Motion to Stay Further Proceedings Pending the Decision on Intervenors' Motion for Payment of Attorneys' Fees

    SC 15255 

  

Milo Sheff, et.al., : Supreme Court 

Plaintiffs - Appellants, 

VS. : MOTION 

William A. O'Neill, et. al., 

Defendants - Appellees. : May 10, 1995 

  

MOTION TO STAY FURTHER PROCEEDINGS PENDING THE DECISION 

OF THE SUPERIOR COURT ON THE INTERVENORS' MOTION FOR PAY 

MENT OF ATTORNEYS' FEES AND COSTS UNDER 42 0.85,C. 5 1988 
  

The Intervenors in the court below hereby move this 

Court pursuant to P.B. § 4041 to stay further proceedings in 

this matter until the court below decides the Intervenors' 

Motion for Attorneys' Fees and Costs, Dkt. # 224.00, filed 

April 25, 1993 and marked Ready on the Short Calendar on May 

8, 1995 (# 199). In order to assist this Court in deciding 

this motion, the Intervenors have attached a number of doc- 

uments and exhibits which are part of the record on appeal 

for the Court's consideration. 

I. Factual Background. 
  

Sheff v. O'Neill was a collusive law suit. The Plain- 
  

tiffs in their Post Trial Brief detailed the history of what 

they claimed was the history of segregation and official in- 

action starting in the 1960's: That portion of the Brief 

which deals with the 1980's is attached as Exhibit 1. From 

1960 to 1980 the Hartford School District had tried to elim- 

inate the boundaries separating Hartford from the surround- 

ing suburban school districts including at one point filing  



  

2 

a federal law suit paralleling the action filed in Detroit 

known as Milliken v. Bradley, 418 U.S. 717 (1983). For over 
  

20 years their efforts had been unsuccessful. As the Plain- 

tiffs accurately point out, 1983 was a turning point when 

Gerald Tirozzi was appointed Commissioner of Education. See, 

Exh. 1 at 74. Tirozzi put into motion a series of committees 

and studies which developed recommendations for programs 

which called for mandatory interdistrict desegregation. See, 

Id.<at 75 - 77. 

In 1988, the Report on Racial/Ethnic Equity and Deseg- 
  

regation in Connecticut's Public Schools was issued. This 
  

became known as the Tirozzi I Report. As the Plaintiffs cor- 

rectly point out, Tirozzi I "[r]epresents a clear acknowl- 

edgement of the pressing need for mandatory interdistrict 

school integration, and an admission that meaningful deseg- 

regation may not be achieved solely through voluntary co- 

operation of local school districts". Id. at 77. Tirozzi 1 

recommended that if the local school districts did not im- 

plement desegregation plans voluntarily, "[t]he State Board 

of Education should be empowered to impose a mandatory de- 

segregation plan". Id. at 77. 

The reception accorded Tirozzi I by the general assem- 

bly and the local school districts compares favorably to the 

reception given to Gen. Custer by the Native Americans of 

the Western Plains. So strong was the opposition that the 

Report had to be withdrawn and a watered down version, Tir- 

ozzi II was issued in its place. Id. at 78. As the Plain- 

 



  

3 

tiffs dryly note, "The Sheff v. O'Neill lawsuit was filed 
  

shortly after the release of the Tirozzi II Report.” Id. at 

78. 

From the early 1960's through the release of the Tiroz- 

zy II Report, the N.A.A.C.P. supported the efforts first of 

the Hartford School Board and later the State Board of Educ- 

ation to implement a mandatory desegregation program. When 

Tirozzi I failed, the N.A.A.C.P. and the State Board of Ed- 

ucation adopted a new approach. Since the general assembly 

and the local school districts would not voluntarily adopt 

a desegregation plan or empower the State Board to impose 

one, the N.A.A.C.P. and the State Board of Education in the 

person of Gerald Tirozzi and the Board members would file a 

"friendly suit", Sheff v. O'Neill, in which the Friendly Ad- 
  

versaries would join together and invoke the power and auth- 

ority of the state judiciary to overcome the resistance of 

the general assembly. The purpose of the Sheff Plaintiffs 

from the outset was to use the power of the state courts to 

empower the Defendants Tirozzi and the State Board to impose 

the Defendants' own plan, Tirozzi I, over the objections of 

the general assembly and the local school districts. If this 

Court will compare the program described in Tirozzi I set 

out in Exh. 1 at 77 with the remedies suggested in the same 

Brief set out in Exhibit 2, the similarities are obvious. It 

is also convenient that as part of the remedy suggested by 

the Sheff Plaintiffs, after judgment is entered in favor of 

the Sheff Plaintiffs, the court was asked to put the Friend- 

 



  

4 

ly Adversaries in charge of the planning process as the 

"oversight group".. See, Exh. 2 at 111.(The oversight group 

consists of representatives of the plaintiffs, defendants 

(Board of Education, Commissioner and Governor), and attor- 

ney representatives. Their purpose is to provide guidance 

and to evaluate plans submitted by the [local school dist- 

rict] planning group.) Thus, at the end of the Sheff pro- 

ceedings, Tirozzi, the State Board and the N.A.A.C.P. would 

be empowered to impose Tirozzi I under their direct super- 

vision unencumbered by opposition from the general assembly. 

Naturally, as inconvenient as it may seem, the Friendly 

Adversaries had to make a record. To make this task easier, 

they decided to eliminate any parties whose position was 

concretely adverse to theirs. This meant that for one of the 

few times in history, a desegregation suit was filed in 

which the school districts involved were not named as a par- 

ty. No school districts, not even Hartford, was named as a 

party. This created a problem, however, since although the 

local school districts were not to be parties, the Friendly 

Adversaries wanted them to be bound by the decision, espec- 

ially the remedy. To accomplish this, they invoked the "col- 

lateral challenge rule" which was then the law in most fed- 

eral circuits, including the Second Circuit, and many 

states. Under the collateral challenge rule, if you were 

notified of a law suit in which your rights were threatened 

and you did not intervene in that law suit to protect your 

rights, you were deemed to have waived those rights and if a 

 



  

5 

judgment was rendered which adversely effected your rights, 

you were esstopped from collaterally challenging that judg- 

ment in a separate action. To cloak Sheff in this procedural 

rule, immediately after the action was filed, the Plaintiffs 

filed a Motion for Order of Notice in which the Plaintiffs 

"Because of the hardship involved in citing in all interest- 

ed persons as defendants," asked for an order directing ser- 

vice by registered mail upon the 21 suburban school dist- 

ricts through the Superintendent of Schools and to the pub- 

lic via the print media. What notice was given of, however, 

was a law suit in which no relief impacting upon the subur- 

ban school district was requested. In fact, until mid-trial, 

the Plaintiffs refused to outline precisely what the scope 

of the requested relief would be. 

During the discovery phase of Sheff, the best witnesses 

for the Plaintiffs were their Friendly Adversaries, the Def - 

endants. In their Post Trial Brief and Reply Brief, the Plain- 

tiffs highlighted some of the most damaging testimony offer- 

ed by Commissioner Tirozzi and his successor, Commissioner 

Ferandino. "Both defendants Commissioner Vincent Ferandino 

and former Commissioner Tirozzi acknowledged the harms of 

racial segregation and Commissioner Tirozzi admitted that 

both he and the State Board of Education had been aware of 

the harmful effects of racial segregation during his tenure 

as Commissioner." Plaintiffs' Post Trial Brief at 8. "Defen- 

ants also agree with plaintiffs regarding the need for a 

multi-district solution or regional school planning." Reply 

 



6 

Brief at 51.(citing Ferrandino and Tirozzi depositions) "De- 

fendants Ferrandino and Tirozzi both support controlled - 

choice [ie. Boston] plans." Reply Brief at 51. (citing de- 

positions) 

The assistance given by the Defendants to the Plain- 

tiffs was not limited to friendly testimony. The remedies 

outlined by the Plaintiffs would have abrogated rights and 

powers currently reserved to the local school districts by 

state statute. Comparing the remedies set out in Exhibit 2, 

Student assignment is reserved to the local school districts 

under C.G.S. § 10-220, the right to employ teachers is re- 

served under C.G.S. § 10-241, control over curriculum and 

selection of textbooks is reserved under C.G.S. § 10-221(a) 

which also reserves to the local school districts control 

over discipline and ultimately, under C.G.S. § 10-220, the 

general assembly delegated the power to implement the educ- 

ational interests of the state to the local school districts 

and not to the Board of Education. The Defendants in Sheff 

neglected to cite these or any of the other numerous statu- 

tory provisions reserving powers to the local school dist- 

ricts in any of the briefs it filed including the State's 

Post Trial Brief. Finally, despite the fact that the Plain- 

tiffs were clearly asking the court to impose race based 

criteria on the local school districts, the Friendly Adver- 

saries stipulated that no federal statutes, ie. the 14th 

Amendment of the U.S. Constitution, were involved. 

Unfortunately for the Friendly Adversaries, within mon-  



  

~ 

ths of the filing of the Sheff Complaint, the U.S. Supreme 

Court took up the collateral challenge rule and voided it. 

In Martin v. Wilks, 490 U.S. 755 (1989), the Court ruled 
  

that joinder as a party, not knowledge of a law suit and an 

opportunity to intervene, is the method by which potential 

parties are bound by a judgment and decree. Id,. at 765. 

With this decision, the insulation against a collateral at- 

tack by the real parties in interest, the suburban school 

districts and the parents, school children and taxpayers in 

those districts, was stripped away. 

Between December 16, 1992 and February 26, 1993, the 

Sheff trial was held. Knowing that the outcome was pre-ord- 

ained, representatives of the parents and the school child- 

ren did not wait for the trial to end and for judgment to 

enter to utilize the opening provided by the Supreme Court 

in Wilks. On February 5, 1993, less than one week after the 

Sheff Plaintiffs had rested their case without putting on 

evidence of de jure discrimination, an action was filed in 

the U.S. District Court for the District of Connecticut en- 

titled John Doe v. Weicker, 3:93 CV 233 TFGD. A copy of the 
  

complaint is attached as Exhibit 3. To assist this Court. in 

understanding the jurisdictional and legal theories under- 

lying this action, attached as Exhibit 4 is a Memorandum in 

Support of Motion for a Status Conference which was prepared 

and filed to assist the court in quickly understanding what 

was at issue. Simply stated, the federal plaintiffs used a 

court created procedural device which allowed them to invoke 

 



  

8 

the jurisdiction of the federal court in the first instance 

to allow them to intervene in the Sheff proceedings without 

submitting them to the jurisdiction of the state court sole- 

ly to advise the state court of the federal claims of the 

federal plaintiffs and that the federal plaintiffs were re- 

serving their right to actually litigate their claims in the 

federal forum if the state court issue a ruling adverse to 

their interests. The federal plaintiffs followed up their 

federal filing with a Motion to Intervene in Sheff, Dkt. No. 

206.00, attached as Exhibit 5, along with a Memorandum in 

Support, Dkt. No. 207.00, attached as Exhibit 6. The Sheff 

Plaintiffs filed a Memorandum in Opposition, Dkt. No.207.50 

which is attached as Exhibit 7. 

The federal case which was intensely litigated through 

the Spring and Summer of 1993 culminated in cross motions 

for Declaratory Judgment filed by the plaintiffs and to Dis- 

miss by the defendants. The Recommended Ruling on these mot- 

ions is attached as Exhibit 8. The district court did dis- 

miss, but not on the merits as requested by the defendants. 

The court dismissed without prejudice to permit Judge Hammer 
  

to determine what role, if any, the federal plaintiffs would 

play in Sheff and to make his ruling. 

On December 14, 1993, Judge Hammer heard oral argument 

on the Intervenors' Motion to Intervene. At oral argument, 

the Intervenors reviewed their federal claims, outlined the 

deficiencies in the Sheff proceedings and presented him with 

copies of the complaint, principal briefs and the Judgment 

 



9 

in the federal case. At that point, the Intervenor's with- 

drew their Motion to Intervene. 

Two days later on December 16, 1993, the first aborted 

final argument took place. Only those familiar with the fed- 

eral law suit and the argument that had taken place days be- 

fore could have understood what happened. Judge Hammer had 

read all of the federal pleadings and briefs. He was partic- 

ularly concerned with the alleged lack of adversity in the 

case and in an on the record exchange, engaged Attorney Hor- 

ton in a discussion as to the adversity between the Plain- 

tiffs and the Defendants. At the end of the exchange, Attor- 

ney Horton agreed that there was no disagreement between the 

Plaintiffs and the Defendants. At this point, Judge Hammer 

knew he had a problem on two fronts. First, in view of the 

lack of adversity, the probative value of the record was at 

best highly speculative. In addition, there was a potential 

due process taint which would preclude imposition of any re- 

medy impacting non-parties to the litigation. And this was 

against the background of a collateral challenge in federal 

court that was a virtual certainty. 

Judge Hammer's immediate reaction was to bring in an 

adverse party, the general assembly. He offered to join 

them as party defendants that very day. The Friendly Adver- 

saries argued that this was impossible. At that point, Judge 

Hammer called a halt to the proceedings to reconsider for 

the third time his jurisdiction. 

Final, final arguments were held on November 30, 1994  



  

10 

and the Judge issue his opinion on April 12, 1995. That 

opinion can only be understood against the background of the 

collateral challenge in federal court and the final argu- 

ment on December 16, 1993. Attached as Exhibit 9 is the In- 

tervenors Motion for Order, Dkt. No. 224.00, and the Memor- 

andum in Support is attached as Exhibit 10. At pages 9 - 15, 

the Intervenors outline the principal areas where they im- 

pacted the decision. There is no question in the minds of 

the Intervenors that they were the prevailing parties. 

II. Legal Grounds. 
  

The legal points and authorities supporting the posi- 

tion of the Intervenors are contained in Exhibits 4, 6 and 

10 as well as in the briefs attached to the Motion for Order 

pending before Judge Hammer. The real issue in this motion 

is not legal but practical. Before going forward, should 

this Court not wait for all the parties who contributed to 

the decision of the court below before it so that it can 

have all the arguments presented to Judge Hammer before it? 

At this point, by virtue of the withdrawal of the Motion to 

Intervene, the Intervenors are not parties. Under federal 

law, which dictates the ‘procedure Judge Hammer must apply. 

the § 1988 Motion is proper and timely. The Intervenors be- 

lieve Judge Hammer will grant their Motion, however, whether 

he grants or denies it, it is an appealable ruling. Whether 

the Intervenors come up as Appellees or Appellants, their 

arguments will be presented to this Court as they were to 

Judge Hammer. 

 



Respectfully Submitted, 

7 - 7 “ % LZ 

~ 

y = vd NT ay 

  Z: Robert A. Heghmann 
Juris No. 100091 
521 W. Avon Road 

Avon, CT 06001 

(203) 651 - 4611 
(203) 651 - 9635 FAX 
(Clemco Corporation) 

CERTIFICATION 

I hereby certify that copies of this Motion and all 

Exhibits attached hereto were served on all counsel of 

record in accordance with the Practice Book on May 10, 1995. 
yd 

< 1: ie 4 
2 4 Hr aT =, 

HL Low, Fo 
  

 



  

. 

Bs 

SC 15255 

  

Milo Sheff, et.al., : Supreme Court 

Plaintiffs - Appellants, 

VS. : MOTION 

William A. O'Neill, et. al.., 

Defendants - Appellees. + May 10, 1995 

  

MOTION TO STAY FURTHER PROCEEDINGS PENDING THE DECISION 

OF THE SUPERIOR COURT ON THE INTERVENORS' MOTION FOR PAY 

MENT OF ATTORNEYS' FEES AND COSTS UNDER 42 U.S.C. § 1988 
  

The Intervenors in the court below hereby move this 

Court pursuant to P.B. § 4041 to stay further proceedings in 

this matter until the court below decides the Intervenors' 

Motion for Attorneys' Fees and Costs, Dkt. # 224.00, £iled 

April 25, 1995 and marked Ready on the Short Calendar on May 

8, 1995 (# 199). In order to assist this Court in deciding 

this motion, the Intervenors have attached a number of doc- 

uments and exhibits which are part of the record on appeal 

for the Court's consideration. 

I. Factual Background. 
  

Sheff v. O'Neill was a collusive law suit. The Plain- 
  

tiffs in their Post Trial Brief detailed the history of what 

they claimed was the history of segregation and official in- 

action starting in the 1960's. That portion of the Brief 

which deals with the 1980's is attached as Exhibit 1. From 

1960 to 1980 the Hartford School District had tried to elim- 

inate the boundaries separating Hartford from the surround- 

ing suburban school districts including at one point filing 

 



  

2 

a federal law suit paralleling the action filed in Detroit 

known as Milliken v. Bradley, 418 U.S. 717 (1983). For over 
  

20 years their efforts had been unsuccessful. As the Plain- 

tiffs accurately point out, 1983 was a turning point when 

Gerald Tirozzi was appointed Commissioner of Education. See, 

Exh. 1 at 74. Tirozzi put into motion a series of committees 

and studies which developed recommendations for programs 

which called for mandatory interdistrict desegregation. See, 

14. at 75 - 717. 

In 1988, the Report on Racial/Ethnic Equity and Deseg- 
  

regation in Connecticut's Public Schools was issued. This 
  

became known as the Tirozzi I Report. As the Plaintiffs cor- 

rectly point out, Tirozzi I "[r]epresents a clear acknowl- 

edgement of the pressing need for mandatory interdistrict 

school integration, and an admission that meaningful deseg- 

regation may not be achieved solely through voluntary co- 

operation of local school districts". Id. at 77. Tirozzi 1 

recommended that if the local school districts did not im- 

plement desegregation plans voluntarily, "[t]lhe State Board 

of Education should be empowered to impose a mandatory de- 

segregation plan". Id. at 77. 

The reception accorded Tirozzi I by the general assem- 

bly and the local school districts compares favorably to the 

reception given to Gen. Custer by the Native Americans of 

the Western Plains. So strong was the opposition that the 

Report had to be withdrawn and a watered down version, Tir- 

ozzi II was issued in its place. Id. at 78. As the Plain- 

 



  

3 

tiffs dryly note, "The Sheff v. O'Neill lawsuit was filed 
  

shortly after the release of the Tirozzi II Report." Id. at 

78. 

From the early 1960's through the release of the Tiroz- 

zy II Report, the N.A.A.C.P. supported the efforts first of 

the Hartford School Board and later the State Board of Educ- 

ation to implement a mandatory desegregation program. When 

Tirozzi I failed, the N.A.A.C.P. and the State Board of Ed- 

ucation adopted a new approach. Since the general assembly 

and the local school districts would not voluntarily adopt 

a desegregation plan or empower the State Board to impose 

one, the N.A.A.C.P. and the State Board of Education in the 

person of Gerald Tirozzi and the Board members would file a 

"friendly suit", Sheff v. O'Neill, in which the Friendly Ad- 
  

versaries would join together and invoke the power and auth- 

ority of the state judiciary to overcome the resistance of 

the general assembly. The purpose of the Sheff Plaintiffs 

from the outset was to use the power of the state courts to 

empower the Defendants Tirozzi and the State Board to impose 

the Defendants' own plan, Tirozzi I, over the objections of 

the general assembly and the local school districts. If this 

Court will compare the program described in Tirozzi I set 

out in Exh. 1 at 77 with the remedies suggested in the same 

Brief set out in Exhibit 2, the similarities are obvious. It 

is also convenient that as part of the remedy suggested by 

the Sheff Plaintiffs, after judgment is entered in favor of 

the Sheff Plaintiffs, the court was asked to put the Friend- 

 



  

4 

ly Adversaries in charge of the planning process as the 

"oversight group".. See, Exh. 2 at 111.(The oversight group 

consists of representatives of the plaintiffs, defendants 

(Board of Education, Commissioner and Governor), and attor- 

ney representatives. Their purpose is to provide guidance 

and to evaluate plans submitted by the [local school dist- 

rict] planning group.) Thus, at the end of the Sheff pro- 

ceedings, Tirozzi, the State Board and the N.A.A.C.P. would 

be empowered to impose Tirozzi I under their direct super- 

vision unencumbered by opposition from the general assembly. 

