Pereira v. State Bd. of Educ.Pereira v. State Bd. of Educ.
Maria PEREIRA et al.
v.
STATE BOARD OF EDUCATION et al.
Robert Walsh et al.
v.
State Board of Education et al.
Laurayne Farrar-James et al.
v.
Board of Education of the City of Bridgeport et al.
Supreme Court of Connecticut.
*628 Norman A. Pattis, Bethany, with whom was Kevin Smith, New Haven, for the appellants in the first case (named plaintiff Maria Pereira et al.).
Michele C. Mount, with whom was John Kardaras, for the appellants in the second case (named plaintiff Robert Walsh et al.).
Josephine Smalls Miller, with whom, on the brief, was Atiya Sample, for the appellants in the third case (named plaintiff Laurayne Farrar-James et al.).
Mark F. Kohler, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Maura Murphy Osborne and Michael K. Skold, assistant attorneys general, for the appellees (named defendant state board of education et al.).
John P. Bohannon, Jr., for the appellees (named defendant board of education of the city of Bridgeport et al.).
Steven D. Ecker, with whom, on the brief, was Peter M. Haberlandt, Hartford, for the appellees (defendant Robert Trefry et al.).
*629 John B. Orleans filed a brief for Bridgeport Education Fund, Inc., et al., as amici curiae.
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.
ZARELLA, J.
The dispositive issue in this reservation is whether the state board of education (state board), violated
I
The following undisputed facts and procedural history are relevant to our analysis. The state board has designated the school district of the city of Bridgeport (local school district) a low achieving school district under
The local board was established by the charter of the city of Bridgeport (charter), with all the powers of and duties imposed on boards of education under Connecticut and federal laws. See Bridgeport Charter, c. 15, § 2. Pursuant to the charter, the local board consists of nine members, who must be electors of the city of Bridgeport and serve four year terms. Id., at § 1(a). Elections for the local board are staggered so that, every two years, either four or five members of the local board are elected. See id., at § 1(b) and (c). The charter further provides that, in the event of any vacancy in the membership of the local board, the remaining members will elect a new member, of the same political party as the vacated member, for the balance of the term. Id., at § 1(d).
Prior to August 5, 2011, the local board was composed of Barbara Bellinger, the president, Leticia Colon, the vice president, Delores Fuller, the secretary, and Nereyda Robles, Thomas Cunningham, Thomas Mulligan, Maria Pereira, Bobby Simmons and Sauda Baraka. All members were elected by the electors of the city of Bridgeport. In 2011, four local board members, namely, Bellinger, Fuller, Robles and Cunningham, were at the end of their four year terms, and their positions were set to be filled no later than the November, 2011 Bridgeport municipal general election. The other five members, *631 namely, Colon, Mulligan, Pereira, Simmons and Baraka, had another two years remaining on their terms as of 2011.
In 2010, some members of the local board had sought and completed certain training offered by the Connecticut Association of Boards of Education. The first training session, which was held on March 5, 2010, focused on the roles and responsibilities of the local board and its members, and provided certain tools and techniques for holding more productive local board meetings. All local board members except Simmons and Baraka attended this session. The second training session, which was held on October 5, 2010, focused on the state Freedom of Information Act and Robert's Rules of Order. All members except Simmons, Baraka and Robles attended this session. Neither of these training sessions was mandated or required by the state board.
Beginning in January, 2011, and continuing through July 5, 2011, local elected officials in the city of Bridgeport consulted with either or both the chairman of the state board, Allan B. Taylor, and then acting commissioner of education, George A. Coleman, regarding the possibility of the state board reconstituting the local board following a formal request by the local board. Local board members Simmons, Baraka and Pereira were not aware of, informed of or asked to participate in these communications any time prior to July 1, 2011.
On Friday, July 1, 2011, at 4:55 p.m., a notice of a special meeting of the local board, to take place on Tuesday, July 5, 2011, at 6 p.m., was issued by Fuller. The agenda for the special meeting, as provided in the notice, included a discussion and vote on two resolutions concerning requests and recommendations to the state board. Copies of both resolutions were attached to the notice. The local board convened the special meeting on July 5, 2011, with all nine members present. By a vote of six to three, the local board passed the resolution concerning the reconstitution request (resolution), with local board members Baraka, Pereira and Simmons voting against it. The resolution provided, inter alia, that the local board (1) was unable to function effectively, (2) could not properly and effectively oversee the local school district and meet its improvement plan, and (3) had received training to help it function more effectively as a board but that this training had not enabled it to meet its responsibilities and, further, that additional training would not be helpful.[4] In light of these circumstances, the resolution requested that the state board authorize the commissioner, pursuant to
The following day, July 6, 2011, the state board held its regularly scheduled monthly meeting, which was open to the public. After the meeting was called to order, the *632 state board voted unanimously to add the local board resolution to its agenda. During the meeting, the state board received public comment regarding the resolution and then voted, five to four, to authorize the commissioner to reconstitute the local board. On July 14, 2011, Coleman sent a letter to Bellinger, the local board's president, copying all other local board members and giving notice of his intention to reconstitute the local board pursuant to the authority granted to him by the July 6, 2011 vote of the state board. On August 5 and 16, 2011, Coleman appointed seven new members to the local board: Robert Trefry; Kenneth Moales, Jr.; Michelle Black Smith-Tompkins; David Norton; Jaqueline Kelleher; Judith Bankowski; and Hernan Illingworth (reconstituted board). The effect of these appointments was to remove all previous members of the local board from their positions. By operation of
Shortly after Coleman's July 14, 2011 letter to the local board, former local board members Pereira and Simmons filed an action in the Superior Court against the state board, Coleman, Bill Finch, the mayor of the city of Bridgeport, John Ramos, the superintendent of schools for the city of Bridgeport, former local board members Bellinger, Colon, Fuller, Robles, Cunningham and Mulligan, and reconstituted board members Trefry, Moales, Smith-Tompkins, Norton, Kelleher, Bankowski and Illingworth. Around the same time, Robert Walsh, George Pipkin and Pertrinea Cash-Deedon, electors of the city of Bridgeport who had submitted over 3000 petition signatures in order to qualify as candidates for the local board, filed an action in the Superior Court against the defendants in the Pereira case, as well as Santa I. Ayala, democratic registrar of voters of the city of Bridgeport, and Alma L. Maya, the town clerk of the city of Bridgeport. Also around the same time, Laurayne Farrar-James and Shavonne Davis, residents of the city of Bridgeport, Barbara Pouchet, resident of the city of Bridgeport and potential candidate for the local board, and Bakara, former member of the local board, filed an action in the Superior Court against the local board, Ramos, Bellinger, the state department of education, Coleman and Taylor.[5]
The complaints in all three actions alleged state statutory and constitutional violations, and one or more of the complaints sought, inter alia, (1) a declaratory ruling that
The three cases then were transferred to the judicial district of Waterbury, Complex Litigation Docket. Recognizing the need for an expeditious resolution of the underlying issues, the parties requested that the trial court reserve the action for the advice of this court pursuant to
II
A
The resolution of this reservation, and the underlying case, is determined by the language and application of
The proper application of
We begin with the foundational principle that, when interpreting statutes, "[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that meaning,
We first consider the relevant language of
"The legislature, rather than phrasing the [statutory provision] in affirmative terms unaccompanied by negative words, as is often done with directory provisions. . . instead chose . . . negative phrasing. . . . The legislature's use of such negative terminology suggests that it intended [the statutory provision] to be mandatory." (Citations omitted; internal quotation marks omitted.) Santiago v. State,
Because it is necessary to our understanding of the training requirement, we also review
Particularly significant to an understanding of the operation of
Thus, when
None of the parties disputes the mandatory nature of the training requirement in
We cannot confidently conclude, on the basis of the language of the statute alone, whether the provision is waivable, and we previously have held that mandatory statutory provisions sometimes may be waived. See, e.g., Stewart v. Tunxis Service Center, supra,
Before proceeding, we pause briefly to reiterate the issue before the court in this reservation and, thus, the scope of our holding. The statutory scheme at issue in this reservation is embodied in
With that in mind, we turn first to remarks made by legislators during the House floor debate concerning the proposed amendment to
In addition to the foregoing remarks, we find elucidating certain relevant testimony and remarks from an education committee hearing regarding the proposed amendment to
During the same education committee hearing, Representative Deborah Heinrich raised her own concern about providing the state board with the authority to reconstitute local boards of education: "I'm a little confused about how one can reconstitute an elected board. And maybe I'm missing something in here, but the people elected their board and so then . . . the [s]tate [d]epartment of [education] would then turn around and say, [y]ou're no longer elected?" (Emphasis added.) Id., at pp. 1137-38. Shortly thereafter, Representative Paul Davis questioned *641 Richard Murray, a member of the board of directors of the Connecticut Association of Boards of Education, whether it was "[that association's] position . . . [that it] feel[s] okay with some sort of language that would permit the [c]ommissioner to [reconstitute a local board]?" Id., at p. 1139. Murray responded: "I think in extreme circumstances."[18] (Emphasis added.) Id.
From the foregoing testimony and remarks, we distill three general principles of legislative intent behind
On the basis of the foregoing principles, we conclude that the legislature intended the training provision to serve the following purposes. First, requiring training prior to authorizing reconstitution provides notice to a local board of educationand, theoretically, to the electors of that local boardthat the state board is considering authorizing reconstitution. Second, and related to the first, the training itself serves a substantive and remedial purpose, by providing the local board of education with an opportunity to prevent its reconstitution by successfully completing training and thereby demonstrating to the state board that it can operate effectively and that the extreme measure of reconstitution is unnecessary. Viewed this way, the training provision is premised on the importance of maintaining the continued local operations of a democratically elected board of education, as well as on providing certain due process protections.[20] Third, and most importantly, the state board does not have the authority to authorize reconstitution until it first requires the local board to undergo and complete training in accordance with
In that connection, we highlight the concern, expressed by numerous legislators and other interested parties,[21] that granting the state board the authority to *643 reconstitute local boards of education represented a significant enlargement of the power previously held by the state board. As McQuillan testified, prior to the enactment of
Additionally, the legislative history makes clear that, to the extent that the training provision serves a protective function as well, it does not exist only for the protection of the local board of education, as the defendants contend. Rather, the protection benefits the local electors of that local board and the democratic process as a whole. See, e.g., 53 H.R. Proc., Pt. 14, 2010 Sess., p. 4581, remarks of Representative Giuliano (noting that it would be "[a] significant usurpation of powers" to "dissolve a duly-elected, by the people, [b]oard of [e]ducation" [emphasis added]).[22] Certainly, the training requirement confers some benefit on and protection to a local board of education. Nevertheless, it is apparent that the training requirement was meant to serve as a check on the state board's power, with an added benefit that it serves as a protection of the democratic will of the people who elected their local boards of education.[23] Accordingly, the legislative history supports the conclusion that the legislature did not intend the training requirement to be waivable by any party, including a local board of education seeking reconstitution.
