Sheff v. O'Neill

BERDON, J.,

concurring. I join the Chief Justice in her well reasoned majority opinion that concludes that the racial and ethnic segregation that exists in our public school system deprives schoolchildren of their state constitutional right to a “substantially equal educational opportunity.”1 More specifically, I agree “that, textually, *48article eighth, § 1, [of the Connecticut constitution] as informed by article first, § 20, requires the legislature to take affirmative responsibility to remedy segregation in our public schools, regardless of whether that segregation has occurred de jure or de facto.” I write separately because, in my view and as the record reflects, a racially and ethnically segregated educational environment also deprives schoolchildren of an adequate education as required by the state constitution.2

*49In Brown v. Board of Education, 347 U.S. 483, 493, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court of the United States noted that “education is perhaps the most important function of state and local governments. ... It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him [or her] for later professional training, and in helping him [or her] to adjust normally to his [or her] environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied [an equal educational opportunity].” Twenty-three years later, Justice Bogdanski, in his concurrence in Horton v. Meskill, 172 Conn. 615, 654-55, 376 A.2d 359 (1977), reaffirmed that thought: “[T]he right of our children to an education is a matter of right not only because our state constitution declares it as such, but because education is the very essence and foundation of a civilized culture: it is the cohesive element that binds the fabric of society together. In a real sense, it is as necessary to a civilized society as food and shelter are to an individual. It is our fundamental legacy to the youth of our state to enable them to acquire knowledge and possess the ability to reason: for it is the ability to reason that separates [men and women] from all other forms of life.”

*50Unlike the federal constitution, the constitution of Connecticut, article eighth, § 1, provides that education is a fundamental right of every child regardless of his or her race or ethnicity. Id., 648-49 (“in Connecticut, elementary and secondary education is a fundamental right, [and] pupils in the public schools are entitled to the equal enjoyment of that right”). Accordingly, it logically follows that the education guaranteed in the state constitution must be, at the very least, within the context of its contemporary meaning, an adequate education. Even Justice Loiselle, in his dissent in Horton v. Meskill, supra, 172 Conn. 658-59, conceded that the provision of an adequate education was constitutionally required and, in discussing the need to interpret that requirement in a reasonable manner, stated “[a] town may not herd children in an open field to hear lectures by illiterates.” Indeed, long before the formal incorporation of this right into our present constitution, this court recognized the state’s “duty to provide for the proper education of the young.” (Emphasis added.) State ex rel. Huntington v. Huntington School District, 82 Conn. 563, 566, 74 A. 882 (1909); see also Bissell v. Davison, 65 Conn. 183, 191, 32 A. 348 (1894).3

The state has established the boundaries of school districts coextensively with town lines, thereby placing in certain school districts, such as Hartford, overwhelming percentages of minority students. Indeed, the trial court found that “[s]tudents in the Hartford schools are racially isolated and are likely to become more isolated in the future.” In the 1987-88 academic year, 90.5 per*51cent of Hartford’s schoolchildren were of minority races or ethnicities. Yet, Hartford, like many of Connecticut’s urban centers, is encircled by school districts whose student populations include only a small percentage of minority children.4 The trial court’s forecast that racial and ethnic isolation would increase has unfortunately proven to be accurate. Figures recently released for the 1994-95 academic year, reveal that 93.4 percent of Hartford’s students are from minority racial or ethnic groups.5

This segregation can have a devastating impact on a minority student’s education. The United States Supreme Court recognized that segregation “generates a feeling of inferiority [within the students] as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. . . . Segregation of white and [African-American] children in public schools has a detrimental effect upon [the African-American] children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the [African-American], A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of *52[African-American] children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.” (Internal quotation marks omitted.) Brown v. Board of Education, supra, 347 U.S. 494.

In order to provide an adequate or “proper” education, our children must be educated in a nonsegregated environment. The trial court found, “[education in its fullest sense for both white and minority school children involves interracial and multiethnic exposure to each other and interaction between them, because racial and ethnic isolation [have] negative effects on both groups.” Indeed, a study commissioned by the state department of education in 1989, concluded that “desegregation has had some positive effect on the reading skills of black youngsters. . . . [T]here is some evidence that desegregation may help to break what can be thought of as a generational cycle of segregation and racial isolation.” J. Schofield, “Review of Research on School Desegregation’s Impact on Elementary and Secondary School Students,” Commissioned by the Connecticut Department of Education (1989) p. 35. The study further concluded that “there are indications that desegregated schooling can provide students with valuable behavioral experience which prepares them to function in a pluralistic society. . . . [T]here is some evidence that school desegregation may have long-term positive consequences on adult social relationships, housing patterns, and the like.” Id., p. 36.

The poor academic achievement of Hartford’s students is insightful into the devastating effects of racial isolation on the students’ education. For example, in 1991-92, 94 percent of the sixth graders in Hartford’s public schools failed to meet the state’s goal for mathematics; 80 percent failed to achieve the state’s goal for reading; and 97 percent failed to obtain the state’s goal for writing. Equally disturbing is the knowledge that, *53in that same year, 62 percent of Hartford’s sixth graders failed to achieve even the state’s remedial standards for reading.

