Memorandum of Law in Support of Defendants' Motion for Summary Judgment and Supporting Material

    Cv 89-0360977s 

MILO SHEFF, et al SUPERIOR COURT 

Plaintiffs J.D. HARTFORD/ 

NEW BRITAIN AT HARTFORD 

Vv. 

WILLIAM A. O'NEILL, et al 

Defendants July 8, 1991 

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS 
MOTION FOR SUMMARY JUDGMENT AND SUPPORTING MATERIAL 
  

  

(PART ONE) 
  

The present Memorandum of Law in Support of Defendants’ 

Motion for Summary Judgment and Supporting Material is being 

provided to the court in two parts. Part One contains the 

defendants' discussion of the case and arguments of law. Part 

Two contains the affidavits and other material being submitted in! 

support of this summary judgment motion. An Index to Part One 

and Part Two follows.   
 



  

    

  
  

INDEX 

PART ONE - MEMORANDUM OF LAW 

I. INTRODUCTION. c iieirvisssivevssnsnssnsssrrssnmsingssan saves sisnasi 

11. UNDISPUTED FACTS. «vis vas sv rrarsvnnsnis sia sas sass danaairnnstsas vis 

A. FACT 1: The Defendants And Their Predecessors Have Not, 

By Affirmative Act, Assigned Or Confined Children To The Hartford 

Public Schools Based Upon Their Race, National Origin, 

Socioeconomic Status, Or Other Status Which Might Be Said To Put 

Children "At Risk" Of Poor Educational Performance. ......cvese0 ee. 

B. FACT 2: There Is Not Now, And Never Has Been, A Distinct 

Affirmative Act, Step, Or Plan Which, If Implemented, Would Have 

"Sufficiently" Addressed The Conditions About Which The 

Plaintiffs COMPlaiN. cco oss vsmisasmiincrnssnwanisonsssissaossrnsn 

C. FACT 3: The General Assembly Has Adopted And The 

Defendants Have Implemented Legislation To Address The Conditions 

About Which The Plaintiffs Complain... sss cvevsnssrncnrmnanainsinsan 

(Discussion of Analyses Found in Attachment to the 

Brewer Affidavit, Exhibit 4) 

X, Average Daily Membership (ADM); Conn. Gen. 

Stat. § 10-261(A){2)Q s+ votives nrrassnnrnrns 

2. Special Education, State Supported 

Percentages; Conn. Gen. Stat. § 10-760... v0 

3. Transportation, State Supported Percentages; 

Conn. Gen. Stat. § 10-266m.......cc0cceeveeenn 

4. School Construction, State Supported 

Percentages; Conn. Gen. Stat. § 10-285a...... 

5. Total State Aid Per Pupil......cceeeeveeenenenn 

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Education Evaluation and Remedial Assistance, 
Grants for Public Schools; Conn. Gen. Stat. 

Education Evaluation and Remedial Assistance 

Grants for Non-Public Schools; Conn. Gen. 

Stat. § 10-140 

Interdistrict Cooperation Grants; Conn. Gen. 

Stat. § 10-74d 

Agency Placement Grants; Conn. Gen. 

§ 10-76d(e) 

Professional Development Grants; Conn. 

Stat. § 10-155dd 

Teacher Evaluation Grants; May Spec. Sess. 

P.A. 86-1, § 15 (repealed) 

Career Incentive Grants; May Spec. Sess. P.A. 

86-1, § 19 (repealed) 

Teacher Evaluation Implementation Grants; 

P.A. 87-2, § 11 (repealed) 

Combined Professional Development Grants 

Minimum Salary Grants; May Spec. Sess. 

86-1, § 2 (repealed) 

Salary Aid Grants; May Spec. Sess. P.A. 86-1, 

§ 3 (repealed) 

  
 



    

    
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18. 

19. 

20. 

21. 

22. 

23. 

24. 

25. 

26. 

27%. 

28. 

29. 

30. 

General Education Aid; May Spec. Sess. P.A. 
Bb=1, 8S 4, 6 (Yepealed). . ... iii iiss nirivineg 

Teacher Pupil Ratio Grants; May Spec. Sess. 
P.B. 86-1, § 5 (repealed)... ... co aviv ivi 

Combined Salary Ald Grants... vec ones sion ssi 

Education Equalization Grants; Conn. Gen. 
Stat. §§ 10-262c through 10-262e (repealed) 
and Conn. Gen. Stat. §§ 10-262f through 
FOB ts cnnnities ons vinnie sinter 

Vocational Education Equipment Grants; 
Conn. Gen. Stat... § 10-2658 et Seq. cv vivvnin 

Education Evaluation and Remedial Assistance/ 
Project Concern Grant; Conn. Gen. Stat. §§ 
10=140(D) (2) 10=266 cnc vis viiinicn ve vivian vn vw sinininn 

School Building Project Grants; Conn. Gen. 
Stat. §§ 10-282 through 10-292b........ 0... ... 

Telecommunications Incentive Grants; 
Conn. Cen. Stat. SS H0=8N.. . cove vuswnvinsineeess 

Extended Day Kindergarten Grants; Conn. Gen. 
Stat, 10w OM, ost ssa s trie sonivs ov dis nit vat oie vis ainiv oe 

Summer School Incentive Grants; Conn. Gen. 
SEAL. CS 107A. cfs ve sod so nn idlivninte sn tin aiatiele 

Young Parents Program; Conn. Gen. Stat. § 
RE To por Ee SRP NIN To Pl SE PR a SIN OE RP UR HE 

Primary Mental Health Grants; Conn. Gen.Stat. 
§ J0~T00. icine vs ce Niky ton vis in ae re bee A 

Drop Out Prevention Grants; Conn. Gen. Stat.S$ 
B0=202 Fis i cs Cr tne rr Se Ye vr eae wise 

  

 



  

31. Child Nutrition State Matching Grants; Conn. 
Gen, Stab, '§ 10«215D. cu tative nvmmenitivione ens 

32. Priority School District Grants; Conn. Gen. 
Stat. §§ 10-266p through 10-266r..:. cunt ui 

33. State School Breakfast Grants; Conn. Gen. 
Stat. § 0-2 O0W. ve cine vit vss ssivnnsvsmoneivss evo   

III. ARGUMENT: JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANTS 
BECAUSE THE STATE HAS NOT ENGAGED IN CONDUCT WHICH VIOLATES 
THE CONSTITUTION AND BECAUSE THERE IS NO JUDICIAL REMEDY 
AVAILABLE TO THE PLAINT IPF. vot titssssnssnmeniacanissnevnnssnne 

  
A. JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANTS 

¥ BECAUSE THE CONDITIONS ABOUT WHICH THE PLAINTIFFS 
1 COMPLAIN ARE NOT THE PRODUCT OF STATE ACTION........... 

£ B. JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANTS 
| BECAUSE THE STATE HAS SATISFIED ANY AFFIRMATIVE 

OBLIGATION WHICH ARISES OUT OF THE STATE CONSTITUTION. .   
BECAUSE THE QUESTION OF HOW BEST TO ADDRESS THE 
CONDITIONS ABOUT WHICH THE PLAINTIFFS COMPLAIN IS NOT | 
JUSTICEABLE oy sc reir strain esisnnssinns sons vun | 

} C. JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANTS | 
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IV. CONCLUSION. sci ds adr i i ia sin sega Bo | 
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OPER I FTC ATION a st ei os so sr Be nie 5 etna a ain 

  

      
 



  

    

    

PART TWO - SUPPORTING MATERIAL 

Exhibit 1; Plaintiffs' Amended Responses to 

Defendants' First Set of Interrogatories, February 19, 
1991 (44 PAGES) cv vinersnsarisnnavsvnsn dines rnsin edness 

Exhibit 2; Plaintiffs' Objection to 
Interrogatories, September 20, 1990 (4 pages).......... 

Exhibit 3; Affidavit of.Gerald N. Tirozzi (2 
PAOES ) to sete t ttt s teers tates ete s esses stesso 

Exhibit 4; Affidavit of Robert Brewer (2 pages) 
with attachment (148 DBQOES) «ce ve. crv evnistnssstassmnennes 

Exhibit 5; Affidavit of Elliot Williams (2 pages) 
with four attachments (5, 6, 11 and 22 pages 
respectively). iii iii iii 

Exhibit 6; Affidavit of G. Donald Ferree, Jr. (2 

pages) with two attachments (2 and 9 pages 
respectively)... vihcnsnis airs tvs rrr ae eres ey 

COTE A fC BE A OT cd is os tins vir innis vs tin te aieies wis miwin a new in owe 

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PART ONE - MEMORANDUM OF LAW 
  

I. INTRODUCTION 

In the present case the plaintiffs complain about the 

concentration of minority (black and Hispanic), poor, and "at 

risk" (on AFDC, limited English proficiency, or a single parent 

family) children in the Hartford public schools, particularly in 

comparison to the other school districts which plaintiffs have 

chosen to include in their configuration of the Hartford 

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metropolitan area. ‘Plaintiffs have succinctly described the 

constitutional foundation for their complaint in Plaintiffs’ 

Amended Responses to Defendants' First Set of Interrogatories 

dated February 19, 1991, Exhibit 1. 

As plaintiffs have repeatedly maintained 
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 harm that flows 
from the present condition of racial and 
economic segregation that in fact 
deprives Hartford area school children 
of their right to equality of 
educational opportunity. 

  

  

  

  

1/ Geographically some of the towns which plaintiffs have 
included in their configuration of the Hartford metropolitan area 
are more distant from Hartford than other towns which they have 

excluded. 

  

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1d., pp. 1-2. (Emphasis added). 

In August of 1989 defendants moved to strike plaintiffs’ 

complaint. As with any motion to strike, the court was forced to 

accept the allegations of the plaintiffs' complaint, and only 

those allegations as true for the purposes of ruling on that 

motion. Based on the allegations of the complaint, the court 

found that there was a substantial dispute between the parties 

which should not be resolved on a motion to strike. For that 

reason the Court denied the motion. See Memorandum of Decision 

on the Defendants' Motion to Strike, May 18, 1990. 

In this motion for summary judgment the defendants seek 

judgment based upon three undisputed facts whish are not among 

the facts alleged in plaintiffs' complaint. These three facts 

are listed in the preceding index and discussed separately below. 

The undisputed truth of these facts has become evident through 

plaintiffs' discovery responses, especially Plaintiffs’ Amended 

Responses to Defendants' First Set of Interrogatories, Exhibit 1. 

The limited facts upon which the present motion for summary 

judgment is predicated allow the court to reach the legal issues 

which the court found itself unable to resolve on defendants’ 

  
  

 



  

    
  

    

motion to strike. While the plaintiffs and the defendants are in 

disagreement with regard to many of the allegations in 

plaintiffs' complaint, those disputed facts are not material to 

the legal issues which need to be resolved in order to rule on 

this motion for summary judgment. 

According to P.B. § 384 summary judgment "shall be rendered 

forthwith if the pleadings, affidavits, and any other proof 

submitted show that there is no genuine issue as to any material 

fact and that the moving party is entitled to judgment as a 

matter of law." Here, the simple and undisputed facts are that 

the conditions about which the plaintiffs are complaining are not 

of the state's making, that there is no readily identifiable 

method for addressing these complex conditions, and that, despite 

this difficulty, the general assembly has devised and implemented 

numerous measures designed to meet these problems. 2/ these 

simple facts compel the conclusion that the defendants are 

entitled to judgment as a matter of law. 

  

2/ The Supreme Court has said that "[i]n order to oppose 

successfully a motion for summary judgment, the opposing party 

must recite facts in accordance with Practice Book § 300 which 

contradict those offered by the moving party." McCall v. Pataky, 

160 Conn. 457, 460, 280 A.2d 146 (1971). This motion for summary 

judgment is based on plaintiffs' own statements and responses. 

  

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There is no basis in law for finding that the state has 

violated the constitution when the state has not caused the 

conditions about which the plaintiffs complain; concentration of 

minority, poor and "at risk" children in urban schools in 

Connecticut is not attributable to any action by the state, but 

to complex demographic and socioeconomic changes that have taken 

place over much of the last century. As the Connecticut Supreme 

Court has repeatedly held, it is the province of the legislative 

branch of government to decide how best to address such 

undesirable conditions, even those which might have an impact on 

education. The courts remain the guardians of the people in that 

they are responsible for protecting the people from oppressive 

and unconstitutional government conduct. But that is not the 

situation which is before the court in the present case. 

The authority and arguments which follow demonstrate how far 

the plaintiffs are asking the court to depart from the 

traditional role of the judiciary in our system of government. 

The invitation the plaintiffs present to the court in this case 

is one which, if accepted, will put the court in the position of 

having to wrestle with and resolve highly complex social and 

  
  
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economic issues which have no easy Or certain answers; it is a 

role which belongs to the legislature. 

    The court stands at the crossroads in this case. The 

|| problems that lie at the heart of this lawsuit -- poverty, 

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disparate resources, urban flight and decay -- are not limited to! 