Naturally, as inconvenient as it may seem, the Friendly 

Adversaries had to make a record. To make this task easier, 

they decided to eliminate any parties whose position was 

concretely adverse to theirs. This meant that for one of the 

few times in history, a desegregation suit was filed in 

which the school districts involved were not named as a par- 

ty. No school districts, not even Hartford, was named as a 

party. This created a problem, however, since although the 

local school districts were not to be parties, the Friendly 

Adversaries wanted them to be bound by the decision, espec- 

ially the remedy. To accomplish this, they invoked the "col- 

lateral challenge rule" which was then the law in most fed- 

eral circuits, including the Second Circuit, and many 

states. Under the collateral challenge rule, if you were 

notified of a law suit in which your rights were threatened 

and you did not intervene in that law suit to protect your 

rights, you were deemed to have waived those rights and if a 

 



  

5 

judgment was rendered which adversely effected your rights, 

you were esstopped from collaterally challenging that judg- 

ment in a separate action. To cloak Sheff in this procedural 

rule, immediately after the action was filed, the Plaintiffs 

filed a Motion for Order of Notice in which the Plaintiffs 

"Because of the hardship involved in citing in all interest- 

ed persons as defendants," asked for an order directing ser- 

vice by registered mail upon the 21 suburban school dist- 

ricts through the Superintendent of Schools and to the pub- 

lic via the print media. What notice was given of, however, 

was a law suit in which no relief impacting upon the subur- 

ban school district was requested. In fact, until mid-trial, 

the Plaintiffs refused to outline precisely what the scope 

of the requested relief would be. 

During the discovery phase of Sheff, the best witnesses 

for the Plaintiffs were their Friendly Adversaries, the Def- 

endants. In their Post Trial Brief and Reply Brief, the Plain- 

tiffs highlighted some of the most damaging testimony offer- 

ed by Commissioner Tirozzi and his successor, Commissioner 

Ferandino. "Both defendants Commissioner Vincent Ferandino 

and former Commissioner Tirozzi acknowledged the harms of 

racial segregation and Commissioner Tirozzi admitted that 

both he and the State Board of Education had been aware of 

the harmful effects of racial segregation during his tenure 

as Commissioner." Plaintiffs' Post Trial Brief at 8. "Defen- 

ants also agree with plaintiffs regarding the need for a 

multi-district solution or regional school planning." Reply 

 



6 

  

Brief at 51.(citing Ferrandino and Tirozzi depositions) "De- 

fendants Ferrandino and Tirozzi both support controlled - 

choice [ie. Boston] plans." Reply Brief at 51. (citing de- 

positions) 

The assistance given by the Defendants to the Plain- 

tiffs was not limited to friendly testimony. The remedies 

outlined by the Plaintiffs would have abrogated rights and 

powers currently reserved to the local school districts by 

state statute. Comparing the remedies set out in Exhibit 2, 

Student assignment is reserved to the local school districts 

under C.G.S. § 10-220, the right to employ teachers is re- 

served under C.G.S. § 10-241, control over curriculum and 

selection of textbooks is reserved under C.G.S. § 10-221(a) 

which also reserves to the local school districts control 

® over discipline and ultimately, under C.G.S. § 10-220, the 

general assembly delegated the power to implement the educ- 

ational interests of the state to the local school districts 

and not to the Board of Education. The Defendants in Sheff 

neglected to cite these or any of the other numerous statu- 

tory provisions reserving powers to the local school dist- 

ricts in any of the briefs it filed including the State's 

Post Trial Brief. Finally, despite the fact that the Plain- 

tiffs were clearly asking the court to impose race based 

criteria on the local school districts, the Friendly Adver- 

saries stipulated that no federal statutes, ie. the 14th 

Amendment of the U.S. Constitution, were involved. 

& Unfortunately for the Friendly Adversaries, within mon- 

 



7 

ths of the filing of the Sheff Complaint, the U.S. Supreme 

Court took up the collateral challenge rule and voided it. 

In Martin v. Wilks, 490 U.S. 755 (19892), the Court ruled 
  

that joinder as a party, not knowledge of a law suit and an 

opportunity to intervene, is the method by which potential 

parties are bound by a judgment and decree. Id,. at 765. 

With this decision, the insulation against a collateral at- 

tack by the real parties in interest, the suburban school 

districts and the parents, school children and taxpayers in 

those districts, was stripped away. 

Between December 16, 1992 and February 26, 1993, the 

Sheff trial was held. Knowing that the outcome was pre-ord- 

ained, representatives of the parents and the school child- 

ren did not wait for the trial to end and for judgment to 

enter to utilize the opening provided by the Supreme Court 

in Wilks. On February 5, 1993, less than one week after the 

Sheff Plaintiffs had rested their case without putting on 

evidence of de jure discrimination, an action was filed in 

the U.S. District Court for the District of Connecticut en- 

titled John Doe v. Weicker, 3:93 CV 233 TFGD. A copy of the 
  

complaint is attached as Exhibit 3. To assist this Court. in 

understanding the jurisdictional and legal theories under- 

lying this action, attached as Exhibit 4 is a Memorandum in 

Support of Motion for a Status Conference which was prepared 

and filed to assist the court in quickly understanding what 

was at issue. Simply stated, the federal plaintiffs used a 

court created procedural device which allowed them to invoke  



  

8 

the jurisdiction of the federal court in the first instance 

to allow them to intervene in the Sheff proceedings without 

submitting them to the jurisdiction of the state court sole- 

ly to advise the state court of the federal claims of the 

federal plaintiffs and that the federal plaintiffs were re- 

serving their right to actually litigate their claims in the 

federal forum if the state court issue a ruling adverse to 

their interests. The federal plaintiffs followed up their 

federal filing with a Motion to Intervene in Sheff, Dkt. No. 

206.00, attached as Exhibit 5, along with a Memorandum in 

Support, Dkt. No. 207.00, attached as Exhibit 6. The Sheff 

Plaintiffs filed a Memorandum in Opposition, Dkt. No.207.50 

which is attached as Exhibit 7. 

The federal case which was intensely litigated through 

the Spring and Summer of 1993 culminated in cross motions 

for Declaratory Judgment filed by the plaintiffs and to Dis- 

miss by the defendants. The Recommended Ruling on these mot- 

ions is attached as Exhibit 8. The district court did dis- 

miss, but not on the merits as requested by the defendants. 

The court dismissed without prejudice to permit Judge Hammer   

to determine what role, if any, the federal plaintiffs would 

play in Sheff and to make his ruling. 

On December 14, 1993, Judge Hammer heard oral argument 

on the Intervenors' Motion to Intervene. At oral argument, 

the Intervenors reviewed their federal claims, outlined the 

deficiencies in the Sheff proceedings and presented him with 

copies of the complaint, principal briefs and the Judgment 

 



  

9 

in the federal case. At that point, the Intervenor's with- 

drew their Motion to Intervene. 

Two days later on December 16, 1993, the first aborted 

final argument took place. Only those familiar with the fed- 

eral law suit and the argument that had taken place days be- 

fore could have understood what happened. Judge Hammer had 

read all of the federal pleadings and briefs. He was partic- 

ularly concerned with the alleged lack of adversity in the 

case and in an on the record exchange, engaged Attorney Hor- 

ton in a discussion as to the adversity between the Plain- 

tiffs and the Defendants. At the end of the exchange, Attor- 

ney Horton agreed that there was no disagreement between the 

Plaintiffs and the Defendants. At this point, Judge Hammer 

knew he had a problem on two fronts. First, in view of the 

lack of adversity, the probative value of the record was at 

best highly speculative. In addition, there was a potential 

due process taint which would preclude imposition of any re- 

medy impacting non-parties to the litigation.'And this was 

against the background of a collateral challenge in federal 

court that was a virtual certainty. 

Judge Hammer's immediate reaction was to bring in an 

adverse party, the general assembly. He offered to join 

them as party defendants that very day. The Friendly Adver- 

saries argued that this was impossible. At that point, Judge 

Hammer called a halt to the proceedings to reconsider for 

the third time his jurisdiction. 

Final, final arguments were held on November 30, 1994 

 



10 

  

and the Judge issue his opinion on April 12, 1995. That 

opinion can only be understood against the background of the 

collateral challenge in federal court and the final argu- 

ment on December 16, 1993. Attached as Exhibit 9 is the In- 

tervenors Motion for Order, Dkt. No. 224.00, and the Memor- 

andum in Support is attached as Exhibit 10. At pages 9 - 15, 

the Intervenors outline the principal areas where they im- 

pacted the decision. There is no question in the minds of 

the Intervenors that they were the prevailing parties. 

II. Legal Grounds. 
  

The legal points and authorities supporting the posi- 

tion of the Intervenors are contained in Exhibits 4, 6 and 

10 as well as in the briefs attached to the Motion for Order 

pending before Judge Hammer. The real issue in this motion 

is not legal but practical. Before going forward, should 

this Court not wait for all the parties who contributed to 

the decision of the court below before it so that it can 

have all the arguments presented to Judge Hammer before it? 

At this point, by virtue of the withdrawal of the Motion to 

Intervene, the Intervenors are not parties. Under federal 

law, which dictates the procedure Judge Hammer must apply. 

the § 1988 Motion is proper and timely. The Intervenors be- 

lieve Judge Hammer will grant their Motion, however, whether 

he grants or denies it, it is an appealable ruling. Whether 

the Intervenors come up as Appellees or Appellants, their 

arguments will be presented to this Court as they were to 

p Judge Hammer. 

 



11 

  

® Respectfully Submitted, 

J Se he, i rd 7 

~ ZF ~ 
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Robert A. Heghmann 

Juris No. 100091 
521 W. Avon Road 

Avon, CT 06001 
(203) 651 - 4611 
(203) 651 - 9635 FAX 
(Clemco Corporation) 

CERTIFICATION 

I hereby certify that copies of this Motion and all 

Exhibits attached hereto were served on all counsel of 

record in accordance with the Practice Book on May 10, 1995. 
Fd 

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CV89-0360977S 

  

  

MILO SHEFF, et al. : SUPERIOR COURT 

Plaintiffs : 

Vv. : JUDICIAL DISTRICT OF 
: HARTFORD/NEW BRITAIN 

WILLIAM A. O'NEILL, et al. : AT HARTFORD 

Defendants April 19, 1993 

      

  

| 
| PLAINTIFFS’ POST-TRIAL BRIEF 

1 

    
 



  

    

  

communities, representing over 50% of the total school enrollment in 

the Hartford region (see Pls’ Exs. 150, 151, 112). During the same 

time period, defendants financed a major expansion of school capacity 

within the increasingly racially isolated Hartford school district. 

(Id.) Defendants had extensive approval authority over each of these 

schools (Gordon I p. 133), and reimbursed local districts at rates 

ranging from 50% to 80% of total construction cost (Gordon pp. 135- 

36). (See also Pls’ Exs. 9, 144, 145.) To this day, defendants   

continue to fund the construction or expansion of segregated single 

district schools (see Pls’ Exs. 142, 143, 160).% 

The 1980s 

The appointment of Gerald Tirozzi as state Commissioner of 

Education in April of 1983 marked a turning point in the history of 

equal educational opportunity in Connecticut. As former 

superintendent of one of Connecticut’s most segregated school 

districts, Tirozzi was aware of the harmful effects of racial and 

economic isolation, and placed the issue at the center of the state’s 

educational agenda. However, in spite of Commissioner Tirozzi’s 

efforts and despite the state’s increasing recognition and 

documentation of the inequities and isolation affecting its inner 

city school children, no progress had been made in addressing the 

problem by the end of Commissioner Tirozzi’s term. 

  

  
® As plaintiffs have earlier pointed out, the state is also 

responsible for creating and maintaining coterminous town and school 
district lines pursuant to C.G.S. §10-240, (see Collier) and 
requiring that parents send children to schools within their town, 
C.G.S. §10-184. 

- 74 - 

 



  

  

  
  

    

In 1984, and again in 1986, the State Board of Education 

set out an official state definition of equal educational opportunity 

(Pls’ Exs. 39 and 43), focussing on eliminating disparities in 

educational resources and outcomes among districts and among racial 

and ethnic groups. Significantly, the state Board at this time 

emphasized the important relationship between racial and economic 

integration and equal educational opportunity, and reiterated its 

position that access to equal educational opportunity "is an issue 

that goes beyond local school district boundaries to the region and 

in some instances, the state as a whole" (Pls’ Ex. 39 at 84) 

(emphasis added). 

In a letter transmitting the 1986 policy to each 

superintendent in the state, Commissioner Tirozzi noted that 

"[n]Jothing in our business is more important than...equality of 

educational opportunity." "Every major study of educational 

opportunities in our state," wrote Tirozzi, "has identified two 

Connecticuts: one is remarkably advantaged, the other unfortunately 

disadvantaged. Experience shows that it is a constant pattle just to 

keep that disparity from growing; and yet our goal remains the 

reduction of that disparity" (Pls’ Ex. 44). 

During this same time, the committee charged with making 

recommendations to the Commissioner on the racial imbalance law was 

moving toward the conclusion that increasingly levels of racial and 

economic isolation were educationally harmful to students, and that 

interdistrict desegregation was the only way to bring about construc- 

tive reform. In their 1985 "Interim Report" (Pls’ Ex. 41), the 

 



  

  

    

    

"Advisory Committee to Study the State’s Racial Imbalance Law and 

Regulations" urged the State Board of Education "to declare that 

racially segregated schools are a barrier to quality and equality of 

opportunity in education." The Committee called for increased 

payments for interdistrict Plans, magnet schools, and educational 

parks, and endorsed the Cambridge controlled choice approach, a 

combination of voluntary and mandatory student assignment. In the 

committee’s final report published the following year, the Department 

of Education documented increasing levels of racial concentration, 

and acknowledged the "strong inverse relationship between racial 

imbalance and quality education in Connecticut’s public schools" 

(Pls’ Ex. 42 at 1). The report concluded that racial imbalance was 

"coincident with poverty, limited resources, low academic 

achievement, and a high incidence of students with special needs" 

(Pls’ Ex. 42, at 1). 

In December 1986, another Department of Education 

committee, the "Committee on Racial Equity," began its work, which 

would eventually culminate in the first Tirozzi report in January 

1988 (Pls’ Ex. 50). The Committee’s working documents Clearly show 

that the staff had full knowledge of available desegregation 

techniques (Gordon II p. 63), and quickly realized the need for 

mandatory interdistrict desegregation. As developed by the 

Committee, the concept of metropolitan "collective responsibility" 

(Pls’ Ex. 46) which would later reappear in the January 1988 final 

report had a strong coercive character: "should [local districts] be 

unable to affect a plan and/or successfully implement it in the time 

- 76 = 

 



  

    

    

established in the plan, the State Department of Education (SDE 

shall mandate a plan of action" (Pls’ Ex. 47 at 2) (emphasis added). 

The controversial January 1988 Report o acia thnic 

  

Equity and Desegregqgation in Connecticut’s Public Schools ("Tirozzi 

  

  

I") (Pls’ Ex. 50) represents a clear acknowledgment of the pressing 

need for mandatory interdistrict school integration, and an admission 

that meaningful desegregation may not be achieved solely through 

voluntary cooperation of local districts (Gordon II p. 11). The 

report urged prompt action, noting that "[f]or Connecticut, the 

period of grace is running out" (Pls’ Ex. 50 at 4): 

First, it is recommended that the school districts 
affected, following state guidelines, would be required to 
prepare a corrective action plan to eliminate racial 
imbalance. Each school district in a region, including 
those deemed to be contiguous and adjacent, shall 
participate in the plan development and implementation. 
Boundary lines separating school districts, often perceived 
as barriers that prohibit or discourage the reduction of 
racial isolation, should not be allowed to defeat the 
school integration efforts. 

Second, it is recommended that solutions contained in the 
desegregation plan should initially be nonprescriptive and 
voluntary, such that the affected school districts might 
themselves find remedies appropriate to their own unique 
situations. Nevertheless, to ensure that solutions are 
found and progress is made, the State Board of Education 
should be empowered to impose a mandatory desegregation 
plan at such time as it might judge the voluntary approach, 
in whole or in part, to be ineffectual. 

(Pls’ Ex. 50 at 11) (emphasis added). 

After the report was released, Commissioner Tirozzi toured 

the state to "get the pulse of the citizens" (Pls’ Ex. 494 at 113). 

Hearing community protest, the state took no action on the Tirozzi 

report’s central recommendations, and to this day, none of the 

- 77 

 



interdistrict recommendations of the report has been implemented 

(Gordon II p. 72) (Pls’ Ex. 494 at 101, 107, 113, 119-20).% 

Instead, the Department issued a second report in April of 

1989, Quality and Integrated Education: Options for Connecticut 

("Tirozzi II") (Pls’ Ex. 60), which, as William Gordon observed, 

"retreats completely from Tirozzi I. It goes purely to voluntary 

strategies" (Gordon II p. 73). Gone from the Tirozzi II report is 

the strong state role envisioned by Tirozzi I, and the concept of 

"collective responsibility" (Gordon II p. 73). According to Dr. 

Gordon, the Tirozzi II report was neither a meaningful nor an 

effective set of recommendations to address the problem of racial 

isolation in Hartford (Gordon II p. 74). However, during this same 

period, the Department of Education was continuing to study and 

document the harms of racial and economic isolation and the glaring 

inequities between Connecticut’s urban and suburban schools. In a 

series of detailed research reports, defendants readily admitted (as 

they had in the first and second Tirozzi reports) a number of the 

points raised by plaintiffs in this case (see Pls’ Exs. 56, 58, 59, 

69, 70). Once again, defendants failed to take appropriate action. 

The Sheff v. O’Neill lawsuit was filed shortly after the release of 

the Tirozzi II Report. 

      5% The defendants’ capitulation to political opposition appears 
even more unfortunate in light of the support that Commissioner 
Tirozzi received from educators and religious leaders, with 
organizations such as the Connecticut Education Association (Pls’ Ex. 
65), the Christian Conference of Connecticut (Pls’ Ex. 64), and the 
Connecticut Federation of School Administrators (Pls’ Ex. 57) calling 
for action on school integration. See also Pls’ Exs. 81, 82.  





CV89-0360977S 

  

  

MILO SHEFF, et al. : SUPERIOR COURT 

Plaintiffs : 

v. : JUDICIAL DISTRICT OF 
3 HARTFORD/NEW BRITAIN 

WILLIAM A. O/NEILL, et al. 3 AT HARTFORD 

Defendants 3 April 19, 1993 

      
| PLAINTIFFS’ POST-TRIAL BRIEF 

  

    
 



    

    

INJUNCTIVE AND DECLARATORY RELIEF IS APPROPRIATE TO REDRESS 
CONSTITUTIONAL VIOLATIONS. 

A. Plaintiffs Meet the Standard for Issuance of Declaratory 
Relief. 

The purpose of a declaratory judgment action is "to secure 

an adjudication of rights where there is a substantial question in 

dispute or a substantial uncertainty of legal relations between the 

parties." Connecticut Association of Health Care Facilities wv. 

