*1 FOR JUSTICE IN COALITION CONNECTICUT INC., ET AL. v. FUNDING, EDUCATION RELL ET AL. M. JODI GOVERNOR (SC 18032) VertefeuiUe, ZareUa, McLachlan, Norcott, Katz, Palmer, Js.* SchaUer * panel consisting argued originally before a of this court This case was corut, Katz, Thereafter, Palmer, Norcott, Zarella and Schaller. Justices (b), sponte, pursuant § 70-7 sua ordered that case to Practice Book Accordingly, were and McLachlan en banc. Justices VertefeuiUe considered transcript they record, panel, have read the briefs and added to the argument. oral seniority listing justices their status as of date reflects argument. oral
Argued April 22, officially March released legal interns, Noah, certified and David Neil Weare Golden, Robin A. Solomon and whom were Robert with appellants (plaintiffs). attorney general, Gregory DAuria, T. associate Deichert, J. and Robert E. Kindall whom were Clare attorneys general, and, brief, on the Richard assistant attorney appellees general, for Blumenthal, (defendants). *3 a Michael A. Rebell filed L. Amarante and
Erika Equity Campaign et al. as for Educational for the brief amici curiae. Alli- a for the Workforce D. Ecker filed brief
Steven ance et al. as amici curiae. filed a brief for the Connecti- M. DeCrescenzo
Robert Municipalities al. curiae. et as amici Conference of cut Morkan, and NicoleA. Ber- Ndidi N. Moses Linda L. curiae. as amicus a brief for One Connecticut nabo filed Hilaire and Mullen St. Brittain, John C. Jennifer Emily Gianquinto a brief for the Connecticut A. filed curiae. et al. as amici Conference NAACP State Christopher Collier a N. filed brief David Rosen curiae. J. Bernstein amici and Simon
Opinion
by
that,
well
under
NORCOTT, It is
now
established
J.
“ ‘pro
Connecticut, the state must
the constitution
substantially
opportunity
equal
a
educational
vide
elementary
secondary
youth
public
in its free
its
649, 376
Meskill,
172 Conn.
schools’ Horton
(Horton
(1977)
1);
a
and that this court has
A.2d 359
public
ensuring
school students
in
that our state’s
role
guarantee.
O’Neill,
fundamental
receive that
See Sheff v.
1, 45-46,
public
(1996).
238 Conn.
The record reveals
following
relevant
in
complaint
and
alleged
operative
construed
Violano
pleader; see,
manner most favorable to the
e.g.,
v. Fernandez, 310, 317-18,
Conn.
vary significantly state, schools across the as demon- strated statistics year from the 2003-2004 school cited the plaintiffs. example, For at the Lincoln Ele- *6 246 Britain, percent New 50
mentary in (Lincoln) School preschool, nursery students attended kindergarten percent compared as 76 state- Start, school or Head computers high at Lincoln are wide. None statewide comparison in to the powered, moderate library ninety non- percent. Lincoln’s has average of 63 average to an of 395 else- materials, compared as print Lincoln, percent At 68 of the teachers where in the state. percent comparison in to 80 degree, a master’s have at Lin- Finally, numerous students although statewide. does poorly mathematics, in the school perform coln tutori- remedial instruction or in-class pull-out not offer subject.7 als in that which Bridgeport, School
At the Roosevelt percent 61 through eight, kindergarten includes grades preschool have attended kindergarten of the students percent with 76 statewide. Start, compared or Head as twenty-six kindergarten class is The size average with nineteen statewide. there, compared as students thirty size is class, average For a seventh grade twenty-two statewide. The students, compared as with compari- per student, volumes library print nine has thirty- twenty per statewide, student son to volumes materials, compared to 324 statewide. nonprint as seven any periodicals, while library The does subscribe to school kindergarten through eighth grade the average does periodicals. fifteen Roosevelt School subscribes to while any computer instruction, not offer provide average eighteen other schools statewide not provide School also does per year. hours Roosevelt instruction, percent any while language world schools statewide through eighth grade kindergarten respect allegations to the South make similar also library emphasize Elementary Danbury, that its has Street School statewide, per compared twenty-five print student, as volumes seventeen year, compared provides per hours of instruction and the school 985 statewide. Finally,
do such instruction. each counselor *7 in students, at the Roosevelt School works with 438 comparison average to the statewide 265. level,
At for high example, High school Plainfield pull-out instruction, School does not offer remedial in- tutorials, class after school programs, summer school despite in mathematics or language arts, the fact that subjects. students in performed poorly numerous those place- at High Students Plainfield School took advanced courses, ment tests in five in comparison to the state- average nearly wide ten such courses. Finally, several specialty dedicated areas of Plainfield High School are poor physical in condition, including the all-purpose room, cafeteria, facilities, outdoor athletic educational technology space.8 and office/administrative provide
As evidence of the state’s failure “suitable opportunities,” plaintiffs rely educational further on “outputs” from previously discussed schools, measured the “adequate yearly progress” on required student achievement tests under the federal No Left Act; Child Behind 20 seq.; U.S.C. 6301 et including Mastery the Connecticut Test and the Con necticut Academic Performance Indeed, Test.9 students complete these schools failed to courses, essential chemistry such as and algebra I, at a rate exceeding reading. The and East Hartford tenth respectively, son to the state Street subjects. Hartford arts, despite dial [9] [8] comparison For Similarly, instruction or in-class tutorial “proficiency” and Roosevelt example, High East Hartford tested East Hartford plaintiffs having numerous School’s to the statewide average the fourth on the Connecticut significantly computers Schools, High make similar claims grade of 77 percent. High School grade students’ scores on the Connecticut Academic in New average students who School does not below the are moderate or instruction in mathematics plaintiff students has 6.9 students per academic computer, Mastery Britain, Danbury 3.3. performed Finally, Test provide high state respect at for mathematics powered, averages [29] any pull-out to the Plainfield poorly percent and Lincoln, and Bridgeport for language compari in those of East “goal” South reme Test. Performance emphasize average.10The also
the statewide average higher at rates students statewide than are retained or advanced schools who either these 11Finally, ready promotion. being despite plaintiffs emphasize higher average than high cumulative dropout when schools com rate at these districts’ percent, average pared most statewide to the dropout notably, Bridgeport’s rates of Plainfield percent respectively. and 45 plaintiffs allege are the that these deficiencies system funding
product flawed educational “effectively [manage]” has failed to *8 necessary and substan to ensure suitable resources opportunities tially equal in the educational by agencies managed local schools, which are state Specifically, are two schools funded school districts. grants namely, property to taxes and sources, local state system sharing municipalities via the educational cost seq. Although pursuant § 10-262Íet to General Statutes position has of education taken the state board municipalities should bear the costs state sharing system equally, cost the educational only percent grants of school accounted for 39 have plaintiffs funding The attribute this in Connecticut. legislature’s (1) failure to raise the to: shortfall grant $5891 1999; from since see amount “foundation” 10 chemistry average completion algebra I, rates of for The statewide percent respectively. are 69 and The more in science 85 three or credits High graduates respective percentages have School who of East Hartford percent. respective percent completed The 42 and 57 those courses are completed ages High graduates those who have courses Plainfield School percent. are and 74 43 11 although percent grade example, at Lincoln of the fourth students For 47 proficiency math, percent proficiency scored below and 66 scored below promoted reading, percent to the next the school’s students were 99.8 contrast, grade more In exhibited rate of retention level. Roosevelt School average. Similarly, percent at 16.7 of students of the state than double that retained, High a rate more Plainfield Schools were the East Hartford and triple average. that of the statewide than General Statutes to 10-262f (Rev. 2007) (G);12 (9) (2) § the failure of that “foundation” amount to account for costs special the “actual education stu providing substantially equal dents with suitable educational opportunities”; and (3) failure of “the minimum ratio”; aid see base General Statutes to 10-262f (Rev. 2007) § (2) ;13 municipality’s ability which addresses a to pay accurately ability and to calculate a town’s raise necessary plaintiffs funds. The reside communi ability ties “do have the to raise the funds compensate needed monetary shortfalls that result from the arbitrary inadequate state’s fund system.” ing claim further that the state’s failure substantially equal them with suitable and opportunities irreparable has caused them (Rev. 2007) provides (9) part: General § Statutes 10-262f in relevant “ (G) years ending 30, 2000, . ‘Foundation’ means . . for the fiscal June 30, 2007, inclusive, eight ninety-one June five thousand hundred dollars.” note, however, 07-3, (9), § We that No. Public Acts amended (9) adding subparagraph (H) § 10-262Í a new to increase the foundation amount, (II) provides (9) and that General Statutes 10-262f now in relevant “ part: years ending 30, 2008, ‘Foundation’ means ... for the fiscal June *9 30,2012, inclusive, June eighty-seven
to nine thousand six hundred dollars.” position statutory change We take no as to whether this to suffices address problems complained by plaintiffs the herein. “ 13 (Rev. 2007) provides: (2) General § Statutes 10-262f ‘Base aid ratio’ guaranteed means one minus the ratio of a town’s wealth state wealth level, provided no town’s аid ratio shall be less than six one-hundredths.” however, note, 07-3, We (2), § that No. of the Public Acts amended “ (2), provides: § 10-262Í (2) § and General Statutes 10-262Í now ‘Base aid guaranteed ratio’ means minus one the ratio of a town’s wealth to the state level, provided wealth no town’s aid ratio shall less than nine one- hundredths, except twenty for towns which rank from one to all when towns descending sixty-nine are ranked in from order one to one hundred based poverty on ratio of the number of children below to the number of age seventeen, inclusive, children five the town’s aid shall ratio not be than less thirteen one-hundredths when on data based used determine grants pursuant year ending 30, section 10-262hfor the fiscal June position statutory 2008.” We no change take as to whether this suffices to problems complained by plaintiffs address herein. advantage them “unable to take full by
harm rendering processes institutions, and country’s democratic plain- The political marginalization.” and social risking preclude will that these deficiencies tiffs also claim seeking meaningful “competitive from being them reap will “less able to and leave them employment” intangible benefits, and tangible including both the benefits, that come salary, and self-realization health adequately job.” dependable paying a and securing with will the deficiencies leave plaintiffs contend that education” “unable to continue their them rewards monetary both the and intellectual “deprived of sum, In [higher] are with education.” that associated they “in a being claim that are educated social, up economic, system which sets them intellectual failure.” plain- complaint, in their four count
Accordingly, eighth, the state has violated: article (1) tiffs claim that first, 20, 1 and of the state constitution 1, §§ and article § system pro- that by public maintain a school “failing to substantially equal edu- suitable and vides with [them] of the 1, article opportunities”; (2) eighth, § cational public school by “failing to maintain state constitution system with suitable educational provides [them] first, and article 1,§ opportunities”; (3) to main- “failing of the state constitution 1 and §§ system provides public tain a school [them] substantially equal opportunities”; (4) educational first, and article 1,§ §§ article eighth, acting as 42 constitution, as well U.S.C. state “failing] law in to maintain under color of state with suitable and system provides school [them] which opportunities,” substantially equal African-American, Lat- impacted disproportionately has *10 minority plaintiffs seek students. The ino and other they right “have a to receive declaring (1) that: judgment equal opportuni- substantially educational suitable and law”; ties as a matter of state “the (2) constitutional substantially state’s failure to suitable equal opportunities 1, educational violates article eighth, § first, 20, constitution”; and article 1 and §§ [state] system and (3) “existing school is unconsti- funding tutional, plaintiffs void and without effect.” The also seek, injunctions inter alia, against opera- the continued system tion of the present funding except in transition newly a court-ordered and created constitutional funding system, appointment as well as the of a special master, attorney’s award of reasonable fees.
Thereafter,
first,
defendants moved
strike the
second and fourth counts of the complaint,
arguing
1,
article
first,
§§ and
state constitution do not
right
confer a
“suitable”
opportunities,
particular,
educational
and in
do not
equality or
“guarantee
parity of educational achieve
ment or results.”14In addressing the defendants’ motion
strike,
trial
court first
it
concluded that
had sub
ject matter jurisdiction
plaintiffs’
because the
claims
justiciable
O’Neill,
were
under
238 Conn.
supra,
Sheff v.
1, and
I, supra,
Horton
172 Conn.
court,
615. The trial
the well
applying
established state
analy
constitutional
v. Geisler,
sis of State
Conn.
252 have found “some that those state courts that claim, educa- content in their state constitution’s qualitative the of lan- . . . have done so on basis tional clauses than Connecticut’s.”15 substantially different guage no court concluded there is the trial Accordingly, opportuni- to ‘suitable’ educational “constitutional striking judgment court rendered ties.”16 The trial complaint, and this one, two and four of the counts opinion. 6 footnotes of this appeal followed. See the well standard by setting “We out established begin of a motion appeal granting in an from of review challenges legal Because amotion strike strike. no and, consequently, requires sufficiency pleading of a by trial our review findings court, factual plenary. on the is ruling court’s motion] [defendants’ be in the com- alleged . . . We take the facts to those been and we construe the com- plaint that has stricken its sustaining most favorable to plaint in the manner sufficiency. Thus, provable . . . facts in the legal [i]f action, a complaint support would cause of motion . we note that Moreover, be denied. . . to strike must necessarily implied an need allegation] is [in [w]hat that in expressly be ... It fundamental alleged. plaintiffs’ rejected on also reliance remarks at The trial court by Bernstein, propo proceedings Simon J. 1965constitutional convention eighth, 1, “far § of the state constitution as too slender nent of article claims, that, although public policy support reed” to their concluded supported right,” it as a fundamental the “notion a suitable education by judicial prudential into was concerns about intrusion deterred policy legislative local bodies. education set state and I, Citing dissenting opinion supra, 172 Justice Loiselle’s in Horton Conn. however, 658-59, emphasized, that courts cannot “abdicate the trial court comply duty scrutiny legislative give to executive and efforts their strict that, education,” provide free stated constitutional mandate to might imagine where or local authorities seek it “well situations state could way ability programs eliminate, in such a that the cut back restrict particular region to in the state or a town or receive children endangered.” might trial court also noted that there well would be 10-4a, statutory right to a “suitable” education under General Statutes develop point but further. did not sufficiency complaint of a determining challenged a strike, well-pleaded defendant’s motion to all facts necessarily implied allegations and those facts from the *12 . Indeed, are taken admitted. . . must be pleadings broadly realistically, construed rather than nar- rowly and technically.” (Internal quotation marks omit- ted.) supra, Violano v. Conn. Fernandez, 280 317-18.
I
implicates
it
subject
jurisdiction,
Because
our
matter
we
begin
the defendants’ contention that the trial
improperly
court
justiciable,
concluded that this case is
present
political
and does not
question.17 The defen
dants
that the trial
argue
improperly
court
relied on
O’Neill, supra,
I,
238 Conn.
and Horton
1,
supra,
Sheff v.
172 Conn.
615,
concluding
plaintiffs’
that the
claims
justiciable
are
because those cases involved educa
claims,
equality
ques
tional
while
case presents
policy
tions of educational
distinctly
that are
committed
to coordinate branches of government. The defendants
further
that,
politi
contend
under the well established
question analysis
cal
Carr,
Baker v.
369 U.S.
82 S. Ct.
would
this court
in the first
policy
legislature” to address educational
that we
plaintiffs
contend
response,
In
instance.
Sheff,
that their
rejected
arguments
these same
particular
to mandate
require
the courts
claims do
They
their claims
contend that
policies.
“totality of the circum-
only be
under the
need
evaluated
the facts as found to
compare
stances,” which would
of which needs
inputs,
none
variety
of indicators
individually.
also
The
to be constitutionalized
motions
dis-
considering
standard for
emphasize the
their
to be
strike,
requires
allegations
which
miss or to
pleader.
favorable to the
light
in the
most
viewed
Region
One Board
Seymour
rely
on
plaintiffs further
*13
Education, 261 Conn.
475, 482-84,
“We
forth the fundamental
first set
Because courts are established
justiciability.
underlie
a
controversies, before
claimed con-
to resolve actual
it
on the merits must
troversy is entitled
a resolution
Justiciability requires
.
that there
(1)
.
.
justiciable.
be
controversy
parties
among
between
be an actual
parties
...
that the interests of the
dispute
to the
(2)
controversy
be
...
that the matter
(3)
be adverse
.
.
.
adjudicated by judicial power
being
capable
controversy will
that the determination
(4)
...
we
complainant.
to the
As
practical
relief
result
comprises several related
recognized, justiciability
have
and the
namely,
ripeness, mootness
doctrines,
standing,
doctrine,
implicate a court’s sub-
question
political
adjudi-
competency
its
ject
jurisdiction
matter
.
.
because an issue
Finally,
a
matter.
.
particular
cate
justiciability
regarding
question
raises a
of law, our
appellate
plenary.”
review is
(Citations omitted; internal
quotation marks omitted.)
the Governor v.
Office of
Select
Inquiry, supra,
Committee
“The political question doctrine itself is based on the principle separation powers ... as well as the notion that judiciary should not involve itself matters that have been committed to the executive and legislative government. branches of To conclude that political issue is within the question doctrine is not judicial an abdication of responsibility; rather, it is a recognition that the tools with which a court can work, fairly data which it can appraise, the conclusions which it can reach as a basis for entering judgments, have limits. . . . Whether controversy directly so implicates primary authority of the legislative or branch, executive such that a court is proper not the forum for its resolution, is a determination that must case-by-case made on a inquiry.” (Citations omitted; internal quotation marks Id., omitted.) 572-73.
Following Baker v. Carr, supra, 369 U.S. “[i]n considering particular whether a subject pre matter noryusticiable sents a political question, we have articu lated relevant factors, including: textually [six] *14 demonstrable constitutional commitment of the issue to political coordinate department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of clearly a kind nonjudicial for discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence political to a decision already made; or the potentiality of embar rassment from pronouncements multifarious by various departments on question. one Unless one of these for mulations is inextricable from the case bar, at there nonjusticiability no for on
should be dismissal presence. political question’s ground . . . Further- aof simply has a connection more, because case independent political sphere [is an basis not] political question characterizing . . . .” an issue as a omitted.) quotation (Internal marks the Gover- Officeof supra, Inquiry, v. 271 Conn. nor Select Committee of principle not be Indeed, “the case should 573. nonjusticiability political question aas dismissed for unquestioned need for adherence unless an unusual case, is inextricable from the means that decision heavy on view such with a thumb courts should cases justiciability, recognition that, and with the the side of political simply case connected to because the necessarily political sphere, follow that it is a it does not Region question.” Seymour Education, OneBoard of supra, 488. 261 Conn. plaintiffs agree
We with the that our decision Sheff justiciability supra, O’Neill, 1, 238 Conn. controls appeal. plaintiff case, In that school- issue in this claimed, alia, had inter that the state “defen- children responsibility for the de facto racial and dants bear segregation and the sur- ethnic between Hartford public rounding have suburban school districts thus plaintiffs equal deprived opportunity a free required by public §§ first, 1 and education as article plaintiffs eighth, § Id., 1.” 5. The also article alleged “that the defendants have failed to equal opportunity public with an to a free required by §§ first, education as article eighth, defendants have main- because the public that, tained in Hartford a school district com- parison surrounding suburban school severely educationally disadvantaged; (1) is districts: *15 opportunities provide equal (2) fails to (3) schoolchildren; a mini- Hartford fails maily adequate education for Hartford schoolchildren.” 6. Id., Sheff,
In
the state contended that
the case was a
nonjusticiable political question “expressly and exclu-
sively entrusted
by
to the
legislature”
eighth, 1;§
id., 13;
implement
which directs the
“to
legislature
principle
public
by appropriate
free
legis-
[of
education]
lation.” Conn. Const.,
VIII,
art.
1. Describing
§
the dis-
tinction between
justiciable
cases that are
and those
that are not as
“uneasy line,”
emphasized
we
“courts do
jurisdiction
not have
to decide cases that
involve
textually
matters that
have been reserved to
the legislature,
implementation
such as the
of a consti-
tutional
cap ...
or
spending
appointment
of addi-
tional judges.
...
In the absence of such a textual
reservation, however,
it is the role
duty
and the
judiciary
to determine whether the legislature has
fulfilled its affirmative
within
obligations
constitutional
principles.
. . . Deciding whether a matter
in any
has
measure been
committed
[constitution
another branch of
government,
whether the action
of that branch exceeds whatever authority has been
committed, is itself a delicate
exercise
constitutional
interpretation, and is a responsibility of this
[c]ourt
ultimate interpreter of the
(Citations
[c]onstitution.”
omitted;
internal quotation marks omitted.)
Sheff
O’Neill, supra,
In Sheff,
emphasized
we
that, in
I,
Horton
supra, 172
Conn.
“we
reviewed,
plenary fashion, the actions
taken
the legislature to fulfill its constitutional obli
gation
elementary
secondary
school
children.”
v. O’Neill, supra,
258 may light shed on more, although prudential cautions of and reme- proper rights the definition constitutional deprive juris- do . . . such cautions a court dies diction. precedents, persuaded we are that light
“In these eighth, phrase ‘appropriate legislation’ in article authority 1, deprive does not courts § ‘appropriate.’ Just legislature what is as the determine fulfill duty its affirmative obliga- a constitutional has who attend the state’s ele- tion to the children secondary schools, judiciary so the has a mentary and whether duty legislature to review constitutional justiciabil- fulfilled Considerations of obligation. has its principle every that ity against must be balanced subject in favor of presumption indulged is to be matter precedents jurisdiction. case, compel ... In this our must favor the conclusion that the balance be struck plaintiffs’ justiciability complaint.”18 (Cita- Id., see emphasis 14-16; also omitted; added.) tions v. Inquiry, the Governor Select Committee of Office Conn. the text of our state supra, (“[although 271 574 impeachment authority on the leg- constitution confers authority . . . not unbounded and legis- islature that is other constitutional upon lative encroachment subject principles appropriate case, in an may, judicial omitted]). review” [citations unanimous, justiciability was We note that the conclusion Sheff dissenters, Borden, Palmer, who also three Justices Callahan subse quently rejected minimally adequate plaintiffs’ claim their to a justiciable. violated, had been nevertheless found claim See O’Neill, supra, (Borden, dissenting). v. Conn. 57 Sheff disagree argument further with the defendants Justice We present dissenting opinion distinguishable case Zarella in his that the adequacy justiciability purposes I from and Horton because it is Sheff case, equality holding in than an case. Our of education rather Sheff specifically respect 1, eighth, § to article does not refer to the constitution’s provisions, expressly “appropriate equal protection legisla- on relies justify judicial eighth, § from examination of educa- tion” clause article O’Neill, supra, 238 Conn. statutes. See 15. tional Sheff support argument
In of his textually quality commits issues of educational to the opinion Zarella his legislature, dissenting Justice on 236 Conn. 670 A.2d State, relies Nielsen *17 legislature’s responsibility which addressed the (1996), implement cap, constitutional spending the Pelle v. grino O’Neill, 670, 476, 193 Conn. 480 A.2d cert. denied, 236, 496 U.S. 105 Ct. L. Ed. 2d S. 83 176 (plurality wherein (1984) opinion), sought appointment this court to direct the of additional trial judges, Budds, and Simmons v. 165 Conn. A.2d 507, 338 (1973), 479 cert. 416 U.S. S. Ct. denied, 940, 94 L. professor 40 Ed. 2d 291 (1974), wherein challenged by grading regulations adopted University of Con view, necticut. In our Justice Zarella’s reliance on these cases is inapposite provi because constitutional sions at unambiguously issue therein confer full author ity over the respective subject matter to legislature, and do not qualifying contain “appro terms such as priate legislation” imply judicial in disputes role arising thereunder, particularly coupled when with the “shall,” implies word which itself a “constitutional duty” that is “mandatory and judicially enforceable.” State, See Nielsen v. 9-10 supra, (unlike “appropriate legislation” language of article eighth, language § third, [b], article 18 requiring legislature § to “by law define” terms for constitutional spending cap “by its plain and unambiguous terms, exclusively commits Assembly General power to define the spending cap terms and any nowhere intimates pro role judiciary” cess for the [emphasis Pellegrino v. added]); O’Neill, supra, (number 681 trial is judges textually legislature by provision committed to stating, without “ qualification judges . . superior the . ‘[t]he shall, upon court nomination governor, be appointed by general assembly in such manner as prescribed’ shall law ”); Pellegrino O’Neill, Simmons J., supra, (Healey, concurring) (same); 2, Budds, supra, eighth, (although § “ ” qualitative ‘excellence’ state constitution contains “appropriate also have standard, legislation” it does not R. Levy, see also “Gun eighth, l);19 clause of article § Power Legislative at the K-12 Corral: vs. Judicial fight Kan. L. Litigation,” in the Kansas School Finance when the term 1021, 1051-52 (2006) (“[o]rdinarily, Rev. document, is legal in a it construed ‘shall’ used mandatory judicially enforceable”). Accordingly, view of the constitutional Justice Zarella’s restrictive the drafters of article notwithstanding, language they had language, have more restrictive 1, could used completely potential avert involvement wished to implementation, judiciary in its enforcement *18 of acts. Cf. propriety legislative those regardless 224, 229-31, 113 S. States, Nixon v. United 506 U.S. Ct. improperly that Senate 732, 122 (1993) (claim L. Ed. 2d committee was impeachment fact-finding to delegated political language because of constitutional question “ ” ‘sole [p]ower to try all [i]mpeachments’ giving Senate [emphasis added]). Seymour
Moreover, subsequent our decision Education, supra, Board 475, Region One Conn. of plaintiffs’ at least one of the desired demonstrates that In supports justiciability the of their claims. remedies Seymour, the plaintiffs claimed that General Statutes 19 particular, specific disagreement we In note our Justice Zarella’s supra, proposition Budds, on from Simmons v. 165 Conn. reliance constitution, that, eighth, § “the constitutional under article of the state wedge penetration a for was not meant to be of of ‘excellence’ [s]tandard policy by judicial establishment intervention decisions.” the educational rejected plaintiffs Sheff, the merits of the attack on As noted Simmons Connecticut, University the actions of the defendant officials O’Neill, purely justiciability holding. supra, not a See Conn. was Sheff opinion; Moreover, previously; footnote 18 of this 15 n.17. as noted see eighth “appropriate legislation,” § 2 of does refer § unlike distinguishes higher clause from the which further education judicial purposes clause for review. 10-51 (b), provides financing § which for the regional school districts, unconstitutionally resulted in higher property poor education costs In Id., for towns. 479. justiciable, this claim was “we concluding first addressjed] specific plaintiffs forms of that the relief seek. If we were construe complaint requesting only that a court, having plaintiffs’ determined constitutional are order meritorious, claims the [school] district to establish itself as a taxing district, set the taxing powers suggested plaintiffs, and standards we would have doubts grave justiciability about the the claim, as In case, the defendant it suggests. very likely that the claim would fall within one or more of the categories nonjusticiability. however,
“We do not, plaintiffs’ prayer view the relief so narrowly. Although do seek, in part, such an from order the court, although text presents of the complaint remedy such as the only way plaintiffs’ to vindicate the rights, separate prayer simply for relief is be entered judgment ‘[t]hat declaring that ... 10-51 (b) is unconstitutional on its face applied by and as When a complaint [the board].’ is challenged by a motion to view dismiss, we its allega- tions in the light favorable to . pleader. . . We see no reason why the same principle apply should not to the prayer for relief. This latter prayer for relief is *19 susceptible interpretation of an that would leave the formulation appropriate of the remedy to the legislative branch, rather than requiring judicial the branch to entangle itself in probably what nonjudi- would be the cial function of a establishing district. taxing Further- more, precedent there is for court, having particular determined that a legislative scheme is leave unconstitutional, the remedy the legislative branch, at initially. least . . . We, therefore, consider question the justiciability premise on the that the plaintiffs seek a declaration of the unconstitutionality
262 they remedy propose with that
of 10-51 the (b), (Citations branch.” omit by legislative the considered Besso, M. O’Neill: The Id., 483-84; accord ted.) “Sheff v. Supreme Politics,” Court at the Bar of Connecticut author noted (The L. Rev. Quinnipiac (2003) “depen doctrine is political question “existing” that the remedy,” that it right between and linkage on d[ent] reality with of our constitution comports “no longer judi practice,” expect and that should that the “[w]e ciary principles, when war will declare constitutional expect expect no more. We should ranted, but should clarity, will be stated the court’s declaration compromise, of concerns about and with no because expect And should that realiza complex remedies. we politics beyond operation tion will come through court, always in the shadow of the court’s decla but 211-12 dis Besso, supra, (noting see also M. ration.”); ordering tinction between declaration in favor of “a new role for the remedy, arguing more restrained”). is at once more active and court that present Seymour, complaint as in case, In the requests a of a viola- clearly declaration constitutional remedy left to the defen- tion, precise being with the Specifically, plaintiffs dants in the first instance. ask the court “order defendants to create [the] system will education public maintain substantially opportuni- equal educational suitable and type plaintiffs.”20 This of relief would ties [for the] report dissent, to a In his Justice Zarella refers commissioned that, plaintiffs case, support proposition in this and relies on it in inescapable asking that the are this court to order “the fact... rearrange spending priorities increasing legislature its the annual by nearly elementary secondary appropriation satisfy percent present funding level of in order to the constitutional over ” providing schoolchildren with a suitable education. mandate of Connecticut Inc., Associates, “Estimating Augenblick, of an See Palaich & Cost v, http:// Adequate 2005) p. (June, available at Education Connecticut” (last www.schoolfunding.info/states/ct/costingout_ct.php3 visited March Supreme 2010) (copy file this case in Court clerk’s contained *20 prematurely report office). of to consider this context We decline superinten- turn a de facto education judge a trial into supports plaintiffs’ that their dent, argument justiciable. are I, supra, claims See also Horton prop- Conn. 650-51 court noted that the trial court (This erly declaratory “limited its to ones while judgments jurisdiction retaining for consideration of the granting any consequential fashioning of relief’ because “the of system elementary for financing constitutional secondary in the not only proper state is department expressly function but its legislative duty provisions mandated under the the constitution Connecticut, judicial depart- 1. The its properly stays give ment hand to the legislative department opportunity act.”). respect factors,
With
other
note
Baker
we first
easily
are
discoverable and manageable
“[t]here
judicial standards
determining
merits
plaintiffs’
Seymour
Region
v.
One Board
claim[s].”
Education,
Conn.
supra,
plain
485.
Although
present
question
tiffs’ claims
first
impression
appeal. First,
appeal
this
this
taken from a motion to
and our
strike
is,
analysis
therefore,
only
“well-pleaded
limited
those
and those
facts
necessarily implied
allegations
(Internal quotation
facts
. . .”
from
.
omitted.)
Fernandez, supra,
Moreover,
marks
Violano
Connecticut,
respect
substan
similar issues
clauses have been considered
tive content of education
states, some of which
by
many
in
of our sister
courts
a
determining
standards
whether
have articulated
satisfy minimum constitutional
state’s
schools
part
opinion.
of this
our
requirements.