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the field of education or to the city of Hartford. They are not 

the products of any identifiable actions by the State that can be 

halted or remedied by judicial decree. If the State can be held 

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i jnability to halt and to reverse massive social and economic 

I" trends, then the courts will find themselves permanently engaged             
in social engineering and policy making in an effort to remedy 

the myriad socioleconomic problems affecting people in this 

State. The correct path for the court to follow in this case is 

to affirm its traditional role of protecting the people from 

improper conduct by the government -- conduct which is plainly 

absent in this case. 

    

 



  

II. UNDISPUTED FACTS 

There are three basic facts which are undisputed and which 

provide the factual foundation necessary to address the legal     
issues presented by this motion for summary judgment. Each fact 

is set forth below together with a list of the material provided   
with this motion which substantiates the fact, with a discussion | 

of that supporting material, and with a brief explanation of the | 
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importance of that fact to the legal issues discussed later in 

this memorandum. 

A. FACT 1: The Defendants and Their Predecessors Have Not, By 
Affirmative Act, Assigned or Confined Children to the Hartford 
Public Schools Based Upon Their Race, National Origin, | 
Socioeconomic Status, Or Other Status Which Might Be Said To Put 
Children "At Risk" of Poor Educational Performance. 

  

Supporting Material: Affidavit of Gerald N. Tirozzi, Exhibit 3; 
Plaintiffs' Amended Responses to Defendants' First Set of 
Interrogatories, Exhibit 1, pp. 1-21. 

The affidavit of State Commissioner of Education Gerald N. | 

Tirozzi, which accompanies this motion for summary judgment as | 

Exhibit 3, attests to the fact that children in Connecticut are 

assigned to particular school districts in this state solely on 

the basis of their city or town of residence; not on the basis of 

  

    

 



  

    

    

their race, national origin, socioeconomic status, or "at risk" 

status. The affidavit also attests to the fact that school 

district lines in the Hartford metropolitan area and the state as 

a whole have not been materially altered for more than eighty 

years -- long before the time when the plaintiffs allege that the 

defendants first had knowledge of the conditions about which the 

plaintiffs complain. See Complaint, 99 50-66. 

It is evident from Commissioner Tirozzi's affidavit that no 

matter how the plaintiffs may wish to construct their legal 

theory in this case, this is a case where the plaintiffs charge 

"de facto", not "de jure", segregation.   
To obtain further confirmation of the "de facto” nature of 

the plaintiffs' segregation claims, defendants submitted 

interrogatories to the plaintiffs designed to give them the 

opportunity to identify "de jure" violations of the state 

constitution. In defendants' first set of interrogatories, under 

the heading "Past Violations-Affirmative Acts", Questions 1-4, 

Exhibit 1, pp. 1-21, plaintiffs were asked to identify all 

affirmative acts on the part of the defendants or their 

predecessors which violated the constitution. 

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Nowhere in their responses to these questions do the 

plaintiffs allege that the defendants or their predecessors 

assigned or confined children to the Hartford public schools 

based upon their race, national origin, socioeconomic status, or 

"at risk" status. The affirmative acts which the plaintiffs do     
refer to, do not support a claim that the problems about which 

the plaintiffs complain are products of "de jure" segregation. 

Consistent with the plaintiffs' repeatedly reaffirmed position 

that it is the "present condition of racial segregation in the 
    

region's schools that violates the Connecticut Constitution”, 

Exhibit 1, p. 1, (emphasis added), plaintiffs do not claim that 

the "affirmative acts" which they identify in response to 

defendants' interrogatories are unconstitutional nor do they ask   
that the defendants be enjoined from continuing to engage in 

3/ 
those affirmative acts. 

Commissioner Tirozzi's affidavit and plaintiffs' respcnses 

to defendants' interrogatories make the truth of the above stated. 

  

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3/ Plaintiffs explicitly concede that the state's actions in 
the area of housing are not unconstitutional. Exhibit 1, p. 18. 
Since plaintiffs do not seek to enjoin the state from engaging in. 
any of the other "affirmative acts" listed in plaintiffs’ 
response, it must be assumed that these acts are constitutional 

as well. 

      

   



  

    

  

    

fact evident. Recognition of the truth of this fact exposes the 

novelty and weakness of plaintiffs' legal claims and allows the 

court to rule on those claims short of a lengthy and unproductive 

trial. 

B. FACT 2: There Is Not Now, And Never Has Been, A Distinct 
Affirmative Act, Step, Or Plan Which, If Implemented, Would Have 
"Sufficiently” Addressed The Conditions About Which The 
Plaintiffs Complain. 

Supporting Material: Plaintiffs' Amended Responses to Defendants 
First Set of Interrogatories, Exhibit 1, pp. 22-33; Plaintiffs’ 
Objection to Interrogatories, Exhibit 2. 

  

In paragraph 70 of the complaint plaintiffs aver that the 

defendants have failed to take "steps sufficient to eliminate 
  

[the] educational inequities" about which the plaintiffs 

complain. (Emphasis added.) The logical question which this 

allegation poses for both the defendants and the court is; "What 

are the sufficient steps which the defendants were obliged to 

take that they did not take?". Two sections of defendants' first] 

set of interrogatories were designed to elicit this information 

from the plaintiffs. 

In the second section of defendants' first set of 

interrogatories, entitled "Past Violations: Omissions”, Questions 

5-7, Exhibit 1, pp. 22-32, defendants presented plaintiffs with 

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questions directly addressing plaintiffs' claim that the 

defendants failed to satisfy some affirmative obligation under 

the constitution; i.e., an obligation to do something as opposed   
| to an obligation not to do something. Through these questions   defendants asked the plaintiffs to identify specifically what it 

was the defendants were required to do but did not do in response; 

to the "conditions" about which plaintiffs complain. Flaintiffts 

have effectively declined to answer these questions saying 

"plaintiffs are not required to specify which methods would have 

cured the constitutional violation". Exhibit 1, pp. 28-289. 

Plaintiffs list various proposals and suggestions for addressing   
the problems which, in one or more respects, were not adopted by 

the state, but they qualify this portion of their answer by 

saying; 

Plaintiffs will not necessarily claim 
that if implemented, the specific 
programs and policies offered in such 

reports and recommendations would have 

been sufficient to address the 
constitutional violation. Neither will | 

plaintiffs necessarily claim that any | 

: one particular recommendation was 

i required by the State Constitution. 

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Exhibit 1, pp. 23-24. The only conclusion which can be drawn 

from plaintiffs' answers to defendants' interrogatories is that 

there is not now, nor has there ever been, a distinct affirmative 

act, step or plan which the defendants were constitutionally 

obliged to take or act on. 

The third section of defendants' first set of 

interrogatories attempts to reach the same issue as the second 

section but from a slightly different perspective. Rather than 

ask the plaintiffs to identify the specific steps which the 

defendants should have taken but did not take, this section, 

which is entitled "Current or Ongoing Violations", Questions 8-10 

Exhibit 1, pp. 32-33 and Exhibit 2, asks the plaintiffs to 

identify the specific objectives which should have been 

accomplished or achieved if the defendants had taken the kind of 

steps which the plaintiffs would deem "sufficient" to address the 

problems. Since the plaintiffs claim is that the "conditions” 

which exist in the Hartford metropolitan area violate the 

constitution, this third section of defendants' interrogatories 

asks the plaintiffs to identify what the "conditions" should be 

in order for there not to be a "violation" of the constitution. 

The logical premise behind this set of questions is that if the 

  
  

  
 



  

    

    

current "conditions" violate the constitution they must do so 

because they differ from what the "conditions" would be if there 

was no violation of the Constitution. Unfortunately the 

plaintiffs have refused to respond to these questions and, 

instead, have objected to them as being somehow improper. See 

Exhibit 2. 

The plaintiffs' refusal to answer the questions in the third   section of defendants' first set of interrogatories and thereby 

identify the "conditions" as they should exist in order to 

comport with the constitution, and their failure to respond to 

the questions in the second section by identifying the specific | 

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to change the "conditions" from those which allegedly violate the 

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affirmative steps which the defendants should have taken in order 

constitution to those which do not, exposes an important fact 

which 'is of critical significance to this case. As stated above, 

the fact is that there is not now, nor has there ever been, a 

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clear solution to the complex problems faced by our urban schools 

and communities, including the problems about which the 

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plaintiffs complain here. 

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Since the essence of the plaintiffs' case is their claim 

that the defendants have failed to satisfy a clear affirmative 

obligation imposed upon the state by the constitution, the 

plaintiffs' inability to identify what it was that the defendants 

should have done or what it is the defendants should do to 

satisfy that obligation, is important in at least two respects. 

The absence of a clear solution to the problems about which the 

plaintiffs complain is relevant to the question of the existence 

of a judicially cognizable legal obligation and to the question 

of the defendants' alleged failure to meet such a legal 

obligation. Once again the truth of the undisputed fact set 

forth above exposes the plaintiffs' novel legal claims and 

provides the court with the opportunity to rule on those claims 

short of a lengthy and unproductive trial. 

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Cc. FACT 3: The General Assembly Has Adopted And the Defendants 

Have Implemented Legislation Designed To Address The Conditions 
About Which The Plaintiffs Complain. 

Supporting Material: Title 10 of the Connecticut General 

Statutes including, but not limited to, §§ 10-140, 10-16m, 

10-17g, 10-74b, 10-74c, 10-74d, 10-76d, 10-76g, 10-145a (b), 

10-155dd, 10-158a, 10-202f, 10-215b, 10-226a through 10-226g, 

10-257b, 10-257c, 10-257f, 10-261(a)(2), 10-262f through 

10-262i,, 10-265a through 10-265d, 10-266j, 10-266m, 10-266p 

through 10-266r, 10-266w, 10-282 through 10-292b; May Spec. Sess. 

P.A. 86-), 88 2, 3,4, 5, 6, 15,:19, 33,°49=52 (repealed): P.A. 

87-2, § 11 (repealed); Conn. Gen. Stat. §§ 10-262c through 

10-262e (repealed); Affidavit of Robert Brewer with Attachment, 

Exhibit 4; Affidavit of Elliot Williams with Attachments, Exhibit 

5: Affidavit of G. Donald Ferree, Jr. with Attachments, Exhibit 

6. 

  

The present case is not one in which the courts are called 

upon to protect a minority from oppression by the majority. The 

people of this state, through the actions of the general 

assembly, have demonstrated exemplary concerns for the special   
needs of the children in our urban areas who are largely from 

minority groups and a commitment to having a society in which 

people of all races and nationalities are fully welcomed. A 

public opinion survey conducted at the request of the Governor's 

Commission on Quality and Integrated Education shows that the 

general public in Connecticut agrees that "improving the racial 

and cultural mix in Connecticut schools would enhance the quality 

of education in the state and have a long-term positive impact on 

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our multi-ethnic society". Exhibit 6, "Overview of Survey 

Findings", p. 1. The willingness of the general public to 

support efforts to obtain these benefits is evidenced by the 

survey finding that "[a]ny particular plan for improving racial 

balance will NOT encounter opposition in itself, because balance 

(or at least a more diverse mix) is seen as good." 1Id., p. 2. 

The way in which these public attitudes are reflected in   legislation is described in some detail later in this memorandum   
and on pages 39-46 of defendants' August 21, 1989, Memorandum in 

| Support of Defendants' Motion to Strike. 

When the defendants outlined this legislation in their 

August 21, 1989 Memorandum in Support of Defendants' Motion to 

Strike, plaintiffs objected, claiming that these points had "no 

, place in a motion to strike" and that the defendants had failed 

to address "the precise impact of these various programs on 

'{ Hartford-area school districts." See Plaintiffs Memorandum of   | Law in Opposition to Respondents' Motion to Strike, dated 

ii November 19, 1989, at page 31. Whatever merit there may have 

been to plaintiffs' objections when these legislative initiatives | 

were called to the court's attention in support of the 

defendants' motion to strike, the objections are not valid with 

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respect to the present motion for summary judgment. If the 

impact of these legislative efforts on Hartford-area schools was 

not evident when the court took up defendants' motion to strike, 

Exhibits 4 and 5 now make that impact evident. 

Exhibits 4 and 5 demonstrate that the state has made a 

conscious and concerted effort to direct state resources to the 

Hartford public schools because of the special difficulties which 

that school district faces in comparison to the suburban 

districts, and that the State has set a firm course toward 

improved racial, ethnic and cultural diversity in our schools. 

Exhibit 4 is an affidavit by Robert Brewer, the Bureau Chief 

for the Bureau of Grants Processing of the State Department of 

Education. Through this affidavit the court is provided with   
detailed information and analyses regarding the impact on | 

Hartford and the districts which the plaintiffs have included in 

their configuration of the Hartford area of the major Senleistive) 

programs by which the state provides financial assistance to 

local school districts. What follows is an explanatory index to 

the 148 page fiscal analysis which is attached to the Brewer 

affidavit. The page numbers listed with each item heading below 

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refer to the page numbers in the attachment to the Brewer 

affidavit where the information which is digested can be found. 

