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SEE YOU IN COURT! - October 2016

CABE Journal

October 2016

Authors: Thomas B. Mooney

For years now, Bob Bombast, veteran member of the Nutmeg Board of Education, has been perplexed by and concerned about the State formula for providing funds for education.  Accordingly, he has watched carefully – and patiently – as the Connecticut Coalition for Justice in Educational Funding v. Rell case has wended its way through the courts since 2005.  Bob was ecstatic when he heard that the superior court ruled on September 7, 2016 in favor of the CCJEF plaintiffs, and he couldn’t wait to share that news with the public at the next Board meeting.

When the Board next met, Bob waited again patiently, this time for the Board to get to New Business.  When it did, Bob raised his hand and was recognized.

 “I have an item of information, and some proposed actions for the Board to consider.  The superior court has just ruled in CCJEF v. Rell that State has failed to meet its obligation to fund education in Connecticut in a rational manner.  We all know that the General Assembly goes crazy sometimes.  Like when it gave the Board of Finance an annual opportunity to tell us how to operate more efficiently.  Who ever thought that is a good idea?  Anyway, now this judge has called the State out on a wide range of concerns, including the need to define elementary and secondary education, the need to revise the system for teacher evaluation, and the need for changes in how we approach special education.

 “Of greatest interest to me is the funding piece.  I have long suspected that the General Assembly has shortchanged Nutmeg in funding for education, and this judge was very critical of what he called arbitrary decision-making by the General Assembly in these matters.  He has given the State 180 days to figure out a better way.

 “Given this good news, I move that we reinstate the 10 paraprofessional positions that we had to cut during the budget talks last year . . . .”

Board member Mal Content interrupted Bob, “But where are we going to get the money?  We didn’t want to cut the para positions, but it was our only option.”

 “Didn’t you hear what I said?” responded Bob with a withering stare.  “The State has only 180 days to come up with a new plan.  I am confident that we will get more funding this year.  We should restore the para positions now and get the benefit of their work rather than paying them unemployment compensation.”

The Board debated Bob’s motion, but ultimately shot it down, deciding that it would wait before incurring new expenses, despite the good news from the judge in CCJEF.  After the meeting, reporter Nancy Newshound of the Nutmeg Bugle cornered Ms. Board Chairperson and asked her how the Board could talk about CCJEF and about restoring positions without the topic’s being on the agenda.

 “Don’t worry, Nancy.  Remember, I took the mandatory FOIA training after your last complaint.  As you know, the Board didn’t take any action, so I don’t see why we would have to worry about the agenda.”

Was it OK for Nutmeg to talk about the CCJEF ruling at its meeting as it did?  And how likely is it that Nutmeg will receive additional funding now that CCJEF has been decided?

*        *        *

The CCJEF decision is an important first step, but by no means the last word, in addressing concerns over how education is funded in Connecticut.  In a strongly-worded opinion, Superior Court Judge Moukawsher took the General Assembly to task because, in his opinion, State actions regarding education – in funding, in defining standards for educating children, in teacher evaluation and supervision, and in special education – have failed to meet a standard of rational decision-making.  Rather, he held, the State has a duty to establish policies for education that are rationally, substantially and verifiably calculated to achieve educational opportunities for the children whom the State is constitutionally obligated to educate.

Judge Moukawsher’s ruling is the latest in a long line of state court decisions concerning education, all based on article eighth, § 1 of the Connecticut Constitution, which provides: “There shall always be free public elementary and secondary schools in the state.  The general assembly shall implement this principle by appropriate legislation.”  Significantly, in 1973 the United States Supreme Court ruled in San Antonio Independent School District v. Rodriguez that education is not a right protected by the federal Constitution.  Accordingly, litigation over educational funding and opportunities moved to the state courts, starting in Connecticut with Horton v. Meskill in 1974, followed by Sheff v. O’Neill in 1989, and then by CCJEF v. Rell, which was first brought in 2005.  Interestingly, however, even the long-established premise that education is not a right under the federal Constitution was just challenged in Martinez v. Malloy, a case brought in Connecticut federal district court in August of this year.

The common thread here is that these cases take a long time to decide.  Moreover, these cases involve both legal and political decision-making.  Indeed, in 2006, the superior court first ruled that the claims made by the CCJEF plaintiffs relate solely to political decision-making and are not the business of the courts.  A plurality of the court ruled in 2010, however, that the CCJEF plaintiffs should have their day in court.  However, that plurality was established with the concurrence of Justice Palmer, who wrote that the Connecticut Constitution guarantees “a minimally adequate, free public education,” but that the plaintiffs could only prevail if they proved that the state’s educational system was “so lacking as to be unreasonable by any fair or objective standard.”  As Justice Palmer’s opinion was the fourth and decisive vote to reverse the lower court, Judge Moukawsher based his decision on that standard.

As of this writing, we do not know if the State will appeal the ruling or otherwise how it will respond to the ruling.  Significantly, the superior court was critical of the allocation of resources, but not the amount of resources devoted to education in Connecticut.  Given the questions that remain after this ruling, the Nutmeg Board of Education was wise to reject Bob’s motion to spend more money now.

Finally, Ms. Chairperson may have to attend another remedial session on the FOIA.  The FOIA defines a “meeting” as including a gathering of a quorum of a multi-member public agency “to discuss or act upon” a matter under its jurisdiction.  While a news update may be provided under Communications or the Superintendent’s report, the Nutmeg Board should have refrained any substantive discussion of the CCJEF decision and its implications for Nutmeg until it places that item on its meeting agenda.

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