Our conclusion is further buttressed by the longstanding policy in Connecticut of local, rather than state, control over schools and school districts, as evidenced in the statutory scheme governing local and regional boards of education. See Interlude, Inc. v. Skurat,
We cannot ignore the fact that the foundational issue, both with regard to
In sum, "[t]he state's responsibility for education is distributed through the. . . statutory framework. The state board is charged with the broad and general power to supervise and control the educational interests of the state." (Internal quotation marks omitted.) New Haven v. State Board of Education,
Indeed, this court has noted that the state board and local boards of education occupy distinct roles within the administration of Connecticut's public education system.[25]
In that regard, the reconstitution authority found in
We are nonetheless cognizant that the statutory scheme embodied in
In light of the foregoing discussion, we conclude that the legislature did not intend
B
Notwithstanding the foregoing, the defendants rely on the proposition that both constitutional and statutory rights are waivable.[29] E.g., Rosado v. Bridgeport Roman Catholic Diocesan Corp.,
In order to adequately address and dispose of the defendants' argument, we begin by briefly reviewing the doctrine of waiver, with particular focus on the principles espoused in the cases on which the defendants rely. "Waiver is the intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst,
We begin by noting that the state board is a statutorily created state agency; see
That § 10-223e (h) conveys to the state board the power to authorize the reconstitution of a local or regional board of education is clear and not subject to debate, as the preceding analysis demonstrates. Section 10-223e (h) allows the state board itself to authorize reconstitution, provided that the state board first requires the local board of education to undergo and complete training. In order to determine whether the state board properly authorized reconstitution of the local board in the present case, we must identify the scope of the authority granted by the statute.
We briefly reiterate that the stated and overarching purpose of § 10-223e is to improve the quality of education available to students in Connecticut's public schools by the improving accountability and performance of schools and school districts. See
Simply put, the state board cannot reconstitute a local board of education without first requiring the local board to undergo and complete training. Requiring training is therefore a condition precedent to the state board's ability to authorize reconstitution. In other words, the state board lacks the power to authorize reconstitution until it first has required the local board to undergo and complete *651 the training contemplated by
*652 Accordingly, we conclude, on the basis of the language and purpose of
While this completes our analysis of
Moreover, although it is generally true that privately held statutory and constitutional rights are waivable, not every mandatory statutory provision can be waived, even by the party who benefits or is protected under the statute. See 28 Am.Jur.2d, supra, at § 200, p. 667 ("Waivers of statutory rights are not favored. . . . Parties may not waive statutory rights [when] a question of public policy is involved. Likewise, a law established for a public reason cannot be waived or circumvented by a private act or agreement."); see also Santiago v. State, supra,
We previously have held that "[o]ne cannot waive a public obligation created by statute . . . but he may waive a statutory requirement the purpose of which is to confer a private right or benefit." (Citation omitted.) Hatch v. Merigold,
"The public interest may not be waived. [When] a law seeks to protect the public as well as the individual, such protection to the state cannot, at will, be waived by any individual, an integral part thereof. The public good is entitled to protection and consideration and if, in order to effectuate that object, there must be enforced protection to the individual, such individual must submit to such enforced protection for the public good. . . . Accordingly, a statutory right conferred on a private party, but affecting the public interest, *655 may not be waived or released if such waiver or release contravenes the statutory policy." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Application for Petition for Writ of Habeas Corpus by Dan Ross,
We believe that the training requirement in § 10-223e (h) embodies a public obligation that, through the act of the General Assembly, inures to the benefit of the citizens of Connecticut as a whole. We reach this conclusion in view of the fact that this provision is meant to ensure that, if it is necessary to reconstitute a local board of education, reconstitution will occur in a methodical, deliberate and transparent manner. In this sense, the provision creates a process that benefits no person or group individually. It benefits the citizens of this state by mandating a transparent process, it protects the local electors and the democratic process, and it furthers a policy of maintaining a locally elected board of education to the maximum extent possible, even when that board is *656 subjected to increased state supervision and control. In that sense, the training provision serves, at the very least, the twin purposes of providing notice that the state board is considering authorizing reconstitution of a local board and of affording that local board another chance, following training, to demonstrate that it can operate effectively without the need to resort to the severe measure of reconstitution. At a minimum, the goal that the legislature envisioned through the training requirement consists of protecting the democratic process by providing locally elected boards of education with every possible opportunity to become more effective, without the need to resort to the extreme action of reconstitution. These considerations support our conclusion that the training provision is a public obligation and sufficiently distinguishable from the time limit provision that was at issue in Stewart, or, for that matter, the arbitration provision at issue in Local 884, Council 4, AFSCME, AFL-CIO.[38]
In sum, because the training provision serves the public interest of Connecticut as a whole, we are not persuaded that the local board, even as a democratically elected representative body of the electors of the city of Bridgeport, could act to waive the provision. Put differently, the legislature, as the representative body of the citizens of Connecticut, has determined that requiring local boards of education to undergo training before the state board can authorize their reconstitution is in the public interest. Because the legislature has determined that it is in the interest of the state as a whole to have a methodical, deliberate and transparent process for reconstitution, it simply cannot follow that the local board could waive, on behalf of the electors of the city of Bridgeport, this statewide public obligation.
In light of the defendants' failure to provide this court with any reasonable justification in support of their waiver argument, we follow our previous decisions and decline to extend the doctrine of waiver to a mandatory statutory provision that exists for the benefit of the public rather than a specific individual. Accordingly, we conclude that the training requirement in § 10-223e (h) is both mandatory and not subject to waiver.[39]
*657 III
The foregoing analysis dispenses with the bulk of the arguments proffered by the defendants in this reservation. We address only one additional argument in more detail, as we believe doing so will further emphasize why the training provision in § 10-223e (h) is not waivable. In essence, the defendants claim that this court should not construe the training requirement to be so important as to override a resolution of a local board seeking reconstitution by the state board. As we understand this claim, the defendants are arguing that, once a local board has reached its own determination that it is operating dysfunctionally, has attempted to undergo its own training, and has concluded that it would not benefit from the training envisioned by § 10-223e (h), imposing the training requirement on the local board would elevate form over substance.[40] We disagree with this claim.
*658 We begin with the legislative intent and policy rationale behind the training requirement. For largely the same reasons that we discussed in connection with the defendants' waiver argument; see part II of this opinion; the statute's legislative history and significant policy considerations germane to Connecticut's education system compel the conclusion that the training requirement is not a mere procedural speed bump for the state board to overcome prior to authorizing the commissioner to reconstitute a local or regional board of education.
Additionally, the defendants' argument in this regard lacks merit for two other reasons. First, if we accepted the defendants' argument that the training requirement should be dismissed as being unimportant or futile, at least when a local board of education has undergone some sort of arguably relevant training, we would be concluding, essentially, that a public agency such as the state board and the public officials that compose it have no good faith obligation to fulfill statutory requirements that are directed at them. This is contrary to common sense and, more importantly, the oath of office that public officials must take. See
Even if we were to accept the proposition that, at some point, requiring training *659 would be futile,[41] in the present case, the state board and local board's determination to that effect was premature. Neither the state board nor the local board could have adequately assessed whether training would be futile because (1) neither board knew what type of specific training the local board would receive, as the state board never had required training of any local board of education prior to authorizing reconstitution in this case, and (2) the local board members, having never been in the position of potentially having their board be reconstituted, were unable to know whether training would be helpful in that circumstance. Simply put, the defendants' futility argument does nothing more than beg this court to accept the premise that a public official need not attempt to carry out his or her responsibilities. Even more troublesome is that, taken to its logical end, the defendants' argument would allow the state board to reconstitute local boards of education without requiring any training at all. As we have stated elsewhere in this opinion, this clearly is not the result intended by the legislature, which sought to provide protections to the public by requiring the state board to fulfill certain statutory obligations prior to authorizing reconstitution.
Additionally, and on a more fundamental level, the claim that the training requirement is effectively not a requirement for the state board ignores the plain language of the statute and well accepted principles of statutory construction. If the legislature did not intend for the state board to require local boards of education to undergo and complete training before the state board authorizes their reconstitution, it would have used different language or omitted that language from the statute altogether. The fact that the legislature inserted the training requirement and directed that requirement to the state board strongly suggests that (1) the legislature intended that the state board would determine when it would require the local board to undergo and complete training, and (2) only this specific type of training would give the state board the authority to authorize reconstitution of the local board.[42] Moreover, neither the plain language *660 of the statute nor the legislative history indicates that an exception to the training requirement exists if the state board were to conclude that such training would be unnecessary or futile, and we do not believe it is appropriate to read such an exception into the statute in light of the record presented by this case. Cf. Forest Walk, LLC v. Water Pollution Control Authority,
On the basis of the legislative history, policy considerations and the well-founded principle that we presume that the legislature acts intentionally when it includes certain words or provisions within a statute; see, e.g., Housatonic Railroad Co. v. Commissioner of Revenue Services,
In emphasizing the different roles of the state board and local boards of education, we do not suggest that the state's role is limited, especially with regard to low achieving schools or districts, or that the state does not have the ultimate responsibility of providing appropriate educational opportunities. Indeed, as we previously noted, the state board's supervisory role includes many responsibilities that concern the day-to-day administration of low achieving schools and districts, and the state board possesses broad powers to carry out those responsibilities. As the foregoing analysis demonstrates, however, Connecticut has not entirely abandoned a policy of delegating the vast majority of educational administration to local boards of education, even with regard to local oversight of low achieving schools and districts. Section 10-223e (h) must be construed in light of that policy. At a minimum, there is no reasonable basis for concluding that the legislature intended that § 10-223e (h) would upend the balance of operations and control between the state board and local boards of education in any circumstance other than the specific one envisioned by the statute. There is no suggestion that the legislature expects local boards of education to seek out reconstitution themselves. Instead, the legislature empowered the state board, and the state board only, with the power to authorize reconstitution, but that authority is circumscribed to the extent that the state board must first require the local board of education to undergo training. Neither the statute nor legislative history provides that local boards of education may make their own determination as to whether training or reconstitution is appropriate.
Thus, the fundamental distinction between the majority opinion and the dissent is not the concern for the educational needs of Bridgeport students. Rather, it is our answer to the question of whom the training provision is intended to protect. In light of the language of the statute and the relevant legislative history, we do not view the training provision as protective of any particular individual or group. The *661 dissent, however, without any analysis or authority to support its position, claims that it protects the local board. Because we are unwilling to accept such an assumption when there is authority to the contrary, we reach an outcome different from that of the dissent.
