sheff v. o'neill - sheff movement

Supreme Court of Connecticut.Milo SHEFF et al.

v.William A. O'NEILL et al.

No. 15255.

Argued Sept. 28, 1995.Officially Released July 9, 1996.FN*

FN* July 9, 1996, the date that this de-cision was released as a slip opinion, is theoperative date for all substantive and pro-cedural purposes.

Public school children brought action against stateofficials for declaratory judgment to determinewhether defendants had failed to provide them withsubstantially equal educational opportunity as resultof alleged segregation by race and ethnicity of stu-dents in metropolitan area and for injunctive relief.The Superior Court, Judicial District of Hartford-New Britain at Hartford, Hammer, J., found nostate action and entered judgment for defendants.Children appealed. Following transfer, the SupremeCourt, Peters, C.J., held that: (1) precedents com-pelled conclusion that balance would be struck infavor of justiciability of children's complaint seek-ing judicial enforcement of right to substantiallyequal educational opportunity under Constitution;(2) under Connecticut law, which imposes affirmat-ive constitutional obligation on legislature toprovide substantially equal educational opportunityfor all public school children, state action doctrinewas not defense to children's claims of constitution-al deprivation; (3) existence of extreme racial andethnic isolation in public school system deprivesschool children of substantially equal educationalopportunity and requires state to take further re-medial measures; (4) legislature is required to takeaffirmative responsibility to remedy segregation inpublic schools, regardless of whether that segrega-tion has occurred de jure or de facto; (5) children's

pleadings, with respect to counts alleging per seclaim that they suffered from unconstitutional se-gregation and that disparities in racial and ethniccomposition of city's public school as comparedwith schools in surrounding school districts viol-ated their constitutional rights, stated claim fordeprivation of substantially equal educational op-portunity; (6) children's pleadings, with respect tocount alleging that state officials had failed toprovide children in city public school system witheducational resources necessary to obtain minim-ally adequate education, failed to implicate consti-tutional right to substantially equal educational op-portunity; (7) school districting scheme, as codifiedin districting and attendance statutes, was unconsti-tutional; and (8) further judicial intervention wouldbe stayed to afford General Assembly opportunityto take appropriate legislative action.

Reversed and remanded with directions.

Berdon, J., concurred and filed opinion.

Borden, J., dissented and filed opinion in whichCallahan and Palmer, JJ., joined.

West Headnotes

[1] Constitutional Law 92 2525

92 Constitutional Law92XX Separation of Powers

92XX(C) Judicial Powers and Functions92XX(C)2 Encroachment on Legislature

92k2499 Particular Issues and Applica-tions

92k2525 k. Taxation and PublicFinance. Most Cited Cases

(Formerly 92k70.1(12))Under doctrine of separation of powers, courts donot have jurisdiction to decide cases that involvematters that textually have been reserved to legis-lature, such as implementation of constitutionalspending cap or appointment of additional judges.U.S.C.A. Const. Art. 3, § 1 et seq.

678 A.2d 1267 238 Conn. 1, 678 A.2d 1267, 111 Ed. Law Rep. 360

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

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92XX(C) Judicial Powers and Functions92XX(C)1 In General

92k2452 k. Determination of Powersof Other Branches in General. Most Cited Cases

(Formerly 92k67)In absence of reservation in text of constitution ofmatters to legislature, it is role and duty of judiciaryto determine whether legislature has fulfilled its af-firmative obligations within constitutional prin-ciples. U.S.C.A. Const. Art. 3, § 1 et seq.



92XX(C) Judicial Powers and Functions92XX(C)1 In General

92k2452 k. Determination of Powersof Other Branches in General. Most Cited Cases

(Formerly 92k67)Deciding whether matter has in any measure beencommitted by Constitution to another branch ofgovernment, or whether action of that branch ex-ceeds whatever authority has been committed, is it-self delicate exercise in constitutional interpretationand is responsibility of Supreme Court as ultimateinterpreter of Constitution. U.S.C.A. Const. Art. 3,§ 1 et seq.



92XX(C) Judicial Powers and Functions92XX(C)2 Encroachment on Legislature

92k2499 Particular Issues and Applica-tions

92k2508 k. Education. Most CitedCases

(Formerly 92k70.1(7.1))Precedents compelled conclusion that balancewould be struck in favor of justiciability of public

school children's complaint seeking judicial en-forcement of right to substantially equal education-al opportunity under Constitution; just as legislaturehas constitutional duty to fulfill its affirmative ob-ligation to public school children, so judiciary hasconstitutional duty to review whether legislaturehas fulfilled its obligation. C.G.S.A. Const. Art. 1,§§ 1, 20; Art. 8, § 1.

[5] Action 13 6

13 Action13I Grounds and Conditions Precedent

13k6 k. Moot, Hypothetical or AbstractQuestions. Most Cited Cases

Courts 106 35

106 Courts106I Nature, Extent, and Exercise of Jurisdiction

in General106k34 Presumptions as to Jurisdiction

106k35 k. In General. Most Cited CasesConsiderations of justiciability must be balancedagainst principle that every presumption is to be in-dulged in favor of subject matter jurisdiction.

[6] Schools 345 148(1)

345 Schools345II Public Schools

345II(L) Pupils345k148 Nature of Right to Instruction in

General345k148(1) k. In General. Most Cited

CasesUnder Connecticut law, which imposes affirmativeconstitutional obligation on legislature to providesubstantially equal educational opportunity for allpublic school children, state action doctrine was notdefense to children's claims of constitutionaldeprivation; state had ample notice of ongoingtrends toward racial and ethnic isolation in its pub-lic schools and fact that legislature did not affirmat-ively create or intend to create conditions that led toracial and ethnic isolation did not, in and of itself,


























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relieve state officials of their obligation to providechildren with more effective remedy for their con-stitutional grievances. C.G.S.A. Const. Art. 1, §§ 1,20; Art. 8, § 1.

[7] Schools 345 148(1)




CasesState has affirmative constitutional obligation toprovide all public school children with substantiallyequal educational opportunity. C.G.S.A. Const. Art.1, §§ 1, 20; Art. 8, § 1.

[8] Schools 345 148(1)




CasesAny infringement of state's affirmative constitu-tional obligation to provide all public school chil-dren with substantially equal educational opportun-ity must be strictly scrutinized. C.G.S.A. Const.Art. 1, §§ 1, 20; Art. 8, § 1.

[9] Schools 345 13(2)


345II(A) Establishment, School Lands andFunds, and Regulation in General

345k13 Separate Schools for RacialGroups

345k13(2) k. Existence and Proprietyof Segregated System. Most Cited CasesExistence of extreme racial and ethnic isolation inpublic school system deprives school children of

substantially equal educational opportunity and re-quires state to take further remedial measures.C.G.S.A. Const. Art. 1, § 20; Art. 8, § 1.


92 Constitutional Law92V Construction and Operation of Constitu-

tional Provisions92V(A) General Rules of Construction

92k595 Intrinsic Aids to Construction92k598 k. Giving Effect to Every

Word. Most Cited Cases(Formerly 92k15)

Constitutional Law 92 599

92 Constitutional Law92V Construction and Operation of Constitu-

tional Provisions92V(A) General Rules of Construction

92k595 Intrinsic Aids to Construction92k599 k. Giving Effect to Entire In-

strument. Most Cited Cases(Formerly 92k15)

Fundamental principles of constitutional interpreta-tion require that effect must be given to every partof and each word in constitution.


92 Constitutional Law92XXVI Equal Protection

92XXVI(A) In General92XXVI(A)2 Relationship to Similar Pro-

visions92k3006 k. Federal/State Cognates.

Most Cited Cases(Formerly 92k215)

Insofar as Connecticut Constitution's equal protec-tion clause, providing right to protection from se-gregation, differs textually from federal equal pro-tection clause, its judicial construction must reflectsuch textual distinction. U.S.C.A. Const.Amend.14; C.G.S.A. Const. Art. 1, § 20.

[12] Schools 345 13(5)






























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345k13(5) k. De Facto or De Jure Se-gregation. Most Cited CasesLegislature is required to take affirmative respons-ibility to remedy segregation in public schools, re-gardless of whether that segregation has occurredde jure or de facto; term segregation in Connecticutconstitutional article providing right to protectionfrom segregation is neutral regarding segregativeintent and in context of public education, in whichstate has affirmative obligation to monitor andequalize educational opportunity, state's awarenessof existing and increasing severe racial and ethnicisolation imposes upon state responsibility to rem-edy segregation because of race or ancestry.C.G.S.A. Const. Art. 1, § 20; Art. 8, § 1.

[13] Schools 345 13(4)




345k13(4) k. Desegregation and Integ-ration and Duty to Desegregate in General. MostCited CasesElimination of racial isolation in public school pro-motes attainment of equal educational opportunityand is beneficial to all students of all races.C.G.S.A. Const. Art. 1, § 20; Art. 8, § 1.

[14] Schools 345 13(18.1)




345k13(18) Actions345k13(18.1) k. In General. Most

Cited CasesPublic school children's pleadings, with respect tocounts alleging per se claim that they suffered fromunconstitutional segregation and that disparities inracial and ethnic composition of city's public schoolas compared with schools in surrounding schooldistricts violated their constitutional rights, statedclaim for deprivation of substantially equal educa-tional opportunity; Supreme Court would be remissin exercise of constitutional obligation to provideremedy by due course of law without delay if it wasto deprive children of remedy solely because, aspleading matter, their claims were stated in twocounts rather than combined in one count of schoolsegregation. C.G.S.A. Const. Art. 1, §§ 1, 10, 20;Art. 8, § 1.

[15] Schools 345 13(18.1)





Cited CasesPublic school children's pleadings, with respect tocount alleging that state officials had failed toprovide children in city public school system witheducational resources necessary to obtain minim-ally adequate education, failed to implicate consti-tutional right to substantially equal educational op-portunity; claim was not expressly predicated uponsevere racial and ethnic isolation that existed inschool system and, moreover, children concededthat they had never claimed that opportunity to par-ticipate in racially and ethnically diverse educationwas constitutionally required component of minim-ally adequate education. C.G.S.A. Const. Art. 1, §§1, 20; Art. 8, § 1.

[16] Schools 345 148(1)

























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CasesWhen scrutinizing legislation that allegedly in-fringes upon fundamental right to education, three-step process applies: plaintiffs must first makeprima facie showing that disparities are more thande minimis in that disparities continue to jeopardizeplaintiffs' fundamental right to education, then bur-den shifts to state to justify these disparities as in-cident to advancement of legitimate state policy,and if state's justification is acceptable, state mustfurther demonstrate that continuing disparities arenevertheless not so great as to be unconstitutional.C.G.S.A. Const. Art. 1, §§ 1, 20; Art. 8, § 1.

[17] Schools 345 13(2)




345k13(2) k. Existence and Proprietyof Segregated System. Most Cited CasesPublic school children established prima facieshowing that disparities in racial and ethnic com-position of city public schools and surroundingcommunities, a result of current school assignmentscheme principally embodied in school districtingand attendance statutes, were more than de minimusand jeopardized children's fundamental right toeducation; while children from minority groupsconstituted 25.7% of statewide public school popu-lation in 1991-92 school year, 92.4% of children incity public school system were members of minor-ity groups, in 1994-95 school year 94.5% childrenin city public schools were minorities, city publicschool system enrolls highest percentage of minor-ity students in state, and percentage is likely to be-

come higher in future and, moreover, state officialsfailed to contest that disparities in racial and ethniccomposition was more than de minimus. C.G.S.A.Const. Art. 1, §§ 1, 20; Art. 8, § 1; C.G.S.A. §§10-184, 10-240.


92 Constitutional Law92XXVI Equal Protection

92XXVI(A) In General92XXVI(A)6 Levels of Scrutiny

92k3069 Particular Classes92k3076 k. Poverty; Indigents and

the Homeless. Most Cited Cases(Formerly 92k213.1(1))

Poverty is not suspect classification, for equal pro-tection purposes. U.S.C.A. Const.Amend. 14;C.G.S.A. Const. Art. 1, § 20.

[19] Schools 345 13(4)




345k13(4) k. Desegregation and Integ-ration and Duty to Desegregate in General. MostCited CasesState officials justified disparities in racial and eth-nic composition of city public schools and sur-rounding communities, a result of current schoolassignment scheme principally embodied in schooldistricting and attendance statutes, as incident toadvancement of legitimate state policies of improv-ing educational quality for all Connecticut schoolchildren by increasing state involvement in all as-pects of public elementary and secondary educa-tion, permitting considerable local control and ac-countability in educational matters and addressingadverse consequences of racial and ethnic discrim-ination. C.G.S.A. Const. Art. 1, §§ 1, 20; Art. 8, §1; C.G.S.A. §§ 10-184, 10-226a et seq., 10-240.























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[20] Schools 345 13(2)




345k13(2) k. Existence and Proprietyof Segregated System. Most Cited CasesAlthough state officials justified continuing dispar-ities in racial and ethnic composition of city publicschools and surrounding communities as incident toadvancement of legitimate state policy, officialsfailed to establish that disparities were neverthelessnot so great as to be unconstitutional and, therefore,school districting scheme, as codified in districtingand attendance statutes, was unconstitutional; in1991-92 school year over 92% of city public schoolchildren were members of minority groups whereasduring same period only seven of 21 surroundingsuburban towns had student minority enrollmentabove 10% and trial court found and parties failedto contest that despite efforts by state to alleviatesevere racial and ethnic isolation existing in citypublic school system, students in city schools werelikely to become more isolated in future and singlemost important factor contributing to present con-centration of racial and ethnic minorities wasschool district system, codified in school districtingstatute. C.G.S.A. Const. Art. 1, §§ 1, 20; Art. 8, §1; C.G.S.A. §§ 10-184, 10-240.

[21] Schools 345 13(18.1)





Cited CasesAfter holding that school districting scheme, as co-dified in districting and attendance statutes, was un-

constitutional, further judicial intervention wouldbe stayed to afford General Assembly opportunityto take appropriate legislative action. C.G.S.A.Const. Art. 1, §§ 1, 20; Art. 8, § 1; C.G.S.A. §§10-184, 10-240.

**1270*2 Wesley W. Horton, Hartford, with whomwere John Brittain, Martha Stone, Hartford, PhilipD. Tegeler, Dennis D. Parker, New York City, prohac vice, and, on the brief, Sandra DelValle, Hemp-stead, NY, pro hac vice, Kenneth Kimerling, NewYork City, pro hac vice, Wilfred Rodriguez, Brook-lyn, NY, Christopher A. Hansen, Towson, MD, prohac vice, Theodore M. Shaw, pro hac vice, andMarianne L. Engelman, Westport, pro hac vice, forappellants (plaintiffs).Richard Blumenthal, Attorney General, with whomwere Gregory T. D'Auria, Carolyn K. Querijero,Bernard F. McGovern, Jr., and Martha WattsPrestley, *3 Assistant Attorneys General, for ap-pellees (defendants).Maurice T. FitzMaurice and Carolyn A. Magnan,Hartford, filed a brief, for the City of Hartford et al.as amici curiae.Kathryn Emmett, Jane W. Glander, Stamford, andElise Mayers Bouchner, Lafayette, LA, filed abrief, for the Capitol Region Conference ofChurches et al. as amici curiae.David S. Golub and Jonathan M. Levine, Stamford,filed a brief, for the Connecticut Legislative Blackand Puerto Rican Caucus et al. as amici curiae.Martin Margulies, Bridgeport, filed a brief, for theSociety of American Law Teachers as amicus curi-ae.Stephen C. Willey, Seattle, WA, pro hac vice, andMichael P. Koskoff, Bridgeport, filed a brief, forthe Connecticut Federation of School Administrat-ors et al. as amici curiae.

Before PETERS, C.J., and CALLAHAN,BORDEN, BERDON, NORCOTT, KATZ andPALMER, JJ.

PETERS, Chief Justice.The public elementary and high school students in























































Hartford suffer daily from the devastating effectsthat racial and ethnic isolation, as well as poverty,have had on their education. Federal constitutionallaw provides no remedy for their plight. The prin-cipal issue in this appeal is whether, under theunique provisions of our state constitution, thestate, which already plays an active role in man-aging public schools, must take further measures torelieve the severe handicaps that burden these chil-dren's education. The issue is as controversial as thestakes are high. We hold today that the needyschoolchildren of Hartford have waited longenough. The constitutional imperatives contained inarticle eighth, § 1,FN1 and article first, §§ 1 and 20,FN2 of our *4 state constitution entitle**1271 theplaintiffs to relief. At the same time, the constitu-tional imperative of separation of powers persuadesus to afford the legislature, with the assistance ofthe executive branch, the opportunity, in the firstinstance, to fashion the remedy that will most ap-propriately respond to the constitutional violationsthat we have identified. The judgment of the trialcourt must, accordingly, be reversed.

FN1. The constitution of Connecticut, art-icle eighth, § 1, provides: “There shall al-ways be free public elementary and sec-ondary schools in the state. The general as-sembly shall implement this principle byappropriate legislation.”

FN2. The constitution of Connecticut, art-icle first, § 1, provides: “All men whenthey form a social compact, are equal inrights; and no man or set of men are en-titled to exclusive public emoluments orprivileges from the community.”

The constitution of Connecticut, articlefirst, § 20, as amended by articles fiveand twenty-one of the amendments,provides: “No person shall be denied theequal protection of the law nor be sub-jected to segregation or discrimination inthe exercise or enjoyment of his or hercivil or political rights because of reli-

gion, race, color, ancestry, national ori-gin, sex or physical or mental disabil-ity.”

I

THE HISTORY AND FACTUAL BACKGROUNDOF THIS LITIGATION

In their action seeking a declaratory judgment andinjunctive relief, the eighteen plaintiffs FN3 filed afour count complaint in which they claimed that thedefendants FN4 had a constitutional obligation, un-der article *5 eighth, § 1, and article first, §§ 1 and20, to remedy alleged educational inequities in theHartford public schools. The trial court denied thedefendants' motions to strike the complaint and forsummary judgment. After an evidentiary hearing,the court concluded, however, that the plaintiffshad failed to prove that “state action exists underthe facts and circumstances of this case,” andrendered judgment in favor of the defendants.

FN3. The eighteen plaintiffs are: MiloSheff, an African-American child residingin Hartford; Wildalize Bermudez, a Latinochild residing in Hartford; Pedro Ber-mudez, a Latino child residing in Hartford;Eva Bermudez, a Latino child residing inHartford; Oskar M. Melendez, a Latinochild residing in Glastonbury; WaleskaMelendez, a Latino child residing in Gla-stonbury; Martin Hamilton, an African-American child residing in Hartford; Jan-elle Hughley, an African-American childresiding in Hartford; Neiima Best, anAfrican-American child residing in Hart-ford; Lisa Laboy, a Latino child residing inHartford; David William Harrington, awhite child residing in Hartford; MichaelJoseph Harrington, a white child residingin Hartford; Rachel Leach, a white childresiding in West Hartford; Joseph Leach, awhite child residing in West Hartford;




Erica Connolly, a white child residing inHartford; Tasha Connolly, a white childresiding in Hartford; Michael Perez, aLatino child residing in Hartford; andDawn Perez, a Latino child residing inHartford.

FN4. The defendants are: William O'Neillor his successor as the governor of thestate of Connecticut; the state board ofeducation of the state of Connecticut; Ab-raham Glassman, A. Walter Esdaile, War-ren J. Foley, Rita Hendel, John Mannixand Julia Rankin or their successor mem-bers of the state board of education; GeraldN. Tirozzi or his successor as the commis-sioner of education for the state of Con-necticut; Francis L. Borges or his suc-cessor as the treasurer of the state of Con-necticut; and J. Edward Caldwell or hissuccessor as the comptroller of the state ofConnecticut.

The plaintiffs expressly disavowed at tri-al any claim that their constitutionalrights had been violated by any acts oromissions on the part of the city of Hart-ford or its board of education, or on thepart of the twenty-one surrounding sub-urban towns or their boards of education.

A

The plaintiffs' revised four count complaint allegesthat students in the Hartford public schools areburdened by severe educational disadvantagesarising out of their racial and ethnic isolation andtheir socioeconomic deprivation. Seeking declarat-ory and injunctive relief, each count of their com-plaint is grounded on the proposition that the de-fendants have failed to fulfill their state constitu-tional responsibility to remedy these severe educa-tional disadvantages. Count one alleges that the de-fendants bear responsibility for the de facto racialand ethnic segregation between Hartford and thesurrounding suburban public school districts and

thus have deprived the plaintiffs of an equal oppor-tunity to a free public education as required by art-icle first, §§ 1 and 20, and article eighth, § 1. Counttwo alleges that the defendants have perpetuated theracial and ethnic segregation that exists betweenHartford and the surrounding suburban publicschool districts, and thus have discriminated againstthe plaintiffs and have failed to provide them withan equal opportunity to a free public education asrequired by article first, §§ 1 and *6 20, and articleeighth, § 1. Count three alleges that the defendantshave failed to provide the plaintiffs with an equalopportunity to a free public education as requiredby article first, §§ 1 and 20, and article eighth, § 1,because the defendants have maintained in Hartforda public school district that, by comparison withsurrounding suburban public school districts: (1) isseverely**1272 educationally disadvantaged; (2)fails to provide equal educational opportunities forHartford schoolchildren; and (3) fails to provide aminimally adequate education for Hartford school-children. Count four alleges that the defendantshave failed to provide the plaintiffs with a substan-tially equal educational opportunity as required byConnecticut law, including General Statutes §10-4a,FN5 in violation of the plaintiffs' rights todue process under article first, §§ 8 and 10.FN6

FN5. General Statutes § 10-4a provides:“Educational interests of state identified.For purposes of sections 10-4, 10-4b and10-220, the educational interests of thestate shall include, but not be limited to,the concern of the state (1) that each childshall have for the period prescribed in thegeneral statutes equal opportunity to re-ceive a suitable program of educational ex-periences; (2) that each school district shallfinance at a reasonable level at least equalto the minimum expenditure requirementpursuant to the provisions of section10-262j an educational program designedto achieve this end; and (3) that the man-dates in the general statutes pertaining toeducation within the jurisdiction of the








State Board of Education be implemen-ted.”

FN6. The constitution of Connecticut, art-icle first, § 8, as amended by article seven-teen of the amendments, provides in relev-ant part: “No person shall be compelled togive evidence against himself, nor be de-prived of life, liberty or property withoutdue process of law....”

The constitution of Connecticut, articlefirst, § 10, provides: “All courts shall beopen, and every person, for an injurydone to him in his person, property orreputation, shall have remedy by duecourse of law, and right and justice ad-ministered without sale, denial or delay.”

The defendants not only denied the underlying fac-tual and legal premises of the plaintiffs' complaint,but also raised seven special defenses. These de-fenses alleged that the defendants were not liablebecause of: (1) sovereign immunity; (2) stare decis-is; (3) separation of powers; (4) the lack of a justi-ciable controversy; (5) *7 the plaintiffs' failure tojoin necessary parties, including the city of Hart-ford; (6) the absence of state action; and (7) the un-availability of court-ordered remedies.

The trial court initially denied the defendants' mo-tions to strike and for summary judgment that werepremised on these special defenses. After an evid-entiary hearing, however, the court ruled in favor ofthe defendants on their sixth special defense. Rely-ing heavily on principles drawn from federal consti-tutional law, the court determined that the plaintiffscould not prevail without establishing that state ac-tion was the “direct and sufficient cause of the con-ditions” alleged in their complaint, and concludedthat they had failed to prove such causation. Find-ing no such state action, the court rendered judg-ment for the defendants without addressing themerits of the constitutional claims asserted by theplaintiffs.

B

Because of the importance of the novel and contro-versial questions of constitutional law raised in thislitigation, pursuant to Practice Book § 4023 andGeneral Statutes § 51-199(c), we transferred to thiscourt the plaintiffs' appeal from the judgment of thetrial court. Noting that the plaintiffs' complaint hadbeen pending since 1989, we held a special hearing,shortly after the appeal had been filed, to order sup-plementation of the trial record. We directed theparties to prepare a joint stipulation of all relevantundisputed facts and to assist the trial court in mak-ing findings of fact on matters upon which theparties could not agree.FN7 Our resolution of thisappeal has proceeded on the basis of this supple-mented,*8 record which the parties and the courtpromptly prepared in accordance with our order.

FN7. We express herewith our sincere ap-preciation to all counsel for the diligenceand the expedition with which they respon-ded to this court's request. Their profes-sionalism is to be commended.

We also express herewith our sincere ap-preciation to the trial court for the dili-gence and the expedition with which thatcourt responded to this court's request.

C

The stipulation of the parties and the trial court'sfindings establish the following relevant facts.Statewide, in the 1991-92 school year, childrenfrom minority groups constituted 25.7 percent ofthe public school population. In the Hartford publicschool system in that same period, 92.4 percent ofthe students were members of minority groups, in-cluding,**1273 predominantly, students who wereeither African-American or Latino.FN8 Fourteenof Hartford's twenty-five elementary schools had awhite student enrollment of less than 2 percent. TheHartford public school system currently enrolls thehighest percentage of minority students in the state.In the future, if current conditions continue, the






percentage of minority students in the Hartfordpublic school system is likely to increase ratherthan decrease. Since 1980, the percentage of Afric-an-Americans in the Hartford student populationhas decreased, while the percentage of Latinos hasincreased. Although enrollment of African-Amer-ican students in the twenty-one surrounding suburb-an towns has increased by more than 60 percentfrom 1980 to 1992, only seven of these school dis-tricts had a minority student enrollment in excess of10 percent in 1992. Because of the negative con-sequences of racial and ethnic isolation, a more in-tegrated public school system would likely be bene-ficial to all schoolchildren.

FN8. We use the terms“African-American” and “Latino” becausethey are the terms that the parties used intheir relevant stipulations of fact.

A majority of the children who constitute the publicschool population in Hartford come from homesthat are economically disadvantaged, that areheaded by a single parent and in which a languageother than English is spoken. The percentage ofHartford schoolchildren *9 at the elementary levelwho return to the same school that they attended theprevious year is the lowest such percentage in thestate. Such socioeconomic factors impair a child'sorientation toward and skill in learning and ad-versely affect a child's performance on standardizedtests. The gap in the socioeconomic status betweenHartford schoolchildren and schoolchildren fromthe surrounding twenty-one suburban towns hasbeen increasing. The performance of Hartfordschoolchildren on standardized tests falls signific-antly below that of schoolchildren from the twenty-one surrounding suburban towns.

Directly or indirectly, the state has always con-trolled public elementary and secondary educationin Connecticut. The legislature directs many aspectsof local school programs, including courses ofstudy and curricula, standardized testing, bilingualeducation, graduation requirements and school at-tendance. Since 1941, as a result of a state statute;

see General Statutes § 10-240; FN9 the publicschool district boundaries in Hartford have been co-terminous with the boundaries of the city of Hart-ford. Since at least 1909, as a result of another statestatute; see General Statutes § 10-184; FN10

schoolchildren *10 have been assigned to the publicschool district in which they reside.

FN9. General Statutes § 10-240 provides:“Control of schools. Each town shallthrough its board of education maintain thecontrol of all the public schools within itslimits and for this purpose shall be aschool district and shall have all thepowers and duties of school districts, ex-cept so far as such powers and duties areinconsistent with the provisions of thischapter.”

FN10. General Statutes § 10-184 provides:“Duties of parents. All parents and thosewho have the care of children shall bringthem up in some lawful and honest em-ployment and instruct them or cause themto be instructed in reading, writing,spelling, English grammar, geography,arithmetic and United States history and incitizenship, including a study of the town,state and federal governments. Each parentor other person having control of a childseven years of age and over and under six-teen years of age shall cause such child toattend a public day school regularly duringthe hours and terms the public school inthe district wherein such child resides is insession, or while the school is in session inwhich provision for the instruction of suchchild is made according to law, unless theparent or person having control of suchchild is able to show that the child is else-where receiving equivalent instruction inthe studies taught in the public schools.”

The legislature provides substantial support to com-munities throughout the state to finance publicschool operations. State financial aid is distributed







so that the neediest school districts receive the mostaid. Accordingly, in the 1990-91 and 1991-92school years, overall per pupil state expenditures inHartford exceeded the average amount spent perpupil in the twenty-one surrounding suburbantowns. The state reimburses Hartford for its schoolrenovation projects at a rate that is considerablyhigher than the reimbursement rate for the twenty-one surrounding suburban towns.

**1274 The state has not intentionally segregatedracial and ethnic minorities in the Hartford publicschool system. Except for a brief period in 1868, nostudents in Connecticut have intentionally been as-signed to a public school or to a public school dis-trict on the basis of race or ethnicity.FN11 Therehas never been any other manifestation of de juresegregation either at the state or the local level. Inaddition to various civil rights initiatives under-taken by the legislature from 1905 to 1961 to com-bat racial discrimination, the state board of educa-tion was reorganized, during the 1980s, to concen-trate on the needs of urban schoolchildren and topromote diversity in the public schools. Since 1970,the state has supported and encouraged voluntaryplans for increasing interdistrict diversity.

FN11. In 1868, Hartford enacted a townordinance that assigned African-Americanstudents to a specially designated publicschool. In response to the town ordinance,the General Assembly enacted legislationthat provided for open enrollment in all ofthe state's public schools without regard torace. Public Acts, May Sess., 1868, c.CVIII; see General Statutes § 10-15c.

The state has nonetheless played a significant rolein the present concentration of racial and ethnicminorities in the Hartford public school system. Al-though *11 intended to improve the quality of edu-cation and not racially or ethnically motivated, thedistricting statute that the legislature enacted in1909, now codified at § 10-240,FN12 is the singlemost important factor contributing to the presentconcentration of racial and ethnic minorities in the

Hartford public school system. The districting stat-ute and the resultant school district boundaries haveremained virtually unchanged since 1909. The dis-tricting statute is of critical importance because itestablishes town boundaries as the dividing linebetween all school districts in the state.

FN12. See footnote 9.

Nonetheless, according to the findings of the trialcourt, poverty, and not race or ethnicity, is the prin-cipal causal factor in the lower educational achieve-ment of Hartford students. The court also found thatthe Hartford public school system provides its stu-dents with a minimally adequate education underarticle first, §§ 1 and 20, and article eighth, § 1, be-cause, regardless of the comparative levels ofachievement between Hartford students and stu-dents from the twenty-one suburban towns, the edu-cation provided to Hartford students gives them achance to lead successful lives. It further found thatthe Hartford public school system provides its stu-dents with an equal educational opportunity be-cause they receive resources, educational programsand curricula similar to those received by studentsin other communities in the state. It then found thatschool district lines would have to be redrawn inorder to remedy effectively the severe racial, ethnicand socioeconomic isolation that exists in the Hart-ford public school system. In addition to these find-ings addressed to the plaintiffs' specific legalclaims, the court also found that any form of man-datory intervention would have to rely on coercivemeasures that would not assure educationally desir-able outcomes.

*12 D

The plaintiffs' appeal challenges the validity ofmany of the trial court's findings of fact and all ofits conclusions of law.FN13 The defendants ask usto affirm the judgment of the trial court, by revers-ing its conclusion that the plaintiffs' complaint isjusticiable or by upholding its conclusion that thecomplaint is barred by an absence of the requisite



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state action. If we reject these affirmative defenses,the defendants argue that the plaintiffs have failedto establish their claims of law in light of the find-ings of the trial court. We are unpersuaded by thedefendants' affirmative defenses and, on the merits,we reverse the judgment of the trial court.

FN13. The plaintiffs have failed to briefand thus have abandoned the fourth countof their complaint that alleges that the de-fendants have failed to provide theplaintiffs with a substantially equal educa-tional opportunity in violation of articlefirst, §§ 8 and 10. See In re Bruce R., 234Conn. 194, 215-16, 662 A.2d 107 (1995);State v. Mejia, 233 Conn. 215, 223 n. 13,

658 A.2d 571 (1995).

II

THE AFFIRMATIVE DEFENSES

The defendants renew two affirmativedefenses**1275 that they raised at trial.FN14 Theyargue that the text of article eighth, § 1, deprivesthe trial court of jurisdiction to consider whetherthe plaintiffs are entitled to relief by way of an or-der to the legislature to provide a remedy for theirimpaired educational opportunities. They also arguethat, even if the trial court had jurisdiction, theplaintiffs cannot recover because they have not al-leged that their educational impairment results fromintentional state misconduct. We are not persuadedby either of these affirmative defenses.

FN14. The defendants have failed to pur-sue their defenses based on sovereign im-munity, stare decisis and the plaintiffs' fail-ure to join necessary parties. We thus deemthese claims abandoned and decline to ad-dress them.

*13 A

The defendants maintain that the trial court should

have dismissed the plaintiffs' complaint because theplaintiffs' claims are nonjusticiable. Granting theplaintiffs the relief they seek would, according tothe defendants, require this court to respond to apolitical question that our constitution has expresslyand exclusively entrusted to the legislature. We dis-agree.

[1][2][3] Existing precedents describe the uneasyline that distinguishes between cases that are justi-ciable and cases that are not. Because of the doc-trine of separation of powers, courts do not havejurisdiction to decide cases that involve matters thattextually have been reserved to the legislature, suchas the implementation of a constitutional spendingcap; Nielsen v. State, 236 Conn. 1, 9-10, 670 A.2d1288 (1996); or the appointment of additionaljudges. Pellegrino v. O'Neill, 193 Conn. 670, 683,480 A.2d 476,cert. denied, 469 U.S. 875, 105 S.Ct.236, 83 L.Ed.2d 176 (1984); see also Nielsen v.Kezer, 232 Conn. 65, 74, 652 A.2d 1013 (1995). Inthe absence of such a textual reservation, however,it is the role and the duty of the judiciary to determ-ine whether the legislature has fulfilled its affirmat-ive obligations within constitutional principles.Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2L.Ed. 60 (1803); Pratt v. Allen, 13 Conn. 119, 132(1839); see Caldor, Inc. v. Thornton, 191 Conn.336, 344, 464 A.2d 785 (1983); aff'd, 472 U.S. 703,105 S.Ct. 2914, 86 L.Ed.2d 557 (1985); Horton v.Meskill, 172 Conn. 615, 625, 649-50, 376 A.2d 359(1977)(Horton I ); Preveslin v. Derby & AnsoniaDeveloping Co., 112 Conn. 129, 145, 151 A. 518(1930). “Deciding whether a matter has in anymeasure been committed by the Constitution to an-other branch of government, or whether the actionof that branch exceeds whatever authority has beencommitted, is itself a delicate exercise in constitu-tional interpretation, and is a responsibility of thisCourt as ultimate interpreter*14 of the Constitu-tion.” Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct.691, 706, 7 L.Ed.2d 663 (1962); see Massameno v.Statewide Grievance Committee, 234 Conn. 539,552, 663 A.2d 317 (1995); Nielsen v. Kezer, supra,at 74-75, 652 A.2d 1013; see also L. Henkin, “Is





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There a ‘Political Question’ Doctrine?,”85 YaleL.J. 597, 599-600 (1976); M. Redish, “Judicial Re-view and the ‘Political Question,’ ”79 Nw.U.L.Rev. 1031, 1051-60 (1984-1985).

