Indiana Law Review


Race and Money, Courts and Schools:
Tentative Lessons from Connecticut

Peter D. Enrich*

Introduction

The idea of universal, free public education has long been a powerful force
in American ideology. It gives content to the fundamental American creed of
equality of opportunity. It draws upon our prevalent optimism about individual
potential, our notion that, with the proper support, any child can achieve

anything. It envisions a vital crucible for the distinctively American ideal of
creating a single people from the diverse strands of our population.

From its inception, free public education has been conceived, almost
universally in the United States, as an obligation of the individual states.

Virtually every state constitution recognizes education as a central state

responsibility.^ Yet, almost as universally, the actual task of funding and

operating the public schools has been delegated to local communities, drawing

in large measure on local resources.

The result ofthis devolution ofauthority has been a reality that falls far short
of the ideal. Because of the residential segregation—by both race and class

—

that has become an increasingly predictable feature of the American geography,
our public school systems have come to be sharply divided along lines of color
and socioeconomic status. Additionally, because of the dependence on local

funding sources for school budgets, the resources available to schools serving

these very different populations have also become starkly divergent, with
relatively generous funding for affluent suburban districts and meager support for

many urban and rural districts.^ To complete the vicious cycle of inequality, the
resultant disparities in school resources and quality exert a powerful influence

on residential location decisions and on real estate values, exacerbating the

patterns of residential segregation.

By the latter part ofthe Twentieth Century, the result in virtually every state
was that our system of public education had become, not a force for equality,
opportunity, and inclusion, but rather one of the central mechanisms that

reinforced and reproduced from generation to generation America's tacit caste

system ofrace and class. Poor children and children ofcolor are predominantly

channeled into underfunded, underperforming schools where their opportunities

* Professor, Northeastern University School of Law. A.B., Yale College; J.D., Harvard

Law School. I am indebted to the able research assistance of Keir Bickerstaffe, Erica Crews,
Jessica Faige, Margaret Fox, Karin Gechter, and Rebecca Stallman.

1. See Peter D. Enrich, Leaving Equality Behind: New Directions in School Finance

Reform, 48 Vand. L. Rev. 101, 105-06 &, n.l6 (1995); Robert M. Jensen, Advancing Education

Through Education Clauses ofState Constitutions, 1997 B.Y.U. Educ. & L.J. 1,3 ("All fifty state
constitutions contain an education clause designed to establish some form ofeducational system.").

2. For a vivid description of these inequalities and their impacts, see Jonathan Kozol,

Savage Inequalities ( 1 99 1 ).



524 INDIANA LAW REVIEW [Vol. 36:523

for educational achievement and advancement are severely restricted.^ Children

from well-to-do white families almost universally receive their schooling in
adequately endowed public or private schools, which serve as natural stepping
stones to post-secondary education and to economic success. Thus, the
opportunities for each succeeding generation are largely dictated by the

circumstances of their parents."*

Concurrent with the growing recognition ofthe chasm between the ideal and
the reality ofAmerican public education, the latter halfofthe Twentieth Century
also marked the emergence of another striking phenomenon—^the surprising
prospect that the legal system, the Constitution, and the courts could offer

powerful tools for attacking and remedying social inequalities. Starting in the

1950s, Chief Justice Warren's Supreme Court issued an array of decisions,
sweeping across broad swaths of the legal landscape, challenging entrenched

systems of hierarchy and subordination.^ A whole generation of reformers and
social activists (my generation, in fact) learned to think of law and the judicial
system, not as a central conservative bulwark of the established order,^ but as a

primary pathway for recognition and redemption ofthe rights ofthe downtrodden

and disenfranchised.

The system of public education was one ofthe primary institutional targets
of this judicial revolution, with Brown v. Board ofEducation and its progeny^
providing perhaps the most resonant model for the redemptive potential of the

courts and the Constitution. The early desegregation cases held out the promise

that law could be used to restore the public school system to its rightful role as

the guarantor of equality and opportunity for all. Indeed, this promise shone so

bright that, even when a series of Supreme Court decisions in the early 1970s
eviscerated the Federal Constitution as a tool for education reform,^ activists

simply redirected their energies to state courts and state constitutions in the

3

.

See, e.g. , Diana Jean Schemo, Neediest Schools Receive Less Money, Report Finds, N.Y.

Times, Aug. 9, 2002, at AlO (describing study by the Education Trust, finding systematic

underfunding of schools serving poor and minority children); David Dante Troutt, Ghettoes

Revisited: Antimarkets, Consumption, and Empowerment, 66 BROOK. L. REV. 1, 23-24 (2000).

4. See KOZOL, supra note 2, at 104-06 (describing poor students' recognition of the caste

system within which they are educated).

5. See, e.g. , Reynolds v. Sims, 377 U.S. 533 (1964) (applying one person, one vote standard

to state legislative apportionment); Gideon v. Wainwright, 372 U.S. 335 (1963) (requiring court

appointed counsel in all felony prosecutions); Engel v. Vitale, 370 U.S. 421 (1962) (forbidding

prayer in school).

6. Cf. Arnold M. Paul, Conservative Crisis and the Rule of Law ( 1 976) (discussing
this more familiar role of law in American society).

7. See Brown v. Bd. of Educ, 347 U.S. 483 (1954); Cooper v. Aaron, 358 U.S. 1 (1958);

Griffin v. County Sch. Bd., 377 U.S. 218 (1964); Green v. County Sch. Bd., 391 U.S. 430 (1968).

8. See, e.g., Milliken v. Bradley, 418 U.S. 717 (1974); San Antonio Indep. Sch. Dist. v.

Rodriguez, 41 1 U.S. 1 (1973). See also Washington v. Davis, 426 U.S. 229 (1976) (building on

Jefferson v. Hackney, 406 U.S. 535 (1972) and Keyes v. Sch. Dist., 413 U.S. 189 (1973) to

conclude that the Equal Protection Clause only applies to intentional discrimination).



2003] RACE AND MONEY, COURTS AND SCHOOLS 525

continuing pursuit ofjudicial transformation of the education system.

Those state court efforts have met with impressive, if far from universal,

success. Since 1970, courts in half of the states have found that their

decentralized systems of public education did not satisfy state constitutional

norms of equity or adequacy.^ These decisions suggest the continuing efficacy
of law and litigation as the tools of social reform. However, in most of these

cases, the judicial triumph marked the beginning, not the end, of institutional

change. '° Courts characteristically limit their decisions to a finding that the

existing system fails to satisfy constitutional obligations. The burden of forging
a constitutional alternative falls to the legislative and executive branches, and

they, too often, approach this judicially assigned task with attitudes ranging from

caution and confusion to resentment and resistance." While the legislative

responses in some states have been swift and substantial,^^ in a number ofothers
the process has dragged on for years, resulting in an ongoing and unproductive

9. For a description of the reported cases decided up to 1993, see the Appendix to Enrich,

supra note 1, at 185-194 (identifying fifteen states—Alabama, Arizona, Arkansas, California,
Connecticut, Kentucky, Massachusetts, Montana, New Hampshire, New Jersey, Tennessee, Texas,

Washington, West Virginia, and Wyoming—finding unconstitutionality, and seventeen—Colorado,
Georgia, Illinois, Maryland, Michigan, Minnesota, Nebraska, New York, North Carolina, North

Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Virginia, and Wisconsin

—

declining to find unconstitutionality). Subsequent to 1993, five more states (Idaho, New York,

Ohio, Vermont, and South Carolina, three ofwhich were previously in the "constitutional" column)

have joined the ranks of those with reported decisions imposing constitutional standards on their

state's systems, while four (Florida, Louisiana, Maine, and Rhode Island) have joined the ranks of

those with decisions declining to find unconstitutionality. In addition, the website maintained by

the Advocacy Center for Children's Educational Success with Standards (ACCESS) identifies five

more states (Alaska, Kansas, Missouri, New Mexico, and North Carolina) in which unreported

lower court decisions finding unconstitutionality have not been appealed. See ACCESS website,

at http://www.ACCESSednetwork.org/states/index.htm (last visited Jan. 20, 2003).

10. Of course, in some cases, the judicial victory itself was far from the first step in the

interplay between litigation and political action. In Massachusetts, for example, the pendency of

a legal challenge to the state's school funding system was a major impetus to two dramatic reforms

of the system before the suit was addressed by the courts in McDuffy v. Secretary of Executive

Office ofEducation, 615 N.E.2d 516 (Mass. 1993).

1 1

.

For a recent example of resistzince, see Maeve Reston, hl.H. Nervously Awaits Reforms,

Boston Globe, Nov. 1 7, 2002, at B7 (discussing New Hampshire's incoming governor's support

of a constitutional amendment to limit the state supreme court's ability to weigh in on the school-

funding system); James Vaznis, School Funding Key Issue, BOSTON GLOBE, June 30, 2002, at Al

(describing Republican support for such a constitutional amendment and the difficult road to

passing it).

1 2. Kentucky and Massachusetts provide examples ofspeedy and substantial responses. For

a description of developments in Kentucky, see Molly A. Hunter, All Eyes Forward: Public

Engagement and Educational Reform in Kentucky, 28 J.L. & Educ. 485, 498-99 (1999). In
Massachusetts, reform legislation was signed within days after the state's Supreme Judicial Court

declared the unconstitutionality of the pre-existing system. See Enrich, supra note 1, at 176.



526 INDIANA LAW REVIEW [Vol. 36:523

interplay between the courts and the "political"^^ branches. ^"^ The result,
notwithstanding the string ofjudicial victories, continues in many states to be an
educational system riven by deep social, economic, and racial divisions.

^^

One of the central questions raised by this history is the plausibility of my
generation's hopeful vision of the law as a transformative force with which to

right societal injustices. In part, this is a question about the degree to which

courts will have the courage or the inclination to apply constitutional ideals to

entrenched institutional structures. ^^ But a second aspect of the question may
raise more profound concerns about the viability ofmy generation's hopes: even
when the courts do take up the mantle of social justice, to what extent can the
interventions of this "least dangerous branch"'^ actually catalyze meaningful

institutional change?

The answer to this question is neither simple nor univocal, even when the
focus is limited to the single example of school reform.'^ Among the states
whose school systems have been found constitutionally flawed, both the ensuing
political processes and the ultimate scope ofthe resultant reforms vary across a

very wide range. It seems that these variations reflect no simple discernible

pattern, but rather the workings ofmultiple contingent features ofthe individual

situations. The appropriate question, then, is not w/ze/Z/^r judicial interventions
can be transformative, but rather when and under what specific circumstances.
The answers, if any, are likely to be found only by a close examination of
particular instances.

The purpose of this article is to seek hints at the answers to these questions

1 3

.

While it is customary to refer to the legislature and executive as the "political" branches,

it is important to recall that, by contrast to the lifetime appointments of federal judges, many state

court judges are elected and serve for fixed terms, and hence are far more "political" than their

federal counterparts. S'ee 34 TheBOOKOF THE States 209-1 1 (2002) (describingjudicial selection

systems in the fifty states).

1 4. For two dramatic examples, consider the cases ofNew Jersey (see, for example, Paul L.

Tractenberg, The Evolution and Implementation of Educational Rights Under the New Jersey

Constitution of1947, 29 RUTGERS L.J. 827 (1998)), and Texas (see, for example, J. Steven Farr &
Mark Trachtenberg, The Edgewood Drama: An Epic Questfor Education Equity, 1 7 Yale L.&

Pol'y Rev. 607 (1999)). See also Charles Benson, Definitions of Equity in School Finance in

Texas, New Jersey and Kentucky, 28 Harv. J. ON Legis. 401 (1991).

1 5. See Schemo, supra note 3.

1 6. See Karen Swenson, School Finance Reform Litigation: Why Are Some State Supreme

CourtsActivist andOthers Restrained, 63 Alb. L. Rev. 1 1 47 (2000) (seeking empirical explanation

for different approaches and outcomes in different states' courts).

17. The Federalist No. 78, at 436-37 (Alexander Hamilton) (Isaac Kramnick ed., 1987).

Hamilton explained, "The judiciary, on the contrary, has no influence over either the sword or the

purse, no direction either of the strength or the wealth of the society." Id.

18. Cf Douglas S. Reed, Twenty-Five Years after Rodriguez.- School Finance Litigation and

the Impact ofthe New Judicial Federalism, 32 LAW & SOC'Y REV. 175, 205-14 (1998) (offering
a general framework through which to assess forces influencing variable impacts of school finance

cases).



2003] RACE AND MONEY, COURTS AND SCHOOLS 527

through a case study of a single state's experience with educational reform

litigation. I use Connecticut as my example because its history in this area over
the past thirty years has been peculiarly rich, involving two quite different legal
challenges to the educational status quo: first Morton v. Meskill,^^ which

challenged the resource disparities between rich and poor Connecticut school

districts, and second Sheffv. O 'Neill^^ which focused on the racial and economic
segregation fostered by Connecticut's school districting. In each case, the state

supreme court found a violation ofthe state constitution; yet, the two cases have

produced two quite distinct institutional responses. By exploring these two
cases, and particularly the ways in which the political process has responded to
them, some tentative lessons may emerge about the efficacy of the courts and
constitutional law as instruments of social reform.

In the ensuing section, I depict some of the legal context from which the
Connecticut cases arise, with particular attention to the key preceding

developments in federal constitutional law. In the next three sections, I offer a

brief history ofthe Connecticut cases and the responses to them: Part II discusses

Horton\ Part III addresses Sheff\ and Part IV considers some significant recent
developments, including renewed litigation in Shejfand the initiation of a new
suit revisiting the issues from Morton}^ Finally, in Part V, I attempt to distill

some tentative lessons from Connecticut's experience.