For the foregoing reasons, we conclude that the state board's failure to require the local board to undergo and complete training, as required by § 10-223e (h), rendered void the state board's authorization to the commissioner to reconstitute the local board. Accordingly, we answer the first question presented in this reservation in the affirmative.[43] We decline to answer the remaining four questions because our answer to the first disposes of all other underlying issues.
The case is remanded to the trial court with direction to set a date for a special election for the local board. The special election will include all four seats that would have been filled on the basis of voting in the 2011 Bridgeport municipal elections. Because not all former local board members can be reinstated at this time, as some of their terms of office have expired, and because a local board must continue to function until a new local board can be elected, we stay the effect of our decision pending final certification of the special election results by the town clerk. Therefore, the trial court shall direct that the seven current members of the reconstituted board remain in office until the special election has been completed. At that time, the trial court shall reinstate the five members of the local board whose terms of office have not expired, to serve along with the four newly elected members.
The answer to the reserved question of whether the state board of education violated § 10-223e (h) when it authorized the commissioner of education to reconstitute the board of education of the city of Bridgeport is: Yes. The case is remanded to the trial court with direction to proceed in accordance with this court's directive in the preceding paragraph.
No costs shall be taxed in this court to either party.
In this opinion ROGERS, C.J., and NORCOTT, McLACHLAN, EVELEIGH and HARPER, Js., concurred.
McLACHLAN, J., concurring.
I agree with and join the well reasoned majority opinion. I write separately, however, to highlight a significant point addressed by Justice Harper. In his concurrence, he points out the necessity of parental and community involvement in order for our public schools to be successful. I heartily agree. No matter how magnificent the facility, and regardless of the credentials and commitment of the teachers, if the school system is not supported by the parents and the community at large, the children, when they come to school, cannot be engaged fully in the educational process. Therefore, I agree with Justice Harper that anything that may alienate parents and the community from the schools leaves students without *662 the support and encouragement that they need to succeed.
HARPER, J., concurring.
A closely divided state board of education (state board) voted to reconstitute the board of education of the city of Bridgeport (Bridgeport board) without requiring that board to complete training that the legislature has mandated as a precondition to reconstitution.[1] See
In writing separately, I wish to highlight my disagreement with the dissent's suggestion that permitting a local board of education to waive preconditions to state intervention necessarily honors the principle of local control and best advances the educational interests of schoolchildren in low performing schools. I also wish to bring to light certain concerns that the plaintiffs[2] have raised, in their complaints and in arguments to this court, regarding allegedly improper motives for the reconstitution resolution and the deprivation of the Bridgeport electorate's voice in their own children's education. These concerns give context to the plaintiffs' claims and explain the deep passions that motivated their opposition to reconstitution. In acknowledging these issues, however, I am mindful that the plaintiffs agreed not to litigate the merits of all of their allegations in favor of a more expeditious resolution of the case by reserving questions of law to this court and stipulating to the limited facts necessary to resolve those legal issues. It is on the basis of this stipulation and attached exhibits[3] that we ultimately must render our decision.
I first note that the resolution adopted by six members of the Bridgeport board to forgo training cannot logically be separated from the intended effect of that decisionto displace duly elected board members through a state created reconstituted board. Nothing in the record suggests that the state or the state board had considered reconstitution prior to the state *663 board's receipt of the Bridgeport board's resolution, despite serious deficits in the Bridgeport schools for seven years.[4] The record plainly manifests that, in acting favorably on the resolution, the state board relied on representations by certain Bridgeport board members and city officials that, due to fundamental disagreements between three board members and the majority of the board that resulted in "dysfunction," reconstitution was the only possible course of action and that such action must be taken immediately.[5] These claims were accepted by a bare majority of the state board, despite the fact that elections were imminent for three seats on the Bridgeport board and that the Bridgeport charter provides a mechanism to fill school board vacancies should others choose to step down. See Bridgeport Charter, c. 15, § 1(d). The three members of the Bridgeport board who opposed the resolution made clear their interest in continuing to serve, their belief in their capacity to fulfill their obligations, and their view that those board members who felt otherwise should act consistently with the democratic process by either declining to seek reelection or relinquishing their seats. The only members of the community who spoke at the meeting opposed reconstitution generally or the lack of transparency in the process, a subject I later address. Therefore, although the Bridgeport board's reconstitution resolution legally could not, in and of itself, displace duly elected board members, it is appropriate to consider the resolution as the cause of that action.
In light of the actual effect of the Bridgeport board's purported waiver, I take issue with the dissent's assumption that the legislature intended to permit the Bridgeport board to waive statutorily mandated training and that such a result necessarily is consistent with the principle of local control and is in the best interests of the children of the Bridgeport public schools. There can be no doubt that "[d]irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society. . . ." Wright v. Council of Emporia,
Local control over education fosters and affirms parental involvement, thus comporting not only with deep civic values, but also in important respects with the interests of children as well. In this context, reconstituting a local board of education is an extraordinary act that necessarily diminishes local control into the future and, if imposed against the will of a majority of parents, threatens to undermine sustained parental involvement in the education system.[8] The dissent, in considering a local board of education's act of waiver only as an isolated political act by a duly elected representative body, wrongly concludes that "we honor the principle of local control by permitting a local board [of education] to waive the training afforded by
It bears emphasizing that the children of this state have a constitutional right to an adequate and equal education. I seriously doubt, however, whether anyone on either the Bridgeport board or the state board considering reconstitution, with or without state mandated training, operated under the illusion that such a measure would be a panacea for the serious and *665 long-standing deficits in the Bridgeport public school system. In mandating training prior to reconstitution, however,
I also take note of the fact that, in their complaints and in arguments to this court, the plaintiffs have leveled accusations that certain members of the Bridgeport board colluded with the mayor, superintendent, private parties and certain members of the state board to engineer a takeover of the Bridgeport board for purely political purposes. They suggest that these actions were undertaken for the purpose of ousting a vocal minority who had opposed the mayor's policies. I underscore that these allegations are unproven; they are not part of the stipulated facts. As a general matter, this court assumes that public officials are acting in good faith. Kinsella v. Jaekle,
I observe, however, one adverse inference in support of the plaintiffs' allegations that readily can be drawn from the stipulated facts and exhibits submitted as part of that stipulation, namely, that the reconstitution process was undertaken in a manner that not only limited transparency, but intentionally limited opportunity for community involvement and for board members to marshal opposition. Only certain Bridgeport board members were privy to private discussions about reconstitution that took place many months before the resolution was adopted requesting that action. Thereafter, at 4:55 p.m. on Friday, July 1, 2011, just before a three day holiday weekend was to commence, notice was issued for a special meeting of the Bridgeport board to be held at 6 p.m. on Tuesday, July 5, to consider the reconstitution resolution. At its regularly scheduled meeting on the morning of July 6, the state board voted in favor of adding the reconstitution resolution to its agenda and acted on that issue later that same day. Thus, essentially two business days lapsed between the initiation and the resolution *666 of the reconstitution issue. Although a handful of Bridgeport citizens spoke at the board meeting in opposition to reconstitution, it seems likely that the speed at which this action was finalized deprived members of the community who hold passionate views for or against the wisdom or propriety of reconstituting their duly elected board the opportunity to participate in this process. Although one member of the state board strongly advocated for a delay in voting on reconstitution in order to give the citizens of Bridgeport sufficient opportunity to voice their views on the matter, that suggestion did not garner support.
In making these observations, I am mindful that the plaintiffs have not advanced a claim that these procedures violated the public hearing requirements of the Freedom of Information Act,
Undoubtedly, it is for the legislature, not this court, to determine whether it is good policy for the state to reconstitute a duly elected or appointed local school board. Nonetheless, we need not be blind to the implications of the lawful exercise of authority. Poor urban districts like Bridgeport are among the state's longest, low achieving school districts. I cannot help but note that parents in such districts often are cited as being less involved in their children's education than their more affluent suburban counterparts. One reason posited for this difference is that "low-income families often perceive themselves as outside the school system. . . ." P. McDermott & J. Rothenberg, "Why Urban Parents Resist Involvement in their Children's Elementary Education," 5 The Qualitative Report (October, 2000) p. 1, available at http://www.nova.edu/ssss/QR/QR5-3/mcdermott. html (last visited February 28, 2012) (copy contained in the file of this case with the Supreme Court clerk's office). Thus, it has been recommended that "[s]chools serving low income, ethnically diverse neighborhoods . . . must make greater efforts to welcome families, because those are the parents who often feel excluded because of differences in their ethnicity, income, and culture." Id., at p. 2. Failure to provide procedures that allow for optimum community involvement in a decision of the magnitude of reconstituting a locally elected board of education would seem to reinforce the perception of parents in such districts that they are outsiders. I feel confident that the legislature would not intend such an effect.
In sum, I conclude that the state board violated
I respectfully concur.
PALMER, J., dissenting.
Acknowledging their inability to fix a school system that has failed to meet minimum state standards for seven consecutive years, Bridgeport's mayor, superintendent of schools, and school board formally requested that the state board of education authorize the commissioner of education to reconstitute the Bridgeport school board,[1] as authorized by
Today, the majority deals the schoolchildren of Bridgeport a major setback, striking down the state board's action without any legitimate basis for doing so. The majority holds that the Bridgeport board was not free to waive the training provision of
Not only does the majority disregard established principles of law, relying instead on superficially favorable language that it lifts from an assortment of largely irrelevant opinions, but the majority also invokes a nonexistent principle of statutory interpretation to rationalize ignoring the legislative history of
In analyzing the training provision of
It seems that what really drives the majority opinion is a general sense of unease with Connecticut's dramatic shift away from a policy of local control of failing school systems and a lack of affection for the state's newfound statutory power to reconstitute a local school board unable to stem the tide of chronic failure. Expressly agreeing with Justice Harper's critical view of the reconstitution authority, the majority proclaims that "local control over education fosters a beneficial and symbiotic relationship between the parents, students and local school administrators, a relationship that should not be lightly disregarded." Footnote 24 of the majority opinion. Yet this case simply is not about whether permitting the state board to reconstitute failing school districts *669 is good public policy.[3] That is a question already answered by the legislature, and answered resoundingly.[4]
In sum, it is clear that a local board of education is competent to waive the protection of
I
Before explaining my disagreement with the majority's waiver analysis, I find it necessary to discuss in some detail this case's historical and statutory backdrop.[6] The majority pays scant attention to this important context, which amply reflects the state's dominant role with respect to failing school districts. This context makes it crystal clear that
I begin, then, by describing the sad state of affairs confronting Connecticut's poorest schoolchildren. It was this state of affairs that the legislature sought to rectify when it enacted a statutory scheme enabling the state to intervene in the educational affairs of municipalities like Bridgeport, whose schools chronically have failed to deliver on this state's constitutional obligation to provide an adequate public education. Of all fifty states, Connecticut has the largest "`achievement gap,'" that is, the gravest disparity between the educational performance of "students who are from low-income families compared with those from more affluent circumstances."[10] Connecticut Commission on Educational Achievement, "Every Child Should Have a Chance to Be Exceptional. Without Exception. A Plan to Help Close Connecticut's Achievement Gap" (2011) p. 7. A commission established by former governor M. Jodi Rell to study Connecticut's achievement gap recently reported that fourth and eighth grade low income students are on average about three grade levels behind fourth and eighth grade non-low income students in reading and mathematics; id.; at 42 percent of third through eighth grade low income students score at "goal level" in reading, compared with 80 percent of their non-low income peers; id., at p. 8; 18 percent of tenth grade low income students score at "goal level" in reading, compared with 57 percent of their non-low income peers; id.; only 60 percent of Connecticut's low income students graduated from high school in 2009, compared with 86 percent of their non-low income peers; id.; and, even among Connecticut students who manage to graduate from high school and to go on to college, more than one half of these students entering Connecticut's public two year and four year colleges require immediate remediation in mathematics or English. Id.