When appropriate, the statutory citation relating to the item of 

information or grant program analyzed is set out in the item 

heading as well. The inescapable conclusion which arises from 

the analysis which is digested in the next 26 pages of this 

memorandum is that the state has directed more than twice as many 

state dollars per pupil toward the education of Hartford children 

than it has toward the education of children being served by the 

suburban school district. 

1. Average Daily Membership (ADM); Conn. Gen. Stat. § 
10-261(a) (2); Pages 3-4. 

The charts on pages 3 and 4 show the Average Daily 

Membership (ADM) for Hartford, each of the identified suburbs, 

and the area as a whole for each school year from 1977-1978 

4/ 
through 1989-1990. It is noteworthy that throughout this time 

period the suburban districts served approximately three times as, 

  

4/ The 1989-1990 school year is the last school year for which 

the data presented in the attachment to the Brewer affidavit is 

available. 

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many children as Hartford. Keeping the three to one ratio in 

mind is helpful in understanding the significance of some of the 

comparisons set out in subsequent pages of the attachment. 

2. Special Education, State Supported Percentages; Conn. Gen. 

Stat. § 10-76g; Page 5. 

Each school district in the State is reimbursed for the cost 

of providing special education to disabled children in that 

school district at a rate which is determined by statute. The 

chart on page 5 shows the rates of reimbursement for Hartford, 

the identified suburbs, and a combined suburban rate, for the 

school years from 1983-1984 through 1989-1990. The chart shows 

that Hartford's reimbursement rate has consistently been 

approximately 20 percentage points higher than the reimbursement | 

rate for the combined suburbs. In other words, while the 

reimbursement rate for the combined suburbs has ranged between 44 

and 46 percent, the rate for Hartford has ranged between 64 and   69 percent. 

3. Transportation, State Supported Percentages; Conn. Gen. 

Stat. § 10-266m; Page 6. 

As in the case of the special education costs, local school 

districts are reimbursed by the state for a percentage of the 

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cost of transporting their children to school and that percentage 

is determined by statute. The chart on page 6 shows the 

reimbursement rate for Hartford, the suburbs, and a combined 

suburban rate for the years from 1983-1984 through 1989-1990. 

Again Hartford's reimbursement rate is consistently more than 20 

percentage points higher than the reimbursement rate for the 

combined suburbs. 

4. School Construction, State Supported Percentages; Conn. Gen. 
Stat. § 10-285a; Page 7. 

The state's share of the cost of a local school building 

projects, as defined in Conn. Gen. Stat. § 10-282(c), is 

determined by statute. The rate of state reimbursement for the   cost of such projects is obviously a significant consideration 

| 

for local officials who are trying to decide whether to undertake. 

such a project. While the chart on page 7 does not indicate how 

much state money was spent on school building projects in 

  Hartford as compared to the suburban districts, it does 

illustrate the state's commitment to provide substantially more 

d
s
s
 
s
a
r
e
 

state assistance for school building projects in Hartford than 

for similar projects undertaken by the suburban districts. The 

chart shows that the reimbursement rate for Hartford ranged from 

=10=   

 



  

  

  

  

  

75 to 79 percent from 1983-1984 through 1989-1990, while the rate 

of reimbursement for the combined suburbs ranged from 55 to 57 

percent. Further information regarding the actual amount of 

state money provided to school districts in the Hartford area for 

school building projects during this same time period is found on 

pages 100-107 of the attachment to the Brewer affidavit. Also 

see Item 24, infra. 

5. Total State Aid Per Pupil; Pages 8-14. 

On pages 8 though 14 of the attachment to the Brewer 

affidavit the court will find a year by year analysis of the 

total state aid provided to the school districts in the Hartford 

area from 1983-1984 through 1989-1990. Only two forms of state 

assistance to local school districts are omitted from the figures 

set forth in those charts. They are school building project 

money and adult education money. School building project money 

is excluded because of the possibility that wide variations in 

the amount of money received by particular school districts in 

any one year period could limit the reliability of comparisons 

among districts. Adult education money is excluded on the 

assumption that these monies are of no benefit to the elementary 

20 

  

  

 



  

and secondary school students who are the focus of this 

litigation. Special Act and Appropriations Act grants to the 

districts are included in the figures listed for total state aid 

although those grants are not specifically analyzed elsewhere in 

5/ 
the Brewer affidavit. 

The total state aid is reflected on pages 8 through 14 in 

| three ways: (1) actual dollars, (2) dollars per pupil, and (3) as   
a percentage of the overall budget of the particular school 

district. Comparing the total state aid per pupil for Hartford 

with the total state aid per pupil for the combined suburbs shows;   
: that Hartford has received between 2.3 and 2.8 times as much 

| state aid per pupil as the combined suburbs for the school years 

| 1983-1984 through 1989-1990. A comparison of state aid as a 

percentage of Hartford's overall school district budget with 

state aid as a percentage of the overall school budgets for the 

combined suburbs also confirms that the state's contribution   
| toward the total cost of educating the children in Hartford has 

  

5/ This explains the discrepancy between the sum of the grants 

which are analyzed in the attachment to the Brewer affidavit and 

the total state aid reported here. : 

  -2i-   

    
 



  

    

  
  

consistently been more than twice the state's contribution toward 

the cost of educating children in the combined suburbs. 

6. Education Evaluation and Remedial Assistance Grants for 

Public Schools (EERA, Public); Conn. Gen. Stat. § 10-140; Pages 

15-21. 

Through the EERA program the state provides grant assistance 

to help school districts improve the educational perfcrmance of 

children in the district who are deficient in basic skills. 

Pages 15-21 show, for each school year from 1983-1984 through 

1989-1990, the gross amount of EERA funds awarded to each 

6/ 
district in the Hartford area, what this represents in dollars   
per pupil, and the percentage of total EERA money shared with 

each district in the Hartford area. 

The figures show that Hartford has received between six (6) | 

| 
and nine (9) times as many EERA dollars per pupil as the combined 

suburbs. They also show that Hartford has received between 68 

and 78 percent of the EERA money distributed in the region   
} 

| 
| 

  

| 
| 

| 6/ These figures do not include the 9 percent set aside called 

for by Conn. Gen. Stat. § 10-14o(b)(2) or the EERA money which is, 

used to serve students in non-public schools. See Items 7 and 

23, infra. 

33 

 



  

    

    

despite the fact that it serves a significantly smaller student 

population than the combined suburbs. See Item 1, supra. 

7. Education Evaluation and Remedial Assistance Grants for 
Non-Public Schools (EERA, Non-public); Conn. Gen. Stat. § 
10-140; Pages 22-28. 

EERA grant money to serve children in non-public schools is 

set out separately because the present case focuses only on the 

rights of public school children. It is, however, notable that 

Hartford receives significantly more money to serve the special 

needs of its non-public school students than the suburban 

districts. 

8. Bilingual Education Grants; Conn. Gen. Stat. § 10-17g; Pages 
29-35. 

The information provided regarding the state's bilingual 

education grant program shows that, except for the 1983-1984 

school year, Hartford has been the only school district in the 

area to receive grant money under this program. 

9. Interdistrict Cooperation Grants; Conn. Gen. Stat. § 

10-74d; Pages 36-39. 

In 1985 the General Assembly adopted legislation 

establishing an interdistrict cooperative grant program. These 

grants are designed to link school districts in a way which 

-33s 

  

  
 



  

    

    

allows children of different racial, ethnic, and socioeconomic 

backgrounds to interrelate. The information on pages 36-39 shows 

that the school districts in the Hartford area began 

participating in this grant program during the 1988-89 school 

year, with Hartford and Newington being the first grant 

recipients. The data for the 1989-90 school year shows a 

significantly deepening interest in these interdistrict 

cooperation grants, with six districts in the Hartford area 

receiving grant money and a six-fold increase in the amount of 

money spent on these programs in that year. 

Further information regarding this grant program accompanies 

the Williams Affidavit, Exhibit 5. 

10. Agency Placement Grants; Conn. Gen. Stat. § 10-76d(e); 

Pages 40-45. 

There are a number of situations in which agencies of the 

state, other than school districts, place children in various 

kinds of facilities including treatment facilities, group homes, 

and foster homes. Often these facilities are not located in the 

school district where the child would otherwise be attending 

school but that district continues to be responsible for the 

child's education. If the cost of educating a child placed by a 

  
  

 



  

state agency in a facility outside the district in which the 

child would normally be receiving an education is more than two 

and a half times the average per pupil cost of educating children 

in that district for the previous fiscal year, the district is 

entitled to be reimbursed by the state for that excess cost.     Because this grant program is dependent on so many variables 

. including the number of students from the district placed outside 

the district, the cost of the educational programs being provided] 

to those students at the site of the placement, and the school 

| district's average per pupil cost for the preceding year, it is 

difficult to draw any meaningful comparisons between Hartford and 

the suburban districts with regard to the monies received under 

this grant program. For this reason the amount of state money   
distributed in the Hartford region under this grant program is i 

set forth on pages 40-45 for informational purposes only. 

11. Professional Development Grants; Conn. Gen. Stat. § 

10-155dd; Pages 46-49. 

Beginning with the 1986-1987 school year the state has 

awarded grants to local school districts for professional 

development activities. The charts on pages 46-49 show that 
| 

Hartford has received approximately fifty percent more | 

| 
|     

 



  

Professional Development Grant money per pupil than the combined 

suburbs each year the grants have been offered. 

12. Teacher Evaluation Grants; May Spec. Sess. P.A. 86-1, § 15 

(repealed); Pages 50-51. 

As part of the Education Enhancement Act which was adopted   by the State in 1986, the legislature set up a grant program to   
assist local school districts in the development of local teacher 

| evaluation plans. These grants were distributed over a two year 

period. School districts that received cranks to set up a local 

teacher evaluation plan during the 1987-1988 school year did not 

receive a grant during the 1988-1989 school year and vice-versa. 

| By combining the grants which were received by the districts in 

the Hartford area during this two year period and by making the   
justified assumption that the number of students being served by | 

t 

the districts did not vary significantly during this two (2) year] 

period (see pages 3-4 of the attachment to the Brewer de 

it can be reasonably deduced that Hartford received better than | 

one and one half times as much grant money per pupil under this | 

| program as the combined suburbs. 

13. Career Incentive Grants; May Spec. Sess. P.A. 86-1, § 19 

(repealed); Pages 52-53. 

df=       
| | 
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Along with the Teacher Evaluation Grant program described 

above, the Education Enhancement Act also established a grant 

program to encourage school districts to develop local career 

incentive plans for teachers. Again, the grant program spanned 

the 1987-1988 and 1988-1989 school years, with those districts   
who received grant money in 1987-1988 receiving none in 1988-1989 

and vice versa. By combining the grants which were received Ly   
the districts in the Hartford area during that two year period 

and by making the justified assumption that the number of 

, students being served by the districts did not vary significantly 

| during this two (2) year period (see pages 3-4 of the attachment 

to the Brewer affidavit), it can be reasonably concluded that   Hartford received approximately two and a half times as much 

grant money per pupil as the combined suburbs under this grant 

program. 

'! 14. Teacher Evaluation Implementation Grant; P.A. 87-2, § 11 

| (repealed); Page 54. 

During the 1988-1989 school year the state offered a grant 

to school districts to assist in the implementation, assessment | 

and improvement of teacher evaluation programs required pursuant 

to Conn. Gen. Stat. § 10-151b. Hartford received more than four 

    “2%   
  
 



  

(4) times as much grant money per pupil as the combined suburbs 

under this grant program. 

15. Combined Professional Development Grants; Items 11-14 

above; Pages 55-57. 

on pages 55-57 the grant programs for professional     ' development described in items 11 through 14 above are combined 

to give a complete picture of the state's direct contribution to 

professional development activities in the Hartford area as part 

of the initiative that lasted from 1986-1987 through 1988-1989. 

These pages show that, Hartford received 1.6 times as much money 

per pupil as the combined suburbs in 1986-1987, 2.3 times as much 

money in 1987-1988, and 2.4 times as much money in 1988-1989.   16. Minimum Salary Grants; May Spec. Sess. P.A 86.1, §2 

(repealed); Pages 58-61. 

In addition to grants which encouraged various forms of 

professional development, the Education Enhancement Act also 

contained grants designed to encourage the best and the brightest 

people to join and remain in the teaching profession. These 

grants did a great deal to improve the salaries of teachers. 

One of the first means which the legislature chose to 

improve teacher salaries was to provide districts which adjusted 

  -23 

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their minimum salary to a specified level with a grant to fund 

the attendant cost. Of course the amount which each district 

received was dependent on the number of people on the payroll who 

were being paid below the specified minimum salary and the 

difference between their salaries and the minimum. For this     reason the grant per pupil under this grant program for each of 

© the school districts in the Hartford area varied widely. 

i. Overall, Hartford received approximately as much money per pupil 

Vf under this grant program as the combined suburbs during the three 

year period in which this grant program was in effect. 

.. 17. Salary Aid Grant; May Spec. Sess. P.A. 86-1, § 3 
i (repealed); Pages 61-63. 

