Jepsen files appeal, says Moukawsher school ruling ‘legally unsupported’

Attorney General George Jepsen and his deputy, Perry Zinn-Rowthorn.

file photo /

Attorney General George Jepsen and his deputy, Perry Zinn-Rowthorn, in a file photo from 2015.

Attorney General George Jepsen’s office filed an appeal Thursday asking the Connecticut Supreme Court to conclude that a trial judge embarked on “an uncharted and legally unsupported path” last week in asserting authority over how the state distributes education aid and sets standards for graduating from high school, serving special-needs students and evaluating teachers.

“This decision would wrest educational policy from the representative branches of state government, limit public education for some students with special needs, create additional municipal mandates concerning graduation and other standards, and alter the basic terms of educators’ employment – and entrust all of those matters to the discretion of a single, unelected judge,” Jepsen said.

Jepsen lightly approached the question of where Judge Thomas Moukawsher’s broad indictment of public K-12 education was right or wrong as a matter of policy, but the appeal sharply attacks the judge’s legal basis for ruling that shortcomings he identified violate students’ rights under the state Constitution to a free and adequate education.

In a ruling that drew national attention, with the New York Times likening it to “a cry from the heart on the failings of American public education,” Moukawsher concluded the state has a duty to ensure that education aid and other education polices be “rationally, substantially, and verifiably” connected to educational need.

“This standard is entirely made up and has the effect of giving the judiciary broad control over educational policy,” says the appeal prepared by Joseph Rubin, the associate attorney general. “By applying this new concept…the court effectively appointed itself as the ultimate arbiter not only of the Constitution, but also of the State’s educational policy.”

Associate Attorney General Joseph Rubin, center, and Joseph Moodhe, lead counsel for the plaintiffs, as Moukawsher read his decision.

pool photo / Michelle Mcloughlin/Wall Street Journal

From left, Beth Margulies and Joseph Rubin, defending the state, and Joseph Moodhe, lead counsel for the plaintiffs, as the judge read his decision.

Jepsen is seeking a direct, expedited review requiring the approval of Chief Justice Chase T. Rogers, saying the time for the state’s highest court to review the ruling is now, not after the 180-day period Moukawsher set for the administration of Gov. Dannel P. Malloy and the General Assembly to answer his demand for remedies.

“Should the legislature attempt to comply with these broad directives, even if it were to be given time extensions, by enacting new legislation, then it would have made these broad changes based solely on the views of a single Superior Court judge, without review or consideration by higher judicial authority,” the appeal says. “Should the legislature fail to comply, the trial court would have precipitated an unseemly, unnecessary, and entirely avoidable constitutional confrontation if it made any attempt to enforce its orders. Neither result is appropriate.”

Rogers has a week to act on Jepsen’s petition.

Under state law, the authority to decide when and if to appeal rests with the attorney general, though the office by practice consults with the agencies it represents. Malloy, who helped initiate the lawsuit as a mayor of Stamford, said he would not attempt to influence Jepsen unless asked for advice.

“We understand and accept the attorney general’s legal rationale for pursuing this course of action,” Malloy said Thursday. “The attorney general’s decision to appeal does not negate the urgency to take action for students. It would be prudent to address the systemic problems in our educational system, particularly fair funding, in a serious manner once and for all in the 2017 legislative session.  Legislative action is always preferable to a judicial decision.”

The suit was filed by the Connecticut Coalition for Justice in Education Funding, a group that included parents, students, teacher unions and municipalities. Among other things, it claimed that the state inadequately funds public education, violating the Constitution.

In 2010, the Connecticut Supreme Court concluded in a 4-3 decision in response to the coalition’s lawsuit that the Constitution implied a qualitative standard of a minimally adequate education, and that the state is responsible for ensuring that level of adequacy is met. Three of the four justices in the majority have since left the court.

Judge Thomas Moukawsher reading his decision.

Michelle Mcloughlin / Wall Street Journal pool photo

Judge Thomas Moukawsher reading his decision.

It returned the case to the trial court to hear evidence and determine if the state met a standard of adequacy. Justice Richard Palmer, who set the standard for review, wrote “the plaintiffs will not be able to prevail on their claims unless they are able to establish that what the state has done to discharge its obligations under [the Constitution] is so lacking as to be unreasonable by any fair or objective standard.”

Moukawsher concluded that the plaintiffs failed to meet the high standard of proving beyond a reasonable doubt that the overall level of aid for education — about $2.5 billion annually, not including money for school construction and teacher pensions —  did not meet a minimum standard of adequacy.

