State appeal of education ruling: 5 things to know

A Hartford Superior Court judge three months ago deemed the state’s education funding system unconstitutional and ordered the General Assembly and the administration of Gov. Dannel P. Malloy to revamp how Connecticut funds and oversees its schools.

Connecticut Supreme Court chamber

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Connecticut Supreme Court chamber

This month, attorneys representing the state explained in a brief submitted to the Connecticut Supreme Court why the justices should throw out much of lower court’s order.

Here are five things to know about the state’s argument and case as it moves forward.

1. Teachers’ unions and school boards can’t sue the state

The parents of 11 students attending schools in Windham, Norwich, New Britain or Stamford filed a lawsuit years ago to sue the state, all of them alleging in their complaint that the education being provided to their children is inadequate.

A parent of just two of those students, Mary Gallucci, testified during the months-long trial. Her testimony took three minutes and was limited to where she lives, where her children go to school and how she became a member of the coalition suing the state.

No details about her childen’s experience in the Windham Public Schools were offered, and attorneys representing the state didn’t ask her a single question. Instead, the judge heard from teachers, principals and superintendents for months describing the dire circumstances in schools in Bridgeport, Danbury, East Hartford, New Britain, New London and Windham.

Attorney General George Jepsen pointed to the lack of testimony from students or their guardians as the reason the Supreme Court should dismiss the case, and used one-quarter of his brief to explain why the merits of the case should not be heard further.

“The record, including over 11,000 cases of transcript, is completely devoid of any evidence that any individual plaintiff’s student suffered any loss or deprivation of any kind,” he wrote in a 50-page brief filed Dec. 12. “Plaintiffs’ claims are akin to those of a personal injury claimant who asserts standing because he drove on a dangerous highway, but fails to show that she suffered any specific personal injury.”

CCJEF vs. REll

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The driving force behind this school-funding lawsuit is the Connecticut Coalition for Justice in Education Funding. The organization’s most recent available tax records from 2015 show the nonprofit’s officers include the mayors of Bridgeport, Hartford, New Haven, the leader of the state’s largest teachers’ union, and school board members from towns throughout the state.

“The right to sue to enforce the state constitution’s educational provision belongs to the students,” Jepsen wrote the high court. “Boards of education and municipalities are creatures of the state that cannot challenge the constitutionality of legislation… Teachers’ unions obviously have no standing to raise the rights of students and their parents.”

Jepsen called CCJEF’s attempt to sue the state by having parents included in the organization a “sham” since he believes they have no voting rights.

“They are simply pawns added in an attempt to provide standing,” he wrote, pointing out the “overwhelming inherent conflicts” teachers union members and school board members of the coalition have with each other.

This is the third time attorneys representing the state have tried to get the coalition kicked off the case.

Attorney General George Jepsen

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Attorney General George Jepsen

Most recently, Hartford Superior Court Judge Thomas Moukawsher rejected that the coalition does not have standing because the parents did not share their stories. And he was not convinced that parents are powerless in the organization.

“The state could have asked for the right to depose any of the plaintiffs, but decided not to,” he wrote in September. “The harms alleged focus particularly on the plaintiffs’ school district and the inadequacies they face. What more can they be asked? It would be impossible to prove that a specific failure caused them personally not to learn something. That is why they only have to have a colorable claim. They have one.”

The trial has been long awaited. The lawsuit was first filed 11 years ago – a delay that has meant that the lawsuit has had to be amended over the years since several of the students are no longer in school. The regular attempts to have the case dismissed instead of focusing on the merits of the allegations, and the slow pace of a resolution, have irritated the coalition suing the state.

“This case has been dragged on long enough. Justice delayed is justice denied for these school children,” said Jim Finley, the principal consultant for the coalition.

2. Connecticut schools are great

Attorneys for the state started off their brief by recounting how well Connecticut is already doing in educating students.

Connecticut, they said, ranked fifth out of all participating educational systems in the world in reading. The state was one of only four to increase education spending amid the most recent recession. The state spends “far more” per student than most other states. Teacher salaries are the third highest in the country and have kept pace with inflation.

The trial judge dismissed this statewide-level data as proof that students in the most impoverished communities are receiving a great education, pointing out that the state’s high-performing districts distort the view of how things are in troubled districts.

Hartford Superior Court Judge Thomas Moukawsher listens to an attorney for the plaintiffs question Sharon Locke, at right, about her experiences as a district administrator in New Britain Public Schools. Locke now serves as the superintendent in Naugatuck.

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Hartford Superior Court Judge Thomas Moukawsher listens to an attorney for the plaintiffs question Sharon Locke, at right, about her experiences as a district administrator in New Britain Public Schools.