Norrell, 199 Conn. 609, 613 (1986). 

The declaratory judgment procedure is "peculiarly well 

adopted to the judicial determination of controversies concerning 

constitutional rights." Horton I, 172 Conn. at 626. The relevant 

practice book provisions and statutes have been consistently 

construed "in a liberal spirit, in the belief that they serve a sound 

social purpose." Id. 

The harms plaintiffs face clearly necessitate the 

imposition of a declaratory judgment. Serious constitutional 

deprivations have been inflicted upon the children for too long. The 

evidence compels a remedy declaring the present educational system to 

be in violation of plaintiffs’ rights under Connecticut statutes and 

the Connecticut Constitution. It is only when the controversy on 

liability has been resolved that the parties can truly face the most 

challenging disputes in this case -- the appropriate remedies to 

address the legal wrongs.  



  

    

    

B. Plaintiffs Meet the Standard For Issuance of an Injunction. 

The requirements for the granting of a permanent injunction 

in this state are well-settled. The Plaintiffs must show irreparable 

harm and the lack of an adequate remedy at law. Stocker wv. 

Waterbury, 154 Conn. 446, 449 (1967). In exercising its discretion 

whether to grant injunctive relief, a court must balance the 

competing interests of the parties, and the relief granted must be 

"/compatible with the equities of the case.’" Dukes v. Durante, 192 

Conn. 207, 225 (1984) (citations omitted). 

Because the harm that would flow from the absence of any 

injunctive relief is immense, this Court must grant plaintiffs more 

than merely a declaratory judgment. In Hartford alone, there are 

almost 26,000 children in a racially and economically isolated school 

system which is failing to provide an adequate education or 

opportunities equal to that of other children in this state. As 

plaintiffs’ witnesses at trial indicated, "something very dulling 

happens to them when they stay in a negative environment, where lack 

of expectation gets lower and lower every year. They just don’t 

grow, they don’t blossom" (Cloud p. 106). "They may not get a chance 

if we don’t provide the experiences" (Carter Pp. 30). As the detailed 

historical treatment of this issue has so repeatedly demonstrated, 

while the state has continued to talk, it has consistently failed to 

back its words with any significant action. But for the children who 

are failing, talk has come all too cheap. Task force report after 

task force report has failed to yield any concrete improvements in 

their educational experiences. Legislative proposal after 

- 108 =- 

 



  

      

        

  

      

legislative proposal has failed to give them the education they 
deserve. They are "the poorest of the poor. ..achieving the lowest of 
the low...[having] the least of the resources...in the highest of the 
high racially impacted districts" (Natriello II Pp. 67-68). Each 
child experiences the education system only once. Each month that we 
delay and each year that we put off action impairs the academic 
ability of these children and continues this "bifurcation of the 
haves and have nots" (Foster p. 152; see also Haig p. 65). As Badi 

  

Foster testified, "there are individuals we’re losing right now on 
the streets of Connecticut, losing simply because they’re losing 

hope" (Foster p. 55). This Court is a means of last resort to 

translate words into action (Carter p. 45; Noel p. 46). "The 
outcomes that Hartford has been producing year after year after year 

may be the best it can do given the current resources and 
circumstances, but if it is it really says something pretty terrible 

about ourselves as a society and government in the State of 

Connecticut" (Slavin p. 40). Injunctive relief is essential if the 

children of Hartford are to be rescued from their current fate. 

Cc. Components of a Remedial Plan 

The state cannot fairly claim that it has taken significant 

action to address the problem of racial and economic isolation in the 

Hartford schools and the educational disparities facing Hartford 

students. In spite of almost 30 years of recommendations and 

reports, almost nothing has been done. Project Concern was never 

expanded to a level that would lead to meaningful desegregation, and 

- 109 ~- 

 



  

    

    

the remaining interdistrict education programs in the Hartford area 

serve only 62 Hartford students, and should not be taken seriously by 

this court. (See supra §III.) 

As Dr. William Gordon pointed out, Connecticut has been a 

leader in documenting the problem of segregation, but has done little 

to constructively address the problem. Unfortunately, the 

legislative and executive branches of government have not had the 

courage to correct what has long been acknowledged to be a situation 

which is "utterly unnecessary" (Slavin Pv 34). Without court 

intervention, there can be no progress (Carter Pp. 45; Gordon pp. 24, 

64, 93). 

For more than three decades in the post-Brown era, 

communities have formulated successful school desegregation plans by 

engaging in a court-ordered and expert-assisted planning process.” 

Those school desegregation plans which have been developed under the 

close supervision and guidance of the court have been the most 

successful (Gordon III p. 24). Initially the court sets the end 

goals, defines the standards, issues timetables and then orders the 

  

Dr. Gordon testified that he knew of no metropolitan plans 
implemented without a court order (Gordon I Ps 118). Another 
educational expert for the plaintiffs testified that he knew of only 
one city that has voluntarily sought to desegregate its schools 
without a court order (Orfield p. 31). A few successful plans 
identified by Dr. Gordon in his testimony include: Eastern Allegheny 
County, Pennsylvania (see, e.qg., oots wv. Commonwealt 
Pennsylvania, 703 F.2d 722, 724 n.1 (3rd Cir. 1983), for various 
cites); Benton Harbor, Michigan (see, e.qg., Berry v. School District 
of City of Benton Harbor, 467 F.Supp. 721 (W.D. Mich 1978); 
Louisville/Jefferson County, Kentucky (see, e.g., Newburg Area 

unci CoV, ard ducatj of Jefferson C ty, 583 F.2d 827 
(6th Cir. 1978). (Gordon III pp. 26-29). See also Orfield I pp. 46- 
47. 

- 110 = 

 



  

  

  

  

    

groups in the planning process to design a plan (Orfield I pp. 44- 

46). 

Plaintiffs’ other expert witness on school desegregation 

planning, Professor Charles Willie of Harvard University, testified 

that successful plans have resulted from such a planning process 

(Willie p. 45). This process consists of two tiers: an oversight 

group and a working planning group (Gordon II p. 84; Gordon III p. 

24). These groups resemble the relationship between a homeowner 

and an architect. The oversight group consists of representatives of 

the plaintiffs, defendants (Board of Education, Commissioner, and 

Governor), and attorney representatives. Their purpose is to provide 

guidance and to evaluate plans submitted by the planning group. The 

planning group, which includes educational experts, desegregation 

experts, demographers, school board and superintendent 

representatives, teachers, parents and selected community 

representatives (Gordon p. 83),” will actually draft a plan for 

submission to the oversight group for approval and eventual 

submission to the court. 

Once the groups are established, it is important to charge 

them with specific directions. As outlined below, any plan for the 

Hartford region must include the following seven components: 

  

7% The court usually appoints an expert or monitor with the 
authority to summon the groups in the planning process until 
completion (Willie p. 45; Gordon III p. 24). 

7” Professor Orfield also emphasized the importance of bringing 
together the remedy experts and the educational experts (Orfield I 
PP. 31, 97). 

-31l - 

 



      

    

The Remedial Plan Must Be Interdistrict In Its Design. 

The Plan Must Include Mandatory and Voluntary 
Provisions. 

Reduction of Racial Isolation and Poverty 
Concentration Must Be a Major Goal. 

Bilingual Education Programs Must be Preserved. 

Educational Enhancements Must Supplement Any 
Desegregation Goals. 

Housing and Other Components Must be Addressed in the 
Plan. 

Timetables Must be Strictly Enforced. 

Monitoring and Reporting Requirements Must be 
Included. 

These components are discussed more fully below. 

1. The Remedial Plan Must Be Interdistrict In Its Design. 

The planning process to achieve racial balance and 

quality education in the greater Hartford region actually began in 

1965 with the Harvard report (Gordon II pp. 11-12 and Pls’ Ex. 1). 

This report recommended a metropolitan plan of education for the 

school districts in the region within a fifteen mile radius of 

Hartford. 

With the isolation of African American, Puerto Rican, 

other Latino and poor students in Hartford, and the isolation of 

white students in an overwhelming number of suburban districts, an 

interdistrict approach remains today the only feasible method to 

ameliorate the disparate conditions in Hartford (Willie pp. 41, 42, 

49; Gordon II p. 14). Plaintiffs’ witnesses were quite unanimous in 

their conclusions that the plan must be "metropolitan wide" (Orfield 

- 112 -  



  

    

p. 32), encompassing the entire urban community housing and 

economic area. Stability as well as academic progress have been 

achieved with metropolitan plans around the country (Orfield I pp. 

46-48; Orfield II pp. 142-43). 

2. The Plan Must Include Mandatory and Voluntary 
Provisions. 

Certain mandatory components are critical ingredients 

of the planning process itself as well as of the actual plan (Willie 

p. 44). Voluntary participation by educational authorities in 

planning for desegregation will not work (Gordon II P. 125). local 

school districts cannot be allowed to "decide" whether to participate 

in the desegregation plan. Even more important, any noncompliance by 

school districts with the goals of the plan should trigger a sanction 

process. The planning process needs the bite of enforcement to 

insure full participation by every district. All school districts 

must participate in the planning process, and they must also 

implement the final educational equity plan (Gordon II pp. 125-126). 

To achieve the goals of racial and educational equity, 

the plan may include some voluntary school selection options by 

parents” as well as "controlled choice" (Willie pp. 41, 42) and 

  

    

Even one of the key defendants, John Mannix, the former 
chairman of the State Board of Education (until January, 1993) 
supported the plaintiffs’ position, favoring a metropolitan remedial 
planning approach ordered by the court to counter the detrimental 
effects of racial and economic isolation (Pls’ Ex. 495 at 18, 26, 30 
and 37) (Deposition of John Mannix). 

5 ..In this respect, it is important to have parent involvement 
as part of the plan (Orfield I pp. 38-58). 

-3113 -  



  

    

    

mandatory "back-up" measures (Orfield I PP. 33-34). No standard 

method currently used in educational administration, such as 

mandatory student assignment, should be excluded from consideration 

in the planning process. 

3. Reduction of Racial Isolation and Poverty 
Concentration Must Be a Major Goal. 

An educational equity plan should be guided by the 

principles well established in Green v. New Kent County,® to focus 

  

  

on student assignment, faculty and staff assignments, curriculum, 

transportation, extracurricular activities and facilities. Commonly 

Known as the six Green factors, they guide the court in the planning 

process to accomplish the ultimate goal of the elimination of racial 

identifiability in every school (Gordon II Pp. 149). In the end, 

schools full of children, who are eager to learn, should not be 

"identified as any racial [group] =-- shouldn’t be the poor school, 

the black school, the Hispanic school, the white school" (Gordon II 

p. 150)% -- "but just Schools." Green, at 441. 

In the present case, which addresses the dual harms of 

racial and poverty concentration, the Green factors can be adapted to   

  

8 391 U.S. 430 (1968). 

® Adams v. Weinberger, 391 F.Supp. 269 (D.D.cC. 1975); Diaz v. 
ifie hoo istrict, 633 F.Supp. 808, 814 (N.D. cal. 

1985); ited States wv. onkers Board Scho jrectors o 
Milwaukee, 471 F.Supp. 800, 807 (E.D. Wis. 1979) aff’d 616 F.2d 305 (7th Cir. 1980); Arthur v. Nyquist, 566 F.Supp. 511, 514 (W.D.N.Y. 
1983); Vaughans v ard of Education ince Ge d unty, 574 
F.Supp. 1280, 1375 (D. Md. 1983) aff’d in part, rev’d in part on 
other grounds, 758 F.2d 983 (4th Cir. 1985); United States v. 

Ss ount le) i jct, 738 F.Supp. 1513 (D.S.C. 1990) 
modified on other unds, 960 F.2d 1227 (4th Cir. 1992). 

-114 - 

  

 



  

& eliminate both racial and poverty isolation in the region’s schools. 

Only a racial goal set by this court for each school offers the most   
| effective remedy of removing all stigmatization.® Schools should 

mirror society and provide access to mainstream America (Orfield I p. 

30). In addition, to counteract the concentration of poor students 

in individual schools, the Plan must contain specific goals to 

address the economic isolation (Gordon II Pp. 84; Orfield I p. 35; 

Kennedy p. 42). Unless deconcentration of poverty is an integral 

, part of any court-ordered plan, the dismal Hartford outcomes   described at trial will continue (Slavin p. 29).% 

The same goals equally apply to the integration of 

faculty and staff (Orfield I p. 44). Not only is it important to   have a diversity in staff, but it is important to train staff for | 

& i diversity (Orfield I pp. 31-32, 37). 

] The curricula also must be evaluated and altered as 

i necessary to adequately address the diversity -- racially, ethnically 

I and socio-economically =- of the students in the Hartford | 

metropolitan region. Special education, gifted, advanced placement, 

academic and vocational offerings must be designed so that no racial |! 

  

2 por example, the court may order the schools in Hartford and 
the surrounding districts to reflect the student racial ratio in the 
region of approximately 2/3 White and 1/3 children of color. Any 
magnet schools could have increased racial balance such as 50:50 
white and nonwhite African American, Puerto Rican and other Latino 
students (Orfield I p. 55). 

8 See generally, Haig pp. 66, 67 on the necessity to eliminate | 
the high concentration of poverty. See also Pls’ Ex. 493 at 51 
(Deposition of Vincent Ferrandino). 

¢ ng     
 



  

    

    

or economic group is disproportionately represented in any single 

area. 

Effective and equitable transportation must be a part 

of a desegregation plan (Orfield I p. 38) to get to and from school 

as well as to participate in all school related extracurricular 

activities (Orfield I P. 38). 

4, Bilingual Education Programs Must be Preserved. 

Hartford’s bilingual education program currently 

serves approximately 6,000 students per year (Marichal p. 11). The 

vast majority of these students are enrolled in a program for native 

Spanish speakers (Marichal Pp. 12). In order to successfully 

desegregate Hartford and its suburbs the programmatic needs of these 

limited English proficient (LEP) students must be addressed (Orfield 

I Pp. 49). Addressing these needs appropriately entails the 

establishment of quality bilingual education programs in suburban 

schools. Since state law requires that bilingual education be 

provided only when there are 20 or more students with the same native 

language in a school building, consideration must be given to the 

numbers of LEP children who will attend a particular school. There 

must be careful planning in order to insure both the continued 

provision of bilingual education and the guarantee of ethnic 

diversity. 

Given the balances that must be achieved, the 

requirements of state law, and the pedagogy that has developed over 

the implementation of quality bilingual education programs, 

- 116 ~- 

  
| 
i 

| 
| 

1 
| 
i 

| 

| 

 



  

    

participation of experts in this area is crucial to the planning 

process. 

5. Educational Enhancements Must Supplement Any 
Desegregation Goals. 

To enhance the quality of education in Hartford for 

all students, the plan must include educational enhancements? 

(Gordon II p. 113; Orfield I pp. 51-53; Haig p. 66).%® These 

programs are designed around the assumption that all children can 

learn and that it is the schools’ job to insure that every child will 

be successful (Slavin p. 14).% A one-to-one early intervention 

tutoring program such as "Success for All" could be easily and 

quickly replicated in Hartford (Slavin pp. 37-38). Drop-out 

prevention programs, and Upward Bound programs (Orfield I p. 52) are 

  

    

8 Educational enhancements have been defined as programs which 
set a minimum floor for achievement of every child and which improve 
the overall achievement of all children (Slavin pp. 13-14). 
Enhancement includes upgrading the physical facilities and curricula 
to provide an extraordinary education in the inner city schools 
(Willie pp. 48, 49). 

8 The witnesses cautioned, however, that educational 
enhancements alone cannot achieve positive results. They must be in 
combination with the other components (Orfield p. 35), and cannot be 
substitutes for the need to reduce racial and economic isolation 
(Slavin pp. 37-38). 

8 There are several successful enhancement models. Dr. Slavin 
described in detail his model, "Success for All" which has been 
adopted in fifty-six schools in twenty-six school districts (Slavin 
PP. 14-26, 52-53), and is well-respected by educational experts 
(Orfield I p. 36). Other models with positive benefits include the 
"Follow Through" model (Orfield I p. 36), which Hartford had to 
eliminate in budget cutting measures (Hernandez p. 45), and the 
Reading Recovery and Comer Programs (Slavin pp. 32-33; Pls’ Ex. 473). 

--3117 = 

 



      

examples of the types of programs which could be used in upper 

grades. 

Enhancements to educational programs should take into 

account the cultural diversity of the Hartford area. Schools must 

reflect this diversity not only in students, faculty and staff, but 

also in curriculum. Green, supra. Dr. Morales summarized how the 

lack of a multi-cultural education for all students can cause 

continued difficulties. 

I think it’s essential that the teachers and the 
administrators be knowledgeable about issues relating to 
Puerto Rican culture and heritage and implications of the 
combination of poverty and ethnicity into the classroom. 
I think is also means teaching more about =-- all groups of 
people about the Puerto Rican experience. 

(Morales pp. 51-52). 

6. Housing and Other Components Must be Addressed in the 
Plan. 

As Dr. Orfield indicated, it is also important to 

include housing provisions in the educational plan® (Orfield I PP. 

31, 40-43). School construction and housing construction -- an 

obvious link -- require comprehensive planning to prevent the 

perpetuation of segregation in neighborhoods, and regional housing 

mobility programs should be carefully considered.2 

  

    
5 Housing components can be an integral part of a school 

desegregation order. See e.g. Denver; Palm Beach County; Louisville; 
St. Louis (Orfield I pp. 40-41). 

8 Regional housing mobility programs provide counselling and 
moving assistance to tenants who hold state and federal rental 
certificates (Orfield I p. 41). 

- 118 -  



  
  

In addition, components relating to the health needs 

of students may be necessary (Orfield I P. 54). This is particularly 

true in this case given the health effects of poverty confronting the 

students and impeding their academic learning. Id. See also Section 

II(B), supra. 

7. Timetables Must be Strictly Enforced. 

For the planning process to succeed, the court must 

set firm timetables with sufficient time to develop a plan, but not 

SO much time to further defer the dream of an equal educational 

opportunity for students in Hartford with the least and who deserve 

the most (Orfield I p. 44; Gordon I P. 85). Unless rapid deadlines 

are set, racial polarization can also begin to occur in the community 

(Orfield I p. 44), and implementation will become more difficult. 

The plaintiffs cannot overly impress upon this Court 

the urgency to act to prevent further lost generations of youngsters. 

Dr. Orfield indicated a plan could be developed in a minimum of two 

to three months (Orfield I p. 61). Dr. Willie and Dr. Gordon 

indicated no more than six months was necessary to furnish an 

equitable plan for education (Willie P. 47; Gordon II p. 157). 

Within this time frame, the oversight and planning groups must be 

ordered to present the plan to the Court for approval.® 

        ® Dr. orfield also suggested that interim measures could be ordered pending development of a plan, including expansion of Project Concern, an injunction against new school construction that is not racially integrated, training of teachers and staff, faculty recruitment, and development of dual immersion programs (Orfield I PP. 61-64). Dr. Slavin indicated a remedial program could quickly be implemented (Slavin p. 38). 

-. 3119 =  



    
  

  

8. Monitoring and Reporting Requirements Must be 
Included. 

In order to insure that the plan is successful, it is 

important to have a group of experts, independent of the school 

authorities, assess the plan and report directly to the Court and the 

parties? (orfield I pp. 50-51; Pls’ Ex. 455). In particular, the 

educational components of a plan must be carefully scrutinized to 

insure that academic progress is actually being achieved (Orfield I 

P. 50). In addition, drop-out data and college attendance rates 

should be monitored, as well as the numbers participating in pre- 

collegiate training (Orfield I p. 53). Districts should be required 

to monitor and report on such items as discipline, course 

assignments, guidance programs, special education/gifted programs as 

well as the Green factors. School districts must get court approval 
  

for school closings, attendance zone changes, new construction, new 

programs, and other modifications which might affect the plan’s 

goals. 