I. Setting the Stage: The Legal Context for the
Connecticut School Cases

In the iconography of progressive judicial activism, perhaps the most

hallowed place belongs to Brown v. Board ofEducation, and for good reason.^^
In Brown, the Supreme Court confronted one of the most vivid and entrenched

instruments ofAmerican inequality, the explicit and deliberate racial segregation

of public schools. The Court directly acknowledged segregation's profound
social impacts and firmly declared its incompatibility with constitutional norms.

Over the ensuing years, the Court's bold and forthright challenge to school

segregation served as the shining example that unleashed the capacity of the

federal courts and the Constitution as the agents of egalitarian social

transformation.

At the same time. Brown placed a special focus on issues of educational

19. The Norton plaintiffs brought constitutional challenges that resulted in two pertinent

Connecticut Supreme Court cases. First was Morton v. Meskill, 376 A.2d 359 (Conn. 1977)

(Morton I). Second, after the legislature's attempt to correct the constitutional wrongs found in

Morton I, the Morton plaintiffs' challenge to the legislative remedy led to Morton v. Meskill, 486

A.2d 1099 (Conn. 1985) [Morton III). See also Morton v. Meskill, 445 A.2d 579 (Conn. 1982)

(Morton U) (addressing procedural issues that are outside the scope of this Article).

20. 678 A.2d 1267 (Conn. 1996).

21. Johnson v. Rowland, No. X03-CV-04921035 (Conn. D. Ct.).

22. 347 U.S. 483 (1954). For a detailed history of Brown, see RICHARD KXUGER, SIMPLE

Justice (1975).



528 INDIANA LAW REVIEW [Vol. 36:523

rights. It was, ofcourse, as much a case about schools as about race. The Brown
Court underscored, in ringing language, the centrality ofeducational opportunity

to American values and aspirations:

Today, education is perhaps the most important function of state and
local governments. Compulsory school attendance laws and the great
expenditures for education both demonstrate our recognition of the

importance of education to our democratic society. It is required in the

performance ofour most basic public responsibilities, even service in the
armed forces. It is the very foundation of good citizenship. Today it is
a principal instrument in awakening the child to cultural values, in
preparing him for later professional training, and in helping him to adjust
normally to his environment. In these days, it is doubtful that any child

may reasonably be expected to succeed in life if he is denied the
opportunity of an education.^^

In the long string ofschool segregation cases that followed in Brown's wake, the
Court repeatedly reaffirmed the seriousness of its commitment to break down the
barriers that segregation posed to equal educational opportunity.^'* These cases

sent two powerful messages: first that the courts were ready and able to redress
deep-seated social injustices, and second that public education was an institution
of special importance in addressing issues of equality and opportunity. While

courts had long provided a forum for a variety of disputes about school

districting and school funding,^^ the desegregation cases introduced and

encouraged a far more radical and transformative role for the courts in addressing
issues of educational opportunity.

There can be little question that Brown and its progeny had a profound
practical impact on schools and other segregated institutions in much of the
country.^^ However, in the years following Brown, the limitations of the

desegregation cases became increasingly evident. Some of the limitations

23. Brown, 347 U.S. at 493. This passage has been quoted over and over in later federal and

state school cases. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 41 1 U.S. 1,111 (1973)

(Marshall, J., dissenting); Sheff v. O'Neill, 678 A.2d 1267, 1289 (Conn. 1996); Rose v. Council

for Better Educ, 790 S.W.2d 186, 190(Ky. 1989); Serrano v. Priest, 487 P.2d 1241, 1256-57 (Col.

1971).

24. See. e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ, 402 U.S. 1 (1971); Griffin v.

County Sch. Bd., 377 U.S. 218 (1964).

25. See, e.g., Garrett v. Colbert County Bd. of Educ, 50 So. 2d 275 (Ala. 1950); Moore v.

Bd. of Educ 193 S.E. 732 (N.C. 1937).

26. The most dramatic impacts were, of course, in the South, where de jure segregation had

been the norm. See Gary Orfield & Susan E. Eaton, Dismantling Desegregation 14-15
(1996). However, the impacts were by no means confined to that region. See, e.g., Missouri v.

Jenkins, 495 U.S. 33 (1990) (approving extensive remedies for segregation of Kansas City,

Missouri school system); Keyes v. School Dist., 413 U.S. 189 (1973) (requiring desegregation of

the Denver school system); Anthony Lukas, Common Ground (1986) (tracing the practical
impacts of the Boston school desegregation case).



2003] RACE AND MONEY, COURTS AND SCHOOLS 529

emerged in the doctrinal evolution of the applicable constitutional principles.
Others reflected the depth of societal resistance to judicially imposed change.

Together they resulted in changes that were far more difficult and far less
sweeping than the proponents of desegregation initially hoped.

On the doctrinal side, perhaps the critical weakness of the desegregation
strategy arose with the judicial distinction between de jure and de facto

segregation. While the early school cases all involved clear instances of de jure

segregation, the Court's focus was on the segregation, not its source.^^ In fact,
it was not until nearly twenty years later that the Court, in Keyes v. School
District No. 7,^* actually decided that the Fourteenth Amendment only applied
where there was a finding of a governmental "purpose or intenf to segregate.^^
Yet, prior to Keyes, the Court's rulings had raised substantial doubts about the

availability of constitutional remedies to rectify the school segregation due to

housing patterns and municipal boundaries that predominated outside of the

South.
'"

The most problematic corollary arising from the narrowing ofconstitutional
remedies to cases of intentional segregation was the unavailability of
desegregation remedies that extended across school district lines, in the absence

of a showing that the lines had been drawn with a discriminatory purpose.^^ The
Court's decision in Milliken v. Bradley meant that the Fourteenth Amendment
could offer no meaningful relief for Detroit's starkly segregated schools, nor for

those ofmany other metropolitan areas where racial separation in the schools was
effectively reinforced by political boundaries between cities and suburbs. By
limiting scrutiny to cases of deliberate segregation, the Court rendered the

Fourteenth Amendment's protections meaningless for vast numbers of students
of color attending segregated, often inferior, schools.

Even in the cases where de jure segregation was proven, judicial relief
proved disappointing. The intransigence and foot-dragging of local officials

ensured that most Southern schools remained sharply segregated for many years
after Brown, although more meaningful progress was achieved after passage of

27. See, e.g.. Cooper v. Aaron, 358 U.S. 1, 7 (1958) (focusing on obligation "to eliminate

racial segregation from the pubic schools"); Brown, 347 U.S. at 495 (holding simply that

"[s]eparate educational facilities are inherently unequal," without any mention of presence or

absence of discriminatory intent).

28. 413 U.S. 189,205(1973).

29. Id. (emphasis in original). Even then, the Court reached its conclusion over the strenuous

objection of Justice Powell, who preferred to focus on the fact of racial segregation, not its cause.

See id. at 224 (Powell, J., concurring).

30. See, e.g., United States Commission on Civil Rights, Racial Isolation in the

Public Schools 262 (1967) ("[C]ourts have not been so ready to declare adventitious school

segregation unconstitutional. Thus, the result of most judicial decisions thus far has been to leave

the question of remedying racial imbalance to the legislative and executive branches ofthe Federal

and State Governments.").

31. See Milliken v. Bradley, 418 U.S. 717, 745 (1974).



530 INDIANA LAW REVIEW [Vol. 36:523

the 1964 Civil Rights Act.^^ Throughout the nation, reluctance to adopt or

require busing and similar strategies, combined with the phenomenon of"white
flight" from the urban districts where most students ofcolor remained, rendered
the challenges of segregation increasingly intractable." Thus, despite some
successes. Brown's promise of transformed educational opportunities for
minority children went largely unfulfilled.^"*

One response to disappointment over the efforts at school desegregation was
the emergence of a new litigation strategy, focusing on money rather than race.
Starting in the mid-1960s, a flurry of lawsuits were filed challenging, not the

assignment of students to schools, but the allocation of dollars to school

districts.^^ The central argument ofthese cases, some ofwhich were initiated by
the same groups that had been behind the desegregation cases,^^ was that systems
of school funding that depended heavily on local property taxes (as was the case
in virtually every state) violated the Constitution's equal protection guarantee,

because these systems provided dramatically disparate support for a critical

governmental function in different school districts, based solely on the relative

wealth of those districts.^^ The pattern that these cases painted, in state after
state, revealed rich school districts with property wealth many times that oftheir
poorer neighbors supporting education spending and services radically superior

to those of the poorer districts (which commonly included the urban school
systems serving the preponderance ofminority children).^^ The primary goal was

32. See 0RF1ELD& EATON, supra note 26, at 7 ("By 1 964, only one-fiftieth of Southern black

children attended integrated schools."); Frank M. Johnson, Jr., School Desegregation Problems in

the South: An Historical Perspective, 54 MiNN. L. Rev. 11 57 (1970).

33. See, e.g.. United States Commission on Civil Rights, Racial Isolation in the

Public Schools 115 (1967) (discussing obstacles to effective remedies for racial isolation);

Kluger, supra note 22, at 765-66 (discussing resistance to busing); Mark G. Yudof, Equal

Educational Opportunity and the Courts, 5 1 Tex. L. Rev. 41 1 , 470-72 (1973) (discussing the bleak

prospects for future integration).

34. See, e.g., Orfield & Eaton, supra note 26, at 1-22 (tracing the disappointing record of
efforts at desegregation from Brown to the 1 990s); Robert L. Carter, Public School Desegregation:

A Contemporary Analysis, 2>1 St. Louis U. L.J. 885 (1993) (discussing failings of desegregation

movement).

35. See, e.g, Serrano v. Priest, 487 P.2d 1241 (Cal. 1971); Van Dusartz v. Hatfield, 334 F.

Supp. 870 (D. Minn. 1971); Mclnnis v. Shapiro, 293 F. Supp. 327 (N.D. 111. 1968), aff'dmem. sub

nom. Mclnnis v. Ogilvie, 394 U.S. 322 (1969).

36. See Enrich, supra note 1, at 121 n.97 (discussing role of civil rights and anti-poverty

organizations in the early education financing cases).

37. See, e.g., Rodriguez v. San Antonio Indep. Sch. Dist, 337 F. Supp. 280 (W.D. Tex.

1972), rev'd, 41 1 U.S. 1 (1973); Serrano v. Priest, 487 P.2d 1241 (1972).

38. See, e.g., Rodriguez, 337 F. Supp. at 282 (contrasting rich and poor districts in San

Antonio). The correlations between property wealth and family income (and race) were, however,

less than perfect, due to the fact that many urban districts included substantial commercial property

with high values. See Michael J. Churgin et al., Note, A Statistical Analysis ofthe School Finance

Decisions: On Winning Battles and Losing Wars, 81 YALE L.J. 1303 (1972).



2003] RACE AND MONEY, COURTS AND SCHOOLS 53

1

to secure better funding for these poorer districts and to thereby provide equal

educational opportunities even for those students relegated to economically or

racially isolated schools.

The rise of these funding-based equal protection cases reflected several
trends, in addition to frustration with the disappointing results of the

desegregation cases.^^ One important development was the shift in focus among
civil rights advocates from fighting segregation to empowering people of color,
a shift that suggested that integration of schools was less important than
providing minority students with opportunities for educational excellence/^

Another important development was the emergence of the "War on Poverty" as
a central focus of progressive efforts, a development which kindled enthusiasm

for establishing a constitutional prohibition against discrimination on the basis

ofwealth/' A third was the accumulation ofa wide range of Supreme Court case
law that appeared to provide critical precedential support for extending equal

protection arguments to educational inequalities based on resources, not on
42

race.

After some early successes,'*^ the constitutional assault on education funding
ran aground with the Supreme Court's 1 973 decision in San Antonio Independent

School District v. Rodriguez. '^'^ In Rodriguez, a sharply divided Court set a limit

to the reach of its equal protection jurisprudence by restricting the most rigorous

judicial scrutiny to cases impinging on either a fundamental constitutional right

or an insular minority. It went on to fmd that neither educational rights nor the
interests of poor communities triggered such scrutiny. As a result, the Court
concluded that a state's interest in providing local communities with control over

their own schools couldjustify a system of local districts reliant on local funding,
notwithstanding the inequities such a system might cause."*^ While it is

fascinating to speculate how different our educational and legal systems might
have been if one vote on the Court had switched,'*^ the Rodriguez ruling

39. For a general discussion of the factors influencing this trend, see Enrich, supra note 1

,

at 115-128.

40. See id. at 123 & nn. 105-06 and sources cited therein.
4 1

.

See Eric A. Hanushek, When School Finance "Reform " May Not Be Good Policy, 28

Harv. J. ON Legis. 423, 424 (1991) (noting that "[s]chool finance reform tended to be viewed as

another element ofthe War on Poverty"). See generally Jerold S. Auerbach, Unequal Justice

268-72 (1976) (tracing rise of the poverty law movement).

42. See generally ARTHUR E. WISE, RICH SCHOOLS, POOR SCHOOLS: THE PROMISE OF EQUAL

Educational Opportunity (1968) (articulating the multiple strands of the equal protection

argument); Enrich, supra note 1, at 1 16-21.