Although
See
IIE
of
separation
powers
of
should remain cautious
courts
remedies,
the
ulti
crafting
should
concerns
liability
trial,
plain
the
mately
establishing
succeed in
at
a
more than
present nothing
this stage
tiffs’ claims at
interpretation,
task
question of constitutional
a
basic
Seymour v.
is well suited.21 See
for which this court
485;
also
Education,
supra,
see
Region One Board of
Inquiry,
Select Committee
the Governors.
of
Office of
special impedi
are no
Further, plaintiffs’ the merits of the claims deciding inextricably does not involve initial making us “in policy clearly a nonjudicial, determination of discretion ary process nature. Whenever a court in the of engages a determining whether statute the constitution, violates of policy admittedly analysis. matters into the enter that, That does not in mean, however, applying the appropriate constitutional present standards case, we would required policy to make some initial clearly nonjudicial determination of a kind discre . quotation tion . . .” (Internal marks omitted.) Sey Region mour v. Board One 261 Education, supra, 486; Conn. see also O’Neill, supra, 238 13 Conn. Sheff v. (“it is the role duty judiciary and the to determine whether the legislature has fulfilled its obli affirmative gations within constitutional principles”). Put differ ently, deciding plaintiffs’ put claims does not position court in the in the articulating instance, first for example, maximum class sizes or minimal technical specifications computers.22 for classroom also See 22 Jersey We view Justice Zarella’s reliance on old the decades New educa litigation stemming Cahill, tion in the lines cases from Robinson v. 62 (1973), Burke, N.J. A.2d 303 273 and Abbott v. 100 495 N.J. A.2d support (1985), appeal 376 of his contention decision that our in this will judicial policy premature yet making, lead us into a morass of as as of and agree presents particularly unwarranted. We that the Abbott line of cases aggressive judicial remedy adequacy. example, in the area of education For cases, Jersey Supreme in its fifth decision in that line the New Court adopted ruling directing require property poor the state to its school special needs, to, adopt (1) districts with inter alia: All Success for and “ Wings ”; (2) implement Roots and models of ‘whole-school reform’ full day kindergarten day immediately; (3) preschool programs. half Burke, 480, 493, 710 Indeed, Abbott v. (1998). N.J. A.2d 450 commentators Independent Consolidated
Neeley Orange-Cove v. West judiciary’s District, supra, (“[t]he S.W.3d School from complete abstinence choice is between [edu- in the defen- issues, being, cation [s]tate clause] policy, words, arbiter of education dants’ ‘the testing as devel- such issues curriculum overseeing and teacher certifica- opment, approval, textbook whether judicial deciding The role limited tion’ ”). systems, presently consti- public educational certain satisfy an articulated constitutional funded, tuted and standard.23 judicial Jersey’s more active New remedies entail court have noted that approaches policy than the more deferential in education do involvement political implementation states, to the reforms of other which leave judicial standards articulated to be conducted under broader branches Separation Seo, “Battle of the Branches: branch. See J. Chia & S. Suits,” Funding J.L. 41 Columbia & Soc. Doctrine State Education Powers “Beyond Adequacy: Trachtenberg, 125, 131-36(2007); P. Educational Probs. *23 Jersey,” Through Looking the Lens of New 4 Stan. Backward and Forward liability however, emphasize, (2008). has not 412 We J. C.R. & C.L. premature yet present case, proven is the and it to consider been the separation recognize implications specific Indeed, we of remedies. remedy any necessarily
powers
in this
will inform the creation of
concerns
ultimately
required.
by
presumption
case,
be
Guided
the
should one
unnecessary
subject
jurisdiction
аgainst
findings of
and
favor of
matter
Education,
Seymour
Region
see, e.g.,
nonjusticiability;
v.
One Board of
unfounded,
premature,
perhaps
supra,
488; will not
261 Conn.
we
let
remedy deprive
day
crafting
plaintiffs of
the
of a
the
their
concerns about
opinion.
59 of
See also footnote
this
court.
merely a
not
function
Zarella notes that “student achievement is
Justice
economic,
school,
by
social,
place at
but is also influenced
of what takes
unknowable, beyond
perhaps
factors, some unknown and
cultural and other
system.”
Zarella,
Justice
whose observation
of the educational
control
Obama;
alia,
by,
Barack
see
has
President
footnote
been echoed
inter
correct,
undoubtedly
against
dissenting opinion;
is
which counsels
of the
assessing
outputs
whether
on
such as test scores in
an
reliance
excessive
O’Neill,
obligations.
See
has fulfilled its constitutional
state
Sheff
dissenting);
part
J.,
II B
supra,
(Borden,
also
of this
see
Whether there
risk
pronounce-
is a
of “multifarious
ments
other governmental departments
ques-
on the
presented by
complaint”
tion
is not an inextricable
Id.,
“Simply
concern.
482.
because
legislature
has
passed a statute adopting
particular
fiscal formula
mean
may
cannot
that a court
not entertain a constitu-
challenge
tional
to that
Id.,
formula.”
487-88. Thus, “this
present
matter does not
unquestion-
unusual
need
ing adherence to a preexisting political decision. As
previously
it
discussed,
province
is well
within
judiciary
to determine whether a coordinate branch
*24
government
of
has conducted itself’ in accordance with
authority
“the
upon
conferred
byit
the constitution.”24
24
Sheff,
majority
jurisdictions “overwhelmingly”
As we noted in
the vast
of
legislatures
have concluded that claims that their
have not fulfilled their
responsibilities
justiciable.
constitutional
under their education clauses are
O’Neill, supra,
Indeed,
v.
268
system
McDuffy Secretary
schools”);
v.
of common
the Executive
efficient
of
545, 606, 610-11,
(1993)
Education,
269 271 576. we that supra, Accordingly, Conn. conclude subject jurisdiction have matter over this case.25 we
II
claims,
now
of the plaintiffs’
We
turn
the merits
properly
which are
using
framed
state constitutional
Neeley
lap
Assembly.”);
Orange-Cove
v. West
General
Consolidated
Independent
District, supra,
majority
(“[l]ike
School
176 S.W.3d780-81
states,
separation
powers
preclude
we
does
of these
conclude that the
judiciary
determining
[(legislature
from
met
whether the
has
its constitu
obligation
people
public education”); Brigham
to the
for
cf.
tional
State,
525, 527-28,
(2005) (trial
improperly
v.
179 Vt.
889
715
court
A.2d
judicial
granted
ground
restraint).
motion to dismiss on
Thus,
disagree
we
follow
continue to
with the defendants’ and
Sheff
Adequacy
on
the dissent’s reliance
&
in
Coalition
Fairness
School
for
Funding,
Chiles,
(Fla. 1996),
v.
Inc.
169 Ed. 2d 148 (2007). “The Geisler factors serve a purpose: they dual encourage raising of state constitutional issues in a manner to which the opposing party state or the —the respond; they defendant —can a princi- encourage pled development of our state constitutional jurispru- dence. in Although compartmentalized Geisler we factors that be should considered in order stress that systematic analysis is we required, recognize they bemay inextricably . interwoven. . . Finally, every Geisler in factor is relevant all (Citation cases.”26 omit- dissenting opinion, agreement In his Justice Zarella notes Ms with “com question legitimacy ground mentators who on [Geisler’s] that ‘it is no than interpretive] more a checklist from wMch select tools’ and [various provides guidance significance selecting ‘any particular it no as to the ” any particular method in case.’ Justice Zarella also considers the Geisler because, guidance, be test to “more than harmful beneficial without such n.10, Morales, 657 A.2d 232 Conn.
ted.) State parties’ we now turn to (1995). Accordingly, respect to each factor. specific arguments with
A
Text
Operative
Constitutional
article
previously,
eighth, §
As
text of
noted
“There shall
provides:
of Connecticut
the constitution
elementary
secondary
schools
always
free
assembly
implement
shall
the state. The general
Thus,
principle
appropriate legislation.”
their claim
supports
the textual
factor
argue
the use of the word “school”
because
“system-
necessarily means institutions wherein
1,§
“intellectual,
social” instruction
atic” or
moral and
a minimum
provided,
maintaining
and that not
constitu-
legislature’s
standard would eviscerate
tional
The defendants contend
responsibilities thereunder.
*28
eighth
2 of article
of the state constitu-
response that §
University
of Connecticut
tion,
provides
which
as
education,
as well
shall be devoted to “excellence”
qualitative
in other states’ education
language
the use of
intentionally
the drafters acted
clauses, indicates that
from
particular qualitative standard
article
to omit a
rely, then,
1.
on
The defendants
Moore
eighth, §
557, 595,
(1995),
“In
provisions
dealing
constitutional
we must
employed
assume that infinite care was
to couch in
scrupulously fitting
proposal
language
aimed at estab
lishing or changing
organic
law of the
.
state.
. .
Unless there is some clear reason for not doing so,
effect
every part
must be
given
and each word in
the constitution.” (Citations
omitted.) Stolberg Cald
well,
586,
175 Conn.
597-98, 402 A.2d
appeal
763 (1978),
dismissed
Stolberg
sub nom.
v. Davidson,
As previously, noted the text of article eighth, 1,§ of provides: constitution of Connecticut, “There shall always public be free elementary and secondary schools in the assembly state. The general implement shall this principle by appropriate legislation.” Article eighth, 1, § any qualitative does not contain language, contrast to 2 of article of eighth § the constitution of Connecticut, requires which the state to “maintain system of higher education, including University The of Connecticut, educa- higher to excellence
which shall be dedicated size, assembly shall determine the general The tion. of the number, appointment gov- terms and method University of Connecticut and erning boards of The or bodies in the coordinating constituent units such system may to time be established.” as from time previously court has Indеed, (Emphasis added.) under qualitative standard of “excellence” held that the for wedge “was meant to be a eighth, § judicial establishment penetration of the educational Budds, decisions.” Simmons policy intervention professor’s 514; challenge id. supra, (rejecting 165 Conn. university poli- setting grading to actions of officials protests). antiwar apply in wake of student cies of certain other states’ education language The textual supports argument also the defendants’ clauses have constitu- majority of the states superficially. to estab- requires legislatures their language tional “adequate,” and maintain schools are lish “efficient,” supports which “thorough” “general,” that the drafters of article argument defendants’ could have of the constitution of Connecticut 1,§ See, Ark. qualitative e.g., similar standards. imposed and virtue Const., (“[intelligence being § art. liberty the bulwark of a free and good safeguards general, State shall ever maintain a government, system public of free schools suitable and efficient people to the adopt shall all suitable means to secure Colo. opportunities education”); advantages assembly as IX, (“[t]he general shall, art. Const., § practicable, provide establishment soon of free system and uniform thorough maintenance of a resi- state, wherein all throughout schools twenty- of six and state, ages dents of the between Const., Fla. years, may gratuitously”); one be educated funda- of children is a IX, (“The art. (a) It of Florida. people the State mental value *30 is, therefore, paramount duty a of the state make adequate provision for the education of all children its borders. residing Adequate provision within shall by uniform, efficient, safe, secure, made law for a system quality public of free schools that high allows a quality students to obtain education and for the high establishment, maintenance, operation of institu- public of higher learning pro- tions and other education grams may that the of people needs Ga. require.”); Const., VIII, provision adequate art. of an (“The § public primary for the citizens shall be a obligation of the State of Public Georgia. education for prior the citizens or college postsecondaiy to the level provided shall be free and shall be for taxation.”); Const., VIII, N.J. art. 4 (1) Legislature shall (“[t]he § provide for the support maintenance and of a thorough system and efficient of public free for schools instruction of all the children in the State between the ages eighteen years”); Const., five VI, Ohio art. assembly (“ general provisions, § shall make such [t]he or taxation, otherwise, as, with the income arising fund, from the school trust will secure a thorough and system efficient common schools throughout state; but no or other religious sect, sects, or shall ever any to, any have exclusive of, part control the school funds of this Va. state”); Const., VIII, art. 1§ (“[t]he Assembly system General shall for free public elementary secondary schools all children of school age throughout the Commonwealth, and shall seek to ensure that an program quality high continually is established and maintained”); Wyo. Const., art. 97-7-001 (“[t]he legislature shall provide for the establishment and maintenance of a complete system and uniform of public instruction, elementary free embracing schools every needed kind and grade, university with such technical and professional departments as the may good require and the means of allow, the state and such other
276 Thus, other may be these necessary”).27 as institutions pubUc integrity. the fuUeducational tunity pubUc uniform finance public free common committed in of a the ment; other wherein tuition shaU without throughout system law that Constitution, otherwise, General a shall enact such laws Education in of the and to seven Const., Ind. suitable efficient General establish, organize, efficient of out the state qualitative language, (“[t]he (“[t]he general 27 ageneral establish it taxation intelligence goal distinct For additional repubUcan Const., deems desirable. and provide, it shaH the elementary school, people, schools stability General art. of means, moral, inteUectual, system Assembly shaU, by appropriate legislation, Assembly system System guaranteed every child, [3] and efficient common twenty-one a and uniform VI, and maintain a or otherwise as wiU secure art. community, being schools”); Const., X, § 1 shaU Law establish public for their be people educational interests unless its by law, it form throughout § of a of Assembly, of of Free Public unique (b)6 VUI, is the pubUc educational legislature the institutions, shall high quality by maintenance”); examples schools and maintain a liberal potential of each republican to each see Ala. as schools educated benefit of the children thereof between to establish people, years”); for a duty secondary § It (“[t]he legislature government system shall public HI. provide for the establishment and maintenance of duty 1 schools. cultural shaU fund physically or (“[k]nowledge general general, uniform and throughout at of the General provide person Const., through shaU of state constitutional of the it shall be the Ariz. school its goals public form essential to pubUc of state.”); by [s]chools; and shaU The schools. The heritage of First Session after the free art. charge, other and uniform scientific, Minn. provide system Const., XI, depending of and distribute in an of for the establishment and maintenance legislature to person. art. to the of the state. throughout system”); legislature educational institutions the Ubraries, public schools, government mentally disabled, Mont. means”); XIV, Const., shaU make system public thorough and secondary the and state”); State”); art Assembly duty a basic (“The preservation EquaUty and the American § preservation legislature mainly upon Const., learning, generaHy Del. system 256 equaUy thorough shaUmake such art. of the of agricultural improvement; 1§ Idaho State [2] Ky. Const., establish Md. provide (“[t]he Legislature depending Const., X, provide by taxation, and efficient system XHI, provisions educational suitable State a level shaU be (A) of educational The state art. of Common and legislature open Const., shaU which wiU Const., encourage, may provide equitable (“[t]he legislature § system adoption of their cultural schools X, art. shall attend the of may for Indians and is of free (“The a provide thorough a free provision § 1 and mainly upon § general art. intelligence the that utilize recognizes 183 art. provisions require aU”); § system programs (“[1] of of services. through Schools, efficient diffused 1 stabiUty VUI, develop manner ages govern free.”); public, of this quaUty oppor (“[t]he (“[t]he IX, Idaho, for an by such shall Kan. It and and for § § by all of is 1 provisions provide states’ educational some indication have, the drafters could but § did act not, provision to enact a constitutional with a clearly qualitative articulated standard for its schools. elementary to the school share districts state’s of the cost of the basic secondary Const., system.”); XI, (“[t]he legislature school Nev. art. system schools, shall for a uniform of common which a school *32 shall be established and in each at maintained school district least six months any every year, and school district which shall allow instruction of a may deprived proportion sectarian character therein be itsof of the interest public during neglect infraction, of legislature the school fund such and the may pass general such as laws will tend to a of secure attendance the upon public schools”); Const, children in each district said school N.M. art. XII, system public (“[a] § 1 uniform of free schools educa sufficient the open of, to, age tion all and the children of in the school state shall be maintained”); Const., IX, (1) (“[t]he and § established N.C. art. 2 General Assembly provide by general shall and taxation otherwise for a and uniform system public schools, of free which shall be maintained least at nine months every year, equal opportunities provided and wherein shall for all students”); Const,., VIII, (“[t]he legislative assembly N.D. 2 provide § art. shall system public throughout state, for a beginning uniform of free schools primary extending through grades up including and all to and higher education, except legislative assembly may schools of that the autho tuition, charges public rize financing fees and service to assist in the of higher education”); Const., VIII, (“[t]he Legislative schools of § Or. art. 3 Assembly provide by uniform, shall law for the of establishment and general system schools”); Const., Ill, (“[t]he of Common Pa. art. 14§ General Assembly provide support thorough shall for the maintenance and of a and system efficient of education to serve the of needs the Common wealth”); Const., XII, (“[t]he knowledge, § R.I. art. 1 diffusion of well as among people, being preservation rights virtue essential to the of their liberties, duty general assembly promote public and it shall be the of the to public libraries, adopt may schools and to and all means which it deem necessary proper people advantages opportuni and to secure to and public library ties services”); Const., VIII, (“[t]he of education and § S.D. art. 1 stability republican government depending morality of a form of on the and intelligence people, duty Legislature of the it shall be the of the to establish general system public and maintain uniform schools wherein tuition charge, equally open all; shall adopt be without to and to all suitable people advantages opportunities means to secure to the of educa
tion”); Const., VII, general (“[a] knowledge being § Tex. art. diffusion of preservation rights essential people, of the liberties and it shall duty Legislature be the of the of the State to establish and make suitable provision support system public for the and maintenance anof efficient con- however, with the defendants’ disagree, We 580-81, Ganim, supra, 233 Conn. tention that Moore the textual plaintiffs’ of the claims under dispositive is claim that rejected plaintiffs’ In we Moore, factor. . . . an “unenumerated constitution contains the state subsistence benefits provide of the state obligation need,” “that the state concluding its to all citizens obligation has no affirmative constitutional poor Id., citizens.” 580-81. minimal subsistence to its emphasized that text our constitution We “[t]he been fact its drafters have makes evident impose obliga- when affirmative explicit choosing history “the of article state,” noting that, on the tions present in the case. particularly instructive eighth, 1,§ counterparts, and its explicit provision, This textual (system higher education), eighth, article § only fund), are the constitu- (school date, affir- impose provisions, recognized tional expend state to part mative on the obligations *33 citizenry. Other afford benefits to its public funds to first, protect individ- provisions, such as those article inappo- is Id., 595-96. Moore uals from state intrusion.”28 case, are called on to because, present in the we site under the obligations the extent of state’s consider clause, rather than to carve already existing education out of whole cloth. right a new unenumerated provide, Const., XII, Legislature schools”); (“[t]he 1 shall § W. art. free Va. system schools”). by general law, thorough and of free for a efficient 28 that, public providing Moore, although we both education In noted roots, poor deep “the framers of education for the have historical statutory education had historical tradition free clause looked constitution, they support explicit its inclusion in the state state to this in and of itself to create state constitutional did not consider tradition contrary, they appropriate obligation. To found it amend ... (Citation give public constitutional status.” in order to constitution Ganim, 596; id., (noting supra, omitted.) 233 Conn. see also Moore protections first, 20, “[explicit]” § of the Connecticut constitu under article groups twenty-one in order to for “certain discrete tion and amendment specific problems”). deal with social Moreover, although argu- defendants’ textual plausible, never- language ments are the constitutional dispositive theless is and is not of this ambiguous, Gethers, State appeal. 385-88, See 197 Conn. (1985) “superficially appeal- A.2d 408 (recognizing language may ambigu- constitutional be rendered ing” in concluding ous in context of relevant case law hybrid right representation no in criminal case exists 8, of first, under article the constitution of Connecti- § dictionary commonly cited cut). definitions relevant terms in namely, “elemen- “secondary” tary,” “school,” qualitative have a con- notation, “elementary school” is defined as “a school usu[ally] the first to the four first often eight grades and kindergarten,” and particularly, “secondary school” as a elementary defined “school intermediate between school and college usu[aily] offering tech- general, nical, vocational, college-preparatory courses.”29 Collegiate Dictionary Merriam-Webster’s Ed. (10th 1998). Indeed, even Justice opinion Loiselle’s dissenting I, Horton supra, 658-59, 172 Conn. in which he con- cluded that education was not a fundamental under the state constitution, appears contemplate that the education clause must have some substantive content in order to be meaningful, as he said “when says constitution free education it must interpre- way. ted in a reasonable A may town not herd children in an open field to hear lectures illiterates.” See also J., dissenting) (“[w]e cannot id., (Loiselle, sight lose of the fact that the issue is not that our children are a sound getting education, measured reasonable *34 standards, which will enable them fully to exercise their rights as citizens of their country”). since Accordingly, the of 1, text article eighth, § is ambiguous, we necessar-
ily must continue with our review of the other Geisler factors. 29 dictionary part organiza The further defines “school” in relevant as “an provides
tion that . . . .” Collegiate instruction Merriam-Webster’s Diction ary (10th 1998). Ed.
280
B
of This Court
Holdings
The
and Dicta
similarly
plaintiffs’
dispositive
This
is not
factor
presents
question
of first
appeal because this case
namely,
of the edu
impression,
qualitative
content
inadequacy
without
respect
clause with
con
cation
inequality.30 A review of this court’s31
siderations of
demonstrates,
jurisprudence
how
education clause
are
fact consistent
plaintiffs’
claims
in
ever, that
I,
The seminal32 case is Horton
precedents.
with our
618,
challenged
172 Conn.
wherein the
supra,
system, claiming
finance
that its
the state’s educational
that,
property
regardless
tax “ensure
reliance on
[d]
children,
wants
more
needs or
of the educational
who live
dollars will be allotted
children
litigation
largely
nationwide focused
on
The first wave of education
recently
claims,
inadequacy
arising
inequality
claims
more
within
twenty years.
Dinan,
Meaning
“The
of State Constitutional Educa
last
See J.
Debates,” 70
Evidence from the Constitutional Convention
tion Clauses:
‘Adequate’
927, 927-28
Reich,
(2007);
“When
Isn’t
L. Rev.
W. Koski & R.
Alb.
Policy Why Matters,”
Equity in
Law and
it
The Retreat from
Educational
Emory
Lockard, note,
545, 558-60 (2006);
“In Wake Williams
L.
J.
C.
Past,
Litigation
Education Finance
in
State:
v.
Present and Future of
California,”
385,
(2005).
Hastings L.J.
393-95
31Although
contemplates reviewing
this Geisler factor
also
decisions of
independent
Appellate Court,
parties’
nor
neither
briefs
our
research
any
opinions from that court.
has identified
relevant
32Although
analysis
under this Geisler factor focuses on
our
our
more
interpreting
1,
applying
case
state
recent
law
constitution,
acknowledge
case law has
we
court's older
docu
well,
importance
in Connecticut
mented
historical
opinion.
greater
part
State
in
n C
See
we
detail
of this
factor
consider
Huntington Huntington
Committee,
563,
ex
School
rel.
82 Conn.
recognized
(noting
(1909)
has for
it as
A. 882
that “Connecticut
centuries
duty
proper
young”
for the
education of the
her
agents
concluding
state);
committees
see
that unified town school
are
Davison,
(1894) (describing
Bissell 65 Conn.
This
with
to the
respect
appli
court first
that,
level
“in
scrutiny,
cable
Connecticut
the right
any
to education is so basic and fundamental
that
infringement
strictly
of that
must be
scrutinized.”33
emphasized
646. In
the
Id.,
concluding,
so
court
the
specific
presence of a
education clause
the state
the
constitution,
constitution,
in contrast
federal
under which
is
right.
education
fundamental
See
San
Antonio
id.,
discussing
640-45
and
(distinguishing
Independent
Rodriguez,
School District v.
649. noting fashioning that “the instance, however, first system financing elementary for a constitutional secondary only proper in the state is not the department expressly but its of the legislative function duty of the constitution provisions mandated under the Id., 651; l.”34 see also Connecticut, eighth, § stays its hand to judicial department properly (“[t]he id. department opportunity act”). an to legislative the give 24, 27, Thereafter, Meskill, (1985) A.2d in 195 Conn. Horton (Horton appeal appeal III), trial the an and cross from the court considered legislative response ruling holding to I “constitutional court’s the Horton upheld design part.” court had the basic but unconstitutional in The trial principal components: (1) guaranteed plan, the base had tax which “two requirement (2) expenditure (MER). grant (GTB) and the minimum formula provide plan grants designed The GTB formula a of state to towns is public state-guaranteed financing It for school education. a tax base the designed equitably then- state aid to towns that establish is distribute MER, acceptable eligibility through a sets the minimum formula that Id., pupil expenditures.” per 28-29. level town step adopted I, developing court a the rule of Horton this three Further scrutiny pro- analysis financing plans, which for the strict of educational prima showing disparities “First, a facie vided: must make expenditures disparities are more than de minimis in that in educational they jeopardize plaintiffs’ If fundamental to education. continue to justify showing, then shifts to the state to these make that the burden legitimate policy. disparities If a state as to the advancement of incident justification acceptable, the must further demonstrate the state’s state great continuing disparities not so as to unconsti- that the are nevertheless financing words, satisfy I, the mandate ofHorton a school tutional. In other policy providing equalizing plan must, whole, significant as a further the Id., support to education.” 38. state local that, test, although Applying there were “contin- the court concluded disparities spend significant on in the funds that local communities ued constitutionally public education,” legislation “was a basic nevertheless expendi- acceptable response problem disparate local educational because, adequately funded, provide program “if GTB would tures” five-year education, expenditures public that its for school sufficient overall design resources, phase-in of educational that its assured efficient use proper equity of educational funds and a would in the distribution addition, the court and local contributions thereto. In balance between state salutary program guarantee- for local choice found that the retained a role imposing ceiling might ing town elect funds without a on what a minimum spend public Id., education.” 39-40. opinions concurring and Horton I dissenting that, point, demonstrate as basic fundamental agreed entire court that article 1, necessarily qualitative component. embodies some Concurring as reasoning judgment well of the court, separately Justice wrote Bogdanski the his- highlight tory of the education clause and the 1965 constitutional convention proceedings, which “formalized free education on the elementary secondary levels as Id., fundamental right.” Bogdanski 653-54. Justice *37 also emphasized that “the of our right children to an only education is a matter right because our state such, constitution declares it as but because education is the very essence and of a foundation civilized culture: it is the cohesive society element that binds the fabric of together. sense, In a real it a necessary is as to civilized society food and shelter are to an individual. It is our fundamental to legacy youth of our state to acquire enable them to possess the abil- knowledge ity to for it ability separates reason: is the to reason that man Id., from all other forms of (Bogdan- life.” 654-55 ski,, J., concurring). Indeed, Justice Bogdanski noted specifically that equality presented by issues Horton I “are directed toward the right children of this state to education, a basic and the determination of whether certain statutes unconstitutionally state impinge upon that right.” (Emphasis Id., 655. added.)
Justice Loiselle dissented from majority’s holding that education is a right fundamental under state Id., constitution. 655-56. He majori- characterized the ty’s opinion as “requiring equalized ... an pot of money per town”; id., (Loiselle, J., dissenting); and stated that “the constitution requires free education, and ‘appropriate legislation’ is which legislation makes education free. I will concede when the constitu- says tion free education it interpreted must be in a way. A reasonable town may not herd children in an open But there is illiterates. to hear lectures field exist, or that educa- such situations no contention that meaningful or does not is not tion Connecticut accepted by knowledgeable up standards measure (Emphasis added.) in the education.” leaders field of emphasized Finally, Justice Loiselle Id., 658-59. sight issue is not of the fact that the “[w]e cannot lose getting education, are not a sound that-our children standards, which will enable reasonable measured rights fully their their as citizens them exercise country. whether, our state laws The issue is because spectrum furnish a broader allow some towns to finan- towns desire furnish or feel choice than other cially system has to tumble furnish, able added.) (Emphasis Id., view, In our 661. down.” posi- support plaintiffs’ opinions in I various Horton an is not tion that fundamental empty linguistic shell, has at least some minimal but emphasis Justice Loiselle’s Indeed, substantive content. plaintiffs in I of a claim that the Horton on the lack harbinger getting education is were not basic *38 plaintiffs’ appeal. claims in this respect recent decision with to article
Our most supra, eighth, § 1. In O’Neill, 238 Conn. 1, Sheff racial and eth- Sheff, we considered claims severe high concentra- Hartford, as well as nic isolation plaintiff poverty rights there, tion of violated eighth, § 1, first, under article and article schoolchildren §§ Id., 3-5. The 20,35 1 and of the state constitution. first, Connecticut, 1, provides: § ‘All “The article men constitution they equal compact, rights; no man or set of when form a social are and public privileges are to emoluments or from com men entitled exclusive munity.’ Connecticut, 20, first, § “The article as amended articles constitution person twenty-one amendments, provides: ‘No shall be denied five and subjected equal protection segregation to or discrimina of the law nor political enjoyment rights of his or her civil or because tion the exercise or physical race, color, ancestry, origin, religion, sex or mental national ” disability.’ O’Neill, supra, Conn. 3-4 n.2. Sheff plaintiffs responsibility that the bore for argued state the de facto racial and ethnic between Hart- segregation id., ford and its suburban surrounding districts; school 5; provide and also that “the defendants have failed equal opportunity public with to free required by first, 20, article §§ article because defendants have main- § public tained in that, by Hartford a school district com- parison public suburban school surrounding is severely educationally districts: (1) disadvantaged; equal fails (2) provide opportunities educational Hartford schoolchildren; provide fails to a mini- (3) mally adequate education for Hartford schoolchildren.” 6. Id.,
On the
plaintiffs’
merits of the
claims,
court
framed
fully
the issue as “whether the state has
satisfied
its
affirmative
obligation
constitutional
substantially equal
if
opportunity
educational
the state
substantially
equalized
demonstrates
it has
school
funding
Id.,
and resources.”36
25. We
that,
concluded
notwithstanding
any
the lack of
invidious intentional
the part
conduct on
of the state in
creating
condi
tions
“in
segregation,
the context
education,
in which the state has an affirmative
obligation moni
tor and to equalize
opportunity,
the state’s
awareness of existing
increasing
severe racial and
ethnic
imposes upon
isolation
responsibil
the state the
ity
remedy
. .
segregation .
because of race [or]
.
ancestry
. .
that,
.... We
textually,
therefore hold
article eighth,
as informed
first,
§
36The court noted that
*39
financial aid is distributed so
the
“[s]tate
that
Accordingly,
neediest school districts receive the most aid.
in the 1990-91
years,
per
expenditures
pupil
and 1991-92 school
overall
state
in Hartford
average
spent per pupil
twenty-one surrounding
exceeded the
amount
in the
suburban towns. The
state reimburses Hartford
its school renovation
projects
considerably higher
at a
that
rate
is
than the reimbursement
rate
twenty-one surrounding
O’Neill, supra,
for the
suburban towns.” Sheff v.
286
responsibility
affirmative
requires
legislature
the
to take
schools,
remedy
public
regardless
in our
segregation
jure
de
de
has occurred
segregation
of whether that
quotation
omitted.) Id.,
marks
29-30.