In addition to providing school districts with grant money | 
{ 

to assist them in establishing a standard minimum salary for 

teachers, the Education Enhancement Act also provided grant money 

.. to allow the districts to increase the salaries of experienced 

teachers who were already being paid more than the minimum   
salary. In 1986-1987 Hartford received 1.73 times as much salary 

aid grant money per pupil as the combined suburbs. In 1587-1988 

| Hartford received 1.64 times as much. In 1988-1989 Hartford 

received 1.66 times as much.     he 1 19   
  
 



  

18. General Education Aid; May Spec. Sess. P.A. 86-1, §§ 4, 6 
(repealed); Pages 64-66. 

The Education Enhancement Act also included a general 

education aid grant to cities and towns participating in the 

other grant programs offered by the Act. No restrictions were   
placed on how this money could be used. For the 1986-1987 school   
year Hartford received a general education aid grant under both 

section 4 and section 6 of the Education Enhancement Act. The 

net result is that Hartford received 4.7 times more general 

education aid money per pupil than the combined suburbs. In 

1987-1988 and 1988-1989 Hartford received an amount per pupil 

which was just slightly higher than that received by the combined 

suburbs.   
19. Teacher Pupil Ratio Grants; May Spec. Sess. § 86-1, § 5, | 

(repealed); Pages 67-69. 

The Education Enhancement Act also provided grant funds to 

| particular school districts which the legislature decided were in 

| need of assistance in improving the teacher/pupil ratio. 

. Hartford was identified as one of the districts in need of such 

assistance. None of the suburban districts were included on the ! 

list of districts eligible for this grant money. During the 

three year period beginning in 1986-1987, Hartford received six 

      

 



  

      

    

million dollars to fund up to 240 new staff positions. Again, 

the suburban districts received nothing under this program. 

20. Combined Salary Aid; Items 16-19 above; Pages 70-72. 

On pages 70-72 the net effect of the Education Enhancement 

Act grants focused on improving teacher salaries, providing 

general education aid, and improving teacher/student ratios is 

summarized. During the 1986-1987 school year Hartford received 

3.73 times as much aid per pupil as the combined suburbs. During! 

the 1987-1988 school year Hartford received 1.84 times as much. 

During the 1988-1989 school year Hartford received 1.88 times as 

much. 

21. Education Equalization Grants; Conn. Gen.. Stat. §§ 10-262c 

through 10-262e (repealed) and Conn. Gen. Stat. §§ 10-262f 

through 10-262i; Pages 73-79. 

The state's education equalization grants are, by far, the 

most significant way in which state aid is distributed to local 

school districts. This is the largest state grant program in 

terms of the dollars distributed to local school districts, with 

the money provided under this grant program going to support the 

overall activities of the local school districts. 

-31% 

| 

  
1 
1 

| 
| 

| 

  
 



  

  

  

  
The first education equalization grant program in 

Connecticut was adopted in response to the decision of the 

Supreme Court in Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 
  

(1977) (Horton I). The formula which was developed by the 
  

general assembly to distribute this state aid was called the 

Guaranteed Tax Base formula or GTB. Prior to the adoption of 

this method of providing general state assistance to local school 

districts, state dollars were distributed on a flat per pupil 

basis; i.e., every district received the same number of dollars 

per pupil. 

The GTB was in place through the 1988-1989 school year.   With the close of the special grant programs which were part of 

the Education Enhancement Act, the general assembly developed a | 
| 

new education equalization grant program. This new formula was 

designed to continue the development that had been spawned by the 

Education Enhancement Act and to maintain the principles which 

7/ 
The new formula is called the 

| 
| 
| 

were the foundation of the GTB. | 

Education Cost Sharing formula or ECS. The 1989-1990 school year 

  

1/ By then the constitutionality of the bulk of the GTB had 
been confirmed by the State Supreme Court. Horton v. Meskill, 

195 Conn..24, 486 A.2d 1099 (1985) (Horton 111). 
  

  

32 

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was the first year in which school districts received money under 

the ECS. 

A comparison of the grant per pupil for Hartford and the 

grant per pupil for the combined suburbs under the state's 

education equalization grant programs from 1983-1984 through 

1989-1990 shows the following: 

1983-1984; Hartford received 3.05 times as much grant money 

per pupil as the combined suburbs. 

1984-1985; Hartford received 2.82 times as much grant money 

per pupil as the combined suburbs.   1985-1986; Hartford received 2.31 times as much grant money 

per pupil as the combined suburbs. 

1986-1987; Hartford received 2.04 times as much grant money 

per pupil as the combined suburbs. &’ 

  

8/ One of the components of the GTB formula which affected the 

amount of GTB money which a school district received was a 

measurement of the degree to which the town supporting that 

district maintained or failed to maintain its own tax effort in 

support of education. In effect, districts were rewarded and, to 

some degree, punished for increases and decreases in their tax | 

effort with increases or decreases in their GTB grant money in a | 

subsequent grant year. This caused fluctuations in the amount of 

GTB money which a district was entitled to receive. The tax | 

effort component is not part of the ECS formula, so fluctuations | 

like those seen during the GTB years are not as likely to occur. | 
| 

| 
-33~- | 

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1987-1988; Hartford received 2.74 times as much grant money 

per pupil as the combined suburbs. 

1988-1989; Hartford received 2.56 times as much grant money 

per pupil as the combined suburbs. 

1989-1990; Hartford received 2.48 times as much grant money 

per pupil as the combined suburbs.     
22. Vocational Education Equipment Grants; Conn. Gen. Stat. § 

'' 10-265a et. seq.; Pages 80-92. 

The state offers a fairly limited vocational education 

|! equipment grant program through which districts can apply for 

grants to purchase vocational equipment. Grants received by the 

Hartford area schools under this program since 1983-1984 are set   
out on pages 80-92. Since the receipt of this grant money is 

dependent on whether the school district chooses to apply for a 

grant in the year in question, the quality of the grant 

application, and other factors which are beyond scope of the 

  material contained in the Brewer affidavit, it is difficult to 

draw any meaningful comparisons between Hartford and the suburbs | 

|. with regard to this grant program. The data provided on these | 

| pages is offered only for informational purposes. 

-3d~       

 



  

23. Education Evaluation and Remedial Assistance - Project 
Concern Grant; Conn. Gen. Stat. §§ 10-14o0(b)(2), 10-266j; Pages 

93-99. 

Nine per cent of the money appropriated by the general 

assembly for the Education Evaluation and Remedial Assistance   (EERA) grant program is, by law, set aside to support 

intercommunity programs authorized by Conn. Gen. Stat. § 10-2667.   
Project Concern, which is a program by which Hartford children 

are provided with transportation that allows them to attend   
i school in participating suburban school districts, is supported | 

| by this grant money. The charts on pages 93-99 set forth the 

amount of money which Hartford has received under EERA 

X specifically to support Project Concern. 9/ rhe suburban districts!   received no money under this part of the EERA grant program. 

24. School Building Project Grants; Conn. Gen. Stat. §§ 10-282 

through 10-292b; Pages 100-107. 

The best way to assess the state's commitment to supporting 

particular school districts in their endeavors to provide 

adequate school facilities for their students is to consider the 

| state's willingness to support projects which the local officials 

  

9/ This EERA money is provided to Hartford in addition to the 

regular EERA money listed on pages 15-28 of the attachment to the 

Brewer affidavit.   
-35- 

    
 



  

    

  

  

may have seen fit to propose. Thus the percent of the cost of 

proposed building projects which the state has been willing to 

bear, as set forth on page 7 of the attachment to the Brewer 

affidavit (see Item 2, supra), is a better barometer of the 

state's commitment to the Hartford schools than the figures which 

appear on pages 100-107. 

Comparing the amount of school building project money 

received by the school districts in the Hartford area during any 

one year period or even comparing the amount received over a 

seven year period, as is done on page 107 of the attachment to 

the Brewer affidavit, can be misleading. Such comparisons can be 

misleading because sporadic large scale building projects can 

distort the figures in any given time period and variations over 

time in the cost of projects which are otherwise identical make 

longer longitudinal comparisons unreliable due to nfistion and 

other market conditions. A good example of how sporadic large 

scale building projects can affect the reliability of comparisons 

of this type can be found on pages 100-107. Rocky Hill stands 

out in the tables on those pages as receiving dramatically more 

dollars per pupil than any other district in the area. This is 

because Rocky Hill was, during the time period covered by the 

=36- 

  
  

 



  

  

  

  

  

charts set out on these pages, involved in a major building 

construction project. The size of this project in relation to 

its relatively small student population exaggerates the 

significance of Rocky Hill's grant per pupil figures. 

In any event, it appears from the chart on page 107 that, if 

any comparison at all can be drawn based upon the information on 

pages 100-106, that comparison would cause one to surmise that 

Hartford received slightly more state school building project 

dollars per pupil than the combined suburbs over the seven year 

period from 1983-1984 through 1989-1990. Furthermore, it appears 

that Hartford's share of the state school building dollars which 

were distributed in the Hartford area during this seven year 

period roughly reflects Hartford's proportion of the student 

population of the area as a whole. (See pg. 3-4 of the 

attachment to the Brewer affidavit.) 

25. Telecommunications Incentive Grants; Conn. Gen. Stat. § 
10-4h; Pages 108-111 

The figures regarding this small grant program speak for 

themselves and do not lend themselves to any significant 

comparisons between Hartford and the suburbs. 

-3)= 

  
  
 



  

    

    

26. Extended Day Kindergarten Grants; Conn. Gen. Stat. § 

10-16m; Pages 112-114 

Since the 1987-1988 school year, the state has offered a 

grant program to promote the establishment, expansion and 

evaluation of extended day kindergartens. This is a competitive 

grant program. Two of the factors to be considered in awarding 

these competitive grants are "the relative educational need of 

the school district" and "the relative wealth of the school 

district." Conn. Gen. Stat. § 10-16m(b). Hartford is the only 

district in the area which has received a grant under this   program in each of the three years in which grants have been 

available, and Hartford has received between 49 and 61 percent of! 

the total state money distributed in the area under this grant | 

program. On a per pupil basis, Hartford received between 2.6 and, 

4 times as much money under this program as the combined suburbs. 

27. Summer School Incentive Grants; Conn. Gen. Stat. § 10-74b; | 

Pages 115-119. i 

Since the 1985-1986 school year the state has offered a | 

grant program to support the expansion of summer school programs | 

for children who are in need of remedial instruction. This 1s a 

competitive grant program. Two of the factors to be considered 

by the State Department of Education when deciding which school 

~38«   

 



  

    

  

  

districts will receive grants under this program are "the 

demonstrated need for the program in the school district" and 

"the relative wealth of the school district". Conn. Gen. Stat. § 

10-74b(b). 

Again, Hartford is the only district in the area which has 

received a grant under this program during each year in which the 

program has been in place. Hartford's share of the total monies 

distributed in the area under this grant program has ranged from 

53 to 100 percent. Hartford alone received grant money under 

this program during the 1985-1986 school year. Thereafter 

Hartford received between three and four times as many dollars 

per pupil as the combined suburbs. 

28. Young Parents Program; Conn. Gen. Stat. § 10-74c; Pages 
120-124. 

The state has adopted a grant program specifically designed 

to assist in the establishment and maintenance of education 

programs with day care components for students who are parents. 

Hartford has received grant money under this program every year 

since 1985-1986. Except for 1986-1987 and 1989-1990, Hartford 

was the only district in the area which received a grant under 

this grant program. In 1986-1987 Hartford was joined by Canton 

=39- 

  
  

 



  

    

    | 

| 

| 

and in 1989-1990 Hartford was joined by Vernon. No other 

districts in the area received money under this grant program. 

29. Primary Mental Health Grants; Conn. Gen. Stat. § 10-76u; 
Pages 125-128. 

Between 1986-1987 and 1989-1990 only $21,000 in School Based 

Primary Mental Health grant money was distributed in the Hartford 

area. South Windsor received all of this money. 

30. Drop Out Prevention Grants; Conn. Gen. Stat. § 10-202f; 

Pages 129-131. 

Following up on an initiative which was part of the 

Education Enhancement Act (May Spec. Sess. P.A. 86-1, §§ 49-52), 

the legislature created a grant program, beginning with the 

1987-1988 school year, which was designed to assist in the 

reduction of the drop out rate in those districts having the 

greatest problems in this area. Hartford and East Hartford were 

the only districts in the Hartford area to receive grants under 

this program in 1987-1988, with Hartford receiving almost 79 

percent of the grant money distributed in the area. Hartford, 

East Hartford, and Vernon received grants under the program in 

1988-1989, with Hartford receiving almost 77 percent of the grant 

money distributed in the area. 

-40<   
 



  

    

    

In 1989-1990 the drop out prevention grant program was 

consolidated with the Priority School District Grant Program. 

See Item 32 infra, pages 139-144 of the attachment to the Brewer 

affidavit, and Conn. Gen. Stat. § 10-266 (9g). 