The plight of Connecticut's poorest schoolchildren is unusually dire in Bridgeport. As the members of the reconstituted Bridgeport board note in their brief to this court, a vivid snapshot of Bridgeport's education crisis is its dropout rate. For the statewide high school graduating class of 2008, the cumulative dropout rate was 6.6 percent, meaning that one out of fifteen members of the class of 2008 withdrew along the four year path to graduation. Connecticut Department of Education, Data Bulletin: High School Dropout Rates in Connecticut (November 2009) p. 4. In the Bridgeport school district, by contrast, the cumulative dropout rate for the class of 2008 was a staggering 23.3 percent, that is, nearly one out of every four students. Id., at p. 10. This dropout rate is deplorable, even in comparison with Connecticut's *672 other underperforming school districts. For the class of 2008, the dropout rate for students in the Bridgeport school district was more than double that in Hartford (11.9 percent); id., at p. 11; and substantially higher than that in New Haven (15.7 percent). Id. Similarly deplorable is the annual high school graduation rate in the Bridgeport school district, that is, the percentage of high school seniors who actually graduate in a given year. On the basis of data collected by the state department of education in 2008, Connecticut Coalition for Achievement Now found that Bridgeport's graduation rate was lower than that of every other school district in the state. Connecticut Coalition for Achievement Now, Connecticut Graduation Rates, pp. 17-22.
No less tragic than Bridgeport's high school dropout rate is its abysmal student performance. In the 2010-2011 school year, according to data collected by the state department of education, fewer than one in four third graders in the Bridgeport school district read at "goal" level or above, compared with a clear majority of third graders statewide; approximately 43 percent of eighth graders in the Bridgeport school district read at "goal" level or above, compared with approximately 75 percent statewide; approximately 31 percent of eighth graders in the Bridgeport school district attained "goal" level in mathematics, compared with approximately 67 percent statewide; and just one in ten tenth graders in the Bridgeport school district read at "goal" level or above, compared with nearly one half of tenth graders statewide. Similarly poor performance in previous years has consistently placed the Bridgeport school district in the lowest achieving 5 percent of school districts, on average, in Connecticut. See Strategic School Profile (2008-2009) of the Bridgeport School District (produced by state department of education); Strategic School Profile (2007-2008) of the Bridgeport School District (produced by state department of education).
These heartbreaking statistics provide a context for the key stipulated facts in this case: that the state board designated the Bridgeport school district as a low achieving school district under
The relevant statistics also serve to illuminate the legislative intent, painting a vivid picture of the crisis that the legislature sought to remedy when it created the statutory scheme of which
Of greatest significance to the present case, the 2007 act amended
The 2007 act further provided that, if a school district failed to make adequate yearly progress, as defined by the federal No Child Left Behind Act of 2001, for two consecutive years while being designated as a low achieving school district and also failed to make acceptable progress toward benchmarks established by the state board, the state board, after consulting with the governor and the chief elected official of the failing school district, could request that the General Assembly enact legislation authorizing the state board or another entity to take control of the school district, thereby entirely supplanting the local administration. Spec. Sess. P.A. 07-3, § 32, codified at
Speaking on the Senate floor, Senator Thomas P. Gaffey, co-chairman of the education committee, described the 2007 act as "a historic investment in education in the school districts throughout Connecticut"; 50 S. Proc., Pt. 19, 2007 Spec. Sess., p. 6185; that "establishes far more accountability measures than ever before"; id., at p. 6186; and "will give [the state department of education and the commissioner] broad and sweeping powers" to intervene in failing school districts. Id., at p. 6187; see also id., at pp. 6197, 6199, remarks of Senator Thomas J. Herlihy (speaking strongly in favor of 2007 act and calling it "[a] huge increase in spending for education" and "accountability with teeth").
In 2008, the legislature passed An Act Concerning Minor Changes to the Education Statutes, Public Acts 2008, No. 08-153 (P.A. 08-153), which augmented the state board's already robust power to intervene in failing school districts.[13] In particular, P.A. 08-153 added a new subparagraph (M) to
The operational training delineated in
Viewed in its entirety, the statutory scheme provides a range of increasingly interventionist tools: (1) the state board may oversee and direct the principal activities of an existing local board of education; see
Given the statutory scheme and the legislative history, the clear purpose of
II
Before I address the various arguments that the majority offers in support of its interpretation of
Having noted that the majority's interpretation of
The majority's three main arguments contain severe flaws. Most glaringly, none of the sources on which the majority relies actually supports its view of waiver, and many of these sources in fact support the opposite view. Nowhere is this last flaw more vivid than in the majority's selective reliance on legislative history. The majority refuses to consider the legislative history of the 2007 act; Spec. Sess. P.A. 07-3; the very act that created the comprehensive statutory scheme of which
The majority avoids interpreting
The majority's use of legislative history is flawed in yet another respect as well. In support of its conclusion that "there was a concern that reconstitution . . . would trample on the rights of the people who had duly and democratically elected their representatives to the local board," the majority relies to a significant extent on the statements of legislators who actually voted against P.A. 10-111. The statements of legislators who voted against P.A. 10-111 establish little if anything about the legislative intent behind
Even if the selection of legislative sources on which the majority relies truly were representative of the legislature's intent, these sources would not support the majority's conclusion that the training provision is nonwaivable. The majority's conclusion simply is a non sequitur, a non sequitur concealed behind a sequence of purported inferences. From an assemblage of legislative quotations, the majority first infers "three general principles of legislative intent": (1) reconstitution is an "extreme remedy, to be used only sparingly after it becomes apparent that other remedial measures have failed to produce results"; (2) "the testimony and remarks [concerning
As I explain hereinafter, none of the purposes or principles that the majority ascribes to the training provision supports the conclusion that the provision is nonwaivable, and only some of these purposes or principles find any support in the legislative sources that the majority cites. I address these principles and purposes in turn.
First, the majority repeatedly emphasizes that the legislature understood
Second, the majority observes that the training provision serves the protective purpose of affording a local board of education an opportunity to prevent its reconstitution. I agree, but if the training provision serves to protect a local board from an unwanted takeover, then of course the local board can waive that protection. Indeed, every single legislative remark that the majority quotes evinces a desire to protect local boards of education from unwanted reconstitution. These remarks therefore support the very conclusion that majority eschews, namely, that the local board of education is free to waive the training provision because that provision serves only to protect the locality's greatly reduced interest in retaining control of its *683 chronically failing public schools. Furthermore, contrary to what the majority implies, the legislature's failure to consider whether a local board of education could seek out reconstitution or waive the training provision lends no support at all to the majority's conclusion that the training provision is not waivable. Rather, the absence of any evidence of legislative intent to preclude waiver strongly suggests that the training provision is indeed waivable. As this court previously has recognized, mandatory statutory provisions "typically" are subject to waiver. See, e.g., Santiago v. State,
Third, the majority contends that the legislature regarded reconstitution as an "extreme remedy, to be used only sparingly after it becomes apparent that other remedial measures have failed to produce results."[25] Although I agree that reconstitution is an "extreme remedy," it is beyond dispute that no circumstances could be more extreme than those of the present case, in which student performance in the locality is chronically abysmal; see part I of this opinion; oversight measures have failed to yield appreciable improvement,[26] and the mayor, the superintendent, and *684 the Bridgeport board itself all have made impassioned pleas for state intervention. Testifying before the state board, former Bridgeport board member Thomas Mulligan, who had served just six months of his first term when he voted for reconstitution, explained that the Bridgeport board could not possibly fulfill its obligations to Bridgeport schoolchildren because of the "toxic" atmosphere at board meetings and because the board could not agree on anything, even a budget. Mulligan testified that he would not have voted for the reconstitution measure if he had believed there was any other way to promote the educational interests of Bridgeport schoolchildren. He added that, although a few of his colleagues might be disappointed about losing their jobs, "more important than elective office is to do the job that you have been elected to do. . . . [I]t is more important that the students get the education that they are entitled to. . . . The kids in the city of Bridgeport need a functional board more than any other municipality [in the state]. They deserve it." Barbara Bellinger, former president of the Bridgeport board, expressed a similar sentiment. She testified that reconstitution was necessary because the Bridgeport board simply was incapable of "delivering the education that the children deserve and the state says they should have. . . . We might disagree as to the reasons for our current problems, but the status quo is not working or acceptable. We need the state to step in and be our partners." John Ramos, the superintendent, described the reconstitution measure as the "last and best hope for our district and its students."
Fourth, the majority contends that the legislature viewed reconstitution as a "usurpation of the local democratic will." Whether true or not, this contention is irrelevant. Reconstitution may represent a usurpation of the local democratic will only when it occurs over the objection of an elected local board of education. Reconstitution represents no such usurpation when it occurs at the urging of the local board, as it did in the present case. Indeed, in the present case, reconstitution received strong support not only from the Bridgeport board but also from the superintendent and from the mayor, the city's highest elected official.