(Internal
facto.”37
scrutiny analysis
applied the strict
from Horton
We
38-39,
A.2d
Meskill,
(1985)
195 Conn.
(Horton
opinion;
34 of this
and noted
see footnote
III);
requires
to balance the
“methodology
legisla
us
obligation
constitutional
ture’s affirmative
substantially
with a
schoolchildren
all of the state’s
opportunity
legislature’s
equal
against
public
discretion in matters of
significant
recognized
secondary
O’Neill,
elementary and
education.” Sheff v.
respect
statistics with
40-41. *41 pres- in the view, supports plaintiffs
In our the Sheff ade- decided as an educational Although ent case. therein that the claim quacy case, our determination its failure to fulfill constitutional government’s that the justi- pursuant first, 20, to article was responsibilities § 24 of this and ciable; through opinion see footnotes 18 well text; willingness as as our accompanying judicial remedies for the effect of consider and order on the conditions Hartford’s schools segregated there, that this court education of the children indicates state constitutional an willing protect right 1. eighth, § education afforded under separate opinions in Indeed, I, in Horton as Sheff plaintiffs’ claims stronger support for the provide even herein, as also raised an educa- Sheff directly that was not addressed adequacy tional claim majority opinion. O’Neill, supra, See Sheff J., J., id., concurring); (Borden, Conn. (Berdon, Berdon, reasoning in the concurring Justice dissenting). racially ethni- concluded that “a and judgment, and cally deprives environment also educational segregated adequate required of an education as schoolchildren Id., 48. (Emphasis added.) constitution." state fundamentality an education Noting the id., Berdon 1; 49-50; see Justice under article between school segregation stated that ethnic racial minority on impact have devastating districts “can education”; 51; that, concluded id., student’s “[i]n education, our adequate ‘proper’ an order in a environ- nonsegregated children must be educated Justice Berdon described Id., Although ment.” 51-52. comparatively low achievement test scores Hartford’s isola- into the effects racial “insightful devastating education”; 52; emphasized he id., tion on the students’ beyond are the effects of de facto felt segregation every back- Hartford: “Children of race ethnic system when educational is adminis- suffer ground tered on a basis. segregated only Education entails not teaching reading, writing arithmetic, but today, in our world, multicultural it also includes the development of social understanding and racial toler ance. If the mission of prepare education is to our chil dren to survive and succeed in today’s world, they then must be how taught to live as one together people.” Id., 53 (Berdon, J., concurring).
In contrast, Justice rejected plaintiffs’ Borden adequacy claim in his opinion, dissenting he although concluded that “it necessary is not in this *42 case to decide whether article eighth, 1, embodies a § requirement that the provide state a minimally adequate education if or, does, it the extent to which such a requirement subject judicial to review .. . [or] define specific contours of such an Id., education.” 142. Justice Borden assumed that there was a constitu- tional right adequate to an education, rejected but plaintiffs’ reliance on state mastery test scores as a standard for determining whether that had been violated, that, noting only the trial court’s findings “[n]ot case, but also common sense tells any me that appropriate standard which to measure the state’s provide assumed obligation minimally a adequate education must be based generally, not on what level achievement students reach, but on what the state reasonably attempts to make them, available to taking into account any special needs of a particular local system.” school (Emphasis added.) Id., 143. Describing students’ problems such as low birth weight, maternal use drug “early and other environmental deprivations”; id., 144; Justice Borden concluded that, “[although important schools are socializing institutions in our society, democratic they cannot be constitutionally required to every overcome serious personal social and that disadvantage students bring with them school, seriously that hinder the academic achievement of noted, Borden Id. Justice Significantly, those students.” say that, “not to however, his conclusion was that provide obligation of its assumed constitutional part adequate education, obliga- the state has no minimally attempt, means, reasonable ameliorate tion to problems. may obligation. It well have such It these fully say, however, that this record establishes is to policies has, programs, the state through met already described, obliga- funding mechanisms opinion Id. Borden’s Although dissenting tion.” Justice Sheff, on the record in rejected plaintiffs’ claims analysis open question whether explicitly his left particular qual- minimum eighth, 1, embodies § ity of education. from this court additional
Other decisions
responsibilities
the limits of the state’s
insight
into
clause,
and consistent with Justice
under
dissenting opinion
Sheff,
Borden’s
indicate
are not
responsibilities
state’s
under article
mea-
require
and do not
the state to take
unbounded,
stu-
potential
specific
that will maximize the
sures
every possible
mitigate
negative
dents
effect
*43
for which the state bears no direct
external
factor
example,
Savage Aronson,
For
in
responsibility.40
plaintiffs
C History Constitutional parties and the brief the amici As noted Collier, emeritus, the state historian curiae, Christopher draftsman and Bernstein, principal J. and Simon at constitu- eighth, § of article proponent deeply rooted commit- convention, Connecticut’s tional
293 See public ment free education is well documented. State ex rel. School Huntington Huntington Commit- Conn. 74 A. tee, (“Connecticut 882 (1909) duty recognized has for centuries it as her and for proper education of the see young”); Davison, 183, 191, also Bissell v. 65 Conn. 348A. duty (1894) (describing education as “assumed chiefly . . . of great public because it is one [s]tate necessity protection for the welfare of and the [s]tate itself’). Colony Code Indeed, the of Laws Connecticut, promulgated commonly and known as the Code, Ludlow recognized “the good Education of is of singular Children behoofe and bene- any fitt wealth,” required Common and families to educate their children “to read the [E]nglish tounge, Capitall knowledge Lawes,” the “grounds principles of religion,” and “in some honest lawfull . . . labour or [e]mployment, in husbandry, either some other proffitable trade for themselves and the they Common wealth, if will not nor cannott traine them [u]p in them for Learning [e]mployments.” fitt higher of Laws, Code reprinted Children in 1 (1650), Col. Rec. 509, 520-21 (J. ed., Hammond Trumbull To that 1850). end, Ludlow Code public made education and school attendance mandatory, “euery requiring Town- eshipp within this Jurissdiction, after Lord hath increased them fifty to the number of houshoulders . . . appoint forthwith one within theire Towne to [to] teach all such as children shall resorte to him, to write read,” further, any “where Towne shall increase to the number of one hundred families or housholders, they [u]p shall sett Schoole, a Grammer the masters being youths thereof able may to instruct so farr they as bee fitted for [U]niversity.” of Laws, Code Schooles reprinted (1650), in 1 Col. Rec., supra, 555.
Thus, Bernstein stated that he had introduced ultimately resolution that was enacted article eighth, free system because “our 1, [has] par on with our bill of acceptance rights tradition *46 sanctity. have same and it should [constitutional no [cjonstitution It our had reference was because my I .... system that submitted resolution our school . a of . . when I served on board I became aware this surprised to find that Connecticut of education and was had education no reference good with its traditional I when use the word [cjonstitution ‘good in the it . . . from the Connecticut quoting education’ I am I call the Ludlow of 1650 which others believe code Quote of children is of good singular Code. ‘a education we any benefit to so of behoove and [c]ommonweaith’ earliest goes do tradition which back our have the days and we have public of free education good h[ad] anything so that this is not public again schools good is have, which we it which revolutionary, sоmething it is all in the of our practically is [s]tates [constitutions certainly great with its tradition nation Connecticut Proceedings of the Con- principle.”41 to honor this ought Pt. 3, p. (1965), necticut Constitutional Convention p. 1062, Bernstein; id., of see 1039, Delegate remarks think it Delegate (“I remarks of Chase G. Woodhouse finally our extremely fitting put is that we should into public to our schools great a reference [constitution of Henry perhaps Barnard Connecticut one because development in of of historical greatest figures in public ours”); education this whole nation school previously may come as a matter of some Bernstein had noted that “[i]t Connecticut, surprise grown up all who in this which of us have [s]tate populace dating back to our itself a well educated schools considers [with] presently say early history. [cjonstitution as it is written does not Our any public Proceedings anything provision level.” about a education on (1965), p. Pt. Convention 311. Bernstein the Connecticut Constitutional history early in is as noted further that “the Connecticut founded, day was our were founded in 1636 when Hartford [c]olonies they getting . . no in master for Hartford. . We have wasted time school history public body supply great requiring that our and tradition Id., p. with 312. children free education.” Ganim, see also 595-96 supra, (dis- Moore 233 Conn. article that our cussing history noting § “have been when choos- explicit constitution’s drafters impose on the ing obligations state”). affirmative that, conjunction Woodhouse which noted higher education, eighth constitutionalized “cov- ers might that we as essential now everything regard system for a of education that will be one of the best in the States.”42 Proceedings whole United Con- 3, p. necticut Pt. (1965), Constitutional Convention 1063. Indeed, introducing provision, Bernstein noted specifically importance of education with respect preservation representative to the demo- *47 cratic See the Proceedings institutions.43 of Connecticut 42Indeed, delegates at the 1965 constitutional convention enacted eighth, 1, only knowledge with the that Connecticut was the state guarantee in the did United States that not have an education in its state Zaiman, constitution. See J. “First Constitutional Guarantee Of Free Educa Approved,” Courant, 20, 1965,pp. 1, tion Is Hartford October 5. early propo Bernstein’s echo the remarks sentiments of several notable public education, including nents of Thomas and Horace Jefferson Mann. Jefferson, Virginia (1782), Query (“[o]f See T. on *48 note, however, our We beyond that borders. go
ations
in all
is relevant
cases.”
every
“not
Geisler factor
that
n.10; see also
supra,
297
Conn.
Kerrigan
Health,
v. Commissioner
Public
the lack
Thus,
E
Sister State Decisiоns
A review of the sister state decisions in this area is
paramount importance
appeal,
presents
to this
which
question
impression
first
in an area of constitutional
law
uniquely
province
has been the
of the states. Cf.
Independent
San Antonio
SchoolDistrict v. Rodriguez,
supra,
use to education.48 rights law, which, York case then,
We with New begin, *51 for explained by Campaign the amici curiae Educational 48 respect clauses are similar Connecticut’s with States whose education qualitative published appellate language, law but lack case to an absence of California, any adequacy requirement thereunder, Alaska, addressing are Hawaii, Mississippi, Missouri, Michigan, Vermont. Alaska Utah and See by Const, VH, (“The legislature general law and § art. 1 shall establish may public State, system open to all children of the and maintain a of schools public provide and so institutions. Schools institutions for other educational Const., IX, control.”); § Cal. art. 5 established shall be free from sectarian system by Legislature provide (“the of which shall for a common schools kept up supported and in each district at least six a free school shall year, every year first a estab months in after the which school has been lished”); Const., X, (“[t]he provide for § art. 1 State shall the establish Haw. system ment, public support of a of schools free and control statewide university, public control, other sectarian a state libraries and such from may desirable, including physical be deemed institutions as Const., VHI, (“The therefor”); legislature § 2 shall maintain facilities Mich. art. system elementary secondary support public as a of free and schools Every provide by of its district shall for education defined law. school creed, race, pupils religion, as to color or national without discrimination Const., VHI, (“[t]he Legislature shall, general origin.”); § art. 201 Miss. establishment, support public law, provide free for the maintenance and may Legislature pre upon and limitations schools such conditions as knowledge scribe”); Const., IX, (“[a] general (a)1§ Mo. art. diffusion of being preservation rights intelligence to the of the and liberties essential assembly public people, general establish and maintain free of the shall persons ages gratuitous all in this instruction of state within schools for Const., twenty-one years prescribed law”); art not in Utah excess provide X, (“The Legislature and maintenance § 1 shall for establishment system, systems including: public a education [a] of the state’s education state; higher open a which to all children of the education shall be [b] control.”); Const., system. systems free sectarian c. Both shall be from Vt. encouragement prevention H, (“[l]aws § for the of virtue and of vice and 68 duly constantly force, executed; immorality ought kept in and a to be competent ought unless of schools to be maintained each town number provisions assembly permits general for other the convenient instruction however, equal protection challenge, California, youth”). In recent system, adequacy overtones, oversight to the state’s Lockard, note, following payout $1 C. was time billion. See settled one Past, Present and Future of Education “In the Wake of Williams v. State: The California,” Hastings (2005). Litigation 414-15 Finance 57 L.J. Equity al., particularly et instructive, given the similar- ity broadly provision between its worded constitutional and ours. provides New York’s education clause simply legislature provide shall for the maintenance “[t]he and support system of a schools, free common wherein all the may children of this state be educated.” Const., XI, N.Y. art. 1. In 1995, the New York Court Appeals addressed a claim that the educa- “[s]tate’s tional financing scheme fails to public school [c]ity students in the of New York ... opportunity to obtain a sound basic required by education as Campaign Equity, Fiscal [s]tate [constitution.” State, Inc. v. 307, 314, N.Y.2d N.E.2d N.Y.S.2d 565 (Campaign In (1995) I). the context of a motion to dismiss, an to our analogue motion to strike, the court concluded that New York’s education clause *52 “requires the to offer all opportunity children the [s]tate of a sound basic education .... Such an education should consist of the basic literacy, calculating, verbal necessary skills to enable eventually children to productively function as civic participants capable of voting jury. on a If serving physical facilities and pedagogical services and resources made available under present system are adequate provide chil- dren with the opportunity to obtain these essential skills, the will have satisfied its constitutional [s]tate obligation.” (Citation omitted.) Id., 316. The court fur- ther emphasized that state must assure that some “[t]he essentials are provided,” specifically, “minimally ade- quate physical facilities and provide classrooms which enough light, space, heat, and air to permit children to learn. Children should have access to minimally ade- quate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks. Chil- dren are also entitled to minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies, by personnel sufficient adequately trained to teach those however, Id., not, areas.” 317. The court did subject definitively specify what the constitutional “attempt and mandate of a sound basic concept early posture procedural because of the entails” developed which a factual record.49 Id. case, lacked subsequent decision rendered after the remand A I further developed standard to Campaign trial to a “meaningful high have a students prepares them to function education, one which school not neces- participants,” although civic productively as diploma. Campaign Fiscal sarily high school for State, Inc. 801 N.E.2d Equity, N.Y.2d (Campaign After II). con- (2003) 769 N.Y.S.2d outputs that, “whether measured cluding City not receiving New schoolchildren are inputs, York for a sound constitutionally-mandated opportunity id., 919; again the court remanded education”; basic proceedings, for further wherein case to trial court only ascertain the actual cost of need [s]tate “[t]he City. York basic education New providing sound system school fund- financing Reforms the current schools address the shortcom- should ing managing system by ensuring, part as a of that of the current ings City York would every school in New have process, opportunity necessary providing the resources Finally, the new scheme for a sound basic education. accountability to measure system ensure a should *53 actually provide opportunity whether the reforms the Id., a sound basic education.”50 930. for the trier fact would “have to evaluate whether The court stated that of opportu plaintiffs’ infactbeingprovidedthe in districts are the children [the] necessary acquire literacy, calculating nity and verbal skills the basic capable voting serving participants and them to function as civic of enable I, supra, 318; jurors”; Campaign emphasized 86 N.Y.2d and the as facilities, inadequacies physical curricula, plaintiffs’ of “fact-based claims library books, teachers, availability textbooks, qualified of etc.” of numbers Id., properly a cause of action. 319. had stated remand, agreed proceedings although had the Senate After the on state appointed by gover York’s of a commission New with the recommendation appropriation $1.93 was needed to the shortfall and that a billion cover nor The Hampshire Supreme New Court has ascribed meaning clause, similar substantive to its education provides which part: “Knowledge relevant and learn- ing, community, diffused generally through being preservation government; essential to the of a free and opportunities the and spreading advantages of educa- through tion the various of parts country, the being highly promote end; conducive to this it shall duty legislators magistrates, and in all of future periods this government, cherish interest of of sciences, literature and the and all seminaries and public schools, private to encourage and institu- tions, rewards, immunities promotion for the agriculture, arts, sciences, commerce, trades, manufac- City’sschools, legislature ensure a “sound basic education” in New York ultimately only appropriated $300 Campaign million toward that end. for State, Equity, 24-25, Fiscal Inc. v. 8 N.Y.3d 861 N.E.2d 828 N.Y.S.2d (2006) (Campaign panel III). appointed by A blue ribbon of referees hearings, adopted trial court then conducted and the trial court their require appropriation Id., $9.18 recommendation billion. 25-26. On appeal, Appeals subsequently the Court of concluded that the trial court by, effect, commissioning compliance “erred a de novo review of the question. not, assumed, The role of courts is trial [the court] way determine the best to calculate the cost of a sound basic education in City schools, [sjtate’s proposed New York but to determine whether the calculation of that cost is rational. trial should not have [The endorsed court] an examination in which the cost of a sound basic education in New York anew, budget plan already reasonably was calculated when state had Id., Rather, calculated cost.” 27. the court concluded that “the constitu tionally required funding City [djistrict includes, for the New York [s]chool record, operating as demonstrated this additional funds in the amount $1.93 emphasized . . . billion .” Id. The court that its “deference to the [(legislature's financing plans justified only by prudent practical light [¡Judiciary hesitation in of the limited access of the to the controlling facts, respect abiding economic and social but our also separation powers upon system government our which is based (Citation omitted; quotation 28; . . .” omitted.) Id., . internal marks see also id., (“Devising budget prerogative 28-29 [(legislature a state is a [e]xecutive; [¡Judiciary usurp power. legislative should not government position executive branches of in a are far better than the [¡Judiciary funding throughout priorities to determine needs the state and [sjtate’s resources.”). for the allocation *54 history country; to countenance
tures,
natural
and
humanity
and
principles
general
the
and inculcate
industry
private charity,
and
benevolence, public and
sincerity, sobriety,
economy, honesty
punctuality,
sentiments,
affections, and generous
and all social
.
.
N.H.
(Emphasis added.)
.
.”
among
people
concluding
LXXXIH.In a decision
Const.,
II,
Pt.
art.
mostly
public education,
system financing
the state’s
taxation, was
because the
property
via
unconstitutional
and rea-
“proportional
taxes were not
property
school
by the
[sjtate”
as was demanded
throughout
sonable
School
Claremont
clause;
taxation
state constitution’s
Governor,
District
462, 470,
142 N.H.
305
imple-
Although
Hampshire
New
left the
court
constitutionally adequate
of a
mentation
thereof,
policy,
political
and
to the
financing
instance,
branches in the first
it
followed
criteria
Kentucky Supreme
set
in
v.
forth
Court
Rose
Education,
Council
Better
S.W.2d
Inc.,
(Ky.
186
for
and articulated
1989),52
“general, aspirational guidelines
adequacy,”
for
constitutional
defining
namely, that
“
public
provide
education
‘(i)
would
students with:
sufficient oral and written communication
to
skills
in
complex
rapidly
enable students to function
and
changing civilization; (ii)
knowledge
sufficient
of eco-
nomic,
systems
social,
political
and
enable
stu-
dent
choices;
make
informed
(iii)
sufficient
understanding
governmental processes
to enable
student to understand the issues that affect his or her
community, state,
nation; (iv)
sufficient self-knowl-
edge and
knowledge
his or her mental
physical
wellness; (v) sufficient
in the arts to
grounding
enable
each
appreciate
student to
or
his
her cultural and histor-
ical heritage; (vi) sufficient
or
training
preparation for
advanced
training
either academic or vocational
fields so as to enable each child
pursue
to choose and
life work intelligently; sufficient
(vii)
levels of aca-
demic
vocational
skills to enable
school stu-
dents
compete favorably with
counterparts
their
”
surrounding states, in
job
academics or in the
market.’
Claremont
II, supra,
474-75,
N.H.
v.
quoting Rose
Education,
Council
Better
Inc.,
212;
supra,
see also
for
52 Rose,
Kentucky Supreme
In
Court had concluded that the state’s
system
constitution; Ky.
financing
Const., 183;
violated
its
which
provides that,
Assembly shall, by appropriate legislation,
General
“[t]he
system
throughout
for an efficient
of common schools
the [s]tate.”
(Internal quotation
omitted.)
Education,
marks
Rose Council
Better
Inc., supra,
Similarly, South Carolina’s
Assembly
provide for
broadly
shall
General
“[t]he
public
support
system
of a
of free
maintenance and
and shall estab-
open
all children
the State
schools
to
public
such other
institutions
lish,
support
and
organize
art.
may
Const.,
XI,
S.C.
be desirable.”
learning,
as
State,
County
In
School District
3. Abbeville
the South Carolina
58, 68,
(1999),
In Tennessee, state clause provides education recognizes State of Tennessee the inherent “[t]he value of its encourages support.
General shall Assembly maintenance, for the support system standards of a of free eligibility public Assembly may schools. The General establish and support post-secondary such institu tions, public including higher institutions of learning, as it Const., determines.” Tenn. art. 12.The XI, § Tennes see Supreme interpreted provision Court has requiring the legislature support “maintain and system of free that provides, schools at least, the opportunity acquire general develop knowledge, powers reasoning judgment, and generally *57 prepare intellectually students for a mature life.” Ten nessee Small Systems McWherter, School S. 851 W.2d (Tenn. 150-51 id. 1993); (rejecting defendants’ claim that this is rule not “an enforceable standard for the assessing opportunities provided educational in the several districts throughout state”). in
Finally, one of the earliest adequacy cases, the Washington Supreme interpreted Court its education clause, provides paramount which is duty “[i]t appeal pending Supreme An before the South Carolina in Court Abbe- County ville School after District an extensive trial on at remand which money plaintiff the trial districts, court concluded that “the allotted to system licensure, facilities, of teacher the state and most other inputs However, were funding sufficient. the trial court concluded the ol' early programs satisfy childhood intervention did not the constitutional requirement provide minimally adequate education. The trial court duty inequality found that state has a to ameliorate the between under privileged privileged by establishing sys and more children an educational poverty tem prekindergarten that overcomes the effects of for children in kindergarten DuRant, programs.” comment, B. “Education Law: The Long-Term Change Question Political A Doctrine: Doctrine for in Our Public Schools,” (2008). L. 59 S.C. Rev. provision for ample to make
of the state its without dis- residing borders, all within children caste, of race, color, or on account preference tinction 1; Const., IX, art. and concluded sex”; Wash. duty beyond mere goes “the constitutional [s]tate’s It embraces broad and arithmetic. also reading, writing contemporary needed in the opportunities for their role as citizens equip our children setting well competitors today’s market as potential and as plays . . . marketplace of ideas. Education chil- society. prepare It must our role in a free critical effectively in our participate intelligently dren to system’s system ensure that survival. open political [fjirst prepare them to exercise their ... It must both as sources and receivers freedoms [a]mendment to be able to information; and, prepare it must them maturity and study, gain evaluate and to inquire, right The constitutional to have understanding. provision for the education of all ample ‘make [s]tate pos- be hollow if the children’ would indeed [resident] compete adequately not our sessor of the could system, market, labor or in the open in the political omitted.) Seattle marketplace (Citations of ideas.” 517-18, 90 Wash. 2d State, School District stan- recognized The court that these (1978). P.2d 71 paramount “fully are definitive of dards [s]tate’s rather, and that duty,” guidelines but “constitute broad opportunities learning teaching the effective *58 up skills make the minimum of the these essential constitutionally required.” (Emphasis that is education required not Id., 518; id., (state in see also 519 original.) of knowledge the sense all to “furnish total education or programs, subjects, of all services offering or the only to the tangentially but related which are attractive [emphasis in guidelines” original; of central thrust our quotation omitted]). internal marks our research has illustrative, are These cases reached the that those state courts that have revealed
309
merits of the issue54
have held
overwhelmingly
respect
is a floor
adequacy
there
to the
of the
provided pursuant
to their states’ education
clauses;
“minimally
way
education must be in some
adequate”
“soundly
or
basic.”55 Furthermore, many of
54
previously
greater
opinion,
As
noted in
detail in footnote 24 of this
disputes
courts
several states have concluded
instead
over educa
adequacy present noiqusticiable political questions.
tional
See Coalition for
Adequacy
Funding,
400,
Chiles,
& Fairness
in School
Inc. v.
680 So. 2d
(Fla.
Rights
1996);
Edgar,
1,
405
Committee
Educational
v.
174 Ill. 2d
for
29-32, 672
(1996);
Equity
N.E.2d 1178
Nebraska
Educational
&
Coalition for
Adequacy Heineman,
531, 550-54,
(2007);
v.
273
731
Neb.
N.W.2d 164
Okla
State,
1058, 1065-66 (Okla. 2007);
homa Education Assn. v.
158P.3d
Marrero
Commonwealth,
14, 19-20,
(1999);
v.
559 Pa.
110
739 A.2d
Pawtucket v.
Sundlun,
40,
(R.I. 1995).
662 A.2d
58-59
55
only
We have
discussed
detail
those cases from states whose educa
closely
eighth,
1,
tion clauses are worded and
§
structured
majority
constitution of Connecticut. The vast
of the other states have
conclusion, namely,
reached
same
that students are entitled to a sound
basic, minimally adequate,
public schools,
education in
on
the basis
differently
clauses,
strongly
worded education
which make them
indica
respect
of a
tive
national trend and informative with
to the articulation of
specific
standard;
legal
part
opinion; although
necessarily
III
see
of this
respect
question
interpretation, namely,
as valuable with
to the baseline
1,
qualitative
whether article
embodies minimum
standards at all.
Opinion
338,
107,
(Ala.
See
1993);
the Justices No.
624
2d
So.
154-55
Albrecht,
520, 524,
(1997);
v.
Hull
190 Ariz.
310 comprehensive stan- have articulated these decisions components of a constitu- have defined the dards that education, which us with tionally adequate merits of this as we consider guidance further opinion. III of this appeal. part See
F
Sociological
Economic and
Public
Policy Considerations
factor,
address
sixth Geisler
which
Finally, we
sociological
requires consideration of the economic
sup-
presented
appeal.56
plaintiffs,
concerns
1238,
Campbell County
State,
(Wyo.
v.
907 P.2d
1258-59
School District
Daniels,
516,
2009) (“we
(Ind.
1995);
N.E.2d
522
but see Bonner v.
907
[ejducation
[cjonstitution
[cjlause of the Indiana
does
conclude that the
impose upon
duty
any particular
government
to achieve
an affirmative
State,
resulting
quality”);
Legislature
v.
of
educational
Charlet
standard
1199,
(La.
(“[t]he
App.)
So.
1207
Louisiana
does not
713
2d
[constitution
provided by
‘adequate’
require
funding
the state be
or
‘sufficient,’
pupil or
or that it achieve some measurable result for each
each
denied,
(La. 1998);
district”), writ
So. 2d 934
School Administra
school
730
Education,
854,
(Me.
v.
659 A.2d
857
tive District No. 1 Commissioner of
(“There
provision
[cjonstitution guaranteeing
1995)
no
in the Maine
equitable
funding
funding.
To
level of state
of education
certain
only
requires
[sjtate
contrary,
enforce the
the Maine
[c]onstitution
municipal obligation
support public education.”).
56
procedural claim, namely,
have raised
We note that the
also
legal sufficiency
improperly
that the trial court
evaluated the
their consti
opportunity
develop
giving
first
them the
a factual
tutional claim without
record, particularly
regard
sociological
to the economic and
considera
response,
sixth Geisler factor. In
the defendants contend that
tions
strike,
properly applied
in the context of a
the trial court
Geisler
motion
present
questions
pure
law
do not
as state constitutional claims
require
findings by
agree with
We
factual
the trial court. We
the defendants.
frequently have
claims in the context of motions to
considered constitutional
strike;
Batte-Holmgren
Health,
see, e.g.,
v.
Public
Commissioner of
summary
judgment,
(2007); or for
even those
Conn.
In previously we have acknowl- segregation, ethnic school public education, quoting the policy behind edged Supreme stating Court and that “a sound United States very citizenship. foundation of good education is awakening in Today principal is a instrument it pro- him for later values, preparing child cultural adjust normally helping and in him to training, fessional days, In it is doubtful his environment. these reasonably expected to any may succeed child an opportunity if education. life he denied has opportunity, where the state undertaken Such it, is a which must be made available people . . . The have equal to all on terms. American acquisition always education regarded [the] . . . supreme importance. We matters knowledge as a most vital civic public have schools recognized system of a preservation for the democratic institution . primary . . and as the vehicle for government . society on . . the values which our rests. transmitting schools as perceptions And these historic necessary to fundamental values the mainte- inculcating political system have con- nance of a democratic been . . of social scientists. . firmed the observations by which individu- provides the basic tools [Education economically productive lead Uves to the ben- might als In has role sum, of us aU. a fundamental efit society. our We cannot maintaining the fabric of social costs borne our significant ignore [n]ation
313
when select
are denied the
groups
means
absorb
upon
values and
which our
order
skills
social
rests.”
omitted;
quotation
(Citation
omitted.)
internal
marks
O’Neill, supra, 43-44, quoting Plyler
Conn.
Sheff v.
Doe,
202, 221,
2382,
457 U.S.
S. Ct.
72 L.
2d
Ed.
Education,
(1982);
Brown Board
347 U.S.
S. Ct.
Thus,
“[pjradentia!
although
and functional consider
ations are relevant to the
enterprise
classical
of consti
tutional
interpretation, especially where, as here, the
constitutional provisions
remarkably
at issue are so
open-textured”;
Reapportionment
Commis
Fonfara
sion,
166, 185,
Conn.
management inter state’s education of the political prerogatives branches ference with the government, are in our view better addressed any potential constitu remedies for consideration subsequent may at a trial be found tional violations require staying might further merits, which well on the legislative judicial pending action. See action Sheff supra, supra, 45; I, 172Conn. O’Neill, 238Conn. Horton Campaign Equity, State, Inc. v. Fiscal 653;see also 27-28, 861 N.E.2d 828 N.Y.S.2d 8 N.Y.3d (Campaign III) (“[t]he (2006) is role of the courts not way to calculate the cost ... to determine the best . . . whether basic education but determine a sound proposed calculation of that cost the [s]tate’s [j]udiciary of “limited access of the rational” because controlling facts, also economic and social but to the respect separation powers abiding for the our system government upon [inter our is based” which differently, quotation omitted]). concerns marks Put nal respect complications viola to remedies for over provi misinterpret us substantive tions will lead sions of the constitution.
Ill yielded by our Geisler The wealth of information explain analysis ambiguous text well to has served eighth, § clause, article of Connecticut’s Thus, we conclude that of our state constitution. *63 public
eighth, § Connecticut school students 1, entitles opportunity give an suitable to them the to education fully participate responsible to to be citizens able jury voting. service and institutions, democratic such as constitutionally adequate leave also will A education prepared progress to institu- students to Connecticut’s productive higher education, or to attain tions of employment otherwise contribute to the state’s
315
economy.58
state,
To
satisfy
standard,
through
districts,
the local school
must
students with
objectively
opportunity”
an
“meaningful
to receive the
Neeley right.
benefits of this constitutional
West
Orange-Cove
Independent
Consolidated
School Dis-
trict, supra,
787 (“[t]he
S.W.3d
plaintiffs
inappropri
gears
The defendants contend that the
have shifted
ately by
appeal
right
“minimally
arguing
adequate” education,
on
a
although
pleadings
their
memoranda
before the trial court focused on
right
See,
Windswept
e.g.,
Farm,
to a “suitable” education.