  

Judges often appoint a bi-racial or bi-cultural committee to 
oversee problems in the implementation of the plan (Willie pp. 46, 
47). 

- 120 = 

 





U. 8. DISTRICT COURT 

DISTRICT OF CONNECTICUT 

John Doe and Mary Doe, individually 

and on behalf of their children William : 

and Jane Doe, as well as all other parents Civil Action No. 

and students similarly situated, and 

Robert Heghmann and Beatrice Heghmann, FY S09%y 2s 

individually and on behalf of their daughter 3 93 Lh U U oh 3 3 

Victoria Heghmann, as well as all other 3 

parents and students similarly situated; Plaintiff's Demand _ 
a Trial by Jury | : 

Ve. 
A . 

«a. 

Hon. Lowell P. Weicker, Governor, State of 

Connecticut, State Board of Education, and 

Vincent L. Ferrandino, member of the State 

Board of Education and Commissioner. 

COMPLAINT 

1. The Plaintiffs, John Doe and Mary Doe, are fictitious 

parties representative of citizens of the United States and the 

State of Connecticut who are domiciled and reside in the twenty 

(20) towns surrounding the city of Hartford. Their children, 

William and Jane Doe attend public elementary and secondary schools 

in the towns where their parents reside. These towns are cited in 

a law suit pending in the Superior Court of the State of 

Connecticut, Judicial District of Hartford-New Britain styled Milo 

sheff, et al. v. William A. O'Neill, et. al., Civ. No. 89-0360977S 

(Hereinafter Sheff). These fictitious Plaintiffs seek to preserve 

the right of real parties to be determined at a later date who are 

affected by the orders, remedies, policies or programs enacted or 

adopted as a result of the Sheff law suit.  



- 2 = 

2. The Plaintiffs, Robert A. and Beatrice M. Heghmann are 

citizens of the United States and the State of Connecticut and are 

domiciled and reside in the town of Avon, Connecticut. Victoria 

Heghmann, their natural daughter, attends Pine Grove Elementary 

School, an elementary school maintained by the town of Avon for the 

children of its residents. Plaintiffs Robert and Beatrice Heghmann 

bring this action on their own behalf, on behalf of their daughter 

Victoria and on behalf of all other parents and children similarly 

situated in the 21 towns surrounding Hartford cited in the Sheff 

law suit. 

3. Defendant Lowell P. Weicker is the Governor of the State of 

Connecticut. Pursuant to C.G.S. Secs. 10-1 and 10-2, with the 

advice and consent of the General Assembly, he is responsible for 

appointing the members of the State Board of Education. 

4. Defendant State Board of Education of the State of 

Connecticut is charged with the overall supervision of educational 

interests of the State, including elementary and secondary 

education, pursuant to C.G.S. Sec. 10-4. 

5. Defendant Vincent L. Ferrandino is the Commissioner of 

Education of the State of Connecticut and a member of the State 

Board of Eduction. Pursuant to C.G.S. Secs. 10-2 and 10-3a, he is 

responsible for carrying out the mandate of the Board, and is also 

director of the Department of Education. 

6. The Defendants herein are defendants in the Sheff law suit 

and would ke the state officers directed to adopt or implement any 

policy, program, order or remedy required by the court in Sheff.  



  

-i3 

7. This action arises under the United States Constitution, 

more particularly the Freedom of Association, Parental Rights, the 

Right of Privacy, the Right to Due Process and the Equal Protection 

of the Law contained in the Constitution and more specifically, the 

1st, 5th, 9th and 14th Amendments thereto, and under federal law, 

particularly 42 U.S.C Sec. 1983 (1979) and 28 U.S.C. Sec. 1343 (3) 

(1979). Venue is proper in this district by reason of 28 

U.8.C. 1391 (Db) (1990) 

8. This action is brought to redress violations and threatened 

violations of the Plaintiffs Constitutional rights guaranteed under 

the United States Constitution and made applicable to the states 

under the 14th Amendment to the Constitution. The Plaintiffs seek 

both injunctive and declaratory relief from the enforcement 

of any order, remedy, policy or program entered or required by the 

court and entered by either judgment or settlement in Sheff, 

either directly by the Court, the Board of Education or by 

legislative enactment, to the extent that any order, remedy, 

policy or program abridges the Constitutional rights enjoyed 

by the Plaintiffs as parents and students and protected by statutes 

and provisions cited above, as well as their rights of Due Process 

and Equal Protection under the Law. 

9. This action is filed in accordance with the procedural 

dictates as set out in the decisions of the U. S. Supreme Court in 

the cases of England v. Medical Examiners, 375 U.S. 411 (1964), 

Government Employees v. Windsor, 353 U.S. 364 (1956) and Railroad 

Commission of Texas v. Pullman, 312 U.S. 496 (1941). 

 



  

Bw 

10. The Plaintiffs herein are not parties to the state court 

action nor are they in privy with any party currently before that 

court. The Sheff case, as plead, does not implicate and does not 

seek any remedies which would implicate or abridge any of the 

Plaintiffs rights or privileges guaranteed by the U.S. 

Constitution. According to media reports, however, the state court 

plaintiffs, who are seeking the creation and enforcement of 

a state right in addition to and beyond those rights contained in 

the U.S. Constitution, are introducing evidence and are laying a 

foundation to request remedies under said state created right 

which, if granted by the court or enacted by the legislature, would 

implicate and abridge the U.S. Constitutional rights of the 

Plaintiffs herein. 

11. In keeping with the Rules of this Court and the advice of 

the Supreme Court in the cases cited in par. 9, supra., the 

Plaintiffs are filing this action as the first step required under 

England to secure federal court adjudication of their 

Constitutional claims. With the filing of this action, Plaintiffs 

respectfully request this Court to stay any further proceedings 

pending conclusion of the Sheff case. The Plaintiffs herein will 

seek to appear in the Sheff case to advise the state court of their 

Constitutional concerns pursuant to the Supreme Court's decision in 

Windsor but will not submit to state court adjudication of those 

claims and will reserve adjudication of those claims for this 

Court. See Letter Dated February 1, 1993 attached as Exhibit A. 

12. The purpose of this action is to secure federal court 

 



  

iB 

adjudication of Plaintiffs' U.S. Constitutional claims while 

permitting the Plaintiffs to appear in the state court proceeding 

to appraise the state court judge of their concerns in the hope 

that the state court will reach a conclusion on the state law 

issues without implicating or abridging Plaintiffs Constitutional 

rights while still preserving the Plaintiffs rights to return to 

this Court if necessary. If the state court in Sheff reaches a 

decision which does not implicate or abridge the U.S. 

Constitutional rights of the Plaintiffs, this case will be 

withdrawn. If the state court issues orders or remedies 

inconsistent with the Constitutional rights of the Plaintiffs, they 

will return to this Court to seek redress for that deprivation. 

13. John Doe, Mary Doe, Robert Heghmann and Beatrice Heghmann 

are parents whose children attend public schools in the 21 towns 

cited in the Sheff complaint. The Heghmann child attends public 

school in the town of Avon. Each of these towns exists within 

boundaries created prior to the founding of the Republic often 

dating back to the 1600's. These town lines were defined by 

geographical boundaries and the pre-existing boundaries of other 

towns. Sheff does not allege nor is there any evidence that these 

boundaries were created or maintained to foster racial segregation. 

14. The school zones in the town of Avon as well as the other 

towns named in Sheff are traditional neighborhood school zones. 

Each school zone is a cohesive and contiguous geographical area 

within which the children are assigned to a school based solely on 

their residence as a matter of right with no reference to race or 

 



  

- Bo 

color. The schools are generally located in the center of the zones 

with each zone as compact and reasonable as possible. The schools 

generally follow a feeder system. Children entering primary school 

are assigned to the school nearest their residence. Primary schools 

then feed their graduates to a specific middle school and then on 

to a specific high school. The town of Avon has two primary 

schools, one middle school and one high school. Other towns have 

more or less schools but in all cases, the zones were drawn along 

natural geographical or physical boundaries without regard to race 

or color. None of the school districts cited in Sheff has ever 

maintained a segregated dual school system, and all school 

districts are currently unitary school systems. 

15. Funding for the schools is provided by both state and local 

sources. The state mandates a minimum expenditure per student and, 

in some school districts, provides revenues drawn from state tax 

sources to meet this minimum. This minimum is adjusted yearly to 

reflect changes in the cost of living. The minimum expenditure 

requirement is designed to assure an adequate minimum educational 

offering in every school in the state. The towns are free to spend 

more than the minimum expenditure and Avon, as well as towns cited 

in the Sheff complaint, use an ad valorem tax on property to 

supplement state sources and exceed the minimum expenditure. The 

difference in each school budget reflects not cnly the value of the 

property in the town but also the desire of each family in the town 

to provide the best education it can afford for the children of the 

town. The parents of the school children of Avon, as well as other 

 



  

-il - 

towns cited in the Sheff complaint, have consistently demonstrated 

their commitment to the schools and children of their town by 

annually supporting school budgets and bond issues in excess of 

state minimum requirements. 

16. The system of neighborhood schools and the local funding of 

education not only assures a basic education to every child in the 

state, it permits and encourages a large measure of participation 

in and control of each neighborhood school at the local level by 

the parents and residents. Although policy decision making and 

supervision in certain areas are reserved to the state, the day to 

day authority over the management and control of all public 

elementary and secondary schools is squarely placed on the local 

school boards which work closely with very active Parent Teacher 

Organizations and answer to the parents of the school children 

in municipal elections. This direct control over decisions vitally 

affecting the education of the Plaintiffs children satisfies a need 

strongly felt by the parents, is vital to the continued public 

support of the schools and is of overriding importance from an 

educational standpoint. 

17. The Sheff complaint, a copy of which is attached hereto as 

Exhibit B, contains four significant claims: 

a) The defendants have permitted school districts to 
emerge in the Hartford area that are sharply segregated, de facto, 
on grounds of race and ethnic background (Sheff Complaint, Pars. 
73-75) ; 

b) Although the defendants recognize that racial and 
economic segregation has serious adverse educational effects, 
denying equal educational opportunity, they have permitted it to 
continue (Sheff Complaint, Pars. 76-78); 

 



- 8 = 

c) The segregation that has arisen by race, by ethnicity 
and by economic status places Hartford schoolchildren at a severe 
educational disadvantage, denies them an education equal to that 

afforded to suburban schoolchildren, and fails to provide a 

majority with even a "minimally adequate education" (Sheff 
Complaint Pars. 79-80); and 

d) Under Connecticut's education statutes, the defendants 

are obliged to correct these problems, and their failure to have 
done so violates the schoolchildren's rights (Sheff Complaint, 
Pars. 81-82) 

18. In the prayer for relief, the Sheff Plaintiffs in addition 

to declaratory judgment, reasonable costs and attorneys fees, 

sought only the following affirmative relief. 

"2, Issue a temporary, preliminary and permanent 

injunction, enjoining defendants, their agents, employees and 
successors in office from failing to provide, and ordering them to 

provide: 

a. plaintiffs and those similarly situated with an integrated 
education; 

b. plaintiffs and those similarly situated with equal 
educational opportunities; : 

c. plaintiffs and those similarly situated with a minimally 
adequate educations. (sic)" 

19. In the Sheff law suit, the Sheff plaintiffs did not seek 

any relief expressly involving the 21 towns surrounding Hartford. 

The towns surrounding Hartford were not joined as parties to the 

law suit. No parties in privy with the parents or students enrolled 

in public primary or secondary education in these towns was joined 

as a party to the Sheff law suit. The Sheff plaintiffs in response 

to an interrogatory interposed by the Sheff defendants asking the 

Sheff plaintiffs to identify specifically what it was the 

defendants were required to do but did not do in responses to the 

"conditions" about which plaintiffs complain responded, "Plaintiffs  



  

“iD - 

are not required to specify which methods would have cured the 

constitutional violation". The Sheff plaintiffs as late as 

September 20, 1991 in their Memorandum in Opposition to Defendants 

Motion for Summary Judgment stated at page 11, " The defendants’ 

real complaint may be that the plaintiffs have set forth no plan to 

solve the problem in the future. But that has to do with remedy, 

not liability. The plaintiffs will be prepared to discuss the 

remedy when the Court wishes to do so...". In his opening statement 

as reported in the media, Attorney Wesley Horton, lead counsel for 

the Sheff Plaintiffs, stated, " This case will decide where 25,000 

Hartford schoolchildren will go to school." Significantly, he did 

not say that this case will decide where 25,000 Hartford 

schoolchildren AND 64,000 schoolchildren in the 21 towns 

surrounding Hartford will go to school. As recently as January 31, 

1993, media reports stated, "Plaintiffs have been unwilling so far 

to talk about specific plans, except to say a court ordered plan 

could contain both mandatory and voluntary elements." Hartford 

Courant, at page Aé6. 

First Cause of Action 
Denial of Procedural and 
Substantive Due Process 

21. The Plaintiffs reincorporate and reallege the allegations 

contained in paragraphs one through 20 of this complaint. 

22. The Plaintiff Parents have a Constitutional right and 

implicit duty to direct the education of their children. This right 

is a fundamental right implicit in the Constitution as part of our 

ordered pattern of liberty. As a fundamental right protected by the 

 



  

- 10 w 

Constitution, the Plaintiffs have a due process right to be heard 

at a meaningful time and in a meaningful manner before any state 

action implicates or abridges this fundamental right. 

23. The Plaintiff Schoolchildren have a Constitutional right to 

learn and gather knowledge under the care and supervision of their 

parents. While the right to an education is not a fundamental right 

under the Constitution, where, as here, the parents pursuant to 

their Constitutional right to direct the education of their 

children have erected and maintained schools for that purpose, the 

Plaintiff Schoolchildren have a fundamental right to learn and 

gather knowledge in the schools provided for them by their parents. 

24. The attempt by the court in the Sheff law suit to 

implicate or abridge the Plaintiff Parents Constitutionally 

protected right to direct the education of their children in their 

neighborhood schools and the Plaintiff Schoolchildren's 

Constitutionally protected right to learn and gather knowledge in 

the schools supervised by their parents by the adoption of any 

remedy designed to remove the schoolchildren from schools in the 

town and transport them to other schools beyond the supervision and 

control of the parents without a hearing at a meaningful time and 

in a meaningful manner denies the Plaintiffs' Constitutional right 

to Procedural and Substantive Due Process under the law. 

Second Cause of Action 
Denial of Equal Protection of the Law 

25. The Plaintiffs reincorporate and reallege the allegations 

contained in paragraphs 1 through 24 of this complaint. 

26. The Sheff plaintiffs seek the creation under the 

 



  

- 11 - 

Constitution of the State of Connecticut of a right to an 

integrated education, ie., the right to sit next to a white student 

in the classroom. This right is beyond the rights preserved in the 

U.S. Constitution. While states may be free to create rights in 

addition to those contained in the U.S. Constitution, in fashioning 

remedies for these state rights the state must not implicate or 

abridge rights created or preserved under the U.S. Constitution. 

27. In order to enforce this state right to an integrated 

education, the Sheff plaintiffs are seeking an order of the court 

requiring the mandatory transportation or forced busing of school 

children from the 21 towns surrounding Hartford into Hartford 

solely on the basis of race. This busing of white schoolchildren 

from the suburbs is being undertaken not to remedy any past de jure 

segregation but to fulfill what the Sheff plaintiffs allege is the 

right of black students under the State Constitution. 

28. The race conscious selection of students in the suburbs 

for busing into the city of Hartford denies the suburban school 

children the Equal Protection of the Law guaranteed under the U.S. 

Constitution. 

Third Cause of Action 
Freedom of Association, Parental Rights 

and Right of Privacy 

29. The Plaintiffs reincorporate and reallege the allegations 

contained in paragraphs 1 through 28 of this complaint. 

30. The rights of parents to move to a community in order to 

improve their situation, provide a better life and education for 

their children and otherwise fulfill their duty to prepare their 

 



- 12 =- 

  

children for future obligations are clearly part of the ordered 

pattern of liberty contained in the Constitution both implicitly 

and explicitly. These rights include the concept of liberty itself, 

the right of free association, the right to direct the education of 

children and the right of children to be educated under the 

supervision of their parents. Under the U.S. Constitution, these 

fundamental rights when untainted by de jure discrimination or an 

attempt to discriminate are paramount and stand superior to any 

right created by the individual states. 

31. While fundamental rights are not absolute under the 

Constitution, any state action which implicates these rights is 

subject to strict scrutiny and must not unduly burden the 

= Plaintiffs exercise of these rights. Any remedies required as a 

result of the Sheff law suit which would result in the forced 

busing of the Plaintiff Schoolchildren and the interference with 

the neighborhood school system currently in place would fail the 

test of strict scrutiny and would be an undue burden on the 

Plaintiffs' Constitutional rights. 

Fourth Cause of Action 
Liberty and Right of Privacy 

32. The Plaintiffs reincorporate and reallege the allegations 

contained in paragraphs 1 through 31 of this complaint. 

33. Whether considered as part of our ordered pattern of 

Liberty or as a Right of Privacy, the Plaintiff Schoolchildren have 

a Constitutionally protected right to the safety and security of 

= their person. Any remedy required by the court in the Sheff case 

which would require their transportation from their neighborhood 

 



- 13. 

schools and the safe, secure atmosphere created and supervised by 

their parents to a distant location, over geographical barriers, 

into an urban environment containing dangers of traffic, street 

crime and drugs and schools with widely reported problems of inner 

school violence would violate the Constitutionally protected rights 

of the Schoolchildren. 

Fifth Cause of Action 
Taking of Property without 

Due Process of Law 

34. The Plaintiffs reincorporate and reallege the allegations 

contained in paragraphs 1 through 33 of this complaint. 

35. The neighborhood schools are part of the essential fabric 

of each of the 21 towns surrounding Hartford. The quality of the 

school system affects the quality of life in the town by way of 

concerts, theatrical productions and school activities. The quality 

of the education affects the value of the real estate in the 

community as well as the value of businesses centered in the towns. 

36. Unlike mere school districts which are ministerial in 

nature, the neighborhood schools represent a Constitutionally 

protected property interest. If the state is permitted to take 

control of the neighborhood schools and force bus the students, the 

Plaintiffs have a Constitutionally protected right to be 

compensated both for the loss of property value and the diminution 

of the value of the education substituted by the State. 

WHEREFORE, the Plaintiffs hereby request the following relief: 

1. A temporary, preliminary and permanent injunction against 

any interference with the Rights of the Parents to direct the  



  

“14 ow 

education of their children and the Rights of the Schoolchildren to 

learn and gather knowledge under the supervision of their parents: 

2. A temporary, preliminary and permanent injunction against 

any race based criteria for student selection, classification, 

busing or any other remedy in violation of Plaintiffs right to 

Equal Protection under the law; 

3. A Declaratory Judgment that any order or remedy of the 

State Court in Sheff or any policy or program adopted by the 

Defendants herein which interferes with the Plaintiffs right to 

direct the education of their children or which implements race 

conscious selection for transfer of students from one town to 

another be declared invalid and unconstitutional: . 

4. Compensation for any interference with or taking of the 

neighborhood school systems currently in place in the 21 towns 

surrounding Hartford: 

5. Reasonable expenses and attorneys fees: and 

6. Such other and further relief as the Court deems just and 

equitable. 

