Simms v OK Petition for Writ of Certiorari

    Cv89-0360977S 

MILO SHEFF, ET AL. : SUPERIOR COURT 

: JUDICIAL DISTRICT OF 
VS. HARTFORD/NEW BRITAIN 

AT HARTFORD 

WILLIAM A. O'NEILL, ET AL. 4 APRIL 12, 1995 

MEMORANDUM OF DECISION 
  

This declaratory judgment action was brought on 

April 28, 1989 by seventeen named plaintiffs, including 

fifteen black, Hispanic and white public school students who 

lived in Hartford and who were attending various elementary 

schools, middle schools and high schools in the Hartford 

public school system, as well as two white children who 

lived with their parents in the town of West Hartford and 

were enrolled in one of its elementary schools. The 

defendants named in the original complaint were the 

incumbent governor, William A. O'Neill, or his successors in 

that office, the state board of education, its individual 

members, the state commissioner of education, who was then 

Gerald N. Tirozzi, the state treasurer and the state 

comptroller, as well as their successors in those offices. 

  
 



  

  
The complaint (§ 30) states that school children 

throughout Connecticut, "including the City of Hartford and 

its adjacent suburban communities, are largely segregated by 

race and ethnic origin." It alleges (YY 36, 38) that 

Hartford public schools, because they have such a high 

proportion of students who are "at risk" of lower 

educational achievement, "operate at a severe educational 

disadvantage [which imposes upon them] enormous educational 

burdens [which have made them unable] to provide educational 

opportunities that are substantially equal to those received 

by schoolchildren in the suburban districts." 

The plaintiffs also assert (§ 45) that "[m]easured by 

the State’s own educational standards . . . a majority of 

Hartford schoolchildren are not currently receiving even a 

‘minimally adequate education.’" Paragraph 50 of the 

  

    

original complaint alleged that " [flor well over two ~~ — ~~ | 

decades, the State of Connecticut, through [the defendants] 

and their predecessors, have been aware of: (i) the 

separate and unequal pattern of public school districts in 

the State of Connecticut and the greater Hartford 

metropolitan region; (ii) the strong Governmental forces 

that have created and maintained racially and economically 

isolated residential communities in the Hartford region; and 

(iii) the consequent need for substantial educational 

changes, within and across school district lines, to end 

this pattern of isolation and inequality." 

  

  

 



The plaintiffs claim (J 68) that the defendants "have 

the legal obligation under Article First, §§ 1 and 20, and 

Article Eighth, $3 1 of the Connecticut Constitution" to 

correct these "educational inequities" in the Hartford 

school system, and that (] 69) they also have the power 

under the state constitution and state statutes "to carry 

out their constitutional obligations and to provide the 

relief to which plaintiffs are entitled.” They assert,   
nevertheless (§ 70), that neither the Hartford school 

district nor the nearby suburban districts "have been 

directed by defendants to address these inequities jointly, 

to reconfigure district lines, or to take cther steps 

sufficient to eliminate these educational inequities." 

The plaintiffs’ legal claims as stated in the first 

count (49 73-75) are that "[s]eparate educational systems 

  
for minority and non-minority students are inherently 

unequal [and that because] of the de facto racial and ethnic 

segregation between Hartford and the suburban districts, the 

defendants have failed to provide the plaintiffs with an 

equal opportunity to a free public education as required by 

Article First, §§ 1 and 20, and Article gighth, $1, of the 

Connecticut Constitution, to the grave injury of the 

plaintiffs." The second count (Y] 76-78) states that 

"[s]eparate educational systems for minority and non- 

minority students in fact provide to all students, and have 

provided to plaintiffs, unequal educational opportunities        



[and that because] of the racial and ethnic segregation that 

exists between Hartford and the suburban districts, 

perpetuated by the defendants and resulting in serious harm 

to the plaintiffs, the defendants have discriminated against 

the plaintiffs and have failed to provide them with an equal 

opportunity to a free public education as required by [the 

three state constitutional provisions referred to in the   
first countj.» 

The third count (9 79-80) claims that the same state   
constitutional guaranties have been violated by the   
defendants because they have maintained a public school: 

district in the city of Hartford that is "severely 

educationally disadvantaged" in comparison to the suburban 

school districts, that fails to provide its schoolchildren 

with educational opportunities equal to those in suburban 

    
“districts, and that fails to provide a majority of its 

students with a "minimally adequate education" based on the   
state’s own standards. The fourth count (4 81-82) claims 

that the failure of the defendants to provide Hartford 

schoolchildren with equal educational opportunities pursuant 

to state statutes violates their due AN rights under 

Article First, §§ 8 and 10, of the state constitution. 

The defendants moved to strike the complaint for 

failure to state a claim upon which relief could be granted 

because, first, the plaintiffs’ claims were not justiciable; 

second, unconstitutional state action had not been alleged;        



  

  

  

  

    

third, the plaintiffs had not alleged any causal connection 

between school district lines and educational performance; 

and, fourth, the existence of school districts which 

coincide with town boundaries did not violate constitutional 

standards. The court, in its memorandum of decision on the 

motion, Sheff v. O'Neill, 1 Conn. L. Rptr. 640, 642 (1990), 
  

noted that the plaintiffs in this case were relying on the 

same state constitutional provisions that were invoked by 

the plaintiffs in Horton wv. Meskill, 172 Conn. 615 (1977) 
  

(Horton I), in their successful challenge by way of a 

declaratory judgment action to the constitutionality of the 

state’s system for financing public education. 

The issue of justiciability raised by the defendants as 

the first ground for their motion to strike was based on the 

plurality.opinion in Pellegrino v. O'Neill, 193 Conn. 670 
  

I ma ~(1984) , which upheld the dismissal by the trial court 

of a declaratory judgment action challenging the 

constitutionality of the state’s financing of the judicial 

system because it was a "political question which could not 

be adjudicated by judicial authority without violating the 

principle of separation of powers." 14. at 674. This 

court rejected the defendants’ argument in support of their 

motion in part because of Judge Parskey’s ruling in favor of 

the plaintiffs on the question of justiciability at the 

trial court level in Horton I, 31 Conn. Sup. 377, 388 
  

(1974), but more particularly, in reliance on the 

  

 



  

  
  

    

"[j]Jurisprudential prudence" counselled by then Associate 

Justice Peters in the Pellegrino dissent in which she stated 
  

that "the plaintiffs should not be deprived of the 

opportunity that was afforded to the plaintiffs in Horton v. 
  

Meglkill, 172 Conn. 615, 376 A.24°'359 (1977), to make an 

evidentiary showing that the legislature has violated the 

state constitution . . ." and cautioned against prejudging 

the issue of justiciability "in the abstract" without a full 

hearing on the plaintiffs’ claims, however "novel and 

complex" the constitutional questions might be. Pellegrino 
  

Vv. O'Neill, supra, 193 Conn. 689, 692-93 (Peters, J., 
  

dissenting) . 

The second and third grounds for the motion to strike, 

which were the basis for the defendants’ arguments that this 

court rule as a matter of law on the issues of state action 

"and causation, were also rejected as an attempt to obtain a 

premature judicial determination of those disputed issues 

contrary to the general rule that the standard for testing 

the sufficiency of a complaint for declaratory judgment "is 

not whether the plaintiff is entitled to the declaratory 

relief he seeks in accordance with the Chetry he states, but 

rather, it is whether he is entitled to a declaration of 

rights at all under the allegations of his complaint." 

Sheff v. O'Neill, supra, 'l Conn. L. Rptr. 643. The fourth 
  

and final argument made by the defendants in support of 

their motion to strike, which was that an immediate ruling 

  

  
 



  

  
  

  

4 » 

on the defendants’ claim that the existence of school 

districts which coincide with town boundaries does not 

violate the state constitution would avoid a "meaningless" 

trial on the merits, was also rejected on the ground that it 

would be "inappropriate" for the court to consider or to 

decide any of the plaintiffs’ constitutional claims prior to 

trial. Id., (citing United States v. Mississippi, 380 U.S. 
  

128, 143. 1(1965)). 

The defendants filed their answer to the plaintiffs’ 

complaint on June 27, 1990 after the court’s denial of their 

motion to strike, and also asserted seven special defenses 

based on both jurisdictional and substantive grounds. Their 

response to the first of the five introductory paragraphs of 

the complaint which states that the Hartford public schools 

are "all but overwhelmed" by the demands made upon them to 

  

  

  

    

educate the disproporticonately large number of poor and 

minority students in a school system that is "racially and 

ethnically isolated" from the adjacent school districts, was 

that the paragraph was admitted "only insofar as it alleges 

that there is a relatively high concentration of children 

from poor families and black and Risnanic students" in the 

Hartford public schools compared to the public schools in 

most of the twenty-one towns surrounding Hartford. 

They admit in paragraph 3 of their answer that Hartford 

students "as a whole do not perform as well on the State 

Mastery Test as do the students as a whole in some 

  
 



  

surrounding communities and that poor and minority children 

have the potential to become well-educated", but deny the 

plaintiffs’ claim that the state, "by tolerating school 

districts sharply separated along racial, ethnic, and 

economic lines, has deprived the plaintiffs and other 

Hartford children of their [constitutional and statutory] 

rights to an equal educational opportunity, and to a 

minimally adequate education . . . ." They also admit (§ 4) 

that "society benefits from racial, ethnic, and economic 

integration and that racial, ethnic and economic isolation 

may have some harmful effects", but deny that they have 

"failed to act effectively to provide equal educational 

opportunity to plaintiffs and other Hartford schoolchildren" 

as alleged by the plaintiffs. 

It is also undisputed (§ 33) that for the 1987-88 

  

    
SChool year Hartford's total school population of 25,058 was 

the highest of all the towns in the metropolitan area and 

that the next largest school district in terms of enrollment 

was West Hartford with 7,424 students. The percentage of 

black and Hispanic students in the Hartford school system 

for that school year was 90.5%, followed by Bloomfield and 

Windsor with 69.9% and 30.8%, respectively. 

The defendants admit (§ 35) that the Hartford schools 

serve a greater proportion of students from backgrounds that 

put them "at risk" of lower educational achievement than the 

suburban school districts and that Hartford therefore has a 

  

  

  
 



  

  

  

  
  

    

"comparatively larger burden to bear in addressing the 

needs" of those children. They also acknowledge (§ 36, 

Answer to Plaintiffs’ Consolidated Amended Complaint, 

April 1, 1993) that such children have the capacity to learn 

and that although they impose "some special challenges" to 

the particular school system that is responsible for their 

education, neither the at risk children in Hartford nor 

their fellow students have been deprived of their right to 

an equal educational opportunity because of the additional 

"enormous educational burdens" that may have thereby been 

imposed upon the teachers and students of the Hartford 

schools as alleged by the plaintiffs. 

It should be noted at this point in the court’s review 

of the pleadings that the plaintiffs’ "Statement of Facts" 

(designated as Part III of the complaint, 99 30-72) is 

~divided into four sections; the first of which (Section A, 

99 30-34), entitled "A Separate Education", contains the 

factual allegations upon which they base their claim that 

Hartford area public schools are "inherently unequal” 

because they are segregated de facto by race and ethnicity, 

and the second (Section B, YY 35-49), whose title is "An 

Unequal Education", states the factual basis for their 

claims that they have been deprived of an equal opportunity 

to a free public education (f 78), a minimally adequate 

education (§ 80), and their due process rights (§ 82) to 

equal educational opportunities under state law. The third 

  

 



  

  

section (9 50-66), entitled "The State’s Longstanding 

Knowledge of These Inequities", gives a chronological 

account of various federal, state and local governmental 

reports, studies and recommendations dealing with the 

growing problem of racial segregation in the schools which 

begins in 1965 with a United States civil rights commission 

report to the state’s education commissioner (§ 51), and 

ends in April, 1989, the month in which this action was 

commenced, with a report issued by then Commissioner Tirozzi 

{(Tirozzi 11). 