Reardоn
LLC,
153, 164-65,
(2006) (“as general rule,
280 Conn.
We
that our
a constitution
of
ally
is
adequate
eighth,
1,
education under article
§
crafted in broad terms. This
reflects,
breadth
first and
our
foremost,
recognition
political
branches’ con
indeed,
stitutional responsibilities,
greater exper
tise,
respect
implementation
specific
to the
of
policies pursuant
educational
education clause.59
dissent,
statutory scheme,
In his
Justice Zarella reviews the education
seq.,
agents
§
General
et
Statutes 10-1
under
local
are
which
school boards
responsible
implementing
principle
of the state that are
of a free
public
see,
seq.;
§
education
accordance with General
et
Statutes 10-218
e.g.,
DeCourcy,
West
Education
v.
Assn.
162 Conn.
Hartford
(1972);
supervision
education;
A.2d 526
under the
of the state board of
see
10-4;
agrees
§
General Statutes
with the defendants that our conclusion
“wrestpng]
herein will have the
of
effect
control of education from the local
education],”
placing
boards
instead
[of
it “in
hands of the court.” Justice
argues
Zarella
intervention
a
to establish minimum standard
“[c]ourt
of education
level
of educational
. . .
achievement
will conflict with
legislative
boards,
local
directives to
whose
discretion
determine what
program’
appropriate learning
constitutes a ‘suitable
and ‘an
environment’
respective
severely
only
curtailed,
for children in their
districts will not
very likely
but
.
nothing
eliminated
. . .” He
further notes that “there is
history
suggest
the recorded
of
1965 convention to
that the framers
by granting
wanted to
end
tradition of local
control
education
authority
principle
public
courts
to determine how the
free
education
implemented.”
should be
emphasize
supplant
We
that our
conclusion herein not intended to
local
nor,
education,
deprive “parents
argue,
control over
as the defendants
[of]
say
a true
cognizant
in their children’s education.” We are
of the risks and
separation
powers
judicial
concerns attendant to intensive
involvement
policy making;
opinion;
emphasize
in educational
see footnote 22 of this
explaining
our
role in
is to articulate the broad
parameters
right,
implementation
of that constitutional
and to
their
leave
expertise
political
to the
of those who work in the
branches of state and
government,
local
long
informed
the wishes
their
constituents. So
prescribe
implement
program
those authorities
of instruction ratio-
nally
minimally adequate
calculated to enforce the constitutional
ato
herein,
judiciary
stay
education as set forth
then the
should
its hand. Cf.
Neeley
Orange-Cove
Independent
District,
v. West
Consolidated
School
supra,
extreme,
(“At
dispute
176 S.W.3d778
one
no one would
that a
system
teaching first-grade reading
education
inadequate
limited to
would be
other,
merely
adequate, public
....
At the
few would insist that
to be
multiple languages
biophysics,
education must teach all students
or nuclear
efficient,
unlimited.”).
or that to be
available resources must be
See Sheff
recognition
standard also reflects our
constitutional
instru
inputs or
specific
fact that the
achieve this minimum level
mentalities suitable to
as a “constitu
may
change
time,
well
over
is not a static con
tionally adequate public education
world.”
evolving
the demands of
cept removed from
also, e.g.,
142 N.H.
see
II, supra,
474;
Claremont
1, 9-10,
St. 3d
728 N.E.2d
DeRolph
State,
89 Ohio
*66
thorough
deemed
and efficient
(2000)
993
was
(“[w]hat
certainly
adopted
was
when the state’s [constitution
thorough
today”);
and efficient
would
be considered
State,
District v.
907 P.2d
Campbell County School
proper
of a
educa
definition
1995) (“[t]he
(Wyo.
necessarily
Finally,
will change”).
tion is not static and
any
principle of consti
that, like
other
it bears mention
will
likely
broad standard
be refined
law,
tutional
applied
as it is
to the facts eventu
developed
further
ally
be
at trial
this case.
found
to achieve the
note that the failure
students
We
may
constitutionally
a
mandated education
be
goals
or
specific
inputs,
the result of
deficient
to, or
factors not attributable
potentially,
caused
by,
omission,
a
capable of
state action
remediation
beyond
question
point
that is at this
complicated
Campaign I,
case.60 See
procedural posture of this
opinion
concurring
separate
a
note
Schaller writes
We
that Justice
litigation
“express prudential
regarding
stage
the next
of this
concеrns
template
suggestions
preliminary
a
based on what
offer
in the form of
Specifically,
may
(Emphasis
original.)
anticipate^]
trial.”
arise at
[he]
assessing adequacy,
explores
methodologies for
Justice Schaller
several
adequacy
light
how to assess the
of education
well as concerns about
potential
poverty,
also considers
remedies
other
factors such as
social
Although
obser
a violation be found after remand.
Justice Schaller’s
should
considered,
emphasize that, beyond
thoughtful
we
vations are
and weE
part
opinion,
question
poEtical
we take no
discussed in
I of this
issues
potential remedies,
position
appEcable
mechanisms or
on the
assessment
beyond
appropriately
present questions
in the nar
which
those
considered
procedural posture
to strike.
row
of motion
spe
in the
supra,
(“[i]n
cant is clause not that the education recognize nevertheless for ills that contribute to a all of social panacea by deficiencies identified many achievement adequate constitutionally complaint; in their Neeley See necessarily perfect one. Independent School Orange-Cove Consolidated v. West District, supra, 784 stated that the education court (The necessity, much [legislature, “does allow the clause any number of alternatives choosing among in latitude reasonably adequate, efficient, be can considered require perfection, do not These standards and suitable. in may many they They lax. satisfied but neither are they be satisfied.”). but must ways, different therefore, improp- the trial court conclude, We motion strike because the defendants’ erly granted ques- as a to determine required are proceedings further resources fact the state’s educational tion of whether fact school provided and standards have constitutionally with suitable edu- case students this opportunities. cational and the is remanded is reversed case judgment according law. proceedings further SCHALLER,Js., concurred. opinion KATZ
In I PALMER, concurring judgment. agree in the J., 1,§ under article that their claims plaintiffs1 I justiciable. are also constitution2 Connecticut is a provision embodied that the conclude *68 plaintiffs for Justice Education are the Connecticut Coalition The Inc., parents grandparents Funding, enrolled in and and of students certain plurality public throughout state. See footnote 3 of schools various opinion accompanying text. provides: eighth, 1,- “There constitution of Connecticut § of the Article secondary elementary always in the public schools state. shall free by appropriate implement principle legis assembly general this shall lation.” provide one the state3 to an requires
substantive pub- students of free opportunity educational to the our elementary secondary that, least, lic schools at stan- minimally adequate by is modem educational Consequently, plurality, dards.4 I also conclude like the that the court must be reversed. judgment the trial I am join plurality opinion, however, pri- unable to marily plurality I view because take a different from the respect scope to the of the right guaranteed 1. In I particular, article believe that the execu- eighth, § tive and branches are entitled to considerable legislative respect deference with to the determination what it means, practice, minimally adequate, for a free it Thus, education. is the prerogative legislature determine, limits, within reasonable what a minimally adequate education entails. Consequently, my view, prevail will not be on able to their they claims unless able to are establish what the state has done to discharge its under obligations is eighth, lacking so as to be unreasonable by any objective fair or As I more explain fully standard. any other hereinafter, approach, approach including plurality that the advocates, permit judicial would branch to second-guess the reasoned judgment legislative and respect executive branches with to the policy state, thereby of this depriving those Rell, governor Connecticut, The defendants in this case are M. Jodi Lynn treasurer, Nappier, Nancy Wyman, comp Denise the state S. the state troller, McQuillan, Betty Sternberg, Mark K. successor to J. the former state education, commissioner of former various and current members of plurality opinion the state board of education. See footnote 5 for a particular simplicity, list of the defendants in case. In this the interest of I collectively opinion. refer throughout to the defendants as the state this perceive opportunity 4 I difference no between educational that is minimally adequate opportunity plurality and an that the charac “soundly (Internal quotation omitted.) terizes as basic.” I marks use the terminology, however, language former because it mirrors the used in the explication purposes of the standard I believe most useful for explaining requirements part the essential of article See § 1. II of opinion.
322 in discretion “recognized significant branches of their secondary public elementary of education.” matters A.2d 1, 678 1267 O’Neill, 37, (1996). 238 Conn. Sheff v. I JUSTICIABILITY plaintiffs’ the claims under The state contends that rise state eighth, 1, give article constitution § I question. agree nonjusticiable political Although plaintiffs’ plurality’s with the determination disagree are I justiciable, claims state constitutional O’Neill, supra, plurality’s assertion that Sheff v. justiciability in this issue 1, 238 Conn. “controls My plurality with the is twofold. disagreement appeal.” in plaintiffs First, involved a claim that the Sheff substantially equal had been denied the case under opportunity § provisions first, of article equal protection under in Second, retro l and of the state constitution. 20,6 §§ analysis in was less justiciability our spect, Sheff persuasive. than I first points, these two turn considering
Before
relatively
justiciability
court’s
brief discussion
this
explained
we first
that the defendants
Sheff,
which
plaintiffs’
that the
claims were
in that case had asserted
“the relief
nonjusticiable because
[that
respond
. .
court to
to a
require
would .
sought]
provides:
first,
“All
of Connecticut
men
§
Article
constitution
they
equal
rights;
compact,
or
are
and no man
set of
form a social
when
privileges from the
emoluments or
com
men are entitled to exclusive
munity.”
provides:
person
first, 20,
“No
of Connecticut
§
Article
constitution
protection
subjected
segrega
equal
of the law nor be
be denied the
shall
political
enjoyment of
or
in the
his civil
tion or discrimination
exercise
color, ancestry
origin.”
religion, race,
rights
or national
because of
twenty-one
first,
five
articles
Article
has been amended
disability, respectively,
amendments,
list
which added sex
protected
classes.
*70
political question
our
constitution has expressly
exclusively
and
entrusted to the legislature.” Id., 13.
we
Although
acknowledged that “courts do not have
jurisdiction to decide cases that involve
matters
have
reserved
textually
id.;
been
to the
we
legislature”;
explained
also
that,
absence of such a textual
“[i]n
duty
judi
reservation ...
it is the role
and
of the
ciary to determine whether the
has fulfilled
legislature
its affirmative
within
obligations
princi
constitutional
ples.” We then
that,
Id.
observed
context
“[i]n
judicial
claim seeking]
enforcement of the
[a
a substantially equal educational opportunity arising
1,
under
eighth, §
and article first,
20,
1 and
§§
justiciability
impression
is not a matter of first
for this
Id.,
court.”
14.
explained,
We
more specifically,
that,
Meskill,
Horton
172
615,
Conn.
We then noted: “The defendants do not [in Sheff] challenge validity continued I Horton and Horton III . . but . that their argue nonjusticiability claim differs. That argument is unavailing. plaintiff . schoolchildren . . invoke the same constitutional provisions challenge the constitutionality of state plaintiff action that the schoolchildren invoked in Hor- ton I and Horton III. The text of article eighth, 1, has § not changed.” Id., 14-15. The court concluded Sheff that, light precedents of these . . . phrase “[i]n ‘appropriate legislation’ article eighth, 1, does not authority determine what the courts of the deprive ” Id., ‘appropriate.’ 15. justiciability was
Thus, our
determination
Sheff
III,
I and Horton
predicated entirely on Horton
supra,
236 Conn.
cases,
State,
Nielsen
subsequent
two
O’Neill,
adjudication
adjudi-
requires
the latter
education, whereas
ity directly related to
that are more
cation of issues
adequacy
To
extent that education
policy.
education
in matters
involves the courts
litigation
equity
degree
litiga-
than education
policy
greater
as a
that,
general
conclude
tion, it is reasonable to
likely
are more
to result
matter, adequacy claims
interest
legislative
into areas of core
judicial intrusion
at
Levy,
R.
responsibility. See, e.g.,
“Gunfight
Power in the Kansas
Legislative vs. Judicial
K-12Corral:
L.
54 U. Kan.
Rev.
Litigation,”
Finance
School
requires
adequacy
levels of
(2006) (“Defining
1033-34
determining
become involved
that courts
edu-
delivering
and the methods of
policies
goals
—the
does not. Like-
way
equity litigation
cation —in
adequacy
remedies for violations
wise, fashioning
problematic
legislatures
because
more
requirements
funding
sufficient
may
be reluctant
of remedies
judicial
against
enforcement
because
difficulties and raises seri-
presents practical
legislature
separation-of-powers
concerns.”).
ous
with the
their
agree
I nevertheless
justiciable.
I
First,
are
§
claims under article eighth,
persuaded
eighth,
of article
language
am not
that the
implementation
clearly
so
removes the issue
its
1,§
judiciary from
judicial
preclude
review as to
from
possesses to
authority
that it otherwise
exercising
plaintiffs’
claims. Although
the merits
consider
of article
“appropriate legislation” language
considerable
latitude
legislature
affords the
man-
how best to meet the constitutional
determining
*73
public elementary
secondary
school
date of free
opinion;
nothing
see
II
this
there is
education;
part
of
provision
of that
to indicate
wording
history
in
or
the
implementation
to shield its
that its drafters intended
any
judicial
from
and all measure of
legislature
the
I
interpretation
Moreover, although
review.
believe
in
the
determining
that
other factors to be considered
justiciability
the
of a claim under the state constitution9
question
plurality
a
the
it
present
closer
than
believes
I
does,
plurality
with the
and the
that
agree
sufficiently
those considerations are
compelling
case
this
to relieve this court of its constitutional
responsibility
of
safeguard
rights
constitutional
citizenry.10
our
Mindful of the fact that we undertake
political questions
is
“It well settled that certain
be
cannot
resolved
judicial authority
violating
principle
separation
without
the constitutional
of
powers.
Carr,
186, 210, 217,
of
Baker v.
369 U.S.
82 Ct.
2d
S.
7 L. Ed.
Reapportionment
(1962);
Commission,
v.
222 Conn.
184-
Fonfara
Pellegrino O’Neill,
(1992);
[supra,
328 heavy “with a thumb
our resolution of the state’s claim
the
justiciability,
recognition
on
and with
the side of
politi-
simply
the case is connected to the
that,
because
it
a
necessarily follow that
is
sphere,
cal
it does not
Board
political question”; Seymour
Region One
(2002);
II THE CONSTITUTIONAL STANDARD By terms, eighth, 1, its article of the state § constitu- tion merely precatoiy hortatory. is not or On the con- imposes trary, mandatory it an affirmative, obligation on legislature to enact legislation appropriate to the system task of maintaining public elementary of free secondary schools. issue, therefore, is whether eighth, article 1, obligates the § state ensure that public those free schools to the students them attending an educational opportunity of a certain quality. level or I believe that it does. reasons,
For several I am unable conclude that is long satisfied as as the state main- system tains a of public elementary secondary fundamentally schools no matter how inadequate some may all of those apparent schools be. It is that Simon Bernstein, one of the delegates at the state constitu- tional convention of delegates sup- other who ported the idea of constitutionalizing the right free public proud schools were of Connecticut’s long-stand- ing commitment to the education of its schoolchildren, and they their urged colleagues support proposed expression as an of the state’s continued recogni- tion of responsibility. See Proceedings of the Con- necticut Constitutional Convention (1965), Pt. 1, p. 312, (“[w]e remarks Bernstein a great history have tradition requiring public body that the supply chil- our public education”); Proceedings with free
dren 3, p. Pt. (1965), Connecticut Constitutional Convention this state’s educa- (noting remarks of Bémstein days back our earliest goes which tional “tradition id., p. 1062, also good public education”); free see extremely is Going (“it remarks of Chase Woodhouse our finally put that we should into fitting [constitution Henry public our schools because great a reference to perhaps greatest one of the Barnard of Connecticut development school historical figures presume, To ours”). in this whole nation chooses, if it estab- therefore, may, the legislature *76 manifestly inferior or substandard lish and maintain purpose with the public schools would be inconsistent namely, to underscore underlying article eighth, § that public elevating of free schools importance the p. 1039, See, e.g., id., status. principle to constitutional a . . . Bernstein submitted resolution (“I remarks of . of . . and pertained subject to the education which . . that resolution . was purpose of of statement have a tradition system public of free education that our of and it acceptance par rights on a with our bill [of] sanctity. was It have the same should [constitutional had no reference to our our because [constitution and of system my I submitted resolution school that in of the same others were aware course [omission] resolutions were and other similar our [constitution public . schools good . . have submitted. [had] [W]e revolutionary, not it is anything is again so that this have, practically is which we it is which something [in] of our nation Con- all in the [s]tates [constitutions certainly to honor great ought with its tradition necticut contrary determination Moreover, a principle.”). of requirement incompatible would system a implement shall legislature that elementary secondary schools of free suggests mandate that that a “appropriate” legislation, contemplated free delegates the establishment of least of public schools of at some measure or level quality. Indeed, meaning it would do violence to the “school,”11 place go the term as a where students conclude is free to learn, legislature establish system public and maintain a education that minimally even those adequate meet needs of students. I
Finally, agree with Justice Schaller that our determi- right equal nation Horton I to an concerning opportunity informs our determination qualitative compo- whether that also includes a explains nent. As Justice concurring Schaller his opinion: “To be sure, court concluded in Horton I only that the were entitled to [in case] an substantially receive education was equal quality to provided the education that other was children, they not that were guaranteed meeting qualitative minimum standard. ... It is not possible to requirement equal- infer from a generally ity requirement adequacy. hand, On other quality idea that it is the education to which Connect- *77 equal icut children merely have an rather right, than equality in supports education financing, the general proposition that the interest that children have in the fundamental right to education guaranteed by [article eighth, inextricably § quality linked to the the of 1] provided. education way, Put another our conclusion I Horton that the right had a [in case] substantially equal educational funding is based on the to an of right substantially equal education quality. The notion that have children a to an right education substantially of equal quality presupposes that ‘quality’ is an component essential of eighth, We § [article 1]. organized training: “School” is defined as “an of source education or teaching place as ... an institution for the ... children a where given Dictionary. instruction is . . . .” Webster’s Third New International from the fairly separate education right
cannot empha- omitted; quality (Citation to a education.” right equal implicit in the to an Thus, right in original.) sis elementary public in our free opportunity that, an secondary right is the schools qualitative standards. satisfies minimum least, at the that article contains eighth, § determined Having remains: component, question qualitative following scope of the right guaranteed What is the nature and follow, I For the reasons that provision? under that under article first, that the established conclude, right only establish 1, requires legislature eighth, § minimally adequate system public of free maintain a that the is entitled legislature I also conclude schools. its respect to both con- to considerable deference implementation and its ception scope right the right. the conclusion support A number of considerations 1, places greater no eighth, § that the under article right provide a mini- on than to obligation legislature opportunity to state’s mally adequate educational elementary secondary First, students. school no that mandates language article contains eighth, § purports or otherwise to delin- any particular standard minimally to a expressly right parameters eate blush, At the framer’s omis- adequate education. first might appear to be neutral with language of such sion scope created respect to the issue of the plurality observed, 1. has As § under majority of provisions of a state however, analogous states to require the those legislatures constitutions caliber, level and maintain schools certain establish See, Const., Ark. art. must quality. e.g., (state *78 system and of free “a suitable efficient general, maintain 2 Const., IX, art. public schools”); (legislature § Colo. system “a uniform provide thorough for and directed to Const., IX, 1 public (a) (state § Fla. art. schools”); of free
333 provide efficient, secure, shall for “a uniform, safe, and system high quality public of free schools that allows students to obtain a high quality education”); Idaho 1 Const., IX, provide art. shall “a (legislature gen- § for eral, system uniform and thorough public, free com- X, mon 111. 1 schools”); Const., (“[t]he art. state shall § provide an system quality public for efficient of high Const., institutions and Minn. services”); XIII, (legislature provide art. thorough shall for “a § system public and efficient schools”); Const., Mont. art. X, 1,para. (“[t]he provide shall legislature § basic system quality public of free elementary secondary N.J. schools”); Const., VIII, IV, para. art. 1 (“[t]he § [legislature shall sup- for maintenance and port system of a thorough public efficient of free VI, 2 schools”); Const., (Ohio Ohio art. Assem- § General bly provisions shall make “a and efficient thorough system of common schools throughout state”); Va. Const., VIII, art. . . (“[t]he Assembly § General . shall seek to ensure that an educational program high quality is established continually maintained”); W. Va. Const., XII, art. provide, by § “shall (legislature general law, for a thorough system efficient free Wyo. schools”); Const., art. 1 (“[t]he [legislature shall provide for the establishment and maintenance of a complete system and uniform of public instruction”). In Connecticut, however, have we elected to establish right public constitutional to a free with- out any reference to qualitative substantive or require- ment. I Although am persuaded that the absence of such language eighth, § reflects intent by the framers that our elementary and second- ary any schools need not meet minimum or threshold qualitative standard, fact article eighth, 1,§ contains such no language is nevertheless reason for this court to refrain from defining broadly too or expansively. *79 2, of the Connecticut
Furthermore,
eighth, §
article
1,
adopted
eighth,
like article
was
constitution, which,
§
requires that the
convention,
constitutional
at the 1965
education,
system higher
including
a
of
state “maintain
which
University Connecticut,
of
shall
dedicated
The
added.)
(Emphasis
education.”
higher
to excellence
partic-
makes
to a
provision
this
reference
The fact that
an inference that the
qualitative
supports
standard
ular
in non-
intentionally
eighth,
1,§
article
drafted
framers
against
and further counsels
substantive
terms
1.
interpretation
§
article
expansive
eighth,
of
indicates that
history
of article
also
eighth,
they were
did not believe that
the framers themselves
For
the main
example,
new
broad,
right.
establishing
provision, Bernstein, urged its
sponsor
proposed
already
states
had seen fit
adoption because the other
in their state constitutions.
provisions
to include similar
Con-
the Connecticut Constitutional
Proceedings
See
p. 1039, remarks
Bernstein.
supra,
Pt.
vention,
expressly
principle
stated that
Indeed, Bernstein
“not anything
his
was
revolution-
proposal
embodied in
p. 1040,
of Albert E.
ary.”
id.,
remarks
Id.; see also
only
was
that because Connecticut
Waugh (explaining
provision establishing
to have constitutional
state not
proposed
public education, adoption
to free
do”).
proper
thing
was “natural and
amendment
framers,
as reflected
Thus,
purpose
intent and
constitutional conven-
in the
proceedings
1,§
of article
tion, coupled
language
eighth,
qualita-
particularly
strongly
demanding
suggest
impor-
paramount
not a matter of
requirement
tive
was
never-
considerations,
together,
taken
tance. These
article
support
eighth, §
the conclusion that
theless
secondary
elementary and
free
contemplates
minimally
least,
adequate.
at
that,
are
schools
proper scope
I
also believe that
regard
without due
for the
cannot be determined
1,§
principle, previously
“pru
recognized
court,
may
light
proper
dential cautions
shed
on the
definition
*80
of constitutional
and remedies .
. .”
rights
(Citation
.
O’Neill,
238
omitted.)
supra,
15;
Conn.
see also
Sheff v.
v. Reapportionment Commission, 222 Conn.
Fonfara
185,
166,
The first such consideration is
this
what
court has
recognized as the legislature’s significant
discretion
public elementary
matters of
secondary
school edu-
cation.
O’Neill, supra,
Conn.
41.
Sheff
judicial branch must accord the legislative branch great
deference in
because,
this area
among
reasons,
other
ill equipped
courts are
deal
issues
policy; in
words,
other
courts “lack
specialized
[the]
knowledge
experience”
“per-
to address
many
sistent and
questions
difficult
policy”
of educational
that invariably arise in сonnection with the establish-
ment and maintenance
system
statewide
of educa-
Independent
tion. San Antonio
School District v.
Rodriguez,
Another
for
compelling
judicial
reason
restraint
relating
policy
potential
matters
to educational
is the
costly
exists for a
if
remedy
and intrusive
it is
system public
determined that the state’s
has
quality.
failed meet the constitutional standard of
experience
recent
neighbors
our
Massachu
setts
New
York
instructive.
In both
those
states, trial courts found that certain schools
con
were
stitutionally
imposed
deficient and
remedies that ulti
mately
upheld
were
on appeal,
billions of
costing
dollars. See
Hancock
Education,
Commissioner of
428, 436-51,
Mass.
domain” and inevitably must mean point for what starting but [one], which appropriations,” concerning judicial directives of then efforts light ongoing result in unacceptable was improve statewide); education branches political York, supra, 28 Inc. v. New Campaign for Equity, Fiscal education [legislature’s deference to the (“[The court’s] only by plans justified prudent not financing is of the limited access of the practical light hesitation facts, economic and social controlling to the [j]udiciary respect separation abiding but also our based system government our is which powers [on] policy-making We intrude .... cannot [on] legisla are reserved to the discretionary decisions that omitted; . . .” branches . tive and executive [Citations quotation omitted.]). marks internal jurisdic cases from other examples and similar These commentary has recently charac reflect what one tions adequacy trend in education terized as a distinct judicial and toward away intervention litigation from R. Sturm, J. Simon-Kerr & legislature. deference to the Adequacy Litiga of Courts in “Justiciability and the Role Education,” Preserving Right the Constitutional tion: (2010) cases). C.L. 83 (discussing 6 Stan. J. C.R. & prospect plaintiffs I with the that the agree Although inject likely or one that expensive remedy, of an both, policy, the court into matters adjudication of the merits of preclude should separa claims, significant adequacy their education any remedy invariably such powers issues that tion of spawn given must be due consideration would under scope established determining seek l.12The fact is that eighth, § [p]ru that, “although plurality’s disagree 12 I with the assertion therefore enterprise relevant to the classical considerations are dential and functional concerns, interpretation .. . involve . . . these which of constitutional *83 system potential judicial overmanagement of state’s education for the the political govern prerogatives of with of the branches and interference the potential ment, of remedies in consideration are in our view better addressed complete public a overhaul the of system current education, including judgment a “that declaring existing system school funding unconstitutional, is void effect,”13 and without a permanent injunction barring the state “from public the current operating except system, necessary expedient as to and efficient a transition to constitutional educa system,” tion the appointment special and of a master “to hold hearings, report make findings, recommen dations to the to regard the constitutional [c]ourt ity any system new proposed by of education [the It imagine comprehensive is difficult to a more state].” or thoroughgoing challenge legitimacy to the manner in which the legislature has elected to discharge responsibilities its under article eighth, § than that any may subsequent for constitutional violations that be found at trial on merits, might require staying judicial pending which well further action legislative (Citation omitted; quotation omitted.) action.” internal marks The plurality’s unpersuasive approach acknowledge that, is it to because fails experience states, including Massachusetts, as the of other New York and out, remedy has borne isit unrealistic to believe can that be devised that give separation powers Although plurality will rise concerns. simply by leaving seems believe that it can avoid those concerns remedy legislature instance, plurality’s to the in the first I submit that the regard misplaced. adequacy confidence in that is As recent education cases demonstrated, way have there no that can courts avoid involvement complex funding policy remedy merely stage and education at issues by permitting legislature attempt satisfy mandate; the court’s likely stage complicated parties’ issues involved at are to be too and the divergent remedy views too be the court to able to remove itself from the phase. See, e.g., O’Neill, Court, judicial Superior Hartford, district Sheff v. (February 22, Docket No. 2010) (stating X07 CV-89-4026240-S that “[t]his yet again” history providing Sheff litigation, case returns to court brief plaintiffs concluded). Indeed, which commenced in still has not present sought appointment special in the case have of a master plaintiffs assist the ongoing court what the will believe be the court’s supervision any remedy may proposed implemented over the state. alleged system public have current school funding “arbitrary inadequate this state is well “flawed” as .” . . . *84 by sought in the relief
reflected present case. it note- claim, is respect рlaintiffs’ funding to the
With plain- the named worthy report commissioned for Justice in Education tiff, Coalition Connecticut that, dur- Inc., indicating an estimate Funding, contains would have year, the state ing the 2003-2004 school elementary $2.02 additional billion on spend had to an secondary education to meet public school plaintiffs. See advocated constitutional standard Associates, Inc., Estimating Palaich & Augenblick, in Connecticut Adequate (June, of an Education Cost p. http://www.schoolfunding.info/ available at v, 2005) March states/ct/CT-adequacystudy.pdf (last visited approxi- amount is “additional” annual 2010). This amount the state mately 92 more than the percent approximately billion, $2.2 actually year, i.e., spent that Analysis, Connect- See Office of Fiscal on those schools. 2003- Assembly, Budget Connecticut State icut General important it purposes, is not p. present 13. For $2.02 what is, fact, accurate; billion figure whether the conception that, plaintiffs’ is important is under of the established under scope the nature and required spend, would be the state eighth, § minimum, many hundreds of millions of additional at a elementary secondary dollars on the state's fully course, that, prelim- at this appreciate, schools. I it would be unfair to use inary litigation, stage $2.02 estimate for other report anything its billion very magnitude indicator of the rough than a plaintiffs’ perspective. potential The problem from the however, remedy report, as estimated in the cost of the pur- cannot be sufficiently ignored is that it great parameters arti- scope poses determining cle 1. eighth, § potential protracted expensive for long, liti- yet another
gation favoring approach factor affords a degree legisla- substantial deference to the responsibility concerning ture of its under discharge *85 In 1. his dissenting opinion, Justice Zarella discusses a number of cases which sister state courts “have become bogged years down for [seemingly] litigation” endless over nature and scope of the state constitutional to a free right appropriate education and the for remedies violations of that right, including, notably, Jersey most the New courts, and I repeat need not that discussion here. The observations of the high courts Nebraska and Rhode Island they are worth noting, however, because so graphically highlight problems that can arise when judiciary disputes becomes embroiled in over the precise contours of the state constitutional to right edu- cation.14 See Nebraska Coalition Educational for Equity & Adequacy Heineman, 273 Neb.
a mode of constitutional respect legislature siderable deference minimally adequate in which the the manner implemented. public education is conceived free and con- principles In with the foregoing accordance siderations, following that the “essen- agree generally I Appeals, York tials,” the New Court explicated satisfy minimally of a necessary requirement are 1. eighth, § of article adequate purposes minimally adequate physical are entitled to “Children light, which enough facilities and classrooms children to learn.15 Chil- space, heat, permit and air minimally adequate instru- have access to dren should desks, chairs, pencils, learning such as mentalities reasonably Children are also current textbooks.16 *86 reasonably minimally adequate teaching to entitled reading, writing, basic curricula such as up-to-date science, studies, sufficient mathematics, and social subject adequately to teach those personnel trained Equity, York, Inc. New Campaign areas.”17 Fiscal 15 goes saying also is an It that a safe and secure environment without constitutionally adequate element of a education. essential 16 learning may include modem technolo instrumentalities of also These minimally adequate computers, gies, a that are essential to education. such as so, however, technologies, express view, if to such I no as whether necessary minimally adequate may ones, education. which be to 17 plurality explication relies of the To that the also on this the extent course, eighth, 1,1, agree qualitative with § under article afforded necessarily agree, however, plurality. I with other statements of the do qualitative example, plurality plurality concerning For the standard. the constitutionally adequate “explication education its of a under states that 1, reflects, eighth, § is in terms. This breadth first and crafted broad responsi foremost, recognition political our of the branches’ constitutional implementation bilities, indeed, greater expertise, respect to with the policies pursuantto plurality specific 1].” [article law, that, “any principle this as with other of constitutional further states applied likely developed as will be refined and further it is broad standard eventually Although agree at in case.” I the to be found trial facts expertise legisla plurality’s concerning comment the relative of the with the public education, disagree judicial in I with branches matters tive and plurality appropriate “in it is to craft the constitutional standard my standard, vague view, the more it is In the broader the broad terms.” 86 N.Y.2d N.E.2d 317, N.Y.S.2d (1995). requirements
Although basic, appear these minimum relatively to be what level of resources straightforward, specific necessary satisfy or measures are them practice Undoubtedly, no means rea- self-evident. expertise people sonable with field of education will can and on disagree whether one more of these requirements fact, has, in been met with to a regard particular and, requirement school or schools if the has met, necessary not been what more is it. In satisfy my view, the political deference owed to the branches policy that, matters dictates unless plaintiffs can demonstrate that the actions that the state to satisfy particular requirement has taken in dis- pute reasonably cannot minimally defended as ade- quate, court must defer to judgment of the political Thus, branches in matter. if the state plaintiffs disagree to whether the has legislature obligation met its under article respect eighth, § any components core or essential of a mini- mally adequate education, prevail on their claim violation, constitutional must establish action that the legislature comply has taken to *87 1, with article eighth, reasonably cannot § be consid- ered by any sufficient fair Put differently, measure. the plaintiffs are not to they entitled relief unless dem- can likely addition, standard, In to be. the the the broader more it will difficult parties apply disagree be for the to the court understand and it. I also plurality’s suggestion with the that a broad is standard beneficial it because may developed Although be “refined and further” at trial. some constitutional applicability standards must defined in broad terms of because their to patterns, case; a purposes vast number of fact this is not such a of a present one, critically important give case like the in it which is to much as guidance parties possible, clearly to court and the the more defined standard, Ganim, 557, 629, 660 the better. Cf.Moore v. 233 Conn. 742 A.2d (1995) J., (Peters, concurring) (“well jurisprudential C. established doctrine ambiguous principles to narrowly”). counsels us construe constitutional
344 scope formulation of the legislature’s
onstrate that the minimally adequate public to of the that formulation are implementing in and its efforts Any unreasonably demanding less standard insufficient. judgment voice to the reasoned would insufficient give the legislature.18 Ill
CONCLUSION
laws and the
“Compulsory
great
school attendance
both demonstrate
expenditures
for education
[the
importance
of education
recognition
court’s]
perfor-
is
in
society.
required
It
our democratic
responsibilities
....
public
our most basic
mance of
citizenship. Today it is
very
good
It is the
foundation
to cultural
awakening
instrument in
the child
principal
professional
training,
him for later
values,
preparing
in
normally
his
adjust
environ-
helping
and in
him
any
may
days,
is doubtful that
child
ment. In these
it
in
if he
denied
reasonably be
to succeed
life
is
expected
of an education.” Brown
Board
opportunity
686,
L. Ed.
Education,
U.S.
