Judicial enlightement vs. the real world

Constitutional law is usually a coin toss, in which the politics of the judges resolves the legal ambiguity that arises as new circumstances develop in society. While legal construction in constitutional cases is often a stretch, usually it has some plausibility and the principle expounded can be followed in public administration without making everyone and the law itself ridiculous.

But Connecticut state government, state law, and the state Supreme Court are being made ever-more ridiculous by the court's 1996 decision in the case of Sheff vs. O'Neill, wherein the court construed the state constitution to establish the right of every child not just to education but also to a racially integrated one.

The decision might have sounded great. After all, city schools, particularly in Hartford, from which the Sheff case arose, were populated almost entirely by black and Hispanic students even as many suburban schools were mostly white. While this resulted from income disparities and voluntary residential patterns rather than any racial policies in government, it was still an embarrassment.

But in the Sheff case the Supreme Court failed to define the degree of integration supposedly required by the state constitution, and even the plaintiffs soon seemed to realize that the right declared by the court could not be widely enforced without destroying public education. For maintaining equal integration in every school in the state would have required racial assignment of students and so much busing that many would spend more time traveling than learning.

So the plaintiffs made various settlements with state government involving only the placement of Hartford's students in integrated schools by a certain time. To facilitate voluntary integration through school choice, state government has built many "magnet" schools in and near cities and has paid suburban schools to accept city students. This, as the Connecticut Mirror's Jacqueline Rabe Thomas reported the other day, has increased the number of Hartford students attending integrated schools from 1,800 or 11 percent in the 2007-08 school year to 7,100 or 37 percent now. But that is still short of the number state government had pledged to have integrated by this time, 41 percent. So the plaintiffs and the state Education Department are negotiating again.

Even this tiny bit of integration has cost state government hundreds of millions of dollars in "magnet" school construction and operation, and improvement in student performance has been minimal. But the greater cost may be to respect for law, the state constitution, and the state Supreme Court. For 16 years after it was so grandly proclaimed, the supposed right of every student in Connecticut to a racially integrated education has turned out to be only the right of 37 percent of students in one of 169 municipalities.

And this fraud is not challenged, just renegotiated, because any attempt to enforce the supposed state constitutional right of every student to an integrated education - that is, racial assignment of every student to every school - would be challenged in federal court and eventually nullified by the federal constitution's guarantees against racial treatment.

With its original sweeping but unenforceable decision in education law, made in 1977 in the case of Horton vs. Meskill, the state Supreme Court found in the state constitution a right to equal educational opportunity but neglected to define equality.

The objective was to equalize financing among school districts, and as a result the poor districts now get more money per student than other districts. But 35 years later school quality and student performance are still far from equal. Most city schools remain awful simply because their students remain so disadvantaged at home.

But just as it keeps renegotiating the Hartford school integration rate, state government recalculates its school aid formula every year. Nothing much changes but at least the judges and plaintiffs' lawyers can keep posing as the vanguard of enlightened thought.

Chris Powell


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