[4] In the context of judicial enforcement of theright to a substantially equal educational opportun-ity arising under article eighth, § 1, and article first,§§ 1 and 20, justiciability is not a matter of first im-pression for this court. In Horton I, supra, 172Conn. 615, 376 A.2d 359, and Horton v. Meskill,195 Conn. 24, 486 A.2d 1099 (1985)(Horton III),FN15 we reviewed, in plenary fashion,FN16 theactions taken by the legislature to fulfill its consti-tutional obligation to public elementary and sec-ondary schoolchildren. Judicial authority to renderthese decisions was expressly**1276 reaffirmed inNielsen v. State, supra, 236 Conn. at 9-10, 670 A.2d1288, and in Pellegrino v. O'Neill, supra, 193 Conn.at 683, 480 A.2d 476.

FN15. In Horton v. Meskill, 187 Conn.187, 445 A.2d 579 (1982)(Horton II ), weaddressed the ability of municipalities tointervene in the litigation arising out of ourdecision in Horton I.

FN16. The defendants in Horton I origin-ally asserted defenses based on justiciabil-ity, sovereign immunity and standing. Thetrial court ruled against the defendants onthe issues of justiciability and standing, butdid not address the issue of sovereign im-munity. Horton v. Meskill, 31 Conn.Sup.377, 389, 332 A.2d 113 (1974). In their ap-peal to this court, the defendants in HortonI did not challenge the trial court's ruling.

The defendants in this case have notchallenged the standing of the plaintiffsto bring this action.

The defendants do not challenge the continuedvalidity of Horton I and Horton III, but argue thattheir claim of nonjusticiability differs. That argu-ment is unavailing. The plaintiff schoolchildren in

the present case invoke the same constitutional pro-visions to challenge the constitutionality of state ac-tion that the plaintiff schoolchildren *15 invoked inHorton I and Horton III. The text of article eighth,§ 1, has not changed. Furthermore, althoughprudential cautions may shed light on the properdefinition of constitutional rights and remedies; seeFonfara v. Reapportionment Commission, 222Conn. 166, 184-85, 610 A.2d 153 (1992); such cau-tions do not deprive a court of jurisdiction.

[5] In light of these precedents, we are persuadedthat the phrase “appropriate legislation” in articleeighth, § 1, does not deprive the courts of the au-thority to determine what is “appropriate.” FN17

Just as the legislature has a constitutional duty tofulfill its affirmative obligation to the children whoattend the state's public elementary and secondaryschools, so the judiciary has a constitutional duty toreview whether the legislature has fulfilled its ob-ligation.FN18 Considerations of justiciability mustbe balanced against the principle that every pre-sumption is to be indulged in favor of subject mat-ter jurisdiction. See, e.g., *16Federal Deposit Ins.Corp. v. Hillcrest Associates, 233 Conn. 153, 163,659 A.2d 138 1995); Simms v. Warden, 230 Conn.608, 614, 646 A.2d 126 (1994); State v. Metz, 230Conn. 400, 410, 645 A.2d 965 (1994); Tolly v.Dept. of Human Resources, 225 Conn. 13, 29, 621A.2d 719 (1993); see also United States Dept. ofCommerce v. Montana, 503 U.S. 442, 459, 112S.Ct. 1415, 1426, 118 L.Ed.2d 87 (1992). In thiscase, our precedents compel the conclusion that thebalance must be struck in favor of the justiciabilityof the plaintiffs' complaint.

FN17. Simmons v. Budds, 165 Conn. 507,338 A.2d 479 (1973), cert. denied, 416U.S. 940, 94 S.Ct. 1943, 40 L.Ed.2d 291(1974), on which the defendants rely, isnot to the contrary. Although, in that case,we rejected a claim that the defendants,various University of Connecticut officials,had violated the constitutional mandate ofarticle eighth, § 2, that the university “shall




















































be dedicated to excellence in higher educa-tion,” we did so on the merits. We did nothold that the claim was nonjusticiable.

FN18. Courts in other jurisdictions over-whelmingly have reached the same conclu-sion. See, e.g., Rose v. Council for BetterEducation, Inc., 790 S.W.2d 186, 209(Ky.1989); McDuffy v. Secretary of Exec-utive Office of Education, 415 Mass. 545,610-11, 615 N.E.2d 516 (1993); Robinsonv. Cahill, 69 N.J. 133, 145-47, 351 A.2d713,cert. denied sub nom. Klein v. Robin-son, 423 U.S. 913, 96 S.Ct. 217, 46L.Ed.2d 141 (1975); Board of Educationv. Nyquist, 57 N.Y.2d 27, 39, 439 N.E.2d359, 453 N.Y.S.2d 643 (1982), appeal dis-missed, 459 U.S. 1139, 103 S.Ct. 775, 74L.Ed.2d 986 (1983); Board of Educationv. Walter, 58 Ohio St.2d 368, 383-86, 390N.E.2d 813 (1979), cert. denied, 444 U.S.1015, 100 S.Ct. 665, 62 L.Ed.2d 644(1980); Washakie County School DistrictNo. 1 v. Herschler, 606 P.2d 310, 317-18(Wyo.), cert. denied sub nom. Hot SpringsCounty School District No. 1 v. WashakieCounty School District No. 1, 449 U.S.824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980).

B

[6] The defendants maintain that even if theplaintiffs' claims are justiciable, the plaintiffs arenot entitled to judicial relief because the education-al disparities of which they complain do not resultfrom the requisite state action. The plaintiffs claimthat the state bears responsibility to correct the con-stitutional violations alleged in their complaint be-cause of the state's failure to “take corrective meas-ures to [e]nsure that its Hartford public schoolchil-dren receive an equal educational opportunity.”FN19 That failure is actionable, according to theplaintiffs, because of the state's knowledge of theracial and ethnic isolation in the Hartford schools,combined with the state's extensive involvement inthe operations of Connecticut's public schools and

the impact of state statutes mandating school at-tendance within statutorily defined school districts.

**1277General Statutes §§ 10-184 and10-240.FN20 The defendants maintain, to the con-trary, that the state's constitutional duty to providefor the elementary and secondary education of Con-necticut schoolchildren is triggered only by stateaction that is alleged to be intentional state miscon-duct. The trial court relied on the absence of suchintentional state *17 action in denying relief to theplaintiffs. We disagree with the trial court's de-cision.

FN19. The plaintiffs also claim that the tri-al court improperly failed to find that thestate actively contributed to the allegedlyunconstitutional conditions that exist in theHartford public school system. We find nomerit to this claim.

FN20. See footnotes 9 and 10.

The defendants' argument, derived largely fromprinciples of federal constitutional law, founders onthe fact that article eighth, § 1, and article first, §§ 1and 20, impose on the legislature an affirmativeconstitutional obligation to provide schoolchildrenthroughout the state with a substantially equal edu-cational opportunity. Horton I, supra, 172 Conn. at648-49, 376 A.2d 359. It follows that, if the legis-lature fails, for whatever reason, to take action toremedy substantial inequalities in the educationalopportunities that such children are being afforded,its actions and its omissions constitute state action.

The affirmative constitutional obligation that we re-cognized in Horton I and Horton III, and reaffirmedrecently in Moore v. Ganim, 233 Conn. 557,595-96, 660 A.2d 742 (1995), was not premised ona showing that the legislature had played an activerole in creating the inequalities that the constitutionrequires it to redress. In Horton I, we determinedthat the state's educational financing scheme wasunconstitutional even though it was facially nondis-criminatory and even though the disparities result-ing therefrom had not been created intentionally by

















































the legislature. These constitutionally unacceptabledisparities developed, instead, “from the circum-stance that over the years there [had] arisen a greatdisparity in the ability of local communities to fin-ance local education,” and from the legislature'sfailure to consider “the financial capability of[each] municipality....” Horton I, supra, 172 Conn.at 648, 376 A.2d 359. In declaring this statutoryscheme unconstitutional in Horton I, and in requir-ing further remedial action in Horton III, supra, 195Conn. at 38, 43-44, 486 A.2d 1099, we necessarilydetermined that the state's failure adequately to ad-dress school funding inequalities constituted thestate action that is the constitutional prerequisite foraffording judicial relief.

*18 The claims now before us likewise implicatethe legislature's affirmative constitutional obliga-tion to provide a substantially equal educational op-portunity to all of the state's schoolchildren. Theplaintiffs document the existence of an extensivestatutory system developed in response to the legis-lature's plenary authority over state public element-ary and secondary schools.FN21 As a general mat-ter, the plaintiffs challenge the failure of the legis-lature to address continuing unconstitutional in-equities resulting, de facto, from that scheme. Inaddition, and more specifically, they point to twostatutes that directly impact on their claims of con-stitutional deprivation. State law sets the borders ofschool districts to coincide with town boundaries;General Statutes § 10-240; FN22 and requires allchildren to attend public school within the **1278district in which they reside. General Statutes §10-184.FN23 The trial court expressly found thatthe enforcement of these statutes constitutes the“single most important factor” creating the presentracial and *19 ethnic imbalance in the Hartfordpublic school system.FN24 The failure adequatelyto address the racial and ethnic disparities that existamong the state's public school districts is not dif-ferent in kind from the legislature's failure ad-equately to address the “great disparity in the abil-ity of local communities to finance local education”that made the statutory scheme at issue in Horton I,

supra, 172 Conn. at 648, 376 A.2d 359, unconstitu-tional in its application.FN25

FN21. In fulfillment of its constitutionalmandate to provide for the education of thestate's youth, the legislature has developeda detailed and comprehensive educationalsystem. For example, the state identifiesthe educational interests that must be im-plemented by the local school boards; Gen-eral Statutes §§ 10-4a and 10-4b; sets theminimum length of the school year; Gener-al Statutes § 10-15; sets the minimumlength of the school day; General Statutes§ 10-16; generally prescribes particularcourses of study; General Statutes §§10-16b, 10-18 and 10-19; requires bilin-gual education under some circumstances;General Statutes § 10-17a; regulates spe-cial education programs; General Statutes§§ 10-76b and 10-76d; regulates teachercertification; General Statutes § 10-145b;requires attendance in the school district inwhich a student resides; General Statutes §10-184; prescribes requirements for highschool graduation; General Statutes §10-221a; and regulates the suspension andexpulsion of students. General Statutes §§10-233c and 10-233d. Although the legis-lature has delegated the day-to-day func-tioning of the state's public elementary andsecondary schools to towns; General Stat-utes §§ 10-220 (defining duties of boardsof education), 10-240 (providing town con-trol of public schools within town boundar-ies) and 10-241 (defining powers of schooldistricts); the legislature retains and exer-cises broad statutory authority in dischar-ging its responsibility to meet the demandsof the Connecticut constitution.



FN24. The significance of this finding is
















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not diminished by the trial court's findingthat “social and demographic forces gener-ated by the collective exercise of personalgeographic preferences over which thestate had no control” had contributed to theimbalance. Multiple factors may have sig-nificant impacts on the creation or perpetu-ation of a condition.

FN25. Courts in other jurisdictions havereached the same conclusion without dir-ectly addressing the state action question.Faced with state constitutional provisionsthat set forth an affirmative obligation toprovide public education, these courts havedetermined that legislative inaction withrespect to the constitutional obligation maygive rise to liability. “The General As-sembly must not only establish the system[of common schools], but it must monitorit on a continuing basis so that it will al-ways be maintained in a constitutionalmanner.” Rose v. Council for Better Edu-cation, Inc., 790 S.W.2d 186, 211(Ky.1989); see, e.g., McDuffy v. Secretaryof Executive Office of Education, 415Mass. 545, 606, 615 N.E.2d 516 (1993)(“[T]he Commonwealth has a duty toprovide an education for all its children,rich and poor, in every city and town....While it is clearly within the power of theCommonwealth to delegate some of theimplementation of the duty to local gov-ernments, such power does not include aright to abdicate the obligation imposed ...by the Constitution. [Emphasis in origin-al.]”); Seattle School District No. 1 v.State, 90 Wash.2d 476, 523, 585 P.2d 71(1978) (“[T]he fact that the Legislaturepossesses an ultimate obligation to act isnot to say that it may act or not act as itchooses. The duty to act as well as the dutyto do so within the parameters of [the con-stitution] is constitutionally required.”).

The defendants maintain, however, that the logic ofthis inference is undermined by certain other pre-cedents of this court. The defendants rely particu-larly on Savage v. Aronson, 214 Conn. 256, 571A.2d 696 (1990), in which we concluded that thestate's failure to provide emergency housing to re-cipients of federal welfare benefits did not consti-tute state action. Although we recognized that theabsence of emergency housing might *20 have adeleterious impact on the opportunity of children toattend school, we held that this secondary effectwas not a sufficient basis for imposing constitution-al liability upon the state. See id., at 286-87, 571A.2d 696. Savage, however, sheds no light on thestate action requirement in this case because, as weexplained in Savage; see id., at 284-86, 571 A.2d696; the state has no affirmative constitutional ob-ligation to provide emergency housing, while itdoes have an affirmative constitutional obligationwith respect to public elementary and secondaryeducation.

The defendants also invoke two cases in which thiscourt declined to find state action because the per-tinent actors were private parties rather than thestate itself. In Lockwood v. Killian, 172 Conn. 496,504-505, 375 A.2d 998 (1977), we concluded thatprivate discrimination by the testator of a scholar-ship fund who had restricted its beneficiaries on thebasis of religion did not constitute state action. InCologne v. Westfarms Associates, 192 Conn. 48,64-66, 469 A.2d 1201 (1984), we concluded thatthe governmental regulation and public use of aprivate shopping mall did not transform the mallowners' refusal to allow political speech within themall into state action. Although this aspect of thestate action doctrine arguably is related to the ques-tion before us; see Lebron v. National R.R. Passen-ger Corp., 513 U.S. 374, ---- - ----, 115 S.Ct. 961,964-65, 130 L.Ed.2d 902 (1995); it cannot be con-trolling in a case in which action or inaction by thestate is directly implicated.

In addition to these state cases, the defendants urgeus to follow federal precedents that concededly re-
































quire, as a matter of federal constitutional law, thatclaimants seeking judicial relief for educational dis-parities pursuant to the equal protection clause ofthe fourteenth amendment to the United States con-stitution must prove intentionalgovernmental**1279 discrimination against a sus-pect class. See, e.g., Freeman v. Pitts, 503 U.S.467, 494, 112 S.Ct. 1430, 1447, 118 L.Ed.2d 108(1992) (“[o]nce *21 the racial imbalance due to thede jure violation has been remedied, the school dis-trict is under no duty to remedy imbalance that iscaused by demographic factors”); Pasadena CityBoard of Education v. Spangler, 427 U.S. 424, 434,96 S.Ct. 2697, 2703-04, 49 L.Ed.2d 599 (1976)(United States constitution is not violated in ab-sence of segregative efforts by state); Milliken v.Bradley, 418 U.S. 717, 746-47, 747 n. 22, 94 S.Ct.3112, 3128 n. 22, 41 L.Ed.2d 1069 (1974) (“[t]hesuggestion ... that schools which have a majority of[African-American] students are not‘desegregated’ ... however neutrally the districtlines have been drawn and administered, finds nosupport in our prior cases”); cf. Arlington Heightsv. Metropolitan Housing Development Corp., 429U.S. 252, 264-65, 97 S.Ct. 555, 562-63, 50 L.Ed.2d450 (1977); Washington v. Davis, 426 U.S. 229,242, 96 S.Ct. 2040, 2048-49, 48 L.Ed.2d 597(1976). According to the defendants, because theplaintiffs raise claims of unconstitutional disparitiesin educational opportunities on the basis of severeracial and ethnic imbalances among school districts,the plaintiffs, too, must prove intentional state ac-tion.FN26

FN26. The federal precedents are unclearas to whether they require a showing ofdiscriminatory intent to prove state action,or whether state action and discriminatoryintent are independent requirements forproving a violation of the federal equalprotection clause.

For two reasons, we are not persuaded that weshould adopt these precedents as a matter of stateconstitutional law. First and foremost, the federal

cases start from the premise that there is no right toeducation under the United States constitution. SanAntonio Independent School District v. Rodriguez,411 U.S. 1, 35, 93 S.Ct. 1278, 1297-98, 36 L.Ed.2d16 (1973). Our Connecticut constitution, by con-trast, contains a fundamental right to education anda corresponding affirmative state obligation to im-plement and maintain that right. See Moore v. Gan-im, supra, 233 Conn. at 595-96, 660 A.2d 742;*22Broadley v. Board of Education, 229 Conn. 1,

6, 639 A.2d 502 (1994); Horton I, supra, 172Conn. at 645, 376 A.2d 359. Second, the federalcases are guided by principles of federalism as “aforemost consideration in interpreting any of thepertinent constitutional provisions under which [acourt] examines state action.” (Internal quotationmarks omitted.) San Antonio Independent SchoolDistrict v. Rodriguez, supra, at 44, 93 S.Ct. at1302; see generally L. Tribe, American Constitu-tional Law (2d Ed.1988) § 18-2, p. 1691. As theUnited States Supreme Court noted, “it would bedifficult to imagine a case having a greater potentialimpact on our federal system than the one now be-fore us, in which we are urged to abrogate systemsof financing public education presently in existencein virtually every State.” San Antonio IndependentSchool District v. Rodriguez, supra, at 44, 93 S.Ct.at 1302. Principles of federalism, however, do notrestrict our constitutional authority to enforce theconstitutional mandates contained in article eighth,§ 1, and article first, §§ 1 and 20.

Federal constitutional law, furthermore, has not in-variably required intentional state action as a re-quisite foundation for constitutional remedies. Incases involving the fundamental right to vote, theUnited States Supreme Court has held state actionto be implicated by the legislature's failure to takethe proper steps to implement its affirmative consti-tutional duty. See Reynolds v. Sims, 377 U.S. 533,561-63, 568, 84 S.Ct. 1362, 1381-82, 12 L.Ed.2d506 (1964); see also Board of Estimate v. Morris,489 U.S. 688, 692-93, 109 S.Ct. 1433, 1437-38,103 L.Ed.2d 717 (1989); Tashjian v. RepublicanParty of Connecticut, 479 U.S. 208, 227, 107 S.Ct.























































544, 555-56, 93 L.Ed.2d 514 (1986); Abate v.Mundt, 403 U.S. 182, 185-86, 91 S.Ct. 1904,1906-07, 29 L.Ed.2d 399 (1971); Moore v. Ogilvie,394 U.S. 814, 818, 89 S.Ct. 1493, 1495-96, 23L.Ed.2d 1 (1969); United States v. Classic, 313U.S. 299, 318-19, 61 S.Ct. 1031, 1039, 85 L.Ed.1368 (1941).FN27 We can **1280 perceive no *23principled distinction between judicial interventionto require legislative action to protect the funda-mental right to vote and judicial intervention to re-quire legislative action to protect the fundamentalright to a substantially equal educational opportun-ity.

FN27. The United States Supreme Courthas never retreated from its holding inReynolds. See Shaw v. Reno, 509 U.S.630, 639-40, 113 S.Ct. 2816, 2822-23, 125L.Ed.2d 511 (1993) (citing Reynolds af-firmatively); Burson v. Freeman, 504 U.S.191, 199, 112 S.Ct. 1846, 1851-52, 119L.Ed.2d 5 (1992) (same); Board of Estim-ate v. Morris, supra, 489 U.S. at 692-94,109 S.Ct. at 1437-39 (extending principleset forth in Reynolds to elections of mem-bers of board of estimate). The court re-cently has addressed two other evils thatviolate the fourteenth amendment to theUnited States constitution and threaten theright to vote: the dilution of the voting po-tential of minorities; see Mobile v. Bolden,446 U.S. 55, 66, 100 S.Ct. 1490, 1499, 64L.Ed.2d 47 (1980); and the separation ofvoters into districts by race. See Miller v.Johnson, 515 U.S. 900, ----, 115 S.Ct.2475, 2483, 132 L.Ed.2d 762 (1995);Shaw v. Reno, supra at 641-42, 113 S.Ct.

at 2823-24. In these cases, the court has re-quired a showing of some form of intent inorder to establish a constitutional claim.See Shaw v. Reno, supra at 644-45, 649,113 S.Ct. at 2825-26, 2827-28 (requiringproof that classification was motivated byracial purpose, although showing can beinferential if district lines are

“unexplainable on grounds other thanrace”); Mobile v. Bolden, supra at 67-68,100 S.Ct. at 1499-1500 (requiring intent todiscriminate).

In summary, under our law, which imposes an af-firmative constitutional obligation on the legislatureto provide a substantially equal educational oppor-tunity for all public schoolchildren, the state actiondoctrine is not a defense to the plaintiffs' claims ofconstitutional deprivation. The state had ample no-tice of ongoing trends toward racial and ethnic isol-ation in its public schools, and indeed undertook anumber of laudable remedial efforts FN28 that un-fortunately have not achieved their desired end. Thefact that the legislature did not affirmatively createor intend to create the conditions that have led tothe racial and ethnic isolation in the Hartford publicschool system does not, in and of itself, *24 relievethe defendants of their affirmative obligation toprovide the plaintiffs with a more effective remedyfor their constitutional grievances.

FN28. See General Statutes § 10-226a etseq. (requiring public schools within dis-tricts to be racially balanced); GeneralStatutes § 10-264a et seq. (promoting edu-cational diversity through voluntary devel-opment and implementation of interdistricteducational programs). In addition, thestate has provided financial support andtechnical assistance to voluntary interd-istrict transfer programs, has providedtechnical assistance to intradistrict magnetschools and has authorized special bondfunding for the construction and renova-tion of interdistrict magnet schools.

III

THE PLAINTIFFS' CONSTITUTIONAL CLAIMS

We turn now to the merits of the plaintiffs' claims.No statute, no common law precedent, no federalconstitutional principle provides this state's school-
















































children with a right to a public education that isnot burdened by de facto racial and ethnic segrega-tion. The plaintiffs make no such claim. The issuethat they raise is whether they have stated a case forrelief under our state constitution, which wasamended in 1965 to provide both a right to a freepublic elementary and secondary education; Conn.Const., art. VIII, § 1; and a right to protection fromsegregation. Conn. Const., art. I, § 20. This issueraises questions that are difficult; the answers thatwe give are controversial. We are, however, per-suaded that a fair reading of the text and the historyof these amendments demonstrates a deep and abid-ing constitutional commitment to a public schoolsystem that, in fact and in law, provides Connectic-ut schoolchildren with a substantially equal educa-tional opportunity. A significant component of thatsubstantially equal educational opportunity is ac-cess to a public school education that is not sub-stantially impaired by racial and ethnic isolation.

Our analysis of this issue has three parts. First,what are the constituent elements of the affirmativeconstitutional mandate to provide all public school-children with a substantially equal educational op-portunity in the context of alleged racial, ethnic andsocioeconomic disparities? Second, does theplaintiffs' complaint encompass these elements?Third, have the plaintiffs proven their claim?

*25 A

[7][8] Since Horton I, it is common ground that thestate has an affirmative constitutional obligation toprovide all public schoolchildren with a substan-tially equal educational**1281 opportunity. Hor-ton I, supra, 172 Conn. at 648-49, 376 A.2d 359;see also Benjamin v. Bailey, 234 Conn. 455,461-62, 662 A.2d 1226 (1995); New Haven v. StateBoard of Education, 228 Conn. 699, 707-708, 638A.2d 589 (1994); Horton III, supra, 195 Conn. at34-35, 486 A.2d 1099. Any infringement of thatright must be strictly scrutinized. Horton I, supra,at 646, 376 A.2d 359.

[9] The issue presented by this case is whether thestate has fully satisfied its affirmative constitutionalobligation to provide a substantially equal educa-tional opportunity if the state demonstrates that ithas substantially equalized school funding and re-sources. The defendants urge us to adopt such alimited construction of our constitution. Theplaintiffs, to the contrary, urge us to adopt a broad-er formulation. They argue that the combination of“racial segregation, the concentration of poor chil-dren in the schools, and disparities in educationalresources ... deprive [Hartford schoolchildren] ofsubstantially equal educational opportunities.” Weagree with the plaintiffs in part. We need not de-cide, in this case, the extent to which substantial so-cioeconomic disparities or disparities in educationalresources would themselves be sufficient to requirethe state to intervene in order to equalize education-al opportunities. For the purposes of the present lit-igation, we decide only that the scope of the consti-tutional obligation expressly imposed on the stateby article eighth, § 1, is informed by the constitu-tional prohibition against segregation contained inarticle first, § 20. Reading these constitutional pro-visions conjointly, we conclude that the existenceof extreme racial and ethnic isolation in the publicschool system deprives schoolchildren of a substan-tially equal educational*26 opportunity and re-quires the state to take further remedial measures.

Two factors persuade us that it is appropriate to un-dertake a conjoint reading of these provisions ofour state constitution. One is the special nature ofthe affirmative constitutional right embodied in art-icle eighth, § 1. The other is the explicit prohibitionof segregation contained in article first, § 20.

The affirmative constitutional obligation of thestate to provide a substantially equal educationalopportunity, which is embodied in article eighth, §1, differs in kind from most constitutional obliga-tions. Organic documents only rarely contain provi-sions that explicitly require the state to act ratherthan to refrain from acting. See Moore v. Ganim,supra, 233 Conn. 557, 660 A.2d 742. As we ob-































served, however, in Horton I, supra, 172 Conn. at645, 376 A.2d 359,“educational equalization casesare ‘in significant aspects sui generis' and not sub-ject to analysis by accepted conventional tests orthe application of mechanical standards. The wealthdiscrimination found among school districts differsmaterially from the usual equal protection casewhere a fairly defined indigent class suffers dis-crimination to its peculiar disadvantage. The dis-crimination is relative rather than absolute.” Seealso Horton III, supra, 195 Conn. at 35, 486 A.2d1099. Nothing in the description of the relevant leg-al landscape in any of our cases suggests that theconstitutional right that we articulated in Horton Iwas limited to school financing.

For Connecticut schoolchildren, the scope of thestate's constitutional obligation to provide a sub-stantially equal educational opportunity is informedand amplified by the highly unusual FN29 provi-sion in article *27 first, § 20, **1282 that prohibitssegregation not only indirectly, by forbidding dis-crimination, but directly, by the use of the term“segregation.” The section provides in relevantpart: “No person shall be denied the equal protec-tion of the law nor be subjected to segregation ordiscrimination ... because of ... race [or] ... ances-try....” (Emphasis added.)

FN29. The only other constitutions that ex-plicitly prohibit segregation are those ofHawaii and New Jersey.

The constitution of Hawaii, article first,§ 9, provides: “No citizen shall bedenied enlistment in any military organ-ization of this State nor be segregatedtherein because of race, religious prin-ciples or ancestry.” No court has under-taken to interpret this provision.

The constitution of New Jersey, articlefirst, paragraph 5, provides: “No personshall be denied the enjoyment of anycivil or military right, nor be discrimin-ated against in the exercise of any civil

or military right, nor be segregated in themilitia or in the public schools, becauseof religious principles, race, color, an-cestry or national origin.” No court hasconfronted the issue of whether this pro-vision requires the state to prevent defacto segregation within its public schoolsystem. The Supreme Court of New Jer-sey has held that the state commissionerof education and local boards of educa-tion have broad statutory authority, espe-cially in light of the constitutional provi-sion against segregation in schools, toprevent the implementation of local de-cisions that would increase racial imbal-ance. See, e.g., Jenkins v. Township ofMorris School District, 58 N.J. 483,506-508, 279 A.2d 619 (1971) (holdingthat commissioner may prevent with-drawal of town's children from particularhigh school and enrollment in differenthigh school if that change would resultin increase in racial imbalance in thoseschools); Booker v. Board of Education,45 N.J. 161, 178, 212 A.2d 1 (1965)(holding that commissioner, in reviewinglocal desegregation plan, must determineif plan takes sufficient and proper stepstoward desegregation); Morean v.Board of Education, 42 N.J. 237,242-44, 200 A.2d 97 (1964) (supportingdecision of town board of education toallocate children among differentschools in manner designed to preventexacerbation of racial imbalance afterboard decided to close one junior highschool).

[10][11] The express inclusion of the term“segregation” in article first, § 20, has independentconstitutional significance. The addition of thisterm to the text of our equal protection clause dis-tinguishes this case from others in which we havefound a substantial equivalence between our equalprotection clause and that contained in the United






















States constitution.FN30 Broadley v. Board ofEducation, supra, 229 Conn. at 8 n. 15, 639 A.2d502; Franklin v. Berger, 211 Conn. 591, 594 n. 5,560 A.2d 444 (1989); *28Keogh v. Bridgeport,187 Conn. 53, 66, 444 A.2d 225 (1982). Funda-mental principles of constitutional interpretation re-quire that “[e]ffect must be given to every part ofand each word in our constitution....” Cahill v.Leopold, 141 Conn. 1, 21, 103 A.2d 818 (1954);State v. Gethers, 197 Conn. 369, 386, 497 A.2d

408 (1985); Stolberg v. Caldwell, 175 Conn. 586,597-98, 402 A.2d 763 (1978), appeal dismissed subnom. Stolberg v. Davidson, 454 U.S. 958, 102 S.Ct.496, 70 L.Ed.2d 374 (1981). In other cases, wehave held that, insofar as article first, § 20, differstextually from its federal counterpart, its judicialconstruction must reflect such a textual distinction.See AFSCME, Council 4, Local 681, AFL-CIO v.West Haven, 234 Conn. 217, 221 n. 6, 661 A.2d587 (1995) (per curiam); Daly v. DelPonte, 225Conn. 499, 513, 624 A.2d 876 (1993).

FN30. The fourteenth amendment to theUnited States constitution provides in rel-evant part: “No State shall ... deny to anyperson within its jurisdiction the equal pro-tection of the laws.”

[12] The issue before us, therefore, is what specificmeaning to attach to the protection against segrega-tion contained in article first, § 20, in a case inwhich that protection is invoked as part of theplaintiff school-children's fundamental affirmativeright to a substantially equal educational opportun-ity under article eighth, § 1. In concrete terms, thisissue devolves into the question of whether the statehas a constitutional duty to remedy the educationalimpairment that results from segregation in theHartford public schools, even though the conditionsof segregation that contribute to such impairmentneither were caused nor are perpetuated by invidi-ous intentional conduct on the part of the state.

Linguistically, the term “segregation” in articlefirst, § 20, which denotes “separation,” FN31 isneutral about segregative*29 intent. The section

prohibits segregation that occurs “because of reli-gion, race, color, ancestry, national origin, sex orphysical or mental disability”; (emphasis added);without specifying the manner in which such acausal relationship must be established.

FN31. “Segregation” refers to the “act orprocess of separation”; Black's Law Dic-tionary (6th Ed.1990); or to “the separationor isolation of a race, class, or ethnic groupby ... divided educational facilities, or byother discriminatory means....” Webster'sThird New International Dictionary(1961); see Merriam-Webster's CollegiateDictionary (10th Ed.1993).

Whatever this language may portend in other con-texts, we are persuaded that, in the context of pub-lic education, in which the state has an affirmativeobligation to monitor and to equalize educationalopportunity, the state's awareness of existing andincreasing severe racial and ethnic isolation im-poses upon the state the responsibility to remedy“segregation ... because of race [or] ...**1283 an-cestry....” FN32 We therefore hold *30 that, textu-ally, article eighth, § 1, as informed by article first,§ 20, requires the legislature to take affirmative re-sponsibility to remedy segregation in our publicschools, regardless of whether that segregation hasoccurred de jure or de facto.

FN32. Neither Broadley v. Board of Edu-cation, supra, 229 Conn. 1, 639 A.2d 502,nor Savage v. Aronson, supra, 214 Conn.256, 571 A.2d 696, is inconsistent with ourconstitutional analysis in this case. Neithercase dealt with the particular combinationof constitutional provisions on which thepresent plaintiffs rely.

In Broadley, we concluded that thestate's special education statutes; Gener-al Statutes § 10-76a et seq.; had not es-tablished a constitutional right to an in-dividualized educational program forgifted children. We held that “when






































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neither the legislature nor the framers ofour constitution have vested in giftedchildren any right to an individualizededucation program, we cannot concludethat the plaintiff's right to a free publiceducation under article eighth, § 1, of theConnecticut constitution includes a rightto a special education program.”Broadley v. Board of Education, supra,

229 Conn. at 8, 639 A.2d 502. Giftedchildren are not expressly recognized asa cognizable constitutional class withinarticle first, § 20.

In Savage v. Aronson, supra, 214 Conn.at 287, 571 A.2d 696, we concluded thatthe constitutional right to a substantiallyequal educational opportunity does notinclude “any [guarantee] that childrenare entitled to receive their education atany particular school or that the statemust provide [emergency] housing ac-commodations for them and their famil-ies close to the schools they arepresently attending.” In the absence of aclaim of racial or ethnic isolation, thehousing disparities that underlay thisclaim are not expressly encompassed byarticle first, § 20.

The only decision of our sister states towhich the parties draw our attentionneither supports nor weakens our analys-is. In Detroit Branch, N.A.A.C.P. v.Dearborn, 173 Mich.App. 602, 615-16,434 N.W.2d 444 (1988), appeal denied,433 Mich. 906, 447 N.W.2d 751 (1989),the Michigan Court of Appeals determ-ined that the plaintiffs need not show adiscriminatory intent or purpose in orderto prove a violation of the prohibitionagainst racial discrimination embodiedin that state's constitution. In Dearborn,the Michigan court interpreted an equalprotection provision that, without con-

taining an express antisegregationclause, imposed an affirmative obliga-tion on the state to prevent discrimina-tion.

The history of the promulgation of article eighth, §1, and article first, § 20, supports our conclusionthat these constitutional provisions include protec-tion from de facto segregation, at least in publicschools. That history includes not only the contem-poraneous addition, in 1965, of these two provi-sions to our constitution, but also the strong com-mitment to ending discrimination and segregationthat is evident in the remarks of the delegates to the1965 constitutional convention.

