Malloy, a plaintiff and then a defendant, hedges on school appeal

Gov. Dannel P. Malloy says the CCJEF appeal decision belongs to the attorney general.

Mark pazniokas /

Gov. Dannel P. Malloy says the CCJEF appeal decision belongs to the attorney general.

New Haven — Gov. Dannel P. Malloy said Tuesday he agreed with the “core” of Superior Court Judge Thomas Moukawsher’s finding last week that Connecticut’s distribution of education aid was so irrational as to be unconstitutional, but the ruling raises so many legal and practical complexities that he will defer a decision on an appeal to Attorney General George Jepsen.

The governor’s embrace of Moukawsher’s central finding should shock no one: As mayor of Stamford, Malloy was part of the Connecticut Coalition for Justice in Education Funding that sued the state 11 years ago; and as governor, Malloy has tried and largely succeeded in funneling the majority of new education aid to the state’s 30 lowest-performing school districts.

“If we are talking about the portion of the decision that had things to do with actual funding or how we disperse the funds that we spend, I am largely in support of what the judge was saying,” Malloy said. “I think he made very valid points. You know why I think he’s making very valid points? Because I’ve been making the same points for the last five years.”

He refused to join Senate Minority Leader Len Fasano, R-North Haven, who urged Jepsen on Tuesday to appeal Moukawsher’s conclusion that the state’s funding formula was unconstitutional and his order that the state devise a new funding formula and remedies for other shortcomings in 180 days.

“Judge Moukawsher’s decision can only be characterized as overreaching by an activist judge,” Fasano said in a letter to Jepsen. “His decision reads more like a legislative agenda or white paper on education policy than a judicial finding.”

Malloy declined to attack the judge – or pressure Jepsen.

“That’s not my call. That’s the call of the attorney general,” Malloy said. But the governor added that he did see the deadline for devising remedies as “inappropriate.”

Moukawsher’s 90-page ruling reached beyond the rationality of school funding decisions that are inextricably linked to the politics of passing a budget every year. It touched on many aspects of public education, from how teachers are hired, evaluated and paid to the state’s refusal to fully exercise its authority over education granted by the Connecticut Constitution.

Much of what Moukawsher labeled as problems — such as automatically raising the pay of teachers who obtain advanced degrees, despite research finding little connection to teacher competence — run squarely into what the General Assembly has deemed to be the province of collective bargaining.

Malloy counted himself among the many players in the long-running lawsuit surprised by the judge’s broad indictment of public education, which he says went beyond “the scope” of the claims raised by the plaintiffs, an uneasy coalition that included teacher unions and the municipal officials who often bargain with them.

“If this was a simpler decision, if it was written on five pages and made statements solely about  funding or the distribution of funds, then maybe it wouldn’t be necessary to even be considering appealing it,” Malloy said. “What I’m telling you is I have enough confidence in the attorney general and his staff that they’ll make the right decision, and I will support that decision.”

Malloy, who talked about the judge’s decision after announcing the purchase of new rail cars for Metro North here, lightly jousted with reporters on the question of whether the final authority to appeal rested with the attorney general or the governor. By statute, the call on legal tactics belongs to the attorney general; by practice, the decision is generally made in consultation with the agency the attorney general is defending.

As a stand-in for state government, the governor is the defendant in the case, not the attorney general. And Malloy generally pushes the boundaries of executive authority.

The case is called Connecticut Coalition for Justice in Education Funding v. Rell, the defendant being M. Jodi Rell, the governor 11 years ago.

The governor.

mark pazniokas /

The governor.

“My name’s not Rell,” Malloy said, smiling. But he later added, “I am not running away from this. I will participate in any discussion the attorney general wants to have with me regarding this subject. I am acknowledging it’s a very complex and far-reaching discussion.”

The governor has yet to indicate if he would use the pressure of the judge’s decision in the last two years of his second and likely final term to revisit some of the reforms he sought early in his administration, such as granting troubled school districts greater authority to remove principals and teachers deemed to be under-performing.

As a compromise with the legislature and teachers, his plan to focus aid on the 30 lowest-performing districts ended up providing additional resources without the changes in governance Malloy originally envisioned.. In other words, it came with ample carrots, but no sticks.

Moukawsher suggested that the state Department of Education was timid.

“The state sees itself as powerless here,” the judge wrote. “It set up a system of local control in which school districts must agree on these things with teachers. But if the system was set up by the state then the state is responsible for the system. Any obstacle to a rational system the state has set up, the state can take down. The state is not powerless.”

For the time being, Malloy seems to be warily considering the judge’s invitation for his administration to show a stronger hand. On the portions of Moukawsher’s ruling that reached beyond the distribution of funds, Malloy declined Tuesday to either embrace or reject them. He referred to them as “the observations the judge made — some of which I may agree with, some of which I may disagree with.”