74 S. Ct.
98
reasonably
disputed, however,
It
cannot be
(1954).
important
“schools are
that,
though
socializing
even
by
plurality,
In
to the traditional standard advanced
contrast
approach,
properly
significant
foregoing
considers the
discretion to
which
elementary
legislative
matters
which the
branch
entitled
O’Neill, supra,
37;
gives
secondary education;
Conn.
also
see
Sheff
regard
prudential
strongly in favor
to the
considerations
that militate
due
judicial
restraint
in such matters.
thing
legislature
Indeed,
it is one
for a court
determine whether the
rationally
obligation
fulfilling
its
under article
has acted
entirely
positions
something
court
decide which of two
different for a
minimally adequate
specific parameters
concerning
of a
education in
position
practice
or the one advocated
advocated
—the
explained,
methodology
position.
I have
latter
state —is the better
As
primar-
unduly
judiciary
policy
are
involves the
matters
branches,
judiciary
ily
political
is both
to the
and for which the
reserved
*88
equipped.
ill suited and ill
be
society, they
institutions
our democratic
cannot
constitutionally required
every
to overcome
serious
personal
bring
social
that students
disadvantage
seriously
to
school,
with them
hinderfs]
academic
of
achievement
those students.”19 Sheff
O’Neill, supra,
In
respect
our
“abiding
vital
in a
society”;
role
education
free
San Antonio
Independent School District v.
Rodriguez, supra,
30;
U.S.
however,
and because our free
elemen-
“
19Consequently,
agree
[performance
I
with
observation
population,
generally,
achievement of the student
taken
cannot
...
principle
constitutionally required minimally adequate
which
[on]
[a
nothing
language
history
is based. There
education]
either the
or the
eighth, 1,
support
of article
such a
. . .
standard.
“[Rather,
obligation
provide minimally adequate
the]
education must
generally,
reach,
be based
not on what level of achievement
but
students
reasonably attempts
taking
on
the state
them,
what
to make available to
any special
particular
system.”
into account
needs of a
local school
Sheff
O’Neill,supra,
(Borden, J.,
dissenting). Although
SCHALLER,J., plurality I with the concurring. agree *90 opinion’s clause, conclusion that education requires of the constitution of eighth, § Connecticut1 in public schools Connecticut provide to students with adequate an that prepare to them to be in participants processes full of democratic our productive and to of government, society, be members compete is, job that to in the market either before or I acquiring higher purpose.2 after education for that separately clarify write in to and, order where neces- sary, expand on the that principles constitutional com- pel that I separately express conclusion. also write to important prudential some concerns regarding the future of progress pertain this action. Those concerns to the standards that apply the trial court in should trial of this matter in order to determine whether the plaintiffs, the Connecticut in Coalition Justice Edu- Funding, Inc., cation and parents numerous and their 1 eighth, 1, provides: Article of the Connecticut constitution “There shall always elementary public secondary be free and schools in the state. The general assembly implement principle appropriate legislation.” shall 2 required only interpret Because we are the education clause of the constitution, agree justiciable. plurality I state with the that the case is Although agree implementation I with Justice Zarella’s dissent that the right the fundamental to education has been committed the education Assembly, defining right precision to the clause General with sufficient guide prerogative judicial duty the trial of this case is the —and —of challеnge going forward, however, may deciding branch. where judicial interpretation stops legislative implementation begins. part In concurring express opinion, prudential III of this regard I various concerns ing may progresses. the difficult issues that arise as the case In the course discussion, suggest preliminary template my reflecting judgment I determining what the trier of must fact consider whether the constitutional obligation providing adequate education has been I satisfied. envision template that the trial will court flesh out that based on factual record presented at trial.
348 public schools in this
children, who are enrolled a violation of state, establishing will have succeeded today, it as we define right the constitutional appropriate to order authority the trial court has occurred. in the event that violation remedies express on the established, It been based long has constitution, the education clause of our language right citizens of this state an affirmative guarantees public See, e.g., Ganim, Moore to a free education. 595-96, 742 (1995) (education 660 A.2d Conn. state to imposes obligation affirmative on clause elementary free public expend public funds Broadley v. secondary Board Educa- education); (“Connecticut A.2d tion, 1, 6, (1994) Conn. to an have a state constitutional schoolchildren secondary elementary education in our free *91 Meskill, 615, 645, 172 Conn. Horton schools”); I) (recognition of education (1977) (Horton A.2d 359 clause). guaranteed right as fundamental convinced, plurality, is the that the education I am as addition, in that the education we guarantees, clause satisfy qualitative standard, a minimum must have a constitu- namely, that children in Connecticut the vari- adequate Although an tional to education. standard qualitative which the minimum ous terms litigation— in expressed has this and other state been essentially suitable, adequate, or sound basic —are in mind that we are interchangeable, keeping dealing I implied, express, right, an believe that the with an of mini- conveys concept best the “adequate” term I necessary, first, believe it qualitative mum standard. fully why that minimum standard is explain to more court constitutionally required and how it that this authority as well to define the has basis as dem- practical application is, in standard terms of —that productive citizenship and, participation and ocratic — why adequate education, in addi- second, explain serving must, plurality tion to democratic as the goals, concludes, prepared “leave Connecticut’s students higher education, to institutions of or to attain progress productive employment and otherwise contribute economy.” points the state’s I address each these I turn. will Finally, prudential address several concerns paramount importance proceeds that are of as case It keep point trial. is crucial mind at this early we are at an stage likely of what is to be a long journey system through and, the court on depending result, through the other branches of government. present We solely decide the issues based allega- on the plaintiffs’ complaint. tions of the No factual record exists. judicial Neither the branch nor the legislative has engaged branch fact Our finding. main task is to determine presented the constitutional issue on appeal and, importantly, to guide parties the trial court they as undertake the complicated process of litigating this case in the Superior important Court. As our as is, constitutional decision it is no more than threshold Because our ruling. obligation to instruct the trial court proceed to how to properjudicial within boundaries is crucial, preliminary I will offer a template for the trial court’s role in this litigation.
I
In construing the
contours
our state constitution,
*92
plurality
employs
analysis
established in State
v. Geisler,
672,
222 Conn.
684-85,
I undertake to examine the helpful factors as tools to inform and guide analysis. constitutional One of ways most basic to ensure that the factors function as sources of information and guidelines is to allow the question shape the discussion, rather routinely than going through list of factors. In other words, the analysis Geisler adapt must particular itself to each inquiry. Some factors that are extremely relevant and persuasive in one inquiry may yield little or no persua- sive information in another inquiry. The structure, therefore, of any Geisler inquiry must derive from the subject matter. I begin, therefore, with the most basic guideline provided by Geisler, apply the factors only to the extent that each applies. In present case, I agree with the plurality that this basic approach will mean relatively little weight should be accorded precedent. federal I will Accordingly, first consider pertinent more factors, and will look to prece- federal dent briefly, only the most general guidance. Simi- larly, I although find that sibling state precedent, two cases, in particular, provides some guidance, the use- *94 limited from other states is greatly
fulness of decisions
very few
with constitutional
lan
by the fact that
states
issue,
in on the
weighed
similar
our own have
guage
helpful
those
contain little
and the decisions of
courts
find
By contrast,
the
factors that I
to be
analysis.
two
persuasive
and
are the text of the
particularly helpful
in which
precedent,
and our own case
education clause
clause in two seminal
interpreted
we have
education
O’Neill,
Conn.
As to the first
requires
the education clause
always
that there shall
public elementary
be free
secondary
defy
schools
the state. It would
common
sense to conclude that
Assembly
General
could
*95
possibly satisfy
obligation by
its
providing for bad —or
unsuitable,
inadequate, or
public schools.
unsound —
precisely
That is
what we would have to
if
assume
suppose
we were to
that the
Assembly
General
could
satisfy its obligation
such schools without
any qualitative requirements.
interpretation,
That
I sub-
mit,
is unthinkable. As
famously
Justice Loiselle
observed in his dissent in
I,
Horton
“when the constitu-
says
tion
free education it
interpreted
must be
in a
way.
reasonable
A
may
town
not herd children in an
open field
by
to hear lectures
illiterates.” Horton I,
supra,
form and regulate the principles and character of; prepare any and fit for or calling by systematic business instruction; to cultivate; train; instruct.” Id. Education, by its very nature, process designed achieve the goal of improving students through cultivation and development of their minds, and training students systematic instruction. explicit
Second,
language
absence of
cannot be
determinant, because, otherwise, a Geisler
an absolute
appropriate.
only
That
when
analysis
is,
would never be
explicit
or
at issue is not
right
guarantee
a constitutional
analysis
on
face of the text does a Geisler
plain
or
mean,
necessary.
however,
This does
become
may
into our state constitu-
lightly
guarantees
we
read
must,
instead,
guidance
We
mindful
tion.
581, in
Ganim, supra,
233 Conn.
offered Moore
with
of an
which, when confronted
a similar claim
we
“In con-
implicit constitutional
stated:
guarantee,
we
constitution,
the contours of our state
must
struing
authority
pursuit
restraint
great
exercise our
principled results.
.
.
.
reaching reasoned and
We
complete
convinced, therefore,
must be
on the basis
evidence,
recognition
of a consti-
review
duty
(Citation omitted;
is warranted.”
tutional
quotation marks omitted.)
internal
*96
plurality
significant,
I
with the
that it is
albeit
agree
of
con-
eighth,
that article
the state
dispositive,
§
not
stitution,
eighth,
in
1 of article
the educa-
contrast
to §
express qualitative
clause,
language,
tion
does contain
system higher
state
maintain a
of
providing: “The
shall
education,
University
Connecticut,
The
of
including
to
educa-
higher
which shall be dedicated
excellence
assembly
The
determine the size,
tion.
shall
general
gov-
of
of the
number,
appointment
terms
method
University
and of
erning boards of
of Connecticut
coordinating
bodies in the
such constituent units
may
as
to time
be established.”
system
from time
VIII,
Conn.
art.
2. The edu-
added.)
Const.,
§
(Emphasis
quali-
clause,
course,
does not contain similar
cation
is
difference, however,
This
language.
tative
interpretation plurality’s
inconsistent with the
adequate
clause to
education
guarantee
education
I
secondary public
school students. As
primary
opinion,
in this
the idea of
concurring
have discussed
qualitative
implicit
minimum
standard is
in the defini-
“Excellence,” however,
tion of “school.”
well
goes
beyond any
qualitative
Although,
minimum
standard.
course,
quarrel
proposition
no one would
with the
that,
world,
public
in an ideal
all
schools would be
excellent,
say
we cannot
that the idea of “excellence”
necessarily
is
of a
Our
implicit
the idea
“school.”
“ade-
reading
guarantee
education clause
quacy”
opposed
guaranteed
“excellence”
reflects the difference between a
minimally adequate education that is consistent with
“school,”
the definition of a
and an excellent one that
expressly
guaranteed
the state constitution.
I
persuasive
support
believe
the most
evidence in
identifying
qualitative element
in the education
clause derives from the
and dicta of
holdings
court,
I
now
agree
which
turn. I
generally
plurality’s
analysis of our previous
holdings
dicta, and the
bearing
precedents
those
have on the issue before
I
the court. offer
opin-
a few
As the
highlights.
plurality
notes,
prior
ion
even
to the
addition
the education
clause to our
following
constitution
the 1965 constitu-
tional convention, our case law
long recognized
has
state’s commitment to
See,
education.
State
e.g.,
ex rel. Huntington
Huntington
Committee,
School
82 Conn.
A.
563, 566, 74
(“Connecticut has
(1909)
duty
centuries
it as
recognized
her
provide for
proper
see
young”);
also
v. Davison,
Bissell
65 Conn.
191,
256, 286, (1990), Broadley Education, supra, A.2d v. Board of 571 696 356 has fol finance in Connecticut litigation Education ” “waves, in two trend of progressing
lowed the national claims, as “equity” with what are known beginning disparities claimed equal actions based on protection represents present action financing. The education claims, “adequacy” known as cases, wave of second any unconstitutional premised alleged which are not on state rather, the assertion that the disparities but, on minimum standard guarantees some constitution plain to delivering is not education the state 4 equity I case, presenting was a classic tiffs. Horton disparities property between of whether financial issue system of property poor rich towns rendered time, depended which at that financing education equal heavily property taxes, invalid under the on local I, of the state constitution. Horton protection clause a 618, rely case did not on supra, 172 Conn. 628. The minimally ade were guaranteed claim that students court, fact, great The took quate level education. sufficiency” not at clarify that “minimal was pains to Id., [protec (“[t]he [e]qual in the action. 645-46 issue sufficiency to minimal is not addressed tion [c]lause unjustifiable inequalities of state but rather to the refer them worthy light L.J. L. Rev. Connecticut’s Constitutional on the fundamental See San Antonio education finance qualitative Conn. e.g., 229 Conn. merit consideration Continuing [4] S. Ct. Scholars 13, W. actually on the Koski, 19-21 only 6, element. which Saga 506-507 question actually two waves of are relevant. of discussion. “Achieving education finance (2007); Challenges Independent L. litigation brought an Equal Ed. 2d The mere fact that (2004). refer D. whethеr Verstegen, ‘Adequacy’ Educational litigation. According A School (1973). adequacy School Geisler equity sought litigation began bearing Finance “Towards a education clause For District v. claim under our state constitution, in. recognized analysis Opportunity relief under the federal litigation those cases consider these scholars, on the Classroom,” Systems,” sake of must Rodriguez, issue, Theory Horton with as the “third wave.” See, does not Horton in the Context of consider convenience, as implicitly 23 St. Louis U. 27 B.C. Third World the first wave neither I Adequacy: [411] claims based only I, constitution. U.S. 1, 4-6, case supra, includes because sources sheds make State Pub. was I *98 action”). Although question of whether the state minimally adequate constitution a educa guaranteed court, telling that, tion was not it is before con cluding plaintiffs that the had a established violation equal their right protection, heavily to the court relied on the relation between financing education and educa quality. Id., (“[t]he present-day problem tion arises years from circumstance that over the there has disparity arisen a great ability in the of local communi to education, ties finance local has given which rise a consequent significant disparity in the quality youth education available of the state”); id., 635 many of the (“because quality elements of a education require pupil higher per operating expenditures, there relationship is a direct per pupil between school expen quality ditures and the breadth pro of educational sure, To grams”). the court concluded in Horton only plaintiffs I that the were entitled receive an substantially equal education that was quality to the provided education that was children, other not that they were guaranteed education meeting minimum qualitative Id., possible standard. 648-49. It is not generally requirement infer from a equality require of adequacy. ment On hand, the other the idea that it is quality education to which Connecticut children equal have an right, rather than merely equality in edu supports cation financing, general proposition the interest that children have in the fundamental right to education guaranteed by our education clause is inextricably linked to the quality of the pro vided. Put way, another our conclusion in Horton I that a right equal had to substantially educa tional funding is based on the right to an education substantially equal quality. The notion that children have a right to an education of substantially equal qual ity presupposes that “quality” is an component essential of the education clause. fairly separate We cannot
358 a right quality from the to education. right to education in very previously that I discussed this This is the idea in text of the education examining concurrence the concepts and “education” are that clause. “School” embody quality. minimal level of the idea of some I illustrates this con majority opinion aptly in Horton .5 nection O’Neill, supra, case, landmark 238 Another Sheff note guidance. further I first that 1, provides Conn. I, directly ques- like does not address the Sheff, Horton a constitution mini- guarantees tion of whether the state fact, mally adequate education. In the court Sheff issue, of that expressly declined to resolve the merits that the defen- plaintiffs alleged even the had though minimally provide failed them with a ade- dants had in quate Id., I, Just as Horton education.6 36-37. protection an claim based on however, equal in which was disparities ultimately on an grounded financial education, Sheff, a case based on quality interest in public schools, ethnic in ulti- segregation racial and implicitly plurality explains, the idea that the education clause As the only by majority qualitative acknowledged the a element was not includes opinions. I, concurring dissenting See, e.g., in also the Horton but J., concurring) I, supra, (Bogdanski, (equality Horton 172 Conn. issues presented right in I “are directed toward the children of this Horton education, of whether statutes state to a basic and the determination certain unconstitutionally upon id., (Loise impinge right”); that 658-59 this state necessary opinion lie, dissenting). concurring J., It is not discuss further, plurality dissenting opinions concurring in Horton I as the aptly opinion present language in each of those in the case sets forth guarantees opinions supports the conclusion that our education clause that adequate education. plaintiffs’ that the The court in declined to address claim Sheff minimally adequate them with a education defendants failed any plaintiffs allege between that failure and the because the did nexus action, that formed the basis of the and because racial and ethnic isolation they plaintiffs argument had not claimed conceded at oral constitutionally a racial and ethnic isolation was free such required minimally adequate O’Neill, component education. Sheff supra, 238 36. Conn. mately interest that the grounded was In course of obtaining quality had education. why first, 20,7 and article explaining eighth, § required legislature the state constitution rem- edy public schools, in Hartford’s segregation racial importance purpose the court looked to the general in our society, noting bear “[s]chools responsibility central for inculcating fundamental [the] necessary values to the maintenance of a democratic *100 political system .... When children racially attend ethnically schools, isolated these shared values are If jeopardized: children of different races and economic groups opportunity and social have no know to each other in school, they and to live cannot together expected gain respect understanding mutual necessary for the cohesion of our society.” (Citation quotation omitted; Id., internal marks 34. The omitted.) explained importance court of providing children education, access to an “As unsegregated stating: Supreme United has eloquently observed, States Court very sound education is the foundation good citizen- ship. Today it is a principal instrument in awakening values, child to cultural him for preparing later professional training, adjust and in him helping nor- mally to his environment. In these days, it is doubtful any may reasonably child be expected to succeed in life if ishe denied the opportunity of an education. Such an opportunity, where state has undertaken it, is a right which must be made available to all on equal terms. . . . The American people have always regarded education and acquisition of [the] as matters knowledge supreme importance. . . . We Connecticut, first, 20, by The constitution of as amended articles twenty-one amendments, provides: person five and of the “No shall be equal protection subjected denied the segregation of the law nor be enjoyment political discrimination in the exercise or of his or her civil or rights religion, race, color, ancestry, physi because origin, national sex or disability.” cal or mental most vital civic public schools as a
have recognized
system
of a
preservation
for the
democratic
institution
primary
.
.
. and as the
vehicle
government
. .
society
.
on which our
rests.
the values
transmitting
perceptions
schools
And these historic
necessary to the mainte-
fundamental values
inculcating
system have
con-
political
been
nance
a democratic
.
.
.
of social scientists.
by
firmed
the observations
by
tools which individu-
provides the basic
[Education
economically
lives to the ben-
productive
lead
might
als
has a fundamental role
sum,
of us all. In
efit
society.”
omitted;
(Citation
the fabric of our
maintaining
omitted.) Id.,
Although
43-44.
quotation
internal
marks
directly conclude that the state constitution
we did not
education,
equal
minimally adequate
our
guarantees
analysis
was
the underlying
protection
guided
merely
does
assumption that the education clause
“an
each child in the state
education”
guarantee
Implicit
analysis
in our
is the idea
qualification.
without
guaranteed
to education
fundamental
*101
a qualitative
that includes
the education clause
one
inseparable from the fundamental
component
that is
logi-
the
words,
In other
vindicated
right.
right
Sheff
merely
if not
was
a
cally
implicitly,
expressly,
and
any education,
equal
of
access to
but
access
right
equal
“adequate”
education.
to a “sound”
opinion
goes
concurring
Justice Berdon’s
Sheff
from the elevation of edu-
further, reasoning that,
even
right through
the
of the
passage
cation
a fundamental
the
clause, “it
follows that
education
logically
education
be,
very
must
in the state constitution
at the
guaranteеd
contemporary meaning,
of
least, within the context
its
adequate
added.)
education.” (Emphasis
Sheff
This
O’Neill, supra,
understanding
fundamental to education simply interpreting a of the educa- Berdon, tice matter Id. I agree in a “reasonable manner.” tion clause the contemporary Justice Berdon that meaning inform our inter- the education clause must language pretation of the fundamental to educa- scope right interpreting tion and that the education clause in requires conclusion that reasonable manner state constitution Connecticut children guarantees to an education. adequate and is, The first four Geisler factors —that the text discussed, plus our case which I have precedent, eighth eco- background historical considerations, nomic and both of which sociological effectively plurality opinion are set forth —taken appear persuasive together, to me on highly They only issue. convince me that the inter- reasonable pretation of our implicitly education clause is it qualitative includes a standard. The two fac- remaining tors, sibling decisions federal precedent, state although persuasive less significantly relevance value, provide support further I conclusion. first turn to the decisions of sibling our states.
There is persuasive some in the force fact that most state courts that have addressed the substantive issue have their concluded that state constitution guarantees minimally adequate level of education.8 Because
8The courts in
Ken
twenty states,
Arkansas,
Alabama,
Colorado,
Idaho,
v. Hornbeck Board
McDuffy
Huckabee,
ton,
v.
New
v.
606,
Council
tucky, Maryland, Massachusetts,
some
351 Ark.
6 624 So. 2d
Opportunity
clauses to include a
State,
West
362 in most state constitutions differ
education clauses
analysis
own,
from
of
state
materially
sibling
our
must
on those states that have clauses
decisions
focus
own,
is,
clauses that
closely resembling
most
our
qualitative
setting
in
forth the
language
do not contain
on.9
even
these,
There axe few of
educati
Governor,
183, 184,
Abbott v.
(1993);
635
1375
District
v.
138 N.H.
A.2d
Burke,
145, 166-67,
Board
Education
(1997);
v.
149
363
interpreted
that have
the state courts
fewer
been
resolving
implicitly
quali-
whether the clause
includes a
York,
New
North Carolina
element, specifically,
tative
I
dis-
states, briefly
and South Carolina. Of those three
New
cuss the decisions of
York and North Carolina
they
pertinent.10
are
most
The education
because
duty
legislators
magistrates,
periods
shall
in all
be the
of the
and
future
government,
sciences,
interest of
and the
all
cherish the
literature
and
public schools,
public
encourage private
institutions,
seminaries and
and
promotion
rewards,
agriculture, arts, sciences,
and
immunities for
commerce,
manufactures,
history
trades,
country;
and natural
of the
principles
humanity
general
and
countenance
inculcate the
and
benevo-
lence, public
private charity, industry
economy, honesty
punctu-
and
and
ality, sincerity, sobriety,
affections,
generous sentiments,
social
and all
people
among
(Emphasis added.)
Const.,
II,
LXXXIII;
. . . .”
N.H.
Pt.
art.
Governor,
183, 187-88,
see Claremont School
District
138 N.H.
635 A.2d
(1993).
1375
Similarly,
persuasive
the case law of Tennessee is of limited
value. The
provides
education clause in the Tennessee state constitution
that “[t]he
recognizes
State of Tennessee
inherent value
education and encour
ages
support.
Assembly
provide
maintenance,
its
The General
shall
for the
support
eligibility
system
(Empha
of a
standards
of free
schools.”
added.)
Const.,
XI,
interpreting
sis
Term.
§ 12. In
art.
that constitutional
language,
Supreme
only
the Tennessee
Court not
looked to the definition
“education,”
recognition
but
on
also relied
of the “inherent value”
provision.
Systems McWherter,
education
Tennessee Small School
139, 150(Term. 1993).
analysis, leading
851 S.W.2d
Much of the court’s
to the
implies
qualitative component,
conclusion
the education clause
some
Id.,
centers on the “value of education.”
151.
Washington
constitution,
The education clause of the
state
also relied
upon by
plurality,
linguistically
is also
dissimilar to our own. That clause
provides:
paramount duty
ample provision
“It is the
of the
to make
state
residing
borders,
for the education of all children
within its
without distinc-
preference
race,
caste,
color,
tion or
(Emphasis
on account of
or sex.”
added.)
Const.,
IX,
interpreting
text,
Wash.
1. In
art.
the constitutional
Washington Supreme
specifically
Court noted
its state
constitutional
language
“unique
was
State,
. . . .” Seattle School
No. 1 v.
District
90 Wash.
476, 498,
(1978).
interpreting
2d
The Supreme Court of North Carolina, State, 345, 488 interpre N.C. S.E.2d 249 (1997), ted the state two clauses, constitution’s provide: which people “The have a right privilege to the *105 of education, duty and it is the of the to guard State and maintain that right”; Const., 15; N.C. art. and I, § Assembly General shall taxation and “[t]he a general otherwise for system and uniform of free public . schools . . .” 2 Const., N.C. art. IX, (1). The court concluded that the constitutional guarantee right public education qualitative contains a element, and analysis based its primarily prior on the court’s precedent the v. State, Leandro education statutes. supra, 346-47. The court also based its conclusion, how ever, on principle general education that “[a]n does not serve the of purpose preparing students to participate compete society they in which live and work is devoid substance . . . .’’(Emphasis added.) Id., way 345. This is princi another stating ple with I my which began, analysis: textual guarantee of quality is in the meaning “school” and “education” themselves. Without some guarantee of a qualitative standard, the fundamental right to education guaranteed by our state constitution would be mean ingless.
As I noted previously in this concurring opinion, I consider the factor of precedent federal last because it has the particular least relevance in this context, which the language our state constitution differs from the federal constitutional I language. observe merely that, although education is not a fundamental
366 precedent constitution, federal under the federal right importance repeatedly recognized education has society. Indeed, even in San Antonio to our democratic Independent Rodriguez, 1, 411 U.S. School District Ed. 16 the United 29, 1278, (1973), 93 Ct. L. 2d S. unique Supreme recognized signifi- Court States society, citing in our cance right Education, 347 U.S. S. Brown Board of L. proposition Ct. Ed. (1954), important is the most function of perhaps “education quotation marks state local governments.” (Internal Moreover, the same time that San Antonio at omitted.) Independent established that education School District under the federal constitu- is not a fundamental to the tion, the court left further resolution of issue was “not to viewed cautioning that its decision states, judicial imprimatur quo. its on the status placing as systems may apparent need for reform in tax which heavily on local well relied too and too long have certainly thinking tax. And innovative property its education, methods, funding its is neces- *106 quality sary greater level of higher to assure both uniformity opportunity.” Independent San Antonio Rodriguez, supra, 58. School District Assembly already has acknowl- Finally, the General statutorily very today the same standard that we edged constitutionally. in Gen- Specifically, hold mandated is the the legislature eral Statutes 10-4a identifies (1), § the state to include “the con- interests of . cern the state that . . each child shall have equal
period prescribed opportu- statutes general experi- nity program of educational to receive a suitable Accordingly, duty . . .” (Emphasis added.) ences . required is one constitutionally that we now hold be already recognized has and under- legislature that the taken its own volition.