First, it is undisputed that the duty to provide a pub-lic education contained in article eighth, § 1, andthe prohibition against segregation contained in art-icle first, § 20, were proposed to and adopted by thevoters of this state in response to the constitutionalconvention of 1965. When the convention delegatesdebated the desirability of both amendments to ourstate constitution, they recognized and endorsed thelandmark decision in Brown v. Board of Education,347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873(1954), declaring the unconstitutionality of“separate but equal” public school education. See 2Proceedings of the Connecticut Constitutional Con-vention of 1965, p. 691, remarks of Chase G.Woodhouse.FN33 The primary motivation for theaddition of article eighth, § 1, to the constitution in1965 appears to have been the realization that Con-necticut *31 was the only state in the nation that didnot provide any express right to public elementaryand secondary education in its constitution. See 3Proceedings, supra, pp. 1039-40, remarks of SimonJ. Bernstein.FN34 **1284 The delegates' expecta-tion that the proposed amendments to the constitu-tion would secure interrelated constitutional rightswas underscored by Bernstein's remark that articlefirst, § 20, was intended to be applied in the contextof the “rights of freedom in education.” 2 Proceed-ings, supra, p. 694.

FN33. Woodhouse stated: “[W]e have to























realize that today the philosophy of segreg-ation is something that is in the minds ofall of us. It would be regrettable if itshould be in any way suggested that thisConstitution did not unequivocally opposethe philosophy and the practice of segrega-tion.” 2 Proceedings, supra, p. 691.

FN34. In support of the amendment, Bern-stein stated: “In July I submitted a resolu-tion No. 109 which pertained to the subjectof education, actually it was the only resol-ution I did introduce and the statement ofpurpose of that resolution of mine was thatour system of free public education have atradition acceptance on a par with our billof rights and it should have the same Con-stitutional sanctity. It was because ourConstitution had no reference to our schoolsystem that I submitted my resolution andof course others were aware of the sameomission in our Constitution and othersimilar resolutions were submitted. I be-came aware of this in the decade of thefifties when I served on a board of educa-tion.... [W]e have [had] good publicschools so that this again is not anythingrevolutionary, it is something which wehave, it is which is [in] practically all Con-stitutions in the States of our nation andConnecticut with its great tradition cer-tainly ought to honor this principle.” 3Proceedings, supra, p. 1039.

Second, it is significant that the debate over theamendment of article first, § 20, manifested the in-tention of the convention delegates to extend broadprotection to all persons from all forms of racialand ethnic discrimination and segregation. The de-bate over the express inclusion of the term“segregation” focused not on whether includingsuch a term might reach too far, but rather onwhether it might invite too narrow a construction ofthe prohibition against discrimination. It was forthis reason that the rules committee felt that lan-

guage regarding segregation was unnecessary. 2Proceedings, supra, p. 692, remarks of Chief JusticeRaymond E. Baldwin. The convention delegates'decision nonetheless to retain the term“segregation” FN35 was *32 premised on the ac-knowledged importance of unequivocal oppositionto all that is encompassed by this invidious philo-sophy and practice. See 2 Proceedings, supra, pp.690-92, remarks of Chase G. Woodhouse andJames J. Kennelly.FN36 In effect, the conventiondelegates inserted into article first, § 20, constitu-tional language that was intended to prohibit notonly discrimination, but also segregation on thebasis of race or ethnicity.FN37

FN35. The provision when introduced onthe convention floor stated: “No personshall be denied the equal protection of thelaw, nor the enjoyment of his civil or polit-ical rights, nor be discriminated against inthe exercise thereof because of religion,race, color, ancestry or national origin.”Rules Committee Substitute for Constitu-tional Convention Resolution No. 168, FileNo. 7.

The amendments proposed by Wood-house and others during the proceedingsof the constitutional convention changedthe provision to state, as it does today:“No person shall be denied the equalprotection of the law nor be subjected tosegregation or discrimination in the ex-ercise of and the enjoyment of his civilor political rights....” 2 Proceedings,supra, p. 690.

FN36. Woodhouse stated: “It would seemthat this language as offered in the amend-ment is sufficiently general so that it wouldnot be interpreted as an exclusion or limit[on] rights. I think we all realize that rightsof individuals in this country have de-veloped and have changed from time totime, and we certainly would not want tohave in our Constitution any language that





would in the future perhaps limit newrights. On the other hand we have to real-ize that today the philosophy of segrega-tion is something that is in the minds of allof us. It would be regrettable if it should bein any way suggested that this Constitutiondid not unequivocally oppose the philo-sophy and the practice of segregation.” 2Proceedings, supra, p. 691. These senti-ments were echoed by Kennelly, whostated: “It is further a broad statement ofprinciple that is all inclusive and wouldprovide a complete umbrella for the totalprotection against discrimination and ... se-gregation, which is sound symbolic lan-guage.” 2 Proceedings, supra, p. 692.

Mary B. Griswold remarked on the sameissue that “it was very important to havethe word segregation in our newamended bill of rights” and Meade H.Alcorn remarked that “the amendmentoffered this morning is a worthy additionto” the provision. 2 Proceedings, supra,pp. 693-94.

FN37. We note that at the time of the con-stitutional convention of 1965, it was juris-prudentially unclear whether the principlesenunciated in Brown v. Board of Educa-tion, supra, 347 U.S. 483, 74 S.Ct. 686,would be limited to de jure segregation inthe public schools. See Booker v. Board ofEducation, 45 N.J. 161, 168-70, 212 A.2d1 (1965); see also Jenkins v. Township ofMorris School District, 58 N.J. 483,497-98, 279 A.2d 619 (1971) (comparinglower federal court cases decided between1966 and 1971 with United States SupremeCourt cases decided in 1971).

Finally, the convention delegates' manifest intentthat article first, § 20, by prohibiting segregation,should provide*33 “total protection against dis-crimination”; 2 Proceedings, supra, p. 692, remarksof James J. Kennelly; supports our conclusion that

they intended to encompass de facto segregation inthe circumstances presented by the present case. Ifsignificant racial and ethnic isolation continues tooccur within the public schools, for which the legis-lature has an affirmative constitutional obligation toprovide a substantially equal educational opportun-ity, no special showing of an invidious segregativeintent is required.

**1285 It would be illogical not to prohibit all suchsegregation in light of the legislature's otherwisecomprehensive assumption of responsibility for theeducation of Connecticut schoolchildren. The legis-lature has created the current school districts, hasrequired students to attend school and has determ-ined which students will attend a particular schooldistrict. General Statutes §§ 10-184 and 10-240.The state cannot now avoid its responsibilities byinvoking constitutional restraints articulated for dif-ferent purposes under different constitutional provi-sions.

Sound principles of public policy support our con-clusion that the legislature's affirmative constitu-tional responsibility for the education of all publicschoolchildren encompasses responsibility for se-gregation to which the legislature has contributed,even unintentionally. The parties agree, as the trialcourt expressly found, that racial and ethnic segreg-ation is harmful, and that integration would likelyhave positive benefits for all children and for soci-ety as a whole. Further, as the trial court also ex-pressly found, the racial and ethnic isolation ofchildren in the Hartford schools is likely to worsenin the future.

[13] Racial and ethnic segregation has a pervasiveand invidious impact on schools, whether the se-gregation *34 results from intentional conduct orfrom unorchestrated demographic factors.“[S]chools are an important socializing institution,imparting those shared values through which socialorder and stability are maintained.” Plyler v. Doe,457 U.S. 202, 222 n. 20, 102 S.Ct. 2382, 2397 n.20, 72 L.Ed.2d 786 (1982). Schools bear central re-sponsibility for “inculcating [the] fundamental val-





















ues necessary to the maintenance of a democraticpolitical system....” Ambach v. Norwick, 441 U.S.68, 77, 99 S.Ct. 1589, 1595, 60 L.Ed.2d 49 (1979).When children attend racially and ethnically isol-ated schools, these “shared values” are jeopardized:“If children of different races and economic and so-cial groups have no opportunity to know each otherand to live together in school, they cannot be ex-pected to gain the understanding and mutual respectnecessary for the cohesion of our society.”(Internal quotation marks omitted.) Jenkins v.Township of Morris School District, 58 N.J. 483,498, 279 A.2d 619 (1971). “[T]he elimination ofracial isolation in the schools promotes the attain-ment of equal educational opportunity and is bene-ficial to all students, both black and white.” Lee v.Nyquist, 318 F.Supp. 710, 714 (W.D.N.Y.1970),aff'd without opinion, 402 U.S. 935, 91 S.Ct. 1618,29 L.Ed.2d 105 (1971). Our state constitution, asamended in 1965, imposes on the state an affirmat-ive obligation to respond to such segregation.

B

Having concluded that the provisions of articleeighth, § 1, as informed by article first, § 20, permita state constitutional challenge to substantial dis-parities in educational opportunities resulting fromracially and ethnically segregated public schools,we turn now to an examination of the plaintiffs'pleadings to determine whether they fairly can beread to encompass such a challenge. Because theremedies sought by the plaintiffs in their complaintare not differentially tied to the various*35 sub-stantive claims that they have alleged, the plaintiffscan succeed if any of their claims falls within theconstitutional right as we have defined it. We arepersuaded that the plaintiffs' pleadings cross thisthreshold.

[14] In the first count of their complaint, theplaintiffs relied on article first, §§ 1 and 20, and art-icle eighth, § 1, for what they have characterized asa per se claim that they have suffered from uncon-stitutional segregation.FN38 In the second count,

the plaintiffs alleged that disparities in the racialand ethnic composition of Hartford public schoolsas compared with schools in the surrounding schooldistricts violated their constitutional rights underthe same constitutional provisions.**1286 FN39]These two counts can reasonably be construed tostate a constitutional claim of school segregation aswe have defined it. Both counts allege a deprivationof the plaintiffs' right to a substantially equal edu-cational opportunity expressly predicated upon thesevere racial and ethnic isolation that exists in theHartford public school system. The constitutionalimplications raised by these allegations were fullyargued before the trial court, and were fully briefedby the parties before this court. Under *36 thesecircumstances, we conclude that the plaintiffs'pleadings, with respect to counts one and two, statea claim for the deprivation of a substantially equaleducational opportunity. We would be remiss in theexercise of our constitutional obligation to provide“remedy by due course of law ... without ... delay”;Conn. Const., art. I, § 10; if we were to deprive theplaintiffs of a remedy solely because, as a pleadingmatter, their claims were stated in two counts ratherthan combined in one.FN40

FN38. The first count of the plaintiffs'complaint claims: “Separate educationalsystems for minority and non-minority stu-dents are inherently unequal.

“Because of the de facto racial and eth-nic segregation between Hartford and thesuburban districts, the defendants havefailed to provide the plaintiffs with anequal opportunity to a free public educa-tion as required by [a]rticle [f]irst, §§ 1and 20, and [a]rticle [e]ighth, § 1, of theConnecticut [c]onstitution, to the graveinjury of the plaintiffs.”

FN39. The second count of the plaintiffs'complaint claims: “Separate educationalsystems for minority and non-minority stu-dents in fact provide to all students, andhave provided to plaintiffs, unequal educa-













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tional opportunities.

“Because of the racial and ethnic segreg-ation that exists between Hartford andthe suburban districts, perpetuated by thedefendants and resulting in serious harmto the plaintiffs, the defendants have dis-criminated against the plaintiffs andhave failed to provide them with anequal opportunity to a free public educa-tion as required by [a]rticle [f]irst, §§ 1and 20, and [a]rticle [e]ighth, § 1[,] ofthe Connecticut [c]onstitution.”

FN40. Contrary to the suggestion of thedissent, this is not a case in which furtherbriefing was required. Unlike the cases onwhich the dissent relies, the constitutionalprovisions that are crucial to our holdinghave been at center stage in this case sinceits inception. It cannot come as a surpriseto anyone that this litigation is groundedon the interrelationship between articlefirst, §§ 1 and 20, and article eighth, § 1.

[15] In the third count of the plaintiffs' complaint,they invoked article first, §§ 1 and 20, and articleeighth, § 1, for a different purpose. They allegedthat the defendants have failed to provide school-children in the Hartford public school system withthe educational resources necessary to obtain a min-imally adequate education. As pleaded in theircomplaint and as argued before the trial court, thisclaim was not expressly predicated upon the severeracial and ethnic isolation that exists in the Hartfordpublic school system. Moreover, at oral argument,the plaintiffs conceded that they had never claimed,either at trial or in their appellate brief, that the op-portunity to participate in a racially and ethnicallydiverse education is a constitutionally requiredcomponent of a minimally adequate education. Ac-cordingly, we conclude that the third count of theplaintiffs' complaint does not implicate the consti-tutional right to a substantially equal educationalopportunity as defined in part III A. Because,however, the plaintiffs' remedial claims do not de-

pend upon the validity of the third *37 count oftheir complaint, we need not reach the merits of thisclaim.FN41

FN41. The plaintiffs have abandoned theclaim contained in the fourth and last countof their complaint. See footnote 13.

Significantly, the plaintiffs have neverclaimed, either at trial or in this court,that the state has deprived them of a sub-stantially equal educational opportunityby reason of the funding that the stateprovides to supplement the Hartfordproperty tax. Specifically, the plaintiffshave never argued that the fundingprovided by the state does not suffi-ciently balance any deficiency in thefunding provided through the local prop-erty tax. See Horton I, supra, 172 Conn.at 633, 376 A.2d 359. The parties stipu-lated that the state formula for distribut-ing state aid to local school districts“provide[s] the most state aid to theneediest school districts.”

C

The final issue before us is whether, in light of thefindings of the trial court, some of which theplaintiffs deem erroneous, the plaintiffs haveproven a violation of their fundamental right, underthe state constitution, to a substantially equal edu-cational opportunity that is free from substantial ra-cial and ethnic isolation. We conclude that theyhave done so.

“[I]n Connecticut the right to education is so basicand fundamental that any infringement of that rightmust be strictly scrutinized.” Horton I, supra, 172Conn. at 646, 376 A.2d 359; Horton III, supra,195 Conn. at 35, 486 A.2d 1099. Proper evaluationof **1287 the plaintiffs' claims is best pursued inaccordance with the methodology that we adoptedand applied in Horton III, supra, at 38-39, 486 A.2d1099. This methodology requires us to balance the














legislature's affirmative constitutional obligation toprovide all of the state's schoolchildren with a sub-stantially equal educational opportunity against thelegislature's recognized significant discretion inmatters of public elementary and secondary educa-tion.

[16] The analysis that we adopted in Horton III toscrutinize legislation that allegedly infringes uponthe fundamental right to education requires a three-step process: *38 “First, the plaintiffs must make aprima facie showing that the disparities ... are morethan de minimis in that the disparities continue tojeopardize the plaintiffs' fundamental right to edu-cation. If they make that showing, the burden thenshifts to the state to justify these disparities as in-cident to the advancement of a legitimate statepolicy. If the state's justification is acceptable, thestate must further demonstrate that the continuingdisparities are nevertheless not so great as to be un-constitutional.” Id., at 38, 486 A.2d 1099; seealso id., at 45, 45 n. 25, 486 A.2d 1099. Applyingthe parties' stipulated facts and the trial court's fac-tual findings to this analytical framework, we arepersuaded that the current school assignmentscheme, principally embodied in §§ 10-184 and10-240, violates the plaintiffs' fundamental right toa substantially equal educational opportunity.

[17] The plaintiffs have shown, and the defendantsdo not contest, that the disparities in the racial andethnic composition of public schools in Hartfordand the surrounding communities are more than deminimis. While children from minority groups con-stituted 25.7 percent of the statewide public schoolpopulation in the 1991-92 school year, 92.4 percentof the children in the Hartford public school systemwere members of minority groups, including, pre-dominantly, students who were either African-American or Latino. The percentage of minoritystudents enrolled in Hartford's public schools hassince increased. In the 1994-95 school year, 94.5percent of the children in the Hartford public schoolsystem were members of minority groups.FN42

Moreover, the Hartford public school system cur-

rently enrolls the highest percentage of minoritystudents in the state, and this percentage*39 islikely to become even higher in the future, if cur-rent conditions continue. These disparities jeopard-ize the plaintiffs' fundamental right to education.

FN42. We take judicial notice; see Joe'sPizza, Inc. v. Aetna Life & Casualty Co.,236 Conn. 863, 873 n. 14, 675 A.2d 441(1996); Stamford Hospital v. Vega, 236Conn. 646, 655 n. 8, 674 A.2d 821 (1996);of the statistics compiled by the Hartfordboard of education pursuant to GeneralStatutes § 10-220(c). Hartford School Dis-trict Strategic School District Profile(1994-1995).

[18] The defendants stress that the trial court alsomade extensive findings about the significant rolethat adverse socioeconomic conditions play in thedifficulties encountered by Hartford schoolchildren.Although the findings of the trial court are suppor-ted by credible evidence, they do not undermine theplaintiffs' claim. It is well established, under pre-vailing principles governing the law of equal pro-tection, that poverty is not a suspect classification.Moscone v. Manson, 185 Conn. 124, 130, 440 A.2d

848 (1981); see Harris v. McRae, 448 U.S. 297,323, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784 (1980).The plaintiffs have not brought an equal protectionclaim challenging these principles.

The trial court's findings simply demonstrate thatHartford's schoolchildren labor under a dual bur-den: their poverty and their racial and ethnic isola-tion. These findings regarding the causal relation-ship between the poverty suffered by Hartfordschoolchildren and their poor academic perform-ance cannot be read in isolation. They do not di-minish the significance of the stipulations and un-disputed findings that the Hartford public schoolsystem suffers from severe and increasing racialand ethnic isolation, that such isolation is harmfulto students of all races, and that the districting stat-ute codified at § 10-240 is the single most import-ant factor contributing to the concentration of racial



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and ethnic minorities in the Hartford public schoolsystem. The fact that, as pleaded, the plaintiffs'complaint does not **1288 provide them a constitu-tional remedy for one of their afflictions, namely,their poverty, is not a ground for depriving them ofa remedy for the other.

The uncontested evidence of the severe racial andethnic isolation of Hartford's schoolchildrendemonstrates*40 that the state has failed to fulfillits affirmative constitutional obligation to provideall of the state's schoolchildren with a substantiallyequal educational opportunity. Much like the sub-stantially unequal access to fiscal resources that wefound constitutionally unacceptable in Horton I, thedisparity in access to an unsegregated educationalenvironment in this case arises out of state actionand inaction that, prima facie, violates theplaintiffs' constitutional rights, although that se-gregation has occurred de facto rather than de jure.Thus, because the plaintiffs have made the requisiteprima facie showing that their fundamental right toa substantially equal educational opportunity hasbeen jeopardized, the burden of justification shiftsto the state.

[19] We next consider whether the defendants havemet their burden of demonstrating that the disparit-ies in the plaintiffs' educational opportunities are“incident to the advancement of a legitimate statepolicy.” Horton III, supra, 195 Conn. at 38, 486A.2d 1099. The defendants emphasize the uncon-tested fact that, although the state has created andmaintained the public elementary and secondaryschool system, including the districting and the at-tendance statutes; General Statutes §§ 10-184 and10-240; the state bears no de jure responsibility forthe racial and ethnic isolation that the plaintiffshave encountered.

The statutes enacted by the legislature and the edu-cational strategies adopted by the state demonstratethat the state has acted to further policies that areboth legitimate and facially neutral with respect toracial and ethnic isolation. The General Assemblyhas enacted no legislation that was intended to

cause either de jure or de facto segregation. It en-acted the districting statute, not to impose or tofoster racial or ethnic isolation, but to improve edu-cational quality for all Connecticut schoolchildrenby increasing state involvement in all aspects ofpublic elementary and secondary education. *41Moreover, the districting scheme presently furthersthe legitimate nonracial interests of permitting con-siderable local control and accountability in educa-tional matters. Furthermore, in recognition of itsmoral obligation to address the adverse con-sequences of racial and ethnic discrimination, thestate reorganized the board of education, during the1980s, to concentrate on the needs of urban school-children and to promote diversity in the publicschools. Under § 10-226a et seq., which the legis-lature enacted to remedy racial imbalances withinpublic school districts, all schools within a districtmust maintain, within specified tolerances, a stu-dent population that reflects the student populationin the district as a whole. In addition, the state hassupported and encouraged voluntary plans for in-creasing interdistrict diversity. It has provided fin-ancial support to interdistrict magnet programs andhas enacted legislation to promote voluntary interd-istrict solutions to racial and ethnic isolation. SeeGeneral Statutes § 10-264a et seq. In all these re-spects, the state has furthered agendas that are legit-imate. Accordingly, the defendants have sustainedtheir initial burden of justifying the legitimacy ofthe state's actions.

[20] In light of the defendants' affirmative showing,we now consider the third part of the Horton IIItest. Once the state's justification for its official ac-tions has been shown to be acceptable, “the statemust further demonstrate that the continuing dispar-ities are nevertheless not so great as to be unconsti-tutional.” Horton III, supra, 195 Conn. at 38, 486A.2d 1099. In the context of the present claims, thestate must demonstrate that, in light of its recog-nized discretion in matters of public elementary andsecondary education, and taking into account themeasures that it has taken to remedy racial and eth-nic disparities in the public schools, the disparities













are not so significant as to rise to the level of a con-stitutional deprivation. In our assessment of wheth-er the state has *42 met its burden, we again em-phasize that, much like the substantially unequalfiscal resources that we found constitutionally un-acceptable in Horton I and Horton III, the disparityin access to an unsegregated**1289 educational en-vironment in this case arises out of discriminationthat is de facto rather than de jure.

We conclude that the defendants have failed to sat-isfy their difficult burden. Despite the initiativesundertaken by the defendants to alleviate the severeracial and ethnic disparities among school districts,and despite the fact that the defendants did not in-tend to create or maintain these disparities, the dis-parities that continue to burden the education of theplaintiffs infringe upon their fundamental state con-stitutional right to a substantially equal educationalopportunity.

Our conclusion finds uncontested factual support inthe stipulations of the parties, which provide dra-matic documentation of the wide disparities in theracial and ethnic composition of the student popula-tions in the public schools in Hartford and those inthe twenty-one surrounding communities. Althoughwe have discussed these statistics previously in thisopinion, they bear repeating. The percentage ofminorities who attend Hartford public schools issignificantly higher than the percentage of minorit-ies who attend schools in the surrounding schooldistricts. In the 1991-92 school year, over 92 per-cent of the students in the Hartford public schoolsystem were members of minority groups. In starkcontrast, in that same period, only seven of thetwenty-one surrounding suburban towns had a stu-dent minority enrollment above 10 percent. We relyalso on the findings made by the trial court, whichhave not been contested by any of the parties, thatdespite efforts by the state to alleviate the severe ra-cial and ethnic isolation that exists in the Hartfordpublic school system, “[s]tudents in the Hartfordschools are racially isolated and are likely to be-come more isolated in the *43 future ” FN43 and

that “[t]he single most important factor that con-tribute[s] to the present concentration of racial andethnic minorities in Hartford [is] the town-schooldistrict system [codified at § 10-240] which has ex-isted since 1909, when the legislature consolidatedmost of the school districts in the state so thatthereafter town boundaries became the dividinglines between all school districts in the state.”(Emphasis added.) This record compels the conclu-sion that the present state regulation of public ele-mentary and secondary education “emasculate[s]the goal of substantial equality.” (Internal quota-tion marks omitted.) Horton III, supra, 195 Conn.at 38, 486 A.2d 1099. We conclude, therefore, thatthe school districting scheme, as codified at §§10-184 and 10-240 and as enforced with regard tothese plaintiffs, is unconstitutional.

FN43. This finding has proven to be accur-ate. As we have noted previously, in the1994-95 school year, the percentage ofminority students enrolled in the Hartfordpublic school system increased to nearly95 percent.

It is crucial for a democratic society to provide allof its schoolchildren with fair access to an un-segregated education. As the United States Su-preme Court has eloquently observed, a sound edu-cation “is the very foundation of good citizenship.Today it is a principal instrument in awakening thechild to cultural values, in preparing him for laterprofessional training, and in helping him to adjustnormally to his environment. In these days, it isdoubtful that any child may reasonably be expectedto succeed in life if he is denied the opportunity ofan education. Such an opportunity, where the statehas undertaken to provide it, is a right which mustbe made available to all on equal terms.” Brown v.Board of Education, supra, 347 U.S. at 493, 74S.Ct. at 691. “The American people have always re-garded education and [the] acquisition of know-ledge as matters of supreme importance.... Wehave recognized the public schools as a most vitalcivic institution for the preservation of a














*44 system of government ... and as the primaryvehicle for transmitting the values on which our so-ciety rests.... And these historic perceptions of thepublic schools as inculcating fundamental valuesnecessary to the maintenance of a democratic polit-ical system have been confirmed by the observa-tions of social scientists.... [E]ducation providesthe basic tools by which individuals might lead eco-nomically productive lives to the benefit of us all.In sum, education has a fundamental role in main-taining the fabric of our society. We cannot ignorethe significant social costs borne by our Nationwhen select groups are denied the **1290 means toabsorb the values and skills upon which our socialorder rests.” (Citations omitted; internal quotationmarks omitted.) Plyler v. Doe, supra, 457 U.S. at221, 102 S.Ct. at 2397.

Although the constitutional basis for the plaintiffs'claims is the deprivation that they themselves aresuffering, that deprivation potentially has an impacton “the entire state and its economy-not only on itssocial and cultural fabric, but on its material well-being, on its jobs, industry, and business. Econom-ists and business leaders say that our state's eco-nomic well-being is dependent on more skilledworkers, technically proficient workers, literate andwell-educated citizens. And they point to the urbanpoor as an integral part of our future economicstrength.... So it is not just that their future dependson the State, the state's future depends on them.”Abbott v. Burke, 119 N.J. 287, 392, 575 A.2d 359

(1990). Finding a way to cross the racial and ethnicdivide has never been more important than it istoday.

IV

REMEDIES

[21] Our decision to reverse the judgment of the tri-al court, and to direct that judgment be rendered onbehalf of the plaintiffs on the merits of their consti-tutional *45 claims in the first and second counts of

their complaint, requires us to consider what reliefmay properly be afforded to the plaintiffs. We re-cognize that the fashioning of appropriate declarat-ory or injunctive relief requires careful considera-tion in order to weigh the benefits and costs of vari-ous remedial measures.

In their appeal to this court, the plaintiffs have notfocused their attention on the remedial con-sequences of a substantive decision in their behalf.Their prayer for relief asks us to reverse the judg-ment of the trial court and to remand the case withdirection to render a declaratory judgment and “forfurther equitable relief not inconsistent with [our]decision.” The defendants urge this court not to as-sume direct control of the educational system inConnecticut and to eschew “acting as a super-legislature and glorified [b]oard of [e]ducation.”

Because the parties have not had the opportunity topresent evidence directed to the remedial con-sequences that follow from our decision on themerits of the plaintiffs' complaint, we could remandthis case to the trial court for further proceedings toaddress remedies. Alternatively, if no further evid-entiary inquiries would be required, we could invitefurther briefing in this court and attempt to resolvethe issues ourselves.

We have decided not to follow either of these aven-ues but to employ the methodology used in HortonI. In that case, the trial court, after having foundfor the plaintiffs, limited its judgment by grantingonly declaratory relief but retained jurisdiction togrant consequential relief, if needed, at some futuretime. Horton I, supra, 172 Conn. at 650, 376 A.2d359. In light of the complexities of developing a le-gislative program that would respond to the consti-tutional deprivation that the plaintiffs had estab-lished, we concluded, in Horton I, that further judi-cial intervention should be stayed “to afford the *46General Assembly an opportunity to take appropri-ate legislative action.” Id., at 653, 376 A.2d 359.Prudence and sensitivity to the constitutional au-thority of coordinate branches of government coun-sel the same caution in this case.














In staying our hand, we do not wish to be misunder-stood about the urgency of finding an appropriateremedy for the plight of Hartford's public school-children. Every passing day denies these childrentheir constitutional right to a substantially equaleducational opportunity. Every passing day short-changes these children in their ability to learn tocontribute to their own well-being and to that ofthis state and nation. We direct the legislature andthe executive branch to put the search for appropri-ate remedial measures at the top of their respectiveagendas. We are confident that with energy andgood will, appropriate remedies can be found andimplemented in time to make a difference beforeanother generation of children suffers the con-sequences of a segregated public school education.

The defendants counsel us, however, to stay ourhand entirely. They claim that no **1291 judicialmandate can properly take into account the daunt-ing, if not intractable, difficulties of crafting a re-medial solution to the problem of de facto racialand ethnic segregation in the public schools ofHartford. When a similar question was raised aboutjudicial authority to mandate the reform of stateelectoral systems, the claim was given short shriftby the United States Supreme Court. The courtstated, in Reynolds v. Sims, supra, 377 U.S. at 566,84 S.Ct. at 1384: “We are told that the matter ofapportioning representation in a state legislature isa complex and many-faceted one. We are advisedthat States can rationally consider factors other thanpopulation in apportioning legislative representa-tion. We are admonished not to restrict the powerof the States to impose differing views as to politic-al philosophy on their citizens. We are cautionedabout the dangers of entering into political thicketsand *47 mathematical quagmires. Our answer isthis: a denial of constitutionally protected rightsdemands judicial protection; our oath and our of-fice require no less of us.” (Emphasis added.) Ouroath, our office and the constitutional rights of theschoolchildren of Hartford, require no less of us inthis case.

The judgment is reversed and the case is remandedwith direction to render a declaratory judgment forthe plaintiffs; the Superior Court is directed to re-tain jurisdiction in accordance with this opinion.

In this opinion BERDON, NORCOTT and KATZ,JJ., concurred.BERDON, Associate Justice, concurring.

I join the Chief Justice in her well reasoned major-ity opinion that concludes that the racial and ethnicsegregation that exists in our public school systemdeprives schoolchildren of their state constitutionalright to a “substantially equal educational opportun-ity.” FN1 More specifically, I agree “that, textu-ally, *48 article eighth, § 1, [of the Connecticutconstitution] as informed by article first, § 20, re-quires the legislature to take affirmative responsib-ility to remedy segregation in our public schools,regardless of whether that segregation has occurredde jure or de facto.” I write separately because, inmy view **1292 and as the record reflects, a ra-cially and ethnically segregated educational envir-onment also deprives schoolchildren of an adequateeducation as required by the state constitution.FN2

FN1. I also agree that this case is justi-ciable and one which requires judicial in-tervention to assure that the state constitu-tional rights of schoolchildren are protec-ted. In this case, as in Nielsen v. State, 236Conn. 1, 13-14, 670 A.2d 1288 (1996)(Berdon, J., concurring), and Horton v.Meskill, 172 Conn. 615, 650-51, 376 A.2d359 (1977), “the constitution directs the le-gislature to act in order to implement therespective constitutional provisions.”Nielsen v. State, supra, at 13-14, 670 A.2d

1288. As this court recognized in Horton,we have jurisdiction to compel the legis-lature to act in those situations in which itfails to carry out its constitutional man-date. “We have a constitutional obligationto keep the doors of this court open in or-der to enforce our laws.... We cannot ex-cuse the legislature's default by merely la-



















beling it a political question and therebyrendering the issue nonjusticiable. Nor is itappropriate for us to conclude that the onlyremedy available to the people is at thepolling booth by ‘kicking the rascals out.’Our democracy depends in part on thewillingness of the courts to enforce uni-formly our constitutional law. We cannotbe selective and choose to enforce someprovisions, while turning our backs on oth-ers. Indeed, as Chief Justice Peters wrotein dissent, ‘[w]hatever the reasons may be,legislative inaction does not, to my mind,relieve this court of its independent duty tovindicate the constitutional rights of thosewho appear before us.’ Pellegrino v.O'Neill, 193 Conn. 670, 695, 480 A.2d476,cert. denied, 469 U.S. 875, 105 S.Ct.236, 83 L.Ed.2d 176 (1984).” Nielsen v.State, supra, at 16, 670 A.2d 1288 (Berdon,J., concurring).

Furthermore, I agree that the state's fail-ure to act and to remedy the inequalitiesand inadequacies of public educationconstitutes state action. Horton v.Meskill, supra, 172 Conn. at 648-49, 376A.2d 359; see Moore v. Ganim, 233Conn. 557, 595-96, 660 A.2d 742(1995). The state did not deliberately es-tablish a segregated school system. Thestate, however, chose to discharge itsconstitutional obligation of providingpublic education by establishing schooldistricts according to town boundaries;General Statutes § 10-240; and by re-quiring schoolchildren to attend the pub-lic schools located within the districtwherein they reside. General Statutes §10-184. Moreover, the state is aware thatsuch a statutory scheme is producing se-gregated school systems. Indeed, the tri-al court found that “[t]he single most im-portant factor that contributed to thepresent concentration of racial and eth-

nic minorities in Hartford was the town-school district system which has existedsince 1909....” Even in the face of feder-alism, legislative inaction amounts tostate action. Reynolds v. Sims, 377 U.S.533, 570, 84 S.Ct. 1362, 1386, 12L.Ed.2d 506,reh. denied, 379 U.S. 870,85 S.Ct. 12, 13 L.Ed.2d 76 (1964)(“[l]egislative inaction coupled with theunavailability of any political or judicialremedy, had resulted, with the passageof years, in the perpetuated scheme be-coming little more than an irrational ana-chronism”).

FN2. It is correct that at oral argument, asthe Chief Justice notes, the plaintiffs ac-knowledged that their argument before thetrial court did not focus on the claim thatracial and ethnic segregation deprivesschoolchildren of a constitutionally man-dated adequate education. Paragraph threeof the third count of the complaint,however, expressly alleges: “[T]he State ofConnecticut, by tolerating school districtssharply separated along racial, ethnic, andeconomic lines, has deprived the plaintiffsand other Hartford children of their rightsto an equal educational opportunity, and toa minimally adequate education.”(Emphasis added.) Further, in that portionof the third count of the complaint cap-tioned “Legal Claims,” the plaintiffs claimthat the Hartford school district maintainedby the state “fails to provide a majority ofHartford schoolchildren with a minimallyadequate education....” (Emphasis added.)

Although the trial court found that theschoolchildren are receiving a minimallyadequate education, I would conclude,on the basis of the entire record in thiscase, that that conclusion was clearly er-roneous. The trial court specificallyfound, and as I hereinafter set forth in




























this concurrence: “Education in itsfullest sense for both white and minorityschool children involves interracial andmultiethnic exposure to each other andinteraction between them, because racialand ethnic isolation has negative effectson both groups.” Furthermore, any find-ing that the children of Hartford are re-ceiving an adequate academic educationis belied by their test scores. But equallyimportant, as I have indicated in thisconcurrence, education is more thanwhat can be measured by mastery testresults in reading, writing and arithmet-ic.

Whether viewed as a separate constitu-tional ground for requiring the state toremedy the present segregated educa-tional system or as the product of thecurrent segregation that deprives Hart-ford's schoolchildren of an equal educa-tional opportunity, the impact of racialand ethnic segregation on the quality ofeducation is an important factor to con-sider in deciding this case.

