One year ago, the Connecticut Supreme Court heard oral arguments in a major constitutional case that could change the way public school education is funded in the state — when it’s finally decided. The state’s highest court has now delayed its ruling once more.
CCJEF v. Rell is probably the single most important education case since the landmark desegregation case, Sheff v. O’Neill, which was filed 20 years ago this week.
While the full seven-member bench could have heard CCJEF last year, two justices decided not to sit, leaving five members to decide the case.
That was then.
Two weeks ago, as the year April 21st anniversary approached, Michele T. Angers, the court’s chief clerk, wrote a letter to attorneys announcing that the Court has ordered an “en banc” court. That is, instead of letting the five justices who heard the case rule on the case, it had decided to add two justices to the case in order to create a full seven-member bench.
“The urgency of our claims should be obvious,” said Dianne Kaplan deVries, the CCJEF project director. “While we’ve waited these past 12 months for a decision from the Supreme Court, thousands of students have dropped out of our public schools, with Latino students leaving at four times the rate of their white peers, and blacks and American Indians at three times the white dropout rate.
“Also this past year some 47,000 schoolchildren failed to score at even the “basic” reading level on the state’s assessments, and 40 percent of all Connecticut schools failed to make Adequate Yearly Progress under No Child Left Behind.”
Yale Law School Clinical Professor Robert Solomon, who has overseen the CCJEF case, told the Eagle: “We are certainly pleased that a major constitutional case will be resolved en banc, but it is an important case that still has to go to trial, and we hope we can get a Supreme Court decision as quickly as possible. “
Attorney General Richard Blumenthal said the court’s decision to hold an en banc hearing “reflects the importance and complexity of the case. This is a significant and challenging case,” he told the Eagle. He said he could not predict when the high court might act. Assistant Attorney General Gregory D’Auria, who argued the case last year, maintained it was up to the legislature, not the courts, to determine the quality of education.
Oral arguments were originally held on April 21, 2008. Two Yale Law School students, David Noah and Neil Weare, then members of the Yale Law Education Adequacy Project, asked the high court to restore a law suit that a lower court had gutted. The lawsuit sought to fix a badly broken education cost sharing formula (ECS) that the state uses to fund public schools.
The Connecticut Coalition for Justice in Education Funding, (CCJEF) asked the Yale clinic to take the case more than three years ago. The students have done so with several law professors at their side. The defendants are Gov. Rell, along with various state agencies. The Attorney General’s Office represents the state.
The lawsuit also raised a major constitutional issue: What constitutes a free education under the state Constitution? Does an education have to be good or reasonable or appropriate? How one defines the quality of education will help determine funding.
Legal scholars say that the constitutional issue may be paramount in the minds of the justices and that is why the court, on its own motion, ordered the full court to hear this case. They say if the only issue were restoring three of the four counts dismissed by a Superior Court judge in 2007, then the case might have been decided quickly.
Lining Up Seven
Achieving a full-member bench of seven duly appointed Supreme Court justices is not as easy as it sounds. In this case getting seven justices to hear the case required a retirement, a gubernatorial appointment, and a reversal of a recusal. Even with all this jockeying Chief Justice Chase T. Rogers still won’t be sitting.
According to the clerk’s letter, one of the two justices added to the panel is C. Ian McLachlan. McLachlan was appointed by Gov. M Jodi Rell last February to replace Barry Schaller who retired at the mandatory age of 70. Justice Schaller, who heard the case but is no longer on the panel, still gets to vote.
The other judge is Christine S. Vertefeuille, who, it turns out, stepped aside last year. She did not say why. The rules do not require her to explain. Nor has she explained what changed to enable her to now hear the case.
The chief justice did state why she stepped aside in this case. Justice Rogers has a “bright line” rule that if her husband’s law firm, Robinson & Cole, is involved in any case heard before her court, she will recuse herself. As it turned out, one of the firm’s lawyers filed a friend of the court brief in this case.
So the seven members of the high court will include the now retired Justice Schaller, his replacement, Justice McLachlan, Justice Vertefeuille, and Justices Norcott, Katz, Zarella and Palmer. According to the clerk’s letter, there will be no new oral arguments or briefs.Instead, Justices Vertefeuille and McLachlan will read all the briefs and watch a televised recording of the event a year ago.
Taking Their Time
As the one-year anniversary approached, talk turned to the delay in the ruling. Even by its own website standards — “the Court takes the case under advisement and delivers its judgment within a few months” — the court was very late.
It is not known how far along in the process the five justices were when they decided to hear the case en banc. Nor is it known when the court will announce its ruling. The court’s term ends Aug. 21. The lawyers hope it will be decided by that time.
While the legislature has tweaked the education cost formula on and off for decades, it has not acted to correct funding imbalances that cities and towns live with. Without a change, property taxes pay for virtually all public school education, especially in towns like Branford.
Branford, along with other towns and cities, has joined the CCJEF’s lawsuit.
Under CCJEF’s 2007 Framework for School Finance Reform study, Branford ought to have received $21.8 million in 2007 in ECS funding, plus as much as another $1.4 million for special students. Instead Branford received $1.36 million in ECS funds, plus 498,000 for special students and another 533,000 in various grants. Thus the state contributed a total of $2.4 million rather than the $22.2 million that would have been adequate and equitable based on the student population and a formula that is less dependent on a town’s grand list or real estate wealth.
An overhaul of the current funding system would require the Supreme Court to determine what constitutes an adequate education. The high court might then direct the legislature to provide a remedy as it did in the Sheff case.###