Scholastic achievement scores, are but one effect of segregation on education. Children of every race and ethnic background suffer when an educational system is administered on a segregated basis. Education entails not only the teaching of reading, writing and arithmetic, but today, in our multicultural world, it also includes the development of social understanding and racial tolerance. If the mission of education is to prepare our children to survive and succeed in today’s world, then they must be taught how to live together as one people. Anything less will surely result in a segregated society with one racial and ethnic community pitted against another. Instead of fostering social division, we must build an integrated society, commencing with educating our children in a nonsegregated environment.

Accordingly, I conclude that, in addition to the state’s failure to provide Hartford schoolchildren with a “substantially equal educational opportunity,” these children are also being deprived of an adequate education because of their racial and ethnic isolation. It matters little with respect to the quality of the education that the segregation was unintentional. The fact that segregation exists as a result of the school districting statute requires the state to take remedial action to eliminate the constitutional violation of not providing these schoolchildren with an adequate education.6

Time is precious, especially when we are confronted with a constitutional violation that impacts the lives of our children and the future of our society. Every day that goes by is one more day that the schoolchildren who reside in Hartford and other urban centers in Connecticut are deprived of an adequate education. The *54plaintiff Milo Sheff was ten years old and in fourth grade when this litigation commenced more than seven years ago. We cannot recover what has been lost for him and others, but for those children who are presently enrolled in our public schools and for those who will enter in the future, we must eliminate the current segregation that exists.

I agree, however, with the Chief Justice that the executive and legislative branches of the state government should be given an opportunity7 to remedy what is now *55a terrible wrong. Nielsen v. State, 236 Conn. 1, 17, 670 A.2d 1288 (1996) (Berdon, J., concurring). Nevertheless, in the words of United States Supreme Court Chief Justice Warren, the state must act “with all deliberate speed.” Brown v. Board of Education, 349 U.S. 294, 301, 75 S. Ct. 753, 99 L. Ed. 1083 (1955).

I join in the majority opinion.8

I also agree that this ease is justiciable and one which requires judicial intervention to assure that the slate constitutional rights of schoolchildren are protected. In this case, as in Nielsen v. State, 236 Conn. 1, 13-14, 670 A.2d 1288 (1996) (Berdon, J., concurring), and Horton v. Meskill, 172 Conn. 615, 650-51, 376 A.2d 359 (1977), “the constitution directs the legislature to act in order to implement the respective constitutional provisions.” Nielsen v. State, supra, 13-14. As this court, recognized in Horton, we have jurisdiction to compel the legislature to act in those situations in which it fails to carry out its constitutional mandate. “We have a constitutional obligation to keep the doors of this court open in order to enforce our laws. . . . We cannot excuse the legislature’s default by merely labeling it a political question and thereby rendering the issue nonjustic.iable. Nor is it appropriate for us to conclude that the only remedy available to the people is at the polling booth by ‘kicking the rascals out.’ Our democracy depends in part on the willingness of the courts to enforce uniformly our constitutional law. We cannot be selective and choose to enforce some provisions, while turning our backs on others. Indeed, as Chief Justice Peters wrote in dissent, ‘[w]hat-ever the reasons may be, legislative inaction does not, to my mind, relieve this court of its independent duty to vindicate the const ituUonal rights of those who appear before us. Pellegrino v. O’Neill, 193 Conn. 670, 695, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984).” Nielsen v. State, supra, 16 (Berdon, J., concurring).

*48Furthermore, I agree that the state’s failure to act and to remedy the inequalities and inadequacies of public education constitutes state action. Horton v. Meskill, supra, 172 Conn. 648-49; see Moore v. Ganim, 233 Conn. 557, 595-96, 660 A.2d 742 (1995). The state did not deliberately establish a segregated school system. The state, however, chose to discharge its constitutional obligation of providing public education by establishing school districts according to town boundaries; General Statutes § 10-240; and by requiring schoolchildren to attend the public schools located within the district wherein they reside. General Statutes § 10-184. Moreover, the state is aware that such a statutory scheme is producing segregated school systems. Indeed, the trial court found that “[t]he single most important factor that contributed to the present concentration of racial and ethnic minorities in Hartford was the town-school district system which has existed since 1909 . . . .” Even in the face of federalism, legislative inaction amounts to state action. Reynolds v. Sims, 377 U.S. 533, 570, 84 S. Ct. 1362, 12 L. Ed. 2d 506, reh. denied, 379 U.S. 870, 85 S. Ct. 12, 13 L. Ed. 2d 76 (1964) (“[IJegisIative inaction coupled with the unavailability of any political or judicial remedy, had resulted, with the passage of years, in the perpetuated scheme becoming little more than an irrational anachronism”).

It is correct that at oral argument, as the Chief Justice notes, the plaintiffs acknowledged that their argument before the trial court did not focus on the claim that racial and ethnic segregation deprives schoolchildren of a constitutionally mandated adequate education. Paragraph three of the third count of the complaint, however, expressly alleges: “[T]he State of Connecticut, by tolerating school districts sharply separated along racial, ethnic, and economic lines, has deprived the plaintiffs and other Hartford children of their rights to an equal educational opportunity, and to a minimally adequate education." (Emphasis added.) Further, in that portion of the third count of the complaint captioned “Legal Claims,” the plaintiffs claim that the Hartford school district maintained by the state “fails to provide a majority of Hartford schoolchildren with a minimally adequate education . . . .” (Emphasis added.)

