Judge strikes down state education aid choices as ‘irrational’
In a broad indictment of how Connecticut supports its poorest schools, Superior Court Judge Thomas Moukawsher ruled Wednesday that the state’s method for distributing education aid is irrational and unconstitutional, while declining to second-guess the General Assembly on the ultimate level of state spending.
Moukawsher said the plaintiffs failed to meet their high burden of proving beyond a reasonable doubt that the quality of public education violates the state Constitution by the standards of minimum funding or the adequacy of instruction in the state's classrooms. But he gave them a victory on the question of how aid is distributed, special education is funded and the standards to which students and teachers are held.
He handed the state, the plaintiffs and General Assembly an ambitious five-point outline for action on revamping how teachers are evaluated and paid, special education students are evaluated and served, and more broadly, how the state directs $2 billion in annual state spending for local education, plus another $1 billion in reimbursements for school construction and renovations.
"So, change must come," Moukawsher said. "The state has to accept that the schools are its blessing and its burden, and if it cannot be wise, it must at least be sensible."
The judge gave the state 180 days to propose remedies to his long list of failings, starting with how it intends to distribute state aid. He said legislators circumvent the existing Education Cost Sharing formula, often at the expense of school systems in most desperate need of resources. He said the method must be rational, equitable and verifiable.
"This is a landmark victory for Connecticut's public school students," said Herbert C. Rosenthal, president of the group that filed the lawsuit, the Connecticut Coalition for Justice in Education Funding. "This case was brought to ensure that all Connecticut students receive adequate and equitable educational opportunities. With this decision, we are on a path to see that goal realized."
Still, the judge's refusal to order increased funding could mean that elements of the coalition – an unusual group that included labor and management, small towns and big cities – will end up fighting over how the legislature should reapportion state aid.
"Unfortunately, the court declined to provide any remedy for the disparity in resources and revenue for students in the state's poorest communities – the essence and heart of the CCJEF litigation," said Sheila Cohen, the president of the largest teachers' union, the Connecticut Education Association.
A spokesman for the office of Attorney General George Jepsen said it was reviewing the decision and would have no comment on whether it would seek an interlocutory appeal to the state Supreme Court.
“We welcome the conversation this decision brings," said Gov. Dannel P. Malloy, who has designated extra aid and oversight for needy districts. "We know that to improve outcomes for all Connecticut students and to close persistent achievement gaps, we need to challenge the status quo and take bold action. Since I took office, the state has invested hundreds of millions of dollars in education with an overwhelming share directed at supporting our students who need it the most."
Over nearly three hours, Moukawsher read from the bench a carefully calibrated decision that made clear the limits of judicial intervention, while scolding the legislature for recently stripping $5 million in aid from some of the neediest school systems and giving it to comparatively wealthy communities.
"In desperate times, $5 million is a lot of money," he said.
He took to the bench at 11 a.m., called a recess at 1 p.m., and returned to the bench at 2 p.m. for nearly another hour to resume reading a 90-page decision likely to make education a major issue in the 2017 and 2018 legislative sessions, when lawmakers also are expected to struggle to balance the budget.
House Minority Leader Themis Klarides, R-Derby, warned against a legislative resolution in 2017.
"Given the long history of litigating Connecticut's funding of public education, this decision was probably expected. This does not make our jobs in the legislature any less problematic, which I am sure Judge Moukawsher, a former legislator, can appreciate," Klarides said. "To assume that we can find a solution by next March, two months after the next session convenes, is not realistic based on how long this case has been argued ."
Rosenthal said he did not see how Gov. Dannel P. Malloy and the legislature would address the judge's myriad concerns without additional funding, despite Moukawsher's pointedly saying the court had no authority to set funding levels.
The judge questioned the wisdom of the state's annual spending of about $1 billion on school construction and renovation – while direct aid to operate the schools is just $2 billion. He also indicted schools that graduate students who do not meet minimal standards.
"These aren't isolated stories," he said.
He set off a minor stir in the audience when he said teacher salaries need to be linked to skills and pronounced current evaluations of teachers as a near-worthless exercise that judges 98 percent of teachers as competent. A smiling Danbury Mayor Mark Boughton, a Republican, turned and made eye contact with a Democratic colleague, Waterbury Mayor Neil O'Leary.
Bridgeport Mayor Joseph P. Ganim, a Democrat, called the decision "courageous."
“I think it is a game-changer in that it recognizes the inadequacies of the system, the clear-cut failure of that system," Ganim said.
Boughton praised the judge, saying the ruling insists upon nothing less than “a complete overhaul of the public education system in Connecticut. You’re talking about a gargantuan shift in education policy in the state.”
One of the teachers' unions that are members of the coalition objected to the judge's finding that teacher evaluations in Connecticut have little value and that salaries are too closely tied to seniority, not performance or specialty.