  

Thelr Attorney 
521 West Avon Road 

Avon, Ct. 06001 

 



   



  

\ UNITED STATES DISTRICT COURT 

DISTRICT OF CONNECTICUT 

————— —— — ——— C—O —— ——— —————— —————. — ———" i —— X 

John Doe, et. al. : Civil Action No. 
393 CV 00233 TFGD 

Vv. 
Memorandum 

Lowell Weicker, et. al. 
April 8, 1993 

C—O SS —— ——— X 

Memorandum in Support of Motion for a Status Conference 

Pursuant to Rule 26 (f), F.R.C.P. and Local Rule 9 of this 

Court, the Plaintiffs submit this Memorandum in Support of their 

Motion for a Status Conference. 

(1) Statement of the Issues as They Appear 

Although this case and the Sheff v. O'Neill case in state 

® court appear novel or unique, they really are not. What the Sheff 

plaintiffs in state court and the Doe plaintiffs here are engaged 

in is a re-litigation of the issues raised and decided by the U.S. 

Supreme Court in Milliken v. Bradley, 418 U.S. 717 (1973) (Milliken 

I). In Milliken I, parents and school children in the city of 

Detroit enrolled in the Detroit School District alleged and proved 

de jure violations within the Detroit School District of the 

federal due process clause as defined in Brown v. Board of 

Education, 347 U.S. 483 (1954) (Brown I). As a remedy, the Detroit 

parents asked the U.S. District Court to order a Metropolitan Area 

Desegregation Plan which would order 53 suburban school districts 

to transfer a portion of their white students to Detroit to achieve 

®t racial integration. In Milliken I, the Supreme Court decided that 

in the absence of constitutional violations on the part of the 

 



Can ta 

individual suburban school districts, the students could not be 

required to leave their community schools for the purpose of racial 

integration. 

In Sheff, the plaintiffs have adopted the pleadings and 

procedure utilized by the Bradley plaintiffs in Milliken I, 

however, to avoid the outcome of Milliken I they have filed the 

action in state court and are attempting to litigate the case 

exclusively under state constitutional law. Article Eighth, Sec. 1 

of the Connecticut Constitution states, "There shall always be free 

public elementary and secondary schools in the state." Article 

First, Sec. 1 (Equality of Rights) of the Connecticut Constitution 

provides, "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." Article First, 

Section 20 (As Amended) of the Connecticut Constitution provides, 

"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 or her civil or political rights because of 

religion, race, color, ancestry, national origin, sex or physical 

or mental disability." The Connecticut Supreme Court interpreting 

the right to an education and equality of rights has decided that 

in Connecticut under state law education is a fundamental right and 

that the pupils are entitled to the equal enjoyment of that right. 

Horton v. Meskill, 172 Conn. 615,648-649 (1977) (Horton 1). The 

right to an education, equal or otherwise, is not a right 

guaranteed under the federal constitution. San Antonio School  



  

-3 = 

District v. Rodriquez, 411 U.S. 1 (1972). This fundamental right in 

Connecticut is therefore in addition to and beyond the rights 

contained in the U.S. Constitution. 

The Sheff plaintiffs taking the fundamental right to an 

education in Connecticut combined with the Connecticut 

Constitutional provisions guaranteeing equal rights and the 

prohibition against "discrimination and segregation" have fashioned 

an argument that the de facto racial segregation in the Hartford 

School District, which is 90% minority, as compared with the 21 

surrounding suburban school districts, most of which are 90% white, 

violates the prohibition against segregation and also denies the 

Hartford school children an equal education. Both the Sheff 

plaintiffs and the state defendants are seeking to create a racial 

balance in the Hartford metropolitan area which includes the 21 

suburban school districts surrounding Hartford. The state Board of 

Education has submitted a bill to the state assembly which is 

attached hereto which would create a minority quota of 25%, or a 

percentage quota of less than or greater than a range of plus or 

minus fifty per cent of the regional minority student average. Bill 

No. 832, An Act Concerning Quality Integrated Education, Sec. 1 

(3). Under U.S. Constitutional law, there is no right to racial 

balancing in either the schools or society. Swann v. Bd. of Educ., 

402 U.S. 1, 24 (1970); Milliken v. Bradley, 433 U.S..267,' 280 n. 

14 (1976): Bradley v. City of Richmond, 462 F. 24 1058, 1064 (4th 

Cir. 1972), aff'd by an equally divided court, 412 U.S. 92 (1973); 

Spencer v. Kugler, 326 F. Supp. 1235 (D. N.J. 1971), aff'd, 404 

 



  

4 

U.S. 1027 (1972). Essentially, the Sheff plaintiffs and the state 

are seeking a Metropolitan Area Desegregation Plan including 

mandated racial balance requiring the busing of suburban school 

children out of their school districts similar to the one offered 

and rejected by the U.S. Supreme Court in Milliken I. 

The position of the Doe plaintiffs herein is very simple. 

There is no violation of the federal equal protection clause in 

either the Hartford School District or any suburban school district 

alleged or proved in the Sheff law suit or in any other judicial 

proceeding. State law as defined by the Sheff plaintiffs would 

raise "societal discrimination" to the level of a state 

constitutional violation. The Doe plaintiffs concede that the 

states are free to create rights in addition to those created or 

preserved in the federal constitution, however, in the enforcement 

of these state created rights, the states may not abridge rights 

created or preserved under the U.S. Constitution. The imposition of 

racial quotas or classifications and the enforcement of a 

Metropolitan Area Desegregation Plan mandating transfer of suburban 

school children from their community schools to other districts to 

remedy societal discrimination under state law would violate the 

following U.S. Constitutional rights of the Doe plaintiffs. 

i) The Equal Protection Clause 

The limitations on the ability of the states to impose race 

based classifications or quotas is well established. In the absence 

of documented violations of the federal Equal Protection Clause, 

the states are precluded from employing race conscious criteria. 

 



  

-5 = 

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1988); Wygant v. 

Jackson Bd. of Ed., 476 U.S. 267 (1985); Assoc. Gen'l Contractors 

v. New Haven, 791 F. Supp. 941 (Db. Conn. 1992) (Dorsey, J.). "A 

government agency's interest in remedying 'societal 

discrimination', that is, discrimination not traceable to its own 

actions, cannot be deemed sufficiently compelling to pass 

constitutional muster under strict scrutiny." Wygant v. Jackson Bd. 

of Ed., 476 U.S. at 288 (O!Connor, J., concurring in part and 

concurring in judgment) In Connecticut, where the segregation is 

concededly de facto and there in not even the allegation of de jure 

discrimination or intent to discriminate on the part of any 

governmental agency, use of race conscious criteria in connection 

with currently unitary school district populations would be void as 

unconstitutional. 

ii) The Right of the Suburban School Children to Attend 
Unitary Schools in Their Community 

As the Supreme Court said in Brown v. Bd. of Ed., 346 U.S. 

294, 300 (1954) (Brown II), "At stake is the personal interest of 

the plaintiffs (school children) in admission to public schools ... 

on a nondiscriminatory basis." As the Supreme Court decided in 

Milliken I, "The constitutional right of the Negro respondents 

residing in Detroit is to attend a unitary school system in that 

district." Milliken I, 418 U.S. at 746. The U.S. Constitution does 

not contain white rights and/or black rights, it contains 

individual personal rights. The white child in the suburban school 

district no less than the black child in the suburban school 

 



  

- 6 m= 

district or elsewhere, has a constitutionally guaranteed interest 

in admission to the public schools in his or her community on a 

nondiscriminatory basis. The Doe plaintiffs do not care if the 

racial "goal" or quota is 25%, 75%. 95% or 99%, the first child who 

goes to his or her community school in Hartford or in the suburbs 

and is turned away due to color has had their rights as defined by 

Brown I and Brown II violated. 

iii) The Fundamental Rights of Parents to Direct the 
Education of their Children 

Beginning with the Supreme Court decision in Pierce v. Society 

of Sisters, 268 U.S 510 (1924), courts have recognized the right of 

parents contained in the Constitution to direct the education of 

their children. As the Court decided in Pierce, " The Act 

unreasonably interferes with the Liberty of parents and guardians 

to direct the upbringing and education of children under their 

control...The child is not the mere creature of the state; those 

who nurture him and direct his destiny have the right, coupled with 

the high duty, to recognize and prepare him for additional 

obligations." 298 U.S. at 534-535. This right of parents is a 

fundamental Liberty in the Roe v. Wade line of cases. Stough v. 

Crenshaw, 579 F. Supp. 1091, 1095 (M.D. Ala. 1983), aff'd, 744 F. 

24 1479 (11th Cir. 1984): Dike v. School Bd of Orange County, Fla., 

650 F.2d 783, 785-786 (5th Cir. 1981). Any interference with this 

right by the state is subject to strict scrutiny by the courts. 

In cases where there has been de jure segregation, the rights 

of parents have been subordinated to the need to remedy past 

 



  

é » \ 

= 7 = 

discrimination. Runyon v. Mc Cray, 427 U.S. 160, 175-179 (1975) In 

the case of Connecticut, however, there has been no de jure 

discrimination. The parents rights are intact and superior to any 

state created rights. The "remedy" suggested by the Sheff 

plaintiffs and the state, removal of a percentage of the white 

school children from their neighborhood, community schools 

established for them and supervised by their parents would violate 

the parents fundamental right to direct the education of their 

children. 

iv) The Constitutional Right of the Children to their 
Personal Safety and Security 

School children are "persons" within the meaning of the Bill 

of Rights and they are possessed of fundamental rights which the 

State must respect. Tinker v. Des Moines School District, 393 U.S. 

503, 511 (1969) As Mr. Justice Powell stated in his opinion in 

Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189 (1972), 

"Any child, white or black, who is compelled to leave his 

neighborhood and spend significant time each day being transported 

to a distant school suffers an impairment of his liberty and his 

privacy.? Keyes, 413 U.S. at 247-248. (Powell, J., concurring in 

part and dissenting in part.) In the absence of any U.S. 

Constitutional violation, any state ordered remedy requiring the 

mandatory transportation of school children out of their 

neighborhood community schools violates the U.S. Constitutional 

rights of the school children. Among these rights is the 

fundamental right to physical safety and security in their person. 

 



  

> » 

- 8 - 

Any remedy applied as a result of the Sheff law suit or any 

legislation enacted pursuant to it requiring the transfer of 

students out of their suburban school districts into Hartford would 

endanger the physical safety and security of the school children. 

The transfer would require the children to be transported great 

distances over physical barriers such as mountains and rivers in 

the winter months, in the snow and under icy conditions into an 

urban environment which is less safe and less secure than that from 

which they were removed. Such action on the part of the state 

either through the courts or the legislature would violate the 

school children's Liberty and Privacy rights under the U.S. 

Constitution. 

(2) The Procedural Posture of the Case 

This action was filed by the parents and school children of 

the 21 suburban school districts under 42 U.S.C. 1983 due to the 

threatened violation of their rights by the imposition by the state 

either through the legislature or the courts of race conscious 

criteria for attendance in community schools. There is no question 

that in this circuit, the school children have standing to 

challenge racially discriminatory practices in the school 

environment. Ad Hoc.Com. v. Greenburgh No.1l1l U. Free School D., 873 

F.2d 25, 28 (2d Cir. 1989) Although this Circuit has not decided 

the issue of the parents' standing when rights of their children 

are threatened, there are numerous authorities that have recognized 

the standing of parents of school children who are directly 

affected by the laws and practices against which their complaints 

 



  

- 9 - 

are directed. cf., Bell v. Little Axe Indep. School D. No. 70, 766 

F.2d 1391, 1398 (10th Cir. 1985) 

Since the Doe plaintiffs were not joined as parties in Sheff 

either directly or through a party in privy with them, they had the 

option of bringing this action in either federal or state court 

under Section 1983. The Eleventh Circuit recently reviewed the 

proper procedure to be used by a litigant in invoking the federal 

courts jurisdiction under England v. Board of Medical Examiners, 

375 U.S. 411 (1964). "In England, the Supreme Court recognized that 

if a litigant had the option of going into state or federal court 

with a constitutional claim under section 1983, federal abstention 

doctrines should not force the litigant to pursue the federal law 

claim in state court. In order to guarantee litigants entitled to 

a federal forum an opportunity to litigate their claims in federal 

court, the England court articulated a three-step procedure through 

which the right to a federal court hearing could be preserved: (1) 

the litigant must first file in federal court, (2) the federal 

court will stay the federal proceedings to allow the state courts 

to consider any state law questions, and (3) the litigant must 

inform the state court that, if necessary, he intends to pursue any 

federal constitutional claims in federal court following the 

conclusion of the state court proceedings. If the litigant follows 

these steps, then he may return to federal court if the state court 

proceeding does not adequately resolve the dispute." Fields v. 

Sarasota Manatee Airport Authority, 953 F.2d 1299, 1304 (11th Cir. 

1992) This is what the Doe plaintiffs have done: (1) they filed 

 



  

- 0 

this action; (2) asked this court to stay proceedings until after 

the state court resolves the state law issues; (3) asked permission 

of the state court to file a limited appearance solely to raise the 

federal constitutional issues and (4) in that request advised the 

state court that they were reserving litigation of their federal 

rights for this court. The Doe plaintiffs offer that they are 

properly before this court at this time. Since the Doe plaintiffs 

filed before being joined or filing an appearance in the state 

court, this action properly falls in the Pullman line of cases, not 

the Younger line for Abstention purposes. See, Ivy Club v. Edwards, 

943 F.24 270, 279-280 (3rd Cir. 1991). In this Circuit, policies 

of federalism and avoidance of unnecessary constitutional 

adjudication, supporting Pullman abstention, are outweighed by 

countervailing concerns when a federal court is asked to consider 

claims involving important federal rights. Utd. Fence & Guard Rail 

Corp. v. Cuomo, 878 F.2d 588, 592-594 (24 Cir 1989). This court 

should not abstain under Pullman but merely stay portions of the 

proceedings to allow the state court to complete its deliberations. 

(3) A Proposed Plan and Schedule for Discovery and 
Motions 

The Doe plaintiffs can readily speculate on the relief sought 

by the Sheff plaintiffs in state court based upon the testimony 

elicited from experts who have designed desegregation programs in 

the past and who were called to testify by the Sheff counsel. 

However, any attempt to have this court rule on anticipated 

remedies to be imposed by the state court in the future would be to 

 



  

yy 

ask, in effect, for advisory opinions. As anyone who has had the 

privilege of appearing before this court knows, this court does not 

engage in rendering advisory opinions. Therefore, the Doe 

plaintiffs had no alternative but to request a stay until the state 

court renders its final judgment. The plaintiffs believe, however, 

that it would serve the interest of justice to permit a limited 

amount of discovery and some limited motion practice pending the 

completion of the state court action. 

This case involves questions of U.S. Constitutional law. The 

Doe plaintiffs believe that the rulings of the U.S. Supreme Court 

in Brown I & II and Milliken I are dispositive on the issue of 

imposition of a Metropolitan Area Desegregation Plan in the 

Hartford area. The facts of the case are not in serious dispute and 

with a minimum of discovery, the case could be ready for partial 

summary disposition limited to the applicability of Milliken I and 

the plaintiff's federal constitutional rights. This would not 

involve this court in giving an advisory opinion. It is merely a 

declaration of the applicable const icutional guarantees available 

to the plaintiffs regardless of the final outcome of the Sheff 

case. 

The plaintiffs suggest the following procedure. Permit the 

parties to conduct a limited amount of discovery during a short 

time period. Then permit the defendants to move to dismiss the 

complaint and the plaintiffs to cross move for partial summary 

judgment on the limited issue of the school children's 

constitutional right to attend unitary schools in their community. 

 



- 1lh~ 

This would essentially be a declaration of the suburban school 

children's rights under Brown I & II and Milliken I. If as a matter 

of federal constitutional law the suburban school children cannot 

be removed involuntarily from their community schools to provide 

racial balance to the Hartford School District, it will reassure 

the plaintiffs of their constitutional rights and give guidance to 

the state court as to the limits of its remedial powers. 

(4) Limitations Proposed to be Placed on Discovery 

Other than any limited amount of discovery allowed during the 

pendency of the state court action solely for the purpose of 

dispositive motions, all other discovery should be stayed until the 

conclusion of the state court proceedings. The time limits set out 

in this court's Order on Pretrial Deadlines should begin to run 

from the conclusion of the state court proceedings, not the service 

of the summons and complaint. 

(5) Agreement of the Parties 

Both parties agree that a Status Conference would be helpful 

in this matter. Due to the unusual nature of this action which is 

dependent in part upon completion of a state court proceeding, and 

given the time limits of the Order on Pretrial Deadlines, we both 

believe that the court should be involved in scheduling discovery 

and motions. The Attorney General would like all discovery and 

proceedings stayed until after the final findings of fact and 

conclusions of law are filed in the Sheff state proceedings and the 

closing arguments are made. Final briefs are currently scheduled to  



- 10 = 

be filed in early June. The Plaintiffs find this request 

reasonable, however, it is unlikely that final oral argument in 

Sheff will occur before the tolling of the discovery period under 

this Court's Order on Pretrial Deadlines. The parties need 

immediate relief from that order and the plaintiffs would like to 

implement the proposed plan for limited discovery and motions as 

soon as practicable after the closing oral argument in Sheff. 

The Plaintiffs 

By 
  

Robert A. Heghmann CT 11690 
521 W. Avon Road 

Avon, CT 06001 

(617) 951 - 2076 

CERTIFICATION 

I hereby certify that a copy hereof was mailed on April 8, 
1993, postage prepaid to 

John R. Whelan 

Assistant Attorney General 
110 Sherman Street 
Hartford, CT 06105 

  

Robert A. Heghmann 

 





  

p Cv89-0360977S 

a a i 0 te, tt i i x 

MILO SHEFF, et. al. : SUPERIOR COURT 

Plaintiffs, 

v. : JUDICIAL DISTRICT OF 
: HARTFORD/NEW BRITAIN 

William O'Neill, et. al. : AT HARTFORD 

Defendants. : APRIL 30, 1993 

So A 0 op  .o , s x 

MOTION TO INTERVENE 

Victoria A. Heghmann and Beatrice M. Heghmann reside at 521 

West Avon Road, Avon, CT. Victoria Heghmann is a student enrolled 

in the Avon Public School System. Beatrice Heghmann is the natural 

mother of Victoria Heghmann. Victoria Heghmann and Beatrice 

= Heghmann (hereinafter the Intervenors) respectfully represent: 

1. This action was filed on behalf of school children in the 

Hartford School District and alleges violations of the Connecticut 

State Constitution which either exist or occurred within the 

Hartford School District. No violations of either the state or U.S. 

Constitution are alleged to exist or have occurred within the town 

or school district of Avon or any school district other than 

Hartford. 

2. In the complaint at pars. 33, 34, 37, 43, and 44, reference 

21 suburban school districts as well as the city of Hartford. None 

of these 21 suburban school districts, including Avon, is a party 

to this action nor are any parent-teacher organizations, school 

boards or school board members, residents, parents or school 

ORAL ARGUMENT NOT REQUESTED 

 



  

children representing these 21 suburban school districts parties to 

this action. 

3. The Intervenors are not parties to this action nor is 

anyone in privy with them a party. 

4. The pleadings and evidence in this case do not allege or 

prove any violation of the U.S. Constitution, and more particularly 

the Equal Protection Clause of the 14th Amendment thereto, on the 

part of the 21 suburban school districts. In the pleadings in this 

case, no relief is requested which would effect either the 21 

suburban school districts or the residents, parents or school 

children therein. 