The assertions made by the plaintiffs in paragraphs 

51-66 constitute the factual underpinnings for the 

allegations made in paragraph 50 of the original complaint, 

which were quoted earlier in this opinion, and which can be 

fairly summarized as stating that the defendants have long 

  

    
been aware of the conditions that gave rise to this action. 

It should be noted, however, that the plaintiffs’ original 

claim that the state had a "role in segregated housing 

patterns" (Plaintiffs’ Request for Leave to Amend Complaint, 

July 21, 1992, Record item #178) as suggested by the 

references made in the original cofiplatnt to "social 

policies pursued and/or accepted by the defendants" (§ 47), 

"the strong governmental forces that have created and 

maintained racially and economically isolated residential 

communities" (4 50), and their failure "to afford meaningful 

racial and economic integration of housing within school 

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zones and school districts" (§ 71), were deleted at the 

request of the plaintiffs in order to limit their proof to 

"the important educational issues that are at the core of 

this case." Record item #178, supra.® 

The defendants’ answer generally admits the existence 

and authenticity of all the reports, studies and 

recommendations referred to in paragraphs 51-66, but denies 

(f 51) that the defendants "failed to take any appropriate 

action to address the concerns" voiced in those reports as 

alleged by the plaintiffs. As to paragraph 50 which 

generally alleges they were aware of the conditions 

complained of over a long period of time, they admit only 

that "state officials have, for some time, been aware of a 

trend by which the percentage of [minority] students in the 

Hartford Public Schools has been increasing." 

‘The defendants admit that recommendations for 

legislation made by the state civil rights commission in 

1966 which the plaintiffs allege would have given the State 

Board of Education (SBE) authority over school integration 

(f 53) were not adopted by the legislature and that a 

legislative proposal made by the commission in 1968 which 

would have provided for the creation of "educational parks" 

(f 55) was not enacted into law as well. They also admit 

  

    
The court notes that paragraph 50 as it appears in 

both the Consolidated Amended Complaint (February 26, 
1993, Record item #201.70) and the Revised Complaint 
(November 23, 1994, Record item #217) was not corrected 
to conform to the amendment. ; 

ll 

  

 



  

  

  

  

    

(Y 58) that although the Racial Imbalance Law, General 

Statutes § 10-226a et seg., was passed in 1969 and the 

legislature authorized the SBE to promulgate implementing 

regulations, the legislature failed to approve any 

regulations to implement the statute until 1980. 

The defendants deny the paragraph of the complaint 

(§ 59) alleging that from 1970 to 1982 "no effective 

efforts" were made by the defendants "fully to remedy the 

racial isolation and educational inequities . . . which were 

growing in severity during this period." They admit 

paragraphs 60 through 66 in which the plaintiffs identify 

and quote from various reports and policy statements issued 

by the SBE from 1983 to 1989 during the tenure of the 

defendant Tirozzi as commissioner, beginning with a "Policy 

Statement on Equal Educational Opportunity" (9 60, 

Plaintiffs’ Exhibit —43)% in which the board stated that it — 

"supports racial integration in Connecticut’s schools and 

also recognizes the benefits of residential and economic 

integration in our state, as important to the quality of 

education and personal growth for all students in 

Connecticut.” | 

The next report referred to in the complaint (§ 61) was 

filed with the SBE on February 5, 1986 (PX 42) by an 

advisory committee to study the state’s Racial Imbalance Law 

  

Trial exhibits hereafter will be designated "PX" 
for plaintiffs’ exhibits and "DX" for defendants’ 
exhibits. 

a2 

  

  

 



  

  

    

and noted (p. 14) that the reason minority children in the 

larger urban school districts did not perform well on 

statewide academic proficiency tests was "because they are 

poor and often extremely deprived, not because they are 

minority", and also indicated in its summary (p. 18) that 

"the board may wish to consider one or more of the following 

initiatives: programs that ensure students the highest 

quality instruction possible, voluntary interdistrict 

collaboration, expansion of magnet school programs and 

metropolitan districting." 

Another policy statement that is identified and quoted 

in part in the complaint ({ 62) was one prepared by the 

committee on racial equity for the SBE: in January, 1988, 

entitled "A Report on Racial/Ethnic Equity and Desegregation 

in Connecticut’s Public Schools". (Tirozzi I), which noted 

(PX 50, p. 8) that "achieving the goals of school 

desegregation and equal educational opportunity will require 

a major rethinking of Connecticut’s public education 

system." The four recommendations made in the report 

(Pp. 11, 18, 19) were that first, the state endorse the 

concept of "collective responsibility, setund, that 

substantial financial incentives be made available to school 

districts "that plan and implement voluntary interdistrict 

programs and advance desegregation, racial balance and 

integrated education", third, that the Department of 

Education (DOE) provide technical assistance for the 

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development and implementation of desegregation plans, and 

fourth, that the DOE "undertake broad-based planning with 

other agencies concerned with housing, transportation and 

other factors that contribute to segregation in the public 

schools, to find ways to counteract adverse influences on 

integrarion.” 

Paragraph 63 of the complaint refers to another report 

issued by Tirozzi in December, 1988, entitled "Poverty and 

the Department of Education" (PX 59), which is described as 

"an extensive analysis of Connecticut’s Mastery Test 

results" and quotes one of its findings (PX 59, p. 4) to the 

effect that poverty as measured by one indicator, that of 

student participation in the free and reduced lunch program, 

has an important correlation with low achievement, and that 

the low achievement outcomes associated with that factor are 

intensified by geographic concentration. The preface to the 

report states that "[o]lf U.S. cities with the highest child 

poverty rates, Hartford ranks second, New Haven sixth and 

Bridgeport eighth", and some of the other findings stated in 

the body of the report (p. 2) are that "[e]very other child 

in Hartford, New Haven and Bridgeport ives in poverty, 

[that the] fastest growing segment of Connecticut’s 

population living in poverty is children under the age of 

five [and that such children are] more likely to be 

educationally at risk of school failure and dropping out 

14 

  

  
 



  

  

  

  

  

    

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before graduation than children from less impoverished 

homes." 

The remaining paragraphs of the third section of the 

complaint ({Y 64-66) concerning the state’s "longstanding 

knowledge" of the existence of the conditions which are the 

subject of this action refer to and quote from a report 

issued in April of 1989 (Tirozzi II), entitled "Quality and 

Integrated Education: Options for Connecticut" (PX 60, 

pp. 1, 3, 34) which noted that the initial report of 

January, 1988 (Tirozzi I), "documented an alarming degree of 

isolation" of poor and minority children in Hartford, and 

generally reaffirmed the findings that had been made as a 

result of the prior departmental studies. Paragraph 66 

asserts that despite the state’s "recognition of . . . the 

gravely adverse impact this isolation has on the educational 

opportunities afforded to plaintiffs and other urban 

schoolchildren" the report stated (p. 34) that " [t]he 

actions recommended in this report are voluntary and 

incremental", and the defendants "have announced, that they 

intend to pursue [that] approach . . ." 

The concluding section of the elaint ites statement of 

facts which is captioned "The State’s Failure to Take 

Effective Action", as it appears in the original complaint 

(99 67-72), states (§ 68) that it is the defendants’ duty 

under the equal protection and education clauses of the 

state constitution "to correct [the] educational inequities 

35 

  
 



  

  
  

    

[that] Hartford schoolchildren face" and (§ 69) that they 

"have full power . . . to carry out their constitutions 

obligations and to provide the relief to which plaintiffs 

are entitled." As to the latter allegation, the defendants’ 

answer leaves the plaintiffs to their proof "because the 

plaintiffs have failed to identify the specific remedial 

action they are seeking [and to] the extent that the 

plaintiffs are seeking to redraw school district lines, 

disassociating the school districts from the individuzl 

municipalities they serve, or they are seeking to reguire 

children to attend school in districts other than the 

district in which their parents live, vote and pay taxes, 

these defendants have no power to carry this out." 

The last of the factual allegations of the complzint 

(§ 72) challenges the adequacy of the state’s funding of the 

"compensatory or remedial services required by the Ezartford 

school district to meet the educational needs of its 

students and raises an additional and independent 

constitutional claim that the legislative changes made in 

the statutory school financing system in response to 

Horton I have not been sufficient to redress the educational 
  

inequities that allegedly exist in Hartford. The defendants 

deny the plaintiffs’ factual and legal claims in their 

answer, and in their second special defense (f 84), they 

assert that the decision in favor of the state on that issue 

in Horton v. Meskill, 195 Conn. 24 (1985) (Horton III) 

16   
 



he » 
precludes them from raising it in this action by reason of 

  

the operation of the doctrine of stare decisis. 

Four of the six other special defenses interposed by 

the defendants raise essentially jurisdictional issues as 

follows, first (§ 83), that the doctrine of sovereign 

immunity bars this action because the plaintiffs have failed 

to plead facts sufficient to establish a constitutional 

violation, second (f 85), that matters of educational policy 

are committed exclusively to the General Assembly by article 

eighth, § 1 of the state constitution, third (9 86), that   any judgment or order of the court that imposes affirmative 

i obligations on the defendants requiring legislative 

implementation would violate the principle of separation of 

powers, and fourth (§ 87), the court lacks jurisdiction 

because of the plaintiffs’ failure to join the city of 

ITT Tin ‘Hertford or its board of education or any of the suburban   
towns or their school boards as necessary parties to this 

action, "[t]lo the extent the plaintiffs complain about 

matters which are committed by law" to the discretion of 

those municipalities or their boards of education. The 

sixth special defense (9 88) challenges the legal 

sufficiency of the complaint because the "[p]laintiffs have 

failed to allege . . . state action as a direct and 

sufficient cause of the conditions about which they are 

complaining [and paragraph 89, the seventh special defense, 

asserts that] the state, as a matter of law, has taken 

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reasonable and appropriate steps to address the educational 

problems identified in [the] plaintiffs’ complaint and the 

court may order nothing further." 

In accordance with the court’s scheduling order after 

its decision on the motion to strike, the pleadings were 

closed, and the parties then proceeded with discovery by way 

of interrogatories in order to narrow the factual issues for 

trial by resolving those that were essentially undisputed. 

Thereafter, on July 8, 1991, the defendants filed a motion 

for summary judgment based on their claims that, first, it 

was indisputable that the state had satisfied whatever 

affirmative duty was required of it under the constitution, 

second, the court’s prior decision on the issue of state 

action should be reconsidered in the light of the 

intervening decision by the Supreme Court in Savage Vv. 
  

"Aronson, 214 Conn. 256 (1990), and the affidavit by then 

commissioner Tirozzi filed in support of the motion as to 

that issue, and third, that the question of justiciability 

had been wrongly decided in favor of the plaintiffs by the 

court on the state’s motion to strike. 