Fifth, the majority asserts that the training provision serves the overarching purpose of benefiting the citizens of the entire state by ensuring that reconstitution can occur only upon adequate public notice and in a manner that is deliberate and transparent. Although the majority does not say so, this assertion derives no support from the statutory scheme or the legislative history and, in fact, runs counter to our rules of statutory construction. It also runs counter to common sense; the majority does not explain why the residents of Torrington and Greenwich and New London have any interest at all, much less an overriding one, in the transparency and deliberateness of the reconstitution process in Bridgeport. Nor does the majority bother to explain exactly how such an interest could possibly trump Bridgeport's own interest in permitting its board of education, acting on behalf of the local electorate, to waive the training contemplated by
Perhaps even more fundamentally, the majority seems oblivious to the fact that
Even if the purpose of the training provision truly were to afford notice of a potential takeover and to promote transparency and deliberation during the reconstitution process, the majority's reasoning still would not yield the conclusion that the training provision is not waivable, for the majority does not even attempt to explain how permitting a local board of education to waive the training provision would deprive the locality of adequate notice or render the reconstitution process impermissibly opaque or overhasty. To the extent that the training provision serves incidentally to afford notice or to promote transparency and deliberation, it does so most obviously in the case of a recalcitrant board, that is, one unwilling to *686 give up control, not in the case of a board like the one in Bridgeport, which waived the training provision by passing a lawful resolution at a properly noticed public meeting. See part III of this opinion. Evidently, the majority believes that the resulting reconstitution occurred with less notice and deliberation than might have been desirable as a matter of good public policy. Regardless of whether the majority's belief is correctand the majority offers no evidence to suggest that it isthis court may not rewrite a statute in order to promote the policy that it happens to prefer. E.g., AvalonBay Communities, Inc. v. Zoning Commission,
In seeking to establish that a local board of education cannot waive the training provision of
The problem with this argument is that neither premise is plausible. In support of the first premise, that the training provision "embodies a public obligation that . . . inures to the benefit of the citizens of Connecticut as a whole," the majority asserts that the purpose of the training provision is to ensure that reconstitution occur only upon adequate public notice and in a manner that is deliberate and transparent. As I have explained, this purported purpose is something that the majority simply creates out of whole cloth.
In support of its second premise, that a public obligation created by statute cannot be waived by any individual or group of individuals, the majority provides a rather lengthy argument, which I discuss more fully hereafter. In brief, no part of this argument withstands scrutiny. Far from analyzing any of our prior holdings, the majority merely plucks superficially favorable language from various judicial opinions, paying little regard to whether the language in question is dictum or holding, and paying even less regard to whether the underlying opinions are on point. Not one of the five opinions that the majority cites in the text of its opinion[29] is on point; only two would be binding even if they were on point;[30] and of these two, only *687 one[31] contains favorable language that can fairly be characterized as a holding. It is hardly surprising, then, that the majority says so little about the facts or reasoning underlying these cases.
The majority relies foremost on several sentences from a dissenting opinion in In re Application for Petition for Writ of Habeas Corpus by Dan Ross,
"The public interest may not be waived. [When] a law seeks to protect the public as well as the individual, such protection to the state cannot, at will, be waived by any individual, an integral part thereof. The public good is entitled to protection and consideration and if, in order to effectuate that object, there must be enforced protection to the individual, such individual must submit to such enforced protection for the public good. . . . Accordingly, a statutory right conferred on a private party, but affecting the public interest, may not be waived or released if such waiver or release contravenes the statutory policy." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Application for Petition for Writ of Habeas Corpus by Dan Ross, supra,
Also irrelevant for present purposes are Beasley v. Texas & Pacific Railway Co.,
L'Heureux v. Hurley,
The upshot is that the majority cites only one Connecticut case that, on its face, might seem to provide any support for the majority's position. That case is L'Heureux v. Hurley, supra,
In a final attempt to prove that the training provision is not waivable, the majority offers the following argument based in general principles of administrative law: "Because the training provision [in
III
Having explained why each of the majority's arguments is meritless, I now explain why I would resolve this fundamentally straightforward case by concluding that a local board of education is competent to waive whatever protection
Because of the general presumption in favor of waiver, and because it is fundamental that a representative body possesses the authority to make binding decisions on behalf of its constituents, it is self-evident that a local board of education possesses the authority to waive the locality's interest in retaining control of public education. Besides being self-evident, this result also follows from general principles. Because the role of a local board of education is not to make law but to implement it; see
If a local board of education can have a duty to waive the locality's interest in control, then, a fortiori, it can have the authority to waive the locality's interest in control. To conclude otherwise, as the majority effectively does, is to countenance the possibility of a conflict between the local board's role as agent of the local electorate and its role as agent of the state. If such a conflict were possible, it would be necessary to resolve the conflict in favor of the local board's role as an agent of the state, because, in its role as agent of the state, the local board acts under a duty of constitutional magnitude. See Connecticut Assn. of Boards of Education, Inc. v. Shedd,
*692 Having established that a local board of education may waive the protection afforded by
The present case readily may be resolved on the basis of the Bridgeport board's July 5, 2011 resolution "concerning a request to the state board of education." It is undisputed that, on July 5, 2011, by a vote of six to three, the Bridgeport board passed a resolution stating: "WHEREAS, the Bridgeport [b]oard has received training in the skills needed to function effectively as a [b]oard of [e]ducation, but such training has not enabled the [b]oard to carry out its statutory responsibilities, and the Bridgeport [b]oard does not believe that further training would be productive or would enable the [b]oard to carry out those responsibilities....
"[T]he Bridgeport Board hereby requests that the [s]tate [b]oard, acting pursuant to the ... General Statutes, including, but not limited to ...
*693*694 Furthermore, contrary to the plaintiffs' arguments, the Bridgeport board plainly had the legal power or authority to adopt a resolution requesting that the state board reconstitute it. As I explained earlier, a local board of education is competent to waive the protection afforded by
The plaintiffs offer several meritless arguments in support of their contention that the Bridgeport board lacked the authority to enact a resolution requesting the state board to reconstitute it. The plaintiffs in the Farrar-James case contend that the Bridgeport board did not have the authority to remove its own members by resolution. This is true but irrelevant because the Bridgeport board simply did not remove its own members, either by resolution or by any other means. Rather, it was the state board that removed the Bridgeport board members. The Bridgeport board merely invited the state board to act. When the state board authorized reconstitution, it acted autonomously, not at the command of the Bridgeport board. *695 The state board obviously could have rejected or ignored the Bridgeport board's request for reconstitution. Thus, the Bridgeport board did not remove its own members any more than a person arrests his neighbor when he alerts the police to the neighbor's criminal activity.[36] Nor did the Bridgeport board dissolve itself, as the plaintiffs in the Pereira case contend. The Bridgeport board merely made its own dissolution more likely. Finally, it is entirely irrelevantcontrary to the assertion of the plaintiffs in the Farrar-James casethat the Bridgeport board lacked the authority to delegate its vacancy appointing power to the state board. The process of reconstituting a local board of education pursuant to
IV
Finally, the plaintiffs raise several constitutional challenges to
A
The plaintiffs contend that
*697 "By its terms, article tenth restricts only the enactment of special and not of general legislation.... [W]hen the legislature deals with matters that are primarily of statewide concern, it may deal with them free of any restriction contained in the home-rule amendment. The legislature can thus make effective a law touching on a matter of statewide concern in one city and not in another, provided that the classification is proper. The home-rule amendment does not limit the right of the legislature to deal with matters of statewide concern, even if, in so dealing, some cities and not others are affected." (Citation omitted; internal quotation marks omitted.) Shelton v. Commissioner of Environmental Protection,
Even if
Furthermore, to the extent that any local charter provision conceivably might conflict with the state's constitutional and statutory authority to furnish a suitable education to the schoolchildren of this statein this case by reconstituting the local board of education in a chronically failing school districtthere can be no question but that such a charter provision would have to yield to the state's authority to carry out its mandate. Connecticut Assn. of Boards of Education, Inc. v. Shedd, supra,
B
The plaintiffs also contend that
This claim founders on the plaintiffs' false assumption that the right to free suffrage, as established under article sixth, § 4, encompasses a right to elect and serve on local boards of education. The plaintiffs can cite no authority to support this assumption because it is well settled that there simply is no right to elect and serve on local boards of education. See, e.g., Moore v. Detroit School Reform Board,
The plaintiffs also ignore precedent establishing that the state has virtually unfettered authority to set the terms by which local boards of education may exist and carry out their delegated duties. See id., at 109,
The legislature, acting pursuant to the state's authority to set the terms by which local boards of education may exist and carry out their delegated duties, has enacted
C
Finally, the plaintiffs contend that
To their credit, the plaintiffs do not argue that
V
It has long been said that hard cases make bad law. This case shows that easy cases can make bad law as well. It is evident that the state board did not violate
NOTES
Notes
[*] February 28, 2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
[1]
[2] Specifically, the primary question reserved for this court's advice is: "Did the state board. . . violate . . .
Four other questions are presented in the reservation: (1) whether
Because we decide the issues presented by the reservation solely on a statutory basis, we do not reach the constitutional questions. See, e.g., In re Shanaira C.,
[3]
[4] Specifically with regard to training, the resolution provided: "WHEREAS, the [local board] has received training in the skills needed to function effectively as a [b]oard of [e]ducation, but such training has not enabled the [local] [b]oard to carry out its statutory responsibilities, and the [local board] does not believe that further training would be productive or would enable [it] to carry out those responsibilities. . . ."
The resolution concluded by stating: "NOW THEREFORE BE IT RESOLVED that the [local board] hereby requests that the [s]tate [b]oard, acting pursuant to the . . . General Statutes, including, but not limited to. . . .
[5] Due to the posture of the case as it reaches us in this reservation, we have somewhat simplified the procedural history. In particular, we focus on the nature of the parties and their claims as they existed at the time the reservation came to this court. Additionally, for simplicity, we hereinafter refer to the three sets of plaintiffs collectively as the plaintiffs. Similarly, we refer to all defendants collectively as the defendants.
[6] The myriad claims of the various plaintiffs have been condensed and simplified for purposes of this reservation.
[7]
"(b) All questions presented for advice shall be specific and shall be phrased so as to require a Yes or No answer.
"(c) Before any question shall be reserved by any court, counsel shall file in that court a stipulation which shall clearly and fully state the question or questions upon which advice is desired; that their present determination by the appellate court having jurisdiction would be in the interest of simplicity, directness and economy in judicial action, the grounds for such allegation being particularly stated; that the answers to the questions will determine, or are reasonably certain to enter into the final determination of the case; and that the parties request that the questions be reserved for the advice of the appellate court having jurisdiction. The stipulation shall also designate the specific pleadings in the trial court case file which are necessary for the presentation of the question or questions sought to be reserved and shall state the undisputed facts which are essential for determination of the question or questions sought to be reserved. . . .
* * *
"(e) The court will not entertain a reservation for its advice upon questions of law arising in any action unless the question or questions presented are such as are, in the opinion of the court, reasonably certain to enter into the decision of the case, and it appears that their present determination would be in the interest of simplicity, directness and economy of judicial action. . . ."
