography of it; and attempts to articulate the popular 

perception of town status and account for the prevalence of that 

perception to the present moment. 

The Constitutional Status of Towns 

in Connecticut, 1635-1818 

The Massachusetts Background 
  

The history of Connecticut in America starts, of course, in 

Massachusetts. The pattern of colony-town relationships 

established at the Bay shaped those of the off-shoot colony on 

the River. The earliest settlements at both places were 

dispersed, a situation not anticipated in the Massachusetts Bay 

Charter of 1629. The Bay Company was faced with organizing and 

controlling distant communities as soon as John Winthrop’s large 

contingent decided to settle elsewhere than in Salem.® That 

little community was immediately subsumed under the Company’s 

 



§       aa | SL N 

connecticut civil ANE 
liberties union foundation 

32 grand street 

hartford, connecticut 06106 

telephone: 247-9823 

  

May 15, 1991 

Mr. John Whelan 
Assistant Attorney General 
MacKenzie Hall 
110 Sherman Street 
Hartford, CT 06105 

RE: Sheff v. O'Neill; disclosure of expert witnesses 
  

Dear John, 

I am writing to inform you that, at this time, the 
plaintiffs have no additional names to disclose of expert 
witnesses anticipated to testify at trial, other than those 
witnesses already disclosed.l Plaintiffs have identified 
additional possible witnesses who may testify at the trial in 
this action, but we do not yet have sufficient information to 
predict whether plaintiffs expect to call such witnesses. As set 
out in the parties’ Joint Motion for Extension of Time to 
Disclose Expert Witnesses filed December 3, 1990, such additional 
expert witnesses will be identified in sixty days or thereafter. 
We will contact you at that time to apprise you of the names of 
additional expert witnesses, if any. 

  

1 We are writing pursuant to Practice Book §220(D), in 
compliance with this Court’s Order of October 31, 1990 and the 
parties’ Joint Motion for Extension of Time to Disclose Expert 
Witnesses filed December 3, 1990, and in response to Defendants’ 
First Set of Interrogatories. 

 



  

B8 THE HARTFORD COURANT: Thursday, May 16, 1991 *5 E 
  

  

State education commissioner discusses segregation with pupils 
By DEBRA ADAMS 
Courant Staff Writer 

The only way Connecticut resi- 

dents will appreciate differences 

among people is if the legislature or 

the courts require school desegrega- 

tion, the state education commis- 

sioner said Wednesday. 
“Commissioner Gerald N. Tirozzi 

spent an hour at Quirk Middle School 

explaining the causes of segregation 

and the importance of desegregation 

to pupils studying the issue. 

Education has to do more than 

teach reading, writing and arith- 

metic — it has to foster understand- 

ing of cultural diversity, Tirozzi 

said. 
“You cannot grow up in isolation, 

turn 18 and get along in this society,” 

  

Tirozzi-said Project 

Concern is unfair because 
students are only bused 

one way. 
  

he said. “To provide quality and inte- 
grated education, the buses must roll 
in all different directions.” 

The commissioner praised the ef- 
fort of Project Concern, a program 
that allows 750 Hartford youngsters 
to attend school in surrounding sub- 
urbs. But he said Project Concern is 
unfair because students are only 
bused one way. 

“While busing city students to the 
suburbgserves a purpose, it is not the 

answer,” he said. For every child in 
Connecticut to get a high-quality and 
integrated education, some students’ 
from the suburbs will have to attend 
school in cities and some city young- 
sters will have to go to school in the 
suburbs, he said. 

“The issue is not busing, the issue 
is what's at the end of the bus ride,” 
Tirozzi said. “We participate in 
forced busing every day. You get a 
slip saying what school you're going 
to go to. A bus picks you up.” 

He added, “Of course we're going 
to bus. We should never make ex- 
cuses for that.” 

Some effort has been made to be- 
gin desegregating schools, he said. 
Nearly 110 of Connecticut's 166 
school systems applied for a portion 
of a $1 million state grant for new 

ideas on desegregation, West Hart- 
ford and Hartford are talking about 
building a joint school, and the Uni- 
versity of Hartford may build an 
elementary school on campus, he 
said. 

“I'd rather take a few small steps 
than stand in the cement for the rest 
of my life, which is what Connecticut 
has been doing,” Tirozzi said. 

Pupils questioned whether socio- 
economic conditions, housing poli- 
cies and parental attitudes promote 
segregation rather than break it 
down. 

“If you had integrated neighbor- 
hoods you would have integrated 

schools,” Tirozzi said. White migra- 
tion to the suburbs, fear of cities and 
negative perceptions of urban public 

Ny 
B= 

schools also add to segregation of 
schools. on 

“Right now we've moved from 
logical reasons to fear of cities,” he 
said. “Many people do not want to 
live in the city, nor do they want to 
send their children to school in the 
city. And parental attitudes have a 
lot to do with the way we treat 
people in this society.” 