The Tirozzi affidavit stated that with the exception of 

regional school districts, existing school district 

boundaries had not been materially changed in over eighty 

years, and that to his knowledge no child in Connecticut had 

ever been assigned to a school district in this state on the 

basis of race, national origin, socioeconomic status, or 

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status as an "at risk" student, and that children have 

always been assigned to particular school districts on the 

basis of their town of residence. The plaintiffs argued in 

their brief in opposition to the motion (Record item #159, 

pp. 5-6) that proof of state action is not a necessary 

element of liability where de facto segregation is claimed 

because "it is the present condition of racial segregation 

in the region’s schools that violates the Connecticut 

Constitution as a matter of law, and the harms that flow 

from the present condition of racial and economic 

segregation that in fact deprive Hartford area 

schoolchildren of their right to equality of educational 

opportunity [and the] intent of the state defendants is 

therefore immaterial." 

The defendants’ memorandum in support of the motion 

(Record item #150, p. 50) stated that Savage v. Aronson, 
  

supra, 214 Conn. 256, "established that direct and harmful 

state action is necessary to support claims under the 

education provision in Article VIII, § 1, as well as claims 

under the equal protection provisions of the state 

constitution [and that the court in chat case] rejected 

claims under [the education clause] which are strikingly 

similar to the claims being made by the plaintiffs in the 

present case." In Savage, the trial court had found that 

the action of the department of income maintenance in 

terminating emergency housing for families receiving Aid to 

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Families with Dependent Children (AFDC) "and offering as an 

alternative only group shelter housing distant from the New 

Haven area, where [their children] have been attending 

school, would violate their state constitutional right to 

education because of the harmful effect upon them of 

frequent school transfers." 1Id., 286. 

The majority opinion in Savage acknowledged " [t]he 

undoubted hardship imposed upon the children of these 

plaintiffs from the lack of affordable housing near the 

schools where they are now being educated", but concluded 

nevertheless that their hardship resulted "from the 

difficult financial circumstances they face, not from 

anything the state has done to deprive them of the right to 

equal educational opportunity." “Id., 287. The court's 

rejection of the plaintiffs’ substantive due process claims 

“mo —- it —was also based on its finding that their-financial- 

circumstances, "which are the root cause of their inability 

to obtain ‘permanent’ homes, have not been produced by any 

state action, an essential requirement for invocation of the 

due process clauses of both our federal and state 

constitutions.”  Id., 284. 

The defendants’ claim that summary judgment should 

enter because state action of some kind must be found to 

exist before the constitutional issues raised by the 

plaintiffs may be considered, was rejected in part because 

of the court’s prior ruling that they were entitled to a 

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full hearing on the merits of their claims. Sheff v. 
  

Q'Neill, 42 Conn. Sup. 172, 173 (1892). The court's 

memorandum of decision also noted that an issue that had 

neither been raised nor addressed in Horton I was present in 
  

this case, namely, whether the state’s constitutional 

obligation to educate its schoolchildren required that a 

specific substantive level of education be provided to them, 

and the court was therefore required to define the scope and 

content of the constitutional provisions relied upon by the 

plaintiffs as was done by the New Jersey Supreme Court in 

Abborr v,. Burke, 575 A.24 359, 367-68 (N.J. 1990). 
  

$4, 178. 

The court also relied on the Abbott decision as the 

basis for rejecting the defendants’ claim that the evidence 

submitted in support of their motion established that the 

state had satisfied its affirmative-constitutional duty by 

enacting "appropriate legislation" to deal with the problems 

of urban school districts and to address the special needs 

of their students because, as stated by the New Jersey court 

in Abbott, the scope of the judicial inquiry is not limited 

to the state’s funding of its school districts but extends 

as well to the question of whether or not the state was 

providing a "minimally adequate education" for the children 

in the Hartford public schools as alleged by the plaintiffs. 

Id., 177-78. With respect to the defendants’ request that 

the court reconsider its prior decision in favor of 

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justiciability, the court declined to do so and treated that 

ruling as the law of the case because the issue had been 

correctly decided, and that in any event, the defendants’ 

argument was repetitive. Id., 178-79. 

After the court’s denial of the motion for summary 

judgment and the assignment of the case for trial in 

December of 1992, the court determined that the issues of 

liability and remedy would not be bifurcated and that 

evidence would be received as to the relief sought by the 

plaintiffs, without prejudice, however, to the rights of 

interested parties to be heard at a separate remedial 

hearing, if necessary, should the plaintiffs prevail on 

their constitutional claims. See Horton 111, supra, 
  

195 Conn. 46. Thereafter, over the course of thirty-five 

trial days beginning December 16, 1992 and ending 

February 26, 1993, approximately one thousand exhibits were 

introduced in evidence and the testimony of fifty-eight 

witnesses was received including the deposition testimony of 

four witnesses which were offered in evidence and admitted 

as full exhibits. 

The plaintiffs, in their opening argument (Transcript, 

December 16, 1992, pp. 8-9), stated that their | 

constitutional claims in this case were even stronger than 

those advanced successfully by the plaintiffs in Horton I, 

namely, that education was a fundamental right and that 

every child has the right to an equal educational 

2 

  

  
 



opportunity under the state constitution, because Article 

  

First, § 20 of the constitution "expressly prohibits both | 

segregation as well as discrimination [and that] de facto 

segregation is a form of segregation." The thrust of the 

defendants’ argument (pp. 27-28) was that this was "not a 

school desegregation case [because there] is no past or 

present segregation to undo [nor was there any] evidence of 

wrongdoing on the part of the state [and that, on the 

contrary the] evidence [would] show the state has made 

serious efforts and is a leader in attempting to address   these very serious problems." 

The depositions that were admitted into evidence had 

all been taken by the plaintiffs, and the persons deposed 

were the defendant Tirozzi (PX 494), who had served as state 

commissioner of education from July 1, 1983 to October 1, 

TT j 1991, Vincent Ferrandino (PX 493), who succeeded him as 

commissioner, John Mannix (PX 495) who was chairman of the 

state board of education when he gave his testimony on 

October 1, 1992, and Robert Margolin (PX 506), an employee 

of the DOE since 1967 who had held various administrative 

positions and was serving as deputy compissidner of 

education at the time of his retirement in 1991. The 

plaintiffs’ claim that the testimony of each of the 

deponents should be treated by the court as an admission 

against the state was denied, and after the court had ruled 

on the defendants’ objections to some of the questions, the 

23       
 



  

  

    

depositions were marked and admitted into evidence as 

plaintiffs’ exhibits without objection. 

Margolin testified (PX 506, supra, pp. 6-7) that in 

1978 he became director of the division that monitored the 

racial imbalance law.and that he also worked on Tirozzi I in 

addition to his responsibilities for administering the 

interdistrict cooperative grant program and other voluntary 

grant programs to racially balance school populations. From 

the time he assumed the directorship in 1978 and became 

directly involved in the administration of the racial 

imbalance law, the department was aware of the racial 

isolation of the urban school systems (pp. 13-16), and after 

the regulations were adopted in 1980, enforcement actions 

were taken against Middletown and Norwalk "and about half a 

dozen other towns [but we] were frustrated because we knew 

"we couldn’t stop the trend that was developing . . . and we 

[had] no way of controlling that." 

Margolin’s personal opinion was that the only long term 

solution to the problem of interdistrict racial imbalance 

"would be to move to some sort of required/ mandatory 

process" (p. 23), but his view was not shaved by the SBE or 

by the commissioner who believed that the more practical 

approach would be to pursue voluntary means in the form of 

"enticements" to school districts. He also stated (p. 32) 

that he felt that the interdistrict cooperative grant 

program was not sufficient to address the racial isolation 

24 

  

  

 



  

  

  

  

  

and poverty concentration of the schoolchildren in Hartford, 

that (p. 42) Tirozzi I went beyond mere statistics and had 

"very firm recommendations" and that Tirozzi II did not add 

anything to the earlier report. 

He stated further in the course of his deposition 

(p. 48) that the state’s primary responsibility is "to 

ensure that our kids learn [even in a] negative setting 

[although] it’s not fair to call Hartford a negative setting 

[because there’s] some outstanding education going on there 

." He also referred (pp. 48-50) to the "Governor’s 

Commission on Quality and Integrated Education" which was 

appointed in 1930 "to elevate the regpongibllity out of the 

state Department of Education [because] it was a multi- 

faceted problem that education in itself could not resolve", 

but that the commission’s report, in his opinion, did not 

accomplish the goals set for it because although it was a 

"good effort" it was "all compromise." 

The direct examination concluded with a question put to 

him as to whether children in Hartford were receiving a 

minimally adequate education as defined by plaintiffs’ 

counsel (pp. 55-56) as "education that gives a child a 

chance of leading a successful adult life . . ." His 

response was (pp. 55-58) that, in general, the majority of 

them were receiving at least that level of education, even 

though as a group, the mastery test results showed that many 

of them were performing below the remedial level, and he 

25 

  

 



      

also stated that the tests "were never intended to be the 

sole source to measure student performance." 

The Tirozzi deposition, which was taken by the 

plaintiffs on September 18, 1992, began with counsel’s 

statement (p. 4) that the questions put to him would be 

based on his expertise and experience during the time that 

he served as state commissioner of education, and on the 

"long history you’ve had in urban education." He stated in 

response to the first series of questions (pp. 9-10) that 

students in the Hartford public schools are racially 

isolated and are likely to become more isolated in the 

future, and that a total or "holistic! education for both 

white and minority schoolchildren involves interracial and 

multiethnic exposure to each other and interaction between 

them because racial and ethnic isolation has negative 

—effects on both groups. CEASE 

During his tenure as commissioner from 1983 to 1991, 

the department and the state board were aware of the harmful 

effects of racial segregation, and because the filing of 

annual reports on the racial composition of all school 

districts was required under the racial imbalance law, he 

"would have to assume" (pp. 11-12) that the governor as well 

as anyone else would have been aware of the conditions of 

racial isolation that existed in the state’s largest urban 

school districts. He also stated that the problems of those 

districts were compounded by the fact that minorities who 

26 

  
 



      

live in the inner cities are disproportionately poor and 

because studies have shown that "the real correlation with 

academic achievement is socioeconomic class [and that] being 

poor in and of itself is a significant problem in 

schools? 14, 

In response to the question of what efforts the state 

had made to address the problem of racial segregation in the 

public schools during his tenure, Tirozzi stated (pp. 14-18) 

that the most important were the interdistrict cooperative 

program grants "which was two or three million dollars that 

was available to allow districts on a voluntary basis to 

develop a number of plans to move students across district 

lines [in which we] had more than 100 districts 

participating in that effort during my last year, developing 

plans on a cooperative basis." With respect to the 

financial needs of the cities, he cited the 1986 educational 

enhancement act which "dramatically raised teachers’ 

salaries" and which permitted the hiring of a substantial 

number of them, with the great majority going to Hartford, 

New Haven and Bridgeport, so that class sizes in those 

cities could be reduced and in order to permit the poorest 

urban school districts to recruit and retain teachers at 

salaries that would be at least comparable to, if not higher 

than, the salary levels in the suburban districts. 

Id. , 15-16, 

27 

  

 



  

  
  

  

    

Tirozzi also referred to the priority school district 

program (p. 16) which was initially funded at three million 

dollars "to drive more dollars to cities [and stated that 

just] about every one of the grants we had was equalized so 

that more dollars went to the poorer communities; again, the 

major beneficiaries would have been the cities." He stated 

later in his testimony (p. 84) that "in our school funding 

formula, we were the first and may still be the only one 

that factors in our mastery test scores as one of the 

proxies for need, and it is driven when students do not meet 

what we call the remedial standard." 