31. Child Nutrition State Matching Grant; Conn. Gen. Stat. § 
10-215b; Pages 132-138. 

The state participates in federal feeding programs for 

school children. State matching money is provided to support 

these programs under Conn. Gen. Stat. § 10-215b. During the 
  

i { 
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years from 1983-1984 through 1989-1990 the state provided between | 

1.45 and 1.86 times as many state matching dollars per pupil to 

Hartford as it did to the combined suburbs. Hartford received 

between 35 and 40 per cent of the state matching money which went 

into the area as a whole. See Item 33, infra and pages 145-148 

of the attachment to the Brewer Affidavit for statistics 

regarding the state's own school breakfast program. 

32. Priority School District Grants; Conn. Gen. Stats. §§ 

10-266p through 10-266r; Pages 139-144. 

Beginning with the 1984-1985 school year the state embarked 

upon a significant and innovative grant program specifically 

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designed to assist not less than ten nor more than twenty five of, 

-41- 

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the school districts "with the greatest demonstrated academic 

need to improve student achievement and enhance educational 

opportunity". Hartford has always been designated as one of the 

districts to receive grant money under this program. Hartford 

was the only district in the area to receive a grant under this     | program in 1984-1985, 1985-1986, and 1986-1987. Hartford was 

joined by Bloomfield in 1987-1988 and by both Bloomfield and East 

Hartford in 1988-1989 and 1989-1990. Hartford's grant money 

under this program increased by 6 per cent in 1985-1986, 6.7 

percent in 1986-1987, and 5 percent in 1987-1988. Hartford's 

1988-1989 grant was less than 1 percent smaller than its 

1987-1988 grant, but its grant for 1989-1990 was 19 percent 

higher than its 1988-1989 grant. Of course, Hartford's grant per   
pupil under this program has always been dramatically higher than 

i 

¥ the grant per pupil for the combined suburbs. | 

33. State School Breakfast Grants; Conn. Gen. Stat. § 10-266w; 

Pages 145-148. 

As a supplement to the federal school nutrition programs,   
the state has instituted its own grant program to assist 

districts in providing children who are in need with an adequate 

breakfast. The program is designed to assist school districts 

| «dm     
  
 



  

  

which have schools defined as severe need schools" under the 

laws relating to federal school nutrition programs. The state's 

  
school breakfast program has its origins in the Education       Enhancement Act, May Spec. Sess. P.A. 86-1, § 33. Only Hartford 

and Manchester received grant money under this program in 

1986-1987. In 1987-1988, 1988-1989, and 1989-1990 Hartford and         
Manchester were joined by East Hartford. No other districts in 

the area have received money under this program. Hartford's 

grant money has increased steadily each year. Not surprisingly | 

the grant per pupil for Hartford stands far, far higher than the 

grant per pupil for the combined suburbs. 

1t should be evident from the financial data srndtparated 

into the Brewer affidavit that the legislature has taken 

| significant steps to provide Hartford with considerably more 

i state resources than the suburbs in an effort to assist Hartford 

in addressing the special needs of its student population. 

The general assembly's commitment to the goal of promoting 

racial, ethnic and cultural diversity 1s equally evident. The 

    

 



  

    

    

legislature has acted on this commitment in at least three 

different ways. 

First, the general assembly has taken steps to improve the 

understanding among educators of the importance of diversity in 

our schools and to our society. It has directed that candidates 

for teacher preparation programs be encouraged to complete a 

program on intergroup relations designed by leading state 

agencies. The goals of this intergroup program are to foster an 

appreciation of the contribution of various ethnic, cultural and 

economic groups to our society, to counteract biases, 

discrimination and prejudices, and to promote respect for 

  
diversity and human rights. Conn. Gen. Stat. §§ 10-145a(b). 

state board of education is required to dedicate staff to this 

effort. Conn. Gen. Stat. § 10-226f. The general assembly has 

also encouraged the development of similar programs at the school | 

district level to help existing teaching staff understand the 

importance of incorporating these principles into the day to day 

work that goes on in our schools. Conn. Gen. Stat. § 10-226g. 

The second way in which the general assembly has taken the 

initiative to promote diversity in our schools is to establish a 

ae 

 



  

    

    

regulatory mechanism by which local school districts are 

prohibited from operating their schools in a way which interferes 

with the goal of having a racially and ethnically diverse student 

body in every school in the system. The legislature, in 

conjunction with the executive branch, has taken direct action to 

eliminate conditions of racial and ethnic isolation within our 

school districts, regardless of whether the conditions are Lhe 

product of "de jure" or "de facto" segregation. This has been 

done through the adoption and implementation of the laws and 

regulations relating to intra-district racial balance. Conn. 

Gen. Stat. §§ 10-226a through 10-226e, Conn. State Agency Reg.,   Education, §§ 10-226e-1 et. seq. No state in the country has 

gone as far as Connecticut in outlawing schools which are 

racially imbalanced in comparison to the district as a whole. 

Thirdly the legislature has taken steps to promote diversity 

in our schools by encouraging cooperation between school | 

districts with diverse student populations. The affidavit of 

Elliot Williams, which is found as Exhibit 5, identifies and 

briefly describes the various interdistrict programs throughout 

the state which local school districts have voluntarily embarked 

on with state financial assistance, Conn. Gen. Stat. § 10-74d, to 

-d 5. 

 



  

bridge school district lines and to promote the mix of students 

from different backgrounds which, according to the public opinion 

survey conducted for the Governor's Commission on Quality and 

Integrated Education, the general public sees as a means of   
enhancing the quality of education and promoting long-term   positive benefit for our society. 

These and the other legislative efforts described in the 

preceding pages make evident the truth of the third fact upon 

which this motion for summary judgment is grounded. The general 

assembly has adopted and the defendants have implemented 

legislation designed to address the conditions about which the 

'! plaintiffs complain. The legal question which this poses in the 

context of plaintiffs' suit is how far can and should the court   
go in reviewing what the legislature has done and in determining 

whether what has been done is, in the court's opinion, 

appropriate. Does the court have the authority to direct the 

general assembly to adopt new or different approaches to the 

. problems or is the means of addressing these problems left up to | 

the general assembly? The third undisputed fact upon which this | 

motion for summary judgment is based exposes these critical legal; 

question regarding the court's authority and allows the court the 

    -d b= 

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opportunity to address these issues short of a lengthy and 

unproductive trial. 

III. ARGUMENT: JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANTS 
BECAUSE THE STATE HAS NOT ENGAGED IN CONDUCT WHICH VIOLATES 
THE CONSTITUTION AND BECAUSE THERE IS NO JUDICIAL REMEDY 
AVAILABLE TO THE PLAINTIFFS   A. JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANTS BECAUSE THE 

| CONDITIONS ABOUT WHICH THE PLAINTIFFS COMPLAIN ARE NOT THE 
PRODUCT OF STATE ACTION 

Plaintiffs' complain about the consequences of the   concentration of minority, poor and "at risk" children in the 

Hartford public schools. It is, however, undisputed that the   
state has not assigned or confined children to the Hartford 

public schools, or any other school system in the state, on the 

basis of race, national origin, socioeconomic status, or other 

| status which might be said to put a child "at risk." See Fact 1 

supra. Thus the conditions about which the plaintiffs complain 

ii are not the products of state action. The question this fact   
| raises is whether plaintiffs can establish that the constitution 

‘i has been violated despite the absence of state action. | 

| 

  

     



  

    

    

Plaintiffs' claims in this matter are grounded on three 

provisions of our State Constitution, Article I, § 3 107 and 

11/ 
Article 1, § 20, which are the state's equal protection 

provisions, and Article VIII, § 1; which establishes education as 

12/ phe courts have never before held that a fundamental right. 

these constitutional provisions could be violated without state 

action. Thus the plaintiffs' claims under these provisions stand 

without precedent. 

As a matter of fact, the precedent which does exist shows 

that the Supreme Court has not wavered from the position that the 

equal protection provisions and the education clause of our state 

constitution can only be violated by state action. 

  

10/ ~All men when they form a social compact, are equal in 
rights; and no man or set of men are entitled to exclusive public] 
emoluments or privileges from the community." Conn. Const. Art. 
I, §1. 

11/ "No person shall be denied the equal protection of the law 

  
nor be subjected to segregation or discrimination in the exercise. 

or enjoyment of his civil or political rights because of 
religion, race, color, ancestry or national origin." Conn. 
Const. Art. 1, § 20, 

12/ “There shall always be free public elementary and secondary 
schools in the state. The general assembly shall implement this 
principle by appropriate legislation.” Conn. Const. Art. VIIl, § 

1. 

{4 8- 

 



  

With regard to the equal protection provisions, in Keogh v. 
  

City of Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982) the 
  

Supreme Court noted that "[t]he equal protection provisions of 

the federal and state constitutions have the same meaning and 

limitations." (Emphasis added.) Also see Zapata v. Burns, 207 
  

    
Conn. 496, 504, 542 A.2d 700 (1988). Among these limitations is 

the requirement that there be state action before a violation of   '! these provisions of the constitution can be found. Even after   
considering the difference in language between the federal equal | 

protection provision and the equal protection provision of | 

| Article I, § 20, our state Supreme Court has affirmed the 

principle that state action is necessary to establish a violation 

of this section of the state constitution.   
Although the guarantee of equal 
protection in § 20 of the Connecticut 
Declaration of Rights is stated in 

absolute terms..., unlike its federal 

counterpart, § 1 of the fourteenth | 
amendment, which is expressly directed 
against state action only, this court 

has concluded that both these provisions 

"are designed as a safeguard against 
acts of the state...". 

j=
 

t
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>
 

Cologne v. Westfarms Associates, 192 Conn. 48, 63, 469 A.2d 1 | 
  

(1984). 
| 

    -49= 

 



  

    

    

The Supreme Court's recent decision in Savage v. Aronson, 
  

214 Conn. 256, 571 A.2d 696 (1990) 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. In 

Savage the Court rejected claims under Article VIII, § 1 which 

are strikingly similar to the claims being made by the plaintiffs 

in the present case. 

In Savage the Commissioner of the Department of Income 

Maintenance (DIM) reduced the period of eligibility for emergency 

housing for families on AFDC from 180 to 100 days. The court 

concluded that, as a direct result of this action, children in 

families affected by the change were likely to suffer hardship 

and disruption in their education because of the need to relocate 

and change schools. Despite this finding the court rejected the 

plaintiffs' claims. 

The undoubted hardship imposed upon 
the children of these plaintiffs 
from the lack of affordable housing 
near the schools where they now are 
being educated cannot be disputed. 
It results, however, from the 
difficult financial circumstances 
they face, not from anything the 
state has done to deprive them of 

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the right to equal educational 
opportunity. 

Id., 214 Conn. at 287. The court rejected the plaintiffs’ claim 

that the children were being denied substantive due process under 

the state constitution because of the effect on their education: 

The financial circumstances of these 
plaintiffs, 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 clause 
of both our federal and state 
constitutions. 

Id., 214 Conn. at 284. 

Plaintiffs' claim in this case, that conditions which are 

not the product of state action have resulted in a violation of 

the state constitution, is virtually indistinguishable from the 

claim which was rejected by the Supreme Court in Savage. If 

there is any difference between the claim made by the plaintiffs 

in Savage and the claim made here, it is that the plaintiffs in 

  
Savage had a colorable claim of direct and unlawful state action, 

i.e., the reduction of the period of eligibility for emergency 

housing, whereas the plaintiffs here cannot point to any similar 

state action. 

  

 



  

    

  

  
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i 

The state constitution does not provide a shield against 

private discriminatory conduct no matter how abhorrent or 

wrongful. lockwood v. Killian, 172 Conn. 496, 501, 375 A.2d 998 
  

(1977) after remand 179 Conn. 62, 425 A.2d4 909 (1977). And 

conditions which would, if created by the government, violate the 

constitution, do not violate the constitution if they are created 

by private parties. Cologne v. Westfarms Associates, supra. 
  

It is evident that the concern 
which led to the adoption of our 
Connecticut Declaration of Rights, 
as well as the bill of rights in 
our federal constitution, was 
protection of individual liberties 
against infringement by government. 
[Citations omitted.] There is 
nothing in the history of these 
documents to suggest that they were 
intended to guard against private 
interference with such rights. 

1d., 192 Conn. at 60-61. In the same way that private conduct 

cannot be used as a basis for supporting a claim that the 

constitution has been violated, other obstacles to the enjoyment 

of rights, including the right to education, which obstacles are 

not of governmental making cannot be the basis for finding that 

the constitution has been violated. The government may not place 

unjustifiable obstacles in the path of enjoyment of a right, but 

— 

  
  
 



  

  

  
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it need not, under the constitution, remove obstacles not of its 

creation including the obstacle of poverty. Savage v. Aronson, 
  

supra; accord Harris v. McRae, 448 U.S. 297, 316, 100 5.Ct. 2671, 
    

65 L.Ed.2d 784 (1980). 

To establish that the necessary state action is present it 

is not enough for a plaintiff to point to an act of the state 

somewhere in the chain of circumstances leading up to the 

plaintiff's predicament. To support a violation of the 

  

  
J 

constitution there must be a sufficient causal connection between! 

the state action and the obstacle which stands in the way cf the 

| 
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enjoyment of the right. As the U.S. Supreme Court aptly noted in. 