[8] The defendants do not dispute that the plain language of
[9] We pause to address the issue of whether the defendants' waiver argument is properly before this court, as such an argument is not found explicitly in the questions in this reservation. We believe the argument falls within the scope of the first question of the reservation, namely, whether the state board violated
[10]
[11] We note that the training provision in
[12] See footnote 8 of this opinion. We reiterate that the defendants do dispute whether this training is a mere formality, that is, whether satisfactory completion of the training would have any effect on the state board's ultimate decision to authorize reconstitution. We analyze this argument in more detail in part III of this opinion.
[13] We note that the defendants raised the argument of waiver for the first time in their brief before this court, and, for that reason, the plaintiffs were limited to responding to this argument in their reply brief and at oral argument. The plaintiffs' principal arguments focus instead on the fact that (1) the state board lacked statutory authority to authorize reconstitution because it failed to require the local board to undergo training, and (2) there was no substantial compliance with the training requirement by virtue of the local board's partial participation in discretionary training, which the local board itself sought.
[14] The dissent attempts to paint a different picture through citations to various statistics and social science data demonstrating the poor performance of the local school district. We do not debate that the local school district has faced and continues to face difficulty in achieving a minimum level of satisfactory performance in recent years. Indeed, the parties have stipulated to that fact. Nevertheless, the dissent's reliance on this datawhich, we note, the parties did not include in their stipulated factsis otherwise irrelevant. The plaintiffs are not seeking a determination about whether the local board qualified for reconstitution under
Additionally, we note that the dissent relies on these statistics to "help explain why barring local boards of education from waiving the training provision would frustrate the purpose of
[15] These remarks occurred prior to the vote on the proposed legislation in the House of Representatives. It appears that the Senate did not debate this aspect of the proposed legislation before the Senate voted on it.
[16] The following colloquy ensued between Representatives Candelora and Fleischmann:
"[Representative Candelora]: . . . [O]nce a school is deemed to be low achieving, as I read this, the mechanism would be that the commissioner would send that board of education to complete a training course. If that board of education completes that training course, as I read this, it seems that the commissioner could then sort of monitor, but would still have the ability to recommend reconstitution of that board of education. Am I correct in that?
* * *
"[Representative Fleischmann]: . . . I believe that power resides in the [s]tate [b]oard of [e]ducation, but I think the rest of the characterization was accurate." (Emphasis added.) 53 H.R. Proc., Pt. 15, 2010 Sess., p. 4675.
[17] McQuillan did not state, during this hearing, whether he or the state board considered the local board to be one of the "rare instances" in which reconstitution would be appropriate.
[18] The dissent criticizes our reliance on legislative history as selective and "flawed," in part because "[we rely] to a significant extent on the statements of legislators who actually voted against the [proposed legislation adding subsection (h) to
[19] This legislative intent is further supported by the structure of
[20] This notion is further supported by comparison to the state board's role in monitoring low achieving schools or school districts pursuant to
[21] For example, both the Connecticut Association of Boards of Education and the Middletown Federation of Teachers, American Federation of Teachers Local 1381, submitted written testimony regarding the 2010 proposed legislation amending
[22] We are cognizant that Representative Giuliano ultimately voted against the proposed legislation in 2010. We rely on her remarks merely to show that the legislature was aware of the full implications of
[23] We acknowledge the defendants' arguments that not every local board of education in this state is elected. We do not perceive this as contradicting the remarks of the legislators who were concerned with protecting those local boards of education whose members are democratically elected.
[24] We also agree with Justice Harper's reasoning with regard to the importance of local control over education. According to Justice Harper, local control over education fosters a beneficial and symbiotic relationship between the parents, students and local school administrators, a relationship that should not be lightly disregarded.
[25] The preference for local control of education also is manifest in the remarks that Representative Lawrence F. Cafero, Jr., made prior to voting on the legislation granting the state board the authority to reconstitute local boards of education: "[W]e take [great] pride. . . here in New England, and Connecticut in particular, about local control. Citizens electing their representatives on a state level and certainly on a local level; their mayors and first selectman, their legislative body and most importantly, their board of education.
"The referendum that people mostly have is at the polling booth. If they believe their [b]oard of [e]ducation is failing . . . [t]hey could vote them out. . . . That's democracy." (Emphasis added.) 53 H.R. Proc., Pt. 15, 2010 Sess., pp. 4631-32.
Like Representative Giuliano, Representative Cafero ultimately voted against the bill. Although that may weaken the force of Representative Cafero's argument with regard to whether reconstitution itself is a proper power to grant the state board, it does not alter the fact that his view of Connecticut's educational administration coincides with the policy embodied in the statutory scheme. Indeed, although Representative Fleischmann clarified or corrected some of Representative Cafero's statements, he did not challenge Representative Cafero's emphasis on the importance of local control. See generally id., at pp. 4633-35, remarks of Representative Fleischmann. It does not appear that any representatives disagreed with the overall preference for local control of education in Connecticut.
[26] Even this might not always be the case, as
[27] The dissent argues otherwise, stating that the state board properly could "reconstitute a local board of education in a manner that affords the locality no notice whatsoever"; (emphasis added) footnote 27 of the dissenting opinion; notwithstanding the clear legislative intent that the state board should authorize reconstitution only if a procedure for doing so is in place. See Conn. Joint Standing Committee Hearings, supra, at pp. 1049-50, remarks of Representative Fleischmann ("[W]hen we look at the question of reconstituting a board, it isn't simply throwing them all out. . . . [I]t would involve a process of having a procedure in place. . . ."). We also reject this argument because it frustrates one of the purposes of the training requirement that we have identified, namely, to provide notice. The dissent's reasoning in this regard would require us to read the training provision language as being unconnected from the reconstitution authority language in the statute, contrary to our principles of statutory interpretation. See, e.g., Historic District Commission v. Hall,
Moreover, subsection (h) is not "a statutory amendment that construes and clarifies a prior statute [and therefore] operates as the legislature's declaration of the meaning of the original act." Darak v. Darak,
[28] We note that the defendants and the dissent also focus on the statutory and constitutional roles of the state to provide adequate educational opportunities. We wholly agree with their understanding of educational policy in this state. Indeed, as the dissent notes, the low achieving schools in Bridgeport are a matter of statewide concern. At its core, this case raises issues directly concerning the students in the Bridgeport public schools. We are fully cognizant of the dire situation in Bridgeport, and are sensitive to the importance of providing its students, and students throughout this state, with adequate educational opportunities.
Nevertheless, to the extent that the defendants and the dissent rely on either article eighth, § 1, of the Connecticut constitution or the plurality's reasoning in Connecticut Coalition for Justice in Education Funding, Inc. v. Rell,
[29] We note that the defendants do not provide any other legal authority for their waiver argument. Moreover, the legislative history is devoid of any mention of waiver with regard to the training requirement. At no time during the legislative debates was the issue of waiver raised, including by McQuillan. Nor was any suggestion made that the state board could forgo the training requirement if it received a waiver from a local board of education. Although we do not suggest that waiver is only applicable when there is precedent or legislative history on point; see footnote 33 of this opinion; in the present case, an utter lack of authority to the contrary and the clear legislative intent compel the conclusion that the legislature did not intend that this provision would be waivable. Cf. Forest Walk, LLC v. Water Pollution Control Authority,
[30] We clarify that we are not addressing the state board's jurisdiction in the present case to authorize reconstitution but only whether the state board had the authority to do so. "[T]he issue of subject matter jurisdiction is distinct from the authority to act under a particular statute. Subject matter jurisdiction involves the authority of a court [or agency] to adjudicate the type of controversy presented by the action before it. . . . A court [or agency] does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Although related, the court's [or agency's] authority to act pursuant to a statute is different from its subject matter jurisdiction. The power of the court [or agency] to hear and determine, which is implicit in jurisdiction, is not to be confused with the way in which that power must be exercised in order to comply with the terms of the statute." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Dept. of Public Utility Control,
[31] In that connection, the statute speaks solely to the nature of the power granted to the state board regarding reconstitution of certain local boards of education and is silent as to whether a local board can waive the training requirement. This is so because the legislature, in delineating the scope of the grant of power to the state board, would not need to concern itself with the authority of local and regional boards of education.
[32] We note that the state board's obligation to require training would unlikely be considered an onerous one. Although, as we note in this opinion, there are no procedures or guidelines with respect to
This does not, however, diminish the importance of the training requirement. We reject the dissent's mischaracterization of our reasoning here as stating that the requirement is only a "speed bump. . . ." Footnote 6 of the dissenting opinion.
[33] For example, "[a] criminal defendant has the capacity to waive many of his or her fundamental procedural rights. [A] defendant can waive the right to counsel . . . the right to remain silent . . . the right to be present during trial . . . and, by entering a guilty plea, the rights to trial by jury and to confrontation, and the right against self-incrimination." (Citations omitted; internal quotation marks omitted.) New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra,
[34] We note that whether a right is waivable does not necessarily depend on the importance of that right, as even fundamental constitutional rights can be waived by the person possessing those rights. See, e.g., New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra,
[35] In New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, supra,
[36] In the context of L'Heureux v. Hurley, supra,
[37] This concept finds long-standing support in numerous other jurisdictions. See, e.g.,
[38] We also disagree with the dissent's reasoning that the jurisprudence governing waiver of individually held constitutional rights informs whether statutory provisions with no clear individual beneficiary are waivable. A criminal defendant's ability to knowingly and intelligently waive his sixth amendment rights at trial is beyond question. We nevertheless fail to see the relevance of this proposition to the issue in this reservation, that is, whether a statutory provision that creates a condition precedent to the state board's power to act can be waived by an inferior local board of education. In attempting to connect the two, the dissent elides a key distinction between the sixth amendment to the United States constitution and
[39] The dissent takes issue with our waiver analysis on the ground that "mandatory statutory provisions are `typically' subject to waiver." We are somewhat perplexed by this statement, as our opinion clearly upholds the general rule that rights are typically waivable by the individual who possesses them. The dissent apparently fails to discern that the operative word in this principle is "typically." As our analysis demonstrates, the training provision set forth
Additionally, we find the dissent's contrary analysis unpersuasive. The dissent provides no basis for its conclusion that waiver occurred in the present case other than by relying on the inherently ambiguous language of the local board's resolution. Despite the dissent's attempt to portray the language of that resolution as supporting only one conclusion, namely, that the local board intended to waive training, it is equally if not more clear that the language supports a conclusion that the local board believed that the statute had been substantially complied with because the local board already had received some training. Indeed, both the local board hearing held on July 5, 2011, and the state board hearing held on July 6, 2011, are notable for the absence of any discussion of waiver. Remarkably, during the state board hearing, only one state board member tangentially raised the issue of training with Bellinger, the president of the local board. In response, Bellinger stated that the local board had not received enough training and could benefit from additional training. We initially note that the dissent dismisses these statements and instead selectively focuses only on those statements made by local board members that support the dissent's conclusion. Thus, in contrast to the dissent's conclusion that the local board resolution plainly supports a finding of waiver, the discussion at the state board meeting militates against such a finding. At the very least, it injects ambiguity into the meaning of the local board resolution, ambiguity that the dissent ignores.