43. See, e.g., Rodriguez, 337 F. Supp. 280; Van Dusartz v. Hatfield, 334 P. Supp. 870 (D.

Minn. 1971); Serrano v. Priest, 487 P.2d 1241 (Cal. 1972); Milliken v. Green, 203 N.W.2d 457

(Mich. \972), vacated and rev'd, 2\2^.W.2d 7] \ (Mich. 1973).

44. 411 U.S. 1 (1973).

45. Id

46. Such speculation is particularly intriguing in light of the fact that only one of the five

Justices in the slender Rodriguez majority (Justice Stewart) was on the Court in 1 968 when the suit



532 INDIANA LAW REVIEW [Vol. 36:523

effectively brought an end to the effort to challenge school district funding under

the Federal Constitution.

Rodriguez did not, however, put an end to legal challenges to school funding

inequities. Instead, it simply shifted the focus of such challenges away from the
Federal Constitution and onto state law. Even before Rodriguez was decided, a
number of the early cases, while litigated primarily under federal constitutional
law, reached decisions that were based, at least in part, on findings ofviolations

of state constitutional rights."*^ Within days after the Rodriguez decision, the

New Jersey Supreme Court, in an opinion evidently crafted before Rodriguez's
outcome was known,"*^ struck down the state's locally funded system exclusively
on the basis of the state constitution's provision mandating "a thorough and

efficient system of free public schools.'"*^ Building on these foundations,

advocates in manyjurisdictions turned to their state constitutions and state courts
to continue the legal struggle for equality in educational funding.^" The shift
from challenges focused on race to those focused on money was undeterred by
the loss ofa federal constitutional basis; it simply proceeded in a different, state-

based forum.

II. Norton v. Meskill: Connecticut Tackles Funding Inequities

Connecticut's system ofschool funding was one ofthe first to be challenged
in a post-Rodriguez lawsuit grounded primarily in the state constitution. Morton

V. Meskill, which was filed in November 1973, just a few months after the
Rodriguez decision, still included a count grounded in the Federal Equal

Protection Clause, but its central claims rested on Connecticut's own equal
protection provisions^' and on the state constitution's recently enacted provision

assuring that "[t]here shall always be free public elementary and secondary

schools in the state."^^ As in the earlier cases focused on the Federal

was filed. Its outcome largely depended on the accidents of death and retirement while the case

proceeded through the courts.

47. See, e.g., Serrano v. Priest, 487 P.2d 1241 (Cal. 1971), aff'd, 557 P.2d 929 (Cal. 1976)

(affirmed solely on state constitutional grounds). The Michigan Supreme Court reached a similar

decision, resting on both state and federal constitutional reasoning, in Milliken v. Green, 203

N.W.2d 457 (Mich. 1972),revW, 212N.W.2d71 1 (Mich. 1973) (reversed the state constitutional

holding on rehearing, after the Supreme Court's decision in Rodriguez (and after changes in the

composition of the Michigan court)).

48. See Robinson v. Cahill, 303 A.2d 273, 279 (N.J. 1973).

49. Id. at 295.

50. Among the early post-Rodriguez cases were Seattle School District No. I v. State, 585

P.2d 71 (Wash. 1978); Pauley v. Kelly, 255 S.E.2d 859 (W. Va. 1979); Board ofEducation v.

Walter, 390 N.E.2d 813 (Ohio 1979); and Morton I, 376 A.2d 359 (Conn. 1977), to which we turn

our attention below. See Enrich, supra note 1, at 185-94, for a complete list of the state

constitutional cases decided between 1973 and 1993.

51. Conn. Const, art. I, §§ 1 & 20.
52. Conn. Const, art. VIII, § 1 . The provision goes on to say, "[t]he general assembly shall



2003] RACE AND MONEY, COURTS AND SCHOOLS 533

Constitution, plaintiffs' central argument was that Connecticut's heavy reliance
on local property taxes to fund public education violated the rights ofstudents in

poorer districts to an equal educational opportunity.

Then and now, Connecticut's demographics, like those ofmany other states,
reflect sharp variations between rich and poor communities. While Connecticut

as a whole has consistently been one of the most affluent states,^^ its wealth is

heavily concentrated in its suburban communities. Many ofthe state's more rural
areas and its major urban centers (particularly Hartford, New Haven, and
Bridgeport) contain populations that are dramatically poorer^"*—and in the case
of the cities, dramatically different in their racial composition as well.^^ Cities

and towns also have significant variations in the value of their taxable property

bases,^^ although these variations often do not correlate perfectly with the

implement this principle by appropriate legislation." This provision was added to the state

constitution by a 1965 constitutional convention. See Morton /, 376 A.2d at 316-11 (Bogdanski,

J., concurring).

53. In 1980, Connecticut's per capita income ranked it second among the states (after

Alaska). In both 1990 and 2000, Connecticut ranked first. U.S. BUREAU OF ECON. ANALYSIS,

Survey of Current Business (2001 ).

54. For example, in 1970, when the statewide per capita income was $3900, see 1970 U.S.

Census, Vol.9, Table 57, the per capita incomes in Bridgeport, New Haven, and H2u1ford were,

respectively, $3233, $3181, and $3113, while incomes in the wealthy suburbs of Greenwich and

Westport were $7833 and $7 1 02. See id. , Tables 89, 1 07. In 2000, the statewide per capita income

was $28,766, whereas the per capita incomes in Bridgeport, New Haven and Hartford had only

grown to $16,306, $16,393, and $13,428 respectively, and those in Greenwich and Westport had

risen to $74,346 and $73,664. See U.S. Census Bureau, Census 2000 Summary File 3. In 1970,

poor rural areas often had per capita incomes even below those of the urban centers, see 1970 U.S.

Census, Vol. 8, Table 1 18 (listing per capita incomes for, e.g., Canterbury and Griswold of $2954

and $2944), whereas by 2000, these rural areas were doing substantially better than the cities,

although still less well than the state median. See U.S. Census Bureau, Census 2000 Summary File

3 (listing Canterbury at $22,3 1 7 and Griswold at $2 1 , 1 96). See also Carole Bass, A Whiter Shade

of Sheff? The New Face of Connecticut School Reform, Hartford ADVOCATE, Apr. 30, 1998

(describing continuing gap between low welfare populations in most of the state and high welfare

rates in a handful of communities).

55. See Sheff v. O'Neill, 678 A.2d 1267, 1272-73 (Conn. 1996) (documenting stark

disparities in minority school enrollment percentages between Hartford (92.4%) and neighboring

communities (typically below 10%)). In 1970, Connecticut's total population was 93.5% white,

whereas Hartford, New Haven and Bridgeport were, respectively, 70.8%, 72.6% and 82.7% white.

See 1970 U.S. Census, Vol. 8, Tables 18,23. By 2000, the statewide population was 8 1.6% white,

the percentages for Hartford, New Haven and Bridgeport had dropped to 1 7.8%, 35.6% and 30.9%.

See U.S. Census Bureau, Census 2000 Redistricting Data (Public Law 94-171) Summary File.

Whereas the non-white population was almost entirely African-American in 1970, see 1970 U.S.

Census, Vol. 8, Table 18, by 2000 it was made up of roughly equal percentages of Latinos (9.4%

of state population) and blacks (9.1%), with a smaller representation (2.4%) of Asian-Americans.

See U.S. Census Bureau, Census 2000 Redistricting Data (Public Law 94-171) Summary File.

56. See Morton I, 376 A.2d at 366-67 (describing 1972-73 property wealth per pupil ranging



534 INDIANA LAW REVIEW [Vol. 36:523

differences in incomes oftheir residents.^^ In Connecticut (like many of its New
England neighbors, but unlike much ofthe rest ofthe country), each city or town
constitutes its own school district.^^ Thus, the economic and racial divisions
among the municipalities are reflected in the disparities among school systems
as well.

The Norton case was brought on behalf of students in the town of Canton,
a community located some ten miles outside ofHartford with a 1970 population
of less than 7000.^^ Although not one of the state's poorest communities,

Canton's taxable property wealth of $38,415 per pupil in 1972-73 was
substantially below the state average of $53,639, and dramatically below the
$1 00,000 range characteristic ofthe wealthiest school districts.^^ In this period,

the state of Connecticut provided only a relatively meager twenty to twenty-five

percent of school funding (far below the then national average of forty-one

percent), and, unlike most other states which distributed a significant share of
their funds under formulae designed to mitigate differences in local district

wealth, Connecticut allocated the vast bulk of state funds through flat per-pupil

grants.^'

As a result, Connecticut presented a relatively stark version of the
characteristic pattern challenged in all of the school funding cases: the poorer

districts, while taxing themselves more heavily, were able to provide

significantly less funding for their schools than were their wealthier neighbors."

Canton provided a clear, though not an extreme, example. Its school tax rate of

21 .9 mills compared to a state average of 14.6 mills, and to a typical rate of 1 1 .

1

mills for the wealthiest communities, while its per pupil spending of $945 fell

from $170,000 in wealthy communities to $20,000 in poor districts).

57. See Churgin et al., supra note 38, at 1 327-28 (calculating the weak correlations between

poverty levels and low property values, chiefly due to high commercial valuations in communities

where the poor reside).

58. See CONN. Gen. Stat. § 10-240 (2002).

59. See 1970 U.S. Census, Conn. 8-1 16, Table 31 (listing Canton's population as 6,868, more

than ninety-nine percent white). By 2000, Canton's population had grown to 8840, ninety-six

percent of which was white. 2000 U.S. Census, Canton data. Table DP-1, http://factfinder.

census.gov.

60. See Norton /, 376 A.2d at 366-67. At the same time, Canton was substantially better

endowed than the poorest communities, with per pupil valuations in the $25,000 range. Id.

Measured by income, rather than by wealth. Canton in 1970 was almost precisely at the state

median. Compare 1970 U.S. Census, Conn. 8-175, Table 57 (Conn, average family income of

$13,795), with Conn. 8-1 16, Table 1 18 (Canton average family income of $14,022). By 2000,

Canton's household incomes had moved significantly above the statewide figures. Compare 2000

U.S. Census, Conn, data. Table DP-3, http://factfinder.census.gov (Conn, median family income

of $65,521), with Canton data. Table DP-1, http://factfmder.census.gov (Canton median family

income of $80,553).

61 . Morton /, 376 A.2d at 366. Connecticut's approach to distribution of state aid ranked it

last among all the states in terms of its equalizing effects. See id. at 368.

62. Id Sii 367.



2003] RACE AND MONEY, COURTS AND SCHOOLS 535

substantially short of the statewide average of $1055, and dramatically short of

the $ 1 245 typically spent in the wealthiest districts.^^ These spending differences

translated into significant differences in the abilities of the school systems to

provide educational opportunities to their students, differences which the courts

quantified in terms ofsharply differential spending, inter alia, on teacher salaries,

and on special education services.^"*

Faced with the clear evidence of these sharp disparities, the Norton trial

court ruled, in late 1974, that Connecticut's school funding system violated the

state constitution.^^ The state's supreme court affirmed this decision in 1977 by
a four-to-one margin.^^ The supreme court reasoned that, under the state
constitution, even if not under the Federal Constitution, "the right to education

is so basic and fundamental that any infringement of that right must be strictly

scrutinized."^^ Because the right to education is fundamental, it follows that

"pupils in the public schools are entitled to the equal enjoyment of that right,"

and, hence, that the existing funding system, with its clear pattern of inequalities,

"cannot pass the test of 'strictjudicial scrutiny' as to its constitutionality."^^ The

court did not spell out the extent to which its conclusion rested on the state

constitution's specific mandate for free public schools, as opposed to its general

guarantees of equal protection. Whatever the precise source, it found within the

state constitution a "requirement that the state provide a substantially equal

educational opportunity" to children in all of the state's public schools,

regardless of the resources of the communities in which those schools may be
located.^^

The court then concluded its opinion with a relatively brief but careful
discussion of remedies. Like virtually every other court to find a state's school

funding system unconstitutional, the Connecticut court placed the primary

responsibility for designing a constitutional system on the legislature, observing

that this allocation was particularly appropriate where the state constitution
expressly assigned the legislature the responsibility for implementing the state's

63. Id at 367-68. Again, Canton's situation was considerably less bleak than that of the

state's poorest communities, where the average school tax rate was 26.3 mills, and the average

spending was only $813 per pupil. Id. at 368.

64. Id

65. Horton v. Meskill, 332 A.2d 1 13 (Conn. Super. Ct. 1974).

66. //or/on/, 376A.2dat359.

67. Id. at 373. In reaching this conclusion, the court drew support, not only from

Connecticut's long history of state oversight of public education, id. at 373-74, and from the

different functions and texts of the state and federal constitutions, see id. at 372 (noting the extent

to which the Rodriguez decision rested on federalism concerns), but also from Justice Marshall's

dissent in Rodriguez and from the school funding decisions in California and New Jersey, id. at

373, although, as the dissent pointed out, id. at 379 (Loiselle, J., dissenting), the majority was far

from clear about the precise reasoning that it extracted or relied upon from these cases.

