Judge presses state on approach to school funding as trial wraps

Attorneys suing the state enter the court for the last day of the trial.

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Attorneys for those suing the state enter the courtroom for the last day of the trial.

The five-month trial examining whether the lowest-performing schools in Connecticut are providing students with the education the state constitution requires came to a close Wednesday with final arguments from the attorney defending the state and sharp questioning from the judge.

The judge, Hartford Superior Court Judge Thomas Moukawsher, will now craft a complex decision almost certain to become the basis of an appeal to the state Supreme Court.

The lawsuit, brought 11 years ago by a coalition of parents, students, teachers’ unions, school boards and city mayors, contends the state is underfunding public schools that enroll large numbers of high-need students.

Three critical issues dominated the discussion as the attorney defending the state summed up his argument that Connecticut had met its constitutional obligation.

Is the education funding system rational?

An exhibit the state submitted this week showing how much money school districts will receive from the state’s principal education grant this fiscal year compared to last year left Moukawsher baffled.

“I was particularly hoping you could provide me an explanation,” the judge, a former legislator from Groton, asked the attorney for the state. “I found $5.3 million of cuts to poor communities like Bridgeport. And then, I also found $5.1 million of increases to rich communities. So that you have poor towns like Bridgeport taking $1 million cuts and rich towns like West Hartford taking a $1 million increase. … How can a rational budget process allow that in a time of financial crises to happen.”

Supertior Court Judge Thomas Moukawsher

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Superior Court Judge Thomas Moukawsher

How schools in Connecticut are governed and funded under state law  – and particularly whether that funding system is rational and reasonable –  is at the heart of the case.

“I am looking at the resources and standards,” the judge said, “to determine whether they are rational.”

The state Constitution requires the General Assembly to enact “appropriate legislation” to provide students with an education.  The Connecticut Supreme Court six and half years ago ruled that the constitution also required a minimum threshold of quality for that education and that the education funding system be rational.

It did not, however, define the threshold, leaving that to be determined at trial.

Justice Richard N. Palmer wrote in his controlling opinion that, “The plaintiffs are not entitled to relief” unless they can show that the legislature’s conception of a minimally adequate public education and its efforts to provide it are “unreasonably insufficient.”

“Any less-demanding standard would give insufficient voice to the reasoned judgment of the legislature,” Palmer wrote.

But, he concluded, “The phrase ‘appropriate legislation’ in [the constitution], does not deprive the courts of the authority to determine what is ‘appropriate’.”

On Wednesday, the last day of the five-month trial that has been taking place one block from the state Capitol and Connecticut Supreme Court, Moukawsher said the high court’s directive was clear: “It set the floor at rationality.”

So how did better-off towns like West Hartford land an additional $1.4 million, Glastonbury $263,00, Orange $266,00 and Shelton $686,000 in the state’s Education Cost Sharing grant this fiscal year while high-poverty towns like Bridgeport will lose $905,000, Hartford $1 million, New Haven $771,000 and Waterbury $668,000. (These cuts don’t include the millions cut from other education grants that high-poverty districts receive.)

Associate Attorney General Joseph Rubin said he did not know why the legislature funneled money where it did in the state budget revisions passed this spring, but, he said, that shouldn’t matter.

Regardless of what changes are made from year-to-year, he said, the vast majority of the over $2 billion in state education aid not tied to retirement benefits goes to high-poverty school districts.

“Saying that every single dollar, every single appropriation must be explained particularly and specifically and that, if its not, it’s not rational, I submit to the court that that’s not the constitutional test of rationality,” said Rubin.

“The constitutional test is, is there minimally adequate educational opportunities and is the [funding] system as a whole producing rational results?” he said. “Rationality is in judicial decisions a very low bar. It means you can defend it in a way that isn’t insane. It doesn’t mean it’s the best way.”

The bottom line, Rubin said, is that the state is attempting to equalize spending between poor and rich school districts.

The state has formulas for distributing education aid that are designed to provide more help to poorer districts and those with more high-need students. Much of the judge’s concern centered on how well – or rationally – the state has followed those formulas.

The state has departed from its formula year after year. It has, for example, allowed towns to keep the same level of aid even when student enrollment shrank, student need fluctuated, or the value of taxable property increased.

Joseph Rubin, the lead attorney defending the state

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Joseph Rubin, the lead attorney defending the state

For the current fiscal year, the Office of Fiscal Analysis, the legislature’s non-partisan fiscal experts, reported departures from the formula meant more affluent towns lost a higher proportion of their aid as the state’s fiscal condition deteriorated. However, funding increases approved the previous year insulated some of those more affluent towns.

The increases had been given to ensure that every town received at least 55 percent of the funding it was entitled to under the formula. In dollar figures, however, the state’s lowest-performing, high-poverty districts are among the most underfunded if the state funding formula were to be followed.

