The legal obligation to educationally prepare all our children

Some argue, as The Day has in its editorials, that Judge Thomas Moukawsher’s Memorandum of Decision in CCJEF v. Rell represents judicial over reach. They claim it is the legislature’s job to assure that a high quality of education is available to all children by passing laws to assure access to opportunity. I would say that view is limited and represents a misreading of the state court decisions and the role of courts nationally in assuring equal protection under the laws.

In March 2010, Justice Norcutt of the Connecticut Supreme Court wrote in the landmark case CCJEF v. Rell, that “…article eighth, § 1, of the Connecticut constitution guarantees Connecticut’s public school students educational standards and resources suitable to participate in democratic institutions, and to prepare them to attain productive employment and otherwise to contribute to the state’s economy, or to progress on to higher education.”

Furthermore, he ruled, “…under the constitution of Connecticut, this court has a role in ensuring that our state’s public school students receive that fundamental guarantee.”

In 2010, the Connecticut Supreme Court directed the trial court to address the adequacy of the current system of education to provide a substantially equal opportunity for all students in Connecticut. It was from this direction that the Memorandum of Decision by Superior Court Judge Thomas Moukawsher came to be.

Some forget that it was six years from the time the Connecticut Supreme Court issued its decision in CCJEF v. Rell to Judge Moukawsher’s Memorandum of Decision. The legislature and governor had ample opportunity to address the Supreme Court’s concerns, and they did not effectively do so. Court decisions in Connecticut have been very clear that the issue is not simply money or a finance formula.

Federal and state courts historically have been very cautious about intervening in education. They tend to intervene only when there is a pattern of compelling evidence showing that fundamental rights assured by the U.S. or state constitutions have not been protected by the Congress, the legislature or the governor. A good example of such decisions are those about special education in states like Massachusetts (1971) that led to Chapter 766 (1972) there and to the federal Education for All the Handicapped Act, Public Law 94-142 (1975).

Some people believe that the Brown v. Bd. of Education of Topeka, to desegregate schools to provide equal access to better schools and teaching, was an overnight decision. Absolutely not. The Brown decision represented more than 20 years of precedent building, a strategy developed by the NAACP Legal Defense Fund, starting with higher education and working toward equalizing access to opportunities in public schools. Even after the decision in 1954, it took some states more than 30 years to act with “all deliberate speed” as prescribed by the U.S. Supreme Court.

Judge Moukawsher used five examples of how the State of Connecticut had failed to meet its obligation to provide equal access to opportunity for students. He was speaking to adequacy as the state Supreme Court had.

These were: (1) intervening in struggling school districts when local government falters; (2) distributing education aid; (3) defining elementary and secondary education; (4) setting standards for hiring, firing, evaluating, and paying teachers; and (5) funding special education, identifying eligible students, and delivering services.

Definitions of adequacy need to be driven by “standards of service.” Adequacy and “standards of service” can and should be defined with several measures. What are the services to which any student is entitled? What are the actual costs of the services including staff, materials, equipment, facilities, transportation, operational overhead like administrative time, contract services such as speech and physical therapists and support services like child care? What are the intended results and what does it cost to evaluate results? There must be the will and commitment to ask each of these questions multiple times in multiple places to actually define “adequacy.”

In my view, Judge Moukawsher has laid down the gauntlet and issued the challenge by asking when are we prepared to do what is really needed to assure equal access to an education for all students, regardless of their parents' income or educational need, an education that prepares them for successful lives as adults.

Nick Fischer is a former New London superintendent of schools. He still lives in the city.




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