When Tirozzi was questioned about the first 

recommendation in his initial report, which endorsed the 

concept of "collective responsibility", he stated 

(pp. 35-36, 98-99) that it was misunderstood at the time by 

many people to mean mandatory student assignment when it 

actually only mandated "corrective action" plans to 

eliminate racial imbalance with the threat of state 

intervention only if "the voluntary approach [proved] to be 

ineffectual." PX 50, p. 11. The recommendation was not 

implemented at that time because there was no express 

statutory authority for that kind of interdistrict planning 

process (pp. 100-04) and the SBE, although it may have 

agreed with the report in principle, decided that because of 

the strong negative public reaction to the coercive elements 

of the report, the best thing to do was to encourage 

28 

  

  
 



    

  

  

  

discussion, "to let people react [and express] their 

feelings", and thereafter, Tirozzi personally spent almost a 

year going around the state and "talking anywhere anyone 

would listen to me." 

Wherever he went across the state he found that 

"voluntary, cooperative approaches" would generate public 

support, "but nowhere [did he find] there would be a 

commitment to mandating that we move in that 

direction . . ." {(p. 128), and after he reported his 

conclusion to the board that the mandatory aspects of 

Tirozzi I were "negating the rest of the report", the 

decision was made to eliminate them from the concept of 

"collective responsibility" in Tirozzi II. 14. In his 

opinion (p. 136), the recommendations in the second report 

had a significant impact due to "the availability of fairly 

substantial state monies at the time", and the fact that the 

issues were being discussed by the public and by planning 

groups, and that although he would "like to see things go 

faster" (pp. 137-38), progress in dealing with "such a major 

issue in our society" could be only "incremental" because of 

what he termed the "political realities" of local control 

and autonomy, as well as the problems of "[h]ousing, 

unemployment [and] poverty." 

Tirozzi stated on redirect examination (pp. 157-60) 

that because of the strong negative response to the 

mandatory aspects of Tirozzi I, and what he believed to be 

29 

  

  

 



  

the very positive reaction to Tirozzi II based on the fact 

that so many districts across the state expressed their 

interest in the voluntary planning process, his opinion had 

changed, and he felt that voluntary approaches could bring 

about a meaningful level of integration and that "even the 

General Assembly could accept" legislative proposals along 

those lines. He suggested two areas in which such 

legislation could have a "dramatic impact", first, by 

changing the school funding formula to encourage the 

movement of children across town lines, and, second, by 

adjusting the state’s proportional share of school 

construction costs so as to reward districts that build 

schools closer to their borders. 

He was also asked earlier in his direct examination 

(pp. 92-93) to explain the way he would structure an 

in order to minimize the level of "white flight", and stated 

that he "would do everything in [his] power to develop 

voluntary measures" because "local communities [are not] 

going to do it . . . of thelr own volition", and that he 

would use the "carrot" approach to provide enough financial 

incentives and resources to make it "extremely attractive" 

for people to participate, as well as "sticks", by way of 

disincentives, to make it less desirable not to do so, 

because "[i]t’s incredible what the power of money can 

do . . ." He also stated that in the first report 

| 30       
 



| i » 

  

(PX 50, p. 12), as part of the suggested implementation of 

the collective responsibility concept, five groupings of 

suburban school districts contiguous and adjacent to New 

Haven (Figure 3), New London (Figure 4), Bridgeport 

(Figure 5), Hartford and Bloomfield (Figure 6), and   Waterbury (Figure 7) were proposed, based in part on the 

distances involved, because (pp. 93-94) "[t]he farther the 

parents feel their children are . . ." from their 

| residential communities, the less likely it is that a 
| 

| regional plan will succeed. i 
| 

| 
| 

Tirozzi stated (p. 95) that his opinion about white   
| flight was based on his experience in the 1960's as a 
| 

teacher in the New Haven school system when that city 

"started its own forced busing" before the racial imbalance 

law was passed in 1969. In his opinion, "the fact that New 

forced busing, it was non-negotiable, I think drove a 

significant number of whites from the city." Id. 

It can reasonably be assumed from this particular 

portion of his testimony and the fact that his resume states | 

(PX 478, p. 2) that he was a teacher gt the Sheridan Middle 

School from 1962 to 1965 and its principal from 1968 to 

1969, that Tirozzi was referring to the plan adopted by the 

New Haven board of education on July 7, 1964 which was 

upheld by the trial court in a decision filed on 

July 8, 1965 and reported in Guida v. Board of Education, 

\ 31       
 



  

  

  

    

28. Conn. Sup. 121 (1965). The plan, entitled ‘Proposals for 

promoting equality of educational opportunity and dealing 

with problems of racial imbalance’, called for the pairing 

of Sheridan Junior High School, which served a predominantly 

white area and another junior high school which was a 

predominantly minority school, into one attendance zone and 

also provided "that all seventh grade pupils in the entire 

zone attend one school and all eighth grade pupils in the 

area attend the other [thereby requiring the] bussing [sic] 

of some pupils . . . and as a result the racial imbalance in 

the area was equated to a certain extent." Id., 122. 

The court held in the Guida case that the plan did not 

violate General Statutes § 10-15° (now codified as § 10-15c) 

because "it [excluded] no one from any school and [had] no 

tendency to foster or produce racial segregation . . . ." 

Id., 123. It also held that the plan’s adoption and 

implementation were within "the extensive powers enjoyed by 

boards of education [and that there was] no constitutional 

prohibition on the board against taking into account 

the factor of racial imbalance.” Id., 123-24. 

He also testified (pp. 53-54) chat “it was his belief 

that the enhancement of city schools would have to be an 

essential part of any integration plan, and that the state 

  

General Statutes (Rev. to 1964) § 10-15 provided in 
pertinent part that " [t]he public schools shall be open 
to all children over six years of age without 
discrimination on account of race or color . . ." 

32 

  
 



  

had already taken some "very positive steps", particularly 

with respect to teachers’ salaries following the enactment 

of the educational enhancement act, so that the highest   
salaries in the state were being paid to teachers in the | 

larger urban districts. He pointed out, however, that 

providing support services such as teacher aides, school 

psychologists and social workers "of high quality and 

; sufficient number" was a particularly acute problem in the 

cities because of the disproportionately large number of 

children with special educational needs, but on the other 

hand, "some of the best special education classes in the   
state" can be found in urban districts such as Hartford. 

  Id., 54-85, 

Tirozzi was then asked a series of questions 

(pp. 63-69) based on the research findings of a number of   
the plaintiffs’ expert witnesses in the fields of education 

and sociology who later testified at the trial, including 

Jomills Braddock of the University of Miami, Robert Crain of 

Columbia University, Mary Kennedy of Michigan State 

University, William Trent of the University of Illinois and 

Charles Willie and Gary Orfield of Harvard University. His 

answer to each question was that he was aware of the 

particular research and agreed with its conclusions that 

1) school segregation tends to perpetuate segregation in 

adult life, 2) a consideration of the benefits of 

integration should include its effects on long term 

33       
 



  

  

  

    

  

education and career outcomes as well as academic 

achievement, 3) academic performance of white students is 

not detrimentally affected by integration, 4) academic 

achievement is improved when integration begins in the early 

grades, 5) white and-black students from integrated schools 

are more likely to have close friends of the other race, 

6) integrated elementary school and high school experiences 

are associated with integrated college experiences, 

7) students from integrated schools are more likely to work 

in an integrated environment and in integrated neighborhoods 

as adults, and 8) achievement scores of all students decline 

as the proportion of poor children increases and the poverty 

concentration of a school is in itself a cause of lowered 

achievement. 

Tirozzi also stated (pp. 81-82) that one important 

standard that he would use in determining whether a group of 

students was receiving a minimally adequate education would 

be the Connecticut mastery testing program, which "clearly 

represents what we believe all students should know [when 

they reach] the fourth, sixth and eighth grade in critical 

subject areas like reading, mathematics, language arts and 

writing." He also referred to "Connecticut’s Common Core of 

Learning" (PX 45a), a policy statement issued by the SBE in 

January, 1987, as representing what the state expects its 

high school graduates to know, but stated that it was a 

34 

  
 



  

  

  

  

  
    

"series of expectations" rather than a "formal assessment" 

of what that knowledge should be.* 

In response to the question (pp. 83-84) of how he would 

use the mastery test results to determine whether a 

minimally adequate education was being provided, and the 

question (p. 84), [ils the remedial standard [prescribed by 

the testing program] the standard below which you would 

define a student as not receiving a minimally adequate 

education?", he replied that the purposes of the tests were 

to inform districts so that they could improve their 

programs, correct deficiencies, and plan for the future, as 

well as to provide the basis for the disbursement of funds 

to the districts that were not performing at or above the 

remedial standard. His answer to the second question 

(pp. 84-86) concerning the use of the remedial standard as a 

"measure of the quality of the education being provided by a 

particular district was that the remedial standard was a 

"second standard" that had to be created "for the purpose of 

the grant" to determine which school systems required 

additional funding in order to improve the achievement of 

the students with the "greatest need", and a district that 

  

n [Tlhe Common Core of Learning has been developed 
neither as a state mandate nor as a condition for 
graduation. It provides a statement of high expectations 
needed for all Connecticut students to become educated 
citizens. It is also offered as a catalyst for school 
improvement. The framers of this document view it as a 
beginning, one that will change in response to new 
demands and challenges." (PX 45a, p.4) 

35 

  
 



      

had a "high percentage who met the standard . . . would mean 

[that it was] doing well, and a low percentage would mean 

[it was] not doing well. . +. 2." 

Tirozzi also stated (pp. 88-89) that he could not 

define the term "equal educational opportunity" in the legal 

sense, but that as an educator, and based only on the 

Connecticut mastery test results, he would conclude that 

children in the cities and the poorer communities throughout. 

the state, including Hartford, were not "receiving the same 

level of education as some of the other communities." He 

also expressed his opinion (p. 90) as an educator, and again 

using only the test results as the standard, that the 

children in Hartford who fell below the remedial standard 

were not receiving "a minimally acceptable education." 

Ferrandino’s testimony (PX 493) covered the period from 

"his appointment as education commissioner in June, 1992 to 

October 1, 1992 and October 6, 1992, the dates on which his 

deposition was taken, and the personal opinions that he 

expressed about the issues in this case were generally 

consistent with those that had been offered by Tirozzi in 

his deposition, including whether he SOress with some of the 

factual claims and conclusions asserted in the plaintiffs’ 

complaint that had not been expressly admitted or denied by 

the defendants in their answer. He testified (pp. 23-25) 

that as a part of his reorganization of the DOE after he had 

assumed the commissionership, he had established an office 

36 

  
 



  

  

    

of urban and priority school districts in order to 

concentrate the resources of the department on the problems 

of the cities, and more specifically, to improve the 

achievement of the students in the three largest urban 

districts because (p. 25) "I don’t think the results that we 

have attained in working with the cities have been the kind 

of results that we would like to see [and that student] 

achievement was really the bottom line for us", and that 

their budgetary options and legislative agenda "needed to be 

focused on how that activity would enhance student 

achievement." 