*49 In Brown v. Board of Education, 347 U.S. 483,493, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954), theSupreme Court of the United States noted that“education is perhaps the most important functionof state and local governments.... It is the veryfoundation of good citizenship. Today it is a prin-cipal instrument in awakening the child to culturalvalues, in preparing him [or her] for later profes-sional training, and in helping him [or her] to adjustnormally to his [or her] environment. In these days,it is doubtful that any child may reasonably be ex-pected to succeed in life if he [or she] is denied [anequal educational opportunity].” Twenty-threeyears later, Justice Bogdanski, in his concurrence inHorton v. Meskill, 172 Conn. 615, 654-55, 376A.2d 359 (1977), reaffirmed that thought: “[T]heright of our children to an education is a matter ofright not only because our state constitution de-

clares it as such, but because education is the veryessence and foundation of a civilized culture: it isthe cohesive element that binds the fabric of societytogether. In a real sense, it is as necessary to a civil-ized society as food and shelter are to an individual.It is our fundamental legacy to the youth of ourstate to enable them to acquire knowledge and pos-sess the ability to reason: for it is the ability to reas-on that separates [men and women] from all otherforms of life.”

*50 Unlike the federal constitution, the constitutionof Connecticut, article eighth, § 1, provides thateducation is a fundamental right of every child re-gardless of his or her race or ethnicity. Id., at648-49, 376 A.2d 359 (“in Connecticut, elementaryand secondary education is a fundamental right,[and] pupils in the public schools are entitled to theequal enjoyment of that right”). Accordingly, it lo-gically follows that the education guaranteed in thestate constitution must be, at the very least, withinthe context of its contemporary meaning, an ad-equate education. Even Justice Loiselle, in his dis-sent in Horton v. Meskill, supra, 172 Conn. at658-59, 376 A.2d 359, conceded that the provisionof an adequate education was constitutionally re-quired and, in discussing the need to interpret thatrequirement in a reasonable manner, stated “[a]town may not herd children in an open field to hearlectures by illiterates.” Indeed, long before theformal incorporation of this right into our presentconstitution, this court recognized the state's “dutyto provide for the proper education of the young.”(Emphasis added.) **1293State ex rel. Huntingtonv. Huntington Town School Committee, 82 Conn.563, 566, 74 A. 882 (1909); see also Bissell v. Dav-ison, 65 Conn. 183, 191, 32 A. 348 (1894).FN3

FN3. “It is a duty not imposed by constitu-tional provision, but has always been as-sumed by the State; not only because theeducation of youth is a matter of great pub-lic utility, but also and chiefly because it isone of great public necessity for the pro-tection and welfare of the State itself. In




















the performance of this duty, the Statemaintains and supports at great expense,and with an ever watchful solicitude, pub-lic schools throughout its territory, and se-cures to its youth the privilege of attend-ance therein.” Bissell v. Davison, supra,65 Conn. at 191, 32 A. 348.

The state has established the boundaries of schooldistricts coextensively with town lines, thereby pla-cing in certain school districts, such as Hartford,overwhelming percentages of minority students. In-deed, the trial court found that “[s]tudents in theHartford schools are racially isolated and are likelyto become more isolated in the future.” In the1987-88 academic year, 90.5 percent*51 of Hart-ford's schoolchildren were of minority races or eth-nicities. Yet, Hartford, like many of Connecticut'surban centers, is encircled by school districts whosestudent populations include only a small percentageof minority children.FN4 The trial court's forecastthat racial and ethnic isolation would increase hasunfortunately proven to be accurate. Figures re-cently released for the 1994-95 academic year, re-veal that 93.4 percent of Hartford's students arefrom minority racial or ethnic groups. FN5

FN4. As stipulated, statistics compiled forthe 1987-88 academic year reveal that,with the exception of Bloomfield andWindsor, in which 69 percent and 30 per-cent of their student bodies respectivelywere minority, Hartford's neighboringschool districts educated a nominal numberof minority students: 3.8 percent of Avon'sstudent population was minority; 7.7 per-cent of Farmington's student populationwas minority; 5.4 percent of Glastonbury'sstudent population was minority; 6.4 per-cent of Newington's student populationwas minority; 3.3 percent of Wethersfield'sstudent population was minority; and 15.7percent of West Hartford's student popula-tion was minority.

FN5. With respect to the more current stat-

istics for the 1994-95 academic year, I, likethe majority, take judicial notice of the“Strategic School District Profile,” de-signed by the Connecticut state departmentof education for the Hartford publicschools.

This segregation can have a devastating impact on aminority student's education. The United States Su-preme Court recognized that segregation “generatesa feeling of inferiority [within the students] as totheir status in the community that may affect theirhearts and minds in a way unlikely ever to be un-done.... Segregation of white and[African-American] children in public schools has adetrimental effect upon [the African-American]children. The impact is greater when it has thesanction of the law; for the policy of separating theraces is usually interpreted as denoting the inferior-ity of the [African-American]. A sense of inferior-ity affects the motivation of a child to learn. Se-gregation with the sanction of law, therefore, has atendency to [retard] the educational and mental de-velopment of *52 [African-American] children andto deprive them of some of the benefits they wouldreceive in a racial[ly] integrated school system.”(Internal quotation marks omitted.) Brown v. Boardof Education, supra, 347 U.S. at 494, 74 S.Ct. at691.

In order to provide an adequate or “proper” educa-tion, our children must be educated in a nonsegreg-ated environment. The trial court found,“[e]ducation in its fullest sense for both white andminority school children involves interracial andmultiethnic exposure to each other and interactionbetween them, because racial and ethnic isolation[have] negative effects on both groups.” Indeed, astudy commissioned by the state department of edu-cation in 1989, concluded that “desegregation hashad some positive effect on the reading skills ofblack youngsters.... [T]here is some evidence thatdesegregation may help to break what can bethought of as a generational cycle of segregationand racial isolation.” J. Schofield, “Review of Re-










search on School Desegregation's Impact on Ele-mentary and Secondary School Students,” Commis-sioned by the Connecticut Department of Education(1989) p. 35. The study further concluded that“there are indications that desegregated schoolingcan provide students with valuable behavioral ex-perience which prepares them to function in a plur-alistic society.... [T]here is some evidence thatschool desegregation may have long-**1294 termpositive consequences on adult social relationships,housing patterns, and the like.” Id., p. 36.

The poor academic achievement of Hartford's stu-dents is insightful into the devastating effects of ra-cial isolation on the students' education. For ex-ample, in 1991-92, 94 percent of the sixth gradersin Hartford's public schools failed to meet thestate's goal for mathematics; 80 percent failed toachieve the state's goal for reading; and 97 percentfailed to obtain the state's goal for writing. Equallydisturbing is the knowledge that, *53 in that sameyear, 62 percent of Hartford's sixth graders failed toachieve even the state's remedial standards for read-ing.

Scholastic achievement scores, are but one effect ofsegregation on education. Children of every raceand ethnic background suffer when an educationalsystem is administered on a segregated basis. Edu-cation entails not only the teaching of reading, writ-ing and arithmetic, but today, in our multiculturalworld, it also includes the development of socialunderstanding and racial tolerance. If the mission ofeducation is to prepare our children to survive andsucceed in today's world, then they must be taughthow to live together as one people. Anything lesswill surely result in a segregated society with oneracial and ethnic community pitted against another.Instead of fostering social division, we must buildan integrated society, commencing with educatingour children in a nonsegregated environment.

Accordingly, I conclude that, in addition to thestate's failure to provide Hartford schoolchildrenwith a “substantially equal educational opportun-ity,” these children are also being deprived of an

adequate education because of their racial and eth-nic isolation. It matters little with respect to thequality of the education that the segregation wasunintentional. The fact that segregation exists as aresult of the school districting statute requires thestate to take remedial action to eliminate the consti-tutional violation of not providing these schoolchil-dren with an adequate education.FN6


Time is precious, especially when confronted witha constitutional violation that impacts the lives ofour children and the future of our society. Everyday that goes by is one more day that the school-children who reside in Hartford and other urbancenters in Connecticut are deprived of an adequateeducation. The plaintiff *54 Milo Sheff was tenyears old and in fourth grade when this litigationcommenced more than seven years ago. We cannotrecover what has been lost for him and others, butfor those children who are presently enrolled in ourpublic schools and for those who will enter in thefuture, we must eliminate the current segregationthat exists.

I agree, however, with the Chief Justice that the ex-ecutive and legislative branches of the state govern-ment should be given an opportunity FN7 to rem-edy what is now *55 a **1295 terrible wrong.Nielsen v. State, 236 Conn. 1, 17, 670 A.2d 1288

(1996) (Berdon, J., concurring). Nevertheless, inthe words of United States Supreme Court ChiefJustice Warren, the state must act “with all deliber-ate speed.” Brown v. Board of Education, 349U.S. 294, 301, 75 S.Ct. 753, 756-57, 99 L.Ed. 1083(1955).

FN7. The following findings of the trialcourt make it clear that the decision of thecourt today was foreshadowed:

“On January 6, 1993, the eleventh day ofthe trial, Governor [Lowell P.] Weicker[Jr.] in his message to the legislature ...noted the positive aspects of Connectic-










ut's educational system, such as the factthat the state had the highest teachersalaries and the best teacher-student ratioin the nation as well as one of thehighest rankings among the states in perpupil spending.

“He also acknowledged that the racialand economic isolation in the state'sschool system was ‘indisputable’ andwhether it had come about ‘through thechance of historical boundaries or eco-nomic forces beyond the control of thestate or whether it came about throughprivate decisions or in spite of the besteducational efforts of the state, whatmatters is that it is here and must bedealt with.’ ...

“He then proceeded to outline legislativeproposals for six educational regions, thedevelopment by each region of a fiveyear plan proposed by local and regionalrepresentative groups to reduce racialisolation, and ‘to provide all studentswith a quality, integrated learning exper-ience,’ and emphasized the fact that‘[l]ocal decisions and local involvementwill guide the process.’ ...

“On June 28, 1993, [No. 93-263 of the1993 Public Acts] (now codified as Gen-eral Statutes §§ 10-264a to 10-264b) en-titled ‘An Act Improving EducationalQuality and Diversity’ was signed by thegovernor. The Act provided a timetablebeginning on January 15, 1994, for theconvening of local and regional ‘forums'for the purpose of developing regional‘education and community improvementplans' which were to be voted on by eachof eleven regions in the state.

“Thereafter, the plaintiffs, at the direc-tion of the trial court, amended the com-plaint to state that Governor Weicker, ‘in

response to this law suit ... called on thelegislature to address “[t]he racial andeconomic isolation in Connecticut'sschool system,” and the related educa-tional inequities in Connecticut'sschools.’

“Paragraph 66b [of the plaintiffs' com-plaint] stated that ‘[a]s in the past, the le-gislature failed to act effectively in re-sponse to the Governor's call for schooldesegregation initiatives [and instead], avoluntary desegregation planning billwas passed, P.A. 93-263, which containsno racial or poverty concentration goals,no guaranteed funding, no provisions foreducational enhancements for cityschools, and no mandates for local com-pliance.’ ”

I join in the majority opinion.FN8

FN8. I would not, however, reach the con-clusion, which the Chief Justice does in themajority opinion, that poverty under ourstate constitution is not a suspect classific-ation entitled to heightened judicial re-view. Although a reference to the stateconstitution was made in Moscone v. Man-son, 185 Conn. 124, 130, 440 A.2d 848(1981), wherein this court recognized thatfederal law did not provide heightened re-view concerning classifications predicatedon poverty, no independent analysis wasundertaken with respect to the state consti-tution. Because, as the majority recog-nizes, Hartford schoolchildren labor undera dual burden of both poverty and racialand ethnic segregation, the question ofwhether poverty constitutes a suspect clas-sification under the state constitution neednot be reached.

BORDEN, Associate Justice, with whom CALLA-HAN and PALMER, JJ., join, dissenting.The majority has reached a result driven conclusionbased on a theory of constitutional liability that was














never presented to the trial court or to this court, isungrounded in the text and history of Connecticut'sconstitutional provisions regarding the rights topublic education and equal protection of the lawsand is wholly at odds with the factual record in thiscase. The majority's conclusion, moreover, is con-trary to the teaching of Horton v. Meskill, 172Conn. 615, 376 A.2d 359 (1977)(Horton I ), thiscourt's principal precedent interpreting those provi-sions. In its zeal to reach a result that, it envisions,will eliminate racial and ethnic concentration in thepublic school districts of this state, the majority has“[renounced] this Court's historical commitment toa conception of the judiciary as a source of imper-sonal and reasoned judgments *56 ....” (Internalquotation marks omitted.) Payne v. Tennessee, 501U.S. 808, 844, 111 S.Ct. 2597, 2619, 115 L.Ed.2d720 (1991) (Marshall and Blackmun, Js., dissent-ing). In essence, “[p]ower, not reason, is the newcurrency of this Court's [state constitutional] de-cisionmaking.” Id. I therefore dissent.FN1

FN1. I recognize the seriousness of thesecriticisms of the majority opinion, and itpains me to express them. I do so only be-cause, in my view, the adjudicative processby which the majority's decision has beenreached is so seriously flawed, because theopinion departs so radically from how thiscase was tried in the trial court and wasbriefed and argued on appeal, and becausethe resulting analysis so completely disreg-ards the previously established principlesgoverning the issues in the case, that I cancome to no other conclusions.

More specifically, in reaching a result that is unpre-cedented in American jurisprudence the majorityhas created a constitutional theory of equal educa-tional opportunity that: (1) in the long history ofthis case, has never been presented to the trial courtor to this court, and is, therefore, a theory to whichthe defendants have never had an opportunity to re-spond; (2) misapplies our precedent on the meaningof an equal educational opportunity as expressed in

Horton I, and is contrary to the voluminous factualfindings of the trial court; (3) distorts the meaningof the term “segregation” in our state constitution;and (4) misrepresents the record regarding the ques-tion of a remedy for the constitutional violation thatthe majority has found.

In addition, the majority sends to the legislature andthe executive branch a mandate to fashion a remedyfor de facto racial and ethnic concentration in ourpublic schools, a task that those branches of gov-ernment will inevitably find to be extraordinarilydifficult or perhaps even impossible, because themajority articulates no principle upon which to**1296 structure such a remedy. The necessary im-plication of the majority's reasoning is that virtuallyevery school district in the state is now either *57unconstitutional or constitutionally suspect.Without explicitly saying so, the majority has ef-fectively struck down, not just for the greater Hart-ford area but for the entire state, the municipalitybased school system that has been in effect in thisstate since 1909.

It is significant, moreover, that the majority doesnot respond to the major substantive flaws in itsanalysis that this dissent identifies. Nor does it takeissue with what I identify as the necessary implica-tions of its decision.

I

INTRODUCTION

Before analyzing the majority's reasoning and theconstitutional claims that the plaintiffs did presentin this case, I state the extent of my agreement withthe majority. First, I agree that the case is justi-ciable, and that there is state action. Moreover, andmost importantly, I agree with the majority on thedesirability-as a matter of public and educationalpolicy-of eliminating from our public schools thetype of racial and ethnic concentration demon-strated by this record.










I also agree that racial and ethnic isolation in ourpublic schools is harmful-both to those races andethnic groups that are so isolated and to the otherraces and ethnic groups from whom they are isol-ated. I also agree with the majority's statement,based upon the trial court's finding, that the racialand ethnic isolation of Hartford's schoolchildren islikely to worsen in the future. I agree, furthermore,that racial and ethnic integration of our publicschools would be beneficial for all children and so-ciety in general. These points of agreement rest onthe notions that, as the majority recognizes, schoolsare important socializing institutions that bear acentral responsibility for imparting our shareddemocratic values to our children, and that *58 theopportunity for children of different races, ethnicbackgrounds, economic levels and social groups toget to know each other in school is important ifthey are to understand and respect each other. Fi-nally, I agree with the majority that the health ofthe economy of our state requires an educatedworkforce, which includes “the urban poor as an in-tegral part of our future economic strength.” Ab-bott v. Burke, 119 N.J. 287, 392, 575 A.2d 359(1990). Thus, I agree with the majority on the im-portance in our state-indeed, in our nation-of find-ing a way to cross the racial divide. FN2

FN2. The trial court specifically found thateducation “in its fullest sense” for allschoolchildren involves interracial andmultiethnic exposure to each other and in-teraction between them, because racial andethnic isolation has negative effects onboth groups. Our state constitution,however, guarantees students a substan-tially equal educational opportunity; Hor-ton I, supra, 172 Conn. 615, 376 A.2d359; not education “in its fullest sense,”and neither the plaintiffs nor the majorityclaim otherwise. Moreover, as the trialcourt found and as the defendants note intheir brief in this court, “the state has hadand continues to have as a long-standinggoal the reduction of racial and ethnic con-

centrations of students, and has implemen-ted ... numerous programs and initiatives ...precisely to encourage this result. The de-fendants have always believed that all ofour citizens benefit from integrated schoolsin an integrated society.” This long-standing state commitment to, and effort toachieve, the racial and ethnic integration ofour schools is demonstrated by a host ofstatutory, funding and administrative pro-grams and policies, and is not disputed bythe plaintiffs or the majority.

The trial court specifically found, for in-stance, that Connecticut is one of onlythree states that has voluntarily adoptedlegislation designed to promote integra-tion of the schools, and is one of onlyseven states that expend funds on pro-grams to integrate the schools without acourt order. In 1969, the state enactedNo. 773 of the 1969 Public Acts entitled“An Act Concerning Racial Imbalance inthe Public Schools,” now codified atGeneral Statutes § 10-226a et seq.,which requires school districts to main-tain student populations that reflect theracial makeup of the student populationin the district. The state department ofeducation has consistently and vigor-ously enforced this legislation.

On an interdistrict basis, the state has,for more than twenty-five years, helpedto fund Project Concern, one of the na-tion's first voluntary interdistrict pro-grams designed to promote the integra-tion of the schools. In addition, the statesupplies technical assistance and fundsfor constructing interdistrict magnetschools, and has established the Interd-istrict Cooperative Grant Program,which encourages the interdistrict place-ment of students. General Statutes §10-74d. In 1993, the state enacted No.













93-263 of the 1993 Public Acts entitled“An Act Improving Educational Qualityand Diversity,” now codified at GeneralStatutes § 10-264a et seq. This act estab-lishes regional advisory boards to planfor increased interdistrict diversity andprovides grants to fund such plans.

Furthermore, since 1979, the state's edu-cational funding formula has beenweighted in favor of districts with highconcentrations of poor students, andsince 1989 the formula has provided ad-ditional funds for remedial educationalprograms. The purpose and effect of theformula is to provide the most state aidto the neediest school districts. Indeed,in the 1991-92 school year, the stateprovided $4915 per pupil in educationalaid to Hartford, representing more thantwo and one-half times the average perpupil aid provided to the twenty-onesuburban towns with which the Hartfordschool district is compared in this case.In addition, the state provides funds, cal-culated according to the financial needof the recipient school districts, forschool construction, student transporta-tion and special education.

Moreover, the department of educationhas established a Priority School DistrictProgram, which targets the eight largestcities in the state, including Hartford, forimprovement of student achievement andenhancement of educational opportunit-ies. In 1992, the department establishedan Office of Urban and Priority SchoolDistricts, the purpose of which is “ ‘toconcentrate the resources of the depart-ment on the problems of the cities, andmore specifically to improve theachievement of students in the threelargest urban districts,’ ” including Hart-ford.

I do not, by recounting these statepolicies and programs, suggest that thestate is doing everything possible tosolve the terribly difficult problem of ra-cial and ethnic concentration in our pub-lic schools. There undoubtedly is morethat can and should be done. I recountthese steps only to underscore that thegoal of achieving integrated schools isshared by the state, which neither theplaintiffs nor the majority dispute.

**1297 *59 The majority, however, has trans-formed a laudable educational philosophy into aconstitutional mandate. That philosophy is that ra-cially and ethnically integrated schools are sociallyand educationally preferable to racially and ethnic-ally concentrated schools, because they confer cer-tain significant social benefits on their students thatsuch concentrated schools cannot, and they avoidcertain significant social burdens that such concen-trated schools are likely to impose. That belief,however, is utterly without basis as a constitutionalclaim of deprivation of an equal educational oppor-tunity. Neither the record in this case, the text orhistory of the Connecticut constitution, nor our caselaw supports such a claim. A similar example of ju-dicial overreaching *60 comes to mind. Ninety-oneyears ago the United States Supreme Court, inLochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49L.Ed. 937 (1905), declared unconstitutional, as vi-olative of the liberty of contract perceived to be im-plicit in the due process clause of the fourteenthamendment to the United States constitution, NewYork's labor law imposing a daily limit of ten hoursof work in the bakery industry. Justice Holmes dis-sented, stating that “[t]he Fourteenth Amendmentdoes not enact Mr. Herbert Spencer's Social Stat-ics,” and that “a constitution is not intended to em-body a particular economic theory, whether of pa-ternalism and the organic relation of the citizen tothe State or of laissez faire.” Id., at 75, 25 S.Ct. at546, 547. This decision ushered into our constitu-tional jurisprudence what came to be known as the“Lochner era,” during which the Supreme Court un-










dertook to strike down legislation that did not com-port with the particular economic theories held by amajority of the justices. See Dolan v. Tigard, 512U.S. 374, ----, 114 S.Ct. 2309, 2329, 129 L.Ed.2d304 (1994) (Stevens, J., dissenting) (identifying the“superlegislative power the Court exercised duringthe Lochner era”); 2 R. Rotunda & J. Nowak, Treat-ise on Constitutional Law (2d Ed.1992) § 15.4, pp.403-404 (“independent review of legislation during[Lochner] era resulted in unprincipled control ofsocial and economic legislation”); L. Tribe, Amer-ican Constitutional Law (2d Ed.1988) § 8-2.

The majority opinion in this case does much thesame. Just as the justices of the United States Su-preme Court “Lochnerized” the federal due processclause by reading laissez faire economic theory intoit, the majority of this court has “Lochnerized” oureducation and equal protection clauses by readinginto them an educational theory that mandates ra-cially and ethnically integrated schools. There is nomore basis today in our constitution for judicial in-tervention to impose such a mandatory*61 educa-tional theory than there was in the Lochner era forthe judiciary to impose laissez faire economics.

**1298 Thus, the majority has used this court'spower to interpret the constitution in order to man-date a vast and unprecedented social experiment,using the state's schools and schoolchildren as testdata, and thereby to construct what the majorityperceives to be the necessary bridge over the racialdivide.FN3 The majority has done so, however,without the bricks and mortar necessary to that con-struction-the facts, and sound constitutional prin-ciples. Indeed, had the factual findings by the trialcourt been those unsuccessfully sought by theplaintiffs, this case would have been very differenton *62 appeal. For example, had the trial courtfound, as the plaintiffs claimed, that racial and eth-nic concentration, rather than poverty, results indifferent educational outcomes and achievements,and that the measurements of those outcomes andachievements are valid for interdistrict purposes,the plaintiffs' constitutional claim of a deprivation

of an equal educational opportunity, as they presen-ted it, would have been powerful and might havelegitimately prevailed.

FN3. I am puzzled by the majority's facileand unexplained reference to the “racialand ethnic divide.” (Emphasis added.) Iam certainly aware of the history of racialdiscrimination in this nation, although itmust be said that, in this state, such dis-crimination has never been state sponsoredor maintained, and that our state has a longtradition of legal hostility to private racialdiscrimination. I am also aware of the cur-rent, and past, pattern of difficultiesbetween whites and blacks; no one wholives, works, reads and watches televisioncould be unaware of that pattern in the na-tion at large and in this state as well. Thispattern of difficulties is what I understandthe term “racial divide” to mean.

I am unaware, however, of an “ethnic di-vide,” at least in our state, that is analog-ous or similar to the racial dividebetween whites and blacks. I am un-aware of any similar history of ethnicdiscrimination in this state-private orpublic-or of any pattern of difficultiesbetween any particular ethnic groups.The majority assumes, apparently, al-though it does not appear in this record,that there is such a pattern, amounting toa divide, between Hispanics and-what?other ethnic groups? “whites” of otherethnic groups? African-Americans? Asi-an-Americans?

It is true that, historically, various ethnicgroups have, at various times, eithersought to assimilate themselves into ourstate's culture, or to add to that culture ina different way, namely, by eschewingassimilation and maintaining their ethniclanguage and customs, or by a combina-tion of both. I have not thought,







however, that this process constituted an“ethnic divide” that required a constitu-tional cure.

Thus, the majority apparently is aware ofa social phenomenon that escapes boththis record and me. The reference to“ethnic divide” may sound politicallycorrect-although I doubt even that, intoday's climate that celebrates culturaldiversity rather than ethnic assimilation-but its meaning is a mystery to me.

As this record overwhelmingly demonstrates,however, the trial court found the facts, not in ac-cordance with the plaintiffs' version of the evidenceon that claim, but in accordance with the defend-ants' version of the evidence. The trial court foundthat it is poverty, not racial or ethnic concentration,that accounts for the differences in educational out-comes and achievements between the children ofthe Hartford schools and those of the surroundingdistricts. The trial court also found, contrary to theplaintiffs' factual claims but in accordance with thedefendants' factual claims, that the measurementsregarding those differences, although valid for cer-tain intradistrict purposes, are not valid for measur-ing educational differences between differentschool districts.

Thus, there are no facts in the record to supportwhat the majority asserts, in an opinion long onrhetoric and short on reasoning, are the“devastating effects that racial and ethnic isolation... have had on [the plaintiffs'] education.” Indeed,the facts found by the trial court contradict that as-sertion.FN4 Under the facts found by the trialcourt, all of the adverse effects on the education*63of the plaintiffs result, not from their racial or eth-nic isolation-either in whole or in part-but fromtheir poverty. The majority, nonetheless, com-pensates for these factual shortcomings and for thetrial court's factual findings that are squarely con-trary to the result the majority seeks to achieve, byignoring those discomforting facts, and construct-ing a hitherto unknown constitutional **1299 the-

ory-hitherto unknown in the long history of this lit-igation, and hitherto unknown in our even longerstate constitutional history-that disregards all factsbut those that are undisputed.

FN4. Similarly, equally bereft of factualsupport in this record, and equally contra-dicted by the factual findings of the trialcourt, are the majority's references to “thesevere handicaps that burden these chil-dren's education” as a result of their racialand ethnic isolation; “the educationalimpairment that results from segregation inthe Hartford public schools”; and the“pervasive and invidious impact onschools” resulting from that isolation.

Thus, the majority opinion is, like the characters inPirandello's play, a result in search of arationale.FN5 This case was litigated in the trialcourt for six years. The trial court heard evidencefor eleven weeks. After a remand by this court tothe trial court for the purpose of supplementing thefactual record, the parties stipulated to 256 factsthat are undisputed. Moreover, pursuant to our re-mand, the parties presented to the trial court for res-olution a total of 676 disputed issues of fact-551 bythe plaintiffs and 125 by the defendants. With re-spect to these disputed issues of fact, the partieshad presented extensive and conflicting evidenceduring the eleven weeks of trial. As a result, the tri-al court made 161 factual findings, in addition tothe 256 stipulated facts. Those 417 factual findingsconstitute the factual basis for the constitutionalclaims advanced by the plaintiffs in the trial courtand renewed on appeal.

FN5. L. Pirandello, Six Characters inSearch of an Author (1922).

Those findings, however, particularly the 161 factsfound by the trial court that had been disputed, arecritically and fundamentally adverse to theplaintiffs' constitutional claims, as those claimswere presented both to the trial court and to thiscourt. Precisely because of that critical and funda-



mental factual adversity, however, the majority has,in an exercise of judicial *64 revisionism, recast theplaintiffs' constitutional claims so that the trialcourt's critical factual findings have become irrel-evant. Moreover, the assertion of the majority to thecontrary notwithstanding, it cannot be tenablymaintained that the constitutional theory created bythe majority was ever presented to the trial court orto this court. The defendants, therefore, have neverhad the opportunity to respond to that theory.

There is no question, therefore, that everyone in-volved in this case shares the same goal: the elimin-ation of racial and ethnic isolation in the publicschools of this state.FN6 Every desirable or wisepolicy, even every noble goal, however, is not ne-cessarily embodied in the constitution. The debate,therefore, is over whether that goal is constitution-ally mandated under the facts of this case. The ma-jority, by an act of judicial will, without fidelity tothe facts of the case or the claims of the parties, hasimposed a constitutional mandate and has usurped apolicy function that legitimately belongs to the le-gislature.

FN6. Although this case involves only theschool districts of the greater Hartfordarea, no one can pretend that the constitu-tional violation found by the majority doesnot also directly apply to the school dis-tricts of the greater New Haven andBridgeport areas, and perhaps other urbanschool districts as well. Furthermore, al-though the majority does not address them,the necessary implications of the majorityopinion must also apply to every schooldistrict in the state, as I discuss later in thisdissent.

II

THE PLAINTIFFS' CLAIMS AS DISCLOSED BYTHE RECORD IN THIS CASE

The majority opinionFN7 conceals the constitution-

al claims presented by the plaintiffs and respondedto by *65 the defendants in the trial court, and onappeal in this court. In addition, the majority hascobbled together, from disparate parts of theplaintiffs' claims, a constitutional theory that iswholly without support in the text, history and pur-pose of the constitutional provisions at issue in thiscase, or in the facts as found by the trial court. Inorder to appreciate these criticisms of the majorityopinion, it is necessary to summarize the plaintiffs'claims regarding a deprivation of an equal educa-tional opportunity, as disclosed by this record rather**1300 than as expounded by the majority, andthen to compare the majority's analysis to the re-cord. Only then is it possible to subject the factsfound by the trial court and the constitutional provi-sions at issue to a reasoned and dispassionate ana-lysis.

FN7. Because I agree with the majoritythat the plaintiffs' claims are justiciableand that there is state action, I do not ad-dress part II of the majority opinion. Mydiscussion, therefore, is confined to part IIIof the majority opinion, which addressesthe merits of the constitutional claim of adeprivation of equal educational opportun-ity, and part IV, which addresses the issueof a remedy for the deprivation that themajority finds.

The plaintiffs presented three constitutional claimsto the trial court: (1) the plaintiffs have been deniedtheir constitutional right to an equal educational op-portunity by virtue of their racial and ethnic con-centration, and by the concentration of poverty inthe Hartford school district, coupled with certaindisparities in educational resources and outcomesas compared to the suburban districts; (2) the ra-cial and ethnic concentration of the plaintiffs in theHartford school district constitutes a per se viola-tion of the education and equal protection clausesof the constitution, based solely on the undisputeddemographic facts of that concentration; and (3) theinadequacy of certain educational resources in the



Hartford school system constitute a denial to theplaintiffs of their constitutional right to a minimallyadequate education.FN8

FN8. For ease of reference throughout thisopinion, the claims are listed in the orderin which they were presented in theplaintiffs' appeal to this court, which is notthe same as the order in which they ap-peared in the complaint. Substantively,however, there is no difference betweenthe two sets of claims.

It is the plaintiffs' first claim-that of a deprivationof an equal educational opportunity-that concernsus *66 here, because that is the claim that the ma-jority sustains on the basis of the undisputed demo-graphic facts. It is indisputable, however, that theplaintiffs' claim of a deprivation of an equal educa-tional opportunity was based, not solely on thedemographic facts of racial and ethnic isolation andconcentration of poverty, but on those facts coupledwith other facts claimed by the plaintiffs to demon-strate disparities, in terms of educational resourcesand outcomes, between the Hartford and suburbandistricts. The plaintiffs' claim of the deprivation ofan equal educational opportunity was premised on afactual showing that, because of-in a cause and ef-fect sense-their racial and ethnic isolation, the con-centration of poverty in which they live, and thedisparities between the educational resourcesavailable in the Hartford schools and those avail-able in the suburban schools, the quality of theireducation, as measured by educational outcomes, issignificantly less than that of their suburban neigh-bors. Put another way, the plaintiffs undertook topersuade the trial court that, as a factual matter, allthree of these factors-racial and ethnic isolation,concentration of poverty, and disparities in educa-tional resources-have caused the quality of theireducation, as measured by the standards articulatedby this court in Horton I, to be inferior to that of thesurrounding suburban districts.

Thus, it was critical to the plaintiffs' equal educa-tional opportunity claim that they prove the follow-

ing facts: (1) they are racially and ethnically con-centrated-an undisputed fact; (2) they suffer fromthe effects of a concentration of poverty-also undis-puted; (3) the educational resources of the Hartforddistrict are less than those of the surrounding dis-tricts FN9 -a disputed fact; *67 and (4) the combin-ation of the first three cause lesser educational out-comes in Hartford when compared to the suburbandistricts-also a disputed fact. One cannot read thisrecord-both the trial court record and the appellaterecord-any other way.

FN9. It is difficult for me to square theplaintiffs' claim that the Hartford schooldistrict suffers from a deprivation of edu-cational resources, relative to those of thesurrounding districts, with the plaintiffs'simultaneous and consistent insistence thatthis is not a school funding case, as wasHorton I. Because resources are directlytied to funding, it is obvious to me that, atleast to the extent that their constitutionalclaim rests on a disparity in resources, itcomes squarely within the rubric of HortonI and, therefore, would also be subject tothe same requirements of proof as are re-quired under that rubric, namely, that thequality of education is diminished becauseof the diminished resources made avail-able. See Horton I, supra, 172 Conn. at637-38, 376 A.2d 359. Nonetheless, I amsatisfied that my difficulty is resolved be-cause the trial court found as a matter offact that the disparities in educational re-sources claimed by the plaintiffs do not ex-ist, and that finding is supported by theevidence.

Thus, at a minimum, proof of lesser educationaloutcomes as a result of racial and ethnic isolationwas essential to the plaintiffs' **1301 case, becausetheir constitutional theory of deprivation of anequal educational opportunity is based on the provi-sions of article first, § 20, of the state constitution,regarding race and ethnicity. In other words,






without either race or ethnicity, or both, as a causat-ive factor in lesser educational outcomes, theplaintiffs' case under article first, § 20, would fall,because those are the two protected categories un-der that article that the plaintiffs invoke as the basisof their constitutional theory.FN10 Thus, it was es-sential for the plaintiffs to establish in the trialcourt that their racial and ethnic isolation, eitheralone or in combination with the concentration ofpoverty, caused diminished educational outcomesrelative to those of the surrounding communities.

FN10. The plaintiffs have never claimed,either in the trial court or this court, thateconomic status-their concentration ofpoverty-alone entitles them to relief in thiscase.

It is also clear that the plaintiffs, the defendants andthe trial court considered these issues as questionsof fact to be established by evidence-both docu-mentary and by way of experts' opinions-and notquestions of *68 law. It is equally clear that theseare questions of fact and not of law. Moreover, theplaintiffs, the defendants and the trial court all un-derstood that the plaintiffs were required to provethe existence of a diminished educational opportun-ity caused by the plaintiffs' racial and ethnic isola-tion, in addition to the more generalized benefits ofan integrated educational system and burdens im-posed by a racially and ethnically isolated system.