Rubin urged the judge to focus on the final product of the state’s funding efforts rather than the messy political process that produces it.

“The legislature is a political body, it operates by political process,” he said. “You can’t ignore the constitution, but within the constitution there is no requirement that everything the legislature does has to follow an identified process.”

Rubin said that setting a formula in statute is meaningless. “The legislature can’t make a promise, at least a promise that means anything, as opposed to an empty political promise, that anything it does one year will be there the next year,” he said.

But the judge said the test cannot be that the state has met its obligation as long as one dollar more is being spent on Bridgeport than on a wealthier district such as Darien.

“It goes over a line at a certain point… You don’t look at every dollar. You look at whether they’ve designed a scheme that they’re bound to follow in some way, and what I’ve seen from what is in front of me, and what’s happened for years, is that the legislature assumes that it has no obligation whatsoever to follow any sort of formula,” said Moukawsher.

Rubin countered that the annual deviations from the formula are not substantial and do not shift the underlying strategy of state aid, which is to direct support to towns least capable of raising revenue themselves.

Joseph Moodhe, the lead attorney representing the coalition in the school-funding trial.

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Joseph Moodhe, the lead attorney representing the plaintiffs in the school-funding trial.

Joseph Moodhe, the lead attorney representing the coalition suing the state has said throughout the trial that districts are in desperate need of a funding system driven by student needs and not by blowing political crosswinds.

“The legislature simply has abandoned any pretense of following a formulaic approach to funding education and seems to be doing it simply on legislative fiat,” said Moodhe, who represents the Connecticut Coalition for Justice in Education Funding. “There is clearly no rational basis associated that can even be discerned from the pattern of funding under the current system. It seems to be varied all over… Wealthy districts have been protected, etc.”

Moodhe has argued that, absent a clear mandate from the courts, the state will continue to send too little to high-poverty districts.

Did the plaintiffs prove a systemic problem?

The coalition suing the state focused throughout the trial on the alleged deficiencies in six districts – Bridgeport, East Hartford, Danbury, New Britain, New London and Windham.

But the state argued that the judge should not infer there is a systemic problem even if he determines the plaintiffs proved that the state is not fulfilling its obligation in those six school districts.

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“There was no evidence that these districts are typical of anything,” said Rubin.

The plaintiffs attorney argued that the Supreme Court has concluded there was a systemic problem in cases that involved a single district. For example, he said, the landmark Horton vs. Meskill decision in 1977 that ordered the state to overhaul how it funds schools was brought by a lone plaintiff who was an elementary student in Canton.

The judge has not indicated how broad a ruling he is contemplating, saying Rubin’s argument got to the question of whether the court should “order relief to these six districts, or are you going to do something larger than this?”

Who’s responsible for shortcomings?

The state has argued strongly that one of the main obstacles to improving education in Connecticut is a lack of local leadership.

“There’s a saying in education that you change because you either see the light or you feel the heat. In my experience it’s a combination of both,” Education Commissioner Dianna Wentzell testified during the trial.

Education Commissioner Dianna Wentzell watches students in a science class at East Hartford Middle School during a visit earlier this year.

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Education Commissioner Dianna Wentzell watches students in a science class at East Hartford Middle School during a visit earlier this year.

And the state said it has pressured local school officials to improve. For example, the state argued, it has overhauled how teachers are evaluated and offered extra money to a Commissioner’s Network of underperforming schools if they embrace certain reforms.

Making the teacher evaluation system work is up to local schools, Rubin said. “It’s effective use depends on administrators, superintendents and principals having a spine to use it effectively,” he said. “The state has created a system that makes perfect sense and is perfectly reasonable.”

Rubin pointed out districts were unwilling to fire poor-performing principals in New Haven and Bridgeport, and several districts that could have benefited didn’t even apply to join the Commissioners’ Network. In Danbury, Rubin said, municipal leaders have been unwilling to raise taxes to fund their schools.

The judge, however, didn’t seem convinced the state education department was exerting the leadership needed to force change in low-performing districts.

He pointed to graduation requirements that he called “meaningless” because students don’t have to prove they understand the content to get a diploma and to the teacher evaluation system, which has largely stalled.

Attorneys for the state countered that Connecticut has a proud history of local control and exerting more state control would be saying, “The state is required to take over everything because the state just can’t trust the locals to do anything.”

But the judge said local control is not an established constitutional right, while providing an education of a certain quality is.

“Your point,” he said, pressing Rubin, “is that the only thing that matters is the distribution of funding, and then the state, to create the opportunities that the Supreme Court described, does not have to rationally employ any of the programs it uses to carry them out.

“So it could, for instance, tolerate handing meaningless, empty diplomas to people as long as they’re distributing money appropriately.”

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