5. Despite the lack of any allegation of any U.S. 

Constitutional violation on the part of the suburban school 

districts or the residents, parents and school children therein, 

the Plaintiffs in this action have introduced evidence which 

appears to support or lay the foundation for a Metropolitan Area 

Desegregation Plan encompassing not only the city of Hartford but 

also the suburban school districts. Such a plan if ordered by this 

Court could set race based classifications either as goals or 

quotas for the suburban school districts and could lead to 

mandatory, involuntary transfer of suburban school children out of 

their neighborhood schools to other districts, including Hartford, 

all in violation of the individual rights of the residents, parents 

and school children of the suburban school districts guaranteed by 

the U.S. Constitution. 

6. The Intervenors, threatened with the violation of their 

individual rights guaranteed by the U.S. Constitution through the 

 



application of race based classifications to the schools and the 

school children in the suburban school districts, have filed an 

action in the U.S. District Court for the District of Connecticut 

captioned John Doe v. Lowell P. Weicker, Civil Action No. 

393CV00233 (TFGD). That action is filed under the procedural 

guidelines set out in England v. Medical Examiners, 375 U.S. 411 

(1964) and the Intervenors have requested that the District Court 

stay that action pursuant to the U.S. Supreme Court decision in 

Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941) until 

the conclusion of this action. 

7. IN FILING THEIR COMPLAINT IN THE U.S. DISTRICT COURT, THE 

INTERVENORS HAVE SPECIFICALLY RESERVED THEIR RIGHT TO LITIGATE 

THEIR FEDERAL CLAIMS IN THE FEDERAL FORUM. THE INTERVENORS WILL NOT 

SUBMIT THEIR FEDERAL CLAIMS FOR LITIGATION IN THIS FORUM AND 

RESERVE THEIR RIGHT TO LITIGATE THE ALLEGED VIOLATIONS OF THE U.S. 

CONSTITUTION IN THE FEDERAL COURT ACTION. THE SOLE PURPOSE OF THIS 

MOTION TO INTERVENE IS TO ALLOW THE INTERVENORS TO APPEAR AND 

INFORM THIS COURT OF THEIR U.S. CONSTITUTIONAL CONCERNS SO THAT 

THIS COURT MAY CONSIDER THOSE CONCERNS IN FASHIONING WHATEVER 

RELIEF IT MAY FIND APPROPRIATE IN RESPONSE TO THE PLAINTIFFS 

PETITION. 

8. Intervenors have no interest in the liability aspect of the 

case nor in the relief requested in the complaint to the extent 

that liability and relief concerns or impacts the Hartford school 

district. However, if the Plaintiffs request and this Court 

considers remedies which concern school districts other than the 

Hartford school district and which impact the residents, parents  



  

= and school children therein, the Intervenors wish to bring to the 

Court's attention the potential U.S. Constitutional violations of 

the individual rights of the residents, parents and school children 

in the suburban school districts which may be involved in this 

Court's decision. 

9. Unless the Intervenors are permitted to appear even on the 

limited basis of informing the Court of potential U.S. 

Constitutional infirmities of any race based classifications or 

Metropolitan Area Desegregation Plan, the Court may not consider 

these important issues in its decision which could result in an 

order or remedy which the Intervenors would then have to upset in 

the federal action. The purpose of the Intervenors is not to thwart 

the Court or the parties herein from reaching a just resolution of 

= this controversy but to assist in providing the Court with a 

sufficient basis to fashion a remedy that is consistent with the 

individual rights of the Intervenors and the other residents, 

parents and school children of the suburban school districts as 

guaranteed by the U.S. Constitution. | 

WHEREFORE, The Applicants hereby move pursuant to C.G.S. 

Sec. 52-107 and Prac. Book Sec. 99 that they may be allowed to 

intervene in this action solely to advise this Court of their 

federal claims while reserving litigation of those claims for the 

THE APPLICANTS oh phy 

By pr 

federal court. 

  

Robert A. Heghfiann 
Juris No. 100091 

521 West Avon Road 
p Avon, Ct 06001 

(617) 951-2086 

(203) 675-6984 

 



  

ORDER 

It appearing to the court that the foregoing motion should be 

granted, it is hereby: 

ORDERED, that the Applicants be permitted to appear and 

present to the court the basis for their alleged U.S. 

Constitutional claims while reserving their right to litigate those 

claims in the federal forum. 

BY THE COURT 

  

 



  

CERTIFICATION 

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

postage prepaid on April 30, 

record: 

John R. Whelan : 

Assistant Attorney General 
MacKenzie Hall 
110 Sherman Street 

Hartford, CT 06105 

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

Wilfred Rodriquez 
Hispanic Advocacy Project 
Neighborhood Legal Services 
1229 Albany Avenue 

1993 to the following counsel of 

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

Jenny Rivera 
Ruben Franco 

Puerto Rican Legal 
Defense Fund, Inc. 

99 Hudson Street, 14th Fl. 

New York, NY 10013 

Julius L. Chambers 
Marianne Lado 
Ronald Ellis 
NAACP Legal Defense Fund 

Hartford, CT 06112 and Educational Fund, Inc. 
% 99 Hudson Street 

New York, NY 10013 

Philip Tegeler John A. Powell 
Martha Stone Helen Hershkoff 
Connecticut Civil Liberties Union American Civil Liberties 
32 Grand Street Union 

132 West 43rd Street 

New York, NY 10036 

Robert A. Te, 

Hartford, CT 06106 

  

7 

 



   



  

BE CV89-0360977S 

oo 4 Ss He 5 me 0 re x 

MILO SHEFF, et. al. 3 SUPERIOR COURT 

Plaintiffs, : 

Vv. 3 JUDICIAL DISTRICT OF 

HARTFORD/NEW BRITAIN 

William O'Neill, et. al. : AT HARTFORD 

Defendants. : APRIL 30, 1993 

0 i ee ed a i i 0 x 

MEMORANDUM IN SUPPORT OF THE MOTION TO INTERVENE 

This memorandum of law is submitted on behalf of Victoria 

Heghmann, a kindergarten student at the Pine Grove Elementary 

School in Avon, and Beatrice Heghmann, her natural parent, 

(hereinafter the Intervenors). This action was filed to remedy 

= alleged state constitutional violations existing or occurring 

within the Hartford school district. No remedy is requested which 

would effect or impact the residents, parents or school children of 

any school district other than the Hartford school district. During 

the course of the trial, the Plaintiffs introduced evidence which 

“would apparently support consideration by this court of a 

Metropolitan Area Desegregation Plan which would impact the 

suburban school districts and the residents, parents and school 

children therein. The Intervenors have no personal interest in the 

controversy between the parents and school children of the Hartford 

school district and the state concerning conditions within that 

school district, however, if this Court orders a remedy impacting 

the suburban school districts, that order may implicate or abridge 

M the individual rights of the residents, parents and school children 

 



  

- Zw 

in the suburban school districts. The Intervenors sole interest in 

this action is to inform this Court of their alleged U.S. 

Constitutional rights so that the Court may consider those rights 

in connection with any remedy it may consider. 

Jurisdictional Statement Under England v. Medical Examiners 

As set out in the motion, the Intervenors have filed an action 

in the U.S. District Court for the District of Connecticut 

captioned John Doe v. Lowell P. Weicker, Civil Action No. 393 CV 

00233 TFGD. To the extent that this Court, the state or any agent 

of the state applies a remedy implicating or abridging the 

individual rights of the Intervenors guaranteed under the U.S. 

Constitution, the Intervenors reserve their right to litigate their 

U.S. Constitutional claims in the federal forum. The Intervenors do 

not submit their federal claims to this Court for litigation. Their 

sole purpose in appearing in this action is to advise this Court of 

the potential violation of their individual rights should the Court 

elect a remedy impacting the suburban school districts and the 

residents, parents and school children therein. 

The Intervenors in filing the federal action invoked the 

procedure provided under England v. Board of Medical Examiners, 375 

U.S. 411 (1964) and Railroad Commission of Texas v. Pullman, 312 

U.S. 496 (1941). The procedure for invoking England is set out in 

Fields v. Sarasota Manatee Airport Authority, 953 F. 2d 1299 (11th 

Cir. 1992). "In England, the Supreme Court recognized that if a 

litigant had the option of going into state or federal court with 

a constitutional claim under Section 1983, federal abstention 

 



  

- 3 

doctrines should not force the litigation to pursue the federal law 

claim in state court. In order to guarantee litigants entitled to 

a federal forum an opportunity to litigate their claims in federal 

court, the England court articulated a three-step procedure through 

which the right to a federal court hearing could be preserved: (1) 

the litigant must first file in federal court, (2) the federal 

court will stay the federal proceedings to allow the state courts 

to consider any state law questions, and (3) the litigant must 

inform the state court that, if necessary, he intends to pursue any 

federal constitutional claims in federal court following the 

conclusion of the state court proceedings. If the litigant follows 

these steps, then he may return to federal court if the state court 

proceeding does not adequately resolve the dispute". 953 F.2d at 

1304. 

The Intervenors are following the procedures outlined in 

Fields, England and Pullman. The seek to appear in this state court 

solely to advise this Court of the potential violation of their 

individual rights guaranteed under the U.S. Constitution should 

this Court or the state impose a Metropolitan Area Desegregation 

Plan involving the suburban school districts. THE INTERVENORS WILL 

NOT SUBMIT THEIR FEDERAL CLAIMS TO THIS COURT FOR ADJUDICATION. THE 

INTERVENORS RESERVE THE RIGHT TO LITIGATE THEIR U.S. CONSTITUTIONAL 

CLAIMS IN THE FEDERAL FORUM. Their purpose in appearing here is 

solely to assist this Court in the selection of a remedy which will 

resolve the dispute between the original parties while respecting 

the individual rights of the residents, parents and school children 

 



PE 

of the suburban school districts. 

The State Law Justification for Intervention 

While a motion to intervene is directed to the sound 

discretion of the court, one factor the court should consider is 

whether the applicant's presence will enable the court to make a 

complete determination of the issues. A. Secondino & Sons, inc. v, 

Ricco, 19 Conn. App. 8, 14, 561 A.2d 142 (1989) Unless this Court 

considers the U.S. Constitutional impact of any race based 

classifications or cross district desegregation orders, it cannot 

and will not resolve all of the issues. This Court and the parties 

herein have invested an enormous amount of time and energy in this 

action. What a waste it would be if in the end it resulted in a 

decree and remedy which was subsequently voided as unconstitutional 

by a federal court. The Intervenors sole interest in this action is 

to advise the Court of the potential constitutional implications of 

remedies which may be presented to the Court by the Plaintiffs. The 

Intervenors do not wish to contest any facts or call any witnesses. 

Their participation will be limited to raising for the Court's 

consideration U.S. Constitutional issues involved in the selection 

of remedies. 

The participation by the Intervenors in supported by decisions 

in U.S. v. Board of School Commissioners, 466 F. 2d 573 (7th Cir. 

1972), cert. denied, 410 U.S. 909 (1973), a decision interpreting 

the parallel federal provision on intervention, and State Board of 

Education v. City of Waterbury, 21 Conn. App. 67 (1990). In the 

federal decision, the action was originally filed by the United  



- 5 = 

  

States against the Board of School Commissioners of the City of 

Indianapolis. Id. at 574. The original parties stipulated to 

findings of racial discrimination and a consent decree. Id. at 574. 

The decree at that point effected only the city of Indianapolis. 

The court then decided to consider the desirability of 

consolidating the Indianapolis schools with surrounding school 

systems and permitted two black students to intervene as parties 

plaintiff in order to represent the interests of all black 

students. Id. at 576. The court, however, denied the motion to 

intervene filed on behalf of the Citizens for Quality Schools 

(CIQS) as representative of all school students. 

In reversing the district court, the circuit court upheld the 

& lower courts rationale that the students and CIQS were adequately 

represented by the Indianapolis Board of School Commissioners as 

long as the controversy involved only the city of Indianopolis, 

however, once the scope of the litigation was expanded to consider 

consolidation with other school districts, then the other student 

voices should have been heard. As the circuit court decided, 

"Changes in the scope of the litigation which occurred after the 

denial of intervention are relevant to a determination of whether 

permissive intervention should now be granted. The trial judge's 

decision to consider the desirability of consolidating the 

Indianapolis schools with surrounding school systems is an 

important change. Permitting intervention in support of appellants’ 

asserted interests may prove helpful to the trial judge's 

consideration of all aspects of this societally affected legal 

 



  

-if - 

problem. It is also significant, we think, that two black students 

have been permitted to intervene as parties plaintiff in order to 

represent the particular interests of all black students in the 

Indianapolis schools". Id. at 576. 

The Indianapolis litigation is analogous to this case. This 

case as plead does not request any relief impacting any school 

district other than the Hartford school district. As long as this 

Court considers remedies limited solely to the Hartford school 

district, the Intervenors concede that they have no interest in 

this controversy and should not be included in this litigation. 

However, should this Court expand the scope of the litigation to 

include consideration of consolidation, in any manner or in any way 

directly or indirectly, of the Hartford school district with the 

suburban school districts, then the Intervenors should be permitted 

to intervene and to advise the Court of their constitutional 

concerns. 

The position of the Intervenors is also supported by the 

decision in State Board of Education v. City of Waterbury which is 

almost directly on point. There is a potential conflict here 

between the Hartford school district and the suburban school 

districts, between the residents, parents and school children of 

the Hartford school district and the suburban school districts. The 

Attorney General cannot adequately represent both sides. If this 

court orders the implementation of a multi-district desegregation 

plan, the direct and personal interest of the parents and school 

children are clearly implicated. 21 App. Div. at 73. The only real 

 



  

7 i= 

issue is timeliness. Given the fact that in the complaint, in the 

pre-trial motions for summary judgment and, in fact, up to the date 

of this motion, the Plaintiffs have not clearly stated precisely 

what remedy they are seeking, it would be more than a little 

disingenuous for them now to argue that the Intervenors should have 

anticipated the remedy they would seek at some earlier date. 

| The Intervenors do not wish to reopen the extensive record of 

these proceedings. They do not wish to present evidence or call 

witnesses. While reserving to the federal court their claim that 

they should have been joined as parties at a much earlier stage of 

these proceedings, at this time the Intervenors wish only to advise 

the Court of their U.S. Constitutional concerns which will be 

raised subsequently for litigation in the federal forum should this 

Court issue a remedy implicating or abridging their individual 

rights. 

Conclusion 

The Intervenors do not wish to prolong this litigation, they 

wish to shorten it. By appearing and raising the constitutional 

issues now and allowing this Court to consider them in its 

deliberations concerning an appropriate remedy, it will facilitate 

the litigation. This court need not even decide these issues since 

the Intervenors are not submitting their federal claims to this 

court for litigation. That is being reserved for the federal forum. 

If the original parties consider the federal claims specious, they 

need not even address them. Consistent with the federal decisions 

in Field and England, supra, all the Intervenors ask is permission 

 



  

- 8 - 

to raise the issues in the hope that the Court will select remedies 

which will not abridge the Intervenors' alleged U.S. Constitutional 

rights and which will not require subsequent proceedings in the 

U.S. District Court. For these reasons, the Intervenors 

respectfully request that the motion be granted. 

THE INTERVENORS 

By Sorry Sp 
  

Their Attorney 

 





Ccvg89-0360977S 

MILO SHEFF, ET AL. SUPERIOR COURT 

VS. JUDICIAL DISTRICT OF HARTFORD/ 

NEW BRITAIN AT HARTFORD 

WILLIAM A. O'NEILL, ET AL. MAY 7, 1993 

PLAINTIFFS’ MEMORANDUM OPPOSING MOTION TO INTERVENE 
    The plaintiffs oppose the motion of Victoria A. Heghmann and 

Beatrice M. Heghmann to intervene on the grounds that it is untimely, 

that the claims they wish to raise should be presented in different 

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proceedings, and that their rights are adequately protected by the 

- “.
 

existing parties. 

This action was commenced April 27, 1989 with service of process 

on the defendants. During May 1989, pursuant to order of the Court 

(Satter, J.), notice of the pendency of the suit was given by newspaper 

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to all citizens of the state, and in addition a copy of the Complaint 

was sent to the superintendents of schools of the twenty-two 

Hartford-area towns, including Avon. An affidavit that notice was 

complied with was filed on July 12, 1989. A motion to confirm the   
compliance was filed on July 20, 1989 and granted on July 31, 1989 

(Thompson, J.). 

The Complaint contains no federal issues. Moreover, the final 

amended complaint is more narrowly drawn than the original complaint. 

TESTIMONY NOT REQUIRED 
ORAL ARGUMENT NOT REQUESTED    



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The trial lasted over two months, starting on December 16, 1992 

and ending on February 26, 1993. The plaintiffs’ posttrial brief was 

filed on April 19, 1993. 

"Any motion for intervention, whether permissive or of right, 

must be timely." Horton v. Meskill, 187 Conn. 187, 193, 445 A.2d 579 
  

(1282). This motion is grossly untimely, coming as it does two months 

after the trial has ended. Moreover, the motion serves no purpose 

other than confusion. The proposed intervenors make only federal 

claims, which is not what the case is about. The federal cases they 

cite for the need to inform the state court of federal claims being 

. made in a federal action concern the situation where the same party has 

brought both state and federal actions. That obviously is not the case 

here. Finally, the applicants’ interests are adequately presented by 

the attorney general's office. Horton v. Meskill, supra, 196. 
  

The motion to intervene should be denied. 

PLAINTIFFS, MILO SHEFF, ET AL 

By w de 
  

Wesley W. Horton 
MOLLER, HORTON & RICE, P.C. 

90 GILLETT STREET 
HARTFORD, CT 06105 

 



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CERTIFICATION 
  

I hereby certify that a copy of the foregoing was mailed or hand- 
delivered to the following counsel of record and to counsel for the 
intervenors, Robert A. Heghmann, 521 West Avon Road, Avon, CT 06001 on 

May 7, 1993: 

John R. Whelan, Esq. 
Martha M. Watts, Esq. 
OFFICE OF THE ATTORNEY GENERAL 

110 Sherman Street 
Hartford, CT 06105 

Alfred F. Lendseth, Esq. 

SUTHERLAND, ASBILL & BRENNAN 

999 Peach Tree Street, Northeast 

Atlanta, GA 30309-3996 

John Brittain, Esq. 
UCONN LAW SCHOOL 

65 Elizabeth Street 
Hartford, CT 06105 

John A. Powell, Esq. 
Helen Hershkoff, Esq. 
Adam S. Cohen, Esq. 
ACLU 

132 West 43rd Street 
New York, NY 10036 

Wilfred Rodriguez, Esq. 
NEIGHBORHOOD LEGAL SERVICES 
1229 Albany Avenue 
Hartford, CT 06112 

Martha Stone, Esq. 
Philip Tegeler, Esq. 
CCLU 
32 Grand Street 
Hartford, CT 06105 

Ronald Ellis, Esq. 
Marianne Engleman Lado, Esq. 

NAACP Legal Defense Fund 
99 Hudson Street 

New York, NY 10013 

Sandra Del Valle, 
Ruben Franco, Esq. 
NAACP LEGAL DEFENSE FUND 
99 Hudson Street 
New York, NY 10013 

Esq. 

dos] Ld 
  ¥ 

Wesley-“W. Horton 

 





ee XT a tS NATIT UST TL ATC Sti 
  

AO 72A 
(Rev. 8/82) 

  

    

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF CONNECTICUT 

» 

3:93CV00233 (TFGD) 
DW 

JOHN DOE, ET AL. 