It was his opinion (pp. 86-87) that a mandated regional 

plan would not resolve the problems of racial and economic 

isolation and would be very likely to generate a negative 

reaction because of the "strong history in this state of 

local control of education [and the] very strong attachment 

to the local school system" and based also on his own 

personal experience as a principal of a regional high school 

and later, as superintendent of a regional school district 

[Ferrandino resume, PX 499), that the limited 

regionalization that occurred in the 1950's was accomplished 

only because of the financial and economic incentives that 

it offered to the smaller communities in the state. In 

response to a later question (p. 117) asking his opinion as 

to which would be "the more reasonable and better approach 

to achieve the goals of integration . . .", he stated that 

37 

  

  
 



  

    

  

  

    

the more voluntary the process, the greater the chance for 

its success because it would be the result of the 

cooperative efforts of all the interested parties and the 

governmental entities involved in the process. 

Ferrandino was asked at a later point in his deposition 

(pp. 131-39) to give his personal opinion as to whether he 

agreed with certain paragraphs of the complaint which had 

been denied, at least in part, by the state in its answer, 

and said that he agreed that the Hartford schools contain a 

"far greater proportion of students at all levels, from 

backgrounds that put them ‘at risk’ of lower educational 

achievement [and that the] cumulative responsibility for 

educating this high proportion of at-risk students places 

[those schools] at a severe educational disadvantage in 

comparison with the suburban schools." Complaint, 

paragraph 35. He stated that he also agreed that "[a]ll 

children, including those deemed at risk of lower 

educational achievement, have the capacity to learn if given 

a suitable education [but] because the Hartford public 

schools have an extraordinary proportion of at-risk students 

among their student populations, they dBerats at a severe 

educational disadvantage in addressing the educational needs 

of all students -- not only those who are at risk, but those 

who are not [and that the] sheer proportion of at-risk 

students imposes enormous educational burdens on the 

38 

  

  

    
 



      

individual students, teachers, classrooms, and on the 

schools within the [city] of Hartford." 1Id., paragraph 36. 

In response to the question of whether he agreed that 

"[t] hese burdens have deprived both the at-risk children and 

all other Hartford schoolchildren of their right to an equal 

educational opportunity . . ." as alleged in the last 

sentence of paragraph 36, he stated (p. 133) that his 

personal definition of that term, as an educator, was that 

"an equal educational opportunity is one whereby the 

students in Hartford are provided with the level of 

resources, the level of competence in terms of instruction, 

an ongoing systematic program that is similar to that of 

other communities in the state." His answer to the question 

was (pp. 132-33) that he believed that "the program, the 

curriculum that is being offered in Hartford does provide 

[under his definition] an equal educational opportunity to 

that of other students in other school systems around the 

state.” 

He also explained (pp. 146-48) that, for the purpose of 

analyzing the mastery test results, all the districts in the 

state were classified by "educational telereiive group" based 

on the size of the community and its student population as 

well as the various needs of their students, and that 

Hartford, Bridgeport and New Haven constituted one of the 

groups even though Hartford’s performance was lower than the 

other two. He stated that the testing program was not 

3S 

  

  
 



      
"extent on the physical, social and ec 

designed to be used comparatively but was intended to 

provide information about individual students and programs 

for the local school districr.' 14. 

Mannix, who had been a member of the SBE for nine and 

one-half years at the time he gave his deposition (PX 495), 

was questioned about the mastery tests and testified (p. 17) 

that the present testing system was better than the previous 

one because it was created by Connecticut teachers based-on 

this state’s own educational goals, and he felt that it was 

the "consensus on the board that it’s a valuable tool in 

judging the outputs of the school systems." He also stated 

(pp. 12-18) that "schooling", whether or not it takes place 

in an integrated setting, was only one component of a 

quality education, and that whether or not such an education 

was acquired by a particular student depended to a great 

conomic environment in 

which the child lived as well as whether the family unit of 

which the child was a part was a positive influence in terms 

of educational performance and achievement. 

After he had stated (p. 30) that he supported the 

plaintiffs’ position in this case, and igs asked what he 

thought should be done to address the problems which gave 

rise to this action, he said (pp. 22-24) that integration in 

the fullest sense could be achieved only by building 

affordable housing in the suburbs in order "to break up the 

ghettos in the cities . . .", and by making urban schools 

40 

  

 



  

  

    

more attractive in order to "bring back the white population 

into the cities. ... . ." . On the other hand (p. 26), 

he was not inclined to change town boundaries unless "it 

became absolutely necessary under some conditions I can’t 

envision at this point . . .", and also stated (pp. 20-21) 

that he was opposed to busing to achieve integration, even 

though as a town selectman in Wilton he was in favor of 

busing children from Bridgeport as part of a Project Concern 

program in 1966 or 1967 and he felt that the program "helped 

those children who came into Wilton NE 

The first witness called by the plaintiffs was David 

Carter, president of Eastern Connecticut State University 

and former co-chairman of the governor’s commission on 

quality and integrated education, and the commission’s 

report (PX 73) entitled "Crossing the Bridge to Equality and 

Excellence: A Vision of Quality and Integrated Education 

  

°It should be noted in this connection that the 
scope of the authority of a local board of education over 
interdistrict agreements for Project Concern programs was 
determined by this court in Murray v. Egan, 28 Conn. Sup. 
204 in 1969, when it enjoined the Milford board of 
aldermen from holding a non-binding "so-called advisory 
referendum", on the renewal of a Project Concern 
agreement with New Haven because it was "the concern of 
the board of education alone." Id. 205. The court held 
that the only provision for testing public sentiment on 
such an issue was by means of a petition as provided in 
§ 10-238 of the General Statutes, and that it was within 
the sole discretion of the board to make its own 
determination which "might include, in some substantial 
measure, consideration of the humanitarian aspects of the 
proposal and the availability to the board of facilities 
and staff in Milford, as well as its exercise of reason 
and judgment." Id. 206-07. 

  

41 

  

  
 



      

for Connecticut" was introduced in evidence as a plaintiffs’ 

exhibit. The transmittal letter to Governor O’Neill dated 

December 31, 1990 states that the report was "the 

culmination of 17 months of research, consultation and 

discussions with state and national education experts, 

Connecticut’s citizens, students, teachers, administrators, 

public officials and state agency personnel." 

Although the report was unanimously adopted, the letter 

refers to a difference of opinion between those members who 

favored mandatory approaches to achieving quality integrated 

education and those who felt that mandates were beyond the 

governor's charge to the commission or that such approaches 

were ineffective, and asks the incumbent governor and 

Governor-elect Weicker "to recognize that strong arguments 

supporting both options have been advanced by Commission 

members and Connecticut citizens at public hearings held 

across the state." It also states that " [w]e now realize 

that no set of educational strategies can fully address the 

myriad social issues that produce inequality and undermine 

education . . .", that "[s]ubstance abuse, hunger, parental 

neglect, crowded and substandard housing and inadequate 

employment opportunities disproportionately attack minority 

children in our state and divert them from educational 

opportunity . . .", and that "[ulnless other elements of 

society and other institutions actively share with education 

the responsibility for addressing and remedying these 

42 

  

  
 



      

conditions, not even the best of strategic education plans 

can succeed." 

The introduction to the commission’s report stated that 

"Connecticut has long acknowledged an affirmative 

responsibility to desegregate its public schools and to 

guarantee educational equality for all students", and then 

gave examples of "[tlhe state’s history of affirmative 

achievement" beginning in 1966 with Project Concern which 

was "designed to promote voluntary desegregation" of urban 

schools and was "one of this country’s first voluntary 

interdistrict transfer programs", followed by the racial 

imbalance law in 1969, the inclusion in the state school aid 

formula of the number of children from low-income families 

in 1979, and thereafter in 1989, factoring into the formula 

the number of students who score below the remedial standard 

in order to address "the needs of urban school districts’, 

state funding for magnet schools to improve "the overall 

quality of education while reducing racial isolation", 

Tirozzi I in 1988 and Tirozzi II in 1989, and since 1988, 

the "competitive interdistrict cooperative grant program on 

educational programs that provide epportuniclies for 

integration . . ." The report also includes "An Open Letter 

to the People of the State of Connecticut" by Governor 

O’Neill in which he stated that "[m]any of our students are 

isolated in schools that are either largely middle class and 

white or largely poor and non-white . . .", that much could 

43 

  

  
 



      

be learned from the experience of other states in seeking to 

achieve the "twin goals of quality and integration [but at] 

the same time Connecticut’s answers will be particular to 

Connecticut, reflecting our special circumstances, history 

and heritage." 

Carter acknowledged that the governor’s charge to the 

commission was "indeed to examine voluntary and or 

cooperative measures or approaches" (Carter, 1/37-38)° and 

that there was no discussion about mandatory measures until 

"the last two [or] three meetings, where it became very 

clear that there were some who felt that voluntary was not 

enough [and] as a result of coming to grips with the 

totality of the problem, started to believe that something 

needed to be done and something needed to be done urgently." 

Id. He also stated that "there’s still a question mark on 

“the legislative will", and referred to an article that he 

wrote about Brown v. Board of Education, 349 U.S. 294 (1955) 
  

(Brown II), in which he used the term "dynamic gradualism" 

in the same sense as "all deliberate speed" was used in 

Brown II to mean that "there was a great deal of motion but 
  

véry little movement . . .v  Id4., 55-56, 

The rather imprecise phrase, "all deliberate speed", 

which Carter equated with "dynamic gradualism", was 

  

The trial testimony of a witness will first be 
identified by name, then by the volume of the transcript, 
numbered from 1 through 35, for each day of the trial, 
followed by the page or pages of the transcript at which 
the testimony appears. 

dd   
 



      

articulated by the Supreme Court in Brown II as the remedial 
  

standard for the desegregation of school districts based on 

the holding of Brown I that "[s]leparate educational 

facilities are inherently unequal", Id., 495, but after ten 

years it was found to be unworkable because of "the open and 

violent resistance which Brown was encountering in the 

South." L. Tribe, American Constitutional Law, § 16-18, 
  

  

P- 1489 (2d Ed. 1988). In Griffin Vv. County School Board, 

377 U.S. 218 (1964), which reached the Supreme Court after 

the Virginia General Assembly repealed the state’s 

compulsory attendance laws and made school attendance a 

matter of local option, the Court stated "that the issues 

here imperatively call for decision now [because the] case 

has been delayed since 1951 by resistance at the state and 

county level, by legislation, and by lawsuits [and that 

there] has been entirely too much deliberation and not 

enough speed in enforcing the constitutional rights which we 

held [in Brown I] had been denied Prince Edward County Negro 

children.” I8., 229. 

The same theme sounded by Carter of "too much 

deliberation and not enough speed" on the part of the state 

in dealing with the growing and festering problems of the 

Hartford school district were echoed by William Gordon, an 

expert on school desegregation planning, in the course of 

his testimony on rebuttal (34/87-88), when he stated that 

45 

  

 



  

    

    

"[w]e used to take ‘deliberate speed’ and use it this way: 

we would say that the school systems want to be very 

deliberate and the plaintiffs want some speed, and neither 

one has occurred, really." His answer was given in response 

to a question which referred to the statement, ‘'[s]low and 

steady wins the race’, made by Christine Rossell, one of two 

desegregation planners called by the defendants, who favored 

an incremental approach to desegregation remedies. Id., 87. 

In the course of his examination by the court after his 

rebuttal testimony, Gordon also stated that "Connecticut’s 

efforts have not risen to the level of action" (id., 84) and 

made reference to the opinions he had stated in his direct 

examination that Connecticut "has been a leader [only] in 

studying [this problem] exhaustively" (13/5), and that it 

had not taken any "‘'significant steps’ toward solving the 

problem of racial isolation”. Id. He also stated that 

based on his experience with eighty desegregation plans 

since 1967 he had never encountered "a metropolitan 

desegregation plan that was put into place without a Court 

order.  (12/119.) 