68. Id at 374-75.

69. Id at 375.



536 INDIANA LAW REVIEW [Vol. 36:523

educational duties7° Nonetheless, the court proceeded to offer the legislature

some broad suggestions about how to proceed. First, it referenced a number of
remedial approaches adopted in other states, specifically characterizing them as
"means of achieving substantial equality of opportunities for learning,"^* and
thereby hinting strongly that any of them would suffice to meet the court's
constitutional standard.^^ Second, it expressly endorsed the trial court's findings

that a constitutional solution need neither abandon the use ofthe property tax as

a source ofincome for education funding nor diminish the extent of local control

ofeducation.^^ Finally, the court emphasized that the constitutional requirement

was only for "substantial equality,"^"^ and specifically that "absolute equality or
precisely equal advantages are not required and cannot be attained except in the

most relative sense."^^ Whatever the precise meaning of this somewhat bizarre
turn ofphrase, the court went on to spell out that deviations from perfect equality
could be justified by a wide range of factors, including "economic and
educational factors" affecting education costs, "course offerings of special

interest in diverse communities," imperfect correlations between "dollar input

and quality ofeducational opportunity," "individual and group differences," and

"local conditions."^^ The list was long enough, and varied enough, to offer the
legislature a wide range of latitude in which to devise a remedial strategy.

In light ofthe less than prompt responses to Brown v. Board ofEducation's
call for desegregation "with all deliberate speed,"^^ it seems more than a bit
ironic that the Connecticut court, more than twenty years later, adopted that same
phrase (without acknowledgment ofeither the source or the irony) to characterize

the state's obligation to develop a constitutional system ofeducation financing.^^

In fact, however, the political branches in Connecticut proved far more
responsive to the constitutional flaws in the state's education funding system,

than were the southern states to the unconstitutionality of segregation.

Indeed, it is noteworthy that, even before the suit was brought or decided, the
legislature and executive had taken some initial steps to acknowledge and address
the problems of school funding inequality. In 1972, a Governor's Commission
on Tax Reform issued a report on local government, schools, and the property
tax, which highlighted the "dual inequity" of higher taxes and lower spending in

70. Id. (citing CONN. CONST, art. VIII, § 1 ("There shall always be free public elementary and

secondary schools in the state. The general assembly shall implement this principle by appropriate

legislation.")).

71. Id.

72. Mat375&n.l5.

73. Id. at 375-76. This passage echoes the opinion's earlier recitation of the trial court's

specific findings concerning the flexibility of potential remedies. See id. at 369.

74. The standard of "substantial" equality is restated at least three times in the closing

paragraphs of the decision. See id. ot 375-76.

75. Id at 376.

76. Id

77. Brownv.Bd.ofEduc, 349 U.S. 294, 301(1955).

78. Norton 1,376 A.2d at 36\.



2003] RACE AND MONEY, COURTS AND SCHOOLS 537

the poorer towns and noted the proliferation of constitutional challenges to
property-tax based funding systems across the nation.^^ In 1973, the legislature

established a Commission to Study School Finance and Equal Educational
Opportunity, which concluded that the existing financing system was "inherently
inequitable" and proposed a specific reform program to the legislature.^^ After

the trial court's 1974 decision in Norton finding the current funding system
unconstitutional, the legislature promptly responded with a modest package of

reforms, increasing the size ofthe state's uniform per-student grants from $215
to $250 and establishing a new, lottery-funded program of "educational

equalization grants."** This latter program marked the first use in Connecticut

of a "guaranteed tax base" formula, which allocated state aid in inverse relation

to property wealth and district per capita income.*^ The program was so modest
in size and so constrained in its methodology that it, in fact, did little more than
to provide per-pupil grants of a few additional dollars to all but the wealthiest
districts.*^ However, its approach would prove a model for subsequent, more
serious reforms. Although both the trial court and the state supreme court were

quick to find these measures constitutionally insufficient, it appears (judging

from the frequency with which they are cited in the courts' opinions) that these

first, tentative steps by the political branches reinforced the resolve of the

Connecticutjudiciary to tackle these challenging issues, both by underwriting the

courts' findings of severe and problematic inequalities and by signaling a

legislative readiness to respond to a judicial mandate.

Indeed, once the state supreme court issued its Norton I ruVing in 1977, the

response was reasonably swift and substantial. In 1979, the legislature enacted

a sweeping reform ofConnecticut's education funding system, with two principal

components. The first element established a per-pupil minimum expenditure
requirement for all districts, benchmarked at the current spending level in

relatively high-spending districts.*"* The second element, the guaranteed tax base

79. See Horton v. Meskill, 332 A.2d 1 13, 1 14-15, 1 17 (Conn. Super. Ct. 1974) (citing and

quoting 2 Report of Governor's Commission on Tax Reform (Dec. 1972)); Horton I, 376 A.2d at

367.

80. Horton /, 376 A.2d at 376.

81. Id at 369.

82. See id. at 369 & n. 1 1 . Connecticut's "guaranteed tax base" approach is a variant of the
"power equalization" approaches, which were widely advocated and not infrequently adopted

around the country as the most effective remedy to school funding inequities.

83. For a discussion of its detailed workings, see id. at 369 n. 1 1 . The key constraint on the

methodology was a cap on the funding provided to any district, which had the effect of providing

identical per-pupil grants (ranging from $12.50 to $15 in different years) to virtually every district

with property wealth below the top fifteen percent of districts.

84. See Horton III, 486 A.2d 1099, 1 101 & n.3 (Conn. 1985). The minimum expenditure
requirement was pegged at the spending level of the school district at the seventy-fifth percentile

of students, ranked by spending per pupil. In calculating the required spending, additional funding

of one-half the per-pupil amount was specified for each poor child (those receiving welfare

assistance) in the district's schools.



538 INDIANA LAW REVIEW [Vol. 36:523

(GTB) grant formula, transformed the way in which the state provided financial
support to its school districts.

The GTB formula, an outgrowth of the 1974 equalization grant approach,
shifted Connecticut from its former program of uniform per-pupil grants to a
version ofthe "power equalization" methodology advocated nationally by school
finance reformers as the best way to equalize educational opportunity while
respecting local autonomy.^^ Such power equalization methods were prominent
among the approaches referenced in Norton Ps litany of effective remedies
adopted in other jurisdictions.^^ Under a power equalization approach, each
district determines its own level of local property tax effort, and the state then
provides each relatively poor district with the additional revenue that its chosen

tax rate would have yielded if its property wealth had equaled some higher
statewide standard. Thus, each district retains the power to determine its own
level of tax support for its schools (consistent with satisfying the minimum
expenditure requirement), but the resources that the district has available to

spend are determined not by its property wealth, but only by its chosen tax rate.
In Connecticut's GTB version of power equalization, each district was

allocated state aid measured by comparing it to one ofthe wealthiest districts in

the state, using a measure of wealth that reflected both property values and per

capita incomes, with a further adjustment to reflect the greater costs ofeducating

very poor children (again identified as those who were receiving welfare).^^ At
the same time, in a nod to the interests of the wealthier districts, the legislation

guaranteed that each district would continue to receive state assistance at least

equal to what it had received under the prior flat per-pupil grant system. In light

of the high costs of the new program, the 1979 legislation proposed to phase in
both the minimum expenditure requirement and the full-funding of the GTB
grants over a five-year period, with full implementation scheduled for the 1983-

84 school year.^^ However, over the next few years, fiscal pressures led the

legislature to repeatedly modify various features of the program, delaying full

phase-in ofthe GTB by two additional years and adjusting its formulae to reduce
its costs.

The effects of these reforms were significant, although less dramatic than
their proponents must have hoped. The share of education costs borne by the

state rose sharply, and the local share dropped commensurately. Whereas the

state covered only 29.8% ofschool costs in 1978, its share had risen to 42.9% by
1984 and continued to grow in the ensuing years.^^ The disparities between

85. For further background concerning the power equaHzation approach and its history, see

Enrich, supra note 1, at 1 1 1 & nn.41-42.
86. See Norton /, 376 A.2d at 375 & n. 1 5; see also id. at 372 n. 12 (noting that, in the years

after Rodriguez, eleven states had enacted some type of power equalizing formula).

87. For more of the details, see Morton III, 486 A.2d at 11 1 -02 & n.2.
88. Id. at 1 1 07. Full funding ofthe program was estimated to require $443 million annually

by the time of full implementation. See id. at 1 104 n.7.

89. Id. at 1108n.l7. The ensuing years up to 1989-90 show continuing growth in the

state's share. See Conn. Gen. Assembly, Office ofFiscal Analysis website, flf/http://www.cga.state.



2003] RACE AND MONEY, COURTS AND SCHOOLS 539

spending in the wealthier and poorer districts diminished, although they remained

substantial. In 1973-74, the school district at the ninety-fifth percentile of per-

pupil expenditures spent 86.9% more than the district at the fifth percentile, but
by 1983-84 the disparity had declined to 70.1%.^°

The Norton plaintiffs did not initially challenge the constitutionality of the
1 979 reforms, but, when the legislature in 1 980 began to back away from full and
prompt implementation,^^ the plaintiffs returned to court for a determination of

whether the modified reform package satisfied the constitutional requirements.

The trial court found that the 1979 legislation would have been constitutionally
adequate but that a number ofthe subsequent modifications could not survive the
court's strict scrutiny; the court ordered implementation ofthe program stripped

of these unconstitutional adjustments.

On appeal, the state supreme court chose a more measured approach. In an
opinion authored by Chief Justice Ellen Peters, the supreme court approved the

trial court's endorsement of the 1979 reforms, but declined to decide the

constitutionality of the subsequent amendments. Instead, the court focused on

the standards that should be applied in assessing whether school financing

legislation survived strict judicial scrutiny and remanded the case to the trial

court for assessment of the post- 1979 amendments under its newly announced

standards. Drawing on its recognition in Norton /ofthe "sui generis" character

of school financing challenges, the court concluded that the "compelling state

interest" standard that it ordinarily deployed in strict-scrutiny contexts was too
rigid for school funding cases.^^ Instead, it proclaimed a new three-step standard,
modeled on the federal courts' approach in equal protection challenges to

ct.us/ofa/documents/MajorIssues/200 l/PublicElementary SecondaryEducationExpenditures

Connecticut.htm (last visited Jan. 20, 2003) (using a slightly different metric but showing growth

in state share from 37.74% in 1983-84 to 45.52% in 1989-90).

90. Morton III, 486 A.2d at 1 1 08 & n. 1 6. While the court concluded from these statistics that
the legislation had narrowed the gaps in funding capacity "significantly," a closer examination of

the data, see id. at 11 07 n.l5, reveals that the gap had been substantially less than 87% in all but

one of the years between 1973-74 and the enactment of the reform legislation, and had shown no

further improvement after the first year of the GTB program's introduction. Other statistical
measures of changes in the disparities showed even less impressive results. For example, the ratio

of spending between the highest and lowest spending school districts, after dipping slightly in the

first few years of the GTB program, had grown back to its pre-GTB levels by 1983-84. See also
Reed, supra note 18, at 191-92 (measuring the modest gains in equality of resources achieved in

Conn, in the years after 1977). The end of this section of this Article contains a discussion of

subsequent trends in these statistics.

9 1

.

Indeed, by one measure, the backsliding in the early 1 980s wiped out all ofthe progress

toward equalization that had been achieved in the late 1970s, although further progress was

achieved in the following years. See Reed, supra note 1 8, at 1 92.

92. Norton III, 486 A.2d at 11 05. While borrowing the "sui generis" label from Morton I,

the Morton III court makes no attempt to build on, or even to reference, Morton /'s discussion of

why school finance cases are so different from other equal protection challenges, nor to explain why

these differences call for a different methodology for strict scrutiny.



540 INDIANA LAW REVIEW [Vol. 36:523

legislative reapportionment plans. In essence, if a financing plan (a) results in

"more than de minimis" disparities in educational expenditures, the disparities
must be shown (b) to result from "advancement of a legitimate state policy" and
(c) to not be so large as "to emasculate the goal of substantial equality."^^

Having articulated this new standard, the court deployed it with evident
political sensitivity.^"* With regard to the 1979 legislation, the court concluded
that the trial court's analysis, while grounded on a different standard, sufficed to
establish constitutionality, although the supreme court's discussion of the third

prong of its test (whether the remaining disparities are too great) was palpably
strained by the fact that the trial court had not addressed this issue. In turning to
the post- 1979 amendments, rather than attempting to apply its new standard, the
court simply remanded the issues to the trial court with no suggestion about the
outcome. The evident strategy was to maintain pressure for continued reform
without directly confronting the legislature. The overall message—to the parties,
to the trial court and to the political branches—was that valuable progress had
been made, but that the courts had to continue to oversee the process, under a
standard that sought to balance flexibility with a continued commitment to the
goal of substantial equality of opportunity.

The next significant move came from the legislature, which, in 1988, again
completely overhauled the state's approach to education financing, replacing the

GTB formula with a new "Educational Cost Sharing" (ECS) methodology. This
new system abandoned the GTB's power equalization approach, with its
objective of placing all districts on an equal footing in their ability to provide

funding for education, in favor of a foundation funding system, which instead

focuses on ensuring that each district has the resources to provide an adequate

educational opportunity to its students.^^ At the heart ofthe ECS formula is the
identification ofa foundation cost, representing the minimum amount needed to
provide an adequate education for a typical student.^^ The 1988 plan set the
foundation cost at a specified dollar figure but called for annual adjustments to

peg the foundation to the spending levels ofa relatively high-spending district in

a recent year. The foundation cost is then multiplied by a district's student
population (with additional weights for poor students as well as for those with

limited English proficiency or with low scores on state tests) to determine the

foundation budget for the district. The district's ECS grant from the state is then
calculated as a percentage of the foundation budget, with the percentage set to

reflect the relative abilities of different districts to cover education costs from

93. Morton III, 4S6A.2ddLt\\06-01.

94. See Hon. Ellen A. Peters, Getting Away from the Federal Paradigm: Separation of

Powers in State Courts, ^\ Minn.L.Rev. 1543, 1563-64 (1997) (describing "political digestibility"

as a key benchmark for judicial approaches to issues raising separation-of-powers concerns).