Although the trial court found that the schoolchildren are receiving a minimally adequate education, I would conclude, on the basis of the entire record in this case, that that conclusion was clearly erroneous. The trial *49court specifically found, and as I hereinafter set forth in this concurrence: “Education in its fullest sense for both white and minority school children involves interracial and multiethnic exposure to each other and interaction between them, because racial and ethnic isolation has negative effects on both groups.” Furthermore, any finding that the children of Hartford are receiving an adequate academic education is belied by their test scores. But equally important, as I have indicated in this concurrence, education is more than what can be measured by mastery test results in reading, writing and arithmetic.

Whether viewed as a separate constitutional ground for requiring the state to remedy the present segregated educational system or as the product of the current segregation that deprives Hartford’s schoolchildren of an equal educational opportunity, the impact of racial and ethnic segregation on the quality of education is an important factor to consider in deciding this case.

“It is a duty not imposed by constitutional provision, but has always been assumed by the State; not only because the education of youth is a matter of great public utility, but also and chiefly because it is one of great public necessity for the protection and welfare of the State itself. In the performance of this duty, the State maintains and supports at great expense, and with an ever watchful solicitude, public schools throughout its territory, and secures to its youth the privilege of attendance therein.” Bissell v. Davison, supra, 65 Conn. 191.

As stipulated, statistics compiled for the 1987-88 academic year reveal that, with the exception of Bloomfield and Windsor, in which 69 percent and 30 percent of their student bodies respectively were minority, Hartford’s neighboring school districts educated a nominal number of minority students: 3.8 percent of Avon’s student population was minority; 7.7 percent of Farmington’s student population was minority; 5.4 percent of Glastonbury’s student population was minority; 6.4 percent of Newington’s student population was minority; 3.3 percent of Wethersfield’s student population was minority; and 15.7 percent of West Hartford’s student population was minority.

With respect to the more current statistics for the 1994-95 academic year, I, like the majority, take judicial notice of the “Strategic School District Profile,” designed by the Gonnecticut state department of education for the Hartford public schools.

See footnote 1.

The following findings of the trial court make it clear that the decision of the court today was foreshadowed:

“On January 6, 1993, the eleventh day of the trial, Governor [Lowell P.] Weicker, [Jr.] in his message to the legislature . . . noted the positive aspects of Connecticut’s educational system, such as the fact that the state had the highest teacher salaries and the best teacher-student ratio in the nation as well as one of the highest rankings among the states in per pupil spending.

“He also acknowledged that the racial and economic isolation in the state’s school system was ‘indisputable’ and whether it had come about ‘through the chance of historical boundaries or economic forces beyond the control of the state or whether it came about through private decisions or in spite of the best educational efforts of the state, what matters is that it is here and must be dealt with.’ . . .

“He then proceeded to outline legislative proposals for six educational regions, the development by each region of a five year plan proposed by local and regional representative groups to reduce racial isolation, and ‘to provide all students with a quality, integrated learning experience,’ and emphasized the fact that ‘[l]ocal decisions and local involvement will guide the process.’ . . .

“On June 28, 1993, [No. 93-263 of the 1993 Public Acts] (now codified as General Statutes §§ 10-264a to 10-264b) entitled ‘An Act Improving Educational Quality and Diversity’ was signed by the governor. The Act provided a timetable beginning on January 15, 1994, for the convening of local and regional ‘forums’ for the purpose of developing regional ‘education and community improvement plans’ which were to be voted on by each of eleven regions in the state.

“Thereafter, the plaintiffs, at the direction of the trial court, amended the complaint to state that Governor Weicker, ‘in response to this law suit . . . called on the legislature to address “[t]he racial and economic isolation in Connecticut’s school system,” and the related educational inequities in Connecticut’s schools.’

“Paragraph 66b [of the plaintiffs’ complaint] stated that ‘[a]s in the past, the legislature failed to act effectively in response to the Governor’s call *55for school desegregation initiatives [and instead], a voluntary desegregation planning bill was passed, P.A. 93-263, which contains no racial or poverty concentration goals, no guaranteed funding, no provisions for educational enhancements for city schools, and no mandates for local compliance.’ ”

I would not, however, reach the conclusion, which the Chief Justice does in the majority opinion, that poverty under our state constitution is not a suspect classification entitled to heightened judicial review. Although a reference to the state constitution was made in Moscone v. Manson, 185 Conn. 124, 130, 440 A.2d 848 (1981), wherein this court recognized that federal law did not provide heightened review concerning classifications predicated on poverty, no independent analysis was undertaken with respect to the state constitution. Because, as the majority recognizes, Hartford schoolchildren labor under a dual burden of both poverty and racial and ethnic segregation, the question of whether poverty constitutes a suspect classification under the state constitution need not be reached.