“As a starting point, we intend to fully evaluate the judge’s comments regarding accountability, which were not just disappointing, but disrespectful of education professionals," said Jan Hochadel, president of AFT-Connectiuct."The fact is that our members have long advocated for evaluation and assessment tools that better inform classroom instruction and ultimately help improve student outcomes."
The CEA indicated it would work to improve teacher evaluations, but did not address Moukawsher's criticisms in depth.
"For the past two legislative sessions, CEA has advocated for a better teacher evaluation system with less bureaucracy and paperwork, and more authentic and reliable measurement of student growth," Cohen said. "We will continue to work for the improvement of the teaching profession, not only in the majority of schools where students are performing well, but especially in high-poverty communities where students deserve well-qualified, certified and experienced teachers and administrators."
The ruling by Moukawsher came 11 years after a coalition of parents, students, teachers and municipal officials sued the state and just a month after final arguments in a months-long trial not far from the State Capitol, examining, among other things, the adequacy, fairness and rationality of how local schools are funded. Malloy supported the litigation while mayor of Stamford.
The suit was initiated on behalf of the coalition by the Education Adequacy Project Clinic at Yale Law School, then taken over on a pro bono basis by Debevoise & Plimpton, a New York law firm.
The fight revolved around decades of legislative decisions, prior court cases and two terse sentences in the state Constitution: “There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.”
“The Constitution identifies the General Assembly as the sole entity charged with enacting ‘appropriate legislation’ and fulfilling this weighty responsibility,” the plaintiffs argued. Quoting previous case law, they said, “Despite the long history of local control over education in Connecticut, Article Eighth of the Constitution squarely ‘places the ultimate responsibility for the education of the children of Connecticut on the state.’ ”
In 2010, the Connecticut Supreme Court concluded in response to the coalition’s lawsuit that Article Eighth implied a qualitative standard of a minimally adequate education, and that the state is responsible for ensuring that level of adequacy is met.
It was left to Moukawsher, a former one-term Democratic legislator named to the bench by Malloy in 2013, to both define the standard and determine if the state was meeting it. The state currently provides about $2 billion annually in school aid through its Education Cost Sharing formula.
The plaintiffs, whose legal team was led by Joseph Moodhe of Debevoise & Plimpton, did not ask the judge to provide a solution, leaving that for “further legal proceedings.”
“This request is insupportable,” the state said in a reply brief. “The evidentiary phase of this trial is complete, both sides have rested, and there is no legal basis for this court to engage in ‘further proceedings’ regarding potential remedies.”
Moukawsher ordered the state to begin work on a new funding formula, while not mandating increased overall spending. In doing so, he gave deference to the state's position.
If remedies in an education case are constitutionally required, the Supreme Court has left no doubt “our courts should and will defer to the legislature, in the first instance, to provide those remedies,” wrote the state, whose legal team was led by Associate Attorney General Joseph Rubin.
The decision came as the state struggles with chronic fiscal challenges.
The legislature’s nonpartisan Office of Fiscal Analysis is projecting a $1.3 billion deficit built into 2017-18 state finances, a gap of about 7 percent. And unless adjustments are made, it is expected to top $1.4 billion in 2018-19 and $1.5 billion the following year.
Further complicating matters, the Malloy administration reported in late June that it had downgraded expected income tax receipts for the outgoing fiscal year by $75 million, and sales tax revenues by $28 million.
During final arguments last month, Moukawsher pointed to a list showing the distribution of Education Cost Sharing grants and questioned whether the state had a rational approach to distributing education aid, regardless of what it ultimately can afford.
"I was particularly hoping you could provide me an explanation," Moukawsher told Rubin. "I found $5.3 million of cuts to poor communities like Bridgeport. And then, I also found $5.1 million of increases to rich communities. So that you have poor towns like Bridgeport taking $1 million cuts and rich towns like West Hartford taking a $1 million increase."
"How," the judge asked, "can a rational budget process allow that in a time of financial crises to happen?"
Rubin said he did not know why the legislature funneled money where it did, but the vast majority of the over $2 billion in state education aid not tied to retirement benefits goes to high-poverty school districts.
The lawsuit focused on educational deficiencies in six districts that the plaintiffs said were representative of high-need schools: Bridgeport, East Hartford, Danbury, New Britain, New London and Windham.
The state argued that the judge should not infer there is a systemic problem even if he determined the plaintiffs proved that the state is not fulfilling its obligation in those six school districts.
But the landmark Horton vs. Meskill decision in 1977 that ordered the state to overhaul how it funded schools was brought by a lone plaintiff who was an elementary student in Canton.
Moukawsher did not hint last month how broadly he would rule, saying Rubin's argument got to the question of whether the court should "order relief to these six districts, or are you going to do something larger than this?"
On Wednesday, the judge looked far beyond the six districts, reciting the poor test scores from many of the 30 poorest school systems.
He disabused anyone who suggests the achievement gap in Connecticut is simply the product of high achievement by the top-performing schools in comparison to the worst: The state's poorest schools are posting results worse than the poorest schools of 40 other states and is no better than the other nine.
"Nobody did worse," he said.
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