95. For a general discussion of foundation funding approaches, see Enrich, supra note 1, at

112.

96. For details of the Connecticut ECS system, see Conn. General Assembly, Legislative

Program Review and Investigations Comm., Connecticut's Public School Finance System 3-1 1

(2001) [hereinafter LPR & IC Report].



2003] RACE AND MONEY, COURTS AND SCHOOLS 541

local property taxes. In particular, this "base aid ratio" is calculated by
comparing the wealth of each district (measured by its property wealth,
household income, and several other factors) to a "guaranteed wealth level,"

which was initially set at twice the wealth of the median town. As with the
former GTB system, the ECS approach also included a minimum expenditure
requirement for each district, in addition to provisions that provide some
continuing assistance to even the wealthiest districts.

By setting a relatively generous foundation level and a relatively high
guaranteed wealth level, the ECS formula continued to have a substantial
equalizing effect on Connecticut's school districts. By 1991-92, the school
district at the ninety-fifth percentile of spending per student was only spending
forty-nine percent more than the district at the fifth percentile, compared to an
eighty-seven percent disparity on the eve of the initial Norton decision. ^^ In its

early years, the ECS system appears to have satisfied the proponents of funding
equity, at least well enough to forestall further litigation challenging funding

equity. Yet, as was the case with the GTB approach, subsequent legislative
adjustments (to which we will return below) have significantly undermined the
ECS formula's equalizing power and have allowed funding gaps to widen again
in recent years, inviting new Horton-basQd legal challenges.^^

So, how successful was the response to Norton? The two major waves of
legislative reform unquestionably resulted in a substantially increased state role

in school financing—and in a commensurately decreased reliance on local
property taxes—and the state funds were allocated under formulae that
significantly reduced the gaps between rich and poor districts (unlike the pre-

Norton per pupil allocations). At the same time, each of the reform efforts was
sharply scaled back by subsequent legislative adjustments, and the spending

disparities between high-spending and low-spending districts have remained

sizeable. Indeed, in a number ofother states, courts have taken the opposite path
from Norton Illsind have found that similar reforms, which allowed patterns of

persisting but diminished disparities, failed to satisfy constitutional demands.
^^

The Connecticut court chose a different course, granting constitutional approval
to limited reforms while attempting to maintain judicial pressure for continued

efforts. However, it is interesting to note that, by a decade after Norton III, Chief

Justice Peters, its author, was recharacterizing the court's cautious decision as if

it had taken the bolder step offinding the scaled-back reforms unconstitutional.
'°°

97. Author's calculations from data provided by the Connecticut Department of Education.

98. See infra ?3Tt IV.

99. See, e.g. , Abbott v. Burke, 643 A.2d 575 (N.J. 1 994); DeRolph v. State, 677 N.E.2d 733

(Ohio 1997); Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex. 1991).

100. See Sheff v. O'Neill, 678 A.2d 1267, 1277 (Conn. 1996) (describing Norton III as

"requiring further remedial action"); id. at 1288 (describing Norton I as finding fiscal disparities

"constitutionally unacceptable").



542 INDIANA LAW REVIEW [Vol. 36:523

III. Sheffv. O'Neill: Connecticut Tackles Racial isolation

Whatever the conclusion about Norton's efficacy, one thing is clear: the
Morton case was never intended nor expected to address the problems of
Connecticut's large urban school districts attended by the preponderance of the

state's poor minority students. Indeed, even before the Norton suit was filed, a
widely cited Note in the Yale Law Journal documented that, at least in
Connecticut, the urban districts with the poorest students were often not the

districts with the least property wealth, nor with the least funding for

education.'^' Throughout the 1970s and 1980s, average per pupil spending in the

state's urban centers hovered around the statewide average, and per pupil

spending in Hartford in particular was consistently well above the state norm.^^^
The funding reforms enacted in response to Norton were designed to give special
attention and financial support to districts with disproportionate numbers of low-
income students or others at risk of academic failure and in need of extra
services, thereby further strengthening the relative financial positions of the

state's urban districts.'^^ Unequal funding was not the primary issue for these
schools.

Nonetheless, the state's urban schools faced profound problems, problems

typical ofthose found in cities across the country serving predominantly poor and

largely minority student populations. In the schools of the state's three largest

cities—Hartford, New Haven, and Bridgeport—performance on state
standardized tests was abysmal, and starkly worse than performance in other
districts.'^"* Dropout rates were likewise troubling and dramatically out of line

with statewide levels. '°^ The disparities and failings were so stark that Governor

101. Churgin et al., supra note 38. The Note played a central role in Justice Powell's

dissection of the wealth-as-a-suspect-class argument in Rodriguez. See 41 1 U.S. at 22-24. For

other cases citing the Note, see Lujan v. Colorado State Board ofEducation 649 P. 2d 1005, 1021

(Colo, mi); Norton I, 316 A2d at 361; and Robinson V. Cahill, 355 A.ld 129, 185 (N.J. 1976).
1 02. Author' s calculations from data provided by Connecticut State Department ofEducation.

For example, in 1977-78, statewide average spending was $1670 per pupil, while spending in the

urban centers (the communities that were subsequently classified by the State Department of

Education into Education Reference Group ("ERG") I, a classification reflecting socioeconomic

status) averaged $ 1 793 and Hartford spent $2 1 00. By 1 986-87, the respective numbers were $452

1

statewide, $4527 in ERG I, and $4983 in Hartford. In fact, in many of these years, Hartford's per
pupil spending was above the average for ERG A, the wealthiest and highest spending grouping of
suburban communities.

103. Sheff,6nA.2diaX\211.

104. Id. at 1273. In 1993-94, less than 4% of eighth-grade students in the urban districts
achieved passing scores on the three statewide mastery exams, as contrasted to 22.4% statewide,

and to more than half of students in the top socioeconomic cluster. See Strategic School District

Profiles, available at http://www.csde.state.ct.us/public/der/ssp/index.htm (last visited Apr. 25,

2003).

1 05. In 1 993-94, Bridgeport, Hartford, and New Haven reported dropout rates of 1 0%, 1 6%,
and 8% respectively, as contrasted with a statewide rate of 4.8%. Not surprisingly, in ERG A (the



2003] RACE AND MONEY, COURTS AND SCHOOLS 543

Weicker focused on them in his 1993 State ofthe State Message, observing that
"there are two Connecticuts when it comes to the education of our children,
Connecticuts separated by racial and economic divisions. There is a Connecticut
of promise, as seen in its suburbs, and a Connecticut of despair as seen in its

poverty-stricken cities."'^ The children attending these failing urban schools
were, as Governor Weicker observed, predominantly poor; in 1 993-94, more than
seventy percent of them were eligible for free or reduced-price school meals.

'°^

They were also overwhelmingly students ofcolor; in 1 993-94, eighty-five percent
ofNew Haven's, eighty-eight percent of Bridgeport's, and ninety-four percent
of Hartford's school populations were minority group members, predominantly
Latino and African-American.'^* These economically and racially isolated

populations confronted Connecticut's urban school districts with challenges that

they could not meet,^°^ notwithstanding the financial resources with which the
districts were provided.

This bleak pattern repeats itself in urban schools in many parts of the
country, and in a number of states, parties have sought to use school funding
litigation to address it.^^^ In Connecticut, however, where the successful Norton

case had left the urban schools' problems largely untouched, a novel litigation

strategy arose when Sheffv. O'Neill was filed in 1989 on behalf of a group of
students in the Hartford area.'" Instead of focusing on the adequacy or equity

of the resources provided to Hartford's schools in comparison to those of its

neighbors, the Shejf plaintiffs directly challenged the racial and economic

isolation of Hartford's school children, arguing that this de facto segregation

deprived them of their rights under Connecticut's constitution. For Hartford's

poor and minority children, the earlier shift from race-based lawsuits to money-
based suits had proved of no value. Consequently, in Sheff, they chose to give

top socioeconomic tier) dropout rates were consistently below one percent. See Strategic School

District Profiles, supra note 104.

106. Sheffv. O'Neill, 1995 WL 230992, at ^20 (Conn. Super. Ct. Apr. 12, 1995) (quoting
Governor Lowell P. Weicker, State of the State Message for Connecticut (Jan. 6, 1993)).

107. See Strategic School District Profiles, supra note 104. This contrasts to a statewide

average of 23.5%. See also Sheff, 1995 WL 230992, at *6 (citing evidence in a 1988 report that
Hartford, New Haven, and Bridgeport respectively ranked second, sixth and eighth among cities
nationally with the highest child poverty rates).

108. See Strategic School District Profiles, supra note 104.

1 09. The Sheffcourt catalogues some ofthe familiar challenges: a high proportion ofchildren

from single-parent homes, a high proportion ofchildren who are not native speakers ofEnglish, and

a low proportion of students who continue to attend the same school from one year to the next. See

Scheff,61SA.2daX\213.

110. See, e.g.. Campaign for Fiscal Equity, Inc. v. State, 655 N.E.2d 661 (N.Y. 1995);

DeRolph v. State, 677 N.E.2d 733 (Ohio 1997); Abbott v. Burke, 643 A.2d 575 (N.J. 1994).

111. Plaintiffs included both white and minority students in the Hartford schools, as well as

two white students from the neighboring suburban West Hartford schools. The central claim was

that segregation of the school systems worked a constitutional deprivation on both white and

minority students in both privileged and underprivileged districts. Sheff, 678 A.2d at 1271-72.



544 INDIANA LAW REVIEW [Vol. 36:523

race-based claims another try.

This strategy was encouraged by at least two considerations. First was the
simple fact of the stark disparities between the academic experiences and

outcomes of children in the Hartford schools and those of students in the

surrounding suburbs, disparities which appeared to make a compelling case for
a denial of the "substantially equal educational opportunity" that Norton had

found was the constitutional right of all Connecticut children. ^'^ After all,
nothing in the Morton rulings had suggested that equality offunding was all that
the constitution required, and the contrasts between educational opportunities in

the Hartford and suburban schools offered powerful evidence that, regardless of

arguable funding parity, nothing like equality of educational opportunity had

been achieved.

The second factor encouraging the Sheff approach was the distinctive
wording of the Connecticut Constitution's equal protection provision, which

since 1965 had provided that "[n]o person shall be denied the equal protection

of the law nor be subjected to segregation or discrimination in the exercise or

enjoyment ofhis civil or political rights because ofreligion, race, color, ancestry

or national origin."' '^ The Connecticut Constitution's explicit prohibition against
segregation provided a clear difference from the Federal Equal Protection Clause,

a difference that invited a construction broader than the focus on de jure

segregation that had limited the reach of the federal clause.

Reflecting these two foundations, the 5'/?e^complaint focused on two distinct

claims.
''"*

First, it asserted that the extreme racial and economic isolation of

Hartford's student population, contrasted against the sharply different

composition ofthe neighboring school districts, constituted de facto segregation,

and that such de facto segregation, at least in the context ofthe fundamental right

to an education, constituted a per se violation of the Connecticut Equal

Protection and Anti-Segregation Clause, regardless ofthe nature or extent ofany

variations in the quality of the education delivered in the segregated schools.

Second, it claimed that, due to its racial and economic isolation and the

insufficiency of its resources, the Hartford school district was failing to provide
educational opportunities to its students that were substantially equal to those

provided in other districts, as was required under the state constitution's

education and equal protection clauses. The first of these claims depended on

few facts beyond the simple reality of racial isolation, whereas the second

depended on a factual showing ofthe educational shortcomings of the Hartford

school district that resulted from its racial and economic isolation.
^'^

1 12. Horton I, 376 A.2d 359, 376 (Conn. 1977).

113. Conn. Const, art. I, § 20 (amended 1974 & 1984) (emphasis added). Subsequent
amendments added sex and physical or mental disability to the list of impermissible bases for

segregation or discrimination. See Sheff, 678 A.2d at 1 282 (noting that only a handful ofother state

constitutions contained any similar express prohibition against segregation).

1 1 4. For a careful explication ofthe ^'/^gj^complaint, see 678 A.2d at 1 299- 1 303 (Borden, J.,

dissenting).

115. The complaint encompassed two other counts as well, one asserting a failure of the



2003] RACE AND MONEY, COURTS AND SCHOOLS 545

After six years of procedural wrangling and development of a substantial

factual record, the trial court held in favor of the defendants, on the ground that

the plaintiffs had failed to establish the requisite state action causing the alleged

harms. Indeed, the trial court devoted much of its lengthy opinion to a
discussion ofthe numerous ways in which the state had taken notice ofand acted
to remedy the problems that arose from the isolation and poverty of the urban
districts J '^ After remanding the case to the trial court for development of

complete findings of fact, the state supreme court reversed in a four-to-three

decision again authored by Chief Justice Peters.^ '^ The court concluded that, in
light of the state's affirmative constitutional obligation to provide an equal

educational opportunity for all the state's children, a causal connection to

specific state action was not a precondition for judicial scrutiny of the alleged
constitutional deprivations suffered by the plaintiff students."^ The court then

proceeded to the merits of the constitutional claims (which the trial court had

never reached) and found in favor of the plaintiffs.