Gordon also stated (12/157-59) ghat he had prepared a 

diagram (PX 488) in the form of a time line showing the 

continued increase in the minority population from 1963, 

when the number of minority students in Hartford was only 

forty-three percent of the total enrolment, on which he had 

entered and identified some of the various reports and 

46 

  
 



      

documents alleged in the pleadings as well as those that had 

been introduced in evidence by the plaintiffs and marked PX 

1 through 89. He also testified (13/83-85) that in his 

opinion the desegregation planning process mandated by the 

federal courts after-a finding of de jure segregation could 

be successfully pursued in the Hartford region even though 

there were additional complicating factors because of the 

substantial Hispanic population and the special language 

programs that would therefore be required, and because the 

planners would also have to deal with the problems of 

poverty in addition to those of race and ethnicity. 

In the course of his cross-examination he stated 

(13/89-90) that although he had no legal expertise in this 

area, many of the cases he had worked on such as those in 

Kansas City, Missouri; Dayton and Cleveland, Ohio; and 

Benton Harbor, Michigan, were cases of de facto segregation, 

which he defined as segregation "that has occurred because 

of the activity of government officials operating outside of 

a legal parameter that makes them segregate youngsters, they 

do it by their actions in using their authority as state 

officials." He also stated (13/159-60) that in almost all 

of his cases the school districts were counties rather than 

municipalities, although he recalled that one of his cases 

in Pennsylvania, which he thought began in 1980 and was 

47 

  

 



  

  

    

still going on,’ involved five separate municipal school 

systems. 

In the course of his cross-examination as a rebuttal 

witness Gordon stated (34/74) that he "never questioned the 

commitment of this state to desegregation; it’s a question 

of what they've done." He also stated (34/86) that 

Connecticut’s long term study of the problem "borders more 

on purposeful discrimination" than merely a matter of its 

having ignored the problem. 

Gordon stated (13/72-74) that in his opinion, 

Tirozzi II "retreats completely fren Tirozzi I [and] goes 

purely to voluntary strategies [although it] does propose 

interdistrict cooperation grants for planning and 

implementation and curriculum innovation." It was his 

opinion that because the report apparently abandoned the 

" "strong role that the state would take in it", that it had 

thereby abandoned the concept of "collective 

responsibility", and was therefore not "a meaningful or 

effective set of recommendations" to address the problems of 

racial isolation. 

He also referred in his testimony to the resolution 

creating the governor’s commission on quality and integrated 

education after this action had been filed, and the fact 

  

"Gordon was apparently referring to the Hoots Vv. 
Commonwealth of Pennsylvania litigation which began with 
Hoots v. Commonwealth of Pennsylvania, 334 F. Supp. 820 
(W.D. Pa. 1971) ("Hoots I") and continued through "Hoots 
Xv reported at 703 P.24 722 (34 Cir. 1983). 

  

48   
 



| » | 

p 3 

  

that the governor’s charge precluded the commission from 

recommending any kind of "mandatory planning processes." 

Id., 74-77. He described the report, however, as being 

"important" because its findings were similar to those in   
the Harvard report (PX 1), but also stated that it entailed 

a high level of funding because "if you have no stick the 

only thing you can do is put out a bigger carrot, and that’s | 

pretty much what it does."   It was also his opinion that the report’s   
i recommendations would not be sufficient to address the 

problem of racial isolation in the Hartford schools, because 

although "[t]hey would go towards it they certainly wouldn't 

do it." 1Id., 77. He agreed that the proposals contained in 

  the report for such things as "school grants, pre-school | 

  | programs [and] technology links [were] all things that are 

| good to have in schools, but they really don’t address 

| desegregation." Ia. 

Gordon was also asked (13/82) to state his 

"reaction . . . as an expert in educational equity and 

desegregation planning" to the "State of the State Message 

for Connecticut" that had been delivered by incoming 

Governor Lowell P. Weicker, Jr. on January 6, 1993, the 

eleventh day of the trial, and the day before Gordon began 

his testimony. After the text of the speech had been 

admitted as a full exhibit (PX 90), Gordon stated that it   
49     
 



      

acknowledged "the harms of segregation [and] the state’s 

responsibility .ooL kena dd4.,83, 

The Governor began his address by stating that despite 

such positive aspects of the state’s educational system as 

the highest teacher salaries and the best teacher to pupil 

ratio in the nation, and the fact that it was one of the 

"top five" states in per pupil spending, "there are two 

Connecticuts when it comes to the education of our children, 

Connecticuts separated by racial and economic divisions. 

There is a Connecticut of promise, as seen in its suburbs, 

and a Connecticut of despair as seen it its poverty-stricken 

cities." (PX 90, 4-5.) After citing the statistical data 

showing the concentration of poverty in the state’s largest 

cities, the Governor went on to state that " [t]he racial and 

economic isolation in Connecticut’s school system is 

indisputable [and that whether] this segregation came about 

through the chance of historical boundaries or economic 

forces beyond the control of the state or whether it came 

about through private decisions or in spite of the best 

educational efforts of the state, what matters is that it is 

here and must be dealt with." Id., 7 

He then proceeded to outline legislative proposals for 

six educational regions, the development by each region of a 

five year plan proposed by local and regional representative 

groups to reduce racial isolation, and "to provide all 

students with a quality, integrated learning experience", 

50 

  

  
 



  

  
  

    

and emphasized the fact that "[l]local decisions and local 

involvement will guide the process." Id., 9-11. In 

response to the court’s question later in his testimony, 

Gordon stated that "the governor [has] certainly identified 

the problem very clearly" and that it would put him in a 

"difficult position" if he were to have to give his opinion 

as to whether the solution the Governor had proposed should 

be implemented (13/166). 

David Armor, of the Institute for Public Policy at 

George Mason University, a sociologist, testified as an 

expert witness for the state on the correlation between 

race, poverty and academic achievement. He stated (32/98) 

that it was his opinion that it is the socioeconomic status 

of school children that influences academic performance and 

that explains the reduction "almost by half [of the] 

achievement gap between black and white students nationally" 

between 1970 and 1990, that "[v]irtually none of the gain 

can be attributed to school desegregation", and that he 

disagreed (32/19) with the contrary opinion expressed by the 

plaintiffs’ witness, Gary Orfield, professor of education 

and social policy at Harvard University, that "it makes no 

sense to separate race and poverty" even if it were 

analytically possible to do so. 

In the course of his testimony Armor stated the 

conclusions that he had reached as the result of a study 

that he had made of the disparities in the test scores 

51 

  
  

  
 



    

  

  

between Hartford and the suburban towns in order to 

determine "the role of racial segregation in causing those 

differences" (32/17) insofar as it related to the 

plaintiffs’ claims that they were being deprived of an equal 

educational opportunity. The conclusions that he reached as 

a result of his analysis were (32/94-95) that racial 

composition did not have any statistically significant 

effect on achievement scores and that the differences in 

educational outcomes could be explained by the "extremely 

different" levels of the socioeconomic status of the 

children in the respective school systems and that his 

findings were consistent with similar studies conducted by 

other researchers. 

Christine Rossell, a professor of political science at 

Boston University, an expert witness called by the state, 

testified (26B/31-34) that it was her opinion based on the 

research she has done using a data base of six hundred 

school districts throughout the country and her experience 

in designing desegregation plans, that mandatory student 

reassignment plans to achieve racial balance, whether 

intradistrict or interdistrict, are ineEfactive methods of 

achieving integration, whether they are mandated by racial 

imbalance laws or by Court order. Under her analysis, one 

of the principal problems with using racial balance as the 

measure of integration is that it fails to take into account 

the decrease in white enrolment that her studies have shown 

52 

  
 



      

takes place both before and after a plan is put into effect. 

$4.34. 

The divergent and apparently irreconcilable opinions of 

the expert witnesses whose testimony has just been 

summarized, it should be noted, relate only to remedy, and 

very much like the controversy between the parties which is 

the subject matter of this action, they do not reflect any 

serious disagreement between them as to the goals which they 

seek to achieve, but differ only as to the most effective 

means of working towards those goals. For example, the 

"carrot and stick" approach now advocated by Rossell, as she 

stated in her testimony, has changed and developed over the 

years based on her experience in desegregation planning® on 

the national level in much the same way that Tirozzi’s views 

changed in the course of his tenure as education 

  

Her resume (DX 5.0, pp. 7-8) indicates that she was 
a "[m]ember of the Citywide Coordinating Council of 
Boston, 1976-77, a fifteen member body appointed by Judge 
W. Arthur Garrity to monitor school desegregation and 
minority sub-committee representation. [She] was on the 
working sub-committee which helped develop and train the 
nine parent-citizen community district councils in 
Boston." Judge Garrity'’s decision in that case enjoined 
the Boston School Committee from failing to comply with 
the Massachusetts racial imbalance law which was adopted 
in 1965, four years before Connecticut enacted similar 
legislation. Morgan v. Hennigan, 379 F. Supp. 410 
(D. Mass. 1974). The District Court’s judgment was 
affirmed in Morgan v. Hennigan, 509 F.2d 580 (1st Cir. 
1974), cert. denied, 421 U.S. 963 (1975), by the Court of 
Appeals which noted in its opinion that "the district 
court gave the most deliberate and sensitive attention to 
this traumatic issue [and] we cannot fail to be aware of 
the unrest that attends any moment when change in old 
approaches is at last mandated by court decree." 1Id., 
598. 

  

B53   
 



  

  

    

commissioner on the state level as he explained in the 

course of his deposition testimony. 

At this point, the court’s review of the salient 

evidence having been completed, it should be noted that 

although the plaintiffs’ argument has been that this case, 

at least in terms of the legal issues that it raises, is 

virtually a perfect analog of Horton I, it differs in one 
  

significant respect in terms of the nature of the target 

against which the constitutional challenge is directed. 

Reference will be made as well to the legislature’s response 

to Governor Weicker’s proposals which the plaintiffs’ claim 

is similar, both qualitatively and quantitatively, to its 

response to the trial court’s judgement in favor of the 

plaintiffs in Horton, and the reasons that prompted the 

court’s reconsideration of the question of justiciability. 

Judge Rubinow’s decision at the trial court level in 

Horton I, supra, 31 Conn. Sup. 377, was that "the system of 
  

financing public schools in this state" was 

unconstitutional. Id., 378. That "system" was consistently 

referred to by the court throughout the opinion as one that 

was based on numerous "duty-delegating stats. "statutory 

programs", a "method of raising funds [that is] the result 

of legislation", a "statutory system", and the declaratory 

judgment itself that was rendered in the case was expressly 

stated to be "that General Statutes §§ 10-240 and 10-241" 

were unconstitutional. Id., 382, 385, 391. 

54 

  
 



      

The Supreme Court, in its opinion in Horton I, stated 
  

that "the present system of financing public education in 

Connecticut [is] principally embodied in §§ 10-240 and 

10-241 of the General Statutes", and that the state 

distributes funds "pursuant to legislation providing for a 

flat grant . ....." Horton 1, supra, 172 Conn. 621. ‘The 
  

court also affirmed the trial court’s post-judgment 

supplemental finding that the legislative response to its 

decision in increasing the flat grant by the use of lottery 

proceeds was ‘miniscule and not significant’, and therefore 

that it had failed to remedy the constitutional violation 

that had previously been found to exist. 1Id., 636-38. 