“The flaw of averages is easy to see. Averages mislead when they cut across wide extremes,” Moukawsher wrote. “So it is with Connecticut’s schools. Many soar, but some sink. … The children in most Connecticut towns do well on tests and some do extremely well, pulling up the average to impressive heights. But viewed individually, the state of education in some towns is alarming.”

However, the judge did rule that the overall amount the state is spending on education is meeting at least the bare minimum he believes the state Constitution requires.

“There is no proof of a statewide problem caused by the state sending districts too little money,” he wrote. “Against a minimal standard the plaintiffs have not proved by a preponderance and certainly not beyond a reasonable doubt that there is a systemic problem that should spark a constitutional crisis and an order to spend more.”

Jepsen says that’s where the judge’s decision should have ended.

3. It’s ‘blind man’s buff’ between judge and legislature

The trial judge in his decision determined that the state’s education system is unconstitutional because “many of our most important policies are so befuddled or misdirected as to be irrational.”

Moukawsher ordered that the state’s spending plan and key education policies such as how students earn a high school diploma, must be “rationally, substantially, and verifiably connected to creating educational opportunities for children.”

He pointed to the high court’s previous ruling that the education system is unconstitutional if it “is so lacking as to be unreasonable by any fair or objective standard.”

Attorneys for the state argue that once the judge determined that students were being provided the education the constitution requires, “this new constitutional standard of judicial scrutiny [is] completely outside this Court’s remand.”

“After creating its new standard, the trial court proceeded to apply it in a manner that clearly exposes it for what it is – a license for a judge to impose his own views of correct educational policy and educational fiscal policy in lieu of the determinations of the elected branches of our government,” Jepsen wrote, adding the judge’s conclusion that the setup is irrational is “patently incorrect.”

The order for the legislature to overhaul the system, Jepsen wrote, “simply invites an extended variant of blind man’s buff in which the legislature is invited to guess what educational policy chances might satisfy the particular trial judge assigned to the matter.”

4. Disparities between rich and poor towns don’t matter

Much of the time during the trial was spent highlighting the disparities in spending and the education being provided to students in rich districts compared to impoverished districts.

Attorneys for the state say none of that should matter as long as students are being provided the education the state Constitution mandates and that the disparities are not intentional.

To win an equal protection lawsuit against the state, Jepsen wrote that the disparities have to be far more than trivial “in that they continue to jeopardize the plaintiff’s fundamental right to education.”

“Intentional or purposeful discrimination must be shown to make a successful equal protection challenge… Plaintiffs have alleged no such claims,” he wrote.

The state spends nearly $5 billion each year on education. The state’s largest funding source to municipalities, the Education Cost Sharing grant, sends two-thirds of the $2 billion grant to the state’s 30 lowest-performing districts. A similar breakdown exists for the $700 million the state spends on school construction projects. However, the state does not factor in a town’s ability to pick up some of the costs for the $1.4 billion the state spends on teachers’ pensions.

Because so much of state spending is directed at the neediest districts, the trial judge did not find that the state is violating the state constitution’s equal protection clause.

“This tilt is also fatal to the plaintiffs’ equal protection claim as a basis for an order to increase the total amount the state spends on education,” Moukawsher wrote. “They can hardly claim getting more money compared to other towns is the cause of their woes. They claim lack of enough money is the cause of inadequacy.”

Moukawsher, instead found the state was violating another section of the state Constitution that requires students be provided an education, as implemented through “appropriate legislation.” He ruled it was not appropriate, and therefore unconstitutional.

5. Who might hear the case

With the final brief for the case due April 12, it is not yet clear when the high court will hear arguments or which justices will decide the case.

Connecticut Supreme Court bench

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Connecticut Supreme Court bench

Chief Justice Chase T. Rogers recused herself from the case in 2009 when the high court determined that the state constitution requires a certain quality of education, and sent the case back to the lower court in 2010 to determine what that threshold should be and whether the state was meeting it.

Justice Andrew McDonald has already recused himself. He advised Malloy on the lawsuit when Malloy was a plaintiff in the suit as the mayor of Stamford. McDonald was also Malloy’s top lawyer when he became the governor.

Of the four justices that ruled in the majority in 2010 that Connecticut is responsible for providing students with a minimally adequate education, only one is still on the court, Justice Richard Palmer. Of the three justices who dissented, only one remains on the court, Justice Peter Zarella, though he is retiring at the end of this year. However, Justice Christine Vertefeuille, who sat on the case when Rogers recused herself, is still a senior justice and could be available for this appeal.

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