The court rested its decision on a murky blend of the plaintiffs' two main
claims, concluding that "the existence of extreme racial and ethnic isolation in

the public school system deprives schoolchildren of a substantially equal

educational opportunity."''^ The court was careful not to accept plaintiffs'
argument that racial segregation, even de facto segregation, constituted a per se

constitutional violation, presumably out of concern both for the potentially

sweeping precedential effect of such a ruling and for the weak support for such
a claim in the constitutional text. At the same time, it avoided the need to rely

on factual findings about the inferior quality of the education delivered to

Hartford students. Instead, the court focused on the direct "educational

impairment" that, in fact, resulted from the segregation prevalent in the Hartford-

area schools, particularly the lost educational opportunities from lack of

interactions across racial and ethnic lines. The court held that this impairment
constituted a violation ofthe students' constitutional rights, as defined jointly by

the education and anti-segregation clauses.
'^*^

The result ofthis approach is an opinion that often seems oddly evasive. The
court spent far more time and energy explaining why discriminatory intent and

Hartford schools to provide a minimally adequate education and the other asserting a violation of

the state constitution's due process guarantees. See Sheff61% A.2d at 1271-72. However, the

primary focus of the litigation was on the first two counts.

116. Sheff V. O'Neill, 1995 WL 230992, at *10-*30 (Conn. Super. Ct. 1995).
117. 678A.2datl271.

118. /J. at 1277.

119. Id. at 1281, See id. at 1286 (noting that the court's reasoning combined two of the

plaintiffs' claims).

120. Id. at 1282-83. James Ryan has argued that the court could have reached its anti-

segregation decision based on the education clause alone, given a proper factual showing. James

E. Ryan, Sheff, Segregation, and School Finance Litigation, 74 N.Y.U. L. REV. 529, 541-42

(1999). This may well be true as a general statement, but the specific factual findings by the Sheff
trial court made it less than a promising case for such a strategy.



546 FNDIANA LAW REVIEW [Vol. 36:523

explicit state action were unnecessary than it did in explicating the actual
constitutional harm suffered by the plaintiff school children. '^^ Although the
court spoke at several points of the "devastating effects," '^^ the "negative

consequences,"^^^ and the "substantial[] impair[ment]" of educational

opportunities'^"^ that result from racial and ethnic isolation, the court had little to

say about the actual nature of these harms. In particular, the court declined to

rely in any way upon the starkly inferior academic performance of Hartford's
students, on the differences in educational opportunities offered in the urban and

suburban schools, or on the chasm between promise in the suburbs and despair
in the cities observed by Governor Weicker. Instead, at the only point where the
court tried to spell out the harmful effects of segregation, it focused exclusively

on the impairment of the schools' ability to inculcate the "shared values" of a
multicultural society by bringing students of different backgrounds together. '^^

For the most part, the court limited itself to repeated bare assertions of the
harmfulness, wrongfulness, and unconstitutionality ofsegregation, coupled with

reminders about the importance of education and the societal significance of

deprivations of educational opportunity.

The explanation for this spare and conclusory treatment of what seems the
central issue in the case can be found in the trial court's framing ofthe issues for

the appeal. Its findings of fact effectively precluded the supreme court from

attributing the real and substantial inequalities of educational opportunity

between urban and suburban districts to the racial and ethnic isolation that

plaintiffs sought to challenge. In particular, the trial court found the following:

(1) the dramatic differences in test scores proven in the case could not be used

to draw meaningful interdistrict comparisons or to draw conclusions about the
quality of education in the Hartford schools; ^^^ (2) the Hartford school system

provided its students with equal educational opportunities because it received

resources commensurate with those received by other districts; and (3) poverty,

and not racial or ethnic isolation, was the principal causal factor behind the lower
academic achievement levels in the urban schools. '^^ In the face of these

findings, the court, while convinced ofthe severe harms flowing from the racial,

ethnic, and economic isolation of Hartford's students, had a hard time

articulating those harms. Disparities in resources were denied by the trial court,

and disparities in achievement were attributed to poverty, not race, a factor that
the court was unwilling to invoke as a trigger for its strict scrutiny. '^^ Thus, the
court was left to place the full weight of its ruling on the simple repugnance of
segregation and its acknowledged impacts on opportunities for intercultural

121. See Ryan, supra note 120, at 543 (labeling the court's analysis as "summary").

122. Sheff, en A.2d at mo.
123. Id. at 1273.

124. Id at 1280. See also id. at 1282 ("educational impairment").

125. Id at 1285.

126. Id. at 1305 (Borden, J., dissenting).

127. Id at 1274.

128. See id at 1287.



2003] RACE AND MONEY, COURTS AND SCHOOLS 547

learning.
'^^

This constrained analysis of the constitutional harms had important, if

unstated, implications when the court turned to remedial questions. If the
deprivation of equal educational opportunity resulted, not from the inferior

education received by urban schoolchildren, but from the simple fact of their

racial isolation, then a remedy must focus, not on improvement or equalization

of educational opportunities, but on the elimination of segregation. In its brief

discussion ofremedies, the majority's opinion avoided any concrete suggestions

about the substance of a constitutional approach. Instead, the court, expressly

modeling its approach on Norton /, limited the initial judicial role to a
declaration of unconstitutionality, instructing the trial court to retain jurisdiction

while allowing the legislative and executive branches an opportunity to "search

for appropriate remedial measures."'^° Unlike Norton /, however, the court

offered no hints about the parameters of a constitutional remedy, no references

to strategies adopted elsewhere that would satisfy the constitutional mandate, and

no assurances about types of approaches that might suffice or about others that

would not be necessary.'^' This time, the court truly left the political branches
to their own wisdom, urging them only to act with urgency. '^^

The response, as with Norton /, was impressively swift. Within three weeks
of the court's ruling. Governor Rowland appointed an Education Improvement
Panel, whose mission was to respond to the SheffdQcmon and to come up with
"a broad range of options for reducing racial isolation in [the] state's public

schools" and for addressing other educational goals.*" The Panel was chaired
by the state's Commissioner of Education and included key legislative leaders

and other educational policy makers, advocates, and experts.'-''* Six months later,

in early 1997, the Panel issued its fmal report, containing fifteen specific

recommendations. By June 1997, less than a year after the SheffmWng, the

129. See id at 1285 (noting the parties' agreement "that racial and ethnic segregation is

harmful").

1 30. Id. at 1 290. Not long after authoring the opinion. Chief Justice Peters reflected that this

deference served "in substantial part, to defuse resistance" to the court's controversial decision.

See Peters, supra note 94, at 1559.

131. See supra notes 72-76 and accompanying text for a discussion ofthese aspects ofNorton

/'s remedial discussion.

132. 5/2e//;678A.2datl290.

133. Governor's Exec. Order No. 10 (July 25, 1996), reprinted in Education Improvement

Panel, Report to the Governor and General Assembly (Jan. 22, 1997). While the Executive Order

does not expressly limit the range of options to be considered by the Panel, it does express the

Governor's goal offinding a solution "based on voluntary measures emphasizing local and parental

decision making as opposed to state-imposed mandates such as 'forced bussing.'" While the Sheff

ruling was the impetus behind the Panel's formation, the Governor's Order tied the goal ofreducing

racial isolation to three other, potentially competing goals: "improving teaching and learning,

enhancing a sense of community and encouraging parental involvement."

134. See Sheff v. O'Neill, 733 A.2d 925, 927 (Conn. Super. Ct. 1999) {SheffII) (describing

composition of the panel).



548 INDIANA LAW REVIEW [Vol. 36:523

Connecticut legislature enacted a series of measures based on the Panel's
recommendations.

^^^

The speed ofthe response, however, may have been more impressive than its
substance.

'^^ Many ofthe measures recommended by the Panel and adopted by
the legislature—such as expansion of early childhood and adult education,
increased funding for targeted programs, and a restructuring of the governance

ofthe Hartford schools—were directed, not at responding to racial isolation, but
at more generic issues of educational quality. In sharp contrast both to the Sheff
opinion's focus on the state's districting as the primary source of the
unconstitutional segregation'^^ and to thc/STze^^plaintiffs' demand for a redrawing
of the state's school district boundaries to eliminate racially segregated school

systems, '^^ the Panel and the legislature limited themselves to "voluntary"
strategies for reducing racial imbalance. For example, the legislation subsidized

and encouraged the creation of interdistrict magnet schools, with special
programs designed to draw a diverse student body from a wide geographical area;
substantially expanded, and increased state support for, an existing "open choice"

program allowing students to elect to attend schools outside of their own
districts; and authorized and funded interdistrict cooperative programs to bring

urban and suburban students together for specific educational experiences, such

as joint field trips, classroom exchanges, or inter-school visitations. The
legislation also included other elements intended to assess and address racial and

ethnic isolation, such as a minority staff recruitment program and a requirement

that the state and all school districts establish plans for reducing racial, ethnic

and economic isolation and monitor their progress in achieving their goals.
In essence, the state responded to Sheff s mandate with a package of

initiatives reflecting the current vogues in education reform—measures to expand
preferred programs (such as technology and early reading), to enhance parental

choice, and to increase district and school accountability.'^^ In light of the

135. 2001 Conn. Acts 97-4 (Spec. Sess.); 1 997 Conn. Acts 256 (Reg. Sess.); 1997 Conn. Acts

290 (Reg. Sess.). These legislative actions were supplemented by a number of others over the

ensuing years, many of which are cited in the sources cited in the following footnote.

136. For discussions of the content of the legislation, see Sheff II, 733 A.2d at 927-937;

Kathryn A. McDermott et al., Have Connecticut's Desegregation Policies Produced

Desegregation?, 35 EQUITY & EXCELLENCE IN Educ. 18 (2002); Judith Lohman & Alan Shepard,
Sheffvs. O 'Neill Response—K- 12 Programs (Conn. Office ofLegislative Research Report 2002-R-
0107).

137. See Sheff 61% Md si MlA.
138. See id. at 1 328 (Borden, J., dissenting) (discussing remedies sought by plaintiffs); see also

Connecticut Center for School Change, The Unexamined Remedy (1998) (offering a

detailed blueprint for consolidation ofthe Hartford-area school districts into a single consolidated

district to meet the 5/zg#mandate).

139. See Sheff 11, 733 A.2d at 943 (describing state's response as "a comprehensive,

interrelated, well funded set of programs and legislation designed to improve education for all

children, with a special emphasis on urban children, while promoting diverse educational

environments"); Lohman & Shepard, supra note 136, at 1 (dividing legislative response into "two



2003] RACE AND MONEY, COURTS AND SCHOOLS 549

prevailing wisdom, these measures marshaled significant state resources in
directions generally expected to positively impact educational outcomes. Some
even promised to increase the mobility ofstudents across district lines. Yet, none

ofthese measures either altered district boundaries or imposed any requirements

that would directly reduce racial, ethnic and economic isolation.

Disappointed by the absence of more aggressive remedies, the plaintiffs
returned to court to challenge the adequacy ofthe legislative response. The trial
court ruled on this challenge in March 1999, before many of the legislative
measures had been fully implemented, and the court's ruling was not appealed.

'"^^

The court, after an extended and enthusiastic recounting of the many programs
and measures adopted in response to Sheffl^ concluded that it was simply too
early to seriously consider a claim that the state's remedial measures were

insufficient, without giving them a chance to work.'"*' With regard to plaintiffs'

argument that the types of measures adopted by the state were incapable of

producing sufficiently rapid and substantial desegregation and that only a

mandatory pupil reassignment plan would suffice, the court concluded, on the
basis of an expert's testimony, that voluntary approaches were preferable to

mandatory ones because they "promote integration ofmore lasting duration with
a minimum of opposition and disruption."''*^

Unfortunately, the passage of time has only confirmed the iS/^^j^ plaintiffs'

fears that the state's remedies were unlikely to promote significant integration at

all. In the intervening years, the legislature has continued to fine-tune the

initiatives adopted in 1997 and has provided substantial resources for the

programs. '"^^ Nonetheless, in each of Connecticut's three urban centers, the

concentration of students of color in the schools was higher in 2000-01 than it
had been in 1993-94.^'*'' A recently published comprehensive study of the
desegregative effects ofConnecticut's efforts concluded that, while the programs

allowed several thousand students to attend schools outside their home
communities, these measures had "almost no measurable effect on overall levels

major areas: (1) expanding interdistrict and voluntary school choice programs and (2) establishing

programs aimed at improving student achievement, particularly in poor urban school districts").

140. 5/7e#//, 733A.2dat925.

141. Mat 938.
142. Id. at 942. The expert Christine Rossell's testimony focused on the risks of"white flight"

in response to mandatory reassignment plans. Id. at 940-41. The conclusion thejudge derived from

her testimony was that "in the area of school desegregation, slow and steady wins the race." Id. at

940.

143. See Lohman & Shepard, supra note 1 36.
144. Author's calculations from Conn. Dept. of Educ. district profiles. Hartford went from

93.8% minority students to 94.3%, New Haven from 84.7% to 88.7%, and Bridgeport from 87.6%

to 87.9%. (2000-01 is the most current year for which such data are available.) In Hartford and

Bridgeport, but not New Haven, the 2000-01 figures reflect an improvement of less than a
percentage point over the comparable figures in 1996-97 (when Hartford was 95.2% minority,

Bridgeport 88.7% and New Haven 87.3%).



550 INDIANA LAW REVIEW [Vol. 36:523

of integration.'""*^ In part, this disappointing result reflected the fact that many
of the voluntary transfers actually decreased racial integration, rather than
increasing it, as students transferred to schools where they would be less racially
isolated.'''