Ve. 

LOWELL WEICKER, ET AL. DATE: AUGUST 20, 1993 

ee
 

00
 

oe
 

oo
 

oo
 

oo
 

RECOMMENDED RULING ON PENDING DISPOSITIVE MOTIONS 
  

On February 5, 1993, plaintiffs filed this purported class 

action on behalf of parents whose children attend public 

schools in the suburban communities surrounding Hartford; they 

allege that their rights under the First, Fifth, and Fourteenth 

Amendments of the U.S. Constitution will be infringed if their 

children are required to attend schools outside their community 

as result of any decision issued in Sheff v. O’Neill, Dkt. No. 
  

89-360977, currently pending in the Superior Court for the 

Judicial District of Hartford-New Britain.' The three 

defendants are Governor Lowell Weicker, the Connecticut State 

Board of Education, and Connecticut Commissioner of Education 

Vincent Ferrandino. Defendants’ answer, with multiple special 

defenses, was filed on March 24, 1993 (DKkt. #4). 

on July 12, 1993, plaintiffs filed the pending motion for 

  

Iwo exhibits were attached to the complaint: copy of a 
letter, dated February 1, 1993, to Superior Court Judge Harry 
Hammer, who presided over the Sheff trial, written by Attorney 
Robert A. Heghmann, one of the named plaintiffs (Exh. A); and 
copy of plaintiffs’ complaint, dated April 26, 1989, in Sheff 
(Exh. B).  



  

      

AO 72A 
(Rev. 8/82)     

C
N
 

declaratory judgment, and brief and affidavit in support (Dkt. 

##9-11).2 Three days later, on July 15, 1993, defendants filed 

their cross-motion for summary judgment, brief in support of 

their own motion and in opposition to plaintiffs’ motion, and 

Local Rule 9(c) Statement (Dkt. ##12-14).°> On August 4, 1993, 

plaintiffs filed their reply brief to their own motion and in 

opposition to defendants’ motion (Dkt. #17), with six 

additional exhibits.* 

These motions were referred to this Magistrate Judge on 

July 19, 1993 (Dkt. #15). For the reasons stated below, 

defendants’ cross-motion is granted and plaintiffs’ motion is 

  

2rhe affidavit was prepared by Attorney Heghmann. Nine 

voluminous exhibits are attached, as follows: copy of 

plaintiffs’ complaint here (Exh. A); copy of defendants’ answer 

here (Exh. B); copy of defendants’ response to plaintiffs’ 

first request for admissions, dated May 28, 1993 (Exh. C); copy 

of plaintiffs’ post-trial brief, dated April 19, 1993, in Sheff 

(Exh. D); and copy of appellate briefs filed before the U.S. 

Supreme Court in Milliken v. Bradley, No. 73-434 (Exhs. E-I). 
  

Multiple voluminous exhibits were attached to defendants’ 

Local Rule 9(c) Statement, as follows: copy of motion for order 

of notice, dated April 26, 1989 in Sheff (Exh. 1); copy of 

affidavits of return, dated July 12, 1989 in sheff (Exh. 2); 

copy of the Heghmanns’ motion to intervene, dated April 30, 

1993 (Exh. 3); and copy Of defendants’ post-trial brief in 

Sheff (Exh. 4), with eight voluminous subexhibits (Apps. 1-8). 

‘These six exhibits were as follows: videotape of. a 

meeting of regional school administrators, hosted by the 

Meriden Board of Education on June 9, 1993, with regard to 

Sheff (Exh. J); transcript of excerpts from this meeting (Exh. 

K); copy of "Simulation of Standard for Racial and Ethnic 

Balance in the Hartford Area Proposed by Charles willie" (Exh. 

L) (see_also Defendants’ Exh. 4, App. 3); plaintiffs’ brief in 

opposition to the Heghmanns’ motion to intervene, dated May 7, 

1993, in Sheff (Exh. M); copy of House Bill No. 832 (Exh. N); 

and copy of the legislative history of this bill (Exh. 0). 

  

2 

 



  AQ 72A 
(Rev. 8/82)     

denied without prejudice. 

I. DISCUSSION 
  

Defendants raise five arguments in their motion: 

(1) plaintiffs lack standing to bring this action; (2) the 

claims which plaintiffs seek to present in this action are not 

ripe for review; (3) the court should abstain from ruling on 

the plaintiffs’ complaint in view of pending state proceedings; 

(4) plaintiffs do not have a claim upon which relief could be 

granted in that they make no showing that defendants have 

chosen a means to promote diversity in the public schools which 

violates the federal constitution; and (5) nominal plaintiffs 

John Doe and Mary Doe are not proper parties to this action. 

The Heghmanns’ motion to intervene in Sheff is presently 

pending before Judge Hammer (Defendants’ Local Rule 9(c) 

Statement ¢6; Defendants’ Exh. 3; Plaintiffs’ Exh. M). In 

addition, no decision has been issued on the substantive issues 

in Sheff (Defendants’ Local Rule 9(c) Statement 94-5). 

Given this procedural setting, there can be little doubt 

that plaintiffs’ federal constitutional claims are not ripe. 

As the Seventh Circuit summarized last year: 

The doctrine of ripeness 1s based on both 
constitutional and prudential grounds. Under 
Article III of the Constitution, federal courts may 
only adjudicate "cases or controversies" and may not 
render advisory opinions. Cases are unripe when the 
parties point only to hypothetical, speculative, or 
illusory disputes as opposed to actual, concrete 
conflicts. 

Hinrichs wv,  whitburn, 975 PFP.24 1329, 1333 (7th Cir. 
  

1992) (citations omitted). See also Cargill, Inc. v. Charles 
  

3   
 



  AO 72A 
(Rev. 8/82) 

  

® ‘® 
Kowsky Resources, Inc., 949 F.2d 51, 56 (2d Cir. 1991) ("A ‘case 
  

or controversy’ does not exist when the factual events forming 

the basis of a claim have not yet occurred.") (citation 

omitted). 

In numerous cases, where the governing administrative body 

has not yet issued the final decision which forms the basis of 

the constitutional challenge, federal courts have not hesitated 

to dismiss such actions on this doctrine. See, e.g., St. Clair 
  

v. City of Chico, 880 F.2d 199, 202-04 (9th cir.), cert. 
  

denied, 493 U.S. 993 (1989) (plaintiffs-developers’ due process 

and equal protection claims were not ripe for adjudication, as 

neither the defendant city nor county had reached final, 

definitive positions rejecting the developers’ proposals); 

Unity Ventures v. County of lake, 841 F.2d 770, 774-76 (7th 
  

    
Cir.) (same), cert. denied sub nom. Alter v. Schroeder, 488 U.S. 
  

891 (1988); Hastings v. Judicial Conference of United States, 
  

770 F.2d 1093, 1102-03 (D.C. Cir. 1985), cert. denied, 477 U.S. 
  

904 (1986) (plaintiff-judge’s separation-of-powers and due 

process challenge to judicial council’s investigation of him 

was premature, as committee had not yet issued its report of 

conclusions and recommendations for the council); Channel One 
  

Svstems, Inc. Vv. Connecticut Department of Public Utility 
  

Control, 639 F. Supp. 188, 197-98 (D. Conn. 1986) (plaintiff- 

cable company’s challenge under the federal Cable Act was not 

ripe, where plaintiff’s most recent draft plan had not been 

acted upon by DPUC).  



  AO 72A 
(Rev. 8/82)     

  
  

Even beyond the issue of ripeness, this is clearly a case 

  where abstention is appropriate. Last year, in Bethphage 

Lutheran Service, Inc. v. Weicker, 965 F.2d 1239, 1242 n.2 {24 
  

Cir. 1992), (now Chief) Judge Newman identified five bases for 

abstention: (1) avoiding a decision of a federal constitutional 

question where the case may be disposed of on questions of 

state law, Railroad commission of Texas v. Pullman Co., 312 
  

U.S. 496 (1941); (2) in diversity cases, avoiding decisions of 

unclear state law, Louisiana Power & Light Co V. City of 
  

Thibodaux, 360 U.S. 25, reh. denied, 360 U.S. 940 (1959); 
  

  

(3) avoiding needless disruption of state efforts to establish 

a coherent policy in an area of comprehensive state regulation, 

Burford v. Sun Oil Co., 319 U.S. 315, reh. denied, 320 U.S. 214 
  

  

(1943); (4) easing the congestion of the federal court docket 

  when a similar action is pending in state court, Colorado River 

Water Conservation District v. United States, 424 U.S. 800, 
  

reh. denied, 426 U.S. 912 (1976); and (5) avoiding federal 
  

court interference with pending state proceedings, Younger V. 
  

Harrig, 401 U.8. 37 (1971). 

No detailed discussion is necessary for it is apparent 

that abstention here would be appropriate under at least one, 

if not all, of the Pullman, Burford, Colorado River, and 
  

Younger doctrines. See generally Johl v. Cohn, 3:93 CV 
  

1419 (TFGD), slip op. at 4-5 (D. Conn. July 27, 1993) (applying 

Colorado River); Amsat Cable Limited Partnership v. Cablevision 
  

Systems, Civ. No. B89-534 (TFGD), slip op. at 4-9 (D. Conn. May     
 



  AO 72A 
(Rev. 8/82)     

J 
3 

  

4 
Fd 

14, 1990) (denying abstention under Pullman and Burford 

doctrines). what plaintiffs here seek is a voice in the Sheff 

litigation; what role, if any, plaintiffs should play in the 

sheff suit should be decided initially by Superior Court Judge 

Hammer, before this federal court even attempts to evaluate 

federal constitutional implications, if any.’ 

- JI. CONCLUSION 
  

Accordingly, defendants’ motion for summary judgment (Dkt. 

#12) is granted and plaintiffs’ motion for declaratory judgment 

  (Dkt. #9) is denied without prejudice. 

See 28 U.S.C. § 636(b) (written objections to ruling must 

be filed within ten days after service of same); F.R. Civ.P. 

6(a), 6(e) & 72; Rule 2 of the Local Rules for United States 

Magistrate Judges, United States District Court for the 

District of Connecticut; Small v. Secretary, H&HS, 892 F.24 15, 
  

18 {24 Cir. 1989)(failure to file timely objection to 

Magistrate Judge’s recommended ruling may preclude further 

appeal to Second Circuit). 

Dated at Bridgeport, Connecticut, this 20th day of August, 

\ 

1d WW SHAW 
oan Glazer Margolis 

U.S. Magistrate Judge 

1993. 

  

  

Sciven these conclusions, there is no need to address 

defendants’ other arguments. 

  

       



UNITED STATES DISTRICT COURT 

DISTRICT OF CONNECTICUT "A : 
Sep £ o1 fil '93 

JOHN DOE, et al 

Vv. 3:93CV233 TFGD 

wf 7 

LOWELL WEICKER, et al fit 

JUDGMENT 

This cause came on for consideration of plaintiffs’ 

motion for declaratory judgment and defendants’ cross-motion 

for summary judgment, by the Honorable Joan Glazer Margolis, 

U.S. Magistrate Judge and the Honorable T. F. Gilroy Daly, 

U.S. District Judge, and 

The Court having considered the motions and all the 

papers submitted in connection therewith, filed its Ruling on 

Pending Dispositive Motions granting the defendants’ Cross- 

Motion for Summary Judgment and denying plaintiffs’ motion 

without prejudice, 

It is therefore ORDERED and ADJUDGED that judgment enter 

for the defendants and the complaint is dismissed. 

Dated at Waterbury, Connecticut, this 28th day of 

September, 1993. 

KEVIN F. ROWE, Clerk 

ol Logi, LD Sr 
  

Peputy Clerk  



   



  

Cv89-0360977sS 

Milo Sheff, ET. AL. t Superior Court 

Judicial District of 

Hartford/New Britain 
VS. t.at Bartford 

William O'Neill, ET.-AL. : April 24, 1995 

MOTION FOR REIMBURSEMENT OF ATTORNEYS' FEES AND 

EXPENSES PURSUANT TO 42 U.S.C. § 1988 
  

The Intervenors in this action, the Prevailing Party as 

that term is defined under 42 U.S.C. § 1988, hereby move 

this Court to order the Defendants to reimburse the Inter- 

venors for their attorneys' fees and expenses as required by 

§ 1988 based upon the Intervenors successful defense in this 

action of their U.S. Constitutional Rights, Privileges and 

Immunities. In support of this Motion, the Intervenors rely 

on the affidavit of Robert A. Heghmann, counsel for the 

Intervenors, and a Memorandum of Law in Support. The Inter- 

venors hereby request immediate consideration of this Motion 

so that this Court's decision and any appeal thereof can be 

considered by the appellate court as part of the appeal of 

the entire case. ae 

Robert A. Heghmann 

Intervenors' Counsel 

Juris No. 100091 

521 W. Avon Road 

Avon, CT 06001 

(203) 675 - 6984 

(2032). 676 ~ 2246 

  

This Motion having come before this Court, it is hereby 

Ordered: GRANTED DENIED 

  

Judge, Superior Court 

 



 
 

 



Cv89-0360977S 

Milo Sheff, ET.AL. : Superior Court 

Judicial District of 

Hartford/New Britain 

At Hartford 

William A. O'Neill, Et.Al. : April 24, 1995 

MEMORANDUM IN SUPPORT OF INTERVENORS MOTION FOR PAYMENT 

OF FEES AND EXPENSES PURSUANT TO 42 U.S.C. 8 1988 
  

  

I. Preliminary Statement 
  

This Declaratory Judgment action was brought on April 

28, 1989 alleging that the De Facto Segregation which exists 

in the Hartford Public School System violates the state con- 

stitutional guarantee of an equal education for all school 

children and that to correct this segregation the defendants 

which included the Governor, Commissioner of Education and 

the State Board of Education are required by state law to 

implement remedial measures which includes mandatory student 

reassignment across existing school boundaries to achieve a 

racial balance in each school and class room of between 20% 

and 32% in the city of Hartford and the 21 surrounding sub- 

urban school districts. No suburban school districts, Par- 

ent-Teacher Organizations or students in the 21 surrounding 

suburban school districts was named as a defendant. 

The legal position of both the Sheff plaintiffs and the 

Sheff defendants on the issue of the applicability of feder- 

al law to this action was identical. Both sides agreed that 

federal law had no application to either the issue of lia- 

bility or the issue of remedy requested in the Sheff case.  



2 

  

A ee Intervenors' Exhibit (hereinafter I.Ex.) 2, Answer at 

Fourth Special Defense (Any right to education which the 

[Intervenors] might have is a right guaranteed by state law, 

not federal law. The questions raised by the [Intervenors] are, 
  

at best, matters of state law.) and I.Ex. 5, Memorandum Op- 
    

posing Motion to Intervene at 2 (The proposed intervenors 
  

make only federal claims, which is not what the [Sheff] case 

is about.) 

The legal position of the Intervenors was egually clear 

that since the suburban school districts are independent 

school districts as that term is defined in Lee v. Lee Coun- 
  

ty Board of Educ., 639. F.24 1243,'1256 {5th Cir. 1981), with 
  

regard to remedy only, any attempt by this court to remedy 

 E "societal discrimination" as that term is used by Mrs. Just- 

ice O'Connor in Wygant v. Jackson Board of Educ., 476 U.S. 
  

267, 288 (1985)(0'Connor, J., concurring in part and concur~- 

ring in judgment) by attempting to remove suburban school 

children from their local school districts and assigning 

them to other school districts on the basis of race for the 

purpose of racial balancing would violate the federal con- 

stitutional rights of the suburban parents and school child- 

ren under Brown v. Board of Educ., 347 U.S. 483 -(1954)Y(Brown 
  

I) and Milliken v. Bradley, 418 U.S. 717 (1973)(Milliken I). 
  

The Intervenors had one purpose and one purpose only, to 

prevent the imposition of a remedial plan which would vio- 

late the federal constitutional rights of the suburban par- 

ents and school children in the suburban school districts. 

 



  
i: 

2 

On April 12, 1995, this court issued it's opinion in 

the Sheff case. That opinion which was a complete vindica- 

tion of the legal positions offered by the Intervenors and 

which can fairly be said to have shocked both the plaintiffs 

and defendants in Sheff, forms the basis for this Motion for 

Payment of Fees and Expenses under 42 U.S.C. § 1988. 

II. The Legal Justification for the Award of Fees & Expenses 
  

Although § 1988 is a federal statute designed to shift 

fees in favor of those who vindicate federal civil rights, 

there can be no doubt that where, as here, those federal 

civil rights are vindicated in a state court forum, § 1988 

provides for the payment of attorneys' fees and expenses at 

the direction of the state court. Maine v. Thiboutot, 448 
  

U.S. 1, 11 (1980). As the Second Circuit noted in Wilder v. 
  

Bernstein, 965 F.2d 1196 (2nd Cir.), cert. denied, U.S. ’ 
    

113 S.Ct. 410 (1992), "Although the statute expressly condi- 

tions the award of attorneys' fees upon the discretion of 

the court, the effect of this language has been interpreted 

to create a strong preference in favor of the prevailing 

party's right to fee shifting. Therefore, '[a] party seeking 

to enforce the rights protected by the statutes covered by 

[§ 1988], if successful, should ordinarily recover an attor- 

neys' fee unless special circumstances would render such an 

award unjust."(citations omitted) Id., at 1201 - 02. Under 

federal law, there can be absolutely no doubt that Inter- 

venors can recover attorneys' fees where they gualify as 

prevailing parties. Wilder v. Bernstein, supra., 965 F.2d at 
  

 



  
| 

4 

1202; United States v. Board of Education of Waterbury, 605 
  

F.2d 573, 5876 = 727 {2nd Cir. 1979). 

This application is essentially the same as the one 

filed in United States v. Board of Education of Waterbury, 
  

supra. In that case an action was filed by the U.S. Attorney 

General alleging racial discrimination in the public schools 

of Waterbury. The defendant Board of Education entered into 

a consent decree which called for school desegregation 

thereby ending the liability aspect of the case and the par- 

ties began to draft various remedial proposals. The govern- 

ment submitted a proposal, Plan H, which called for the bus- 

ing of 65% of the Hispanic students but only 5% of the white 

students to achieve integration. A group called The South 

End Education Committee, an organization of Puerto Rican 

parents and community leaders along with several individuals 

was allowed to intervene in the case, "[f]or the limited 

purpose of protecting the interests of the Hispanic commu- 

nity and participating in the development of remedial meas- 

ures under the consent decree." Id., at 574. Upon motion of 

the Intervenors, the court rejected Plan H and subsequently 

adopted Plan C upon finding, "[t]hat the plan 'would effect 

desegregation without disproportionately burdening any rac- 

ial group'." Id., at 575. The Intervenors then filed a mot- 

join for attorneys' fees and costs under § 718 of the Emer- 

gency School Aid Act 0f 1972, 20 U.S5.C. § 1617. The district 

court denied the motion because, "[i]ntervenors were not a 

‘prevailing party' because they had not prevailed on the 

‘merits! of the lawsult.” 14., at 575. 

 



  

5 

This ruling by the district court was reversed by the 

Court of Appeals. As the Circuit Court reasoned: 

In concluding that intervenors were not a 'prevail- 
ing party' the district court rested its decision on 
the grounds that they were not a party when the consent 

decree was entered, that "in no area of the merits of 

the lawsuit did [they] prevail or succeed" and that 

while they were instrumental in opposing defendants’ 
plans, the plan ultimately adopted was not theirs. 