The claims made by the plaintiffs in this case are 

distinguishable from those in Horton I in that they are not 
  

challenging the constitutionality of any particular statute 

“or legislative classification but rather what they describe 

as a "present condition of racial segregation" that exists 

in the Hartford area schools (Record Item #159, pp. 5-6). 

Nevertheless, the response that was fashioned by the General 

Assembly to the issues that have been raised by this case as 

a result of the initiatives proposed By the Governor at the 

opening of the legislative session will be briefly reviewed. 

On June 28, 1993, which was also the date on which the 

defendants’ post-trial brief was filed, Public Act No. 93- 

263, (now codified as General Statutes §§ 10-264a to 10- 

264b) entitled "An Act Improving Educational Quality and 

55 

  

  
 



  

  

  

    

Diversity" was signed by the Governor. It provided a 

timetable beginning on January 15, 1994 for the convening of 

local and regional "forums" for the purpose of developing 

regional "education and community improvement plans" which 

were to be voted on by each of eleven regions in the state. 

Under what has now been codified as § 10-264a (3), an 

"Education and Community Improvement Plan" is defined as 

follows: 

(3) ‘Education and community improvement 
plan’ or ‘plan’ means (A) a voluntary cooperative 
interdistrict or regional plan to (i) improve the 
quality of school performance and student outcomes 
through initiatives which may include, but are not 
limited to, magnet schools and programs, 
interdistrict schools and programs, regional 
vocational-technical schools, regional vocational- 
agricultural programs, interdistrict student 
attendance including school choice, charter 
schools, early childhood education and parent 
education, summer school, extra-curricular 
activities, student community service, paired 
schools, teacher and administrator exchange and 

~~ ~~ interactive telecommunications; (ii) reduce — 
barriers to opportunity including, but not limited 
to, poverty, unemployment and the lack of housing 
and transportation; (iii) enhance student 
diversity and awareness of diversity or (iv) 
address the programmatic needs of limited English 
proficient students with quality limited English 
proficient and bilingual programs or (B) a 
voluntary local plan for purposes of section 
10-264f. (C) Each such plan shall provide equal 
opportunity for all students, including such 
additional services as may be necessary to ensure 
meaningful participation in a program. (D) 
Notwithstanding any provision of the general 
statutes to the contrary, the commissioner of 
education may grant waivers of specific state 
statutory or regulatory mandates upon application 
of one or more local or regional boards of 
education, provided (i) requests for such waivers 
are included in a plan and (ii) such waivers are 
consistent with the educational interests of the 
state. 

56 

  

  

  
 



      

On December 16, 1993, the date originally scheduled for 

final arguments in the case, the court itself raised the 

issue of justiciability by reason of the enactment of the 

statute, and thereafter, briefs were filed on the 

jurisdictional issue by the parties, and a group of law 

professors also filed a brief as amici curiae in support of 
  

the plaintiffs’ position. The court subsequently ruled that 

it would be in the interest of judicial economy to decide 

the question of justiciability in the context of all the 

evidence in the case and in accordance with the dissenting 

opinion in Pellegrino v. O'Neill, supra, 193 Conn. 693. 
  

The issue of justiciability was revisited by the court 

because of its concern about the last three considerations 

stated in Baker v. Carr, 369 U.S. 186, 217 (1962), namely, 
  

"the impossibility of a court’s undertaking independent 

~ resolution without expressing lack of the respect due 

coordinate branches of government; or an unusual need for 

unquestioning adherence to a political decision already 

made; or the potentiality of embarrassment from multifarious 

pronouncements by various departments on one question." 

That concern, however, has been resolved by the court in 

favor of justiciability because those considerations 

"reflect a ‘prudential’ view" and the facts and 

circumstances of this case justify that conclusion. Fonfara 

v. Reapportionment Commission, 222 Conn. 166, 185 (1992). 

57 

  

 



      

The court’s ruling is also based on the fact that some 

of the issues raised in this case are similar to those in 

school finance cases where justiciability is almost 

invariably found. McDaniel v. Thomas, 285 S.E.2d 156, 157 
  

(Ga. 1981). Although there are other issues and the remedy 

sought by the plaintiffs go far beyond those ordinarily 

present in those cases, they involve, at least in part, the 

allocation of resources to meet the "constitutional 

imperative" of educating children. Board of Education, 
  

Levittown Union Free School District, Nassau County Vv. 
  

Nyquigr, 443 'N.Y.8.24 843, 854 (App. Div. 1981). 

For the foregoing reasons as well as for those stated 

as the basis for the court’s prior rulings which are 

incorporated herein by reference, the court finds that the 

controversy between the parties is justiciable. 

The court directed counsel for the plaintiffs to amend 

the complaint to allege the passage of Public Act 263 and to 

articulate the effect, if any, that the legislation might 

have on their claims of law. The plaintiffs then filed a 

request to amend by adding proposed paragraphs 66a and 66b, 

and after the state’s objection to the request was overruled 

the state filed its amended answer. 

Paragraph 66a of the revised complaint dated 

November 23, 1994, which was denied by the defendants, 

states that in January of 1993, "in response to this 

lawsuit, defendant Governor Lowell Weicker, in his annual 

58 

  
 



  

  

  
  

  

  

state of the state address, called on the legislature to 

address ‘ [tlhe racial and economic isolation in 

Connecticut’s school system,’ and the related educational 

inequities in Connecticut’s schools." Paragraph 66b, which 

is admitted by the defendants only insofar as it alleges the 

passage of the public act, states that "[als in the past, 

the legislature failed to act effectively in response to the 

Governor's call for school desegregation initiatives [and 

instead], a voluntary desegregation planning bill was 

passed, P.A. 93-263, which contains no racial or poverty 

concentration goals, no guaranteed funding, no provisions 

for educational enhancements for city schools, and no 

mandates for local compliance." 

In the introduction to their reply brief dated 

August 16, 1993, the plaintiffs refer to the "commonality" 

of the interests of the parties in this case, particularly 

as reflected in the deposition testimony of Tirozzi, 

Ferrandino, Margolin and Mannix, as well as in Governor 

Weicker’s message to the legislature. They go on to state 

that the first of the major legal issues that must be 

addressed by the court is, as they put 1 "the nature of a 

state action requirement." 

The issue of whether state action exists under the 

facts and circumstance of this case, a question which was 

first raised by the defendants in their motion to strike, 

and which was denied at that time as being premature, and 

59 

  

 



      

which was again raised by the defendants in their motion for 

summary judgment on the ground that state action of some 

kind must be found to exist before the constitutional issues 

raised by the plaintiffs in the complaint may be considered, 

and again denied by this court because, "the question of 

whether or not the state’s action rises to the level of a 

constitutional violation goes to the merits of the present 

case J" rgheff,; supra, 42 Conn. Sup. 1756. 

Professor Lawrence Tribe, in his treatise, American 
  

Constitutional Law, states in his introduction to chapter 18 
  

entitled "The Problem of State Action", that: 

[n]early all of the Constitution’s self-executing, 
and therefore judicially enforceable, guarantees 
of individual rights shield individuals only from 
government action. Accordingly, when litigants 
claim the protection of such guarantees, courts 
must first determine whether it is indeed 
government action -- state or federal -- that the 
litigants are challenging. 

Tribe, supra, American Constitutional Law, p. 1688 (2d Ed. 
1988). 
  

Therefore, the issue of whether state action exists under 

the facts and circumstances of this case must now be 

addressed in the light of all the relevant evidence that has 

been offered on that question in the couies of the trial. 

Christopher Collier, a professor of history at the 

University of Connecticut and the officially designated 

state historian for Connecticut, was called as a witness by 

the plaintiffs and testified (16/53) that education in 

Connecticut "has always been under the full control of the 

60 

  

 



  

  

  

    

colony or the state government." He also stated that in his 

opinion the "public policy [of the state and colony] from 

the inception of our system [has been that it is] essential 

for our form of government that all students receive an 

equal educational opportunity." Id., 54. 

He also traced the history of race relations in this 

case and stated that "it’s no coincidence that the first 

civil rights commission in the United States was established 

in Connecticut in 1942 [because it was] clearly the result 

of the disparities that were then very apparent" with 

respect to employment and housing. Id., 45-46. In this 

connection, an exhibit offered into evidence which was 

issued in 1961 by the Connecticut commission on civil rights 

{PX 502, p. 2) offers the following account: of civil rights 

legislation after 1942: 

Connecticut’s record of activities designed 
to give Negroes equality with whites spans more 
than a century. Prior to the Civil War, the 
abolitionist movement had many supporters in 
Connecticut. Soon after the Civil War, the state 
legislature desegregated all public schools. The 
state constitution was amended in 1876 to 
eliminate the requirement that voters be white. 
In 1905 the first public accommodations law 
declared illegal racial discrimination in hotels, 
restaurants, transportation facilities, and places 
of amusement. In 1936, discrimination in 
employment in the state service was outlawed. In 
1943 the state Inter-racial Commission was 
created, and the Governor was authorized to 
appoint ten Commissioners with powers to 
investigate employment opportunities, violations 
of civil liberties, and related matters. In 1947, 
a Fair Employment Practices Act empowered the 
Inter-racial Commission to proceed against 
employers, employment agencies, or unions who 
engaged in discriminatory practices based on race, 

61   
 



    

religion, or national origin. Discrimination in 
public housing projects was declared illegal in 
1949. In 1951 the legislature changed the name of 
the agency to the Commission on Civil Rights, to 
make clear that the Commission was not concerned 
exclusively with discrimination based on race or 
color. In 1953 the Public Accommodations Act was 
extended to cover all establishments offering 
goods or services to the public. And again the 
legislature, in 1959, extended the Public 
Accommodations Act into the area of private 
housing prohibiting discrimination in the sale or 
rental of a housing accommodation which was one of 
five or more contiguous units under the control of 
one owner or agent. In 1961 the legislature 
extended the coverage to three or more units. 

The cumulative record of Connecticut civil 
rights legislation in the area of race relations 
probably represents a maximum of progress toward 
equal opportunity between whites and Negroes 
achieved by any of the Northern states. The 
issues of school desegregation and voting rights, 
which are paramount in the struggle for Negro 
rights in the deep South today, were resolved in 
Connecticut within a decade after the close of the 
Civil War. 

Collier also stated that with respect to education, 

T~ "Ibllacks were always permitted to go to the district 

schools [and he had] not found any case, except one 

ephemeral one, in which blacks were not permitted to go [to] 

the district schools." He also noted that for all practical 

purposes de jure segregation in the schools has never 

existed except that the City of Hartford "had this black 

school, Pearl Street School, and they passed an ordinance 

requiring black kids to go to the black school [and 

thereafter the] General Assembly met within weeks" and 

repealed the ordinance, "so there’s only been de jure 

62   

  

  
 



segregation in Connecticut for a matter of weeks, and that   
only in one place." Id., 48. 

The "ephemeral" episode of de jure segregation is 

described in greater detail in a law review article, which 

states that: 

De Jure Segregation In Hartford 

In 1868, the General Assembly passed a one 
sentence amendment to the Education Law which 
provided for open enrollment without regard to 
race or color. The history of that amendment 
(which is still on the books as part section 10-15 
of the Connecticut General Statutes) goes back at 
least to 1830. In that year the General Assembly 
passed a Special Act which brought the doctrine of 
"separate but equal" to the Hartford school 
system: 

RESOLVED BY THIS ASSEMBLY, that the 

first school society in the town of 
Hartford, be, and they are hereby 
empowered to cause a school to be kept 
within said society, exclusively for 
colored children. . 