While the .S/z^j^ remedies appear to have done little to remedy the Sheff
wrongs, they have not been without their positive effects. The state has
dedicated substantial resources (over $160 million annually in recent years) to
the programs enacted in response to Sheff, and much of that money has gone to
Connecticut's troubled urban districts. '"^^ In the post-^'/z^^^ years, per pupil

spending in the urban districts, which had remained close to the state average in i
prior years, has risen substantially above the average,'"** and a recent national

study identified Connecticut as one of the few states where per pupil spending
in the highest poverty districts compared satisfactorily to spending in the lowest
poverty districts, even allowing for the added costs of serving at-risk student
populations.''*^ Perhaps reflecting these infusions ofresources, both performance

on standardized tests and high-school dropout rates have shown significant
improvement over recent years in Connecticut's urban districts, although, on
each of these measures, the cities' performance remains starkly worse than that

of their suburban neighbors. '^^ The two separate worlds identified by Governor
Weicker remain very much separate, and very different in the educational
opportunities that they provide.

IV. Some Recent Developments on Both Fronts

It appears to be the nature ofcontroversies over educational opportunity that

they do not end. The interests ofthe various affected parties are too intense and
the volumes of resources at stake too large for final resolutions to be reached.

In Connecticut, the struggles continue, both around the issues offinancial equity

addressed in Norton and around the issues of racial and economic isolation

145. McDermottetal., ^wpranote 136, at 18.

146. Id. at 22-24. Some of the legislative reforms adopted in 2001 were designed to deter

some of these "reverse" transfers, see Lohman & Shepard, supra note 136, at 3, although the
efficacy (and constitutionality) of those measures remain open questions.

1 47. Lohman & Shepard, supra note 1 36, at 6-7.
148. Author's calculations from Connecticut Department of Education data. See supra note

102. By 2000-01, the districts in ERG I were spending an average of $10,334, compared to the
statewide average of $8983. This trend actually began in the early 1990s in response to state

programs enacted while Sheff v/as proceeding through the courts, although it appears to have

accelerated in more recent years.

149. See The Education Trust, The Funding Gap 3 (2002) (finding a spending gap in

Connecticut, after adjusting for the extra costs of educating at-risk students, of only $6 per pupil).

The report also identifies Connecticut as one of the states showing the greatest progress on this

measure since a prior study in 1997.

1 50. Author's calculations from Connecticut Department of Education data. See supra note

102.



2003] RACE AND MONEY, COURTS AND SCHOOLS 55

1

addressed in Sheff. Before we turn to the attempt to derive some lessons from the
course of these two constitutional challenges, it may be helpful to bring their
histories up to the present (or at least up to the time this article went to press).

When we left the Norton story some pages ago,^^* the legislature had
responded to the court's signals in Morton III by enacting and starting to fund its

foundation-based Educational Cost Sharing (ECS) formula, which the Norton
plaintiffs had decided not to subject to further judicial scrutiny. As with its
Guaranteed Tax Base (GTB) forebear, the original ECS formula was designed
to have a substantial equalizing effect, by allocating large sums of state money
to the less fiscally advantaged districts. But, as with the GTB program before it,
as implementation ofECS went forward in the early 1990s, the legislature proved
unable to come up with the full amount of anticipated resources and made a
variety of adjustments to contain the program's costs, thereby diminishing its

benefits to poorer communities.'" The "guaranteed wealth level" against which
districts' needs for state aid were measured was reduced from twice the median
town's wealth to a multiple of 1 .55.'^^ And the foundation cost of educating a
typical child, instead ofbeing set annually by reference to the eightieth percentile

district, was frozen and then limited to modest legislated increases.'^"* Finally,
districts' annual increases in aid were subjected to a series of caps and hold-

harmless provisions that substantially diminished the formula's equalizing

effect.'^'

The cumulative effect ofthese modifications was to allow growing variations
in the amounts expended by high-spending and low-spending districts. In 1 996,
the districts in the best funded socioeconomic Educational Reference Group
(ERG) were spending about fifty percent more than those in the lowest-spending
ERG, but by 2000 this gap had grown to approximately eighty percent. '^^

Meanwhile, the state's share of Connecticut school funding, which had reached

a peak of 45.5% in 1989-90, had dropped back to 38.5% by 1996-97.'^'

In response to these retreats from the Norton-based goals of the ECS
program, a coalition drawn from a dozen ofthe needier districts (including New

151. See supra notes 97-98 and accompanying text.

1 52. It is noteworthy that, during the same period when the legislature was stepping back from

its ECS commitments, it was targeting new funding (although of far smaller magnitudes) to the

urban school districts, which were the focus ofthe iS/iey^litigation then unfolding in the courts and

drawing substantial political attention. To what extent Sheff s pendency may have contributed to

legislative neglect of the ECS approach is an interesting topic for speculation.

1 53. See LPR & IC Report, supra note 96, at 5. This change reduced formula costs by some
$300 million annually.

154. See id. at 6. By 2001, the foundation level was set at $5891, while the eightieth percentile

district was spending $7349 per pupil. A return to the original approach would have increased
formula costs by some $370 million.

1 55. See id. at 8-9. The savings achieved by the caps ranged as high as $1 50 million in some

years.

156. See id. at 11.

1 57. See Conn. Gen. Assembly, supra note 89.



552 INDIANA LAW REVIEW [Vol. 36:523

Haven and Bridgeport, but not Hartford) brought a new lawsuit in 1 998. Johnson
V. /?ow/a«<ichallenged the funding system for failing to provide the substantially

equal educational opportunities required by Horton}^^ The suit does not
challenge the constitutionality ofthe ECS formula as originally adopted in 1988,
but argues that the constellation of subsequent adjustments leaves Connecticut

again with a funding system that deprives students in many districts of the
educational resources to which they are constitutionally entitled. After repeated

delays, motions and discovery, the case is scheduled to go to trial in 2003, but not

before several of the plaintiff communities have withdrawn from the case

because of its costs.
'^^

Meanwhile, by December 2000, the ^S/z^^plaintiffs decided that enough time
had passed and enough experience had accumulated with the legislative remedial
efforts to warrant a renewed judicial testing of the adequacy of those remedies.
Developments subsequent to the superior court's 1999 ruling indicated little, if
any, progress toward Sheffs goals, and legislative interest appeared on the

wane.'^^ In April 2002, the case came to trial before Judge Julia Aurigemma, the
same judge who had issued the 1999 ruling, and evidence and expert witnesses
were presented over several days of hearings.

In the 2002 proceedings, the plaintiffs, however, were no longer arguing for

mandatory reassignment or redistricting remedies. Instead, they focused their

arguments around a plan, prepared for them by an expert witness, calling for

dramatically increased state commitments to the voluntary programs already

deployed by the state, arguing that sufficient commitments to these programs

could achieve substantial progress towards desegregation ofthe Hartford schools

over a four-year period.
^^*

Apparently, even the 5'/7ej^plaintiffs had concluded

that their original goal oftruly transforming Connecticut's system ofindependent

municipal school districts, each with their distinct populations and resources, was
beyond reach.

158. For background concerning the suit and the plaintiff communities, see Carole Bass, A

Whiter Shade ofSheff? The New Face ofConnecticut School Reform, HARTFORDADVOCATE, Apr.

30, 1998. In general, the plaintiff communities were characterized by low median incomes, high

poverty rates, and high property tax rates.

159. See City Must Carefully Ponder School Suit, BRIDGEPORT POST, June 19, 2002, at

http://www.cnnpost.com.

160. See Rick Green, Budget Hurts Sheff Efforts; No New School Plans Funded by

Legislature, HARTFORD COURANT, July 24, 2001, at Al (evidencing lack of progress and quoting

a^/^e/Z^plaintiffs' attorney as saying, "There is absolutely zero sense ofurgency. This is not on their

radar screen whatsoever. They are either ignoring it or thumbing their nose at the court and the kids

whose constitutional rights were violated."). In fact, in the 2000-01 school year, only 753 of

Hartford's 24,438 students were attending schools outside the district through the choice program,

and only ninety-three suburban students were in the Hartford schools. Interview with Brian

Mahoney, Conn. Dept. of Educ. (Aug. 9, 2001).

161. See Report ofLeonard B. Stevens, Ed.D. (Jan. 2002), filed as Plaintiffs' Exhibit. See also

Robert A. Frahm, SheffPlaintiffs Present New Concept, HARTFORD CoURANT, Apr. 17, 2002, at

Bl (discussing plaintiffs' strategy).



2003] RACE AND MONEY, COURTS AND SCHOOLS 553

After several weeks of hearings, the judge asked the parties to submit briefs
on the scope of the court's remedial authority. But in midsummer, before the
briefs were to be filed, the parties asked the court to suspend further proceedings

to allow serious settlement discussions to go forward. '^^ Then, in January 2003,
after extensive negotiations, the parties announced their agreement to an interim

settlement of the case.'^^

The agreement, which defers any furtherjudicial intervention in the case for
four years, largely reflects the voluntary desegregation plan proposed by the

plaintiffs' expert.'^ The defendants agree to expand the Hartford-region magnet

school programs, by adding at least two new magnet schools in each ofthe next
four years at state expense. In addition, they agree to commit additional
resources to expansion of the Hartford-region "open choice" program and to

interdistrict cooperative programs. '^^ The cost to the state of implementing the
agreement over its four-year life is estimated at $45 million of operating costs,

plus some $200 million in bonds to pay for construction of the eight magnet
schools. The agreement sets a specific target—that at least thirty percent of
Hartford's minority students are benefitting from desegregation due to one of

these measures by the 2006-07 school year—but does not make that target legally
enforceable. At the end of four years, the parties agree to consult together

concerning next steps, with plaintiffs expressly reserving their right to seek

judicial enforcement of the supreme court's SheffruVmg after June 2007.

The iS'//^j(^plaintiffs proclaim the interim agreement as a significant victory,
especially its establishment of specific numerical goals for magnet schools,

spending, and numbers of impacted minority students. '^^ Yet, they also

acknowledge that it falls far short of the dramatic reforms that were Sheffs
original objectives. '^^ Many doubts remain. Given the dismal results ofthe prior
efforts, it is far from clear that voluntary measures, which ultimately depend on

families' choices about where to school their children, can achieve the scale of

progress toward desegregation that the agreement contemplates. Moreover, even

1 62

.

See Rachel Gottlieb, Sides Seek SheffPact; Serious Talks in School Desegregation Case,

Hartford CouRANT, July 13, 2002, at Al.

163. See Robert Frahm, SheffDeadline: 200 7; Settlement: A Four- Year Effort Begins to Help

Undo Hartford's School Segregation, HARTFORD CoURANT, Jan. 23, 2003, at Al; [hereinafter

Frahm, Sheff Deadline: 2007 ]; Paul von Zielbauer, Hartford Integration Plan to Add 8 City

Magnet Schools, N.Y. TIMES, Jan. 23, 2003, at B5. For a description ofthe process of negotiation,

see Robert Frahm, In Sheff A Truce, Then a Deal; Months ofTalks, Blueberry Muffins, Pay OffIn

Settlement, HARTFORD CoURANT, Jan. 26, 2003, at Al

.

164. See Stipulation and Order, Sheff v. O'Neill (Superior Court, No. X03-89-04921 19S,

dated Jan. 22, 2003).

1 65. For descriptions of these programs, see supra note 138 and accompanying text.

166. See Frahm, Sheff Deadline: 2007, supra note 163 (quoting lead plaintiffs mother);

telephone interview with plaintiffs' attorney Philip Tegeler (Mar. 7, 2003).

1 67. See, e.g. , Oshrat Carmiel, Milo Sheffs Long Legal Road; After Experience in Landmark

School Desegregation Case, He Seeks New Role as Musician, HARTFORD CoURANT, Jan. 23, 2003.

at A6; von Zielbauer, supra note 163.



554 INDIANA LAW REVIEW [Vol. 36:523

if the thirty percent target is met, that leaves seventy percent of Hartford's

minority students consigned to constitutionally deficient, segregated schools,

surely an ironic achievement in pursuit of a goal of "substantially equal

educational opportunity."'^^ Finally, the agreement's remedies are targeted

exclusively at Hartford's students, with no consideration for the largely
comparable plights ofthe students in Connecticut's other urban centers. At best,
the interim settlement marks a way station on the long path to vindication ofthe
rights recognized in Sheff.

V. Tentative Lessons

So, the future of educational opportunity in Connecticut, concerning both

money and race, still lies, in significant measure, in the state's courts.
Nevertheless, to the extent that we can draw lessons from these unfinished
stories, a tentative picture appears to emerge.

In large measure, the judicial response to the two challenges we have
explored was similar. In each case, the Connecticut Supreme Court concluded
that the challenged disparities among school districts—in the one case,
disparities of financial resources, in the other, disparities of racial and ethnic

composition—violated the constitutional requirement of substantially equal
educational opportunities for all of Connecticut's children. And, in each case,

the court left the task of determining how to remedy the unconstitutional
disparities to the legislative and executive branches. Again, in each case, the

political branches promptly responded, without the additional judicial prodding

that has been necessary in some other jurisdictions.
But the character ofthe responses and their effects have been very different.

The response to Norton took the form of two major overhauls of how the state
supported the funding of local school districts, reforms which, at least for a

significant period oftime, substantially reduced the fiscal disparities challenged

in the case. By contrast, the response to Sheff took the form of an array of
measures largely tangential to the problem ofracial isolation that lay at the heart

of the case, and whose effects on the challenged disparities in district racial

composition have been insignificantly small. In short, it seems that, while both

lawsuits succeeded in the courts, only one of them succeeded in the real world

of the schools.