In other words, the plaintiffs never claimed that thegeneral social benefits of racial and ethnic integra-tion and the burdens of racial and ethnic concentra-tion were sufficient to establish the factual founda-tion of their equal educational opportunity claim.The plaintiffs, the defendants and the trial court allunderstood that the plaintiffs were required, in or-der to come within the reasoning of Horton I, to es-tablish the specific facts of diminished educationaloutcomes, relative to the suburban districts, as aresult of their racial and ethnic and concentration.To corroborate this summary of the plaintiffs'claims, I now turn to a discussion of the factualbackground of this appeal.FN11

FN11. I regret that my discussion of thetrial court record is as lengthy and detailedas it is. It is because, however, the majorityhas so dramatically altered the nature ofthe claims presented to the trial court andto this court, and in doing so has so plainlyignored the voluminous trial court pro-ceedings to the contrary, that the lengthand detail is necessary.

A

The Plaintiffs' Claims as Presented to the TrialCourt

The plaintiffs had presented their claims in a tri-partite structure.FN12 Before presenting theirevidence, the plaintiffs*69 made an opening oralargument to the court explaining their claims andrelating those claims to the specific counts of theircomplaint. The plaintiffs specifically drew a sharpdistinction between the first and second counts oftheir **1302 complaint. As they explained theircase to the trial court, the first count dependedsolely on the legal claim that the term “segregation”in article first, § 20, of the state constitution encom-passed de facto as well as de jure segregation, andthat no evidence or facts regarding the effects ofthat segregation was necessary to prove the allega-tions of that count.FN13 They explained that thesecond count was, *70 unlike the first count, basedon a combination of facts: racial isolation; concen-tration of poverty; and inadequate educational re-sources; all combining to cause a quality of educa-tion inferior to that of the surrounding suburbandistricts.FN14

FN12. The plaintiffs had brought this ac-tion in May, 1989. After the defendantshad unsuccessfully challenged by motioncertain aspects of the plaintiffs' claims, thecase was tried for approximately elevenweeks in late 1992 and early 1993. There-after, in November, 1994, the plaintiffs



filed their revised complaint, upon whichthe case was to be decided by the trialcourt.

In April, 1995, the trial court issued itsmemorandum of decision, the gravamenof which was that the plaintiffs had notestablished the requisite state action asthe cause of the conditions of which theycomplained. Accordingly, the courtrendered judgment for the defendants.The plaintiffs promptly appealed. Beforeany briefs were filed in this court, weheld a special session in order to ensurethat the record would contain all the fac-tual findings necessary to a full consid-eration and determination of the appeal.Thereafter, on May 11, 1995, we re-manded the case to the trial court forsupplemental findings of fact, based onthe understandings that (1) there wereconsiderable areas of factual agreementbetween the parties, and (2) there werealso considerable areas of factual dis-agreement that had been litigated duringthe eleven weeks of trial. Thus, weordered that: (1) to the extent that theparties agreed on certain facts, theypresent those facts by way of stipulationto the trial court for its approval; (2) tothe extent that they disagreed on facts,each side present to the trial court a pro-posed finding of facts that it claimed tohave proven; and (3) the trial court issueits finding of facts to resolve the dis-puted facts as disclosed by the parties'proposed findings of fact. As indicatedlater in this dissent, the parties and thetrial court complied with our remand.

FN13. The plaintiffs stated: “Article First,Section 20, which was adopted in 1965 ...expressly prohibits both segregation aswell as discrimination. And notice theConstitution does not say ‘de jure segrega-

tion.’ It says ‘segregation.’ This is a defacto segregation case ... and de facto se-gregation is a form of segregation....”

“The complaint ... has four counts. Thefirst count basically says that de facto se-gregation is inherently unequal. And thisdraws on Brown v. Board of Education,[347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.873 (1954) ], that separate but equal isinherently unequal.

“Now ... we tend to forget, when we'rejust thinking about this first count, thatslavery, even in Connecticut, was notcompletely abolished until the end of theCivil War. And I'm saying Connecticut,not the South. In Connecticut it was leg-al until that time. So, to perpetuate-andfor the state to say there's nothing wrongwith a virtually all minority school sys-tem simply perpetuates this badge of in-feriority, and it does so in two ways.

“First of all, poor minorities have no op-portunity to interact with the white popu-lation. And the other side is, the whitepopulation has no opportunity to interactwith them, and so it just means more ra-cial stereotypes and economic stereo-types on both sides.

“More fundamentally ... because theEqual Protection Clause expressly pro-hibits segregation, what difference doesit make what the evidence shows aboutits effects? It's illegal, regardless of whatthe effects of integration are. Integrationis required as a matter of principle by theConnecticut Constitution, and thatshould be the end of that.

“So, Your Honor, as we present evid-ence over the next few weeks, on thesecond through the fourth counts of thecomplaint about the ill effects of segreg-







ation, Your Honor should not lose sightof the first count, for the first count re-quires no evidence other than the fact ofsegregation....”

It is true that, as this transcript indicates,the plaintiffs initially analogize the firstcount to the concept of inherent inequal-ity derived from the principle of“separate but equal” that the UnitedStates Supreme Court condemned inBrown v. Board of Education, supra, 347U.S. at 495, 74 S.Ct. at 692. It cannot betenably maintained, however, that thesefew oral statements, taken in their imme-diate context and in the context of all ofthe subsequent instances in which theplaintiffs articulated their claims to thetrial court and this court, support thereading of the plaintiffs' claim of equaleducational opportunity created by themajority. Indeed, I do not read even themajority opinion to rest on the extravag-ant claim-wholly unsupported by anyevidence in this record-that the feelingsof inferiority inflicted on the schoolchil-dren in Brown by the state mandatedseparation of the races is present in anyof these plaintiffs as a result of demo-graphic factors over which the state hasno control. As I discuss later in this dis-sent, moreover, Brown is not pertinenthere generally; and even the badge of in-feriority rightfully condemned in Brownrested on evidence in and findings of theBrown trial court, both of which are sig-nificantly absent from this record.

Moreover, and “more fundamentally,” asthe plaintiffs put it to the trial court, theirclaim under the first count rested, not onany such considerations, but on themeaning of “segregation” in article first,§ 20. I also discuss the merits of thatclaim later in this dissent.

FN14. The plaintiffs stated: “[T]he secondcount has to do with whether or not segreg-ation is unequal as a matter of fact, wheth-er racial and economic isolation is unequalas a matter of fact. Now ... our proof ...[will show] the facts of racial isolation,[combined] with high concentration ofpoverty, combined with inadequate re-sources.”

In the posttrial proceedings-both by way of theirbriefs and their oral arguments-the plaintiffs reiter-ated*71 that their claim of a deprivation of an equaleducational opportunity was premised on a factualinquiry into the actual quality of the educationprovided to them, relative to that provided to thestudents of the suburban districts. They repeatedlyemphasized that they had proven that their racialand ethnic isolation, coupled with their inadequateeducational resources and their concentration ofpoverty, caused the quality of their education to beinferior to that provided to their suburban counter-parts.FN15 In those proceedings, moreover,**1303 they repeatedly contrasted their equal edu-cational*72 opportunity claim with their claim thatde facto segregation was per se unconstitutional,making clear that the per se segregation claim wasnot an equal educational opportunity claim.FN16

FN15. The plaintiffs claim that “the ex-treme levels of racial and economic se-gregation in Hartford, along with well-documented deficiencies and disparities ineducational resources and outcomes, viol-ate plaintiffs' fundamental right to equaleducational opportunity.” (Emphasis ad-ded.) In discussing this claim, the plaintiffsreferred to the testimony of many wit-nesses to buttress their position that theywere not receiving an equal educationalopportunity. They argued that the racialand ethnic isolation in the Hartfordschools, combined with the inadequate andunequal educational conditions, deprivedthem of an equal educational opportunity.






They stated: “In light of the severe educa-tional inequities imposed on a student pop-ulation already suffering serious harmsfrom extreme levels of racial and economicisolation, it cannot be claimed thatplaintiffs and other Hartford students arereceiving equal educational opportunity.”(Emphasis added.) In their posttrial replybrief, the plaintiffs identified “[t]he centralissue before this court [as] whether themost racially and economically isolatedchildren in the state who are performingthe worst academically with the leastamount of resources are entitled to judicialprotection to ensure that their constitution-al right to [an] equal educational opportun-ity is realized.” (Emphasis added.)

In their closing oral arguments to the tri-al court, the plaintiffs again made clearthe factual basis of their equal educa-tional opportunity claim. They arguedthat the effect of three factors, taken to-gether-racial isolation, concentration ofpoverty and inadequate resources-de-prives them of an equal educational op-portunity. Later, they quoted from theirposttrial brief: “The facts are that Hart-ford children go to school in poverty-concentrated and racially isolatedschools without resources. Even forhigh-achieving students, the system's ra-cial isolation and the inadequate re-sources have harmful effects....Plaintiffs presented evidence on the longterm effects of poverty concentration, ra-cial segregation, and inadequate levelsof resources, as well as the educationalinequities separating Hartford and itsneighboring districts.” (Emphasis ad-ded.)

FN16. The plaintiffs claim that “the ex-treme levels of racial segregation in theHartford area constitute a per se violation

of Article I and Article VIII.” They didnot phrase this claim in terms of a depriva-tion of an equal educational opportunity.They claimed that the insertion of the term“segregation” in article first, § 20,provided an “independent basis” uponwhich they should prevail.

In their closing oral arguments, theplaintiffs again distinguished their equaleducational opportunity claim from theirper se segregation claim. Their counselstated: “I spent a lot of time on the termsegregation and discrimination in articlefirst, § 20, and I just want to make itclear that our primary argument is underHorton v. Meskill [and the] equal protec-tion clause in its traditional sense, plusarticle eight, § 1, namely every studentin the state is entitled to an equal educa-tional opportunity.” Later, they reiter-ated that their per se segregation claimdiffered from their equal educational op-portunity claim: “Under our first count,the racial segregation itself violates art-icle first, § 20 of the Connecticut consti-tution in the exercise of the fundamentalright to education.”

B

The Remand Proceedings in the Trial Court

Upon our remand, the parties entered into a stipula-tion of 256 facts. Each side also presented to the tri-al court those disputed facts that it claimed to haveproven. From the plaintiffs' proposed factual find-ings, it is clear that they sought to persuade thecourt to find facts that supported their claim that thequality of the education provided the Hartfordschoolchildren was inferior to that of the suburbandistricts, and that this inferiority was caused bytheir racial and ethnic isolation combined with theconcentration of poverty in the district.FN17 The




defendants' proposed findings, by contrast,reflected*73 their view that the evidence proved that it wasthe plaintiffs' poverty, and not their racial and eth-nic concentration, that caused the **1304 educa-tional deficiencies of which the plaintiffs com-plained.

FN17. Our May 11, 1995 order directedthe parties to “identify, by appropriateheadings, those legal claims presented tothe trial court....” The plaintiffs listed 121disputed facts that they claimed to haveproven in the trial court, under the heading,“Does the Racial, Ethnic and EconomicIsolation and Poverty ConcentrationCoupled with Disparities in Resources andOutcomes Violate Plaintiff's Right toEqual Educational Opportunities UnderArticle Eighth, Section 1 and Article First,Sections 1 and 20?” Those 121 claimedfacts are grouped under subheadings thatinvolve matters such as: the socioeconomicstatus of the Hartford metropolitan areastudents; the links between racial and eco-nomic isolation; the effects of integration;the disparities in educational resourcesbetween the Hartford and suburban dis-tricts, including staffing and curriculum,instructional services, supplies, library re-sources, equipment, and plants and facilit-ies; and the disparities between the Hart-ford and suburban districts in educationaloutcomes, including mastery test scores,credits earned, scholastic aptitude testscores, graduation and drop-out rates, andpatterns of postsecondary activities. Theseare the facts that the plaintiffs sought tohave the trial court find in support of theirconstitutional claim that they have beendeprived of an equal educational opportun-ity.

C

The Findings of Fact Regarding Equal Educational

Opportunity

Thereafter, the trial court issued its “Finding,”which constituted its factual determinations “on thedisputed facts disclosed in the proposed findings offact submitted by the parties....” These findings in-dicate that the trial court was persuaded by the de-fendants' factual claims, and not by the those of theplaintiffs.

Many of the trial court's findings of fact are directlypertinent to the plaintiffs' claim of a deprivation ofan equal educational opportunity. The trial courtfound as follows. Historically, racial or ethnicminority group membership has been associatedwith being educationally disadvantaged becausemembers of those groups have failed to succeed inschools at the same levels as most members of themajority group. The generally poorer academic per-formance of black and Hispanic youngsters is ex-plained for the most part by the social and econom-ic conditions under which they and their familieslive.FN18

FN18. The court also found that two otherfactors that generally explain any poorerperformance of minority students, namely,the failure of a school system to offer cul-turally sensitive programs and patterns ofinstitutional discrimination reflecting dis-crimination in society as a whole, are notpresent in and do not apply to the Hartfordpublic schools.

*74 The court found further as follows: “It ispoverty and not race that is a principal causal factorin lower educational achievement.” The problemsof the Hartford schools are compounded by the factthat minorities in the inner cities are disproportion-ately poor, and the “real correlation with academicachievement is socioeconomic class rather thanrace....” The fact that the students come from poorfamilies “in and of itself is a significant problem inthe schools.... The reason that children who live inpoverty do not do well in statewide academic test-



ing is because they are poor and disadvantaged andnot because they are an ethnic or racial minority,because poor minority children exhibit the samepatterns as those of their poor white counterparts,and poverty is the strongest predictor of poor aca-demic achievement.” Moreover, the concentrationof poverty may adversely affect academic achieve-ment over and above the effect of family poverty.The socioeconomic status of schoolchildren dictatestheir academic performance. Thus, the improve-ment in the socioeconomic status of blacks explainsthe reduction by almost one half of the achievementgap between black and white students nationallybetween 1970 and 1990. The trial court also spe-cifically found that “[v]irtually all of the differ-ences in performance between Hartford studentsand those in other towns, as well as differences incollege attendance, can be explained by differencesin socioeconomic status and the background factorsthat socioeconomic status represents.”

The trial court also found that a higher concentra-tion of students “at risk” may affect the achieve-ment level of students in a particular school district.Thus, given two groups of students equal in all re-spects except the incidence of students with “atrisk” factors such as low *75 birth weight andmothers on drugs at birth, the group with the higherincidence of those “at risk” factors will performmore poorly in school than the other group.

The trial court further found that the level ofachievement that should be attained by the studentsin a particular district cannot be assessed withoutconsidering the conditions that exist in the districtthat hinder academic achievement. Examples ofthose conditions are: the “mobility” of the students,namely, the frequency of their moving from schoolto school during a school year or from one year tothe next; limited English proficiency of certain stu-dents; and the students' socioeconomic status. Thecourt found that, in order to understand the qualityor effectiveness of a particular educational pro-gram, it is necessary to separate the disadvantagesthat students bring to school with them from the ef-

fects of the program itself. Moreover, it is neces-sary to separate the effects of poverty from the ef-fects of racial isolation. Based on expert testimony,the court found that there are ways in which theseparate effects of **1305 racial isolation andpoverty can be measured statistically. Theplaintiffs' experts did not employ these statisticaltechniques.

The trial court also made certain findings regardingthe state mastery test scores. The court found thatthe scores serve two purposes: (1) to inform dis-tricts so that they can improve their programs, cor-rect deficiencies and plan for the future; and (2) toprovide a basis for funding to districts that performbelow remedial standards. This testing program wasnot designed for interdistrict comparison, but toprovide information about individual students andprograms within particular districts, and to triggerremedial services to students in need of them.Moreover, the trial court found, it would be an ab-use of the purposes of the testing program to usethe scores as the basis for comparing the quality ofthe education between schools or schoolsystems.*76 The test results should not be seen asprimarily caused by racial isolation in the schoolsbecause the results could be related to many otherfactors. Thus, it is inappropriate to use the masterytest data as a basis for drawing conclusions aboutthe quality of education in Hartford without takinginto account the effects of other important vari-ables, such as socioeconomic status, early environ-mental deprivations, and diminished motivation tosucceed academically. Other variables that contrib-ute to depressed test scores of Hartford schoolchil-dren that must be considered are the number of stu-dents with limited English proficiency and the ex-traordinary mobility of the student population.

The trial court also found that Hartford students andthose in the surrounding towns are scoring at thelevel to be expected if the dramatic differencesbetween them in poverty levels are taken into ac-count. The disparity in test scores does not indicatethat Hartford is doing an inadequate job of educat-



ing its students or that its schools are failing, be-cause the test scores, based on the relevant so-cioeconomic factors, are at the approximate projec-ted level when adjustments are made for thosefactors. Teachers and administrators have no con-trol over where their students live or the conditionsunder which they live. They are not in a position toremedy the disadvantages that their students bringwith them when they enter the educational system.Thus, the court found that there are no educationalstrategies or initiatives that can fully deal with thecomplex social issues that produce inequality ofperformance and undermine education, becausehunger, parental neglect, crowded and substandardhousing, and inadequate employment opportunitiesdisproportionately attack minority children in ourstate and divert them from educational opportunity.

This, then, is the factual record upon which thiscase was presented to and decided by the trial court,and *77 upon which the appeal came to this court. Iturn, next, to this appeal as presented to us by theplaintiffs.

D

The Plaintiffs' Case as Presented to This Court onAppeal

In their initial and reply briefs in this court, theplaintiffs made crystal clear that the three constitu-tional claims that they were presenting to us for ouradjudication coincided perfectly with the threeclaims that they had presented to the trial court. Forease of reference, and more importantly for fidelityto the plaintiffs' own understanding and characteriz-ation of their claims, I refer to the three claims as:(1) an equal educational opportunity; (2) per se se-gregation; and (3) a minimally adequate education.The plaintiffs' briefs make equally clear that thefirst and third of these claims, namely, an equaleducational opportunity and a minimally adequateeducation, are based on factual claims regarding,not only the undisputed facts of the degree of racial

and ethnic concentration in the Hartford schoolsbut, critically and essentially, the plaintiffs' versionof the disputed facts regarding the differences ineducational outcomes and achievements in theHartford schools relative to the surrounding suburb-an school districts, and the causes of those differ-ences. Thus, the plaintiffs' equal educational oppor-tunity claim is squarely based on a combination offactual matrixes: the facts that demonstrate the ra-cial and ethnic isolation of the Hartford schools,combined with what the plaintiffs claim to have**1306 established in the trial court as the educa-tional deficiencies that are caused by thatisolation.FN19

FN19. In contrast, the second claim, that ofper se segregation, is a purely legal claim,resting solely on the meaning of the term“segregation” in article first, § 20, as ap-plied to the right to a free public educationguaranteed by article eighth, § 1, of thestate constitution. This claim, unlike theclaims of a lack of an equal educationalopportunity and a lack of a minimally ad-equate education, rests solely on the undis-puted facts of racial and ethnic concentra-tion. Under this claim, and only under thisclaim, the plaintiffs argue that the term“segregation” as applied to education in-cludes de facto racial and ethnic concentra-tion to the degree present in the Hartfordschools. Moreover, the plaintiffs' briefsmake clear that this legal claim is separateand distinct from the claims of a depriva-tion of an equal educational opportunityand of a deprivation of a minimally ad-equate education, and has nothing to dowith such deprivations.

*78 The plaintiffs set out the nature of their claimsdefinitively at the very beginning of their appellatebrief: “Hartford children attend schools that are themost racially, ethnically, and economically isolatedin the state. These schools have the least educa-tional resources and suffer from the worst academ-



ic performance. The cumulative effects of these in-equities deprive Hartford's children of the prepara-tion necessary to join the mainstream of society. ”FN20 (Emphasis added.)

FN20. The plaintiffs follow this introduc-tion with an explanatory footnote so thatwe would have no trouble understandingtheir argument, relating the counts of theircomplaint specifically to their issues raisedon appeal. They state as follows in page 1,footnote 1, of their appellate brief: “TheComplaint is in [three] counts: first, thatbecause Hartford metropolitan area schoolsare segregated on the basis of race, ethnicbackground, and socioeconomic status,and because the Hartford schools are edu-cationally deficient when compared to thesuburban schools, defendants have failedto provide plaintiffs an equal opportunityto a free public education as required byArticle First, §§ 1 and 20 and ArticleEighth, § 1 of the Connecticut Constitu-tion, (Issue II on appeal); second, that thesharp segregation on the basis of race andethnic background in Hartford metropolit-an area public schools, by itself, violatesArticle First, §§ 1 and 20 and ArticleEighth, § 1 of the Connecticut Constitu-tion, (Issue III on appeal); third, that theHartford public schools are educationallydeficient and fail to provide a majority ofHartford schoolchildren with a minimallyadequate education, measured by thestate's own standards, and this violates Art-icle First, §§ 1 and 20 and Article Eighth, §1, (now Issue IV)....” (Emphasis added.)

With this introduction in mind, I turn now to theplaintiffs' own more detailed explication of theirclaim of a deprivation of an equal educational op-portunity FN21 *79 as presented in their two briefsin this court. This explication is derived directlyfrom, and is identical to, that claim as ultimatelypresented to the trial court for adjudication. The

plaintiffs correctly point out that the right to anequal educational opportunity was recognized bythis court in Horton I. The plaintiffs then accur-ately pose the question under this claim: “As a legalmatter, this case falls squarely under [HortonI],FN22 and the question before this Court iswhether the undisputed condition of racial and eco-nomic isolation of the public schools, coupled withthe undisputed and extreme disparities in educa-tional resources afforded Hartford's schoolchil-dren, violate plaintiffs' constitutional right to anequal educational opportunity.” (Emphasis added.)

FN21. Because the majority did not ad-dress the plaintiffs' claim of a deprivationof a minimally adequate education, I donot address that claim in this part of thisdissent, and do so later in my considerationof the plaintiffs' claims as they are prop-erly before us.

FN22. In light of the plaintiffs' repeated in-sistence that this is not a school fundingcase, however, this reference to Horton Ican only be understood as an argument thatthe reasoning of Horton I, transplantedfrom the realm of financing inequities tothe realm of racial and ethnic concentra-tion, applies to this case. The plaintiffs'subsequent discussion bears out this under-standing.

The plaintiffs then explain precisely why theymaintain that their right to such an opportunity hasbeen violated. Under the heading, “The Segregated,Economically Isolated and Unequal Conditions inHartford Metropolitan Area Public Schools ViolatePlaintiffs' Right to an Equal Educational Opportun-ity”; (emphasis added); the plaintiffs, quoting fromHorton I, state: “Equality of educational opportun-ity is ascertained by comparing the quality of edu-cation provided in the school districts. In Horton I,this court identified criteria for measuring the qual-ity of education, including: ‘(a) size of classes; (b)training, experience and background**1307 ofteaching staff; (c) materials, books and supplies; (d)



school philosophy and objectives; (e) type of localcontrol; (f) test scores as measured against ability;(g) degree of motivation and application of the stu-dents; (h) course offerings and extracurricularactivities.’ Horton I, [supra, 172 Conn. at 634, 376A.2d 359].”

*80 With this legal, and appropriate, standard inplace for the evaluation of a claim of a deprivationof an equal educational opportunity, the plaintiffsthen attempt to persuade us that, as demonstratedby the evidence presented in the trial court, theyshould prevail on this claim. They attempt to do so,however, not by relying on the general harms asso-ciated with a racially and ethnically isolated schoolsystem or on the general benefits of an integratedschool system, but by arguing that the trial court'sadverse factual findings were clearlyerroneous.FN23

FN23. The plaintiffs assert: “The court be-low erroneously found that students in theHartford metropolitan area are providedequal educational opportunities.” In sup-port of this assertion, the plaintiffs contendthat the trial court “committed error bycompletely bypassing analysis of disparit-ies in the provision of materials, books andsupplies and course offerings, by similarlyneglecting the wide disparity in test scores,and by disregarding the impact of racialand ethnic isolation and the concentrationof poverty in reaching [its] conclusion.”(Emphasis added.) Indeed, in the trial courtthe plaintiffs had presented expert testi-mony regarding the educational impact ofracial and ethnic isolation, and theplaintiffs complain in this court that the tri-al court was required to find accordinglybecause, in the plaintiffs' view, there was“no evidence in the record to show that allof the plaintiffs' experts were unworthy ofbelief.”

In the same vein, the plaintiffs' continuetheir attack on the trial court's findings

regarding the quality of the educationprovided to the plaintiffs by referringback to a detailed summary of their evid-ence in the trial court. At pages 7through 24 of their appellate brief, underthe heading “Unequal and InadequateEducation,” the plaintiffs present a de-tailed summary of their trial court evid-ence that, they maintain, demonstrates asa factual matter that they are being de-prived of an equal educational opportun-ity as a result of their racial and ethnicisolation. This factual recitation furtherdemonstrates that the plaintiffs' claim re-garding an equal educational opportunityrests on a factual matrix that combinesthe racial and ethnic isolation of theHartford district, the claimed economicplight of the district and the educationaldeficiencies claimed to result from thatisolation and plight.

In their reply brief in this court, the plaintiffs rein-force this understanding of the basis of their equaleducational opportunity claim.FN24 The plaintiffsthen, in order *81 that we not be confused abouttheir claims, reiterated the three claims that theyhad presented in this case, and the doctrinal differ-ences between them. “First, plaintiffs claim that theextreme levels of racial segregation and the concen-tration of poor children in the Hartford schools,along with well-documented deficiencies and dis-parities in educational resources and reflected bythe vast gulf in outcomes, violates plaintiffs' funda-mental right to an equal educational opportunity.Second, plaintiffs claim that the extreme levels ofracial segregation in the Hartford area constitute aper se violation of Connecticut's constitution.Third, plaintiffs claim that the conditions in theHartford schools violate plaintiffs' right to a minim-ally adequate education, pursuant to Article Eighth,§ 1 and plaintiffs' due process rights.”

FN24. In their reply brief, the plaintiffsstate: “The trial court ... succumbed to [an]






error of law by failing to consider the total-ity of circumstances facing Hartfordschoolchildren and how racial segrega-tion, the concentration of poor children inthe schools, and disparities in educationalresources, including facilities and equip-ment, among other things, deprive childrenof substantially equal educational oppor-tunities. Notwithstanding defendants' por-trayal, this case is not simply about the ex-treme racial isolation of the Hartfordschools, although that, too, is a ground forrelief. Neither is the case solely about thedeficiencies in educational resources or thevast differences in educational outcomes.

The plaintiffs' claim of denial of equaleducational opportunity is about all ofthese harms together, just as they are ex-perienced every day in the classroom.”(Emphasis added.)

To summarize: the plaintiffs' first claim is theirclaim of a deprivation of equal educational oppor-tunity as articulated in Horton I. As a factual mat-ter, this claim rests on a complex factual matrix: theundisputed facts regarding the racial and ethnicconcentration, and the concentration of poverty, inthe Hartford district; the disputed facts regardingthe claimed inadequate educational resources in theHartford district; and the disputed causal effect ofthat combination of **1308 factors on the educa-tional outcomes claimed to be prevalent in the Hart-ford district.

The plaintiffs' second claim is based entirely on thelegal theory that the term “segregation” in articlefirst, *82 § 20, means de facto segregation. As afactual matter, this claim rests on only the undis-puted facts regarding the racial and ethnic concen-tration in the Hartford schools, to the exclusion ofthe disputed facts regarding the claimed disparitiesbetween the educational resources and outcomes ofthe Hartford school district, on one hand, and theresources and outcomes of the suburban school dis-tricts, on the other hand.

The plaintiffs' third claim is their claim of adeprivation of a minimally adequate education un-der article eighth, § 1, of the state constitution asarticulated in Horton I. This claim rests on dis-puted facts regarding certain claimed inadequaciesin the Hartford school district.

Having summarized the plaintiffs' claims as dis-closed by this voluminous record, I will next ana-lyze the majority opinion in light of the record inthis case. I turn, therefore, to that task.

III

THE FUNDAMENTAL FLAWS IN THE MAJOR-ITY OPINION

A

The Majority's Adjudicative Process

The first flaw in the majority opinion involves theadjudicative process by which the opinion was cre-ated. As the record demonstrates, the constitutionaltheory conceived by the majority bears only apassing resemblance to the claims of the plaintiffsas disclosed by the record. The majority's theory isa combination of the legal theories presented in theplaintiffs' first and second claims, completely shornof the facts that the trial court found after six yearsof litigation. The theory upon which the majorityopinion is based, therefore, is brand new and wasnever advocated by the plaintiffs.

*83 The majority asserts, nonetheless, that “[t]heconstitutional implications raised by these allega-tions were fully argued before the trial court, andwere fully briefed by the parties before this court.”FN25 This is like saying that water is the samething as hydrogen and oxygen because water is theresult when the two gases are combined in a certainproportion.



FN25. I can find nothing in this volumin-ous record to support this assertion of themajority, insofar as it purports to refer tothe claim of equal educational opportunity.Indeed, the majority does not, because itcannot, quote or summarize any part of thisrecord that supports the assertion.Moreover, the assertion is curious, to saythe least, because the majority does notstate that the theory of equal educationalopportunity that it has created was briefedin the trial court or this court. Rather, themajority asserts that “[t]he constitutionalimplications” of that theory were ad-dressed. I do not know what that means.

It may refer to the fact that the partiesfully briefed and argued the question ofthe meaning of “segregation” in articlefirst, § 20. The parties addressed that is-sue, however, as part of the plaintiffs'per se segregation claim, which theplaintiffs themselves had separated fromtheir equal educational opportunityclaim. To the extent that this legal issueis in the case under that rubric, however,I acknowledge that it has been fully ad-dressed by the parties. In my view, thatdoes not substitute for giving the partiesan opportunity to address its con-sequences for a claim, based on HortonI, that the plaintiffs have been deprivedof an equal educational opportunity.

The majority's theory of a lack of an equal educa-tional opportunity is a hybrid of two disparate partsof the plaintiffs' case, as argued to and litigated inthe trial court and as argued and briefed in thiscourt. One part of the hybrid is the legal theory ofthe plaintiffs' first claim, namely, that under HortonI, they have been deprived of an equal educationalopportunity, but without the factual matrix that theplaintiffs themselves presented to support that the-ory. The second part of the hybrid is the theory ofthe plaintiffs' second claim, namely, that

“segregation” in article first, § 20, means de factoas well as de jure segregation when applied to edu-cation. That theory, however, does not constitute anequal educational opportunity claim, as understoodand presented by the plaintiffs throughout this case,as *84 understood and responded to by the defend-ants throughout this case, and as briefed and arguedin this court.

Moreover, I confess that, having read the briefscarefully and having participated in **1309 the oralargument with great concentration, the majority'stheory of a deprivation of an equal educational op-portunity was a complete surprise to me. I can onlywonder about the reaction of the defendants, whofor the past six years have been defending this caseon the basis that the record demonstrates, ratherthan the basis on which the majority has decidedthe case. In fact, I suspect that even the plaintiffsare surprised that they have prevailed on a theory ofa deprivation of an equal educational opportunitythat they did not present, and that renders whollyimmaterial the entire factual matrix that they didpresent, appropriately albeit unsuccessfully, underthat doctrine as articulated in Horton I.

The newness of the majority's constitutional theoryis not only demonstrated by comparing the recordto the majority opinion, it is demonstrated by cer-tain language in the majority opinion itself. Whenthe majority asks, at the beginning of its analysis,whether “the plaintiffs' complaint encompass[es][the constituent elements of the affirmative consti-tutional mandate to provide all public schoolchil-dren with a substantially equal educational oppor-tunity]”, it asks a question that no one else has everasked us to answer, namely, whether the plaintiffs'complaint is legally sufficient.FN26 In elaboratingon that question, moreover, the majority's languageis curiously but revealingly qualified: it refers tothe plaintiffs' claim “as we have defined it.” Thisquestion and qualification are necessitated solely by*85 the fact that the majority's, rather than theplaintiffs', theory of the equal educational oppor-tunity claim has now become dispositive, and that



this theory was never in this case until the majorityissued its opinion.

FN26. The majority also asks whether theplaintiffs' pleadings “fairly can be read toencompass such a challenge.” It concludesthat “the plaintiffs can succeed if any oftheir claims falls within the constitutionalright as we have defined it.” (Emphasisadded.)

Although prior to trial the defendants challengedthe legal sufficiency of the plaintiffs' complaint,they lost that challenge and, except for the argu-ments regarding justiciability and state action, didnot renew it on appeal. Moreover, at no time in thisappeal was the question raised of whether theplaintiffs' pleadings stated a cognizable claim. Atno time in this appeal was the question raisedwhether the plaintiffs' pleadings could be read tosupport their constitutional challenge. The solereason that these questions and these qualificationsbecame necessary is that majority has recast the es-sential nature of the plaintiffs' complaint, as presen-ted by the plaintiffs at trial and on appeal, in orderto fit the majority's predetermined outcome.

This method of adjudication is fundamentallyflawed for several reasons that call into question theintegrity of the majority decision. First, it is egre-giously unfair to the defendants. Having defendedthis case for six years in the trial court, and havingresponded to the plaintiffs' appeal on the legal andfactual bases presented by the plaintiffs, the defend-ants have not had the opportunity to respond to thenew theory of equal educational opportunity fash-ioned by the majority either by evidence or argu-ment in the trial court, or by briefs and oral argu-ment in this court. Indeed, we will all have to won-der what evidence or arguments the defendantswould have produced in the trial court and thiscourt had they known that this hybrid theory wasthe basis of the equal educational opportunity claimto which they were required to respond. FN27

FN27. The majority asserts simply that “as

a pleading matter, [the plaintiffs'] claimswere stated in two counts rather than inone.” On the contrary, the majority hastaken two separate and independent claims,chopped them up and recombined them in-to a third, and different, claim that no one-not even the plaintiffs-had ever made.

*86 Second, the majority's treatment of theplaintiffs' pleadings in this case turns our traditionaltreatment of pleadings on its head, and adds to theunfairness to the defendants. It is true that, underour modern jurisprudence, we read pleadings“broadly and realistically, rather than narrowly andtechnically.... Beaudoin v. Town Oil Co., 207Conn. 575, 587-88, 542 A.2d 1124 (1988);Fuessenich v. DiNardo, 195 Conn. 144, 150-51,

487 A.2d 514 (1985). As long as the pleadingsprovide sufficient notice of the **1310 factsclaimed and the issues to be tried and do not sur-prise or prejudice the opposing party, we will notconclude that the complaint is insufficient to allowrecovery.” (Internal quotation marks omitted.)Normand Josef Enterprises, Inc. v. Connecticut Na-tional Bank, 230 Conn. 486, 496, 646 A.2d 1289(1994).