By 1868, the paternalistic tenor of the 1830 law 
had deteriorated. In the spring of 1868, a town 
meeting was held at Hartford to discuss the 
question as to 

whether white children shall be forced 
to mix and miscegenate with negroes in 
the schools. 

The Hartford Courant of the day reported the text 
of the ordinance passed by that town meeting: 

[It should not be lawful for any of the 
colored children residing therein (in 
five of the town’s attendance districts) 
to attend upon or be educated in any of 
the schools of said districts, but it 
shall be the duty of said children to 
attend said Pearl Street colored School. 

To their credit the members of the General 
Assembly responded to the ordinance adopted at 

63        



      

that Hartford town meeting by quickly passing 
Connecticut’s open enrollment law. 

R. Marcin, Nineteenth Century De Jure Segregation in 
connecticut, 43 "Conn. B.J. 394 (1971). 
  

In the course of Collier’s cross-examination, counsel 

for the state (16/69) asked him whether "the kind of de jure 

segregation that was under review in (Brown I) existed in 

the state of Connecticut [only] in Hartford, for a matter of 

weeks, if at all." His answer was that de jure segregation 

of blacks "was never a state policy in Connecticut." Id. 

Collier also stated that "the maintenance of the town 

district system" was the most important factor that 

contributed to the "present segregated conditions" in the 

urban schools. Id., 53. During his cross-examination he 

stated that the law enacted in 1909 that consolidated most 

of the school districts in the state based on town 

boundaries "was a positive thing for the quality of 

education in Connecticut", that the legislation "had nothing 

to do with race whatsoever" and that it was "not a product 

of any discriminatory motive on the part of the General 

Assembly or the people of Connecticut . . ." 1Id., 66, 68. 

Justice William O. Douglas was cherpringioal and most 

consistent proponent of the view that strict constitutional 

liability, that is, liability without fault, should be 

imposed on local and state governments for conditions of 

segregation that arose from demographic, social and economic 

forces that were not within their direct control because 

64 

  

  

 



    

  

  

"there is no constitutional difference between de jure and 

de facto segregation, for each is the product of state 

actions or policies." Keyes v. School District No. 1, 413 
  

U.S. 189, 216 (1872) (Douglas, J., concurring). His 

concurring opinion in Keyes adopts the language of Judge 

Wisdom in United States v. Texas Education Agency, 467 F.2d 
  

848, 863-64 (5th Cir. 1972), that "[w]lhen school 

authorities, by their actions, contribute to segregation in 

education, whether by causing additional segregation or 

maintaining existing segregation, they deny to the students 

equal protection of the laws." 

Justice Douglas also quoted with approval Judge 

Wisdom’s further statement in the Texas Education Agency 
  

case that " [w]e need not define the quantity of state 

participation which is a prerequisite to a finding of 

constitutional violation [because] the necessary degree of 

state involvement is incapable of precise definition and 

must be defined on a case-by-case basis." Id. Douglas also 

stated in the Keyes concurrence that any attempt to 

differentiate between de facto and de jure segregation would 

be an exercise in futility because the mantfestattons of 

state participation that are often described as "de facto" 

are "only more subtle types of state action that create or 

maintain a wholly or partially segregated school system." 

14. 

65 

  

  
 



    
  
  

Douglas repeated his views on de facto segregation in 

his dissenting opinion in Milliken v. Bradley, 418 U.S. 717, 
  

761 (1974) when he stated that "there is so far as the 

school cases go no constitutional difference between 

de facto and de jure. segregation [and that each] school 

board performs state action [in the constitutional sense] 

when it draws the lines that confine it to a given area, 

when it builds schools at particular sites or when it 

allocates students." He also noted, however, that "[i]lt is 

conceivable that ghettos develop on their own without any 

hint of state action [but] since Michigan by one device or 

another over the years created black school districts and 

white school districts, the task of equity is to provide a 

unitary system for the affected area where, as here, the 

State washes its hands of its own creations." Id., 762. 

It should also be noted that prior to Keyes, Justice 

Douglas, acting as Circuit Justice, denied a preliminary 

injunction against the modification of a racial imbalance 

plan for a California high school district, and acknowledged 

that "the precise contours of de jure segregation" had not 

yet been drawn by the Supreme Court. Gomperts wv. Chase, 404 
  

U.S. 1237, 1238 (1971). He stated that unlike other 

California counties where dual systems had been maintained 

for many years, "[s]o far as I can tell, a different history 

has prevailed in San Mateo County, or at least it is not 

apparent from this record that California’s earlier dual 

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school system shaped the existing San Mateo school system." 

Id.., 1239. 

The "more subtle" types of state action in that case, 

which apparently raised some questions in his mind as a fact 

finder at the trial court level, included the following 

offers of proof: the construction of a freeway effectively 

isolated blacks in the area, state planners were responsible 

for the black community around the school, the 

discriminatory racial policies of realtors licensed by the 

state and by state-chartered banks as well as "residential 

segregation, fostered by state enforced restrictive 

covenants [which] resulted in segregated schools." Id. He 

then concluded that "[w]hether any of these factors add up 

to de jure segregation in the sense of that state action we 

condemned in [Brown I] is a question not yet decided." Id. 

Justice Douglas then raised what he referred to as 

"another troublesome question", namely, the remedy that 

should be provided under equal protection analysis where the 

state is found not to be "implicated in the actual creation 

Of the dual system.” 1Id., 12335. He answered his own 

question by stating that the only conseicutionally 

appropriate "solution" in a situation where minority schools 

are not qualitatively equal to white schools would be to 

design "a system whereby the educational inequalities are 

shared by the several races." Id., 1241. 

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The preliminary injunction that was denied by Justice 

Douglas in Gomperts, supra, 404 U.S. 1237, had previously 
  

been denied by the District Court for the Northern District 

of California in Gomperts v. Chase, 329 F. Supp. 1192 (N.D. 
  

Cal. 1971), based on-that court’s conclusion that "t]he 

most that can be said for plaintiffs’ showing is that the 

district has not moved as rapidly and effectively to adjust 

racial imbalance as plaintiffs would like [but this] 

involves no constitutional depravation." Id., 1196. The 

court also stated that "[i]f school boards are permitted, as 

they are, to do nothing to cure racial imbalance which is 

the product of a neighborhood plan impartially administered, 

it would be self defeating to hold" that the board cannot 

constitutionally take curative action [and if] neutrality is 

not unconstitutional, certainly action designed to cure 

undesirable imbalance is not, even though it may fall short 

of its goal." Id. 

Finally, another expression of Douglas’s views can be 

found in his dissent from the Supreme Court’s affirmance, 

without opinion, of Spencer v. Kugler, 326 F. Supp. 1235, 
  

1237°{0D."'N.J. 1971), aff’d 404 1.8. 1027 (1972), in which 

the plaintiffs claimed that because the New Jersey statutes, 

subject to certain exceptions, required that school district 

boundaries be coterminous with municipal boundaries, racial 

balance became "mathematically impossible in many districts, 

thus providing unequal educational opportunities." 1Id., 

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1237. The court held that the statutes set a reasonable 

standard "especially in light of the municipal taxing 

authority", the challenged statutes were "unitary in nature 

and intent and any purported racial imbalance within a local 

school district results from an imbalance in the population 

of that municipality-school district [and that racially] 

balanced municipalities are beyond the pale of either 

judicial or legislative intervention." Id., 1240. 

The District Court decision stated that Brown I never 

required anything more than a unitary school system even 

though some later federal cases held that a constitutional 

violation "might result from a mere passive refusal to 

redistrict unreasonable boundaries." Id., 1241. The court 
  

held that school district lines based on municipal 

boundaries were reasonable so long as they were not designed 

or intended to foster segregation. Id. 

The Spencer decision relied principally on the 

"eritical distinction" drawn in Swann v. Charlotte- 
  

Mecklenberg Board of Education, 402 U.S. 1 (1971), "between 

those states which have a history of dual school systems and 

a separation of the races which has continued through 

‘freedom-of-choice’ and ‘geographical zoning’ plans which 

create the illusion of conforming to law, and those wherein 

so-called ‘de-facto’ segregation results from housing 

patterns and conventional drawing of school district zones." 

Id., 1242. The District Court also noted that the New 

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Jersey statutes were approved by the legislature on 

September 18, 1953, some eight months before Brown I, which 

was decided or May 17, 1954. Id. 

The Spencer opinion concluded by stating that racial 

imbalance caused by housing patterns within the 

municipality-school districts were not "susceptible to 

federal judicial intervention." Id., 1243. "The New Jersey 

Legislature has by intent maintained a unitary system of 

public education, albeit that system has degenerated to 

extreme racial imbalance in some school districts; 

nevertheless the statutes in question as they are presently 

constituted are constitutional." Id. 

In his dissent from the Court’s judgment affirming the 

district court’s opinion in Spencer, supra, Justice Douglas 

stated that the lower court had rejected the plaintiffs’ 

claims that they were entitled to redistricting, a remedy 

that the Supreme Court had already found to be appropriate 

in voting rights cases; Reynolds v. Sims, 377 U.S. 533 
  

(1964); and to which the plaintiffs should be entitled 

because " [t]he right to education in the environment of a 

multi-racial community seems equally fundamental." Spencer 

v. Kugler, 404 U.S. 1027, 1028 (1972). In the alternative, 
  

he stated, they were entitled either to an "appropriate 

racial balance" so that educational opportunity should not 

be determined by race, or to compensatory educational 

programs "to correct for the inferior schooling given 

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minority students", but the proposed remedial approaches 

were rejected by the District Court’s "finding refuge in de 

facto segregation." Id. 

In a lengthy footnote to his dissent, Douglas quoted 

from a statement made at a Senate Subcommittee hearing by 

the United States Commission on Civil Rights in 1970 that 

"there is probably little substance to the concept of 

de facto school segregation." Id., 1029-30 n.l. The 

Commission also stated that the federal government "has a 

moral as well as legal responsibility to undo the 

segregation it has helped to create and maintain [because 

there] is no statute of limitations by which government in 

its many forms can be exonerated from its past misdeeds or 

relieved of its current obligations." Id. 

The court, as the finder of fact in this case, 

concludes from its review of all--the evidence which has been 

presented in the course of these proceedings that the 

plaintiffs have not established any of what Justice Douglas 

described as the "more subtle" types of state action that 

are ordinarily presumed in "de facto segregation" cases, 

including more specifically the factors of residential 

segregation, as well as attendance zone boundaries, which 

are exclusively the statutory duty of local boards of 

education under § 10-220 of the General Statutes. The court 

also finds in accordance with the holding of Spencer v. 
  

Kugler, supra, 366 F. Supp. 1240, that "[r]acially balanced 

71 

  

 



      

municipalities are beyond the pale of either judicial or 

legislative intervention." Id., 1240. The court therefore 

finds that the plaintiffs have failed to prove that "state 

action as a direct and sufficient cause of the conditions 

which are the subject matter of the plaintiffs’ complaint 

and that the court therefore need not address the 

constitutional claims asserted by the plaintiffs. 

For the foregoing reasons, judgment is entered in favor 

of the defendants. 

[ | 
fod : / , 

OL ivi ] Ch I. 
Harry En 
Judge of e Superior Court 

  

72