Martinez v. California, 444 U.S. 277, 100 5.Ct. 553, 62 L.Ed.2d 
  

481 (1980); 

A legislative decision that has an 
incremental impact on the probability that 
death will result in any given situation - 
such as setting the speed limit at 
55-miles-per-hour instead of 45 - cannot be 
characterized as state action depriving a 
person of life just because it may set in 
motion a chain of events that ultimately 
leads to the random death of an innocent 
bystander. 

-53.   

 



  

  

  

  

  

I1d., 444 U.S. at 281. Government must directly cause the 

conditions about which the plaintiffs complain before these 

conditions can be considered a product of state action. 

This point is of special importance here because of the way 

in which the plaintiffs attempt to sculpt a violation of the 

state constitution. Plaintiffs attempt to do so by attributing 

the conditions about which they complain tc the existence of 

coterminous municipal and school district boundaries in the 

Hartford area. However, it is clear from the fact that these 

boundary lines were established long before the concentration of 

minority, poor, and "at risk" children in the Hartford schools 

occurred or was even foreseeable (see Exhibit 3, € 4) and that 

there is no causal connection between the setting of these lines 
  

| 

) 

H ! 
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and the conditions about which the plaintiffs complain. Like the! 

legislation creating the boundary lines in the Detroit area in 

issue in Milliken v. Bradley, 414 U.S. 717, 748, 94 S.Ct. 3112, 
  

41 L.Ed.2d 1069 (1974), the boundaries in the Hartford area are 

the product of neutral legislation and cannot be the basis for 

finding that there has been offensive state action. Simply 

stated, state "inaction", e.g., the failure to redraw district 

  
 



  

    

    

  

lines established by neutral legislation, cannot be deemed "state 

action®.13/ 

The plaintiffs have insisted that there is sufficient "state 

action" upon which to find that the constitution has been 

violated in this case. See Exhibit 1, p. 1-21.:! In doing so 

plaintiffs appear to be urging the court to dispense with the 

need to find any kind of connection between action of the state   
and the concentration of minority, poor and "at risk" children in, 

| 
| 

Hartford. Instead the plaintiffs are urging the court to find 

sufficient state action in the fact that the state has, as it 

must, acted in the area of education at all. See Exhibit 1. 

  

13/ Even governmental decisions to withdraw from activities 
which might have promoted the enjoyment of important rights have 
been held not to violate the constitution. See Savage v. 
Aronson, supra (continuing to allow up to 180 days of emergency 
shelter may have ameliorated the harm to the education of 
children, but the court refused to find the proposed reduction | 
unconstitutional); Milliken v. Bradley, 418 U.S. at 750 (court | 
found no justification for imposition of an interdistrict 
desegregation remedy even though state legislation had the effect] 
of rescinding Detroit's voluntary desegregation plan); and 
Crawford v. Board of Education of the City of Los Angeles, 458 

u.s. 527, 539,102 s.Ct. 3211, 73 L.Ed.2d 948 (1982) ("In sun, 
the simple repeal or modification of desegregation or 

antidiscrimination laws, without more, never has been viewed as 

embodying a presumptively invalid racial classification. ”) 

  

    
  

  

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' this case because plaintiffs' are seeking some as yet 

  

  

  

This is, of course, another way of arguing that there is no need 

for "state action" as that term is now understood in the law. 

One way in which the court can easily see that there is 

insufficient "state action" to sustain plaintiffs' claims under 

the constitution in this case is by asking whether the 

plaintiffs' have identified any actions by the state that a ccurt 

| 
could prohibit or enjoin. This kind of inquiry is appropriate in|   
unidentified changes in the way the state does business. It is 

evident from the list of state actions which plaintiffs provided 

in response to defendants interrogatories on pages 1-21 of 

Exhibit 1 that there is no enjoinable state action here. 
| 
| 

Plaintiffs do not seek to have any of the activities described in| 
| 

| 
| 

their response to defendants' interrcgatories declared 

unconstitutional and enjoined. Thus, for the purposes of this 
| 

| 
case, the actions identified by the plaintiffs must be deemed | 

| 

legitimate exercises of state power. State action cannot be 

legitimate under the constitution but still provide the basis for 

finding that the state has violated the constitution. State 

action is either constitutional or it 1s not. It is evident that 
| 

. F v | 
the plaintiffs seek to compel some form of state action, not to | 

«55. 

 



  

    

    

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enjoin or provide a remedy for past or present wrongful state 

action. 

The plaintiffs failure to identify any enjoinable or   
otherwise wrongful state action distinguishes this case in a very! 

important way from the decision in Horton I, the case which the 
  

plaintiffs rely upon most heavily to support their claim in this 

case. Horton v, Meskill, 172 Conn. 615, 376 A.2d 359 (1377). 
  

While it is true that the court stayed its hand in that case,   
preferring to give the general assembly a chance to act before it 

applied the powers of the judiciary, the court had before it 

unconstitutional state action which it could have enjoined. In 

  

Pellegrino v. O'Neill, 193 Conn. 670, 480 A.2d 476 (1984), cert. | 

den. 469 U.S. 875, the court provided the detail, which was 

  missing from its 1977 decision in Horton I, regarding its views 
| 

on the scope of the court's authority in dealing with claims like] 

  

that made in Horton I. It is clear from the following 

explanation of Horton I in Pellegrino that the court has | 
  

  

recognized that its authority is limited to the power to enjoin 

unlawful state action. 

  

In Horton I the court had before it ; 

various statutory grants for public 

schools and it concluded that those 

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legislative provisions for financing 
education in the state violated the 
provisions of the Connecticut 
constitution. [Citation omitted]. 
Rather than enjoin the defendants from 
implementing the existing statutory 
financing scheme, the customary remedy 
in such a situation, as sought in one of 
the prayers for relief, the court chose 

to defer any action until the 
legislature had considered the matter 
further. [Citations omitted]. This 

| case is clearly one where a judicial 
remedy could have been applied, although 
its scope would necessarily be far more 
limited than a solution which the 
legislature might devise. 

    
| Pellegrino v. O'Neill, 193 Conn. at 683. 
    In the present case the plaintiffs are not asking the Court 

to enjoin the defendants from engaging in some form of 

4 unconstitutional state action, as the plaintiffs in Horton I 
  

were. The plaintiffs' vague request that the defendants be 

ordered to provide "integrated education," "equal educational 

opportunities," and "minimally adequate educations", Complaint, | 

Prayers For Relief, 9 2, p. 28, is just the type of request for | 

affirmative state action which was specifically rejected in | 
| 

|i Pellegrino and, according to the above quoted language from the 
  

Pellegrino decision, implicitly rejected by Horton I. 
  

  

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Since the concentration of minority, poor, and "at risk" 

children in Hartford as compared to the suburbs is not the 

product of state action, plaintiffs cannot succeed in 

establishing that the state has violated Article I, §§ 1, 20 

and/or Article vi1l, § 1.   B. JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANTS BECAUSE 

THE STATE HAS SATISFIED ANY AFFIRMATIVE OBLIGATION WHICH ARISES 

OUT OF THE STATE CONSTITUTION. 
  

Plaintiffs' claims in this case are premised on the 

existence of an affirmative legal obligation arising out of the 

constitution. Whatever affirmative obligation the state may have 

under the constitution that obligation does not, however, include 

| 
| a duty on the part of the general assembly to adopt any   particular method for dealing with the problems about which the 

plaintiffs complain nor does it require the state to do anything | 

| more or anything different than what the state is already doing 

to address these problems. Any attempt to read the constitution 

otherwise would put the court, rather than the general assembly, 

in the position of being the policy maker, at least with respect 

to education. 

  -59.   
  

  
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According to the plaintiffs the concentration of minority, 

poor and "at risk" children in the Hartford public schools has 

negative consequences for Hartford school children as a whole, 

and the state's failure to address these conditions or 

consequences in a "sufficient" fashion violates the constitution. 

However, when the plaintiffs were asked, through discovery, what 

that the state should have done or what the state should now do 

to address these conditions or consequences they offered no 

specific plan or proposal. See Exhibit 1, pp. 22-33 and Exhibit 

2. Plaintiffs can be faulted for failing to provide a proper 

response to defendants' interrogatories by setting out specific 

and "sufficient" plans for addressing the problems about which 

they are complaining, but their unwillingness to do so is 

understandable. The problem of educating poor and "at risk" 

  
1 

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children, especially when they appear in significant numbers, and 

the problem of maintaining positive racial and ethnic diversity 

in our schools, despite changing housing patterns and changing 

economic conditions, are among the most complex problems our 

society faces today. Even the most well meaning attempts by the 

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courts to address these problems in the context of remedial plans 

designed to eliminate the vestiges of de jure discrimination in 

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public schools have not met the mark which was set for them. 

See, Presser, "Broken Dreams", ABA JOURNAL, May, 1991. The roots 

of these complex problems reach deep into our society and are 

often grounded in the broader social problems of poverty, 

affordable housing, poor health care, poor nutrition, drugs, 

crime, broken families, and other areas. The plaintiffs’ 

inability to identify a specific method which the state was 

required to choose to address these complex problems is not 

surprising. There is no simple or clear cut solution to these 

complex problems. 

Despite the complexity of these problems and the absence of 

any clear cut solutions, it is clear that the general assembly 

has accepted and responded to the challenges presented by these 

problems. The general assembly has adcpted, and the defendants 

have implemented, programs specifically designed to assist the 

Hartford public schools and other school districts in the state 

with similar problems, in their effort to meet the special needs 

of urban children who are largely members of minority groups, 

often poor, and, in large numbers, "at risk". There 1s no 

factual dispute about the actions taken by the legislature. 

4 TW 

  
  
 



  

    

    

There is only a question of law as to whether those actions 

satisfy the requirements of the state constitution. 

The information provided in Exhibits 4 and 5, discussed 

earlier in this memorandum, shows that the state has made a 

substantially greater financial commitment to the Hartford public 

schools, in contrast to the suburban schools, because of the 

concentration of students in need who are being served by that 

system. The laws which are responsible for this direction of 

state resources evidence a conscious state policy directed at the 

precise conditions about which the plaintiffs complain in this 

case. The laws assure, in a number of ways, that school 

districts with higher concentrations of poor students, students 

who are "at risk", or students who are not making satisfactory 

gains as measured by the Connecticut Mastery Test (CMT) receive 

the additional state support needed to address the challenges 

these students present. 

The general assembly has created and funded a number of 

programs designed specifically to address the needs of "at risk", 

poor performing, and otherwise disadvantaged students. Conn. 

Gen. Stat. § 10-140 (compensatory education grants); Conn. Gen. 

63 - 

  
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Stat. § 10-17g (bilingual education grants); Conn. Gen. Stat. § 

10-76g (special education grants); Conn. Gen. Stat. 10-215 (free 

lunch program); Conn. Gen. Stat. 10-266j; (grants for 

intercommunity program to address the needs of disadvantaged 

children); Conn. Gen. Stat. § 10-266p (priority school district 

grants for school districts facing comparatively more difficult 

educational challenges); and Conn. Gen. Stat. § 10-266w (school 

breakfast program). The general assembly also has earmarked the 

relative wealth of the community and/or the comparative 

educational need of the school district as a factor to be 

considered when choosing the successful applicants for 

competitive state grants designed to improve the quality of 

education in the school districts of this state. See Conn. Gen. 

Stat. § 10-16m (extended day kindergarten grants); Conn. Gen. 

Stat. § 10-74b (summer school remedial program grants); Conn. 

Gen. Stat. § 10-266p (priority school district grants); and Conn. 

Gen. Stat. § 10-283 (school construction grants). 

Through the Education Enhancement Act, which represented a 

three year effort to improve education in the state, the general 

assembly took steps to insure greater equality in school staffing 

between school districts by setting a statewide minimum 

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teacher's salary, funding substantial increases in teachers’ 

salaries, particularly in those districts offering lower salaries 

to begin with, and offering money to improve the teacher/pupil 

ratio in districts where this was a problem. May Spec. Sess. 

P.A. 86-1 88 2, 3, 4, 5, 6 (repealed). 

Most significantly, the general assembly has written the 

formula by which the largest portion of state aid is provided to 

local school districts to support the overall efforts of those 

districts, in a way which insures that school districts serving a 

higher concentration of poor students and/or students who are 

performing below expected levels on the CMT, receive more state 

assistance. The formula, which is called the Education Cost 

Sharing formula or ECS, is found in Conn. Gen. Stat. §§ 10-262f, 

10-262g, and 10-262h. 

State aid under the ECS is largely controlled by the "town 

target grant". "Town target grant" is a computation which takes 

into account the relative town wealth and the number of students 

served by the town. Both the town wealth computation and the 

computation of the number of students served are weighted so that 

towns which have more poor students and more students performing 

54 - 

  

 



  

below the standard for remedial assistance on the CMT will get 

more money than similar towns having fewer poor children and 

fewer children performing below the remedial standard. The town 

wealth computation is further weighted to cause the formula to   | give greater benefit to towns with concentrations of poor by   | reason of the fact that a poor town's "equalized net grand list” 

! 
is reduced to reflect the town's lower per capita income. As the 

  
information on page 79 of the attachment to the Brewer affidavit 

demonstrates, these adjustments in the formula by which the state   
ii supports the overall activities of local school districts 

significantly increases the amount of state money being poured 

into the Hartford schools in contrast to the suburban schools 

which face less poverty and have higher success rates on the CMT. 