[40] We note that there is substantial overlap between this argument and the defendants' waiver argument. The difference we perceive between the two is that, in this argument, the defendants focus on the fact that, although
We also clarify that, in addressing this argument, we do not accept the defendants' claim that the training in which certain of the local board members participated in 2010 should be treated as the functional equivalent of the training required under
[41] With regard to one aspect of the futility argument, we note that the state board clearly has the statutory authority to mandate training under
[42] This conclusion is further bolstered by the legislative history and intent that the state board would reassess the need to reconstitute a local board following completion of training. See, e.g., 53 H.R. Proc., Pt. 14, 2010 Sess., p. 4582, remarks of Representative Fleischmann ("if after that training [required under
[43] Because we only address the reserved question of whether the state board violated
[1] This case involves three separate complaints in which the state board, various city and school officials of the city of Bridgeport, members of the reconstituted Bridgeport board and the state board of education are named as defendants. See the text of the majority opinion for a more detailed identification of the various defendants.
[2] The plaintiffs in these three cases were comprised of various former Bridgeport board members, electors of the city of Bridgeport, and residents of the city. We, like the majority, refer to these individuals collectively as the plaintiffs.
[3] The record includes the transcript of the Bridgeport board's special meeting at which it voted on the resolution and the DVD of the state board meeting in which it addressed the issue of reconstitution.
[4] The procedures by which the General Assembly may reconstitute a local board of education are set forth in
[5] The Bridgeport board members supporting reconstitution acknowledged that there consistently was a six person majority that permitted the board to act on matters before it, but asserted that the three member minority had made that process more protracted through the use of various procedural mechanisms. Democracy assumes, however, the utility of dissent, and procedural mechanisms adopted by a collective body necessarily are tools deemed legitimate by that body.
[6] See
[7] "[P]arents are mentioned over 300 times in various part[s] of the No Child Left Behind [A]ct [of 2001]. . . ." NCLB Action Briefs, "Parental Involvement," (April 23, 2004), p. 1, available at http://www.ncpie.org/nclbaction/ parent_involvement.html (last visited February 28, 2012) (copy contained in the file of this case with the Supreme Court clerk's office). Numerous studies document the relationship between parental involvement and student performance. See, e.g., Michigan Department of Education, "What Research Says About Parent Involvement In Children's Education In Relation to Academic Achievement," (March 2002), available at http://www. michigan.gov/documents/Final_Parent_ Involvement_fact_sheet_14732_7.pdf (last visited February 28, 2012) (copy contained in the file of this case with the Supreme Court clerk's office).
[8] The dissent dismisses this concern by pointing to the lack of evidence that reconstitution was imposed against the will of a majority of parents and by deeming any such evidence to be irrelevant if it existed. As I explain later in this concurring opinion, lack of information bearing on this question is directly attributable to the haste with which reconstitution was raised and decided, and I disagree that such evidence necessarily would have been irrelevant to the state board in deciding whether reconstitution was the best course of action.
[9] The reconstituted Bridgeport board appointed by the state has in fact replaced the Bridgeport superintendent.
[10] The state board also has not enacted regulations specifying procedures to be followed for reconstitution or for the provision of training.
[1] I hereinafter refer to the board of education of the city of Bridgeport as the "Bridgeport board," the commissioner of education as the "commissioner" and the state board of education as the "state board."
[2] Under article eighth, § 1, of the constitution of Connecticut, the schoolchildren of this state are entitled to a free public elementary and secondary education. This right requires the state "to provide a substantially equal educational opportunity to its youth in its free elementary and secondary schools." Horton v. Meskill,
[3] Nor is this case about the set of inflammatory and unsubstantiated allegations to which Justice Harper, in his concurrence, accords unwarranted attention, allegations to the effect that "certain members of the Bridgeport board colluded with the mayor, superintendent, private parties and certain members of the state board to engineer a takeover of the Bridgeport board for purely political purposes." These unsubstantiated allegations show up, among other places, in the complaint filed by Maria Pereira and other plaintiffs, which begins: "When, in the course of human events, it becomes necessary for one group of duly elected public officials [presumably, members of the original Bridgeport board who brought the present actions] to bring to light the corrupt bands which have connected them with another, and to expose the shadowy usurpations of the people's rights by a cabal of petty tyrants [presumably, the state board] and corporate private interests with no regard for the rule of law or the votes of the people, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to an action such as this. . . ." I agree with Justice Harper when he notes that "these allegations are unproven; they are not part of the stipulated facts. As a general matter, this court assumes that public officials are acting in good faith. . . . Accordingly, in the absence of clear evidence to the contrary, [it can be assumed] that [the members of the] Bridgeport board . . . have exercised their authority in good faith, solely for the purpose of advancing the educational interests of the children." (Citation omitted.) Because these inflammatory allegations are utterly unsubstantiated, it is inappropriate to accord them any attention at all, let alone to rely on them as "giv[ing] context to the plaintiffs' claims and explain[ing] the deep passions that motivated their opposition to reconstitution." Dwelling on these inflammatory allegations is profoundly unfair to the defendants and can serve only to undermine this court's image as an arbiter of impartial justice. The public has a right to know with certainty that this court's decisions are not tainted by unproven allegations or other irrelevant considerations.
[4] Although I wholeheartedly agree with Justice Harper that parental involvement is to be encouraged as an extremely important component of a child's educational experience, I do not agree with his suggestion that reconstituting a local board of education against the will of a majority of parents in a chronically failing school district necessarily discourages parental involvement, and there is no evidence in the record even remotely indicating that it does. Much less is there any evidence in the record indicating that a majority of parents in this case opposed reconstitution of the Bridgeport board. Even if there were, such evidence would be completely irrelevant to the issue in this case, which is whether the state board's action was lawful, not whether it was wise. Moreover, I do not hold the view that Justice Harper ascribes to me, namely, that "evidence [of parental preferences] necessarily would have been irrelevant to the state board in deciding whether reconstitution would have been the best course of action." Be that as it may, my view on the wisdom of reconstituting a local board does not actually matter at all, and neither does the view of any of my colleagues. The only view that matters is that of the legislature, as expressed in a governing statutory scheme that provides that the state board, in its sound discretion, may reconstitute chronically failing school districts.
[5] The majority observes that it "cannot ignore the fact that the foundational issue . . . is how to provide students with the best possible education"; text accompanying footnote 24 of the majority opinion; but then proceeds to ignore this issue entirely. Nowhere does the majority explain how a failing school district's students possibly would benefit from a local board of education retaining control over the district even after the mayor, the superintendent, and the local board itself all have made impassioned pleas for state intervention.
[6] With respect to my discussion of this case's historical and statutory backdrop, the majority writes, "To the extent the dissent relies on these data to suggest that the issue before this court is the broader policy issue of whether and when the state board should reconstitute local or regional boards of education, the dissent improperly expands the scope of this reservation." Footnote 14 of the majority opinion. I do not know why the majority insists on transmuting my statutory analysis into something it is not and criticizing a "suggest[ion]" I do not make, instead of engaging the argument that I do make.
[7] The majority in fact acknowledges that, whatever the training provision's purpose, its effect is to erect little more than a speed bump on the road to reconstitution: "We note that the state board's obligation to require training would unlikely be considered an onerous one. Although . . . there are no procedures or guidelines with respect to
[8] The majority simply mischaracterizes my view when it asserts that, "without any analysis or authority to support [my] position," I claim that the training provision "protects the [Bridgeport] board." On the contrary, I state repeatedly in this dissent that the training provision serves to protect the locality's interest in retaining control over public education. It does not serve to protect the local board of education as such. I do not know why the majority refuses to engage my analysis on its own terms.
[9] See, e.g., Santiago v. State,
[10] In the interest of simplicity, we hereinafter refer to students from low income families as low income students and refer to students from more affluent circumstances as non-low income students.
[11] The majority also implies that, because the parties did not include these statistics in their stipulated facts, my reliance on them is improper. See footnote 14 of the majority opinion. On the contrary, it is perfectly appropriate to take judicial notice of unchallenged statistical data pertaining to the state of public education in Bridgeport and elsewhere; see, e.g., Sheff v. O'Neill,
[12] See, e.g., 50 S. Proc., Pt. 19, 2007 Spec. Sess., p. 6203 ("In my three years . . . [in] this body, I don't think I've ever been as distressed by any one statistic as I have by the academic gap that exists in the public schools of Connecticut, a gap which, according to scholars and economists who have studied it, is actually greater than [that of] any other state in the United States. It's a gap between the underachieving students, the underachieving schools and the rest of the schools in the state. And Senator [Thomas P.] Gaffey [co-chairman of the education committee] is presenting to us today a blueprint to overcome that gap. And there's no doubt if this blueprint is enforced by us and by the [s]tate [d]epartment of [e]ducation, that we will make a significant dent in the gap."), remarks of Senator Edward Meyer on the proposed legislation that became Public Acts, Spec. Sess., June, 2007, No. 07-3.
[13] See 51 H.R. Proc., Pt. 10, 2008 Sess., p. 3215 (P.A. 08-153 "expands actions the [s]tate [b]oard of [e]ducation can take to improve student performance") remarks of Representative Andrew M. Fleischmann, co-chairman of the education committee; id., at pp. 3218-19, remarks of Representative Kevin M. DelGobbo ("I appreciate the [d]istinguished [c]hair of the [e]ducation [c]ommittee [Representative Fleischmann] in presenting this amendment to clarify a concern that was expressed by myself and some others [about] the accountability measures that we adopted last year [in the 2007 act], which were so critical. . . . [T]here was concern that the underlying bill might have in some way constrained the [c]ommissioner . . . from being able to implement those accountability measures. So I appreciate very much Representative Fleischmann's [a]mendment here at this moment to make it clear that in fact all of those provisions of authority that we gave to the [c]ommissioner to go into [a] school district and make certain changes if necessary, that in fact . . . this bill would not in any way impinge [on] that. . . .").
[14] See 53 S. Proc., Pt. 7, 2010 Sess., p. 2078 ("[w]hat this amendment focuses on is changes to our education statutes to respond to . . . the criteria in the application for federal funding for education, the so-called `Race to the Top' program"), remarks of Senator Gaffey; 53 H.R. Proc., Pt. 14, 2010 Sess., p. 4554 ("the amendment that stands before us is essentially Connecticut's Race to the Top of education reform legislation for the year"), remarks of Representative Andrew M. Fleischmann, co-chairman of the education committee.