Intervenors entered this lawsuit to oppose a plan 
which unfairly burdened their constitutuency, ané which 
was not being opposed by the government. In this they 

succeeded. They contested several later proposals, and 

worked in support of a plan which better served their 

valid interests...In light of the success of inter- 
venors in these respects, we conclude that they come 

within the meaning of the term "prevailing party". Id., 
at 576 - 77. 

The Intervenors in this case stand in the same position 

as the intervenors in the Waterbury case. Although the Sheff 
  

defendants contested liability, in this non-bifurcated pro- 

ceeding, they did not oppose the imposition of an interdis- 

trict remedial plan impacting the independent suburban 

school districts if the court found in favor of the plain- 

tiffs on the liability issue. The Intervenors herein did not 

wish to be heard on the issue of liability, their sole pur- 

vote was to "opposes a plan which unfairly burdened their 

constituency, and which was not being opposed by the govern- 

ment". 

Although the application in Waterbury was pursuant to 
  

a specific educational statute authorizing payment of attor- 

neys fees and expenses, in light of the Second Circuits' dec- 

ision in Wilder v. Bernstein, supra., there can be no doubt 
  

that Intervenors such as these qualify for payment of attor- 

 



6 

neys fees and expenses under 42 U.S.C. § 1988. Wilder invol- 

ved placement of children in child care facilities. The 

original parties to the action, the plaintiff Protestant 

Black children in need of care outside their homes, and the 

original defendants, City of New York and municipal offic- 

ials responsible for the City's child care system, began 

to negotiate a settlement and a formal proposal was drafted. 

At this point certain child care agencies who were not part 

of the action interposed objections to the proposed settle- 

ment. The Circuit Court's discussion of the precise status 

of the intervenors in Wilder is important in the context of 

this case. As the Circuit Court noted in its decision: 

We digress for a moment to discuss how leave to inter- 
vene came about. Although no petition for intervention 
was filed, letters, memoranda and affidavits objecting to 
the stipulation were submitted prior to the date inter- 
vention was ordered. The customery terms of either 

"plaintiff-intervenor" or "defendant-intervenor" were not 
used to refer to the intervenors. Nor does the district 
court's order set forth on what grounds and under which 

section of Fed.Civ.P. Rule 24 they were permitted entry 
into the action...The district court considered the 
intervenors "non-parties vis-a-vis the underlying consti- 
tutional claims in the lawsuit" and, despite their con- 
stitutional objections, stated the intervenors joined the 
lawsuit for the "sole purpose of objecting to the Stipu- 
lation on clinical grounds. 965 F.2d at 1199 - 1200. 

Despite their "non-party" status, because their compre- 

hensive objections had a significant impact upon the creat- 

jon of the ultimate remedy, the district court held that the 

intervenors were therefore prevailing parties entitled to an 

award of attorneys' fees and costs. Id., at 1201. In affirm- 

ing, the Circuit Couri after ruling that a party may prevail 

when it vindicates rights regardless of whether there is a 

formal judgment, reasoned:  



~ 

Actions alleging civil rights violations tradition- 

ally seek injunctive relief directly affecting not only 

the plaintiffs, but also certain non-participants and 

less directly the public at large. In addition to per- 

mitting non-participants to protect their implicated in- 

terests, intervention furthers the goals of efficiency 

and uniformity. To forbid the shifting of attorneys' fees 

to intervenors, who could otherwise bring a separate act- 

ion later as plaintiffs alleging the same civil rights 

violations...defeats the goal of judicial economy. Hence, 

there is no reason why the present intervenors, whether 

they be styled intervenor-plaintiffs or intervenor-defen- 

dants, may not be prevailing parties for purposes of 

§ 1988. 1&8., at 1202. 

The Circuit Court then noted, "Waterbury presents ana- 
  

logous facts instructive on the resolution of the present 

case". 18., at 1204. 

The activities of the Intervenors fall squarely within 

the Wilder rationale. The Sheff plaintiffs were seeking in- 

junctive relief. See Plaintiffs' Post Trial Brief dated 

April 19, 1993 at 108-09. The Remedial Plan offered by the 

plaintiffs would clearly impact the non-participating subur- 

ban school districts. Id. at 109-20. This remedial plan was 

not being opposed by the government. In fact, the defendant 

state officials testified in favor of the remedial plans be- 

ing put forward by the Sheff plaintiffs. See Plaintiffs’ 

Reply Brief dated August 16, 1993 at 51 (Defendants Ferandi- 

no and Tirozzi both support controlled choice plans.) The 

Intervenors could have allowed the Sheff proceedings to come 

to a conclusion and result in an interdistrict plan includ- 

ing state imposed racial balancing in the independent school 

districts and then have gone to federal court. Instead, in 

keeping with Wilder, they filed their federal action before 

this case reached its conclusion and, after the federal  



  

8 

court refused to dismiss on the merits and denied the decla- 

ratory judgment motion without prejudice to renewal after 
  

this court rendered its decision, they intervened here 

to advise this court that its decision was subject to colla- 

teral attack in federal court and presented the reasons why 

granting the remedy requested by the Sheff plaintiffs would 

violate the Intervenors federal constitutional rights. 

The fact that after arguing their Motion to Intervene on 

December 14, 19293, the Intervenors voluntarily withdrew the 

Motion has no impact at all on this Motion for Fees. In 

Wilder, there was no clear discussion of who the intervenors 

were since there had been no motion to intervene and the 

district court described them as "non-parties", nevertheless 

both the district court and the circuit court ruled that 

they were the prevailing parties for the purposes of § 1988. 

Similarly, in cases such as Assoc. Builders & Contractors of 
  

La., Inc. v. Orleans Parish School Board, 919 F.2d 372 (5th 
  

Cir. 1990) (case dismissed as moot); Luethje v. Paevine School 
  

District of Adair County, 872 F.2d 352 (10th Cir. 1989)(vol-~ 
  

untary dismissal of the action); and Thomas v. Board of 
  

Trustees of Regional Comm. Colleges, 599 F.Supp. 331 (D.Conn 
  

1984) (voluntary dismissal of action), the courts have award- 

ed attorneys' fees and costs to the plaintiffs even where 

the action had been withdrawn or dismissed prior to any for- 

mal judgment based upon the finding by the court that the 

plaintiffs had been the prevailing party. As Judge Dorsey 

stated in Thomas, "A plaintiff will be considered a 'pre- 

 



  

6 » 
9 

vailing party' entitled to such fees if the plaintiff has 

succeeded "'on any significant issue in litigation which 

achieves some of the benefit the part[y] sought in bringing 

the suit'"...[d]etermination as to whether or not a party 

has "prevailed" has been subjected to a two fold test:First, 

'the plaintiff[s] lawsuit must be causually linked to the 

achievement of the relief obtained', and second, 'the defen- 

dant must not have acted gratuitously, i.e. the plaintiff[s] 

claim[], if pressed, cannot have been frivolous, unreason- 

able, or groundless." (citations omitted) Id. at 334. 

III. The Intervenors were the "Prevailing Party". 
  

This court would be harcé¢ pressed to deny the impact of 

the actions and the legal arguments raised by the Interven- 

ors in the federal action and their Motion to Intervene 

wvhich was clearly predicated upon the federal action. The 

legal issues they raised for the first time in both the fed- 

eral action and the Motion to Intervene are clearly reflect- 

ed in the subsequent statements and decision of this court 

in Sheff. 

1) The Sheff Parties as "Friendly Adversaries". 

The very first argument made by the Intervenors in the 

federal Memorandum in Support of Motion for Declaratory 

Judgment was that Sheff was not an adversary proceeding. The 

parties in this case, both plaintiffs and defendants, were 

acting as "Friendly Adversaries" as that term was used by 

Mr. Justice Kennedy in Missouri v. Jenkins, 495 U.S. 33, 59 
  

(1989) (Kennedy, J., concurring in part and concurring in 

 



  

10 

judgment). Essentially, the Friendly Adversaries in Sheff 

agreed among themselves as to what had to be done, however, 

they needed to harness the power of this court to overcome 

the resistance of the general assembly and the public. See, 

I.Ex. 7 at 10-15. The impact of this argument upon this case 

is undeniable. At the December 16, 1993 aborted first final 

arguments which occurred two days after the Intervenors Mot- 

ion to Intervene was argued and copies of the federal briefs 

and decision was presented to the court, this court engaged 

Attorney Horton in an extended discussion of the lack of ad- 

verseness in this action. This court itself noted that de- 

fendant Tirozzi had been the plaintiffs' best witness and 

that there was no dispute between the plaintiffs and the 

defendants. The real dispute lay between the parties in 

Sheff and the general assembly. The court, to its credit, 

then tried to inject adversity into this case by joining the 

general assembly offering to order them into the case that 

very day. The Friendly Adversaries, however, would have none 

of this adverseness business and convinced the court that 

joinder of the general assembly was not feasible. Neverthe- 

less, the court was painfully aware that there was a poten- 

tial constitutional taint on this record, one which the non- 

party suburban school districts would raise in defense to 

imposition of any interdistrict remedy. 

2) The Feasibility of a Collateral Challenge. 
  

The purpose of the Intervenors in going to federal 

court first was two fold. First and foremost, they wanted to 

 



  

4 » 
11 

demonstrate in the clearest possible terms that in the wake 

of the U.S. Supreme Court's decision in Martin v. Wilks, 490 
  

U.S. 755 (1989), the service of notice of this action upon 

the suburban school districts and their subsequent failure 

to intervene to protect their rights in this case would not 

preclude a subsequent collateral attack upon this court's 

judgment and remedy. Prior to the Motion to Intervene, the 

working procedural hypothesis of the court and the Friendly 

Adversaries was that the failure of the suburban school sys- 

tems to intervene constituted a waiver of any rights they 

might have had to collaterally challenge this court's ruling 

even if it impacted their rights. This in fact was the pre- 

Wilks rule in the Second Circuit. The Wilks decision, how- 

ever, completely vitiated this legal position. This concern 

with a successful collateral attack is clearly reflected in 

the court's comments in subsequent proceedings. During the 

September 22, 1994 status conference, the court expressed 

concern over whether the Hartford school district should be 

joined as a party defendant. During the September 28, 1994 

status conference, the court clearly expressed a desire not 

to reopen completed portions of the 5 year 014 file, never- 

theless, it was concerned over having its ruling overturned 

for procedural reasons and inquired again as to the adequacy 

of the notice sent to the 22 school districts involved even 

to the point of suggesting a new round of legal notices. And 

at the final arguments on November 30, 1994, the court spe- 

cifically noted for the record the federal action and that 

 



  

4 » 
12 

the court and the parties agreed that the issues raised in 

that action would be dealt with at a later date. Clearly. 

the Intervenors interpretation and use of Wilks to open the 

door for a subsequent collateral attack became a principal 

concern when this court considered remedies which directly 

impacted the non-party school districts. 

3) The Predominance of Federal Constitutional Issues. 
  

One of the principal issues raised by the Intervenors 

in the federal case and which became part of the Motion to 

Intervene was the fact that the 14th Amendment of the U.S. 

Constitution preempts the entire area of state action and 

race. In their legal memorandum, I.Ex. 7 at 15 - 21, the 

Intervenors clearly argue that the issue of whether or not 

societal discrimination violates the state constitution is 

irrelevant to the authority of this court to redress socie- 

tal discrimination under the 14th Amendment. Even assuming 

arguendo that societal discrimination violated the state 
  

constitution, in the absence of de jure discrimination link- 

ed to the state, this court as a state actor is powerless to 

redress it. The Friendly Adversaries, on the other hand, 

both argued that there were no federal constitutional issues 

raised by the Sheff claims or remedies. 

On April 12, 1995, this court issued its decision in 

the Sheff case. The operative portion of that decision com- 

mences on page 60 and continues through the conclusion on 

page 72. In this section, the court focused exclusively on 

federal decisional law under the Equal Protection Clause of 

 



  

* » 
13 

the federal constitution. In this section, the court focused 

upon the Supreme Court opinions which were most favorable to 

the plaintiffs positions, those of Mr. Justice Douglas. Even 

Mr. Justice Douglas, whose opinions attempt to equate de 

jure and de facto segregation, recognized the limits of per- 

missible state action where the state had not contributed to 

the dual system. As the court noted at page 67: 

Justice Douglas [in Gompers v. Chase] then raised 
what he referred to as "another troublesome question", 

namely, the remedy that should be provided under equal 

protection analysis where the state is found not to be 

"implicated in the actual creation of the dual system." 
He answered his own question by stating that the only 
constitutionally appropriate "solution" in a situation 

where minority schools are not gualitatively equal to 
white schools would be to design "a system whereby the 

educational inequalities are shared by the several 
races." (emphasis added)(citations omitted) 

  

  

  

  

The court then goes on to find that the Sheff plain- 

tiffs had not met the minimum factual requirement of some 

state action, no mater how subtle, to justify any state im- 

posed remedy or solution in this case. 

The judgment of the court in Sheff is entirely consis- 

tent with the legal arguments made by the Intervenors. In 

the absence of some showing of state action, under equal 
  

protection analysis the solutions suggested by the Sheff 
  

plaintiffs and not objected to by the Sheff defendants are 

not constitutionally appropriate. This is the gravamen of 
  

the Intervenors position. 

4) The Privileges and Immunities of School Districts. 
  

Another main legal argument made by the Intervenors was 

that based upon the rationale of Milliken I, legally indep- 
  

 



  

14 

endent local school districts which had not been the cause 

of racial segregation could not be made the subject of any 

remedial action by the state. I.Ex. 7 at 30-40. The Court 

in Milliken I specifically addressed the argument made by 
  

the Detroit plaintiffs that school district lines are no 

more than arbitrary lines on a map drawn for political con- 

venience and rejected that argument in its entirety. As the 

Court stated, "Boundary lines may be bridged where there has 

been a constitutional violation calling for interdistrict 

relief, but the notion that school district lines may be 

casually ignored or treated as a mere administrative conven- 

ience is contrary to the history of public education in our 

country." Milliken v. Bradley, supra., 418 U.S., at 741-742. 
  

The Court more recently reiterated this statement in another 

case cited by the Intervenors. As the Court stated in Board 

of Education of Okla, City P. Sch. v. Dowell, U.S. vr 131] 
  

S.Ct. 630, 637 (1991), "Local control over the education of 

children allows citizens to participate in decision making 

and allows innovation so that school programs can fit local 

needs. The legal justification for displacement of local 

authority by an injunctive decree is a school desegregation 

case is a viclation of the Constitution by local authori- 

ties.” 

In reaching its decision in Sheff, this court did not 

cite Milliken I or Dowell. It reached the same result, how- 
  

ever, by citing another federal case, Spencer v. Kugler, 326 
  

F.Supp. 1235, affirmed, 404 U.S. 1027 (1972). As this court 
  

 



  

15 

stated in its decision, "[rlacially balanced municipalities 

are beyond the pale of either judicial or legislative inter- 

vention. Id., 1240" Memorandum of Decision at 71-72. Whether 

the citation is to Milliken I or to Spencer v. Kugler, the 
    

result is the same. Once again the court's decision directly 

paralleled the legal arguments presented by the Intervenors. 

IV. The Intervenors Should be Fully Reimbursed for 

Their Attorneys' Fees and Costs in This Case 

Turning to Judge Dorsey's two-fold test for determin- 

ing whether or not a party has "prevailed", the Intervenors 

do not believe that there is any serious question as to the 

sacond prong of the test, namely that the Intervenors' 

claims, if pressed, were not frivolous, unreasonable, or 

groundless. Thomas v. Board of Trustees, supra., 599 F.Supp. 
  

at 334. As to compliance with the first prong, that the 

Intervenors claims must be causually linked to the achieve- 

ment of the relief obtained, the key issue is the "provoca- 

tive" or catalytic role of the Intervenors' claims. See, 

Nadeau v. Helgemoe, 581 F.2d 275, 280-81 (lst Cir. 1978). On 
  

this issue the Intervenors rely on the candor and courage of 

the court in making this decision. Did the Intervenors 

play a "provocative" or catalytic role in leading this court 

to its ultimate decision? Based upon the public statements 

of the court, the fact that the arguments urged by the 

Intervenors were entirely separate and distinct from the 

arguments raised by the Sheff defendants and the signifi- 

cance of those arguments in this court's Memorandum of Dec- 

ision, the Intervenors have no doubt of the role they played 

 



pl » 
16 

  

SS in this litigation. They now look to the court to confirm 

their role and grant this Motion. 

As Judge Dorsey noted in Thomas: 

Once a plaintiff is found to be a "prevailing party" 
it must be determined whether the plaintif has asserted 
any unsuccessful claims "distinctly different" from, 
i.e., based on "different facts and legal theories," 
than the successful claims...If plaintiff's successful 
and unsuccessful claims are a "common core of facts," 

or are based on "related legal theories," and if the 
results obtained are "excellent," all hours reasonably 

expended on the litigation are normally compensable. 
599 F.Supp., at 334. 

In this case, the Intervenors results were excellent 

and all the fees and costs requested in Schedule A attached 

to the accompanying affidavit should be paid fully. With re- 

gard to the projected fees and costs related to the appeal 

of this court's decision, those estimates should be considé- 

® ered the maximum and should be paid by the defendants only 

upon receipt of invoices tendered after completion of the 

legal work related to the appeal process. 

This Motion filed within 10 days of the successful 

decision of this court is timely. The fact that the Inter- 

venors did not cite either 81983 or § 1988 specifically in 

the Motion to Intervene does not in any way negate consider- 

ation of this motion at this time. In Americans United for 
  

Separation of Church and State v. School District of Grand 
  

Rapids, 835 F.2d 627 (6th Cir. 1987), the court was faced 

with the question of, "[w]hether plaintiffs who prevail in 

an action against the state authorities to vindicate rights 

secured by the Constitution must plead and rely specifically 

upon 42 U.S.C. § 1983 in order to be entitled to an award of 

 



  

17 

attorneys' fees under 42 U.S.C. § 1988." The circuit court 

after reviewing authorities from the Supreme Court and other 

circuits decided that, "The rule to be distilled from these 

decisions is that § 1988 is concerned with the substance of 

a prevailing party's action, rather than the form in which 

it is presented. The mere failure to plead or argue reliance 

on § 1983 is not fatal to a claim for attorneys' fees if the 

pleadings and evidence do present a substantial Fourteenth 

Amendment claim for which § 1983 provides a remedy, and this 

claim is related to the plaintiffs' ultimate success." Id., 

at 631. In this case, the Intervenors Motion is further 

buttressed by the fact that the Motion incorporated by re- 

ference the complaint in the related federal lawsuit, Doe v. 

Weicker, a copy of which was given to the court on December 

14th and which specifically alleged violations of the Inter- 

venors Fourteenth Amendment rights and sought remedies under 

§ 1983. 

In fact, the only anomaly in this Motion is that the 

Intervenors are asking this court to award fees for all of 

the legal services including the work performed in the dis- 

trict court. This is because judicial economy requires that 

there should be only one fee hearing in one court, the par- 

ties to both actions are before this court and although the 

district court could certainly pass on the reasonableness of 

the fee requested, this court is in the best position to 

decide whether or not the Intervenors are the "prevailing 

party". There would seem to be no impediment to this court 

 



18 

deciding the entire Motion. 

  

V. Conclusion 
  

This court should grant the Intervenors Motion for 

Attorneys' Fees and Costs in accordance with Schedule A 

attached to the Motion. 

Respectfully Submitted 

fT Ye 
  “Attorney for the 

Intervenors 

Juris No. 100091 

521 W. Avon Road 

Avon, CT 06001 

(203) 676 - 2246