Pupils said the commissioner’s 
presentation gave them a clearer 
understanding of segregation in Con- 
necticut. 

“He answered our questions in 
great detail,” said Shane McWeeny, 

an eighth-grader. “It’s going to help 
us with our press conference about 
our quality and integrated education 
we've had in this school.” 

Shirley Caro, another eighth-grad- 
er, said Tirozzi did a good job of 
explaining the problem and what is 
needed to change things. 

“I think something should be done, 
we just don’t know how to go about 
it,” she said. 

Ashish Katkar, one of the pupil 
moderators, praised Tirozzi for be- 
ing well prepared. “I think this issue 
is one that should be addressed by 
students and educators,” he said. 

  

 



  

  

Should Connecticut tell cities how to run their schools? 

  

Don Noel 
  

John F. Mannix, the new 

chairman of the State Board of 

Education, wants to order the 

Hartford school board to shape up: 

replace a half-dozen principals, 

make teachers more caring, de- 

mand more parental involvement   
and: instill more discipline in stu- 

dents. Improving the schools, he 

thinks, is primarily a management : 

problem. ; 

“Members of the Hartford board — a largely 

new team elected 18 months ago — undoubtedly 

share Mannix’s goals and may justifiably think 

they’re making progress. There are dozens of inno- 

vative programs in the city. The board has forced 

out a superintendent, and is near the conclusion of 

an exhaustive search for a replacement. 

" The board might also agree that some ineffec- 

tive principals should be replaced. Mannix would 

assign ousted principals to busy work until they tire 

of it and — he is confident — quit. Meanwhile, he 

concedes, administrative costs would rise. 

* “The Hartford board, however, is already wres- 

tlinig with $4 million in budget cuts that will crimp 

valuable programs. Mannix doesn’t propose to pro- 

vide any more money. 
. ‘His outrage that urban students drop out or 

graduate with inferior skills is widely shared. His . 

  

assumption that local educators haven't thought of 

remedies, or don’t know how to do the job and could 

produce better results if told how, is unique. 

Mannix is Gov. Lowell P. Weicker Jr.'s appoin- 

tee as chairman of a board with a majority of 

Weicker appointees. Under a state law usually ap- 

plied to minor complaints about dropped courses or 

textbook shortages, the state board has the power 

to investigate whether schools meet the state man- 

date of providing equal educational opportunity. 

If it concludes the local board “has failed or is 

unable” to provide such opportunity, the state may 

order “reasonable steps to comply.” 

“If the state board finds that the state is re- 

sponsible for such failure,” the law also says, the 

state board “shall so notify the governor and the 

general assembly.” At a public hearing on his con- 

firmation in April, and in an interview this month, 

Mannix didn’t mention that possibility. 

De facto segregation is widely considered part 

of urban schools’ problem; 90 percent of Hartford 

students are black, Puerto Rican or of Asian heri- 

tage. A lawsuit working its way toward trial, Sheff 

vs. O'Neill, challenges present school districting. 

Weicker told the Governor's Commission on 

Quality and Integrated Education last week that he 

intends to tackle racial isolation in the schools as 

soon as the budget crisis is behind him, to “devise a 

solution before a court gives us a solution.” 

Meantime, the governor has increased from $1 

million to $3 million state funding for voluntary - 

desegregation efforts such as magnet schools. 

Mannix doesn’t think much of magnet schools. 

    

He says the state is guilty as charged in Sheff vs. 

O'Neill, but says residential desegregation is the 

real solution. Meanwhile, he’s ready to exercise the 

state’s power to tell the Hartford board how to 

improve education within the city limits. 

Mannix, during a decade as a state legislator 

from Wilton, was given to emotional speeches 

about such topics as better schools, but showed lit- 

tle inclination to forge coalitions to put his ideas 

into practice. He has been a loner on the state 

board, even employing his own private legal 

counsel. 
Like most of Weicker’s nominees, he is a long- 

time supporter. He says he and Weicker talked be- 

fore he was nominated to head the state agency, but 

they didn’t get into Mannix’s ideas about using 

state power to, in effect, take over the Hartford 

; board. 
The only real examination of his views was at 

pil 

his confirmation hearing. Senate Majority rece 

Cornelius P. O'Leary, D-Windsor Locks, asked 

what would happen if Wilton — which Mannix 

called a good system — swapped its 2,600 students 

with Hartford — which Mannix called “in need of 

improvement.” Mannix conceded that Wilton 

might have a higher dropout rate, lower test scores 

and fewer students advancing to higher education, 

but would not concede that social conditions be- 

yond any school board’s reach are at the heart of 

schools’ performance. : 

He still thinks better management will im- 

prove urban schools, and may try to demonstrate 

that by putting Hartford under state board orders. 

Weicker may be surprised at what his nomina- 

tion has wrought. 

Don Noel is The Courant’s political columnist.