The wealth of the citizenry of each town is also a factor 

which adjusts the amount of state assistance for education the 

various towns receive under a number of other substantial State 

funding programs in a way which insures poorer school districts 

more money. Conn. Gen. Stat. § 10-140 (EERA entitlement grant 

determined in part based on number of students receiving AFDC); 

Conn. Gen. Stat. § 10-76g (town's reimbursement rate for special 

education costs set by factoring in the town's adjusted equalized] 

      -55- 
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net grand list which is determined in part by the town's per 

capita income); Conn. Gen. Stat. § 10-266m (town's reimbursement 

rate for general transportation costs set by factoring in the 

town's adjusted equalized net grant list which is determined in 

part by the town's per capita income); Conn. Gen. Stat. § 

10-285a(a) (town's reimbursement rate for school construction and 

renovation grants set by factoring in the town's adjusted 

equalized net grand list which is determined in part by the 

town's per capita income). In addition, the dollar amount which 

the towns receive under the EERA grant program found in Conn. 

Gen. Stat. § 10-140 is controlled, in part, by the number of 

children performing below expectation on the CMT. 

The concerns which the plaintiffs voice about racial and 

ethnic isolation have also been the target of specific 

legislation. As has already been noted, the general assembly has 

passed laws which prohibit both de jure and de facto racial   
| 

imbalance within school districts; Conn. Gen. Stat. §§ 10-226a to 

10-226e, Conn. State Agency Regs., Education § 10-226e- 1 et 

seqg.; it has authorized and held out financial incentives for 

school districts to enter into cooperative arrangements with 

other school districts designed to promcte racial, ethnic and 

  
~66~ 

  
 



  

    

  

  

cultural diversity across district lines, Conn. Gen. Stat. §§ 

10-140(b) (2), 10-74d, 10-158, 10-266); and it has promoted the 

kind of atmosphere of tolerance and understanding in our schools 

which is important to the preparation of children whe will grow 

up to live and work in a multi-cultural society. Conn. Gen. 

Stat. §§ 10-145a(b), 10-226f, 10-226g. 

Considering the legislative activity which has already been 

directed at the problems identified by the plaintiffs, the 

question in this case is not whether the state constitution 

imposes some affirmative duty on the general assembly to act. 

The general assembly has acted. The only question before this 

court is whether the constitution imposes on the general assembly 

a duty to act in some specific fashion, different in nature or   
| 

degree, from that which the general assembly has chosen to pursue 

to date. 

The plaintiffs' failure to identify a specific 

constitutionally required affirmative act, step or plan which the 

defendants or the general assembly failed to take or to implement 

is reason enough to conclude that the constitution does not 

impose a duty on the state to respond to the problems which 

“67 =   

 



  

  

plaintiffs identify in a specific fashion that differs from that 

chosen by the general assembly. But the conclusion that the 

constitution imposes no such specific obligation need not rest   solely on the plaintiffs' inability to identify a specific   | solution. A proper reading of the constitution itself leads 

inescapably to this conclusion. 

When considering whether and to what extent the state 

constitution should be read to impose general or specific 

affirmative obligations on the state, the words of our Supreme 

Court in the case of Cologne v. Westfarms Associates must be kept, 
  

in mind: >   
The court has never viewed constitutional 

language as newly descended from the 
: firmament like fresh fallen snow upon which 

i jurists may trace out their individual 

notions of public policy uninhibited by the 

history which attended the adoption of the 

particular phaseology at issue and the 
intentions of its authors. 

Id., 192 Conn. at 62. This statement reflects the history with 

which both state and federal courts have approached efforts, like 

those in the present case, to read affirmative governmental 

obligations into the state or federal constitutions. The U.S. 

Supreme Court specifically eschewed looking to the federal 

  
68 

    
 



  

constitution as a means of obtaining judicial remedies for every 

social and economic evil which is present in our society in 

Lindsey v. Normet, 405 U.S. 56,.74,92:8.Ct. 862, 31 L.Ed.2d 36 
      

  

(1972). And, while applauding the independent vitality of our 

state constitution, Judge Jon O. Newman of the Court of Appeals 

for the Second Circuit, has likewise warned against looking to 

that document as a "source of remedies for every societal 

      
  

| 

defect." Newman, "The 'Old Federalism'; Protection of Individual 

Rights by State Constitution In An Era of Federal Court 

Passivity”", 15 Conn. L. Rev. 21, 28 (1982). 

These warnings about the kind of expansive reading of 

constitutional documents which is usually necessary to find an 

affirmative governmental obligation are firmly grounded in the 

historical purposes of our state and federal constitutions. The 

concern which led to the adoption of the Connecticut Declaration 

of Rights as well as the federal Bill of Rights was the 

protection of individual liberties from government infringement. 

Cologne v. Westfarms Associates, 192 Conn. at 60-61, Jackson Vv. 
  

  

City of Joliet, 715 F.2d 1200, 1203 (7th. Cir. 1983) cert. den. 
  

  

465 U.S. 1049 (1983). Constitutions are generally intended and 

interpreted as affording these "negative" liberties and are not 

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864, 865-866 (1986). 

usually read to impose upon the government affirmative 

obligations to help needy citizens or to protect citizens from 

harm. DeShaney v. Winnebago County Dept. of Social Services, 489 
  

U.S. “189, 195-196, 109 S.Ct. 998,- 103 L.Bd.2d 249 (1989); Curie, 

"Positive and Negative Constitutional Rights," 53 U.Chi. L. Rev. 

It is upon this backdrop that the equal protection 

provisions and the education clause of our state constitution 

must be examined to determine whether those provisions impose a 

specific obligation on the state to do something that it has not 

already done to address the conditions about which the plaintiffs 

complain. 

The language of the equal protection provisions in Article 

1, § 1 and Article I, § 20, taken alone, makes obvious that any |   effort to read affirmative governmental obligations into these 

constitutional provisions would go far beyond the intentions of 

the framers. The language of these two provisions is 

prohibitory. The fact that these provisions have been 

interpreted to provide a remedy only against state action, not 

against private action, further supports the facially apparent 

ily 2 ¢ 

  
 



  

conclusion that these provisions, standing alone, impose 

limitations, rather than mandates, on state government. See   
Lockwood v. Killian, 172 Conn. at 501, Cologne v. Westfarms 
  

  

Associates, 192 Conn. at 63. 
      Plaintiffs appear to agree that the equal protection   
provisions of the state constitution do not, by themselves, 

impose an obligation on the state to take affirmative action to 

address their concerns. They attempt instead to synthesize such         
an affirmative obligation out of Article VIII, § 1, the education; 

| clause, and the equal protection provisions. 
! 

| 

| 
Although no court has ever attempted to direct the general | 

assembly in the manner in which it carries out its | 
| 

responsibilities under Article VII, § 1, that section of the 

constitution admittedly imposes an affirmative obligation on the 

'. state to provide free public elementary and secondary education. 

| 

| 

Article VIII, § 1 is also important in that it makes education a 
| 
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fundamental right in Connecticut, and for that reason, any state 

action which has a negative affect on the right to a basic 

education is entitled to closer scrutiny by the courts for 

equality and fairness under the equal protection provisions. See 

ELE     

 



  

Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977) (Horton I) 

  

  

          and Horton v. Meskill, 195 Conn. 24, 486 A.2d 1099 (1985) (Horton     111). Compare Campbell v. Board of Education of the Town of New 

  
              

| niTtord 10% Conn. 93; 475A.241080 (1933). But zhe question 

| pefore the court in this case cannot be answered without looking 

beyond the first sentence of Article VIII, § 1 or beyond the Tile 

of closer judicial scrutiny in regard to certain types of clear 

state action which affect education. The question which this 

ee ; ‘ vy diye : 3 

i. court must answer in order to determine liability in this case is! 

1 
whether Article VIII, § 1, or some combination of this clause and 

the equal protection provisions imposes a specific obligation on | 

the general assembly to address the problems which the plaintiffs 

complain about in some way other than those methods which the 

general assembly has already chosen? The answer is "no’ 

The history and language of Article VIII, § 1 belies any 

claim that the framers intended to impose On the state anything 

3 more than a general obligation to have free public elementary and 

secondary schools in the state or that the framers intended to 

invest the courts with ultimate authority regarding what measures 

are "appropriate" to deal with the problems of poor, minority anc 

"at risk" children in our schools. The history of Article VIII, 

  i i 

 



  

    

    

§ 1 suggests that the framers intended little more than to insure 

that education retained the pesit ion of importance which it has 

always maintained in this state and that it always be free. 

Connecticut Constitutional Convention Proceedings, October 15-28, 

1965, p. 1064. The language, particularly the second sentence, 

which reads, "The general assembly shall implement this principle 
  

by appropriate legislation," leaves no doubt that the tramers 
  

intended to leave it to the general assembly to determine how 

best to address specific problems like those which the plaintiffs 

have brought before the court 1% (emphasis added). To find 

otherwise the court would have to read something into the 

constitution far beyond what the framers envisioned and 

undertake the task of addressing complex social prcblems which 

may be beyond the competence of our courts to address. 

  

14/ 1t is not necessary for the court in this case to identify 

every parameter of in Article VIII, § 1. Questions like whether 

this provision would prevent the general assembly from reducing 

the school year to less than 180 days or keep that body from 

reducing the school day in the case of national emergencies and 

the like, are better left for consideration at ancther day, if at 

all. In this case, the court need only find that the 

constitution does not prescribe for the general assembly some 

specific method for addressing the plaintiffs concerns which is 

different from the methods chosen by the general assembly, in 

order to conclude that the defendants are entitled to judgment. 

This is a finding the court can easily reach based on existing 

case law and undisputed facts. 

-73~ 

  
  
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1 

In Horton III the Supreme Court revisited the issues which 
  

it had addressed Horton 1 faced with "evidence before the trial 
  

court [which] demonstrates continued significant disparities in 

the funds that local communities spent on basic public 

education." Horton 111, 195 Conn. at 39. Despite these 
  

continuing disparities, the court upheld the new funding formula 

which had been adopted by the general assembly. The Court found 

that the proper test to apply to the legislative action which was 

before it was to ask whether that legislation "reasonably 

advanced a rational state policy and...did not result in an     
unconstitutionally large disparity.” 1d., 135. Conn. at 45. 

Applying this test to the present case it can easily be concluded! 

that the action which the general assembly has taken to address | 
} 
{ 

the problems of poor, minority, and "at risk" children reasonably’ 

advances a rational state policy and does not result in a 

disparity. For this reason the court must conclude that the 

general assembly has satisfied any affirmative obligation which | 

arises out of the constitution to address the plaintiffs’ 

concerns. 

 



  

      

              
Cc. JUDGMENT SHOULD BE ENTERED FOR THE DEFENDANTS BECAUSE 

THE QUESTION OF HOW BEST TO ADDRESS THE CONDITIONS ABOUT WH1CH 

THE PLAINTIFFS COMPLAIN IS NOT JUSTICIABLE. 

Assuming that, after the court has heard all of the evidence, 

that would be presented at a trial of this matter, the court is 

of the opinion that the legislature could have and should have 

adopted some different approach to the concerns of the 

plaintiffs, the question would still remain whether the court has! 

the authority to direct the implementation of that or some other 

method of addressing the problems. e
m
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1
 

a
 
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1f the court answers this question in the affirmative, the 

court will ovontially be confronted with a number of practical 

questions which go to the heart of the role of the judiciary in 

this state. First among these practical questions will be what 

goals will the court set for itself as constitutionally 
necessary 

and how will the codrt measure the success of its own plan for 

achieving these goals. Since this is not a traditional 

desegregation case in which the goal can pe stated as the 

elimination of the "vestiges" of de jure segregation, the court 

must invent new goals and new standards for measuring the success 

of its orders. presumably the court will set goals which include 

i £0 

 



  

    

    

the attainment of certain numerical racial and ethnic balances in 

the ‘schools in the Hartford area and/or the attainment of some 

measured degree of increased achievement on the CMT by Hartford 

school children. But if the goals are to be defined and measured 

in this fashion, what should be done if the court's plan does not 

result in the attainment of those goals? Should the court have 

additional opportunities to adjust, revise, or substitute plans 

in a further attempt to reach those goals? Or, if the court 

concludes that the goals cannot be achieved without reaching 

beyond the schools to the root problems of poverty, affordable 

housing, inadequate health care, poor nutrition, crime, drugs, 

and the like, can the court reach beyond what goes on in the   
schools and mandate programs and expenditures, as the legislature 

might do, to address these broader social problems? And what if 

the plan or plans which the court devises require measures such 

as the redrawing of school district lines, with the realignment 

  of our political and governmental structure that would be a 

necessary incident thereto, or the expenditure of large sums of 

money on activities not approved by the general assembly, but the 

general assembly refuses to cooperate? 