These analysis tools of constitutional lead me to the firm right conclusion that the fundamental to free edu- cation guaranteed clause, the education constitution, stripped the state would of meaning interpret its and content if were to we guarantee as not some minimum embodying qualitative A guarantee standard. of education cannot stand with- out assurance that the guaranteed “schools,” and the education provided therein will meet quali- a minimum tative standard.
n Having concluded that our implic- education clause itly a qualitative element, includes I next turn to the question of how we should define the contours of the right sufficiently guide in determining trial court the issues in present action without on intruding authority of the other branches of government, that is, justiciable within the scope issue this case. plurality opinion settles on the proposed formula plaintiffs, concluding that the education clause “guarantees Connecticut’s school students edu- cational standards and resources suitable to participate institutions, democratic prepare and to them to attain productive employment and otherwise contribute to the state’s economy, to progress on to higher ” I education. it suggest important to explain more thoroughly the so reasons for defining the constitutional right. Otherwise, we run the risk sacrificing pri- mary benefits of a Geisler princi- analysis enabling — pled development of our constitutional law and, by so doing, establishing supporting the constitutional authority of the court. Our sound reason- *107 comprises ing step a crucial in making constitutional pronouncement with consequences. such far-reaching Regardless the outcome of this litigation, this consti- tutional determination will continue to guide the legisla- tive in branch carrying out its duty constitutional in may explanation also serve years.
future Well reasoned parties for the to reach ground to establish common future, aspects various or in the on consensus, now reasoning support to the issues. Without sound relinquishes principal its explain decision, the court authority. Morales, supra, claim to See State Conn. 716 n.10. conclude merely do more than must, accordingly,
We
an
guarantees
right
to
that our state constitution
That conclusion alone does not
adequate education.
enable the trial court to
provide sufficient
to
guidance
is
guarantee
being
whether the constitutional
determine
explain how we
It is essential
fulfilled or violated.
fully define the contours
arrive at the stated
goals
Linguistic considerations
guarantee.
of the educational
not com-
that our task is
support
alone
the conclusion
that the education clause
pleted by stating
guarantees
determination
adequate
education. That
ade-
merely
question
rise to the inevitable
as to
gives
general principles
Two
quacy
purposes?”
“for what
inquiry
First,
my
right.
as
the contours
guide
purposes”
“for
question
suggests
what
directed;
is,
be
inquiry
goal
direction of the
should
to be served
inquiry
goals
to determine the
seeks
by
adequate
Second,
answering
education.
necessary
why
to examine
education has
question, it
right pro-
of a fundamental
been elevated to the status
only
words,
our
constitution.
In other
tected
state
society
we
so value in
by understanding what
purposes”
“for what
such
education, may we discern
I
adequate.
exam-
Accordingly,
an education should
purposes proposed
plural-
ine in turn each of the
participate
ity
students
short,
prepare
—in
productive mem-
democratic institutions and to become
there is a
society
determine whether
bers
our
—to
is an
to conclude that each
sufficient basis
our law
adequate
of an
education.
component
essential
*108
depositary
powers
“I know no safe
of the ultimate
society
people themselves;
but the
and if we
enlightened enough
think them not
to exercise their
remedy
control
is not
discretion,
with wholesome
from
their
them,
take it
but to inform
discretion
is
education. This
the true corrective
abuses
power.”
constitutional
Letter from Thomas Jefferson
(1820),
to William C. Jarvis
12 The Works of Thomas
p.
(P.
1905),
ed.,
Jefferson
Ford
163. Education
not
duty
simply a
Rather,
owed to the individual student.
duty
young
an
education to the
in our
society
very
also is
is,
viewed
utilitarian terms. That
young
only
personal
we
our
educate
not
for their
bene-
democracy.
fit, but
also
benefit our
See
Bissell
supra,
(duty provide
Davison,
This court also has repeatedly, acknowledged, principal purpose a of education is prepare to students to participate democracy. as citizens in our In his con- in Horton curring opinion I, Justice Bogdanski elo- quently described the function of education in our society: of our children to education is “[T]he only a matter of right not because our state constitution provides: (b) “Commencing grad General Statutes 10-22la with classes uating thereafter, graduating regional for each class no local or permit any graduate high board education shall student to from school grant diploma any completed satisfactorily a student who has not twenty credits, minimum of English, fewer than four of which shall inbe mathematics, not fewer studies, than three in not fewer than three in social including govern at least a credit course on civics and American one-half ment, science, not fewer than two not fewer than one in the arts or physical vocational (Empha education and not fewer one in than education.” added.) sis very such, education is the it as but because
declares
culture: it is the
and foundation of a civilized
essence
society
that binds the fabric
cohesive element
necessary
it is as
to a civilized
sense,
In a real
together.
are
an individual. It
and shelter
is
society as food
youth
our state to
legacy
our fundamental
abil-
possess the
acquire knowledge
enable them
separates
ability
reason that
ity
for it
to reason:
forms of life.” Horton
from all other
women]
[men
Loiselle, in
I, supra,
We *111 participate in as preparing of education students society to our holding, citizens in our was central society a all is crucial for democratic “[i]t an unsegregated with fair access to of its schoolchildren Court has Supreme As the United States education. ‘is the very a sound education observed, eloquently citizenship. Today good principal it is a foundation of awakening values, the child to cultural instrument and in professional training, him for later preparing normally In adjust him to to his environment. helping may any reasonably child days, it is doubtful that these oppor- is the in life if he denied expected succeed an where the tunity opportunity, of an education. Such provide it, is a which must has undertaken to state v. Board terms.’ Brown equal to all on be made available Education, U.S. ‘The supra, people 493. American of always regarded acquisition have education and [the] . supreme importance. matters of . . knowledge We have recognized the schools as a most vital preservation civic for institution of a democratic system of . . . government primary and as the vehicle society for on transmitting values which our rests. . . . perceptions And these historic the public schools as necessary fundamental values inculcating political system maintenance of a democratic have been confirmed the observations of social scien- ” tists.’ (Emphasis added.) O’Neill, supra, 238 Sheff Conn. 43-44. One look for would have to hard a more statement a compelling importance “sound” “adequate” preparation for good citi- zenship.
Marian Wright Edelman, president and founder Children’s Fund, leading Defense and a scholar area theory, has stated that “educa- tion for improving the lives of others leaving your community and world than you better found it”12 is precondition “education to survival in America today.”13 Surely, enabling our children pro- to become ductive society, members of directly either following secondary school, or after completing course of higher education, serves the general purpose utilitarian of ben- efiting the state as a whole. See Bissell v. Davison, supra, 65 Conn. A 190-91. statement made President Barack Obama during Hispanic address to Cham- ber of Commerce on 10,2009, March illustrates dramati- cally importance purpose of this of education: “The source of prosperity America’s has never been merely ably how we accumulate how well wealth, but we edu- *112 12 Edelman, My M. W. The Measure Our Success: A Letter to Children (1992) I, pp. and Yours Pt. 9-10. Edelman, convey M. W. “We must to children that we believe in them Ebony, August, 1988, p. . .” . . 130. than it has never been more true people. our This
cate jobs century where In a world today. [twenty-first] is connection, an Internet shipped wherever there’s can is with а competing in Dallas now where a child bom job Delhi, your qualification best in New where child you is you do, what know —education not what but is opportunity success, just pathway longer no long sup- law has prerequisite for success.” Our it’s primary purposes that one of the ported the conclusion in state to com- prepare is to children of education marketplace. Ludlow Code pete in economic education, goal this to be an essential understood [up] theire “bring that schoolmasters requiring [c]hil- in [apprentices [calling] some honest lawfull dren and . . them- [e]mployment proffitable . labour or Laws, . . .” Common wealth . Code of and the selves supra, 521. reprinted Rec., in Col. (1650), Children vital role that also has acknowledged This court citizens of this state plays enabling education marketplace: compete the economic “[Education by which individuals lead might the basic tools provides of us all. economically productive lives to the benefit sum, maintaining has a fundamental role In society. ignore signifi We cannot the fabric our by our when select cant social costs borne [n]ation to absorb the values and are denied the means groups quo (Internal which our social order rests.” upon skills O’Neil, Conn. supra, marks omitted.) tation Sheff v. majority, describing Indeed, 44. the words of the Sheff isolation claims asserted the racial and ethnic claims of the case, in that characterize the plaintiffs precisely: “Although the present in the case plaintiffs’ depri claims basis for constitutional depriva are they suffering, themselves vation that impact has an on the entire state potentially tion economy only fabric, social and cultural on its its —not industry, and jobs, on on its well-being, but its material *113 say business. Economists and leaders that our business dependent on well-being state’s economic is more workers, technically proficient workers, skilled literate they point and well-educated citizens. And the urban part as an of our poor integral strength. future economic . just . . So it their on depends future the [sjtate, depends (Internal the state’s future on them.” quotation omitted.) purpose marks Id. The of preparing productive society, children to become members purpose of then, preparing like the them to be good society, citizens in our democratic benefits both the only individual and the state as a Not do whole. demo- cratically productive engaged citizens, adequately their prepared by public educations, contribute well-being progress society, our but education provides also improve means individuals which their own social and circumstances, economic thereby and their enabling them successors to benefit from that education.
I conclude that sufficiently these support authorities plaintiffs’ contention that the education guaranteed by the clause, § of state constitution, adequate must be prepare students to participate and in the engage processes of our democ- racy and productive to become members of society. our
Ill I write to express prudential also concerns regarding the next of this stage litigation and to offer suggestions form of a preliminary template on based what anticipate may I arise at trial. the next During stage, likely which is of pleading, consist trial discovery, decision making Superior I Court, can envision issues, several among many, likely prove that are especially challenging. These issues will have to be addressed parties trial court they as litigate, proxies in a sense as people for the the state, outcome, surely interest compelling
who
have
ineq-
well
inadequacy,
as
troubling allegations
*114
relief. The first issue
uity,
plaintiffs
which the
seek
determining
will face in
is
that the court
challenge
the
ade-
measuring
of
appropriate
the
method
students of the state.
for the
school
quacy
will face
is
the court
challenge
second
the
ultimately have
the
whether
determining
are being
all
the students
some or
of
proved that
Finally, in the event
deprived
adequate
of an
education.
the
has failed
state
that the trial court determines
adequate
duty of
an
providing
to meet its constitutional
ultimately
court,
court,
this
education,
the trial
determining
of
likelihood,
challenge
all
will face the
specific
design
the court can
the extent
to which
author-
remedy
intruding on the constitutional
without
of
branch,
crafting
or whether the
ity of the legislative
first
to the
remedy must
left in the
instance
the
these issues in turn.
I discuss each of
legislature.
in a
Appeals,
York
of
decision
The New
Court
pos
at a
of
similar
stage
litigation
was rendered
succinctly articulated the task
present case,
ture
appropriate mea
determining
trial court in
of the
it is
met. The court
being
and whether
adequacy
sure of
specificity than
determined, with somewhat more
first
York
education article
the New
today,
we do
that the
to offer all children
“requires
constitution
[s]tate
. .
basic education.
. Such
opportunity
a sound
literacy,
calcu
should consist of
basic
education
necessary
to enable children
and verbal skills
lating,
participants
eventually
productively
function
as civic
jury.”
on a
omit
capable
voting
serving
(Citation
The court
Campaign
supra,
record. evaluation, court first will
In order to make measur method for appropriate to determine the have adequacy tradi adequacy. Measuring educational ing input and/or tionally accomplished identifying adequacy, as a measure of standards that serve output inputs those attaining actual cost of calculating then “costing referred to as out.” outputs, process and/or Adequacy History, Litigation: “Education Smith, S. L. U. Ark. Little Rock Rev. Trends, Research,” 27 methodologies “There are four iden 107, 114 (2004). professional adequate funding: (1) education tify prac or ‘best the evidence based model; (2) judgment model; аnd (4) successful schools model; (3) tices’ Id., profes model.” 115. the advanced statistical “[T]he practices based/best and evidence judgment sional expert in which input models models can viewed identify inputs that are and researchers educators system. produce adequate required to at an inputs adequate are out to arrive These then costed advanced sta schools and funding level. The successful *116 be viewed as outcome models tistical models can dis analysis schools and/or school compares which an perfor and student demographics with varying tricts in order levels corresponding funding mance their Basically these adequate funding levels.” Id. identify trier fact to consider to allow the of methods combine per pupil expenditures along general state’s and the state performance of of children of level tests, rates, and other matriculation on standardized of mea An alternative means performance. of measures modeling stud- adequacy rely is to on statistical suring judiciary, provided, legislature rather than the dial in the hands of the action appropriate course, reme- the final outcome of the case calls dial action.
ies. used These statistical methods are “either (a) quantities qualities estimate and of educational higher improved resources associated with educa- tional outcomes or achiev- (b) costs associated with ing specific outcomes, set different school different districts, serving populations. student The first production these methods is known as the education function and the second these methods is known as R. Baker, education cost function.” Wood & B. “An Analysis Equity Adequacy Examination and and Concepts of Constitutional to State Educa- Challenges tion Finance Distribution 27 U. Formulas,” Ark. Little Rock L. Rev. 125, (2004). The advantage of these two they “require methods is that both policymakers explicit, establish measurable outcome Id. goals.” Moreover, both prove of these statistical methods may helpful in estimating the effect of the particular different needs of the various districts on values such as resources and Id. costs. Supreme North Carolina Court endorsed this in Leandro approach
general State, supra, 346 N.C. 355. That court directed trial court on remand could consider goals and standards “[educational adopted by the performance “the legislature,” level of the children of the state North and its [of Carolina] various districts on standard tests,” achievement expendi- “level the state’s general educational tures per-pupil expenditures.” In Id. Campaign I, the New York Court of Appeals listed the following inputs, relevant including: “minimally adequate physical facilities classrooms which provide light, enough space, heat, permit and air to children to learn . . . minimally adequate instrumentalities of learning such as desks, chairs, pencils, reasonably current text- *117 . books . . minimally adequate teaching rea- [and] sonably up-to-date basic curricula such as reading, writing, mathematics, science, and studies, by social adequately trained to teach those personnel
sufficient
Campaign
I,
supra,
By way illustration, argue some commentators a child disadvantage preventing most serious social course, is, poverty. Relying able to learn being from Bureau, from the United States Census on data obtained Assembly’s on General Commission Children in 2009 that one in ten Connecticut children reported family in 2007 lived in a age eighteen under the 86,000 poverty nearly income below federal line — Assembly, children. State of Connecticut General Com- Poverty on Child Children, mission on Fact Sheet at Connecticut, http://www.cga.ct.gov/ available coc/PDFs/poverty/child poverty report 0109.pdf (last surprisingly, March Not those children 9, 2010). visited evenly throughout were not distributed state’s that, thirty-eight towns. The 2000 census revealed percent, was less than 2 towns, poverty the child rate *118 yet percent, in seven towns that rate was 23 led Hartford, extremely had an child high poverty which percent. rate Waterbury, Id. and New Bridgeport Haven also had the 31.4 high poverty child rates of percent, percent, percent, respectively. 28.4 and 28.7 impact Id. poverty ability has on a child’s learn to quantify, unquestionably is difficult but it is Poverty considerable. with it a host of other brings impediments to limited or no health learning: access to poor care, prenatal dental or no for care the child’s mother, identify failure to conditions such as learning require special disabilities and autism that would educa- tion services, poor inadequate housing diet and in unsafe neighborhoods. Rebell, See M. ‘Mean- “Poverty, ingful’ Opportunity, Educational Necessary and the Role Courts,” 85 N.C. L. Rev. 1472-73 (2007).15
As challenging as these are, issues the trial court and, court, likely, may have to face the issue of remedies, depending on the outcome of the adequacy phase of the trial. In event, may it well appro- be that the priate option available courts, to the to avoid a conflict concerning separation of powers, would be the concerning adequacy As it evaluates the evidence of the education provided public students, grapple school the trial court will have with questions, including following. court, numerous difficult Should the determining providing adequate whether school is its students with an education, outputs use the same standards evaluate the of children in a system relatively poverty outputs town school with little and the of children system poverty in a high town school rates? What should used representative representative measure for a child or children in purposes determining system school failing for whether the school appropriate its duties? What is an measure the correlation between a child’s outputs failure to achieve as measured academic and the school system’s alleged inadequacies, given quantifying social, the difficulties in economic, impede and environmental factors that enable or a child from being and, ultimately, obtaining higher able to learn succeed employment? challenge All these concerns and others will the trial judicially manageable present court to fashion standards to resolve the case. I, is, and Horton an order
route taken in Sheff
responsibility
initially,
at least
assign,
that would
and,
to the
providing
specific remedy
legislature
*119
parties
appropriate,
litigation.
to the
to the
as
Sheff
impera-
constitutional
supra,
(“the
238 Conn.
O’Neill,
us
powers persuades
to afford
separation
tive
branch,
of the executive
with the assistance
legislature,
instance,
first
fashion the
in the
to
opportunity,
respond to the
remedy
appropriately
will most
identified”);
that we have
see
constitutional violations
determining however, I provision. disagree, constitutional support factors conclusion that the Geisler plurality’s Connecticut view “article entitles § give suitable to to an education public school students able to responsible to be citizens opportunity them the institutions, jury such as fully in democratic participate constitutionally that, to be voting,” service stu- Connecticut’s that education must “leave adequate, progress higher to institutions of prepared dents oth- employment and productive or to attain education, economy.” Instead, I the state’s erwise contribute to requirement constitutional that the would conclude sec- public elementary and always be free shall “[t]here Const., VIII, 2; ondary state”; Conn. art. schools perpetuation Connecti- was intended ensure system public schools, of free and was cut’s statewide a “suitable” education as intended to guarantee I would conclude interpreted by majority. therefore properly granted defendants’ that the trial court plain- one, two and four motion to strike counts complaint. tiffs’ whether plurality that, considering stated “[i]n nonjusticiable subject presents matter particular have articulated relevant question, we
political [six] *121 textuaily constitu- factors, a demonstrable including: political to a of the issue coordinate tional commitment judicially or lack of discoverable and department; a impossibil- or the resolving it; standards for manageable policy an initial determination ity of without deciding impos- clearly nonjudicial discretion; for of kind independent resolution sibility undertaking a court’s respect due lack of the coordinate expressing without unques- need for or an unusual government; branches of already made; political decision tioning adherence to from multifarious potentiality of embarrassment or the ques- on departments one by various pronouncements
385 tion. Unless one of these formulations inextricable bar, from the there should be no dismissal for case at nonjusticiability political question’s of a ground on presence. Furthermore, simply . . . because the case political has a to the an sphere connection [is not] independent politi issue as a characterizing basis question cal . . . . the Governor v. Select Office of Inquiry, 540, 573, Committee Conn. 858 A.2d [271 of Indeed, 709 case (2004)]. principle that a should not nonjusticiability political question dismissed for as a unquestioned unless an need for unusual adherence to case, decision is inextricable from the means that courts heavy should view such cases with a thumb on justiciability, side of and with the recognition that, simply because case is political connected sphere, necessarily political it does not follow it is a question. v. Seymour Region Education, One Board of 475, 488, Conn. 803 A.2d (2002)].” (Internal 318 [261 quotation marks omitted.)
In
O’Neill,
14,
238
1,
Conn.
386
legislature
the
to fulfill its
ion, the actions taken
public elementary and sec
obligation
constitutional
v.
14. The
ondary
O’Neill, supra,
schoolchildren.”3 Sheff
plaintiff
schoolchildren
court then observed
“[t]he
provi
present
invoke the same constitutional
in the
case
constitutionality of
challenge
the
state action
sions
invoked in Horton I
schoolchildren
plaintiff
has
1,
text
article
not
eighth, §
Horton III. The
Furthermore,
although prudential cautions
changed.
may
proper
on the
definition
constitutional
light
shed
Reapportionment
v.
remedies; see
rights and
Fonfara
85,
387 and, 10-118 Statutes, trustees under of General ultimately, Assembly General which the Connecticut, constitution of entrusts eighth, § responsibility University of governing of Con- (Citations omitted.) Id., necticut.” 514. The court con- “the cluded constitutional of [standard penetra- ‘excellence’ was not to be a meant wedge judicial of tion the educational establishment inter- policy In Sheff, vention decisions.” Id. this court holding characterized its in Simmons as decision on plaintiffs’ claim, the merits of the constitutional did nonjus- stated that not hold that the claim was “[w]e v. O’Neill, supra, ticiable.” 15 n.17. Accordingly, Sheff support we concluded that Simmons did not the defen- argument plaintiffs’ dants’ that the claim was Sheff nonjusticiable. Id., 15 and n.17.
It is
clear, therefore,
recognized
court hаs
there is
overlap
“pruden
considerable
between the
may
light
tial cautions
shed
on the
defini
proper
[that]
tion
constitutional
rights
remedies”;
v.
Sheff
O’Neill,
238 Conn.
supra,
15;
the factors that inform
our
as
determination
to whether an issue constitutes a
4
nonjusticiable political question.
Ganim,
See Moore v.
217, 82 S. Ct. interpretation, enterprise of constitutional the classical especially where, here, provisions the constitutional see remarkably open-textured”); also at issue are so Dept. Montana, 503 U.S. Commerce v. United States *124 Ed. 87 (1992) 112 S. Ct. 118 L. 2d of [government for a coordinate branch (“[r]espect . . concerns . but those concerns relate special raises to controversy, rather than our to the merits has power Thus, willing to this court been it”). resolve coordinate branch respect to treat factors such as a difficulty crafting appropriate and the government equitable prudential as considerations relevant relief rather than as limits scope right, of a constitutional power on of the courts’ to resolve constitu scope approach is with “the questions. tional This consistent in every indulged is to principle presumption that jurisdiction.” O'Neill, subject matter favor Sheff v. supra, 15. I as Justice Zarella although recognize,
Accordingly, opinion, in that the claim that the argues dissenting his precisely plaintiffs present have raised in the case f5 by in plaintiffs the same as the claim raised Shef underlying holding this court’s principles Sheff justiciable in that plaintiffs’ that the claim case was I apply equally here. would conclude that Accordingly, difficulty to the and the of formu legislature deference equitable deprive relief do not this lating appropriate scope jurisdiction right court of to determine the but, instead, determining are factors be considered by scope 1,§ created right the trial court concluded.6 plaintiffs Specifically, claimed the defendants had vio Sheff substantially “right equal a
lated their state constitutional
educational
opportunity”;
supra,
14;
plaintiffs
O’Neill,
Conn.
while the
in the
Sheff v.
present case claim that the defendants have violated their state constitutional
substantially
opportunities
right
equal
. . . .”
to “suitable and
educational
pruden
contend that the trial court’s consideration of these
they
properly
premature
tial
have
more
factors was
“would
been
turn,
plaintiffs’
I
the merits of the
claim
therefore,
that,
1,they
under article
have
to receive
eighth, §
substantially equal
opportuni
suitable
support
claim,
plaintiffs allege
ties. To
in counts
plain
and four
one,
complaint,
two
of their
various
effectively;
tiffs:
are in classes too
learn
(1)
large
(2)
have
no
lack
opportunity
preschool;
had
to attend
(3)
school;
access to remedial
instruction or
(4)
summer
poor quality technologi
attend schools with limited or
resources;
subject
cal
(5)
taught
lacking
are
teachers
;7
expertise
matter
attend
con
(6)
high
schools
special
students,
centrations
bilingual
non-English
students
students who are
speaking
risk,”
“at
and schools that
lack access to resources
commensurate
addition,
plain
with their needs. In
tiffs
inadequacies
claim that
these
are
caused
*125
system.
flawed educational funding
I
plurality
question may
with the
agree
that this
be
by application
resolved
set forth
factors
in State
Geisler,
v.
supra, 222 Conn.
Although
684-86.8
Geisler
ordinarily supplies
analytical
framework
“[t]he
which
any
we determine whether,
given instance,
in
our state
protection
constitution affords
our
broader
opportunity
present appropriate
considered after
had the
[the]
discovery
intelligible
argument
standards after
trial.” This
is
at
inability
alleged
“appropriate
intelligi-
circular. The court’s
to determine
prudential
ble
in
standards”
this
is the
context
concern.
7
complaint,
example,
plaintiffs allege
percent
In their
68
Elementary
the teachers at Lincoln
School in New Britain have a master’s
degree,
percent.
average
while
state
is 80
8
part
plurality opinion,
As
forth in
set
II of the
the Geisler factors are:
persuasive
“(1)
precedents;
(2)
operative
relevant federal
the text of the
provisions; (3)
insights
constitutional
historical
into the intent of our consti
forebears; (4)
precedents;
persuasive prece
(5)
tutional
related Connecticut
courts;
(6) contemporary understandings
dents of other state
applicable
sociological norms,
described,
economic and
otherwise
public policies.” (Internal quotation
omitted.)
relevant
marks
State v. McKen
zie-Adams,
486, 510,
888, 128
822,
denied,
281 Conn.
915 A.2d
cert.
552 U.S.
248,
(2007).
S. Ct.
citizens federal State McKenzie- v. quotation marks (internal omitted) denied, Adams, 509, 822, 915 A.2d cert. 486, 281 Conn. 248, L. Ed. 2d 148 (2007); 128 S. Ct. 169 U.S. why this should not perceive I no reason framework scope analyzing right guar equally useful no state constitution that has federal anteed Ganim, Moore Conn. supra, 581-82 analog. See has Geisler analysis to claim that state consti (applying to its minimal assistance obligation tutional I address each factor poor citizens). Accordingly, turn. precedent, recognize I respect to federal
With present in the case has limited relevance factor no analog contains because the federal constitution I disagree, of the state constitution. plurality’s with the conclusion that federal however, analysis. Rather, entirely irrelevant to our precedent Supreme I Court’s decision believe the United States Independent Rodriguez, District San Antonio School L. 2d 16 1, 42, (1973), 93 S. Ct. Ed. U.S. are supports the trial court’s conclusion that there important prudential that must be con- considerations scope of the state constitu- determining sidered in case, Supreme the United States tional In that right. “[education, even more than perhaps Court stated that *126 myriad of intractable eco- assistance, presents welfare . . . philosophical problems. nomic, social, and even problems very complexity financing The of the public system suggests a statewide school managing constitutionally permis- will more one that there be than that, them, and within the limits solving sible method of prob- tack rationality, legislature’s efforts to respect. to ... On even the lems should be entitled questions most in this area the scholars educa- basic . . . The wisdom experts tional are divided. ultimate likely to problems to . . . of education is as [the] be divined for all time even the scholars who now earnestly circumstances, so In such debate issues. to from judiciary imposing is well advised refrain on the inflexible constitutional restraints that [s]tates handicap could circumscribe continued research experimentation finding partial so vital to even problems keeping solutions to educational and to abreast conditions.” omit- ever-changing (Citations ted; quotation Id., internal marks 42-43. The omitted.) in Independent court San Antonio School District con- cluded that consideration and initiation of funda- “[t]he with respect mental reforms taxation and state legislative education are matters pro- reserved cesses of the . . . various .” (Emphasis added.) [s]tates I Id., 58. would conclude that this reasoning strongly against interpreting
counsels eighth, article § endow the to a “suitable” educa- tion that is enforceable in our courts. respect
With text of article I eighth, 1, dis- § agree plurality’s with the conclusion it is ambiguous applied the claims this case.9 eighth, 1, Article § of the provides Connecticut constitution in relevant part: always “There shall free elementary secondary schools the state. ...” plurality As the points out in footnote 29 its opinion, the common “ ” “ understanding word ‘school’ ‘an organiza- ” provides tion that . instruction . . .’ plurality As the also recognizes, eighth, 1, “does not § contain any qualitative language, in contrast of article . . . eighth requires sys- which the stаte to ‘maintain a tem higher education, including University which Connecticut, shall be dedicated to excellence point that, 9 I also would ambiguous, out even if article § were presumption in accordance constitutionally, with the state has acted jurisprudential “a well established ambigu doctrine counsels tous construe principles narrowly.” Ganim, ous constitutional supra, Moore v. 233 Conn. (Peters, J., concurring). *127 392 con- (emphasis original); education’
higher provisions of constitutions to the education trast of light language In many of of our sister states. as this state was and inasmuch eighth, § article provision; adopt state to a constitutional last 30; is clear to 238 Conn. it O’Neill, supra, v. see Sheff option to were well aware of their that the framers me eighth, 1,§ in article qualitative a standard include one. This deliberate deliberately chose not include and I therefore very heavily me, choice weighs eighth, rea- that the text article would conclude mandating as that the instruc- sonably cannot read for “suitable” effective tion in our schools be end.10 specific some I would precedents court, of this respect
With
construing
cases
article
previous
that our
conclude
present
no
in the
case
guidance
1,§
they have involved
because,
plurality recognizes,
presents for the
while this case
inequality,
claims
provision
that constitutional
time a claim that
first
prece-
ample
There is
qualitative
standard.
establishes
proposi-
for
decisions, however,
general
in our
dent
an absence
prudential considerations such as
tion that
standards
judicially
manageable
discoverable
equitable
difficulty
in crafting
the case and
resolving
scope
our
relief are relevant to
determination
v. O’Neill, supra,
See
right.
constitutional
state
Sheff
614-15;
Ganim, supra,
Moore v.
Conn.
15;
238 Conn.
Reapportionment Commission,
supra,
Fonfara
185;
Budds, supra,
With to the of article I1,§ disagree with plurality supports that this factor its provision conclusion implicit quali- contains an requirement. tative I would Rather, conclude that the statements of the delegates the constitutional con- vention support conclusion that the framers merely intended to guarantee legislature that the would con- tinue to public system free school that it traditionally provided. had Bernstein, Simon J. a dele- gate the 1965 prin- constitutional convention and the cipal supporter of provision that became article eighth, § stated convention during proceedings that “we do have the tradition which to our goes back earli- days public est of free good education we have [had] public good schools so that this again is anything revolutionary, something it . which we have . . practically which is all in the [sjtates [in] [constitutions of our nation and Connecticut with its great tradition certainly to honor ought principle.” Proceedings of the Connecticut Constitutional Convention (1965), IT. p.3, 1039; see also Proceedings of the Connecticut Constitutional Convention (1965), 1, p. 312, Pt. remarks Delegate Bernstein (“[w]e have a great history and tradition requiring public that the body supply our chil- public dren with free education”). Thus, Delegate Bern- stein’s emphasize statements provision was merely intended to honor perpetuate Connecticut’s tradition of providing public free schools for all of its school children. aged See Moore v. Ganim, supra, 233 provisions the education
Conn. 596
framers of
(“the
statutory tradition of free
looked to the historical
explicit
support
in this
its
inclusion
state
constitution”);
Dinan,
Meaning
state
J.
“The
Evidence from
Education Clauses:
State Constitutional
Debates,” 70 Alb. L. Rev.
Convention
Constitutional
*129
1, among
eighth,
article
927,
(2007) (including
§
941
had
of state constitutional education clauses that
class
already
or
actions
“purpose
recognizing
confirming
merely
by
and were intended to
legislatures”
taken
Bernstein “was
hortatory); id.,
Delegate
943
that
(noting
adoption
. . .
mean for
of this
clear
that he did not
sys-
in
school
any
the current
signal
change
clause
was
1,
is no evidence that article eighth, §
There
tem”).
new, judicially
create a
enforceable
intended to
suitable education.