Before offering some cautious reflections about some ofthe factors that may
lie behind these different outcomes, it may be useful to raise some brief cautions
about the very existence of the purported differences. For one thing, the

evidence is not as simple as the preceding description would suggest. Funding

disparities have fluctuated widely in the years since Morton /, and while they

certainly diminished during the early years, they have certainly revived, at least

to some extent, more recently. It is unclear how much success or progress this

168. See, e.g., Rachel Gottlieb & Daniela Altimari, Reaction: What About the Kids Who Get
Left Out?, Hartford Courant, Jan. 23, 2003, at Al ; Paul von Zielbauer, Change in Hartford,

N.Y. Times, Jan. 24, 2003, at B5 (describing concerns of experts and parents).



2003] RACE AND MONEY, COURTS AND SCHOOLS 555

actually reveals. Conversely, in the case ofSheff, it can certainly be argued that

the early data show some signs ofmodest achievements, and that, with time, the
continuing pressure provided by the case may generate meaningful long-term
change.

Moreover, it is less than self-evident that funding gaps or percentages of

minority students are even the right metrics on which to focus. Presumably, the
ultimate goal behind both litigation strategies was overall improvement of
educational opportunities for underserved children, not equalization ofresources

or reduction of racial isolation. Indeed, the iS/ze^plaintiffs framed their initial

suit to focus at least as much on the educational inadequacies of the Hartford
schools as on their racial composition. Measuring the extent of movement
toward this broader goal is, ofcourse, far more difficult, but there is at least some
indication that the responses to Sheff, whatever their effects on racial isolation,

may nonetheless positively affect the quality ofConnecticut's urban educational
opportunities. In addition, the very existence ofthe SheffcasQ is a reminder that

Norton's successes in redistributing dollars did not satisfactorily remedy the
failings of some of Connecticut's schools. Success and failure may not be as
easily assessed as our tentative conclusions presumed.

With these caveats noted, it does nonetheless appear that the responses to the

two suits were significantly different. The closing pages of this article explore

some possible explanations for those differences, both in the ways the cases were
treated by the courts, in the tactical choices made by the plaintiffs, and in the
underlying nature of the issues the two cases presented.

One obvious, and likely significant, difference in thejudicial treatment ofthe
two cases is the breadth of consensus among the judges involved in each case.
In Norton /, there was broad agreement among the trial and appellate judges,
with the exception of the one justice dissenting from the final decision. While

the supreme court in Norton III rejected the trial court's methodology for

assessing the constitutionality of the legislative remedy, it did so in a way that
largely supported the trial court's results and it remanded the case in a posture

that clearly invited a reinstatement ofthe original finding of unconstitutionality.

The overall message was univocal and clear.
By contrast, Shejf painted a picture of judicial division. The trial court

judge's approach, both in its initial finding of no state action and in its

subsequent efforts at outcome determinative fact-finding, was sharply repudiated
by the supreme court majority's opinion. The supreme court itselfwas narrowly
and stridently split in its four-to-three decision. The subsequent "slow and

steady" ruling by a second trial courtjudge in the remedial proceeding had a tone

strikingly at odds with the urgency ofthe supreme court's majority. Particularly

in light of Chief Justice Peters' departure from the court shortly after she

authored the .S'/ze^ majority opinion, it would not be surprising if the governor

and legislature found less pressure for a robust response to Sheffthan they had

for Norton
.^^^

1 69. See Bass, supra note 1 58 ("The 4-3 decision was the swan song of its author, then-Chief

Justice Ellen Peters; her replacement was far more conservative. It seemed all too likely that the



556 INDIANA LAW REVIEW [Vol. 36:523

The different responses also were likely influenced by the supreme court's
quite different discussions of remedies in their initial rulings in the two cases.

As we observed earlier, the Norton court, while emphatically deferring remedial
choices to the political branches, was nonetheless careful to offer the legislature
both guidance and reassurance about the types of remedies that it would find

satisfactory. Indeed, the power-equalizing approach (and the accompanying

minimum effort requirement) that the legislature selected fell neatly within the
range of approaches that the court had invited. By contrast, the tS'/ze;^ court's
discussion of remedies, although largely borrowed from Morton, lacked any of

the guidance or reassurance that Morton provided. The governor and legislators

may well have been left wondering whether the court would only be satisfied by
a radical student reassignment plan, or might accept more modest ameliorative

steps, or perhaps had itself been unwilling to contemplate the unsettling range of

available but problematic options.

This difference in the court's discussion ofremedies in the two cases may be
explained by—and its effects certainly were reinforced by—another palpable
distinction between the two opinions, a difference in the clarity and precision

with which the court characterized the unconstitutional harm that required

correction. In Morton, the constitutional problem was clear and simple: the

existing education financing system failed to provide each district with the

resources necessary to "provide a substantially equal educational opportunity to

its youth in its free public elementary and secondary schools."'^^ Despite room
for question about the standard of "substantial equality," the court left no doubt

that the issue was the equality of resources and their impacts on educational

opportunity.

No such clarity is available in Shejf. As we saw earlier, the court struggled
throughout its opinion to find a satisfactory description of the constitutional

problem. Is it the simple fact of significantly different proportions of minority

students in different districts (or schools)? Or is it the extreme racial and ethnic
isolation found in Hartford and the other urban districts? Or is it the starkly
inferior educational opportunities ofstudents in these urban districts, upon which

the court focuses in its opening paragraph?'^' Or is it the lost opportunities for
intercultural exposure and multicultural education that result from the patterns

of segregation? No matter how many times one reads the opinion, these
competing concerns continue to weave in and out of the court's reasoning.

Legislature would adopt only token changes, the Sheffs would go back to court and the new

Supreme Court would refuse to put any teeth in the ruling."). Perhaps this is also where we find

part ofthe explanation for the ^/le/^plaintiffs' somewhat surprising decision not to appeal the trial

court's decision in Sheffll and the dramatic shift in their position in the more recent litigation and

settlement negotiations. See Lynne Tuohy, What if Case Had Returned to Courts HARTFORD

COURANT, Jan. 23, 2003, at A7.

170. 376 A.2d at 374-75.

171. The opening sentence of the opinion reads, "The public elementary and high school

students in Hartford suffer daily from the devastating effects that racial and ethnic isolation, as well

as poverty, have had on their education." Sheff, 378 A.2d at 1270.



2003] RACE AND MONEY, COURTS AND SCHOOLS 557

No doubt, much ofthe explanation for this indefmiteness rests in the court's
efforts to accommodate the trial court's constricting findings of fact. But the
effect is to raise questions, not only about the cogency of the court's reasoning,

but more importantly about how the constitutional wrongs can be righted, and
indeed about whether the court itself had any sense ofwhat sort ofremedy it was
anticipating. In light of the court's lack of clarity, it may come as little surprise
when the governor, legislature, and trial court all feel free to place their own
constructions on what the constitution requires.

Another direction in which to look for explanations for the different

outcomes is the tactical decisions ofthe plaintiffs in the two cases. In particular,

a number of the iS'/z^^^plaintiffs' choices were distinctly different from those of
their Morton forebears and may have contributed to the disappointing legislative
response. For one example, the Sheff case presented muhiple, complex
alternative theories of liability, which may have proven essential to the supreme
court's ability to sidestep the trial court's fact-finding, but also invited the

problematic ambiguity about the nature ofthe constitutional wrong that pervades
the court's opinion. For another, there seems little question in hindsight that the

5/z^j^plaintiffs returned to court too soon to challenge the legislature's remedial

scheme, in marked contrast to the Norton plaintiffs' wise patience in waiting to

seek further judicial intervention until the legislature's own actions had vividly
demonstrated both the possibility ofa substantial remedy and the degree to which

it had failed to provide one. Once they had returned to court and lost in SheffII,
it is unclear why the plaintiffs chose not to appeal the decision and give the
supreme court an opportunity to repeat its Morton ///strategy, using its three-step

test (and perhaps, a //or/o«-inspired remand) to keep pressure on the legislature

for remedial measures that did not "emasculate the goal of substantial

equality."'^^ Finally, one wonders why the .S'/zej^^plaintiffs, in their latest trip to
court, chose to abandon their demand for truly sweeping desegregative remedies,
in favor ofan expanded version ofthe legislature's voluntary measures. We will
be left to speculate what successes a more tenacious approach might have
achieved.

While these variations in the actions of the courts and the plaintiffs likely
account for some of the difference in the outcomes of the two cases, I suspect
that a larger share of the explanation may lie deeper—in our divergent societal
attitudes towards issues ofmoney and race. No one who watches or participates
in the ongoing struggles over how we fund our public schools can doubt the
intensity with which taxpayers, parents, and the decisionmakers who are elected
by them care about how education dollars are distributed and controlled. But no
one who has participated in American political life can honestly doubt that the
emotions aroused by issues of race are even stronger, if sometimes more
subterranean.'^^ School funding cases, after all, ultimately only move dollars,

172. 486 A.2d at 1 107 (quoting Mahan v. Howell, 410 U.S. 315, 326, amended by 41 1 U.S.

922(1973)).

173. See Ryan, supra note 120, at 565-67 (contrasting political reactions to financing cases

and desegregation cases); Reed, supra note 18, at 208-12 (identifying—and distinguishing

—



558 INDIANA LAW REVIEW [Vol. 36:523

and with relatively rare exceptions, they simply deliver additional dollars to poor

districts, without depriving wealthier districts ofthe continuing ability to provide

even more generous resources for themselves. Desegregation cases, however,
actually threaten to change where and with whom our children go to school. In
particular, they threaten to throw our children together (so goes the apparent, if

sometimes less than conscious, fear) with racially different "others" who may
endanger not only their education but their well-being.'^'*

Much ofthe reason for the initial turn to school funding litigation a third of
a century ago was despair over the inability to overcome the deep-seated
resistance—in legislatures, courts, and private behavior—^to school
desegregation. The decision by the .S/zej^plaintiffs and their institutional allies
(including the NAACP Legal Defense Fund and the ACLU) to return to a race-
based strategy reflected, not only disappointment with the results of ostensibly

successful funding litigation, but also a hope that, at least in an enlightened

northern state like Connecticut at the end ofthe Twentieth Century, racial fears

might give way to the goals of racial justice that were expressly embodied in
Connecticut's constitution. The firm resistance to any but voluntary remedies,
the limited (and often segregation enhancing) response to the voluntary programs

that were offered, the extreme care with which the trial courts have sought to
contain Sheffs impact, and the celebratory glee with which Connecticut officials

greeted the plaintiffs' trial court defeat, '^^ all suggest that their hope may have
been misplaced.

Indeed, Connecticut's recent history may contain an even gloomier lesson
about the relationship between issues of money and race in the schools. The
period during which the SheffcasQ has taken center-stage has also been the time

in which the state appears to have backed away from its commitment to funding
equity, scaling back its commitments to full-funding of the ECS program. In
part, this back-sliding can be explained by the fiscal difficulties that confronted

the state in the early 1990s, but even during the ensuing boom years, the
retrenchment generally continued.

These boom years were also the years in which the pendency of, and then the
decision in, Sheff divQcted some additional state resources to the poor urban
"priority" districts (although far less than was being withheld from ECS funding).
The troubling question that must be raised is whether a perception that state
school funding was being used to support poor, minority children in inner-city

schools tagged school aid with the race label and thereby undermined public

support for continued dedication of state resources to the schools. Certainly, the

proponents ofJohnson v. Rowland wqtq sensitive to this possibility in framing

economic self-interest £ind "symbolic racism" as key factors limiting tlie efficacy ofjudicial school

finance decisions).

1 74. See Bass, supra note 1 58 {''She^scarcs a lot ofpeople. It's the 'busing' case, the one that

could send black kids to suburban schools- and, even scarier, send suburban white kids to the inner

city.").

175. See id. (reporting that Gov. Rowland greeted the trial court's decision "with a public

champagne celebration").



2003] RACE AND MONEY, COURTS AND SCHOOLS 559

their case. They assembled a plaintiff roster primarily composed of white
students and non-urban school districts, and, in publicizing the case, have been

at pains to distance themselves from Sheff}''^ Still, the concern remains that,

once school-funding initiatives have become identified with issues of race, they
may take on baggage that diminishes their appeal. Perhaps Sheff, by focusing on
race rather than money, has unearthed obstacles, not only to the accomplishment

of its own objectives, but for the less threatening objectives oiMorton as well.
Returning to the question with which we began, what do these histories of

Connecticut's school cases reveal about the hopes for using the courts to pursue

the ends of social justice? The tentative lessons are neither entirely cheerful nor
entirely disheartening. The Connecticut Supreme Court has seized the
opportunities provided hy Morton and Sheffto proclaim a courageous, if at times

somewhat cloudy, constitutional mandate for both racial and financial equality
of educational opportunity—a mandate that directly confronts powerful
established relationships of class and privilege. The court's mandate has
catalyzed substantial changes in those established relationships, though more
modest changes than the cases' proponents sought and, perhaps, anticipated. At

the same time, these histories highlight the resistances that can undermine the
power of judicial rhetoric, and they reinforce doubts about the capacity of
litigation to overcome our most deep-seated societal biases. In addition, they

suggest that specific choices of targets, tactics and timing, both by litigants and

by courts, may make large differences in outcomes. Care and caution are called
for; despair and disengagement are not.

176. See id.