  

"76m 

  
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These and many other practical questions ought to be kept in 

mind as the court examines the constitution to determine whether 

it has the authority to second guess the general assembly with 

regard to the "appropriate" methods for addressing the concerns 

voiced by the plaintiffs. 

At least since the Supreme Court's decision in Pellegrino v.   

O'Neill, supra, it has been clear that some provisions of the 
  

state constitution are directed exclusively to the legislative 

branch of government. 

Although it is widely assumed that the 
judiciary, as the ultimate arbiter of the 
meaning of constitutional provisions, must 
determine every constitutional claim 
presented and provide appropriate relief, 
some constitutional commands falls outside 
the conditions and purposes that circumscribe 
judicial action. 

  
id., 193 Conn. at 67. Separation of powers between the 

legislative, judicial, and executive branches of government was 

among the most significant aspects of the constitution of 1818 

and must be carefully considered before the court accepts the | 

invitation presented by the plaintiffs in this case. Adams v.   

Rubinow, 157 Conn. :150,: 153, 251: A.2d 49 (196B).. As the 

Pellegrino court noted "[w]e must resist the temptation...to 
  

i 

  
 



  

    

    

192 Conn. at 66. 

enhance our own constitutional authority by trespassing upon an 

area clearly reserved as the perogative of a coordinate branch of 

government." Id., 193 Conn. at 681. 

It does the constitution no injustice for the court to find, 

on an appropriate basis, that some command within the 

constitution falls exclusively within the province of the general 

assembly. Some constitutional provisions are not self-executing 

and require legislative action. State v. Sanabria, 192 Conn. 
  

671, 688, 474 A.2d 760 (1984); State ex rel Cotter v. Leipner,   
  

138 Conn. 153, 158, 83 A.2d 169 (1951). Furthermore, the courts 

should not presume that the legislature has any less concern for 

the protection of interests which are embodied in the 

constitution than the courts. Cologne v. Westfarms Associates, 
    

| 
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of a particular constitutional provision is exclusively delegated 

One key to resolving questions of whether the implementation 

to the legislative branch of government is whether that provision 

: 
includes a "textually demonstrable commitment" of the matter to | 

| 
the legislative branch. Baker v. Carr, 369 U.S. 186, 210, 82 

  

S.Ct. 691, 7 L.Ed.2d 663 (1982), cited with approval ‘in 

  
78 

 



  

Pellegrino v. O'Neill, 193 Conn. at 680-681. In the present 
  

matter the second sentence of Article VIII, § 1 provides 

precisely the sort of "textually demonstrable commitment" of 

issues like those being raised by the plaintiffs here to the 

general assembly which should cause the court to conclude that 

the issues presented in this case are not justiciable. The     charge to the general assembly in the second sentence of Article 

VIII, § 1 to develop "appropriate" means of implementing the 

principle that there shall always be free public elementary and 

secondary education in Connecticut, would be virtually 

meaningless if the judiciary's notion of what might be 

i: appropriate is what prevails. In other words, the people of 

Connecticut have left these matters to the general assembly. 13’   
There are, however, many reasons, even beyond this textually: 

! 
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demonstrable commitment of questions of how best to implement the 

general right to education to the legislative branch, which make 

¥ it evident that the court should decline the invitation to 

  

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15/ Of course, when the general assembly is choosing 

"appropriate" methods by which to implement the general right to 

education, it may not choose methods which violate other 

provisions of the constitution, such as the equal protection 

provisions, as was the case in Horton I, supra. 
  

  -70- 

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substitute its judgment for that of the general assembly as to 

how best to address the concerns which the plaintiffs bring to 

this court. 

Significant among these reasons is the fact that the 

legislative and executive branches of our state government have 

demonstrated appropriate concern and willingness to act in regard 

to the conditions about which the plaintiffs complain. The 

state's racial imbalance laws, Conn. Gen. Stat. § 10-226a et. 

seq., the state's Education Evaluation and Remedial Assistance 

Grants, Conn. Gen. Stat. § 10-140, the state's Priority School 

District Grants, Conn. Gen. Stat. §§ 10-266p through 10-266r, and: 

the overall way in which the state directs its resources toward   
the neediest school districts like Hartford are important 

! 

examples of the ongoing ccmmitment to try to address the problems! 

of better educating all of our children regardless of their race, 

national origin, socioeconomic status, or place of residence. 

This concern is not something which is new in Connecticut. 

The concern for these issues which is apparent today traces its 

roots at least as far back as the early 1900's. 

  
~80~ 

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In the early 1900's changes were made in the curricula of 

the public schools to accommodate the needs of the large influx 

of immigrants who could not speak or read English which was being 

experienced at that time. The legislature was also taking action 

to insure that children residing in small towns which could not 

afford to maintain a high school were not deprived of the 

opportunity to attend high school because of where they lived. 

Through legislative action children from small towns were 

afforded the opportunity to attend high school in neighboring   
| 
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1 
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towns with a partial state subsidy for tuition and transportation 

costs in some cases. Ames, "History of Education in 

Connecticut", Part 1, in 5 Osborne, History of Connecticut, pp.     
199-200, 207-208. What we see in the law today is a continuation 

i 
of this recognition that education is important for all citizens | 

| 

and for our society as a whole. 

The complexity of the problems cited by the plaintiffs and 

the need to balance a multitude of legitimate and competing 

interests in order to deal with these complexities is another 

reason why the matters raised in the present case are properly 

left to the general assembly. To the extent that the problems 

about which the plaintiffs complain are the products of larger | 

| 

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societal ills such as poverty, affordable housing, health care, 

nutrition, the breakdown of the family, crime, drugs, or the 

like, the legislature is clearly in a better position to address 

these matters than the court would ever be in the context of this 

lawsuit.     
; But even in terms of how best to address the manifestation 

1 of these social problems in our schools, the legislature is in a 

better position than the courts to act "appropriately." To 

identify and to act on problems in our schools, agreement must 

first be reached on the specific goals of public education and 

the specific criteria upon which attainment of these goals will 

be measured. The goals of public education must, however, be   
contemporary, not static, in an ever changing society. With 

ever changing goals the courts will always be at a loss to find 

criteria to measure, in the traditional legal fashion, compliance 

with the constitution. As it is, the criteria for evaluating 

quality of education is virtually limitless and seldom easily 

measured. Even the factors which have been identified by the 

Supreme Court as among the criteria which ought to be considered 

      
Bi -82- | 

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in measuring the quality of education are highly complex and not 

easily or confidently measured. 187 

The complexity and uncertainty in the measurement of what 

is, or is not, a quality education at ‘any particular point in 

time leaves the courts without the kind of judicially 

discoverable and manageable standards for resolving issues like 

those presented in this case which are necessary. These kinds of 

standards are necessary for the court to be able to provide 

effective relief without expressing a disregard for the role of 

the general assembly. Pellegrino v. O'Neill, 193 Conn. at 681. 
  

If the court were to venture into these uncertain and |   immeasurable waters, it could very well be putting public 

education at risk rather than their promoting its vitality and 

effectiveness. The risk is that the court, by constitutional 

adjudication, may impose a degree of rigidity on the efforts to 

address new and changing conditions and problems in education 

  

| 
16/ ~The criteria for evaluating 'quality of education' in a | 

| 

  

town includes the following: (a) size of classes; (b) training, 

experience and background of teaching staff; (c) materials, books | 

and supplies; (d) school philosophy and objectives; (e) type of 

local control; (f) test scores as measured against ability; (9g) 

degree of motivation and application of students; (h) course 

offerings and extracurricular activities." Horton I, 172 Conn. 

634. 

  
-83- 

 



  

  

  
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that ultimately proves harmful to the flexible goals and concerns 

of a proper education. 

It is not the role of the court to 
strike precise balances among the 
fluctuating interests of competing 
private groups which then become 
rigidified in the granite of 
constitutional adjudication. That 
function has traditionally been 
performed by the legislature, which has 
far greater competence and flexibility 
to deal with the myriad complications 
which may arise from the exercise of 
constitutional rights by some in 
dimution of those of others. 

Cologne v. West farms Associates, 192 Conn. at 65. Although it is 
  

not stated explicitly, these concerns seem to be reflected in the 

reluctance with which the Supreme Court has addressed attempts to 

entice the court into reading Horton I in a manner which confers 
  

authority on the court to go beyond traditional equal protection 

and due process analysis when considering matters relating to 

education. See, Campbell v. Board of Education of the Town of 
  

New Milford, supra. 
  

As the U.S. Supreme Court noted in the case of Milliken v. 
  

Bradley, 418 U.S. 717, 743-744,'94 S.Ct. 3112, 41 L.Ed.2d 1069 

(1974), a case in which the court faced issues which are 

-Bd = 

  
  

 



  

minimally distinguishable from the issues presented in this case 

only because their resolution was to be found in the federal 

constitution rather than the state constitution:     
[I]t is obvious from the scope of the 
interdistrict remedy itself that absent 
a complete restructuring of the laws of 

' Michigan relating to school districts 
the District Court will become first, a 
de facto "legislative authority" to 

H resolve these complex questions, and 
§ then the "school superintendent" for the 
3 entire area. This is a task which few, 

if any, judges are qualified to perform 
and one which would deprive the people 
of control of schools through their 
elected representatives. 

The language of Article VIII, § 1, the history of legislative 

+ concern for the problems about which the plaintiffs complain, 

the absence of judicially discoverable and manageable standards, 

and the impossibility of directing a remedy which does not 

infringe on the powers of the legislature, leave no doubt that 

the case now before this court presents the court with a 

non-justiciable controversy which is rightly within the province 

of the legislative branch. 

    

  

  

 



  

    

    

IV CONCLUSION   The court would have to reach three specific conclusions of 
| 

law in order to find for the plaintiffs in this case. First, the 

court would have to find that the state can be held responsible 

for violating the constitution even though the conditions which 

allegedly violate the constitution are not the products of state 

action. Second, the court would have to find that the 

constitution imposes some specific affirmative obligation on the 

state to address the plaintiffs' concerns in a matter different 

from the manner which has been chosen by the general assembly, 

even though no specific solution to the problems can be   identified. Third, the court would have to find that the court, | 

rather than the legislature, is charged by the constitution with 

the responsibility of identifying the appropriate ways to address! 

complex educational problems like those voiced by the plaintiffs. 

  None of these three conclusions can be sustained under the law. 

| 
Because there is no state action upon which to find that the. 

| 
constitution has been violated; because the constitution does not! 

impose a specific obligation on the state to deal with the 

concerns which have been identified by the plaintiffs in a manner 

56   

 



  

which differs from that which the general assembly has already 

embarked upon; and because the legislature, rather than the 

judiciary is, under the constitution, the branch of government 

which is specifically and exclusively charged with choosing the 

"appropriate" method for addressing problems like those     
identified by the plaintiffs, the present motion should be 

|| granted and judgment should be entered for the defendants in this 

action as a matter of law.   

    

   



  

  

  

  

  

  

BY: 

FOR THE DEFENDANTS 

RICHARD BLUMENTHAL 
ATTORNEY GENERAL 

BERNARD F. MCGOVERN, JR. 
Assistant Attorney General 

br eda 
  

sistant Attorney General 
cKenzie Hall 

oe Sherman Street 
Hartford, CT 06105 
Tel: (203) 566-3696 

0y awe l) lids 

Ryd R. WHELAN - Juris 085112 

  

DIANE W. WHITNEY - Juris 08 fo 
Assistant Attorney General’ 
MacKenzie Hall 
110 Sherman Street 
Hartford, CT 06105 
Tel: (203) 566-3696 

- THEIR ATTORNEYS 

~85= 

  
  

  

  
 



  

      

  

  

  

CERTIFICATION 
  

This is to certify that a copy of the foregoing was mailed, 

postage prepaid on July 8, 1991 to the following counsel or 

record: 

John Brittain 
University of Connecticut 
School of Law 
65 Elizabeth Street 
Hartford, CT 06105 

Wilfred Rodriguez 
Hispanic Advocacy Project 
Neighborhood Legal Services 
1229 Albany Avenue 
Hartford, CT 06112 

Philip Tegeler 
Martha Stone 

Connecticut Civil Liberties Union 
32 Grand Street 

Hartford, CT 06106 

Wesley W. Horton 
Mollier, Horton & Fineberg, P.C. 
90 Gillett Street 
Hartford, CT 06105 

Jenny Rivera, Esq. 
Ruben Franco, Esq. 

Puerto Rican Legal Defense Fund, 
99 Hudson Street 
14th Floor 
New York, NY 10013 

Inc. 

BG 

  
 



  

    

    

Julius L. Chambers 
Marianne Lado, Esq. 
Ronald Ellis, Esq. 
NAACP Legal Defense Fund and 
Educational Fund, Inc. 
99 Hudson Street 
New York, NY 10013 

John A. Powell 

Helen Hershkoff 

American Civil Liberties Union 

132 West 43rd Street 

New York, NY 10036 
/ 2) 

i / 
/ 

be 
= 
  

/ 

«Ow 

  

  

: / : sy i 2 z oh Li 
John R. Whelan i 
Assistant Attorney General