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The danger of appellate judges acting as social engineers and legislators, rather than sticking to their role of addressing questions of law and constitutionality, is in full display in a Connecticut case that seeks to use the courts to fix what is wrong with education in the state.
An alliance of parents and educators, called the Connecticut Coalition for Justice in Education Funding, filed a lawsuit back in 2005 contending the state was not adequately funding education, particularly when it came to meeting the needs of inner city students, and that the failure amounted to a breach of the Connecticut Constitution.
"There shall always be free public elementary and secondary schools in the state. The General Assembly shall implement this principle by appropriate legislation," states the Connecticut Constitution.
In 2007 Hartford Superior Court Judge Joseph Shortall dismissed the lawsuit, finding no grounds for a constitutional challenge. He noted, quite correctly, the narrow language of the constitution. It guarantees a free education, which indeed is available to all children in the state, and gives the job of implementing it to the General Assembly. Dissatisfaction with how the state funds and manages public education must be addressed through the political process, not the courts, according to Judge Shortall's ruling.
But the state Supreme Court, in a 4-3 ruling in March 2010 that reversed the lower court decision, essentially expanded the constitutional provision, finding that there was implicit in its plain language a requirement to provide an "adequate" education for all. It returned the matter to the Superior Court to move forward to trial.
At trial the coalition will seek to prove that state support for education is inadequate. And what if the judge agrees? Does he order the state to spend more, without responsibility for determining where the money will come from or what other programs might suffer to provide it? The state will allocate about $3.8 billion for education this fiscal year, approximately 20 percent of state spending. Experts for the coalition say spending another $2 billion annually will fix things. It's easy to see why teacher unions back the lawsuit.
Does the judge also order how the legislature and school boards must spend this money to address the constitutional violation - universal full-day kindergarten and early childhood education perhaps?
Meanwhile Attorney General George C. Jepsen is again seeking to dismiss the lawsuit, that determination now resting with Judge Kevin Dubay, who had the misfortune of getting the case. Mr. Jepsen argues that the inadequate system the coalition sued about in 2005 no longer exists. In 2012 the legislature passed a major education reform bill. It directed $92 million in new funding to boost charter and magnet school choices, aggressively intervene in struggling schools, expand early childhood education and implement a teacher evaluation system.
It is too soon to put the reformed education system on trial and a waste of time to evaluate the system as it existed eight years ago, Mr. Jepsen argues. But the plaintiffs, having won in the Supreme Court, contend the system is still inadequate and want their trial.
What a mess.
In what would seem to be an attempt at a second bite of the apple, Mr. Jepsen in his motion again argues about the dangerous place this case is taking the state.
"The bottom line is that plaintiffs' extreme and radical requested relief would amount to taking the state's funding decisions for public schools away from the citizens' elected representatives and turning them over to the courts who would rely on 'experts' to determine through unproven econometric and other social science modeling how much money the state shall spend on public education," writes the attorney general.
Unfortunately, the Supreme Court essentially rejected that argument in its earlier ruling. And so a case without constitutional foundation plods forward. The trial is set for July, of 2014 that is.