The application of that principle cannot, however,save what the majority has done here. That prin-ciple generally applies before trial to the construc-tion of a complaint when it is challenged for legalsufficiency; see, e.g., D'Ulisse-Cupo v. Board ofDirectors of Notre Dame High School, 202 Conn.206, 220-21, 520 A.2d 217 (1987); during trial, to adetermination of whether certain evidence shouldbe admitted as within, or excluded as beyond, thefair boundaries of the complaint; see, e.g., Farrellv. St. Vincent's Hospital, 203 Conn. 554, 557-58,525 A.2d 954 (1987); and posttrial, where theparties have in fact litigated the case in a posturethat includes the challenged theory, and there hasbeen no prejudice or surprise. See, e.g., NormandJosef Enterprises, Inc. v. Connecticut NationalBank, supra, 230 Conn. at 497-98, 646 A.2d 1289.The principle does not apply in this case, however,

























where the majority has, after the trial and after ap-pellate briefs and arguments, altered the theory ofthe complaint on which all of the parties *87 haverelied, and then, without notice to anyone, has de-termined that the complaint supports the alteredtheory. That process violates the fundamental prin-ciple that “the pleadings provide sufficient notice ofthe facts claimed and the issues to be tried and donot surprise or prejudice the opposing party....”Id., at 496, 646 A.2d 1289.

The third flaw in the process by which the majorityreached its decision is that, having decided to con-sider a new theory of the case, the court has not af-forded the parties the opportunity to file supple-mental briefs or to present further oral argument. Inrecent years, we have engaged in the practice of re-questing supplemental briefs when, after oral argu-ment, we have determined that the parties have notsufficiently addressed an issue or potentially dis-positive theory of the case that surfaced either inthe oral argument or in the process of our delibera-tions. See, e.g., State v. Troupe, 237 Conn. 284,286-87 n. 4, 677 A.2d 917 (1996) (continued viabil-ity of constancy of accusation doctrine); Williamsv. Best Cleaners, Inc., 235 Conn. 778, 784, 670A.2d 294 (1996) (definition of disability underGeneral Statutes § 31-349), superseded, 237 Conn.490, 677 A.2d 1356 (1996); Jackson v. Commis-sioner of Correction, 227 Conn. 124, 130, 629 A.2d413 (1993) (appropriate standard in habeas pro-ceeding by which to determine effect of prior fail-ure to raise constitutional claim); State v. Oquendo,223 Conn. 635, 657, 613 A.2d 1300 (1992)(whether denial of motion to suppress can be sus-tained under abandonment doctrine). Indeed, wehave reversed the Appellate Court for disposing ofan appeal on the basis of a plain error analysis thatneither party had raised, without first giving theparties the opportunity to brief the perceived plainerror claim. See, e.g., Lynch v. Granby Holdings,Inc., 230 Conn. 95, 98-99, 644 A.2d 325 (1994).

There are two reasons for this postargument appel-late procedure: (1) fairness to the parties suggests

that they be confronted with a potentially disposit-ive theory *88 that they had not had the prior op-portunity to discuss; and (2) we are more likely tobe correct in our judgments if they follow adequatebriefing. I acknowledge that we have not uniformlyfollowed this procedure, and that there is no rulethat requires that we do so. Indeed, there are casesin which, for various reasons, it is appropriate thatwe not do so.

This case, however, is the paradigm of when sup-plemental briefing and argument would have beenappropriate. This case may be the most significantruling of this court in this century. I can think of noother case decided by this court that will have moreimpact on the daily lives of our citizenry than thiscase. Having ordered supplemental briefing and ar-gument in cases involving issues of the continuedviability of an evidentiary doctrine, the proper con-struction of second injury fund terminology, preser-vation of an issue for habeas review and the relev-ance of abandonment to the reasonable expectationof privacy, we should have done so in this case, theenormous public importance of **1311 which de-mands the highest degree of both fairness to theparties and confidence in the correctness of the out-come.

The use of that prudent appellate procedure wouldhave been particularly appropriate in this case. In acase in which we exercise the judicial power to in-terpret a statute or explicate the common law, if weare incorrect, the General Assembly is free to enactlegislation correcting our error. In a case such asthis, however, in which this court incorrectly inter-prets our constitution, the only remedy of thepeople is the painful process of constitutionalamendment.

Although, in my view, these flaws in the majority'sprocess of decision-making seriously undermine theintegrity of its opinion, the more fundamental ques-tion is whether, nonetheless, the reasoning of themajority *89 opinion is sound. It is not. I turn next,therefore, to the substantive flaws in the majorityopinion.
























B

The Misapplication of Horton I

The first substantive flaw in the majority opinion isthat it misapplies the principal precedent uponwhich the plaintiffs' equal educational opportunityclaim is based, namely, Horton I. It does so by dis-regarding the factual underpinning of Horton I,thereby rendering irrelevant the critical factual dif-ferences between this case and Horton I. Thus, themajority demonstrates its lack of fidelity to HortonI by severing the plaintiffs' claim from its jurispru-dential roots and by shedding its essential factualunderpinnings.

In Horton I, this court held that the educationclause; article eighth, § 1; and the equal protectionclauses; article first, §§ 1 and 20; require “that thestate provide a substantially equal educational op-portunity to its youth in its free public elementaryand secondary schools.” Horton I, supra, 172Conn. at 649, 376 A.2d 359; see also Horton v.Meskill, 195 Conn. 24, 34-35, 486 A.2d 1099(1985)(Horton III ) (characterizing Horton I as rest-ing on article eighth, § 1, and article first, §§ 1 and20). We also held that the system of funding publiceducation then prevailing, under which each townraised its own funds for education via propertytaxes, supplemented by a flat grant from the stateaccording to the average daily number of studentsattending school in the town; Horton I, supra, at628, 376 A.2d 359; violated that requirement. Id.,at 648-49, 376 A.2d 359.

These conclusions rested on two sets of factualfindings of the trial court in that case, which we de-termined were supported by the evidence. Id., at649, 376 A.2d 359. The first set of findings wasthat the existing system of school financing resultedin significant disparities between the amounts spenton education by property-rich towns and the *90amounts spent by property-poor towns. Id., at 633,376 A.2d 359. The court stated: “[T]he present sys-

tem of financing education in Connecticut ensuresthat, regardless of the educational needs or wants ofchildren, more educational dollars will be allottedto children who live in property-rich towns than tochildren who live in property-poor towns.” Id.

The second set of findings concerned the effect ofthese financial disparities on the children. That setof findings established that the per pupil spendingdisparities resulted in a lower quality of educationin the property-poor towns than in the property-richtowns. Id. The court stated: “The criteria for evalu-ating the ‘quality of education’ in a town includethe following: (a) size of classes; (b) training, ex-perience and background of teaching staff; (c) ma-terials, books and supplies; (d) school philosophyand objectives; (e) type of local control; (f) testscores as measured against ability; (g) degree ofmotivation and application of the students; (h)course offerings and extracurricular activities. Inmost cases, the optimal version of these criteria isachieved by higher per pupil operating expendit-ures, and because many of the elements of a qualityeducation require higher per pupil operating ex-penditures, there is a direct relationship betweenper pupil school expenditures and the breadth andquality of educational programs.” Id., at 634-35,376 A.2d 359.FN28 All **1312 of these factual as-sertions by this court were based on the factualfindings of the trial *91 court in Horton I, findingsthat had been vigorously contested by thestate.FN29

FN28. In numerous other passages, thecourt in Horton I emphasized the factual,causal connection between per pupil ex-penditure and quality of education. SeeHorton I, supra, 172 Conn. at 638, 376A.2d 359 (“that variations in money avail-able to different towns produce variationsin quality of instruction; that the financingsystem discriminates against pupils in Can-ton because the breadth and quality of theeducation they receive is to a substantialdegree narrower and lower than that which
























pupils receive in comparable towns withlarger tax bases and a greater ability to fin-ance education”); id., at 645, 376 A.2d359 (“The wealth discrimination foundamong school districts differs materiallyfrom the usual equal protection case wherea fairly defined indigent class suffers dis-crimination to its peculiar disadvantage.The discrimination is relative rather thanabsolute. Further, the children living intowns with relatively low assessable prop-erty values are afforded public educationbut, as the trial court found, the educationthey receive is to a substantial degree nar-rower and lower in quality than that whichpupils receive in comparable towns with alarger tax base and greater ability to fin-ance education. True, the state has man-dated local provision for a basic education-al program with local option for a programof higher quality but, as the trial court'sfinding indicates, that option to a townwhich lacks the resources to implement thehigher quality educational program whichit desires and which is available to prop-erty-richer towns is highly illusory.”); id.,at 648, 376 A.2d 359 (“The present-dayproblem arises from the circumstance thatover the years there has arisen a great dis-parity in the ability of local communities tofinance local education, which has givenrise to a consequent significant disparity inthe quality of education available to theyouth of the state. It was well stated in thememorandum of decision of the trial court,which noted that the ‘present method [offinancing education in the state] is the res-ult of legislation in which the state deleg-ates to municipalities of disparate financialcapability the state's duty of raising fundsfor operating public schools within thatmunicipality. That legislation gives noconsideration to the financial capability ofthe municipality to raise funds sufficient todischarge another duty delegated to the

municipality by the state, that of educatingthe children within that municipality. Theevidence in this case is that, as a result ofthis duty-delegating to Canton without re-gard to Canton's financial capabilities, pu-pils in Canton receive an education that isin a substantial degree lower in bothbreadth and quality than that received bypupils in municipalities with a greater fin-ancial capability, even though there is nodifference between the constitutional dutyof the state to the children in Canton andthe constitutional duty of the state to thechildren in other towns.’ ”); id., at 652,376 A.2d 359 (“Obviously, absolute equal-ity or precisely equal advantages are notrequired and cannot be attained except inthe most relative sense. Logically, the statemay recognize differences in educationalcosts based on relevant economic and edu-cational factors and on course offerings ofspecial interest in diverse communities.None of the basic alternative plans toequalize the ability of various towns to fin-ance education requires that all townsspend the same amount for the educationof each pupil. The very uncertainty of theextent of the nexus between dollar inputand quality of educational opportunity re-quires allowance for variances as do indi-vidual and group disadvantages and localconditions.”).

FN29. In Horton I, supra 172 Conn. at621-22, 376 A.2d 359, the defendants un-successfully challenged “the trial court'sfindings concerning the quality of educa-tion in Canton and the relation between ex-penditures and the quality of education.”

The critical difference between Horton I and thiscase involves that second set of factual findings. In*92 Horton I, the trial court found that, because of-in a cause and effect sense-the disparities in educa-tional funding between the property-poor towns and












the property-rich towns, the quality of the educa-tional opportunity available to students in the prop-erty-poor towns was not substantially equal to thequality of the educational opportunity available tostudents in the property-rich towns. Id., at637-38, 376 A.2d 359. In Horton I, the plaintiffsundertook to prove that factual assertion, the trialcourt found that they had proven it, and this courtsustained the trial court's finding as supported bythe evidence. Id., at 648-49, 376 A.2d 359. Basedon that finding, we concluded that the state's flatgrant system of funding education violated theplaintiffs' constitutional right to a substantiallyequal educational opportunity. Id., at 649-50, 376A.2d 359.

In this case, the plaintiffs' equal educational oppor-tunity claim precisely parallels the plaintiffs' claimin Horton I. In this case, the plaintiffs claim that,because of-in a cause and effect sense-their racialand ethnic isolation, coupled with the concentrationof poverty and lack of material resources in Hart-ford, the quality of the educational opportunityavailable to them, measured by the same standardsarticulated by this court in Horton I, was not sub-stantially equal to the **1313 quality of educationalopportunity available to their suburban counter-parts.FN30 Put another way, the plaintiffs claimthat *93 their racial and ethnic isolation and theconcentration of poverty in the city causes the qual-ity of their education to be inferior, as measured bythe Horton I standards, than that provided in thesuburbs. As in Horton I, the plaintiffs undertook toprove that factual assertion in the trial court. UnlikeHorton I, however, in this case, the plaintiffs failedto persuade the trial court of that factual assertion.

FN30. In this connection, I note that thiscase also differs markedly from Brown v.Board of Education, 347 U.S. 483, 74S.Ct. 686, 98 L.Ed. 873 (1954). I do soonly because the majority, although not re-lying directly on Brown, invokes some ofits language regarding the importance ofeducation, with which all involved in this

case agree. Although Brown involved in-tentionally segregated schools, which thiscase does not, and therefore differs in itslegal posture, it also differs from this casein a significant factual respect.

In Brown, the decision rested in signific-ant part on the trial court's finding thatstate-sponsored segregation inflicts feel-ings of inferiority and stigmatization onthe African-American students. Id., at494, 74 S.Ct. at 691-92. This was an im-portant part of the foundation for the Su-preme Court's holding that separateschools are inherently unequal. Id., at495, 74 S.Ct. at 692.

There is no such finding in the presentcase. Were there such a finding, thismight well be a very different case be-fore us on appeal.

In this case, the trial court found that, contrary tothe factual assertions of the plaintiffs, it is poverty,and not race or ethnicity, that accounts for any dis-crepancies between the quality of educationprovided to the plaintiffs and the quality of educa-tion provided to their suburban counterparts. In ad-dition, the trial court found that the principal stand-ard of measure that the plaintiffs sought to use todemonstrate that difference in quality of education,the statewide mastery test scores, is not a valid toolfor measuring interdistrict differences in the qualityof education. As I indicate later in this dissent, thetrial court's factual findings are fully supported bythe evidence. Thus, the analogues in this case to thefactual underpinnings that supported our conclusionin Horton I are not only missing here; the factualanalogues in this case are squarely contrary to theconclusion reached by the majority.FN31

FN31. The plaintiffs recognize this essen-tial factual underpinning of Horton I.They sought to persuade the trial court oftheir claimed factual analogues to that un-derpinning, and they seek to persuade us

















that the trial court's contrary findings areclearly erroneous. The defendants also re-cognize the critical nature of those factualunderpinnings. Only the majority invokesHorton I while simultaneously discardingas irrelevant that essential factual basis.

Consequently, the majority's reliance on Horton I isunfounded. In Horton I, we did not conclude thatthe plaintiffs had been deprived of an equal educa-tional opportunity solely because of the disparitiesin educational funding between property-poor andproperty-rich *94 towns, unconnected to the educa-tional effects of those disparities. The majority con-cludes, however, that the plaintiffs have been so de-prived solely because of their racial and ethnic isol-ation. The majority reaches that conclusion,however, not only unconnected to but squarely con-trary to those factual findings. Thus, the majority'sanalysis is contrary to the analysis that we em-ployed in Horton I.

Indeed, the only attempt by the majority to link thefacts of this case to Horton I occurs when the ma-jority states: “As we observed, however, in HortonI, supra, 172 Conn. at 645, 376 A.2d 359, educa-tional equalization cases are in significant aspectssui generis and not subject to analysis by acceptedconventional tests or the application of mechanicalstandards. The wealth discrimination found amongschool districts differs materially from the usualequal protection case where a fairly defined indi-gent class suffers discrimination to its peculiar dis-advantage. The discrimination is relative ratherthan absolute. See also Horton III, supra, 195 Conn.at 35, 486 A.2d 1099. Nothing in the description ofthe relevant legal landscape in any of our cases sug-gests that the constitutional right that we articulatedin Horton I was limited to school financing.” FN32

(Internal quotation marks omitted.)

FN32. Thus, when the majority asserts thatthe state's constitutional obligation in-cludes the “duty to remedy the educationalimpairment that results from [de facto] se-gregation ”; (emphasis added); the major-

ity ignores the facts of this case. Thosefacts are that the “injuries” of which theplaintiffs complain, namely, the dimin-ished educational opportunities claimed toresult from a combination of racial andethnic concentration and concentration ofpoverty, do not result therefrom but resultsolely from poverty. Consequently, themajority is forced to resort to the generaleffects on education of racial and ethnicconcentration, and to elevate those effectsto the level of a constitutional mandate.

**1314 The first part of this brief analysis is noth-ing more than a truism. The second part merely setsup the proverbial straw man.

No one disputes that educational equalization cases,whether based on claims of funding or race, are sui*95 generis. That truism is, however, the beginningof the inquiry, not the end.

Although the constitutional right articulated in Hor-ton I may not have been limited to school finan-cing, there was a factual basis in that case that islacking here. Moreover, the argument that Horton Iis limited to school financing is but one of severalarguments offered by the defendants.FN33 Theyalso argue that, assuming that Horton I is appropri-ately extended to race and ethnicity, the plaintiffshave failed to prove that they are deprived of anequal educational opportunity by reason of race orethnicity because the factual findings of the trialcourt are to the contrary and are supported by theevidence. By pretending that the defendants' onlyresponse to the extension of Horton I to race andethnicity is that Horton I is confined to financing,the majority dismantles the straw man, answeringthe easy question posed by this appeal and ignoringthe difficult ones.

FN33. Even if this were the defendants'only argument on appeal, moreover, itsweakness would not be a sufficient groundon which the plaintiffs should prevail. Anappellant must establish more than that the









appellee's argument is weak; the appellantmust first establish that its own argumentsare persuasive.

C

The Meaning of “Segregation” in Article First, § 20

The next substantive flaw in the majority opinion isthe meaning that the majority attributes to the term“segregation” in article first, § 20. The majoritysomehow concludes that “segregation” means defacto, as well as de jure, segregation, on the basis ofthe text of article first, § 20, and the history in the1965 constitutional convention of the adoption ofarticle eighth, § 1, *96 and article first, § 20.FN34

The text provides no support for the majority's con-clusion, and the history of the 1965 conventionsquarely contradicts it.

FN34. Article first, § 20, was adopted bythe convention on October 14, 1965. 2 Pro-ceedings of the Connecticut ConstitutionalConvention of 1965, pp. 754-55. Articleeighth, § 1, was adopted by the conventionfive days later, on October 19, 1965. 3 Pro-ceedings, supra, p. 1041.

1

The Text of Article First, § 20

The constitution of Connecticut, article first, § 20,as amended by articles fifth and twenty-first of theamendments, provides: “No person shall be deniedthe equal protection of the law nor be subjected tosegregation or discrimination in the exercise or en-joyment of his or her civil or political rights be-cause of religion, race, color, ancestry, national ori-gin, sex or physical or mental disability.” FN35 Itis axiomatic that we are limited in constitutional ad-judication by the text of the particular constitutionalprovision at issue. Moore v. Ganim, 233 Conn.557, 581, 660 A.2d 742 (1995); State v. Miller, 227

Conn. 363, 380-81, 630 A.2d 1315 (1993); Co-logne v. Westfarms Associates, 192 Conn. 48,77-78, 469 A.2d 1201 (1984). That text does notsupport the majority's reading of it.

FN35. When first adopted in 1965, articlefirst, § 20, was limited to the protection ofthe categories of religion, race, color, an-cestry and national origin. Sex and physic-al or mental disability were added by sub-sequent constitutional amendments. Conn.Const., amends. V and XXI.

Critical to the majority's analysis is its conclusionthat the phrase “because of” and the term“segregation” do not require a showing of an intentby the state to segregate or discriminate when thoseterms are applied to the right to public educationguaranteed under article eighth, § 1. Thus, the ma-jor, albeit unstated, premise of the majority opinionis that, although “because of” and “segregation”may require a showing of an **1315 intent by thestate to segregate when applied to all other “civil*97 or political rights” covered by article first, §20, that same language does not require such an in-tent when applied to public education under articleeighth, § 1.

It is true that the majority does not explicitly saythat the terms, “segregation” and “because of,” dorequire a state intent to segregate when applied toother rights guaranteed by article first, § 20. In-stead, the majority states: “Whatever this languagemay portend in other contexts, we are persuadedthat, in the context of public education, in whichthe state has an affirmative obligation to monitorand equalize educational opportunity, the state'sawareness of existing and increasing severe racialand ethnic isolation imposes upon the state the re-sponsibility to remedy ‘segregation ... because ofrace [or] ... ancestry....’ ”

Despite the majority's futile attempt to avoid thenecessary implications of its rationale, it is clearthat one such necessary implication is that the lan-guage at issue either does or does not require a se-













gregative intent when applied in other contexts.Thus, I can read this passage from the majorityopinion in only two possible ways: (1) “because of”and “segregation” do not require a state intent to se-gregate, irrespective of the particular legal context;or (2) “because of” and “segregation” do require astate intent to segregate when applied to other legalcontexts, but not when applied to public education.

The majority cannot mean that these terms do notrequire such an intent irrespective of the legal con-text. That would necessarily mean that, with respectto the exercise of all civil and political rights, thestate would be required to take affirmative steps toassure that these rights are not exercised by raciallyor ethnically concentrated groups, regardless of anystate intent to segregate. This would mean, in turn,that any electoral district that is religiously, raciallyor ethnically concentrated is *98 unconstitutionaland has been such since 1965, and that such was theintent of the delegates to that convention. It wouldalso mean that presently existing public housingprojects in Hartford and other cities whose tenantsare racially or ethnically concentrated, not bydesign but as a result of demographic and economicfactors over which the state has no control, are un-constitutional and have been such because the 1965convention delegates meant them to be. It is not hy-perbole to say that the delegates would be aston-ished to have such an intent attributed to them. Noris it hyperbole to say that such an interpretationwould be so bizarre and unworkable as to beludicrous.

Although I disagree with the majority, I am notwilling to attribute that meaning to it. It must be,therefore, that the majority means to say that, al-though segregative intent is required when“because of” and “segregation” are applied to othercivil and political rights, it is not required when ap-plied to public education. This, of course also ne-cessarily means that the same language has oppos-ite meanings when applied to different rights-an in-terpretation that, in my view, is also utterly im-plausible. Under the majority's view, therefore, the

phrase “because of” and the term “segregation”have one meaning when applied to public element-ary and secondary education, namely, that racialconcentration need not be intentional on the part ofthe state, and the opposite meaning when applied toall other political and civil rights, namely, that ra-cial concentration must be intentional.

This tortures the text of article first, § 20, and turnsthe process of constitutional adjudication upsidedown. I acknowledge that it is an accepted, neces-sary and appropriate part of the judicial process tostretch the meaning of language in order to render astatutory scheme constitutional. See, e.g., State v.Indrisano, 228 Conn. 795, 805, 640 A.2d 986(1994); *99Ambroise v. William Raveis Real Es-tate, Inc., 226 Conn. 757, 764, 628 A.2d 1303(1993); McConnell v. Beverly Enterprises-Con-necticut, Inc., 209 Conn. 692, 705, 553 A.2d 596(1989). That does not justify, however, as the ma-jority would have it, breaking constitutional lan-guage in two so that the same words in the samesentence have two opposite meanings when appliedto different sets of rights, in order to render a stat-utory scheme unconstitutional.

**1316 In my view, this position is untenable.First, there is nothing in the language, history orpurpose of article first, § 20, to support such abizarre interpretation. We do not ordinarily read thesame word or phrase in the same sentence to haveopposite meanings depending on the subject matterto which the word or phrase is applied. See Wein-berg v. ARA Vending Co., 223 Conn. 336, 343, 612A.2d 1203 (1992); Board of Education v. StateBoard of Labor Relations, 217 Conn. 110, 116, 584A.2d 1172 (1991). There is no reason to do so here.Article first, § 20, was not drafted or approved byLewis Carroll, whose character in Through theLooking-Glass, Humpty Dumpty, said, “when I usea word ... it means just what I choose it to mean-neither more nor less.” L. Carroll, Through theLooking-Glass (Messner Ed.1982) p. 198. If thephrase “because of” and the term “segregation”mean that there is no intent requirement in the con-























text of public education, but that there is such a re-quirement in the context of all other political andcivil rights, it is only because the majority, likeHumpty Dumpty, says so.

Second, the majority's rationale for saying so in thisinstance, namely, that the state has an obligation tomonitor and equalize educational opportunity, bothassumes the answer to the question posed by thiscase and proves too much. It assumes the answerbecause the question is whether the obligation to“equalize” extends to racial and ethnic concentra-tion not intended *100 by the state. It proves toomuch because the state also has a constitutional ob-ligation to monitor and equalize the electoral dis-tricts of the General Assembly. See Conn. Const.,art. III, §§ 5 and 6.FN36 Certainly, the right tovote, and to have one's vote given its appropriateconstitutional weight, is at least as fundamental un-der our constitution as the right to a public educa-tion. See Conn. Const., art. VI, § 1. Therefore, be-cause the right to vote is, like the right to attend afree public elementary and secondary school, a fun-damental right that the state has a continuing oblig-ation to monitor and equalize, under the majority'srationale every general assembly district that is notracially, ethnically and religiously integrated is nowunconstitutional. It is impossible rationally to con-clude that the language adopted in *101 the 1965convention was intended to have this result. Inshort, the language of article first, § 20, simply can-not be cabined as the majority seeks to do.

FN36. The constitution of Connecticut, art-icle third, § 5, as amended by article six-teen of the amendments, provides: “Theestablishment of congressional districtsand of districts in the general assemblyshall be consistent with federal constitu-tional standards.”

The constitution of Connecticut, articlethird, § 6, as amended by articlestwelfth, sixteenth and twenty-sixth of theamendments, provides in relevant part:“a. The assembly and senatorial districts

and congressional districts as now estab-lished by law shall continue until theregular session of the general assemblynext after the completion of the taking ofthe next census of the United States. Onor before the fifteenth day of Februarynext following the year in which thedecennial census of the United States istaken, the general assembly shall appointa reapportionment committee.... Uponthe filing of a report of such committeewith the clerk of the house of represent-atives and the clerk of the senate, thespeaker of the house of representativesand the president pro tempore of the sen-ate shall, if the general assembly is notin regular session, convene the generalassembly in special session for the solepurpose of adopting a plan of district-ing.... Such general assembly shall,upon roll call, by a yea vote of at leasttwo-thirds of the membership of eachhouse, adopt such plan of districting asis necessary to preserve a proper appor-tionment of representation in accordancewith the principles recited in this article.Thereafter the general assembly shalldecennially at its next regular session orspecial session called for the purpose ofadopting a plan of districting followingthe completion of the taking of thecensus of the United States, upon rollcall, by a yea vote of at least two-thirdsof the membership of each house, adoptsuch plan of districting as is necessary inaccordance with the provisions of thisarticle....”

Moreover, the term “segregation” cannot, the sug-gestion of the majority to the contrary notwith-standing,FN37 be read to mean **1317 somethingdifferent from “discrimination” in the context ofarticle first, § 20. The nouns in this one sentenceprovision should not be read as having meaningsthat are mutually exclusive of, and unrelated to, the









meanings of the other nouns that surround them.Consequently, the majority's reliance on the generalinterpretive guideline that ordinarily no word orphrase is to be regarded as superfluous is misplacedin this context. This broad, constitutional equal pro-tection provision was not intended to be interpretedas if it were the Uniform Commercial Code, witheach term having a neatly compartmentalized defin-ition. Within the bounds of the language used, theterms are to be read as taking their meaning fromand sharing their meaning with each other, underthe doctrine of noscitur a sociis.

FN37. The majority also argues that, be-cause article first, § 20, uses both “equalprotection” language and the term“segregation,” that term must be given in-dependent meaning, namely, de facto aswell as de jure segregation. This analysisalso must mean, therefore, that“segregation” has some meaning independ-ent of “discrimination,” because: (1) theyare different words; and (2) during the con-vention, the word “segregation” was rein-serted into the text, which already con-tained the word “discrimination.”

This approach to article first, § 20, is consistentwith our precedents, which have generally treatedboth article first, § 1, and article first, § 20, as ex-pressing the same principle, namely, equal protec-tion of the law. See, e.g., Broadley v. Board of Edu-cation, 229 Conn. 1, 8-10, 639 A.2d 502 (1994);Mario v. Fairfield, 217 Conn. 164, 173-77, 585

A.2d 87 (1991); Zapata v. Burns, 207 Conn. 496,504-505, 542 A.2d 700 (1988); Carofano v.Bridgeport, 196 Conn. 623, 638-39, 495 A.2d 1011(1985); *102Lyman v. Adorno, 133 Conn. 511,515, 52 A.2d 702 (1947); New Haven Metal &Heating Supply Co. v. Danaher, 128 Conn. 213,219, 21 A.2d 383 (1941). The majority's interpret-ive method of insisting that “segregation” must in-clude de facto segregation because otherwise itwould be superfluous, is inconsistent with the gen-eral approach of these precedents. By that reason-

ing, article first, § 1, and article first, § 20, them-selves must also have meanings independent ofeach other, otherwise one would be superfluous.We have never read these constitutional provisionsin that fashion, and there is no justification for do-ing so now.

Thus, the reference in article first, § 20, to both“equal protection of the law” and “segregation”does not suggest that “segregation” has somebroader meaning than “equal protection of thelaw.” They both express the same principle, asdoes the word “discrimination,” and the fact thatthe framers of this provision used, and the elector-ate approved, the term “segregation” does not sup-port the conclusion that it was intended to includede facto, as opposed to de jure, racial and ethnicisolation. When interpreting a constitution, “ ‘theintent to be arrived at is that of the people [who rat-ified it], and it is not to be supposed that they havelooked for any dark or abstruse meaning in thewords employed, but rather that they have acceptedthem in the sense most obvious to the common un-derstanding, and ratified the instrument in the beliefthat that was the sense designed to be conveyed.’ ”Cologne v. Westfarms Associates, supra, 192 Conn.

at 78, 469 A.2d 1201.

Similarly, the reference to “the exercise or enjoy-ment of his or her civil or political rights” furtherindicates that article first, § 20, is not meant to beread with the kind of categorical nicety that the ma-jority employs. This phrase refers to a generallybroad, inclusive category of rights, the particularsof which will have to be explicated on a case-by-case basis. The textual point is that there is noobvious, sharp distinction that leaps to *103 mindwhen considering whether rights are “civil” or“political” or both.

The appropriateness of this textual approach is fur-ther demonstrated by the references to “religion,race, color, ancestry, national origin, sex or physic-al or mental disability.” Although arguably the ref-erence to “religion” can be read to mean somethingdifferent from the other listed categories, it cannot





























be disputed that the categories of race, color, ances-try and national origin blend into one another.FN38

FN38. This case demonstrates the point.The majority refers to the plaintiffs as“African-American,” “Latino” and“white.” The plaintiffs, in their complaint,refer to themselves as“black,” “Hispanic,” “Puerto Rican” and“white.” Do “black,” “white” and“African-American” refer to the plaintiffs'race, their color or their national origin?Do “Hispanic,” “Puerto Rican” and“Latino” refer to the plaintiffs' ancestry ortheir national origin?

The same can be said for the subsequentreference to physical or mental disabil-ity. Many “physical” disabilities carryserious emotional consequences withthem that may be more disabling thanthe physical aspects of the condition.Similarly, many “mental” or emotionaldisabilities have physical origins. Forexample, is schizophrenia that is determ-ined to be chemical in origin and treat-able by drugs a “physical” or a “mental”disability?

**1318 Moreover, the use of the phrase “becauseof,” followed by the list of protected categories,strongly suggests a requirement of state intent to se-gregate or discriminate, or intentionally to maintainsuch segregation. This reading of the phrase wouldbe consistent with our precedents that, exceptwhere our text clearly departs from that of the fed-eral equal protection clause, the two clauses havethe same meaning and limitations. See, e.g., State v.Leary, 217 Conn. 404, 409, 587 A.2d 85 (1991);Ecker v. West Hartford, 205 Conn. 219, 237, 530

A.2d 1056 (1987); Daily v. New Britain MachineCo., 200 Conn. 562, 577, 512 A.2d 893 (1986).

Under federal precedent, only state created or inten-tionally maintained racial segregation is unconstitu-tional, and the state is not constitutionally obligated

to remedy interdistrict racial division that is caused*104 primarily by economic and geographicalfactors. Keyes v. School District No. 1, 413 U.S.189, 198, 93 S.Ct. 2686, 2692, 37 L.Ed.2d 548(1973); Columbus Board of Education v. Penick,443 U.S. 449, 464, 99 S.Ct. 2941, 2950, 61 L.Ed.2d666 (1979); Milliken v. Bradley, 418 U.S. 717,744-45, 94 S.Ct. 3112, 3126-28, 41 L.Ed.2d 1069(1974). Indeed, the majority's analysis implicitlyconcedes that “because of” carries a requirement ofintentionality when applied to all civil and politicalrights except the right to free public elementary andsecondary schools.

Furthermore, that “segregation,” as used in articlefirst, § 20, does not include de facto racial and eth-nic concentration is demonstrated by simply read-ing the text as the simple sentence that it is, shornof the majority's fiction that the words have oppos-ite meanings when applied to public education andall other rights. This constitutional provision is notan education provision. It does not mention educa-tion specifically at all. This provision relates toeducation because the right to attend a publicschool comes within the phrase “in the exercise orenjoyment of his or her civil or political rights.”FN39

FN39. This is precisely the plaintiffs' argu-ment under the first count of their com-plaint. They stated in the trial court:“Under our first count, the racial segrega-tion itself violates article first, § 20 of theConnecticut constitutionin the exercise ofthe fundamental right to education.”(Emphasis added.)

If, as the majority concludes, “segregation” in-cludes racial and ethnic concentration resulting, notfrom intentional state conduct but from demograph-ic factors over which the state has no control, and ifwe are not willing to indulge in the fiction that thesame words, used in the same sentence, nonethelesshave opposite meanings when applied to differentrights, then other areas of public life that arecovered by the phrase “in the exercise of ... politic-
























al or civil rights” must also be subject to the sameproscription. Thus, for example, a local electoraldistrict that, by virtue of the religious, *105 racialor ethnic make-up of its constituents, is heavily Ro-man Catholic, African-American, Puerto Rican orPolish-American, is “segregated” under the major-ity's understanding of that term, and all voters with-in that district are being “segregat[ed] or discrimin-at[ed] in the exercise or enjoyment of [their] civilor political rights because of religion, race, color,ancestry or national origin,” in violation of articlefirst, § 20. In short, under the majority's reading of“segregation,” the 1965 constitutional amendmentsrendered all such electoral districts unconstitution-al. It is not only implausible that this is what thelanguage used in 1965 was intended to mean, it isimpossible rationally to reach such a conclusion.

2

The Record of the 1965 Constitutional Convention

The history of the term “segregation” in articlefirst, § 20, in the 1965 convention makes evenclearer than its text that the members of the conven-tion did not intend it to mean de facto racial or eth-nic concentration. It is inconceivable-except thatthe majority conceives it-and it is untenable tohold-except that the majority holds it-that the del-egates to the 1965 constitutional convention inten-ded the term “segregation” in **1319 that article toinclude de facto racial and ethnic concentration inthe public schools irrespective of any state intent tobring about or to perpetuate such concentration.This question is not even close.