“Beyond a bare minimum, the judiciary is constitutionally unfit to set the total amount of money the state has to spend on schools,” Moukawsher wrote. “Courts are constitutionally unfit because they can’t sort out competing legislative spending priorities or even competing constitutional spending priorities.”

In the appeal, Jepsen’s office essentially says Moukawsher should have ended his analysis there and dismissed the lawsuit.

But the judge, a former one-term legislator assigned to handle complex litigation, went on to conclude that how the aid is distributed is so irrational as to be unconstitutional — a conclusion Malloy said Tuesday that he supports.

Gov. Dannel P. Malloy says he supported a central finding, not the entire decision.

mark pazniokas /

Gov. Dannel P. Malloy says he supported a central finding, not the entire decision.

Moukawsher, who heard months of expert testimony on public education from January 12 to June 3, made the same conclusion about special-education funding and what he concluded were lax standards for evaluating teachers and for promoting and graduating students who cannot read.

“The lack of a substantial and rational high-school graduation standard has resulted in unready children being sent along to high school, handed degrees, and left — if they can scrape together the money — to buy basic skills at a community college,” he wrote.

“The facts are incontestable. Test scores show that high schools in impoverished cities are graduating high percentages of their students without the basic literacy and numeracy skills the schools promise,” Moukawsher wrote. “Among the poorest, most of the students are being let down by patronizing and illusory degrees.”

The attorney general’s appeal says the judge ventured from questions of law to issues of policy best left to elected officials.

“The court cites no legal authority for any of its breathtakingly sweeping orders requiring the State to, in effect, change numerous key educational policies so that they will be, in the trial court’s judgment, ‘rationally, substantially, and verifiably’ connected with educational need,”  it says. “Further, as is obvious upon even the briefest reflection, none of the issues raised by the trial court is an issue of constitutional law; rather, each one is a critical issue of policy upon which reasonable minds can and do differ.”

The appeal posed a series of question to the court:

  • Should and can the General Assembly be compelled to create and stick to a particular school funding formula, even though it is already providing adequate educational opportunities?
  • Should the state set standardized requirements for completion of elementary school and high school graduation, at the risk of holding behind disproportionate numbers of poor students?
  • Should the state impose more rigorous teacher evaluation standards, perhaps outside of collective bargaining, and should those standards be based substantially on students’ standardized test scores?
  • Should the state require that teachers’ pay be tied to measurable success, and should teachers in areas of greater need or difficulty be paid more?
  • Should the state attempt to dictate the workings of local special education programs?”

“Each of these issues is important. Each is obviously controversial, worthy of extensive discussion, and susceptible of cogent arguments to support divergent views,” the appeal says. “Each one is also quintessentially a matter of educational policy, rather than constitutional law, and therefore a matter for elected officials to determine through the democratic process. There is no reason to believe that any judge is better qualified to make these decisions than are elected officials.”

The plaintiffs have not yet decided how to respond.

“The Connecticut Coalition for Justice in Education Funding [CCJEF] is in discussion with our attorneys in regard to our legal options in light of the Attorney General’s decision to appeal the landmark CCJEF v. Rell decision. We will issue a further statement when the CCJEF membership decides on a course of action,” said Jim Finley, principal consultant to the coalition.

But the Connecticut Education Association, the state’s largest teachers’ union and a coalition member, expressed relief that the state is challenging Moukawsher, a reflection of the disparate views likely to emerge from a group that includes labor and management.

“The state attorney general made the right decision to appeal the part of the judge’s ruling that imposed mandates on everything from determining how teachers are evaluated to denying education to severely disabled children to requiring new graduation standards,” said Sheila Cohen, the union president. “These education policy issues are clearly within the purview of the state legislature and executive branches of government—the democratic process which allows input from all stakeholders—and should not rest in the hands of a single person.”

In his public statement, Jepsen said the appeal was no reason for the administration and legislature not to review the issues raised by the judge and or work to improve the system.

“Despite its order, the trial court correctly determined that the state far exceeds its minimum constitutional obligations for providing equitable access to adequate education,” Jepsen said. “Nevertheless, the ruling identified profound educational challenges that remain and must continue to receive serious and sustained attention – and action – at every level of government. Nothing about this appeal prevents policymakers from immediately addressing those challenges, and I urge them to do so without delay.”

Malloy concurred.

“We know that we do not need to wait for the legal outcome to start improving outcomes for our students.  We’ve begun to make progress by investing hundreds of millions of dollars in education directed at the students who need it most.  These investments are already paying off with students across the board showing progress in math and reading on state tests, but we know there is more work to do.

“We hope that this moment marks the start, rather than the stalling, of a statewide dialogue around finding a better way to fund our schools, which ultimately results in a better solution for our students and communities.  We should act together, and we should do it sooner rather than later.”