I
states,
to the decisions of our sister
respect
With
plurality
they
paramount
are
with the
that
“of
disagree
scope
of article
importance”
determining
York, New
plurality
relies on cases from New
1.§
Carolina,
Washington
South
Tennessee and
Hampshire,
part II E of the
interpretation.11
of its
See
support
plurality
plurality opinion.
acknowledges,
As the
how-
of which
states,
courts in seven other
several
ever,
containing
have constitutions
education clauses
standards,12
concluded that claims
qualitative
have
heavily
plurality
that
New York cases on which the
11 Iwould note
split
Equity,
Campaign
Inc. v. New
relies were
decisions. In
Fiscal
for
893, 801
326,
(2003),
dissenting
York,
N.E.2d
396 adequacy liti-
demonstrates that the trend
2005 has been “towards deference
gation since
[to
away
judicial
and
from
intervention.” J.
legislature]
Sturm, “Justiciability
R.
and the Role of
Simon-Kerr &
Adequacy Litigation: Preserving the Constitu-
Courts in
Education,”
Stan. C.R. & C.L.
tional
J.
Right
primary
reasons for this trend are the fact
(2010).
have
into these waters have
that the courts that
waded
in endless
and
drowning
litigation
found themselves
they
they
realized that
are institution-
increasingly
have
88;
ally
appropriate
id., p.
id.,
to craft
relief. See
unable
“
policy
‘rife with
p.
(proposed
remedies are
choices
”
domain’
and are
properly
[legislature’s
that are
“fundamentally
political”), citing
Driscoll,
Hancock
With respect to economic and sociological concerns, the plurality concludes that the and the state itself have a vital interest in a system school pro- vides a sound basic education every child in the state. I agree with this assessment. The majority also concludes that this trumps interest any prudential con- cerns, such as the absence judicially discoverable and manageable standards and inability of this court to craft appropriate relief, which “are in our view better addressed in potential consideration of remedies for any constitutional violations that may be found at a subsequent trial on the merits, which well might require staying judicial further action pending legislative action.” I disagree with this conclusion. Although this court has, on occasion, left the enforcement of a state *132 first legislature to the the
constitutional 45-46; 238 Conn. O'Neill, supra, see instance; Sheff v. 650; I in the that, 172 Conn. believe I, supra, Horton any qualitative present case, the absence of standard dismaying with the constitution, together the text of our to experiences attempted courts that have other heavily interpre a standard, weigh against enforce such 1, implicit qualitative to ting eighth, contain § remedy leaving crafting and in favor of of a standard, my of a view, judicially to the In absence legislature. implies the remedy absence strongly enforceable See v. New judicially right. enforceable Dimmock Conn. A.2d 569 London, (1968) (“for remedy” every right there vindication [internal The course taken quotation omitted]). marks expectations and plurality only can create unrealistic public from schools supporting divert scarce resources litigation. to endless defending summary, In I would conclude that none of that: supports plurality's Geisler factors conclusions public “article entitles Connecticut (1) § an education suitable to them give school students to responsible partic- able to be citizens opportunity jury such ser- ipate fully institutions, in democratic constitutionally adequate voting”; (2) vice schools will “leave provided institu- prepared progress students Connecticut’s productive or to attain higher education, tions of otherwise contribute to the state’s employment and I the trial economy.” Accordingly, would conclude that that the have failed properly court determined has its a claim that the state violated constitu- state public elementary “free tional obligation VHI, secondary state”; Const., in the Conn. art. schools it motion 1; properly granted and that defendants’ com- one, plaintiffs’ two and four of the to strike counts plaint. respectfully I dissent.
Accordingly,
399
J.,
ZARELLA,
McLACHLAN,J., joins,
with whom
dis-
senting.
presents
This case
court with rare oppor-
this
a
of
tunity
experience
consider the
our sister states
deciding whether
become involved in the resolu-
important philosophical
tion of an issue that raises
and
practical questions
the
of
regarding
legitimate exercise
judicial power. Rather than
and
examining
learning
experience, however, majority
from this
a
this
court
it,
has elected to
the
on
ignore
path
thus
court
a
setting
produce
that will
lead
decades of confusion and
a
trail of wasteful
litigation. James Madison warned
Papers
Federalist
must refrain from
judges
power
“Were
lawmaking:
joined
with the
judging
.
legislative . .
judge
legislator.”
would then
The
No.
(James Madison).
Federalist
47
Yet that is what
will
pass
come to
as a result of the court’s conclusion
plaintiffs’1
justiciable
stricken claims are
under
v. Carr,
Baker
186, 217,
U.S.
82 S. Ct.
7 Ed.
L.
2d 663
will become
(1962). Judges
legislators because
will
very
courts
now be allowed,
likely
and
required,
to define minimum
“inputs”
“outputs”
educational
and
in order to determine whether the state has satisfied
its purported
constitutional mandate to
Con-
necticut schoolchildren with a
education,
“suitable”
task that
involves
policy
and
making
specialized
demands
possess.
skills that
do not
courts
In concluding
plaintiffs’
that the
claims do not involve
political
question,
misinterprets
court
our case
law and dismisses the clear distinctions between the
plaintiffs’
adjudicated
claims
claims
by this
court in
v. O’Neill,
238 Conn.
tion,
Conn.
of article
plain
language
this court
antly,
disregards
directs the General
1, which
Assembly,
“free
principle
implement
judiciary,
by enacting
secondary”
elementary and
practical
immediate
The most
“appropriate legislation.”
it will take control
effect of the court’s decision
of education
from local boards
educational matters
*134
of
a result that the framers
courts,
vest with the
it
possibly envisioned.
1, could not have
article eighth, §
legislature
appropriate
require
it will
Moreover,
in
per year
funding
$2
additional
billion
at least
pro-
will be
schoolchildren
ensure that Connecticut
suit-
required
a
allegedly
with the resources
vided
by
Thus,
D of
opinion.
III
this
part
able education. See
authority
expressly
judicial
into areas
extending
in the
ruling
court’s
legislature,
this
reserved
precedent
will create
a
present
dangerous
case sets
uncertainty
respect
to future contro-
of
quagmire
judicial
legisla-
of
the boundaries
regarding
versies
Because
concerning
in matters
education.
power
tive
separation
I
with this clear violation of the
agree
cannot
respectfully
of
I
dissent.2
powers,
plaintiffs’
justicia
that, although
2 I
court deemed the
claims
note
trial
Meskill,
reasoning in Horton v.
172 Conn.
of
court’s
ble on the basis
Meskill,
Horton v.
(1977),
The
specifically
in their
allege
complaint
that
their
rights
constitutional
have been violated
because the
“to
state has failed
maintain an educational
suggests that,
recently
adequacy suits,
dismissing
therefore
as in other states
justiciability
actually
concerns
drove the
decision.” J. Simon-Kerr&
[court’s]
Sturm, supra, pp.
R.
119-20.
Moreover,
analysis
even if the trial court’s
had followed the
test
Geisler
closely, agree
question
legitimacy
more
I
with commentators who
its
on
ground
that “it is no
than a
more
checklist from which
select
[various
interpretive]
provides
guidance
significance
and
tools”
that it
no
as to the
selecting “any particular
any particular
of
Besso,
method in
case.” M.
“Com
menting
Constitution,”
on the
(1994).
Connecticut
27 Conn. L. Rev.
generally
Geisler, supra,
See
(stating
State
n
LAW OF JUSTICIABILITY justiciability are well principles that underlie “The that there be an Justiciability requires (1) established. controversy actual the parties between or to the among dispute ... of (2) parties that the interests be adverse ... that (3) controversy the matter in capable adjudicated being by judicial power of . . . (4) controversy determination of the will practical result in relief to . . complainant. .
third requirement political ques- for justiciability, doctrine, tion is on principle separation based of powers. of . . . The of characterization [an issue] political is convenient shorthand for declaring that some other branch of government has constitutional authority subject superior over matter of the courts. . . . The fundamental characteristic of a political question, therefore, its adjudication place would the court in conflict a coequal branch government of in violation the primary authority that coordinate branch. . . . a controversy directly
“Whether implicates so primary authority or legislative executive branch, such that a proper court is not the forum for its resolu- tion, is a determination that must be made on a case- by-case . .. Prominent on the of any surface [basis]. case held to involve a political question is found a [1] textually demonstrable constitutional commitment of the issue to a political coordinate or department; a[2] judicially lack of discoverable and manageable stan- dards for resolving it; or [3] impossibility of deciding without an initial policy clearly determination a kind nonjudicial discretion; or [4] impossibility a court’s undertaking independent resolution without respect lack of the expressing due coordinate branches of government; or [5] unusual need for unques- apolitical adherence decision already made; tioned] [6] the potentiality of embarrassment from multifari- pronouncements by ous various departments on one question. Unless one these formulations is inextrica- ble from bar, the case at there should be no dismissal for *137 question’s political of a
nonjusticiability on the ground quotation marks internal omitted; presence.” (Citations State, 1, 6-8, A.2d Nielsen 236 Conn. omitted.) Carr, Baker 217. supra, 369 U.S. quoting 1288 (1996), case, all six Baker implicated factors are present In the claims, and, accordingly, plaintiffs’ stricken controversy nonjusticiable.
Ill OF THE BAKER FACTORS APPLICATION
A Textually Demonstrable Commitment Legislature
to the that article does by noting eighth, § I begin “adequate” edu- or to an refer to a “suitable” education any provision sug- other constitutional nor does cation, Connecticut obligated the state is gest a or minimum standard with suitable schoolchildren ultimately its plurality concedes education. Even the first Geisler factor the defen- discussion of the of the constitutional text to mean inteipretation dants’3 right to not confer a suitable that it does an affirma- in the absence of opportunities is reasonable stan- a minimum educational provision regarding tive initially that the I would conclude Consequently, dard. there is nonjusticiable are because plaintiffs’ claims for the explicit basis in the constitution no suitable education. is consistent with the provision lack of such As notеd in eighth, § 1. this court
purpose of
of arti-
Sheff,
motivation for the addition
primary
“[t]he
Rell,
Connecticut,
governor of
are M.Jodi
The defendants in this case
Nancy Wyman,
comp
Lynn
treasurer,
Nappier,
the state
the state
S.
Denise
Betty
McQuillan,
Sternberg,
troller,
J.
former state
Mark K.
successor
education,
members of
and various former
current
commissioner of
state board of education.
*138
appears
cle
to
in
the constitution
1965
to
§
have been the
was the only
realization
Connecticut
in
state
the nation
did not
an express right
public elementary
secondary
to
and
in
education
its
See
[Proceedings
constitution.
Connecticut Con
pp.
stitutional Convention
Pt.
(1965),
1039-40,
3]
O’Neill,
remarks of
supra,
[Simon Bernstein].” Sheff v.
Bernstein,
remarks
quality, their
question
of educational
no
thought
principle general
elevate the
simply being intent
elementary
secondary
free
every
juris-
right, as
other
status of a constitutional
if it had been
Indeed,
nation had done.5
diction in the
a consti-
delegates
adopt
purpose
the intent
a mini-
students
provision
guarantee
that would
tutional
or level of educational
mum standard of education
*139
a contro-
achievement,
expected
have
such
one would
fiercely
mentioned and
concept
to have been
versial
proceedings, however,
the
An examination of
debated.
very brief discussion that occurred
indicates that the
that became
provision
introduced the
when Bernstein
entirely
constitutionalizing
about
1,
article
was
eighth, §
a
public education, not the
to
right
to a free
right
minimum standard of education or level
of the Connecticut Con-
Proceedings
See
achievement.
1,
310-13;
Pt.
Pro-
(1965),
pp.
Convention
stitutional
Constitutional Convention
of the Connecticut
ceedings
end,
repeat-
3,
1038-41. To that
Bernstein
(1965),
pp.
Pt.
proposed provi-
edly
purpose
that the
emphasized
”
“
5
‘good
passing
he
in
to a
education’ when
Bernstein also referred
...
I
on a
of education
the decade of the
served
board
stated: “[I]n
[1950s]
good
surprised
was
find that
with its traditional
education
to
Connecticut
‘good
I use the word[s]
had no reference to it
[W]hen
[c]onstitution[.]
may
quote
quoting,
I
I would like to
from the
I am
because if
education’
I
Code.
of 1650 which others believe call
Ludlow
Connecticut [C]ode
any
singular
good]
. .
children is of
.
benefit to
Quote
education of
‘[a
goes
which
our earliest
we do have the tradition
back to
so
[c]ommonwealth’
public
days
good public
good
we have
schools
of free
education and
[had]
revolutionary
Proceedings
anything
again
. . .
.”
so that this
is
3, p.
(1965), Pt.
1039.It is clear from
Connecticut Constitutional Convention
however,
made,
that,
using
these remarks were
the context in which
give any
meaning
“good,”
Bernstein did not intend
substantive
word
public
provision
recognize
proposed
but intended to
a free
education
deeply
in this
that should be elevated to constitu
is a
rooted tradition
state
596,
Ganim,
557,
right. See, e.g.,
Conn.
A.2d 742
Moore
tional
public
give right
(1995) (purpose
eighth, §
was to
status).
constitutional
sion was to
than the
to a
nothing
secure
more
education,”
public
principle ought
“free
adding
to be honored because it was
anything
“not
revolution
ary . . . .”
Proceedings
the Connecticut Constitu
1039;
tional Convention
Pt.
see
(1965),
3, p.
also Sheff v.
O'Neill, supra,
(Borden, J.,
dissenting) (“[Bernstein]
only
made clear that
was
intended
[article
1]
existing system
constitutionalize
the then
of free
[emphasis
education”
added]). Accordingly,
the absence of an
affirmative statement
a governmen
tal obligation
Connecticut schoolchildren
with minimum
education,
standard of
there
no
textual basis or
support
judicial
historical
right.
Ganim,
enforcement of such a
Moore v.
See, e.g.,
233 Conn.
espe
I plaintiffs’ also conclude the that claims are nonjusti- ciable because article 1, unequivocally dele- § the gates to the legislature enacting task of “appropriate legislation” ensure that Connecticut schoolchildren will provided be a By impli- with free education. cation, “appropriate legislation” includes whatever qualitative if standards, any, the legislature deems nec- essary to achieve its mandate.6 tana, Kentucky, category imposing tions into E. [9] Reform state constitution Harv. C.R.-C.L. L. 6Some scholars have Grubb, greatest obligation. Litigation,” “Breaking four and Texas Decisions on the categories imposes 19 J.L. Rev. slightest obligation Language W. divided 52, Thro, on the that & Educ. 66-70 the are “The Third Wave: The Barrier: The respective education clauses of the state constitu (1974); 219, based on 243-45 nn.130-39 Future G. state Right Bilingual the Ratner, fourth legislature, level of Public School Finance “A Impact category imposing New (1990); obligation Education,” Legal see the Mon Duty each first also
408 1, that the General eighth, §
The directive in article
free edu
implement”
principle
a
Assembly “shall
by
legislation” is no differ
“appropriate
enacting
cation
used in other constitutional
language
ent from the
on the
provisions
impose
obligations
affirmative
nonjusticiable.
have been deemed
legislature
(article third,
We concluded in
and Simmons
brought
provi-
that claims
under each
the foregoing
nonjusticiable
they
sions were
because
could not be
clearly
resolved without
interfering with
articulated
duty of the
See
v.
legislature.
State, supra,
Nielsen
10; Pellegrino
Conn.
O’Neill, supra,
682;
193 Conn.
Budds, supra,
Simmons v.
specifi-
authority derived, is the governor and, . . 10-118 . § under trustees Statutes] [General Assembly General to which ultimately, with the 2, Connecticut, article entrusts constitution of University of Con- responsibility governing of the trial find error in the conclusion necticut. We no ‘excellence’ court that the constitutional [standard penetration a wedge was not meant in by judicial intervention educational establishment v. omitted.) Simmons policy (Citations decisions.” Budds, supra, 514. is similar to language eighth, § of which provisions
language preceding in the —all duty impose legislature an affirmative on the —because plainly provides “general it unambiguously assembly implement principle pub- a free shall [of [the] secondary elementary lic school education legislation." added.) appropriate (Emphasis enacting] any in or in constitu- is no other suggestion There in judicial has a role provision that branch tional any referred to Connecti- process, nor has the court intervention when the claim permitting judicial cut case provision imposes a an affir- involves constitutional duty Moreover, it is counterin- legislature. mative on the Simmons, that, when conclude, light tuitive to quality constitution, is mandated there level of no because matters edu- justiciable concerning issue but quality fall within the domain legislative cational quality is is. mandated, that when no level of there could be construed Thus, even if a “free” education education, Simmons dictates that to mean suitable nonjusti- questions quality are concerning ciable. Meskill, 172 Conn.
Our decisions
Horton
Meskill,
and Horton
(1977) (Horton I),
sider the
legislation”
language
article
1,§ to
a textual commitment
to the General
Assembly
“plain
like the
and unambiguous” spending
in
cap language
State,
§ Nielsen
third,
18;
supra,
only in equal the context of the protection claim in I. Horton See id., (“In construing 1], eighth, § [article Horton expressly we held the then-existing I] [in public schools financing scheme for the state’s [was] implement ... appropriate legislation requirement substantially the state youth in its free equal opportunity to its ... elementary secondary schools. It was between these different light of the textual distinction Pellegrino O’Neill, provisions that, constitutional clearly Horton I as supra, we described Conn.] [193 judicial remedy could have been case in which] [a emphasis . omitted; added; . . .” applied [Citations Consequently, quotation omitted.]). internal marks *144 “appropriate legislation” we view the Nielsen, did not 1, of as the door to language opening § pertaining in all matters educa- judicial intervention I rather, a tool that the court Horton had but, tion equal protection provi- conjunction used in with the of the state constitution to evaluate whether sions system public education was existing funding then equal substantially children with providing State, supra, Nielsen 10. opportunities. See present appear in the case to be asking court in Nielsen something this court to do equal is, protec- could not have use imagined, a vehicle to provisions of the state constitution as tion a floor for educational achieve- establish substantive See, Neubome, a B. right. e.g., ment as constitutional Evolution of Positive “State Constitutions and the 881, (1989) (in L.J. absence Rights,” Rutgers independent textual basis for substantive federal consti- lawyers education, health and rights housing, tutional poor to protect use federal constitution sought have process by invoking equal protection and due clauses position trump gov- into a bootstrap judges [ing] “to [of] spend money refusals to on critical services ernment court, desperately poor”). needed This are] [that power in its to avoid however, everything should do provisions in manner protection using equal concept equal protection because of substantive recognized state, has not been in this is there no support judicial textual constitution for interven- tion in substantive educational See Harris v. matters. McRae, 448 U.S. 100 S. Ct. Ed. 2671, 65 L. 2d 784 (1980) (“[t]he guarantee equal protection . . . is not liberties, a source of substantive rights but rather to be free from invidious discrimination in statutory classifications and other governmental activity”).
In addition to the fact
that the text
article eighth,
1, specifically
commits the
of providing
function
free
education to
legislature,
this court has
on
recognized
numerous occasions that providing Con-
necticut schoolchildren with an education is a function
the state that
properly
exercised
the legislature.
See,
New
e.g.,
Haven v. State Board
Education, 228
Conn.
703,
of the state the second Analysis, services. Office of Fiscal Connecticut human State 2009- Assembly, Budget Connecticut General 2011, p. 12. are adminis- appropriated for education
The funds
statutory
an extensive and detailed
pursuant
tered
to
Statutes,
10 of the General
incorporated in title
scheme
authority
power
general
ultimate
and
for
which vests
inter-
supervision and control of the state’s educational
board of education. See General Stat-
ests in the state
has further
legislature
delegated
utes
10-4.8 The
§
implementing
principle of
responsibility for
a free
(a) provides that the state board of education
General Statutes
10-4
general supervision and
of the educational interests of
“shall have
control
secondary
preschool, elementary
state,
shall
which interests
include
education;
special education,
education,
education and adult
shall
vocational
promote
improvement
provide leadership
and otherwise
state, including research, planning
relating
in the
and evaluation
services
technology, including
provision
and use of educational
telecommuni
to
districts;
study
publish
cations, by
prepare
school
shall
such courses
including
textbooks,
guides
materi
such curriculum
recommendations
als,
technological
teaching
other
aids as it deter
resources and
instructional
necessary
carry
districts to
out the duties
mines are
assist school
activities,
workshops
prescribed
law;
including
and related
shall conduct
programs
intergroup
training,
making
effec
relations
assist teachers in
improving
proficiency
and in
their
tive use of such curriculum materials
pupils;
keep
meeting the
needs and interests of
shall
informed as
diverse
state;
condition, progress
in the
and shall
to the
and needs of
schools
developed
programs
develop
evaluation and assessment
or cause
be
objectively
adequacy
designed
efficacy
and.
of the educa
to measure
by public
selectively
programs
conduct such
tional
offered
schools and shall
annually
report, pursuant
(b)
programs
to subsection
assessment
joint
Assembly
section,
standing
having
committee of General
education,
(Emphasis
relating
cognizance
on
annual basis.”
matters
it
added.)
§ 10-4aadds that
shall
an educational interest
General Statutes
equal opportunity
“(1)
have . . .
to ensure that
each child shall
state
experiences;
(2)
program
of educational
each
to receive
suitable
[and]
*146
pro
level ...
school district shall finance at
reasonable
(Emphasis added.)
gram designed
.
.”
In
to achieve this end . .
furtherance
requires
(b)
goals,
§
that the state board of
of
General Statutes
10-4
these
joint standing
and to the
committee
education “shall submit
the Governor
Assembly
cognizance
having
relating to education
of matters
of General
public
condition
schools and of the amount and
an account of the
public education to local boards of education. E.g.,
Cheshire v. McKenney,
182 Conn.
257-58, 438 A.2d
88 (1980); West
Assn.,
Education
Inc. v.
Hartford
DeCourcy,
162 Conn.
573,
To guide and assist the local
boards
carrying out
duty,
General Statutes
provides
§ 10-220 (a)
local or regional board of education
“[e]ach
shall main-
good
tain
public elementary and secondary schools,
implement
the educational
interests of the state as
defined in section 10-4a
such other educa-
tional activities as
judgment
in its
will best serve the
quality of instruction therein and such other information as will assess the
condition, progress
true
and needs of
education.”
*147
.
.
.”
district
.
(Emphasis
interests of the school
providing
“appropriate
includes
learn-
added.) This
adequate instructional
through “(1)
environment”
ing
materials, equipment,
facili-
books, supplies,
staffing,
technology,
equitable
and
allocation
(2)
ties
schools,
proper
its
maintenance
among
(3)
resources
. .”
setting
a safe school
. .
Gen-
facilities,
(4)
and
Local boards of education
(a).
eral Statutes
10-220
§
management, studies,
for the
prescribe
also “shall
rules
public
and,
discipline
classification and
schools
subject
Education,
control of the State Board of
rules
used;
textbooks to be
shall make
for
con-
respective jurisdictions,
their
of school
trol, within
library
approve
and
the selection of
media centers
and shall
therefor,
and other educational media
books
plans
public
buildings
superin-
school
and
approve
specified
in the
any
school
manner
high
graded
tend
10-221
Stat-
(a).
§
in this title.” General Statutes
General
requires
10-222
each local board to
(a)
utes
further
the cost of mainte-
“prepare an itemized estimate of
year . . .
ensuing
for the
.”
nance
schools
decide,
it is
of education that
Thus,
the local boards
shall be
discretion,
budgeted
their
how education funds
expended.
Local
AFSCME Board Educa-
tion, supra,
The effect of court’s — in educational matters require judicial involvement — be to wrest control of education from the local will hands place it in the of the court. It clear boards plaintiffs’ complaint happen that this will because to provide failure “suitable” edu- alleges that the state’s by inadequate is caused opportunities cational “inputs,” complaint which the unequal conditions, staff, such as defines as “the resources environment, that constitute an educa- programs, and conditions,” how- system.” Such “resources and tional has directed local ever, exactly legislature are what the boards to under 10-4a and 10-220 to ensure §§ that each child will have a “suitable of educa- program *148 experiences”; tional General Statutes 10-4a (1); § “an appropriate learning environment . . . .” General Statutes 10-220 Court (a). intervention to establish a minimum standard of education or level of educational achievement thus will conflict with legislative directives boards, local whose discretion to determine what constitutes a “suitable program” appropriate and “an environment” learning for children in respective their districts will only not be severely very but curtailed, likely eliminated, because the will court become the ultimate arbiter of whether Connecticut schoolchildren are receiving proper satisfy educational resources to newly defined constitutional mandate of a suit- able education.
The plurality asserts that its is “not ruling intended to supplant local control over education,” explaining the purpose of court intervention merely “to articulate the broad parameters of constitutional [the] right, and to implementation leave their expertise to the of those who work in political branches of state and local government, informed the wishes of their constituents. long those prescribe authorities [As] implement a program of instruction rationally cal- culated to enforce the constitutional right to a minimally adequate education . . . then judiciary stay should its hand.” Footnote 59 of the plurality opinion. As New Jersey, jurisdictions Kansas and other have discovered, however, such a view is unrealistic. See part III B of opinion. this The court will not be able to limit its involvement in educational matters to vague declara- principle tions of but will required adjudicate constitutional challenges to adequacy specific state and local programs of instruction, which place will position court in a to override decisions made state and local authorities regarding the level and distri- resources for education in of limited financial
button respective jurisdictions. their proponents
This not be what could were, they surely would intended. If it 1,§ provision as “not revolu- anything have described tionary.” Proceedings of the Connecticut Constitutional remarks of Bernstein. 3, p. 1039, Pt. (1965), Convention contemplated never would have That the framers parts from other of course also is evident change records, delegates which described the convention on education as proposed provision embodying history and tradi- long Connecticut’s nothing more than *149 public of children a free education. providing tion 109 (July 27,1965), Convention Resolution No. See, e.g., Constitutional Conven- reprinted in 1965 Connecticut Resolutions, Files, Appendix Bulletins, Calendars, tion 1, of article demonstrated Proponents eighth, § (1965). or local control of supplanting legislative interest in no was stated that their intent to but, rather, education in the and thus an omission constitution correct consistency with the constitutions of other achieve of the Connecticut Constitu- Proceedings See states. 3, pp. 1039-40, Pt. remarks (1965), Convention tional in fact, nothing In there is the recorded of Bernstein. fram- history of convention to that the suggest the 1965 the of local control of educa- ers wanted to end tradition authority the to determine how granting tion courts imple- free principle public of a education should intent, they If had the framers’ would mented. been author- specific language delegating have used such Indeed, interpreting cases ity to the legislature. of local boards of education follow- power the state and adoption questioned article never have eighth, § of ing constitutionality statutory or the of the scheme authority or the boards to determine legislature opportunity or an content of a suitable educational compre- I thus fail to learning environment. appropriate majority peruse hend how a of this court can our case statutory history law, framework concluding constitutional convention without that the legislature delegated and local have been exclu- boards authority implement sive to mandate constitutional providing children with a free education. plurality, any failing Nevertheless, the after find support prin textual constitution, claims that the ciple may articulated courts enforce the Sheff substantially equal constitutional opportunities present governs
also in the case because specifically holding in our not refer “does to the Sheff equal protection provisions, [state] constitution’s expressly ‘appropriate legislation’ relies on the clause judicial eighth, justify § from examination plurality [education] statutes.” Footnote 18 of the opinion. plurality, adopts however, an extraordi narily interpretation ignores broad the fact Sheff holding that the court’s was intended resolve Sheff the claim, raised in the defense, state’s affirmative deprives “the text of article trial court jurisdiction to consider whether the are by way legislature entitled to relief an order to the remedy impaired for their opportunities”; *150 supra, O’Neill, v. Conn. 12; 238 Sheff impairment being satisfy the that state the did not the providing “substantially constitutional mandate of equal opportunities] (Emphasis educational . . . .” added.) plurality ignores 14. Id., Thus, the the court’s nonjusticiability in observation claim that the of Sheff judicial had been “[i]n raised the context of enforce substantially equal ment of the to a educational opportunity arising eighth, § under 1, and article explained §§ first, 19and 2010. . . The .’’Id. court that 9 first, provides: Article of § the “All Connecticut constitution men when they compact, equal rights; form a social are in and no of man or set men are public privileges community.” entitled to or exclusive emoluments from the 10 first, 20, provides: person § Article of the Connecticut constitution “No equal protection subjected segrega- shall be denied the of the law nor be inequities in involving had reviewed similar claims
it
III,
in
I and Horton
opportunities
Horton
educational
had
challenged
in
the
that the defendants
Sheff
vitality
argued
those
cases but had
two
continued
nonjusticiability
distinguishable.
was
that their claim
defendants, however,
with
disagreed
Id.
court
the same con
plaintiffs
had
stating that
“invoke[d]
and educa
[concerning equality
provisions
stitutional
action
constitutionality
of state
challenge
tion]
invoked Horton
plaintiff
schoolchildren
that
[had]
id.,
15; and
III";
(emphasis added)
I and Horton
14—
III
I and Horton
had been
our decisions in Horton
State, supra,
9-10,
v.
236 Conn.
in Nielsen
reaffirmed
O’Neill, supra,
v.
The in without thus Sheff reject the court the defendants’ question, did affirmative defense on ground eighth, article judicial 1, permits to consider whether the § branch Assembly “appropriate General has enacted legislation” in all arising provision, plurality cases under that as the 57¿effmerely declares. “appropriate determined that the legislation” language eighth, pre- article does not § vent the from adjudicating involving ineq- courts claims uities in educational opportunities similar to the claims that the court addressed in Horton I III. and Horton only explanation Indeed, logical court’s repeated references to the Horton decisions is that it wished reaffirm precedential their continued value in similar cases claims educa- involving alleging unequal opportunities. tional plurality
The asserts that, because did not refer Sheff specifically to the equal protection provi- constitution’s sions in its on holding eighth, it intended § judicial endorse review of issues relating to generally implicate protec- equal do not tion merely concerns. holding, however, Sheff repeated language used in the defendants’ affirmative in which defense, they that the argued “text of article 1,” deprived jurisdiction the court of to con- sider the relief that plaintiffs requested under both equal protection provisions and education of our state Id., constitution. 12. Moreover, interpre- the court provision only ted the after specifying that it was doing so precedents” these light inequalities involving “[i]n opportunities. Id., 15. In on relying Sheff permit judicial review of education adequacy claims, plurality expands principles articulated Sheff far beyond their stated meaning. plaintiff
action that the
schoolchildren invoked in Horton I
III.’’
and Horton
(Emphasis added.)