I begin this part of my analysis with another factualfinding of the trial court that the majority ignores.The trial court found that “the 1965 constitutionalconvention was a very conservative body that madeonly those changes that had to be made in order tocomply with the legislative reapportionment man-dates of the federal courts and it was extremely re-luctant to change anything*106 that did not have to

be changed.” FN40 Thus, the 1965 convention wasnot called for the purpose of a general overhaul ofthe 1818 constitution. It was called primarily forthe purpose of bringing the Connecticut constitu-tion into compliance with the then recently decidedcases of Lucas v. Forty-Fourth General Assemblyof Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12L.Ed.2d 632 (1964), Reynolds v. Sims, 377 U.S.533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), Wes-berry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11L.Ed.2d 481 (1964), and Gray v. Sanders, 372 U.S.368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and thedelegates acted accordingly. The principal agendaof a constitutional convention is a useful tool inconstruing its actions. See E. Peters, “State Consti-tutional Law: Federalism in the Common Law Tra-dition,”84 Mich.L.Rev. 583, 586 (1986) (“courtsmust look to the agenda of the constitution as awhole in the context of the historical and sociolo-gical issues that occupied center stage at the time ofratification”).

FN40. This finding, which the plaintiffs donot challenge on appeal, was based on thetestimony of their own expert witness onConnecticut history, Christopher Collier,professor of history at the University ofConnecticut and the officially designatedstate historian for the state of Connecticut.

One cannot square this unchallenged characteriza-tion of the 1965 convention with the notion that,when in the course of accomplishing its principalobjective of legislative apportionment it also adop-ted article first, § 20, this “very conservative” con-vention also intended to accomplish results thatwould at that time have rendered unconstitutional-or, at the very least, would have called into seriousconstitutional question-many school districts andgeneral assembly districts in the state. Yet, despitewhat the majority may say, these are the necessaryimplications of its decision and rationale.

In attempting to divine the intent of the framers ofarticle first, § 20, we are not faced with the difficulttask of peering back through the mists of more than


















a *107 century to a sparse historical record, in orderto determine the intent of persons of whom we havelimited knowledge, as is often the case when we at-tempt to interpret the language used in the 1818state constitution. The 1965 convention took placebut thirty-one years ago. The names and careers ofthe delegates are well known to anyone reasonablycognizant of Connecticut government and politicsand there is a complete printed record.

Among the delegates were former and future gov-ernors of this state,FN41 former and future UnitedStates Senators and Representatives,FN42 formerand future state legislators,FN43 former membersof this court, including two former chiefjustices,FN44 and many other delegates with distin-guished pedigrees in government and politics.These were men and women with long and distin-guished careers in public life, who had practicedthe arts of government and politics and who, pre-sumably, knew the limits of both. They also knewthat their effort would be placed before the elector-ate in order for the constitution to be amended.They knew, furthermore, that throughout Connecti-cut there were local, intradistrict neighborhoodschool boundaries and schools that were, becauseof the housing patterns then prevalent, heavily con-centrated by religion, race and ethnic background.They knew, moreover, that, because**1320 ofhousing patterns, there would be local general as-sembly districts throughout Connecticut, created bythe General Assembly in accordance with the con-stitutionally required reapportionment provisionsthat they were *108 fashioning, that would also beheavily concentrated by the same factors.

FN41. Raymond E. Baldwin, Ella T.Grasso, John D. Lodge, Thomas J. Meskilland C. Wilbert Snow.

FN42. Raymond E. Baldwin, Lawrence J.DeNardis, Ella T. Grasso, John D. Lodge,Edwin H. May, Jr., Thomas J. Meskill,Horace Seeley-Brown, Jr., and Chase Go-ing Woodhouse.

FN43. Nicholas B. Eddy, Florence D. Fin-ney, James J. Kennelly and J. Tyler Patter-son, Jr.

FN44. Raymond E. Baldwin, Abraham S.Bordon and Patrick B. O'Sullivan.

It is simply inconceivable that the convention del-egates, with that knowledge, intended by the lan-guage they used in article first, § 20, to render un-constitutional or to call into serious constitutionalquestion, every one of those school boundaries,schools and electoral districts. In order to reachsuch a conclusion, one must posit the following lineof hypothetical reasoning, or something similar, tothe delegates regarding the meaning of“segregation”: (1) “because of” and “segregation”mean intentional or de jure, rather than de facto, se-gregation, because otherwise the General Assemblywould be prevented from drawing mathematicallyequal but religiously, racially or ethnically concen-trated districts; and, although districts must now besubstantially equal in population, it would be a rad-ical change also to require them to be integrated onthe basis of religion, race and ethnicity, a changefar beyond the principal charge in this convention;FN45 (2) in fact, intentional segregation is prob-ably what the United States Supreme Court was ad-dressing in Brown v. Board of Education, 347 U.S.483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), when itoutlawed the “separate but equal” doctrine, al-though that is not absolutely clear from the avail-able federal decisions to date; (3) nonetheless,when the words “because of” and “segregation”come to be applied to interdistrict, but maybe notintradistrict, elementary and secondary school linesunder the right to a free public education-which, bythe way, will not be adopted until five days fromnow and, of course, has never been interpreted-those words mean the opposite,*109 namely, defacto segregation; and (4) we entertain this dual in-tent without (a) clearly-or even unclearly-suggest-ing it by the language we use, and (b) disclosing iton the record of this convention or to the voterswho will have to ratify our work. This scenario, I






suggest, does no more than dramatize the reasoningbehind the majority's tortuous and selective readingof the record of the 1965 convention. In my view,to attribute such a thought process to the delegatesis not only implausible, it would have been irre-sponsible on the part of the delegates to have en-gaged in such a process sub rosa, and it is untenableto suggest that they did.

FN45. That practice in drawing electorallines persists today. Indeed, we recentlyheld that it was a constitutionally permiss-ible factor for the General Assembly toemploy in fulfilling its decennial obliga-tion to reapportion itself. See Fonfara v.Reapportionment Commission, 222 Conn.166, 610 A.2d 153 (1992).

My view of the intent of the convention delegates isbuttressed by the fact that, as even the plaintiffsemphasized in their posttrial brief to the trial courtand in their appellate brief to this court, “[t]he doc-umentation of racial and economic isolation in Con-necticut schools in the 1960s was thorough andcomprehensive. In addition to the state's own offi-cial annual documentation, the University of Con-necticut Institute of Urban Research and the Uni-versity's Educational Resources and DevelopmentCenter conducted a series of highly detailed reportson school segregation in Connecticut's major cit-ies.” In constitutionalizing the right of Connectic-ut's children to a free public education, however,the politically seasoned delegates to the 1965 con-vention uttered not one word even suggesting thatthis well documented problem would be addressedby the constitutional amendments that they hadgathered to draft. In fact, the idea that the new edu-cation clause would create any sort of fundamentalchange in the state's education system was squarelyrejected by Simon Bernstein, a delegate whom themajority ironically cites in support of its result. Inreference to the proposed education clause, Bern-stein stated, “[T]his again is not anything revolu-tionary, it is something *110 which we have....” 3Proceedings of the Connecticut Constitutional Con-

vention of 1965, p. 1039.

Moreover, just one year before the convention, theNew Haven board of education had adopted a juni-or high school pairing plan for the purpose of redu-cing unintended racial **1321 imbalance in itsschool system and in the interest of promotingequality of educational opportunity. That plan,which generated considerable public controversy,was the subject of several public hearings at whichit was vigorously defended and assailed, and resul-ted in an action for an injunction against theplan.FN46 On July 8, 1965, while the conventionwas in session, the Superior Court decided in favorof the board. See Guida v. Board of Education, 26Conn.Sup. 121, 213 A.2d 843 (1965).

FN46. One school served a predominantlywhite area, and the other served a predom-inantly black area. The plan exchanged, bybusing, the students in the seventh grade ofone school for the students in the eighthgrade in the other, thus reducing somewhatthe racial imbalance in the area served bythe two schools. The plaintiffs claimed thatthe plan violated General Statutes § 10-15,which provided that all schools shall be“open” to all children without regard torace or color.

In Guida v. Board of Education, 26Conn.Sup. 121, 123, 213 A.2d 843(1965), the court upheld the validity ofthe plan. It held that the plan, which wasalso aimed at improving the quality ofeducation apart from the racial imbal-ance factor, was within the board's gen-eral statutory powers over education.Id., at 124, 213 A.2d 843. It held further

that, although the desire to reduce racialimbalance was a substantial factor in theformulation of the plan, “a determinationby the board which is otherwise lawfuland reasonable does not become unlaw-ful merely because the factor of racialimbalance is accorded relevance.” Id.
















There can be little doubt that, if the delegates inten-ded the word “segregation” in article first, § 20, tomean de facto segregation when applied to publiceducation, the statutory authority that the SuperiorCourt concluded the board had in Guida wouldhave been transformed into a constitutional obliga-tion. It is fair to presume that the delegates whocame from the *111 New Haven area,FN47 menand women cognizant of the public affairs of theirdistrict, were aware of this controversial case,which was decided only two months earlier. Indeed,one of those delegates, former Chief Justice PatrickB. O'Sullivan, was one of the drafters of articlefirst, and the chairman of the convention that adop-ted it, and another, Mary B. Griswold, spoke in fa-vor of it. I cannot believe that, if it were the intentof the convention in adopting the word“segregation” to constitutionalize the New Havenboard's plan, not one of the fourteen delegates fromthe district that included New Haven would haveeven mentioned its potential effect on the NewHaven case. The record of the convention, however,is bereft of any such mention.

FN47. The delegates to the conventionwere elected from the two major partiesand the state's six congressional districts.Thus, there were fourteen delegates-sevenDemocrats and seven Republicans-fromeach of the six districts. The fourteen del-egates from the district embracing the NewHaven area were: Frederick K. Biebel, Jr.,George Cahill, Edith Cook, Daniel O. Cos-grove, Lawrence J. DeNardis, Warren A.Field, James P. Geelan, Mary B. Griswold,William T. Holleran, John A. Maresca, Eu-gene McCabe, Patrick B. O'Sullivan, Ar-line Ryan and George F. Wright.

That record, moreover, affirmatively demonstratesthat the delegates did not intend “segregation,” asused in article first, § 20, to include de facto se-gregation. To the contrary, the history of the articleand the debate over the term “segregation” in the1965 convention compel the conclusion that the

delegates intended the term specifically to preclude,under our state constitution, the doctrine of state-created “separate but equal” educational and otherpublic facilities that the United States SupremeCourt had expressly overruled, as a matter of four-teenth amendment jurisprudence, in Brown v.Board of Education, supra, 347 U.S. 483, 74 S.Ct.686.

In February, 1950, the commission on state govern-ment organization issued its report to the GeneralAssembly and to then Governor Chester Bowles.Among *112 its recommendations was a revision ofthe constitution, which included a new article first,our Declaration of Rights, including the followingproposed article first, § 20: “No person shall bedenied the enjoyment of, nor be discriminatedagainst in, nor be segregated in, any right or em-ployment, nor be so treated in the militia, or in thepublic schools or in any public place, because of re-ligious principles, race, color, ancestry or nationalorigin.” The commission's recommendation to re-vise the constitution was not acted upon.

During the 1965 convention, on July 28, 1965,Chase Going Woodhouse introduced **1322 Resol-ution No. 168, which contained several recom-mendations for changes in our Declaration ofRights, article first. Among these were two propos-als that are relevant to this case. First, the resolu-tion proposed that article first, § 1,FN48 beamended to add the provision that all men are“entitled to the equal protection of the laws.”Second, it proposed that article first, § 20,FN49 beamended exactly as had been proposed by the com-mission to the General Assembly and the governorin 1950.FN50 This resolution was referred to theCommittee on Resolutions.

FN48. The constitution of Connecticut, art-icle first, § 1, was the same then as it isnow.

FN49. The constitution of Connecticut, art-icle first, § 20, then provided: “No heredit-ary emoluments, privileges or honors shall









ever be granted, or conferred in this state.”This language is now found in article first,§ 18.

FN50. The stated purpose of original Res-olution No. 168 was to “amend the Declar-ation of Rights in accordance with the Re-port to the General Assembly and the Gov-ernor of the Commission on State Govern-ment Organization, dated February, 1950.”

Ultimately, the committee reported to the floor ofthe convention its Rules Committee Substitute forConstitutional Convention Resolution No. 168(committee resolution 168). This resolution pro-posed a number of changes in the provisions of art-icle first. Included within committee resolution 168was the proposal that both article first, § 1, and thenarticle first, § 20; see footnote *113 49; remain un-changed, and that there be a new article first, §22,FN51 providing as follows: “No person shall bedenied the equal protection of the law, nor the en-joyment of his civil or political rights, nor be dis-criminated against in the exercise thereof becauseof religion, race, color, ancestry or national ori-gin.” This draft of article first, § 22, therefore, in-corporated the explicit references to equal protec-tion of the law and discrimination that had been inoriginal Resolution No. 168, but omitted the specif-ic references to segregation, employment, the mili-tia and the public schools that had also been in theoriginal resolution.

FN51. Subsequently, what was article first,§ 22, in committee resolution 168 became,as later amended on the floor of the con-vention, article first, § 20.

This proposal prompted a letter to the conventionby the Connecticut Council of Churches that com-mittee resolution 168 was not specific enough. Thecouncil stated that “ ‘segregation constitutes such acore area of discrimination as it affects the patternof relationship among persons and groups andneeds thereby to be specifically guarded againstthrough constitutional provision.’ ” J. Zaiman,

“Anti-Separation Clause Urged for Bill of Rights,”The Hartford Courant, Oct. 14, 1965, pp. 1 and 11.The council also expressed the thoughts that, be-cause “ ‘civil or political rights' ” was not definedin the proposal, that language was “ ‘so broad as tobe specifically excepted against in any controver-sial test of rights,’ ” and that “ ‘[o]ur history seemsto show that platitudinous phrases have not helpedmany of our citizens to enjoy specific rights thatcould not be pointed to implicitly in constitutionalauthority.’ ” Id., p. 11.

In addition, according to a contemporary account inThe Hartford Courant, certain civil rights groupsalso thought that the proposal was not specificenough, and suggested reinserting the“antisegregation” clause. Id., p. 1. This promptedcaucuses by both the Democrats *114 and Repub-licans, as a result of which there was bipartisanagreement on reinserting language referring to se-gregation.

Accordingly, on October 14, Woodhouse brought tothe floor an amendment reinserting the reference to“segregation,” which resulted in the following lan-guage that ultimately became article first, § 20: “Noperson shall be denied the equal protection of thelaw nor be subjected to segregation or discrimina-tion in the exercise or enjoyment of his civil orpolitical rights because of religion, race, color, an-cestry or national origin.”

In proposing this amendment, Woodhouse re-minded the convention that the word segregationhad appeared in the original resolution, and that theonly question was one of **1323 the appropriatewording to be used.FN52 2 Proceedings, supra, pp.690-91. Former Chief Justice Baldwin, one of thedrafters of committee resolution 168 that was beingamended, and another delegate, James J. Kennelly,both rose to stress the symbolic, as opposed to sub-stantive, nature of the amendment.FN53 Id., pp.691-92.

FN52. “I should like to point out ... that theword segregation was in the original resol-




ution which I introduced. It was a favor-able report of the subcomittee, it was in thefavorable report of the full committee. Itwas not in the substitute bill [committeeresolution 168] as brought in by the rulescommittee, so I think the general idea wasthere. The only question that has arisen isthe idea of general language or more spe-cific language. It would seem that this lan-guage as offered in the amendment is suffi-ciently general so that it would not be in-terpreted as an exclusion or limit rights....On the other hand, we have to realize thattoday the philosophy of segregation issomething that is in the minds of all of us.It would be regrettable if it should be inany way suggested that this Constitutiondid not unequivocally oppose the philo-sophy and the practice of segregation. SoI move this amendment as reading verydefinitely that it in no way limits the rightsof anyone. It would not be so interpretedby the courts and it strengthens the word-ing that we have before us in the file.”(Emphasis added.) 2 Proceedings, supra,pp. 690-91, remarks of Chase GoingWoodhouse.

FN53. “We have spent a lot of time on thisparticular provision and I want to say that Ihave no objection. I am perfectly agreeableto having this changed. As a matter of factwe discussed this very thing in the commit-tee and we thought that segregation wasunnecessary to put in there, but if it willplease people, then I am perfectly agree-able to having it there as a member of thisconvention.” (Emphasis added.) 2 Pro-ceedings, supra, pp. 691-92, remarks ofRaymond Baldwin.

“This section would protect politicalrights such as registration, the votingright to hold public office, the right toassemble and petition as well as the tra-

ditional rights that we have always pro-tected. It is further a broad statement ofprinciple that is all inclusive and wouldprovide a complete umbrella for the totalprotection against discrimination and theword subjugation against segregation,which is sound symbolic language.”(Emphasis added.) Id., p. 692, remarksof James J. Kennelly.

Baldwin later added, “[i]n preparing thisparticular clause to this bill of rights, thesubcommittee of the committee made astudy of the existing legislation in Con-necticut protecting political and civilrights, and I just want to note for the be-nefit of the record, that there is no statein the entire union that has more com-prehensive and more liberal legislationwith reference to the exercise of politicaland civil rights, than does the little sov-ereign State of Connecticut. I am proudto make that statement because this le-gislation has been the work of successivelegislators through several different ad-ministrations. I think it should be notedhere that if every state in the union hadfollowed Connecticut's lead in dealingwith this problem, we would not be hav-ing the trouble that we are having insome places today.” (Emphasis added.)Id., pp. 695-96.

*115 The only reference to education in the entiredebate over committee resolution 168 was by Bern-stein, and that reference was made in the context ofhis delineating more specifically the “civil andpolitical rights” to which the proposal referred.Bernstein stated: “I just want to comment that inthis section which states that there will be enjoy-ment of civil and political rights, for the record,perhaps we might spell out a few of them so thatcourts and historians in the future may not fail tounderstand what we are talking about. These arerights which we have always assumed we have had



anyway and these rights include rights of freedomfrom discrimination in travel, rights of freedom ineducation, public accommodations, and employ-ment and housing.” (Emphasis added.) Id., p. 694.

O'Sullivan put the amendment to a voice vote, andruled it adopted. O'Sullivan then ruled “that this*116 amendment is not a substantive change andtherefore we can act upon the entire bill today.”(Emphasis added.) Id., p. 696.

Reading this record in an objective, dispassionatemanner leads inescapably to the conclusions thatthe use of the term “segregation” in what ultimatelybecame article first, § 20: (1) was intended to em-phasize that the entire section prohibited intentionalsegregation in the “separate but equal” sense; (2)was not intended to add substance to the provision,but was intended only to make the general prin-ciples more specific; (3) was not intended to affectrights to education in a way different from othercivil and political rights; and (4) cannot be read tomean one thing when applied to all such rights ex-cept education, but the opposite when applied to theright to public education under article **1324eighth, § 1. Several reasons compel these conclu-sions.

First, the historical source of the term was the 1950recommendation to the General Assembly and gov-ernor for a constitutional provision. In 1950, theterm “segregation,” in the constitutional sense, re-ferred to the widespread system of laws in otherparts of the nation, mandating the separation of theraces, the constitutionality of which was then main-tained under the infamous “separate but equal” doc-trine. There is no evidence, either in this case orhistorically in general, to suggest that in 1950 thisterm was understood to mean racial or ethnic con-centration that was not the product of state intent.Moreover, this historical source was specificallynoted as the source of original Resolution No. 168,introduced to the 1965 convention by Woodhouse.

Second, after committee resolution 168 was repor-ted out without the term “segregation,” the princip-

al motive to reinsert it was to respond to the con-cern of civil rights groups and the Council ofChurches, which was, not that the new resolutionwas not broad enough, but *117 that it was not spe-cific enough. Certainly, in 1965, eleven years afterBrown and while the civil rights movement wastaking hold in the land and extending the principleof Brown to all areas of public life, the Council'sreference to segregation as a “core area of discrim-ination” could only have referred to segregation inits constitutional sense of legally mandated or sanc-tioned segregation, and cannot be plausibly read asreferring to what we later have come to describe asde facto segregation.FN54

FN54. This conclusion is buttressed by thecouncil's reference to “ ‘[o]ur history,’ ”which in the council's view showed that “‘platitudinous phrases have not helpedmany of our citizens to enjoy specificrights that could not be pointed to impli-citly in constitutional authority.’ ” J. Zai-man, Hartford Courant, supra, p. 11. Thereference to “ ‘[o]ur history’ ” was obvi-ously, not to Connecticut's history in par-ticular, but to our nation's history in gener-al and the south in particular, where underthe separate but equal doctrine “many ofour citizens [could not] enjoy” true equal-ity. See id.

Third, Woodhouse's remarks when she introducedthe amendment reinforced the conclusion that thesubstance of what she sought to have enacted wasalready embodied in the provision, and that the re-insertion of the term was only to make the equalprotection principle more specific, not to addsomething of substance that was not already in-cluded therein. See footnote 52. Read in the contextof 1965, her reference to the “philosophy and thepractice of segregation” could only have meant thatphilosophy and practice as a legal concept. See 2Proceedings, supra, p. 691. Indeed, one wonderswhat the reference to “philosophy” could havemeant in the context of racial and ethnic concentra-




tion that occurs as a result of demographic factorswithout any planning, intent, idea or doctrine be-hind it. Woodhouse's final remarks, namely, thatthe amendment “in no way limits the rights of any-one,” and that it “strengthens the wording” of com-mittee resolution 168; id.; were an assurance to theCouncil of Churches and others that their concernfor specificity was being met. Her assurance thatthe *118 insertion of “segregation” makes the gen-eral more specific cannot be read, as the majorityreads it, however, to make the general somethingelse.

Fourth, the drafters of committee resolution 168,Baldwin, O'Sullivan and Bordon,FN55 three formermembers of this court, including two former ChiefJustices, chose to exclude the term. One of them,Baldwin, acknowledged that they had discussed inthe Committee on Resolutions the question ofwhether to include the term “segregation,” and hadconcluded that “it was unnecessary to put in there.”Id., p. 692. Baldwin, and presumably O'Sullivanand Bordon, the other distinguished members of thedrafting subcommittee, was nonetheless agreeableto the amendment “if it will please people.” Id.

FN55. These former justices were de-scribed to the convention as “three of themost distinguished minds not only in thisconvention, but in the State of Connectic-ut.” 2 Proceedings, supra, p. 693, remarksof H. Meade Alcorn.

In addition, Baldwin disclosed that the subcommit-tee had canvassed the state's legislation “protectingpolitical and civil rights,” and had found that ourstate led the nation in that respect. Id., pp. 695-96.He expressed his pride in that legislative record,and noted **1325 that, if other states had legisla-tion like ours, “we would not be having the troublethat we are having in some places today.” Id., p,696. Among that legislation was General Statutes §10-15c, which requires that public schools be opento all children without discrimination on account ofrace, creed or color, and which had been in effectsince 1868.FN56 The most plausible inference

from this *119 statement is that he was referring, inpart at least, to the still extant resistance, in otherparts of the nation, to elimination of the separatebut equal doctrine, in education as well as otherareas.

FN56. Undoubtedly, Baldwin was also re-ferring to other long-standing civil rightslegislation in this state. As the trial courtfound in this case, some examples of thisinclude: legislation outlawing racial dis-crimination in hotels, restaurants, trans-portation facilities and places of publicamusements, which had been in place since1905, and had been significantly expandedin 1953 and 1961; legislation outlawingdiscrimination in public employment,which had been in place since 1936, andhad been expanded to private employmentin 1947, and to public housing in 1949;and legislation creating the nation's firstcivil rights commission in 1943.

Had there been any intent in reinserting the term“segregation” that it have one meaning when ap-plied to education and an opposite meaning whenapplied to all the other political and civil rights, thedrafting subcommittee, who obviously commandedthe respect of their colleagues, would have said soand would not have misled the delegates by assur-ing them that there was no change in substance in-tended by reinsertion. This is particularly true be-cause if, as the majority posits, there are dual andopposite meanings lurking in the language, (1) thatduality is certainly not apparent on the face of art-icle first, § 20, (2) it is inconceivable that thedraftsmen of the article would have left that dualityunexpressed, and (3) this unexpressed dualitywould have opened the entire article to an evenmore bizarre interpretation, namely, that intentiondoes not apply to, and is not required to constitute aviolation of, any of the civil or political rights en-compassed by the article. In sum, the majority's in-terpretation of article first, § 20, cannot rationallyor responsibly be attributed to the people who draf-





ted it or to their colleagues with whom they dis-cussed and adopted it.

Fifth, with one exception discussed immediatelybelow, the debate on article first, § 20, is bereft ofreferences to education. Thus, the majority's at-tempt to link the two, and to establish that the refer-ence to “segregation” in the section was intended tomean de facto segregation, but solely when appliedto article eighth, § 1, has no support in this record.Indeed, it is impossible to imagine how the debateover “segregation” could indicate such an intent,because when the debate took place, considerationof article eighth, § 1, the education clause, was fivedays in the future.

*120 The only reference to the subject of educationin the entire debate on the amendment occurred inremarks by Bernstein. 2 Proceedings, supra, p. 694.Those remarks are significant for several reasonsthat have more to do with what they do not estab-lish than what they do establish. As noted, Bern-stein made his remarks five days before the conven-tion considered the resolution that ultimately be-came the education provision, article eighth, § 1.Thus, they could have had no conceivable relevanceto the interpretation of that provision. In addition,his reference to education was intended to do noth-ing more than to indicate that education was one ofthose “civil and political rights,” along with, in hisview, travel, public accommodations, employmentand housing, that would be covered by article first,§ 20. Id. As discussed previously, when Bernsteindid specifically address the reach of the educationclause five days after the adoption of the segrega-tion clause, he made clear that the education clausewas intended only to constitutionalize the then ex-isting system of free public education-a municipal-ity based system that included well documented in-stances of racial isolation. 3 Proceedings, supra, p.1039.

Thus, when the majority asserts that “[t]he deleg-ates' expectation that the proposed amendments tothe constitution would secure interrelated constitu-tional rights was underscored by Bernstein's remark

that article first, § 20, was intended to be applied inthe context of the ‘rights of freedom in education,’” the majority merely states the obvious.**1326 Ofcourse article first, § 20, was intended to apply toeducation, as one of the “civil or political rights”referred to in that article. To the extent, however,that the majority suggests that Bernstein's remarksimply some connection between that obvious ap-plication and a specific and different meaning of“segregation” in that article when applied to articleeighth, § 1, the suggestion is utterly without basis.

*121 Sixth, O'Sullivan, another member of thedrafting subcommittee, presiding as the chairman ofthe convention ruled the amendment to be technicaland not substantive. 2 Proceedings, supra, p. 696.Such a ruling cannot be squared with the notion thatthe amendment had the intended effect of trans-forming the resolution from a straightforward equalprotection provision, which specifically incorpor-ated into our constitution principles that hadalready been held to be there by the established in-terpretations of article first, § 1, into a provisionthat maintained those principles generally, butaltered them radically with respect only to publiceducation. If such a transformation is anything, it iscertainly substantive and not technical, andO'Sullivan would have called that fact to his col-leagues' attention.

Seventh, although we have on occasion interpretedarticle first, § 20, to have a broader meaning thanits federal counterpart, based on differing languagebetween the two; see, e.g., Daly v. DelPonte, 225Conn. 499, 513, 624 A.2d 876 (1993) (protectingfrom discrimination those with physical and mentaldisabilities based on explicit language of articlefirst, § 20); the record in this case demonstrates thatthe linguistic difference, namely, the specific refer-ence to “segregation,” was not intended to have ameaning different from that of the federal equalprotection clause. Contrary to the assertion of themajority, this record demonstrates that it was inten-ded only to constitute a more specific application ofthe same principle of equal protection of the laws.













Eighth, even if one somehow were able to read therecord as not clearly establishing the meaning of“segregation” to require intent, at the least it cannotbe disputed that the record does not clearly indicatethat “segregation” has no requirement of intent.Moreover, it cannot be disputed that reading the re-cord as the majority reads it works a radical changein our constitutional*122 equal protection jurispru-dence. We do not read our constitutional text tomake radical changes without clear evidence of anintent to do so. Fonfara v. Reapportionment Com-mission, 222 Conn. 166, 172-73, 610 A.2d 153(1992). The majority's approach violates this soundprinciple of constitutional interpretation.

Thus, there is no basis for the suggestion by themajority of relevance to the issues in this case thatwhen both article eighth, § 1, and article first, § 20,were debated by the convention delegates, “they re-cognized and endorsed the landmark decision inBrown... declaring the unconstitutionality of‘separate but equal’ public school education.”First, there is no mention whatsoever of Brown, orof the question of segregation of schools, in the de-bate over article eighth, § 1. The entire debate con-cerned the fact that Connecticut was one of fewstates that did not mention education in its constitu-tion, and the desirability of doing so.FN57 3 Pro-ceedings, supra, pp. 1038-41. If anything, the factthat the delegates obviously were aware of Browncontradicts the inference that the majority seeks todraw. The debate over article first, § 20, referred tothe separate but equal doctrine declared invalid inBrown. That was a doctrine of state intended se-gregation, and there is no suggestion in this debatethat the framers intended the references to segrega-tion to include the notion of de facto concentrationof races or ethnic groups.FN58

FN57. Indeed, Bernstein, who introducedthe resolution for article eighth, § 1, andwho was one of two speakers on the ques-tion, did not mention either Brown or art-icle first, § 20.

FN58. Contrary to the majority's sugges-

tion, moreover, to the extent that the reachof Brown was unclear in 1965, the weightof the available authority, which was con-firmed by the United States Supreme Courtin 1971; Swann v. Charlotte-MecklenburgBoard of Education, 402 U.S. 1, 6, 91S.Ct. 1267, 1271, 28 L.Ed.2d 554 (1971);was clearly to the effect that, despite theruling in Brown, there is no affirmativestate duty “ ‘to change innocently arrivedat school attendance districts by the merefact that shifts in population either increaseor decrease the percentage of either Negroor white pupils.’ ” Bell v. School City ofGary, Indiana, 324 F.2d 209, 213 (7thCir.1963), cert. denied, 377 U.S. 924, 84S.Ct. 1223, 12 L.Ed.2d 216 (1964); seealso Springfield School Committee v.Barksdale, 348 F.2d 261, 264 (1stCir.1965); Downs v. Board of Education,336 F.2d 988, 998 (10th Cir.1964), cert.denied, 380 U.S. 914, 85 S.Ct. 898, 13L.Ed.2d 800 (1965); Blocker v. Board ofEducation, 226 F.Supp. 208, 230(E.D.N.Y.1964). The two cases that themajority cites for such speculative relianceby the convention delegates do not supportit. Booker v. Board of Education, 45 N.J.161, 177-78, 212 A.2d 1 (1965), holds thatthe New Jersey commissioner of educationhas authority to reduce de facto segrega-tion on the basis of state law and policy.Jenkins v. Township of Morris School Dis-

trict, 58 N.J. 483, 497-98, 279 A.2d 619(1971), while holding the same, collectscases from 1966, not 1965.

**1327 *123 Finally, the available historical evid-ence does not end with the printed record of theconvention. There are postconvention documentsthat shed light on the question involved in this case,principally by the absence of any suggestion thatcomports with the majority's analysis. These docu-ments are: (1) a resume by the secretary of the stateof the proposals passed by the convention; (2) an








































annotated copy of the proposed revised constitu-tion, with marginal notes, published by the conven-tion itself “as a guide to the people of the state”;and (3) an account published in The Hartford Cour-ant, December 5, 1965, p. 36, of an interview withBaldwin in which he explained the work of the con-vention. Each of these discusses article first, § 20,in brief and summary fashion. None of them,however, even suggests that it could have oppositemeanings when applied to education and otherrights. If the majority's startling textual and histor-ical conclusions are correct, it is curious that no oneat the time understood what the convention haddone, not even the delegates themselves.FN59

FN59. I recognize that my comments inthis respect are premised on the notion thatthe majority's interpretation of article first,§ 20, constitutes a significant change frompreexisting interpretations of that article,even in the educational context, and evengiving due regard to the difference in lan-guage between the federal equal protectionprovision and this article. This premise isvalid, nonetheless, particularly because themajority's analysis rests on the concurrentproposition that “because of” and“segregation” have dual meanings: onewhen applied to education under articleeighth, § 1; and an opposite one when ap-plied to all other civil and political rights.Given this premise, one would have expec-ted some comment explicating the startlinglinguistic and jurisprudential path bywhich the majority has read the two provi-sions together.

*124 D

Remedy

The final fundamental flaw in the majority opinioninvolves its discussion of a remedy for the constitu-tional violation that it has found. In what must

surely be one of the great understatements in thiscourt's history, the majority recognizes “that thefashioning of appropriate declaratory or injunctiverelief requires careful consideration in order toweigh the benefits and costs of various remedialmeasures.” The majority considers remanding thecase to the trial court for the fashioning of a remedybecause, in its view of the record, “the parties havenot had the opportunity to present evidence directedto the remedial consequences that follow from ourdecision on the merits of the plaintiffs' complaint,”and because in this court the plaintiffs “have not fo-cused their attention on the remedial consequencesof a substantive decision in their behalf.” The ma-jority eschews this course of action, as well as thenotion of inviting further briefing in this court,however, in favor of “the methodology used inHorton I,” namely, staying further judicial interven-tion to afford the General Assembly an opportunityto take appropriate action. In what must surely beone of the most ironic statements in this court's his-tory, given the majority's judicial overreaching inthis case, the majority offers as its rationale for thismethodology “[p]rudence and sensitivity to theconstitutional authority of coordinate branches ofgovernment....”

This flaw has two parts. First, it misrepresents therecord in this case. Second, it imposes on the Gen-eral Assembly a mandate to enact a remedial re-gime without an articulation of principle to guide itin its endeavors.

*125 1

The Record Regarding Remedy

The majority's assertion that “the parties have nothad the opportunity to present evidence**1328 dir-ected to the remedial consequences that followfrom our decision on the merits of the plaintiffs'complaint” is contrary to the record. The questionof a potential remedy was extensively litigated andbriefed in the trial court, which specifically noted




that “this is not a bifurcated hearing.” The partiespresented several witnesses on the subject of a rem-edy.FN60 In their posttrial brief, the plaintiffsspent twelve pages discussing the question of aremedy, and the defendants responded in kind, de-voting thirty pages to the question.

FN60. For example, the plaintiffs presen-ted William Gordon as an expert in, amongother things, “desegregation planning, de-segregation techniques and equity analys-is.” He testified that he had never “seen aninterdistrict remedy that was put into effectthat didn't have some type of Court order.”He also testified regarding the need for aplanning process to develop an integrationplan, the relative merits of different typesof such plans, such as controlled choice,magnet schools and educational parks.

The plaintiffs also offered Gary Oldfieldas “an expert in the analysis of desegreg-ation remedies, and the relationshipsbetween segregation and desegregationand opportunity.” He testified about theconditions under which implementationof a desegregation plan can succeed, therole of teacher involvement in desegreg-ation plans, the role of transportationplans, the use of a housing component,and the role of the court in such remed-ies.