[15] Regs., Conn. State Agencies § 10-295-5(b)(16) ("`Local Education Agency' or `LEA' refers to a public board of education or other public authority legally constituted within Connecticut for either administrative control or direction of or to perform a service function for public elementary schools or secondary schools in a town, city, school district or other political subdivision of the state or for such combination of towns, cities or school districts as are recognized in Connecticut as an administrative agency for its public elementary schools or secondary schools").
[16] See also Race to the Top, Technical Review FormTier 1, Connecticut Application # 1680CT-1, comments from reviewer 1 ("The state has legal authority to intervene in persistently low-achieving schools, but to intervene in the [local education agencies] they need to get the [g]overnor and [l]egislature to approve the intervention, which is very difficult to do."); id., Connecticut Application # 1680CT-2, comments from reviewer 2 ("the approval of [the] legislature is needed for district takeover, and this may be difficult to obtain"); id., Connecticut Application # 1689CT10, comments from reviewer ("It is not clear that the state could take over an entire [local education agency] without legislative approval. . . . The state is authorized to `retrain' local boards but not to remove them for alleged failures.").
[17] The majority asserts that "the legislative history on which the dissent relies suggests that one of the principal reasons why the legislature amended
[18] That the training provision of
[19] This is true even when the plain and unambiguous text of the statute leads to a bizarre or irrational result. See
[20] Although the majority agrees that, on the basis of its analysis of
[21] The majority seems unable to make up its mind about the extent of this state's preference for local control over education. The majority begins by proclaiming "the long-standing policy in Connecticut of local, rather than state, control over schools and school districts" but then performs an abrupt about-face in stating that
[22] In its defense, the majority cites two cases, Cotto v. United Technologies Corp.,
In support of its reliance on the remarks of Representative Marilyn Giuliano, who voted against P.A. 10-111, the majority claims that her remarks are relevant "to show that the legislature was aware of the full implications of
In its search for the legislature's intent, the majority relies not only on irrelevant legislative history but also on an assortment of cases and other statutes that actually support the opposite of the majority's conclusion. The majority cites two cases, namely, New Haven v. State Board of Education,
[23] Nor is the supposed strength of the statute's mandatory language evidence that the training contemplated by
[24] I also find this discussion highly unpersuasive. To begin with, the fact that
[25] I disagree with the majority's related contention that, "when
[26] At the meeting of the state board, state board member Joseph Vrabely, Jr. stated: "We've already intervened in Bridgeport with our programs, and those programs are not working."
[27] Notwithstanding the plain meaning of
A further reason why the majority disputes my assertion that the state board properly could reconstitute a local board in a fashion that affords the locality no notice whatsoever is that, in the majority's view, reconstituting a board in such a fashion would "[frustrate] one of the purposes of the training requirement that [it has] identified, namely, to provide notice." Footnote 27 of the majority opinion. The majority simply begs the question, arguing that, because the training provision serves to provide notice of an impending reconstitution, the state board properly could not reconstitute a local board of education in a manner that affords the locality no notice whatsoever. The far more logical inference runs the other way. Because it is obvious from the plain meaning of the statute that the state board properly could reconstitute a local board of education in a manner that provides the locality no notice whatsoever, providing notice cannot possibly be the training provision's purpose.
[28] In this connection, the majority baldly asserts that the training provision "furthers a policy of maintaining a locally elected board of education to the maximum extent possible. . . ." (Emphasis added.) The majority offers no evidence to show that this state has any such policya policy that would force a local board of education to remain in place even after it has made a desperate plea for state intervention with the backing of the municipality's mayor and superintendent of schools.
[29] In a footnote, the majority cites four out-of-state authorities in support of the proposition that a public obligation created by statute cannot be waived by any individual or group of individuals. See footnote 37 of the majority opinion. As I explain more fully hereinafter; see footnote 32 of this opinion; none of these authorities supports the majority's premise.
[30] The two cases that would be binding if they were on point are Hatch v. Merigold,
[31] See L'Heureux v. Hurley,
[32] In a footnote, the majority cites four additional authorities for the proposition that a public obligation created by statute cannot be waived by any individual or group of individuals. See footnote 37 of the majority opinion. Again, the majority does little more than pluck superficially favorable language from these authorities; not one of them actually stands for the broad proposition that statutorily created public obligations cannot be waived by anyone. Three of these authorities establish at most that public obligations cannot be waived by individuals.
[33] The majority argues against an obvious straw man when it asserts that "the legislature did not intend that the state board's reconstitution authority would supersede the existing, comprehensive statutory scheme that provided for other means of supervising and intervening in local educational issues." Text accompanying footnote 27 of the majority opinion. Nowhere do I claim that § 10-223e (h) was meant to "supersede" the rest of § 10-223e. Indeed, I have no idea what such a claim would even mean. Nor do I have any idea what the majority means when it states, "we construe the reconstitution [power] ... narrowly, so as not to supplant the other remedies already available to the state board." (Emphasis added.)
[34] The majority asserts that the record is "ambiguous" with respect to whether the Bridgeport board, in passing the July 5 resolution, intended to waive the training provision or simply "believed that the statute had been substantially complied with because the [Bridgeport] board already had received some training." Footnote 39 of the majority opinion. Contrary to the majority's assertion, there is no ambiguity at all in the Bridgeport board's July 5 resolution, which expressly requests that the state board reconstitute the Bridgeport board and notes that "further training would [not] be productive or [otherwise] enable the [b]oard to carry out [its] responsibilities...." Moreover, even if the resolution did appear ambiguous on its face, no such appearance could survive the assertion of the defendant board members, in their briefs and at oral argument before this court, that relinquishing the benefit of additional training is precisely what the board intended to do.
In asserting that the July 5 resolution was ambiguous with respect to whether the Bridgeport board intended to waive the training provision, the majority trades on the law's well-known aversion to countenancing ambiguous waivers. That aversion simply is irrelevant to this case. The obvious rationale behind the law's aversion to countenancing ambiguous waivers is to protect those who might claim that they did not waive a right, specifically by requiring the adverse partythe party claiming that waiver occurredto prove its claim through competent evidence. I am not aware of any case, and the majority cites none, in which the law's reluctance to countenance ambiguous waivers was invoked to defeat a party's claim that it did waive a right.
Even if such a case existed, the defendants would have no trouble demonstrating that the Bridgeport board waived the training requirement. To do so, the defendants would need to demonstrate only that, when the Bridgeport board voted for reconstitution, it was aware of its statutory right to training. See, e.g., Wadia Enterprises, Inc. v. Hirschfeld,
"[H]aving experienced some training with some members of this board, [I] do not believe that further training, given the level of dysfunctionality that we're experiencing, will help us. We need a new idea, we need the state's assistance, we need [the state] to step in and help fix these issues.... And training isn't the answer to that. Training is the answer to a lot of things, especially when people are willing to collaborate and work together on issues."
Furthermore, even though no one at the Bridgeport board hearing formally described the board's resolution as a "waiver" of the training provision, it is indisputable that "[w]aiver need not be express, but may consist of acts or conduct from which a waiver may be implied.... In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, supra,
In view of these facts, the majority's assertion that the evidence is inadequate to support a finding of waiver is nothing short of astounding. This court has found an implicit waiver of a constitutional right on the basis of far less evidence. See State v. Kitchens,
The majority accuses me of dismissing a statement that Bellinger made at the state board hearing on July 6, 2011, a statement that, according to the majority, "injects ambiguity" into the meaning of the July 5 resolution and calls into question whether the local board intended to waive its right to training. Footnote 39 of the majority opinion. In the majority's words, Bellinger "stated that the [Bridgeport] board had not received enough training and [perhaps] could benefit from additional training." Id. Viewed in their proper context, however, Bellinger's actual statements inject no ambiguity at all into the meaning of the July 5 resolution. When a member of the state board asked Bellinger to identify the main "divide" on the Bridgeport board, she responded, "the divide is on almost every issue." The same state board member then queried: "I know you are a training professional You said [the Bridgeport board] had training. What kind of training have you had? Have you had lighthouse training?" Bellinger responded: "We had training that I arranged for with an outside consultant, to help people understand their roles and responsibilities. It was not attended by 100 percent of [our members], nor do I feel that that was adequate training. Don't forget, I am a training person. I really think that training is important." Whatever the significance of these particular remarks, Bellinger's testimony as a whole contains repeated assertions that no amount of training could enable the Bridgeport board to achieve its objectives, given its profound level of dysfunction. Marion Martinez, a representative of the state department of education, reinforced Bellinger's view, explaining that the training programs then offered by the state, including the lighthouse program, simply were not designed to address the kind of problem that the Bridgeport board was experiencing. As Martinez succinctly put it, "lighthouse does not repair damaged relationships."
[35] Because there is ample legal support for the Bridgeport board's competency to waive the protection afforded by § 10-223e (h), it is irrelevant, contrary to the assertion of Maria Pereira and other plaintiffs, that § 10-223e (h) does not explicitly provide that a local board of education can request reconstitution.
[36] Even though the state board was perfectly free to reject or ignore the Bridgeport board's request for reconstitution, Justice Harper appears to believe that the Bridgeport board did in fact dispossess its three member minority. He states that "the resolution adopted by six members of the Bridgeport board to forgo training cannot logically be separated from the intended effect of that decisionto displace duly elected board members through a state created reconstituted board." I am unable to discern why Justice Harper accords this purported dispossession any significance at all, given that he joins a majority opinion under which a local board of education could not waive the training provision even upon a unanimous votea vote that dispossess no one.
[37]
[38] The constitution of Connecticut, article tenth, § 1, provides: "The general assembly shall by general law delegate such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form of government of such political subdivisions. The general assembly shall from time to time by general law determine the maximum terms of office of the various town, city and borough elective offices. After July 1, 1969, the general assembly shall enact no special legislation relative to the powers, organization, terms of elective offices or form of government of any single town, city or borough, except as to (a) borrowing power, (b) validating acts, and (c) formation, consolidation or dissolution of any town, city or borough, unless in the delegation of legislative authority by general law the general assembly shall have failed to prescribe the powers necessary to effect the purpose of such special legislation."
[39] The constitution of Connecticut, article sixth, § 4, provides: "Laws shall be made to support the privilege of free suffrage, prescribing the manner of regulating and conducting meetings of the electors, and prohibiting, under adequate penalties, all undue influence therein, from power, bribery, tumult and other improper conduct."
[40] The constitution of Connecticut, article first, § 1, provides: "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community."
[41] The constitution of Connecticut, article first, § 4, provides: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty."
[42] The constitution of Connecticut, article first, § 20, provides: "No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin."
[43]
[44] For the same reason, there is no merit to the plaintiffs' contention that § 10-223e (h) violates article first, § 4, of the state constitution because it burdens their "access to the ballot."