O’Neill, supra,
The made Sheff court, brief to this point. In their illustrate were plaintiffs’ that the claims contended defendants 1, because the nonjusticiable eighth, § under article committed issues “appropriate legislation” language v. plaintiffs legislature. raised to Sheff Briefs, Sep & Supreme Court Records O’Neill, Conn. 4B, p. Defendants’ Brief 75. The Term, 1995, Pt. tember that the defendants’ characteriza plaintiffs countered 1, resting eighth, their as on “article § tion of claims complaint in was because the had isolation” incorrect elementary public “conjoin[ed] guarantee free first, 20, 1 secondary and schools with article and §§ promise ‘equal rights’ privi to benefits which which and discrimina leges ‘segregation condemn ” O’Neill, Conn. (Emphasis added.) tion.’ Sheff September Supreme Briefs, Term, & Court Records Reply p. plaintiffs Brief 18. The 1995, 4C, Pt. Plaintiffs’ explained 1, must be read eighth, further that article § first, to pari 20, “in materia” with article estab §§ ... right’ lish “a ‘basic and fundamental to ‘substan ” equal opportunity.’ tially (Citation in took great pains Id. The thus omitted.) Sheff clarify they “appropriate to viewed the legislation” in 1, of article the context their language eighth, § equal protection first, enumerated in article §§ opinion did in the that followed. this court Consequently, plurality’s construction of Sheff under eighth, mean that all claims article arising § represents are and unwarranted justiciable significant departure from that the court that case could Sheff contemplated. not have plurality attempts reading bolster its strained under arising mean that educational issues Sheff textually are not committed to the opinion
legislature by resorting
a footnote
jurisdictions
states that other
“over-
which
court
has a
whelmingly”
judiciary
have determined that “the
to review
duty
legislature
constitutional
whether
O'Neill, supra,
its
obligation.”
has fulfilled
Sheff
*153
however,
15 and
have
court,
Conn.
n.18. The
could not
reviewability
a principle
to establish
of general
intended
1,
article
arising
eighth, §
of all education claims
under
when it cited cases from our sister states because
claim before our
was
narrower one of
court
the far
deprived
had been
whether
“substan-
equal
opportunit[ies]
Id.,
. .
.”
6.
tially
educational
.
plurality
The
thus takes that footnote out of context13
entirely
applies
reasoning
its
to an
different factual
legal
interpret
scenario. In other
rather than
words,
in
footnote in
statement
the context of the claims
in Sheff,
plurality
made
elects
untether the com-
ment and make it
applicability.
a statement of general
it
Moreover,
major
is absurd to
change
attribute such
interpretation
in our
of article
to a
eighth, 1,§
comment
referring
a footnote
to cases
other jurisdictions,
from
especially when the footnote does not make
abso-
it
lutely clear that
was
intent. Accordingly,
court’s
although
plurality
relies on
Sheff,
footnote 18 in
in any
which,
event,
more than
I
nothing
dictum,
submit
the footnote
light
sheds no
on the meaning
only
1. The
conclusion that
can
13Significantly,
brought solely
one of the cases involved a claim
under
equal protection provision
constitution;
of that state’s
see Washakie
County
Herschler,
310, 315-16,
School District Number One v.
606 P.2d
(Wyo.) (reviewing
system
funding
provide equal
claim that school
failed to
opportunity
equal protection
thus
was in
violation
clause
Wyoming constitution),
Springs County
cert. denied sub nom. Hot
School
County
One,
District Number One v. Washakie
School District Number
824,
86,
(1980);
449 U.S.
101 S. Ct.
L. Ed.
2d 28
and another case involved
equal protection
brought
“thorough
a de facto
claim
under the
and efficient”
only
possibility
education clause of that state’s constitution
to avoid the
appeal
Supreme
Lichtenstein, note,
to the United States
Court. J.
“Abbott
Reaffirming
Jersey’s
Equal
v. Burke:
New
Constitutional Commitment
Opportunity,”
429,
(1991);
Educational
20 Hofstra L. Rev.
439-40 n.42
see
Cahill,
133, 140, 147,
v.
Robinson
69 N.J.
351 A.2d
cert.
sub
denied
Robinson,
(1975).
nom. Klein
U.S.
96 S. Ct.
drawn Sheff also have determined that other courts recognizing was justi- are involving claims education that constitutional implicated, like provision provisions ciable when the provi- protection and education “conjoin[ed]” equal O’Neill, Supreme Conn. Court Sheff; sions Sheff Term, 1995, 4C, Pt. Plain- Briefs, September Records & protection p. equal provision or the Reply 18; tiffs’ Brief constitution, permit judicial review. Wyoming in the certain plurality subsequently concludes jurisdic cite, in which other that the defendants cases nonjusti adequacy claims tions have deemed they because inapplicable present in the case ciable, are similar to the language not involve constitutional do *154 in article legislation” language contained “appropriate Adequacy & Fairness See Coalition 1.§ for 400, (Fla. 2d Funding, Chiles, Inc. So. School made law for provision shall be ("[a]dequate 1996) free schools and for the system public uniform of institu establishment, operation and maintenance public pro and other learning tions of higher may require” people of the that needs grams quotation marks omit internal [emphasis original; Coali Const., IX, 1; Fla. art. Nebraska quoting § ted]), Adequacy Heineman, & Equity Educational tion for 531, (“[r]eligion, 731 N.W.2d (2007) 273 Neb. good . . . essential knowledge being morality, duty Legislature it be the of the shall government, schools and the encourage laws ... pass suitable pro shall instruction,” Legislature means of “[t]he in the free common schools vide instruction persons of five and ages all between this state of quotation internal twenty-one years” added; [emphasis art. Const., I, 4, Neb. omitted]), quoting § marks Assn. v. State VII, and Oklahoma Education 1; art. § 158 P.3d 1062 nn.6 Legislature, rel. Oklahoma ex be for the shall made (Okla. 2007) (“[provisions and 8 system public establishment and of a maintenance which shall to all the schools, open be children control; state and free from sectarian and said schools always Provided, shall be English: conducted preclude shall other lan- nothing teaching herein public schools,” in said guages Legislature and “[t]he shall system public establish and maintain a of free may schools wherein all the children of State quotation educated” marks omitted]), quoting [internal Const., I, Okla. art. art. 1. XIII, A review of § provisions constitutional such states nevertheless suggests provision, Connecticut constitutional qualitative which textually contains no language, closer to those of permit judicial states that do not review of such matters than to those of states do. plaintiffs’
In sum, nonjusticiable are claims under the first Baker factor because there is no enumerated constitutional to a suitable a minimum standard of education, and textually there is a com- demonstrable mitment of issues concerning education to General Assembly part express its obligation under the constitution enact legislation Connecticut schoolchildren with a free education. This court has that, stated dealing provi- constitutional *155 “[i]n sions we must assume that infinite employed care was to couch in scrupulously fitting proposal a language aimed at or establishing changing the law of organic the state. . . . Unless there some clear reason for so, not doing effect given every part must be and each in word the (Citations constitution.” omitted.) Stolberg Caldwell, v. 175 Conn. supra, 597-98. The dele- gates to the 1965 constitutional convention established a public to free and, education in unambiguous language, assigned implementation its to the legislature, not the courts.
B Judicially Lack of Discoverable and Standards Manageable plurality that I also with the second disagree judicial factor no obstacle review poses Baker easily manage- are discoverable and because “[t]here determining the merits of judicial able standards quotation omitted.) marks plaintiffs’ (Internal claim[s].” no provides I previously discussed, As constitution type qualitative regarding or standards substantive provided public to be to Connecticut education nothing and there is in the historical schoolchildren, to the 1965 constitu- delegates record that the indicating The considered such standards. tional convention Seymour v. Region majority nonetheless concludes Education, supra, 261 Conn. One Board of question I our resolution of this because govern Horton merely of a constitu- request declaration remedy left precise being “with the violation,14 tional I first Part defendants instance.” Region v. One plurality opinion; Seymour see Board of Meskill, supra, Education, supra, 484; Horton Consequently, plurality asserts Conn. 650-51. into judge remedies will not “turn trial requested . .” superintendent . . The com- a de facto education are Seymour I, however, and Horton distin- plaints guishable. Seymour issue before the court principal
The
constitutionality
financing
of school
I was the
Horton
process
one more of the due
under
legislation
the state and federal
equal
provisions of
protection
Seymour
Region
One Board
See
constitutions.
alia,
complaint requests,
plaintiffs’
inter
[trial] [c]ourt
“[t]he
system
maintain a
defendants to create and
order [the]
substantially
opportunities
equal
*156
that will
suitable
plaintiffs.”
to [the]
Education, supra, 261 Conn. 479-80
claim
(involving
statutory
formula
set forth General Statutes
10-§
for financing public education in regional school
[b]
deprived plaintiff
districts
taxpayers of state and federal
process
constitutional
to due
rights
equal protec-
tion because tax
per
burden
student fell
heavily
more
on
taxpayers in some communities than similarly situated
taxpayers
in surrounding communities); Horton Meskill, supra,
Courts are
qualified to determine issues of
equality and particularly unqualified to determine mini
mum educational standards. In Baker, the United States
Supreme
emphasized
Court
“[¡Judicial
standards
under the [ejqual [pjrotection [cjlause are well devel
oped and familiar, and it has
open
been
to courts since
the enactment of the
ourteenth [ajmendment to deter
[f]
mine, if on
particular
they
facts
must, that a discrimi
nation reflects no policy,
simply
but
arbitrary and
capricious action.”16 Baker v. Carr, supra,
428 funding equity often in school cases are
Thus,
claims
e.g.,
See,
San
the rational basis test.
decided under
Rodriguez,
Independent
411
v.
SchoolDistrict
Antonio
(1973);
2d
Paw-
44,
1278,
93 Ct.
36 L. Ed.
16
1, U.S.
S.
(R.I. 1995);
also
Sundlun,
v.
662 A.2d
60
see
tucket
Legislative
Levy, “Gunfight
vs.
the K-12 Corral:
R.
at
Litiga-
in the Kansas School Finance
Judicial Power
(2006);
U.
L.
1052
cf. Lobato
tion,” 54 Kan. Rev.
2009) (combining
(Colo.
218
State,
P.3d
362-63
equal protection
adequacy
elements of traditional
analysis,
concluding
challenge
ade-
to “the
system”
quacy
funding
is
[the state’s]
school
responsible
reviewing
justiciable
are
for
and that courts
rationally
funding
if it is
related
scheme to determine
“
legislature’s
‘a
to
constitutional mandate to
” system public
thorough
in
and uniform’
legislature’s
pronouncements).
own
accordance
financing legislation is
Connecticut,
In
educational
protection
strictly
equal
scrutinized under the
clause
part
designed
pursuant
three
test
evaluate
a
supports
financing plan,
whole,
as a
whether
support
equalizing
policy “providingsignificant
state
supra, Meskill,
Horton v.
to local education.”17
schoolchildren
Conn. 38. The claim that Connecticut
right
education, however,
a
does
have a
to “suitable”
equal
provisions
implicate
protection
our
require
and will
the court to articulate
state constitution
nonjusticiable
actually
present a
merits which render
claims
as
[related]
Carr,
question
supra,
political
227.
Baker v.
369 U.S.
itself.”
“First,
articulated the test in Horton III
follows:
We
disparities
expenditures
aprima
showing
facie
must make
disparities
jeopardize the
continue to
are more than de minimis
they
showing,
plaintiffs’
to education.
If
make that
fundamental
justify
disparities as
these
incident
burden then shifts to
state
justification
policy.
legitimate
If the
of a
state
state’s
the advancement
continuing disparities
acceptable,
demonstrate that the
the state must further
Meskill,
great
as to be unconstitutional.” Horton
are nevertheless not so
supra,
Conn. 38.
qualitative
a
quality
standards
minimum
edu
defining
complicated
cation.
task heavily
This is
laden with
policy implications that courts are ill
to han
equipped
dle,
many
shared jurisdictions.
conclusion
other
See, e.g.,
Adequacy
Coalition
&
Fairness
School
*158
Funding,
supra,
Chiles,
Inc.
tion,’ for the not the legislature, are determinations [T]hese Educa- courts, Nebraska Coalition decide.”); Heineman, Adequacy supra, & Equity tional transparent suggest conceit to Neb. would be (“It quality develop courts might whatever standards actually any from the would be derived constitution subject within the Nor is education a sense. meaningful ques- expertise Rather, field .... judiciary’s inherently quality policy is one of tion of educational practical considerations philosophical involving legislative administra- that call for exercise question of To hold that the tive discretion. subject judicial largely determination would
quality is voice deprive general the members all which close to the hearts of individuals in a matter *159 open public In an and robust debate contrast, .... system in political process of our of the lifeblood problems democracy. representative Solutions from a dia- quality emerge spirited should and their elected people between the logue [s]tate marks quotation omitted.]); representatives.” [Internal Effective, Make or “Suing to Schools Elson, see also J. Response a A to Make Bad Situation Worse: How Tex. L. Rev. 904-905 Ratner,” (1985) (“Ordering 63 unique prob- poses to become more effective schools force one knows how to educators lems because no . . . The methods for making students learn. make . . . neither nor schools effective are direct ineffective they must affect students’ minds objective, because behavior. Before a through the medium educator constructed, now- remedy can be certain successful how must be understood: mysterious causal relations adminis- learning, affects how school teacher behavior behavior, implemen- and how tration affects teacher administration reforms affects school tation of school behavior.”). and teacher
Moreover, jurisdictions some that have assumed the years have down in challenge bogged become for end- easily because there no litigation less are identifiable judicial by which standards to measure whether chil- dren are receiving Among suitable education. most examples may happen of what compelling judicial Jersey. absence of standards is the state New Jersey Supreme After the New Court struck down system in Cahill, state’s education Robinson v. funding 473, 515-20, 62 N.J. (Robinson 303 A.2d (1973) it I), comply because failed to with the constitutional mandate providing students with a “thorough id., efficient”18 education; 520; the court found itself controversy years embroiled thereafter as it judicial tried to avoid imposing standards and as the legislature develop struggled eliminating means disparities expenditures among districts vastly different I, resources.19 In Robinson interpreted court first “thorough efficient” clause; see footnote 18 of opinion; to mean the Jersey provides part: Legislature The New constitution in relevant “The support thorough shall for the maintenance and of a and efficient system of free schools for the instruction all the children in the ages eighteen years.” (Emphasis added.) State between the of five and N.J. Const, VIH, IV, para. art. 1. system protection equal did court not rule that the violated the clause of either the state the federal constitution because United Supreme rеjected equal protection challenge States Court had to the *160 public funding Independent Texas school in scheme San Antonio School Rodriguez, supra, 28, 37, (ruling District v. 411 U.S. 55 that Texas funding because, alia, school scheme was constitutional inter claim did not suspect class). involve fundamental As one commentator observed: Jersey Supreme New Court “[T]he [in Robinson modified the /] constitu ruling tional basis of the lower court’s in order to shield its decision from any possible Supreme hostile review the United . . . States Court. [T]he Jersey Supreme New Court became the first in the nation to base [thus] its opinion system funding public that the state’s schools was unconstitu solely upon provision tional (Cita [education state constitution.” the] emphasis omitted; original.) Lichtenstein, note, tions J. v. “Abbott Burke: Reaffirming Jersey’s Equal New Constitutional to Commitment Educational Opportunity,” 429, 20 L. (1991). Hofstra Rev. 439-40 n.42
432 needed in the con opportunity which is
“educational
his role as a citizen
equip a child for
temporary setting to
v.
Robinson
labor market.”
competitor
as a
decided that
515. The court then
Cahill, supra, 62 N.J.
awith
provided
all students
had
legislature
solely on the basis of
and efficient” education
“thorough
wealthier
expenditures
between
disparities
gross
no
it had “been shown
districts because
poorer
compliance with
measuring
for
other viable criterion
any
Id.,
Lacking
515-16.
mandate.”
the constitutional
remedy, the court
shape
proper judicial
to
standards
postponed
to do so and then
legislature
ordered
nearly
give
months
eighteen
issuance of the order
comply with
opportunity
a reasonable
legislature
Cahill, 63 N.J.
Robinson v.
directive.
the constitutional
v.
Dickey
nom.
65,
denied sub
306 A.2d
cert.
196, 198,
292,
L.
219
94 S. Ct.
38 Ed. 2d
Robinson,
976,
414 U.S.
act,
the court
failed
legislature
When the
(1973).
Cahill,
v.
67 N.J.
See Robinson
extended
deadline.
continuing
In the
absence
(1975).
433
any funds,
and local officials from
distributing
few
exceptions, beginning July 1, 1976,
limited
if the
provide
did not
full
legislature
the act
funding
Cahill,
159-61,
that date. See
v.
155,
Robinson
70 N.J.
457, modified,
464,
358 A.2d
N.J.
70
After the Robinson
in which
repeat
the court
edly gave the legislature additional time to act because it
was reluctant to develop
constitutionally
its own
based
standards,
there followed another line
in a
of cases
still
controversy
ongoing
challenging
constitutionality
of the school funding
ability
formula and its
“thorough
efficient education” for disadvantaged
living
“property-poor
students
school districts” with
special needs. Abbott ex rel. Abbott v. Burke, 100 N.J.
269, 279, 495
376
A.2d
see also
ex
(1985);
Abbott
rel.
Burke,
Abbott v.
117
51,
N.J.
434
Burke,
544,
v.
N.J.
960 A.2d
ex rel. Abbott
Abbott
Burke,
199 N.J.
ex rel. Abbott v.
Abbott
(2008);
cases,
In
the court considered
When
Supreme
the Kansas
Court chose to follow the
path
by
taken
New
it found
Jersey,
itself
similar
facing
problems for the exact same
lack
reason, namely, the
objective, quantifiable judicial
standards.
later
What
was described as a “constitutional
R.
confrontation”;
Levy, supra, 54 Kan. L.
1021; began
U.
Rev.
in earnest
Montoy
Supreme
when
the Kansas
Court ruled in
v.
State,
769,
Kan.
771, 773,
P.3d 306
(2005),
system
the state’s
financing
school
was unconstitu-
tional because it violated the
mandate
the Kansas
provide
constitution that
legislature shall
for
“[t]he
intellectual,
educational,
vocational
and scientific
improvement by establishing
and maintaining
schools”;
Const.,
1;
Kan.
art. 6, §
“suit-
making
provision
able
for finance of the educational
interests
Id.,
the state.
. . .”
art.
(b).
plain-
Rejecting
the
tiffs’ claim that the then existing school
scheme
funding
equal protection
raised
the court in Montoy
concerns,
equitable
concluded that an
and fair distribution of
was
funding
required
opportunity
for
every
constitutionally
student to obtain the
mandated
suitable education to
he
which
or she was entitled.
Montoy
State,
v.
supra,
Jersey
773. Just as the New
in the Robinson
court had done
case,
however,
the
Kansas court declined
develop
its own standards and
relied instead on the legislature, which commissioned
an independent
study “to define
level
of perfor-
mance for which
provided.”
must be
funding
Levy,
R.
supra, 1052. As
consequence
decision,
legislature
enacted school
finance legislation that
$142
appropriated approximately
million of additional
formula.
changed
funding
funding
for education
the new
Supreme Court ruled that
1022. The Kansas
Id.,
violation,
remedy
did not
the constitutional
legislation
study,
independent
on the
however, and, relying
a minimum
implement
legislature
ordered the
court
$285
level
funding
million above
increase
$142
million
year,
school
which included
2004-2005
already contemplated
funding
of additional
State,
817, 840,
Montoy
v.
279 Kan.
existing legislation.
order,
As a result of that
(2005).
case is stark plaint, previously noted, as I describes which, oppor- suitable educational components a “essential tunity” “appropriate” such as generalities, in vague administrators and teach- sizes, qualified” class “highly “adequate” an number of horns of instruction ers, with a “wide breadth” of “rigorous” curriculum proposes to measure whether a suitable courses,20 20Many merely is achievement a function have observed that student by economic, social, place school, at but is also influenced of what takes education has been attained student evaluating achievement, concept far removed from the plain meaning of article is devoid of eighth, § any I substantive content. would that the court suggest equipped “inputs” “outputs” is not to evaluate these lacking them with the content now determine whether Connecticut schoolchildren are provided plural- an being adequate education. The ity nevertheless concerns, stating dismisses such plaintiffs’ complaint complaints is similar to the in Seymour I seeks, and Horton because it among other declaratory remedies, relief, precise remedy “with the in being left the defendants the first instance.” The plurality plaintiffs’ also observes at that “the claims stage the proceedings] present nothing more than [of question a basic interpretation”; part constitutional I of plurality opinion; prema- and that it “will not let ture, and perhaps unfounded, concerns about the craft- ing of a remedy deprive plaintiffs day of their factors, unknowable, beyond perhaps cultural and other some unknown and system. Sturm, the control of the educational See J. Simon-Kerr & R. “Justi- ciability Adequacy Litigation: and the Role of Preserving Courts the Consti- Education,” Right tutional (2010) 6 Stan. J. C.R. & C.L. 110 and n.125 (courts increasingly skeptical greater produce funding will constitution- ally adequate systems exposed negative school when children are home environment). Thus, seeking to elevate to the of a status constitutional every student, a minimum level of achievement for ask perform impossible our schools to task. As the current President of the *165 States, Obama, recently explained United Barack in an address before a “ joint Congress: policies open oppor- session of will the doors of [Education tunity up they through for our children. it is But to us to ensure walk them. end, program policy In the there no or a can substitute for mother parent-teacher help father will conferences, or who attend those or dinner, TV, put away games, homework turn after or off the the video you speak just President, read to their I to father, child. not as a but aas say responsibility I begin when for our children’s education must at Obama, Congress home.” President Barack Address to Joint Session of (February 24, 2009), http://www.whitehouse.gov/the-press- available at ofñce/remarks-president-barack-obama-address-joint-session-congress(last 9, 2010). visited March plurality opinion. plural- 22 of the
court.” Footnote ultimately if ity that, even this court suggests further adequate adjudicate substantive content of an must claims have been consid- education, adequacy similar have states, our sister some of which articulated ered as Connecti- could serve guideposts standards that public when schools have determining cut in courts of a edu- constitutional mandate suitable satisfied the cation. that it will not allow plurality’s
I find the assertion remedy “deprive a to crafting about the concerns in day light in court” remarkable their judicial standards, it fact that is the existence ability the court’s to thereof, that determines lack of an effec- adjudicate matter, crafting including to the heart of the doctrine remedy. goes tive This effectively con- plurality’s rationale justiciability- The required point will be at some that this court cedes to define what “suitable” proceedings do actually if the defendants are unable to so means court, will not be however, “in instance.” This the first instance,” first that the declare, able even “in the does plaintiffs with system provide present without first add- opportunities” educational “suitable presently vague and to this ing substantive content court asking We thus are the trial open-ended concept. do, which is to define plurality do what the refuses Furthermore, educa- parameters. the constitutional necessarily from be borrowed tional standards cannot perceptions with different needs and other states quality of education entails what a minimum policy goals judgments regarding because claims for competing methods and how to resolve unique on typically are based limited state resources jurisdic- may not be relevant other local factors easily judi- Accordingly, there are no discoverable tions. court guide cial standards available *166 whether Connecticut schoolchildren have determining provided been with a education guarantees suitable predetermined outputs. certain
C
Nonjudicial Policy Determination
many
For
of the same reasons that I conclude that
textually
there is a
demonstrable commitment of the
issue to
a
legislature
judicially
lack of
dis-
coverable and manageable standards,
I also conclude
implicated
that the third
plaintiffs’
Baker factor is
claims, namely,
impossibility
of resolving them with-
out an initial policy determination of
kind clearly
nonjudicial
intended for
v. Carr,
discretion. See Baker
supra,
D Lack of Respect for a Coordinate
Branch of Government prudential considerations embodied in the final three Baker factors, which limit the challenges that a
440 in hear, justiciability also may against
court
counsel
an issue with
intervention to resolve
this case. Judicial
consequences demonstrates
potentially vast financial
a coordinate branch
respect
government
lack of
for
treading
prerog-
the court is
on a constitutional
because
the
legislature regarding
ative of
education and
the
authority to
funds.21
legislature’s
appropriate
exclusive
jurisdictions that
considered
noted,
As I
have
previously
has failed
alleging
claims
that the state
constitutional
required
have
the legisla-
to
a suitable education
provide
to
funding
drastic increases
education
ture
enact
For
satisfy
example,
constitutional mandate.
multiyear
adopted
plan
legislature
Kansas
for
appropriation
the annual
education
increased
period
dollars over a
of four
several hundred million
would be avail-
years
adequate funding
to ensure that
Kan.
22.
State, supra,
282
Simi-
Montoy
able. See
Jersey
compelled
was
larly,
legislature
the New
the state’s first income tax to
increased
institute
injunction
lift an
before the court would
funding
school
distributing
from
state and local officials
precluding
had
funding
until sufficient
any funds
education
N.J.
provided.
Cahill, supra,
Robinson v.
been
See
legislative
that affect basic
159-61. Court decisions
pose challenges
thus
funding
functions such as
practical
philosophical
implica-
well as
have serious
As
Florida
separation
powers.
for the
tions
wisely observed,
the courts are
Supreme Court
“[w]hile
competent
[legislature's
to decide whether or not
complement
local educa-
of state funds
distribution
sys-
uniform
expenditures
required
results
tion
legislature
Although
provision
is
vests the
there
no constitutional
power
appropriations,
legisla
have
to make
we
stated that “[s]uch
with the
readily
fourth,
power
inferrable from article
the Connecticut
[of
tive
treasurer,
concerning the
state
who shall receive
duties
constitution]
only
may
state,
belonging
as he
be
and disburse the same
all monies
Parker,
quotation
omitted.) Eielson (Internal
law.”
marks
directed
552, 561,
(1980).
In present cаse, the plaintiff, named the Connecti- cut Coalition for Justice in Funding, Education Inc., report published commissioned a in 2005 estimating $2.02 billion additional funding, an annual nearly percent increase of 92 over actual school fund- ing,22 required would have been in the 2003-2004 school year to ensure all school districts across the state had a reasonable chance of meeting standards that report necessary deemed Connecticut public schoolchildren awith suitable education.23 See 22 Assembly’s According analysis, to the General office of fiscal the annual appropriation higher public (i.e., colleges for other education than education year universities) for fiscal which would cover the 2003-2004 year, approximately billion, approximately percent $2.2 school was 16 gross budget $13.8 Analysis, annual billion. Office of Fiscal Connecti Assembly, Budget 2003-2005, p. cut General Connecticut State 13. This $2.02 funding purportedly adequate means that the billion increase in for a proposed report plaintiff education in the commissioned the named would staggering percent constitute funding 91.8 increase in school for that year, increasing appropriation approximately thus for education from percent nearly percent budget 26.7 of the total state for the 2004 year. fiscal plurality report premature The asserts that consideration of this content, plurality consisting “adjudica because its which the describes as tive, legislative, facts,” “subject judicial rather than cannot be notice opportunity hearing without plurality . . .” for . Footnote 20 of the opinion. plurality report point; misses the is relevant not because Inc., Estimating Associates, &
Augenblick, Palaich in Connecticut Adequate (June, of an Education Cost p. http://www.schooIfund- v available at 2005) (report), visited (last ing.info/states/ct/CT-adequacystudy.pdf may estimate have astounding Even this March 9,2010). exclusively on however, it focused low, because been and did not capital expenses rather than operating public similar standards in enforcing include the cost of schools, vocational magnet such as institutions ii. p. Moreover, Id., students. which also educate require adjustment will for its report figures notes that years. Id., p. in future iii. to calculate costs inflation report from the Thus, inescapable emerges fact that asking are this court order is that the priorities by rearrange spending its legislature elemen- appropriation the annual increasing by nearly over secondary percent tary and satisfy funding in order to the consti- present level Connecticut school- providing mandate of tutional *169 represents a This with a suitable education. children resources, a of limited state reallocation significant rather normally legislature rests the function courts. than the compli- is further present
The
in the
case
situation
has the
that none of the defendants
cated
the fact
educa-
authority
funding
to increase state
for
power or
any
not name
members of
complaint
does
tion.24
necessary
judicial
a
determination of
facts
therein are
the
contained
the
the
demonstrate that
themselves
case but because
facts
the
remedy they
require
recognize
significant
will
reallocation
that the
seek
of limited state resources.
merely
plaintiffs’
the
intent is
seek redistribution
To the extent that
department
already
legislature
appropriated
state
the
the
of funds
accomplished
towns,
whether this can be
and
it is unclear
naming
knowing
been violated and without
without
which statutes have
join
legislature
Although
plaintiffs’
failure to
as
towns
defendants.
subject
jurisdiction
implicate
parties
matter
not
the towns
does
Haven,
court;
Conn.
see Hilton v. New
the trial court or this
appear
proceedings
participation
(1996);
in the
would
E Risk of Multifarious Pronouncements
Unquestioning Adherence to
a Political Decision addition, judicial In intervention would the pos- raise sibility of pro- “embarrassment from multifarious nouncements” on educational matters as the courts and the legislature carry to define and out struggle their respective responsibilities. Baker Carr, supra, 369 U.S. 217. There is unquestion- also an “unusual need for ing apolitical adherence to already decision made”; id.; namely, the authority constitutional delegation to the legislature implement principle a free education, the obvious that to reason do otherwise would separation constitute a powers violation of the might even have the unfortunate effect of creating an adversarial relationship judicial between the legislative branches. When Supreme the Kansas Court accepted a similar what challenge, subsequently occurred was described as dramatic and sus- “[a] *170 penseful showdown between governmental heavy- two . . . weights kept many Kansans gripping the [that] edges of their seats each episode new unfolded . . . set in motion series of actions and reactions [and that] repercussions yet have not fully been [the] [of which] funding system event that the current school is deemed unconstitutional Meskill, 187, 198, under article 1. See Horton 187 Conn. 445 A.2d (1982). L. Rev. 1021. This Levy, supra, R. 54 U. Kan. realized.” happened what in other leam from has court should a burden that decline to shoulder jurisdictions and domain and clearly judicial fall within does not judges will turn courts, that, upon delegation into legislators. that plaintiffs’ I because conclude
Accordingly, respectfully I dissent. nonjusticiable, are claims v. STEPHEN TUNICK STATE OF CONNECTICUT 18262) (SC Rogers, Zarella and Js. Palmer, McLachlan, C. J., Katz, Vertefeuille,
Argued March officially released April 20, Emanuel, for appellant Richard (defendant). Weller, G. attorney, Ronald senior assistant state’s Smriga, were John whom, brief, state’s on Esposito, assistant state’s attor- attorney, and Pamela ney, appellee (state). for the
Opinion
defendant, Stephen Tunick,
was
PER CURIAM.
of sexual
convicted,
jury trial,
after
one count
Notes
XTV
all the views
public education],
important,
of this law
none is
none
[for
more
more
legitimate,
rendering
people
they
than that of
the safe as
are the ultimate
guardians
liberty"),
of their own
on
“Thomas Jefferson
Politics & Govern
ment,”
http://etext.virginia.edu/jefferson/quotations/
available
at
jeffl370.htm (last
9, 2010);
visited March
Letter
Thomas
from
Jefferson to
(1813) (“[t]his
John Adams
on education would
the mass of
[bill]
[raise]
people
ground
respectability
high
necessary
to the
of moral
to their
safety
orderly government”),
own
and to
“Thomas
on
Jefferson
Politics &
Government,”
http://etext.virginia.edu/jefferson/quotations/
available at
jeffl370.htm (last
9, 2010);
McDuffy Secretary
March
visited
see also
of
Education,
545, 619-20,
the Executive
415 Mass.