The plaintiffs also introduced the depos-itions of two other witnesses thatcovered the question of remedies. JohnMannix' deposition testimony coveredthe question of busing, scattered housingin the suburbs and magnet schools. Ger-ald Tirozzi's deposition testimony dealtwith past efforts to remedy racial isola-tion and concentrations of poverty, andthe relative merits of various approachesto integration plans.

The defendants presented Christine Ros-

sell as their primary witness on the ques-tion of remedy. She testified regarding: acomparison of the effectiveness of man-datory, as opposed to voluntary, deseg-regation plans; the merits of controlledchoice plans; and the factors necessaryto consider in bringing about stable in-tegration.

In addition, on remand the trial court made numer-ous findings regarding a potential remedy. Theplaintiffs do *126 not challenge these findings inthis appeal. The court found that no state in thecountry has a racial imbalance law that requires in-terdistrict balancing. Under the heading, “TheNature and Scope of the Remedy,” the court madeseventeen additional specific findings. Amongthose findings were the following. The plaintiffsseek to have the court direct the Hartford schooldistricts and the twenty-one suburban districts toaddress the claimed inequities jointly, to reconfig-ure district lines, and to take other steps sufficientto eliminate those inequities. The court also foundthat the “present racial, ethnic and socioeconomicconcentration and isolation of the schoolchildren inthe Hartford public school system on the basis oftheir residence is principally the result of social anddemographic patterns of change that have occurredover the past thirty years in the Hartford metropolit-an area.”

The trial court found further that the relief soughtby the plaintiffs includes the integration of the pub-lic schools in the region for the purpose of eliminat-ing economic, as well as racial and ethnic, isola-tion. The court noted that, although William Gor-don, an expert witness for the plaintiffs, was of theopinion that the federal courts' method of eliminat-ing de jure segregation could be effectively appliedto this case, the remedial planning in this casewould be more complicated because the remedysought by the plaintiffs includes interdistrict eco-nomic integration. The court also noted theplaintiffs' expert witnesses' opinions that problemsof poverty can be appropriately addressed by the



public schools. The court rejected these opinions,however, as inconsistent with the “general agree-ment that conventional educational approaches areinadequate to address the special problems of theurban poor,” and with the “unanimous and appar-ently undisputed finding of the governor's commis-sion on quality and integrated education that there[are] no educational strategies or *127 initiativesthat could fully deal with the larger issues ofpoverty, unemployment, housing, health, substanceabuse, hunger, parental neglect, and crowded andsubstandard housing” that are associated with theconcentration of poverty.

The trial court specifically found that there “are noexisting standards or guidelines that educators, so-cial scientists or desegregation planners can offer orrecommend to achieve the proper racial, ethnic andsocioeconomic **1329 balance in the school dis-tricts of the Hartford metropolitan area.” The courtfurther found that “[m]andatory student reassign-ment plans to achieve racial balance, whether intra-district or interdistrict, are ineffective methods ofachieving integration, whether they are mandatedby racial imbalance laws or by court order.” In thisconnection, the court also found that “[p]roposedsolutions to the problems of racial, ethnic and eco-nomic isolation which rely on coercion and whichfail to offer choices and options either do not workor have unacceptable consequences.” Finally, thecourt found that “[i]ntegration in its fullest andmost meaningful sense can only be achieved bybuilding affordable housing in suburban areas in or-der to break up the inner city ghettos, and by mak-ing urban schools more attractive for those who liveoutside the city.”

These facts, like the facts regarding the educationaleffects of poverty rather than of race or ethnicity,were drawn from the testimony of the witnesseswhom the parties had presented at trial. The com-peting factual claims were vigorously litigated attrial and briefed in the trial court, and both sideshad a full and fair opportunity to brief them in thiscourt. If, as the majority suggests, that opportunity

was not adequately afforded here, it can only be at-tributed to the fact that the majority precludes it bysending the case directly to the General Assemblyand the executive branch. This brings *128 me tothe task that the majority has thrust upon thosebranches of government by its opinion.

2

The Lack of a Recognizable Principle or Standard

I confess that, if I were a member of either the ex-ecutive or legislative branch of our government, Iwould have but the slightest glimmering of whatkind of legislation would comport with the major-ity's mandate, because the opinion articulates noprinciple or standard upon which to base such legis-lation. Confining my discussion here to the Hart-ford metropolitan area, I can find no principle orstandard in the majority opinion by which to meas-ure the level of racial and ethnic integration of theAfrican-American and Hispanic schoolchildren thatwill be constitutional.

The closest thing to such a principle are three state-ments by the majority. The first is that “the exist-ence of extreme racial and ethnic isolation ” in thepublic schools violates the constitution. (Emphasisadded.) The second is that if “significant racial andethnic isolation continues to occur,” no intent tobring about or maintain that isolation is required inorder to establish a constitutional violation.(Emphasis added.) The third is that a “significantcomponent of [a] substantially equal educationalopportunity is access to a public school educationthat is not substantially impaired by racial and eth-nic isolation.”

Assuming that these elliptical references constitutethe majority's guidance to the General Assembly, isthe lack of significant isolation, or the presence ofsubstantial impairment, the same as “substantialequality?” Does significant isolation or“substantially impaired” mean that, with respect to



the Hartford metropolitan area, the legislature muststart with the last census figures, and redraw thedistrict lines so that each municipality*129 has asubstantially equal percentage of African-Americanand Hispanic schoolchildren? Or does the referenceto “extreme racial and ethnic isolation” mean that,so long as the concentration is not massive-something less than the current 92 or 95 percentfigure,FN61 for example-the constitution will notbe violated? Or is the measure a statewide, ratherthan a district-wide figure? That is, must each mu-nicipality have a percentage of African-Americanand Hispanic schoolchildren substantially equal to**1330 the percentage of such children in the state?Education is, after all, a state responsibility that hasonly been delegated to the municipalities.

FN61. Indeed, these figures constitute acombination of the percentages of African-American and Hispanic students in theHartford schools. Thus, underlying the ma-jority's entire thesis of the constitutionalneed to remedy racial and ethnic isolationin the schools of our state is the unfoundedassumption that, for purposes of measuringdiversity in those schools, these twogroups constitute a monolithic cultural en-tity. In my view, such an assumption is in-sulting to both groups. In fact, viewedthrough a somewhat different prism-viewing these two groups not as culturallymonolithic but as culturally different-aschool system like Hartford's can be seenas more culturally diverse than an all whiteschool system.

Further, why is the municipality the appropriatemeasuring unit, rather than the individual school?After all, if a student's constitutional right to an in-tegrated education is violated by being required tobe educated in a racially or ethnically concentratedsetting, thereby, according to the majority, missingout on the social benefits of an integrated educationand incurring the social burdens of a segregatededucation upon which the majority's analysis rests,

then is it not appropriate that we look at the actualsetting in which each child's education takes place?After all, a student who attends a racially and eth-nically concentrated school, albeit in a racially andethnically integrated school district, will not havethose benefits and will carry those burdens. If so,then it seems that each school must, constitution-ally, have the appropriate racial and ethnic makeup.

*130 These are just some of the questions that areraised, but not addressed, by the majority opinion.

The task of the state will be complicated, moreover,by the findings of the trial court in this case regard-ing remedy. The majority does not address thesefindings, but my examination of the record dis-closes that they are based on sufficient evidence towithstand appellate scrutiny. Among those findingsare the following.

The trial court found that there are no educationalstrategies or initiatives that could fully deal withthe larger issues of poverty, unemployment, hous-ing, health, substance abuse, parental neglect, andcrowded and substandard housing that are associ-ated with the concentration of poverty under whichthe plaintiffs suffer. Thus, it is these factors, not theplaintiffs' racial and ethnic concentration, that ac-count for the educational deficiencies of which theplaintiffs complain. Furthermore, the court foundthat there are no existing standards or guidelinesthat educators, social scientists or desegregationplanners can offer or recommend to achieve theproper racial, ethnic and socioeconomic basis in theschool districts of the Hartford metropolitan area.The majority's mandate, therefore, will require thestate to devise a strategy to compel integration that,the trial court found after six years of litigation,will not significantly ameliorate the underlyingeducational deficiencies of which the plaintiffscomplain, and with respect to which educators, so-cial scientists and desegregation planners could notoffer standards or guidance. Thus, the majoritythrusts on our state government the truly awesometask of devising a remedy for educational deficien-cies in Hartford-a remedy that will necessarily re-



quire drastic statewide changes-without an intelli-gible guiding principle, and with no indication thatthe true source of Hartford's educational deficien-cies will be addressed thereby.

*131 In this respect, also, this case differs markedlyfrom Horton I. In that case, like this case, the ques-tion of the availability of an appropriate remedy orremedies had been litigated. In that case, however,unlike this case, the trial court had found, and weaffirmed based on that finding, that there were feas-ible remedies available to achieve the substantialequality of educational opportunity that was not be-ing afforded by the flat grant funding system. Hor-ton I, supra, 172 Conn. at 635-36, 376 A.2d 359.Furthermore, in that case, unlike this case, therewere successful methods in use in many other statesfor remedying the inequality of educational oppor-tunity resulting from financial inequities. Id., at651, 376 A.2d 359. According to the trial court'sfindings here, by contrast, there are no strategiesavailable, or in successful use elsewhere, for rem-edying differences in educational opportunities thatresult from concentrations of poverty. In sum,whereas the remedy in Horton I involved movingdollars around and thereby ameliorating educationaldifferences and deficiencies, the remedy here willinvolve moving schoolchildren around withoutameliorating such differences or deficiencies.

IV

THE NECESSARY IMPLICATIONS OF THEMAJORITY OPINION

Despite the effort of the majority to cabin its con-clusions, it is clear to me that the **1331 effortmust fail and that, when the General Assembly at-tempts to enact legislation in order to meet themandate of this case, there are several necessary-not possible, not probable but, in my view, neces-sary-implications of the majority opinion that it willbe required to confront. I have already discussedwhat seems to me to be the most obvious implica-

tion, namely, that the majority's rationale applies,not just to interdistrict racial and ethnic concentra-tions, but to intradistrict and interschool concentra-tions*132 as well. There are, however, other lessobvious but equally necessary implications.

These implications are compelled in part by theidentity of the plaintiffs. Six of the eighteenplaintiffs are white students-four who reside inHartford, and two who reside in West Hartford.Moreover, there is no showing that the two wholive in West Hartford are burdened by a concentra-tion of poverty. The majority opinion vindicatesthese white students' constitutional right to attendunsegregated schools, as well as the constitutionalright of the African-American and Hispanicplaintiffs. Furthermore, the racial and ethnic con-centration involved in the Hartford school district ismore ethnic than racial. That is, a greater percent-age of the students in Hartford are Hispanic thanare African-American, and Hispanics are the fastestgrowing segment of the school population. Thus, interms of article first, § 20, this case is more about“ancestry” and “national origin” than it is about“race” or “color.” FN62

FN62. A second significant factor thatcompels the drastic implications of the ma-jority's opinion is its definition of“segregation” as used in article first, § 20,when applied to education under articleeighth, § 1. This definition does not requireany state intent to bring about racial or eth-nic concentration, and it appears to requirethat there be no significant disparities inthe racial and ethnic makeup of variousschool districts.

A third such factor is the majority's ra-tionale for that definition. That rationaleis based on the recognition of the generalsocial benefits of a racially and ethnic-ally integrated educational setting and ofthe general social burdens of a raciallyand ethnically concentrated educationalsetting. It deems irrelevant, however, the









specific factual findings in this case,which are that the educational deficien-cies of the Hartford school district ofwhich the plaintiffs in this case complainarise from the concentration of povertyin Hartford, and not from the racial andethnic concentration in the schools.

A fourth factor is the language of articlefirst, § 20, itself. That language prohibitsdiscrimination or segregation, not onlybecause of race or ethnicity, but also be-cause of religion. There is nothing in thelanguage or history of article first, § 20,to suggest that it embodies a hierarchy ofprotected classes. Indeed, it would beOrwellian, and antithetical to the entireequal protection premise of article first,§ 20, to read it as embodying a principlethat some classes are more equal thanothers. It follows, therefore, that reli-gious concentration in public schools,not resulting from a state intent, must betreated the same as racial and ethnic con-centration.

*133 The first of the necessary implications of themajority opinion is that every school district in thestate that is primarily white and that does not havean appropriate percentage of African-American andHispanic students, is in violation of article first, §20.FN63 This conclusion, it seems clear to me,flows inexorably from the facts that (1) in this case,it is not only the constitutional rights to an un-segregated education of the African-American andHispanic students, taken together, that are being vi-olated, but the same rights of the white plaintiffswho live in Hartford and West Hartford, and (2)this violation is based on the general social benefitsattributable to an integrated education, and the gen-eral social burdens attendant upon a racially andethnically concentrated education. Certainly, everypredominantly white school district lacks the gener-al social benefits of an integrated education, andsuffers from the general social burdens of a segreg-

ated education. Just as certainly, the constitutionalrights of white students in other parts of the statecannot be less than those in the Hartford metropol-itan area, and a student's constitutional right to at-tend school in an unsegregated public school dis-trict, or to attend an unsegregated school withinsuch a district, cannot depend on where the studenthappens to live.

FN63. I do not address the implications ofthe majority opinion for other racial andethnic groups, such as Asian-Americans,Polish-Americans and Italian-Americans,not because I do not think there are suchimplications, but because attempting tofigure them out at this point is beyond mycapability.

**1332 Indeed, the majority comes very close tomaking explicit this necessary implication of its de-cision. It states that the right of “Connecticutschoolchildren” to a substantially equal educationalopportunity requires “access to a public school edu-cation that is not substantially impaired by racialand ethnic isolation.” Thus, every rural and sub-urban school district, from Litchfield to Pomfretand from Greenwich to Granby, is now eitherclearly or probably unconstitutional; its boundaries,or *134 the racial and ethnic makeup of its schoolpopulation, or both, will have to be changed in or-der to remedy that unconstitutionality. This meansthe end of the traditional system of municipalitybased school districts.FN64

FN64. In fact, there are vast areas of thestate, such as Litchfield, Tolland andWindham counties, where it will be diffi-cult if not impossible to find sufficientminority students to comply with the ma-jority's mandate. In these areas, evenbroadly drawn regional school districtswill be constitutionally deficient.

Second, because ethnicity is a specifically protectedclass under article first, § 20, and because the factsof this case rest more on ethnicity than on race, not



only must every school district in this state have anappropriate percentage of African-American andHispanic students, taken together, but also an ap-propriate ethnic makeup, irrespective of race. Fur-thermore, I cannot see how such a makeup can beproperly confined to counting Hispanic students.Certainly, other ethnic groups have no lesser statusthan Hispanic students. Just as certainly, moreover,the general benefits of an integrated education andthe general burdens of a segregated education applyto ethnic, as well as racial, segregation. Therefore,if ethnicity is a protected class under article first, §20, if “segregation” does not require intent, and ifsegregation prohibits ethnic as well as racial se-gregation, then in order for a school district to benonsegregated it will have to contain an appropriatepercentage of the various major ethnic groups in thestate.

Third, because “segregation” in article first, § 20,does not have an intentionality requirement, and be-cause that article protects religion on a par withrace and ethnicity, every school district, and prob-ably every neighborhood school, that is heavilyconcentrated with students of one religion is se-gregated. Consequently, all of the students in thatdistrict or school are being subjected to segregation“because of religion.” Therefore,*135 the legis-lature will be required to address this necessary im-plication of the majority's mandate, so that eachdistrict, or school, will have an appropriate percent-age of Protestant, Roman Catholic and Jewish stu-dents.FN65

FN65. I have only mentioned what I as-sume are, in terms of our population, thethree major religions in the state. It may bethat other religions, such as Islam, willalso have to be taken into account.

As a result of these implications, the legislature, ifit is to take seriously its responsibilities under themajority's mandate, will have few options, if any,other than a statewide realignment of school dis-tricts, accompanied by a statewide transportationsystem.FN66 Such a system will be necessary to

ensure that the constitutional rights of every school-child in the state are protected.FN67

FN66. Indeed, that is precisely the remedythat the plaintiffs sought in the trial courton an interdistrict basis. Moreover, the trialcourt also found that students who live inan environment of concentrated povertybring with them to school the array of so-cial disadvantages associated with povertythat seriously hinder academic achieve-ment, and that it is those disadvantages,rather than racial and ethnic isolation, thatare the primary causes of educational diffi-culties. These findings are supported bythe evidence in this case. Furthermore, al-though the majority has deemed these find-ings to be irrelevant to its constitutionalanalysis, I do not read the majority opinionto reject them as unfounded. Thus, afterthe legislature has undertaken the processof realigning school district lines andtransporting students so as to achieve theconstitutionally mandated degree of racial,ethnic and religious integration, under thefindings in this case the poverty strickenstudents of our urban areas will carry theireducational disadvantages with them.

FN67. I recognize that these implicationsdo not take into account the fact that themajority's conclusions rest in part on thefact that the plaintiffs' racial and ethnicisolation is also accompanied by a concen-tration of poverty. I nonetheless think thatthe implications are present and are neces-sary, because the constitutional underpin-nings of the majority's conclusion that theexisting district lines must be changed arethat: (1) a racially and ethnically integratededucational system carries benefits that aconcentrated system does not, and is freeof burdens that a segregated system im-poses; and (2) “segregation” under articlefirst, § 20, means de facto racial and ethnic



separation. Neither of these notions hasanything to do with poverty or its effects.Indeed, the majority has deemed irrelevantto its constitutional analysis the findings inthis case that all of the educational defi-ciencies that the plaintiffs attribute to theHartford school system are attributable tothe environment of poverty in which thefamilies of the students live, and not totheir racial and ethnic isolation. Thus, un-der the majority's analysis, at the end ofthe day, the fact of the plaintiffs' concen-tration of poverty is constitutionally irrel-evant.

**1333 *136 V

THE PLAINTIFFS' CLAIMS AS PRESENTED TOTHIS COURT

This discussion brings me, finally, to a considera-tion of the plaintiffs' claims as they were actuallypresented to us for adjudication, not as reconstruc-ted by the majority. The plaintiffs make threeclaims that, in my view of the case, must be ad-dressed.FN68 These are, in general terms, that: (1)the defendants violated article first, §§ 1 and 20,and article eighth, § 1, by failing to provide publicschoolchildren in the Hartford metropolitan area anequal educational opportunity; (2) the defendantsviolated article first, §§ 1 and 20, by providing edu-cation in the Hartford metropolitan area that is se-gregated on the basis of race and ethnicity; and (3)the defendants violated article eighth, § 1, by fail-ing to provide Hartford schoolchildren a minimallyadequate education. Although much of my priordiscussion disposes of most of these claims, somefurther discussion is appropriate. None of theseclaims is persuasive, moreover, because none issupported by the record. I would, therefore, affirmthe judgment of the trial court.FN69

FN68. There is a fourth claim, namely, thatthe defendants have failed “to remedy the

racial, ethnic and economic isolation andlack of educational resources despite theirlong-standing knowledge of the harmfuleffects of these conditions.” Because thisclaim presupposes that the plaintiffs haveestablished a constitutional violation thatrequires the defendants to have remedied,and because I conclude that the plaintiffshave not done so, it is not necessary to ad-dress this claim.

FN69. Although I disagree with the trialcourt's conclusion that there is no state ac-tion involved, the facts found by the trialcourt and the applicable legal principlescompel a judgment for the defendants onthe merits of this case.

A

Equal Educational Opportunity

As I indicated previously, the plaintiffs' equal edu-cational opportunity claim is based on Horton I,and is *137 premised on the factual assertion thatthe racial and ethnic concentration in the district,coupled with their concentration of poverty andtheir lesser educational resources, as compared tothe resources of the suburban districts, has causededucational outcomes in the Hartford school districtthat are inferior to those in the suburban districts.The claim also depends in significant part on thepremise that, with respect to the relative education-al outcomes of Hartford and the suburbs, the statemastery test scores are a valid tool for measuringdifferences in educational outcomes between Hart-ford and the suburbs. Consequently, they argue, justas in Horton I, in which unequal funding caused aninferior quality of education in the property-poortowns and violated the constitution, in this case thecombination of factors listed earlier has caused thequality of education in the Hartford district to be in-ferior to that provided in the surrounding suburbandistricts and violates the constitution. Similarly, the







plaintiffs argue that the relative quality of educa-tional opportunities must be measured by the sameor similar factors that this court deemed relevant inHorton I, supra, 172 Conn. at 634, 376 A.2d 359,namely: educational outcomes, as reflected by thestate mastery test scores, state remedial goals,scholastic aptitude test (SAT) scores and college at-tendance rates; plants and facilities; equipment,supplies, textbooks and libraries; course offeringsand curriculum; teaching and professional staff; bi-lingual education programs; and special needs pro-grams.

As I indicated previously, although this claim mightwell be persuasive if its factual underpinnings weresound, it founders on the factual findings of the tri-al court. It is not **1334 necessary to recount all ofthose findings in this regard. It is sufficient to re-peat here several that are fatal to the plaintiffs'claim.

*138 The trial court's findings are squarely contraryto the plaintiffs' claim that Hartford suffers from di-minished educational resources compared to itssuburban neighbors. The court found that, since1979, the state's method for financing publicschools has taken into account the needs of urbanschool districts by including in the aid formula thenumber of children from low income families and,since 1989, a weighting factor that takes into ac-count the number of students who score below theremedial standard on the state's mastery test scores.The court also found that the 1986 Educational En-hancement Act addressed cities' financial needs byraising teachers' salaries dramatically, so that Hart-ford, New Haven and Bridgeport have been able torecruit and retain teachers at salaries comparable to,if not higher than, the salary levels offered in thesuburbs, and that this has permitted urban classsizes to be reduced. The court found, in addition,that the priority school district program providesthat the poorer communities, like Hartford, receivethe greatest financial benefit, that the state factorsthe mastery test scores into the aid formula as ameasurement of a school district's need, and that

where students do not meet remedial standards ad-ditional funds are made available.

The trial court found, moreover, that Hartford'steachers are as qualified as their suburban counter-parts, and that they are very committed and dedic-ated to providing a quality education for their stu-dents. Hartford's teacher training program is basedon the “effective schools” concept, which is spe-cifically directed to the needs of urban and minoritychildren. Finally, the court found that Hartford isnot a negative educational setting, that there is“outstanding education going on in its schools,”that some “of the best special education classes inthe state can be found” there, and that the “Hartfordpublic schools offer academic programs that aresufficient to meet the basic educational needs of*139 all its students and also provide other pro-grams that are required to meet the special needs ofits economically disadvantaged students.”

As I indicated in great detail earlier, the trial court'sfindings are also squarely contrary to the plaintiffs'claim that there is a causal connection betweentheir racial and ethnic concentration-whether con-sidered alone or in conjunction with the concentra-tion of poverty-and any educational deficiencies ofwhich the plaintiffs complain. The gist of the trialcourt's findings in this regard is that it is not the ra-cial and ethnic isolation of the plaintiffs, but theirsocioeconomic status-their poverty, its concentra-tion, and all of the social pathologies that areclosely associated with poverty and its concentra-tion-that is the causative factor of those deficien-cies.FN70 These “disadvantaging characteristics”of poverty, which “poor children bring with them”from home and neighborhood to school, include“unemployment*140 ... substance abuse, hunger,parental neglect ... crowded and substandard hous-ing,”**1335 and such “at risk” factors as low birthweight and mothers on drugs at birth.

FN70. Some of these specific findings areas follows. The generally poorer academicperformance of African-American and His-panic students is explained for the most





part, not by their racial and ethnic isola-tion, but by the social and economic condi-tions under which their families live. Thus,it “is poverty and not race that is a princip-al causal factor in lower educationalachievement.” The problems of the Hart-ford school district arise from the fact thatthe minorities in it are primarily poor, andthe “real correlation with academicachievement is socioeconomic class ratherthan race....” Children who live in povertydo not do well in statewide academic test-ing because they carry with them the socialdisadvantages of their poverty, and not be-cause they are racially or ethnically isol-ated. This is demonstrated further by thefact that poor white children exhibit thesame educational patterns as poor minoritychildren, because poverty, and the concen-tration thereof, is the strongest predictor ofdiminished academic achievement.

Thus, the court specifically found thatvirtually “all of the differences in per-formance between Hartford students andthose in other towns, as well as differ-ences in college attendance, can be ex-plained by differences in socioeconomicstatus and the background factors thatsocioeconomic status represents.”Among these background factors are theheightened “mobility” of the Hartfordstudents, and the limited English profi-ciency of many of them. In this connec-tion, the court also found that it is pos-sible statistically to separate the educa-tional effects of poverty from those ofracial isolation, which the plaintiffs' ex-perts had not done.

Finally, the trial court's findings are squarely con-trary to the plaintiffs' claim that they have estab-lished valid differences in the educational outcomesbetween the Hartford school district and the suburb-an districts. To the extent that the plaintiffs rely on

the state mastery scores to measure these differ-ences, which as I read their brief is a considerableextent, the trial court found that such scores are nota valid means for measuring interdistrict achieve-ments. Moreover, despite the plaintiffs' assertion tothe contrary, the court's findings on this subject arenot confined to the state mastery test scores.FN71

FN71. Specifically, the trial court foundthat the scores serve purposes that are notrelated to measuring interdistrict perform-ance, and that it would be an abuse of theirpurposes to use them for such a measure-ment. Moreover, the court found that thescores should not be seen to be caused byracial and ethnic isolation, because the res-ults could be related to other factors thathave not been considered in that context.The test scores cannot serve as a basis forinterdistrict comparisons because they donot take into account other significantfactors, such as socioeconomic status, en-vironmental deprivations at home, dimin-ished motivation to succeed, the number ofstudents with limited English proficiency,and the extraordinary mobility of the Hart-ford student population. The court alsofound that, because school officials haveno control over where their students live orthe conditions under which they live, theofficials are not in a position to remedy thesevere disadvantages that their studentsbring with them to school.

The plaintiffs contend, nonetheless, that the trialcourt's findings are clearly erroneous, that many ofthe facts upon which they rely were undisputed inthe trial court, and that the court was required to ac-cept certain of the experts' opinions. Suffice it tosay that neither the record nor the law bears out thatcontention. The court's findings are fully supportedby the evidence. None of the facts in question wasundisputed; on the contrary, they were hotly dis-puted in the trial court, *141 originally and on ourremand. Finally, it is axiomatic that a trial court is



not required to accept an expert's opinion; Drabikv. East Lyme, 234 Conn. 390, 396, 662 A.2d 118(1995); and that is particularly true in this case,where the court indicated that some of theplaintiffs' experts' opinions were flawed methodolo-gically, and where there were contrary expert opin-ions that the trial court did credit.

B

Per Se Segregation Under Article Eighth, § 1, andArticle First, § 20

This claim of the plaintiffs bears little additionaldiscussion. As I indicated previously, it rests en-tirely on the proposition that “segregation” as usedin article first, § 20, and applied to education underarticle eighth, § 1, means de facto racial and ethnicconcentration, without a requirement of state inten-tion. As I also indicated previously, this claim issimply untenable, and such a conclusion cannot ra-tionally be drawn from the language or history ofthose constitutional provisions.

C

A Minimally Adequate Education

The plaintiffs' final claim is that they have estab-lished that they are being deprived of their right,under article eighth, § 1, to a minimally adequateeducation. This claim requires some additional dis-cussion, because the majority did not discuss it and,therefore, it was not involved in my analysis of themajority opinion. I conclude, nonetheless, that theplaintiffs cannot prevail on this claim.

The plaintiffs argue, first, that, under both the ma-jority opinion in Horton I, supra, 172 Conn. at 649,376 A.2d 359 (referring to state's “constitutionalduty to educate its children”), and the dissentingopinion therein; id., at 659, 376 A.2d 359 (Loiselle,

J., *142 dissenting) (“[w]hen the constitution saysfree education it must be interpreted in a reasonableway. A town may not herd children in an open fieldto hear lectures by illiterates.”); article eighth, § 1,embodies a requirement of a minimally adequateeducation that the judiciary is empowered to en-force. The plaintiffs also point to precedents fromother jurisdictions that, in their view, have held ac-cordingly. They next contend that the trial courtemployed an improper standard in defining a min-imally adequate **1336 education and that, underthe proper standard, the evidence established a viol-ation thereof as a matter of law.

The defendants respond, first, that article eighth, §1, does not embody any particular substantive levelof education that the judiciary has power to en-force. They contend that, although they agree thatthe constitutional provision includes the right to an“adequate education”; id., at 659, 376 A.2d 359; it“does not authorize the judiciary to establish specif-ic educational programs and goals or levels of edu-cational achievement as a constitutional require-ment.” The defendants next argue that, assumingwe do consider the issue, the trial court cannot befaulted for using a standard that the plaintiffs them-selves proposed, that the standard now proposed bythe plaintiffs is improper, and that, under any ap-propriate standard, the plaintiffs' rights have notbeen violated.

In my view, it is not necessary in this case to decidewhether article eighth, § 1, embodies a requirementthat the state provide a minimally adequate educa-tion or, if it does, the extent to which such a re-quirement is subject to judicial review. Nor is it ne-cessary to define the specific contours of such aneducation. Assuming that there is such a require-ment that is subject to judicial review, I concludethat the standard proposed by the plaintiffs is im-proper and that, gauged by any appropriate stand-ard, the plaintiffs have not been deprived of such aright.

*143 Although it is difficult to ascertain preciselythe standard that the plaintiffs propose, it appears to



















be geared in significant part to student achieve-ment, as measured by certain performance goals setby the state, namely, the state mastery tests.FN72

Thus, they assert that the trial court improperly re-jected as irrelevant to this claim their “evidence re-lating to whether Hartford children were succeed-ing in the goals set by the state....” They contendthat this standard is not met in Hartford, which intheir view is a “school system whose children can-not read or write, even if provided with significantresources,” and that Hartford has not provided aminimally adequate education because it is not asystem “that succeeds in teaching children to atleast achieve a minimal level of reading, writingand arithmetic....” As the defendants correctlypoint out, the plaintiffs base these characterizationsof the Hartford school district on the state masterytest scores for Hartford.

FN72. In this connection, the plaintiffsalso refer to “other measures of achieve-ment such as drop-out rate, graduationrate, SAT scores and college attendance.”Although these do not involve any goals orstandards set by the state, the plaintiffs linkthem with the mastery test scores.

I reject, as did the trial court, the plaintiffs' pro-posed standard for a constitutionally required min-imally adequate education. Performance or achieve-ment of the student population, taken generally,cannot in my view be the principle upon which anysuch requirement is based. There is nothing ineither the language or the history of article eighth, §1, to support such a standard.

Not only the trial court's findings in this case, butalso common sense tells me that any appropriatestandard by which to measure the state's assumedobligation to provide a minimally adequate educa-tion must be based generally, not on what level ofachievement students reach, but on what the statereasonably attempts to make available to them, tak-ing into account any special needs of a particularlocal school system. *144 Although schools areimportant socializing institutions in our democratic

society, they cannot be constitutionally required toovercome every serious social and personal disad-vantage that students bring with them to school, andthat seriously hinder the academic achievement ofthose students. Thus, as the trial court found,achievement levels as measured by such tools asthe state mastery tests are an inappropriate meas-urement of the quality of education. Those testscores do not take into account important variablesthat erect difficult barriers to achievement, such associoeconomic status, early environmental depriva-tions, low birth weight, mothers on drugs at birth,diminished motivation to succeed academically, ex-traordinary mobility, limited English proficiency,and all of the other dismal factors associated withthe concentration of poverty in the Hartford schooldistrict.

**1337 This is not to say that, as part of its as-sumed constitutional obligation to provide a minim-ally adequate education, the state has no obligationto attempt, by reasonable means, to amelioratethese problems. It may well have such an obliga-tion. It is to say, however, that this record fully es-tablishes that the state has, through the programs,policies and funding mechanisms already described,met that obligation.

VI

CONCLUSION

It is a bedrock principle of our system of govern-ment that the legislative branch is the source of thefundamental public policy of the state, and that thecourts may invalidate such a policy only where it isestablished beyond a reasonable doubt that it viol-ates a constitutional right. Morascini v. Commis-sioner of Public Safety, 236 Conn. 781, 789, 675A.2d 1340 (1996). Not only does the majority faileven to give lip service to this principle, the major-ity violates it.

*145 With no justification other than its own view









of the wiser course for the state to follow, the ma-jority strikes down a legislative public policy de-termination-in effect since 1909, more than half acentury prior to the 1965 constitutional convention-in favor of municipality based public school dis-tricts, and substitutes its own policy choice for thatlegislative determination. With the same absence oflegitimate justification, the majority strikes downthe legislative policy determination that more canbe accomplished toward the goal of diversity in ourpublic school systems by voluntary and incrementalmeans, supplemented by state funding and incent-ives, than by a mandate that requires the abandon-ment of municipality based school districts and theinstitution of a statewide system of transportationof schoolchildren. Instead, the majority substitutesits policy choice and opts for a mandate that will re-quire such a statewide system of transportationbased solely on racial, ethnic and religious factors.

Although the majority may disagree with the legis-lature's choices and initiatives, it cannot be main-tained that reasonable people may not differ regard-ing the best way to reach the goal of diversity inour public schools. Indeed, in states and communit-ies across the nation people of goodwill of all racesand ethnic groups are struggling to find acceptableand feasible ways to reach and maintain that goaland, at the same time, to reach the twin goal of im-proving the quality of their children's education.This case, in which there are such disagreementsand in which the defendants are engaged in a goodfaith effort to reach those goals, is the quintessen-tial case for deference to the policy choice of the le-gislative branch.

The majority concludes its opinion with a rhetoricalinvocation of its oath of office as a justification forits decision. That same oath of office, however, em-braces the concept of judicial respect for the legit-imate policy *146 choices of the legislative branch,even when judges disagree with those choices.

Only twelve years ago, we stated: “This court hasnever viewed constitutional language as newly des-cended from the firmament like fresh fallen snow

upon which jurists may trace out their individualnotions of public policy uninhibited by the historywhich attended the adoption of the particular phras-eology at issue and the intentions of its authors. Thefaith which democratic societies repose in the writ-ten document as a shield against the arbitrary exer-cise of governmental power would be illusory ifthose vested with the responsibility for construingand applying disputed provisions were free to strayfrom the purposes of the originators.” Cologne v.Westfarms Associates, supra, 192 Conn. at 62, 469A.2d 1201. In this case, that snow has now fallen,and the shield against the arbitrary exercise ofpower has been shattered.

Conn.,1996.Sheff v. O'Neill238 Conn. 1, 678 A.2d 1267, 111 Ed. Law Rep. 360

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sheff v. o'neill - sheff movement

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