Judicial Wisdom Or Judicial Overreach? Thoughts On The School Funding Decision

Superior Court Judge Thomas Moukawsher spent nearly 3 hours earlier this week reading from the bench his long-awaited decision in Connecticut Coalition for Justice in Education Funding v. Rell “(CCJEF v. Rell”). The decision is a scathing indictment of the way Connecticut defines and funds elementary and secondary school education, the way it funds special education, the way it hires, evaluates, pays and retains teachers, and the way it funds school construction. The opinion describes the way the General Assembly has addressed each of these issues as irrational. Not just weak, poor or bad policy. IRRATIONAL policy. So irrational as to be unconstitutional in the judge’s view. The judge ordered the General Assembly to provide rational solutions to these issues within 180 days, at which time he will decide whether the solutions meet his standard of rationality. If not, he will impose his own solutions.

A number of people and organizations, including some city mayors and  several newspapers, have described the decision as courageous and wise. As a matter of public policy, the judge may be absolutely right in his identification of deficiencies in the state’s education system. As a matter of public policy, he may also be right in his suggestions about how to fix those deficiencies. I am not an education expert, but many of his factual findings seem dead-on. The General Assembly should read his decision and extensive factual findings closely, ask itself whether “politics as usual” has interfered with making good educational policy, and, if so, change the law to comport with good policy. The youth of our state deserve no less.

As a matter of constitutional law, however, I think the decision is a prime example of judicial overreach, a case of a judge improperly second-guessing difficult policy decisions which, in a democracy, are better left to the legislative and executive branches of government.  From my perspective as a lawyer who values separation of powers and judicial restraint–in large part because I believe that judges, on the whole, are no smarter or wiser than our elected representatives–the decision runs afoul of the line that separates judging from legislating. I recognize that an unfortunate consequence of judicial respect for that line may be the continuation of laws and policies that are unwise, even foolish. But the place to address such laws and policies is the legislature and the governor’s office.

Why do I believe that Judge Moukawsher stepped over the line that separates judging from legislating? Because I believe he either misunderstood or misapplied the controlling Supreme Court decision in this case, namely, Justice Richard Palmer’s concurring opinion in CCJEF v. Rell (2010).  Justice Palmer wrote:

[T]he right established under article eighth, § 1, requires only that the legislature establish and maintain a minimally adequate system of free public schools. I also conclude that the legislature is entitled to considerable deference with respect to both its conception of the scope of the right and its implementation of the right.

Justice Palmer also explained what he meant by “a minimally adequate system of free schools:”

[I] agree generally that the following ‘‘essentials,’’ as explicated by the New York Court of Appeals, are necessary to satisfy the requirement of a minimally adequate education for purposes of article eighth, § 1. Children are entitled to minimally adequate physical facilities and classrooms which provide enough light, space, heat, and air to permit children to learn. Children should have access to minimally adequate instrumentalities of learning such as desks, chairs, pencils, and reasonably current textbooks. Children are also entitled to minimally adequate teaching of reasonably up-to-date basic curricula such as reading, writing, mathematics, science, and social studies, by sufficient personnel adequately trained to teach those subject areas.

Justice Palmer also explained how the constitutional standard should be applied, given the deference owed to the legislature:

In my view, the deference owed to the political branches in matters of education policy dictates that, unless the plaintiffs can demonstrate that the actions that the state has taken to satisfy the particular requirement in dispute cannot reasonably be defended as minimally adequate, the court must defer to the judgment of the political branches in the matter. Thus, if the state and the plaintiffs disagree as to whether the legislature has met its obligation under article eighth, § 1, with respect to any of the core or essential components of a minimally adequate education, to prevail on their claim of a constitutional violation, the plaintiffs must establish that the action that the legislature has taken to comply with article eighth, § 1, reasonably cannot be considered sufficient by any fair measure. Put differently, the plaintiffs are not entitled to relief unless they can demonstrate that the legislature’s formulation of the scope of the right to a minimally adequate public education and its efforts in implementing that formulation are unreasonably insufficient. Any less demanding standard would give insufficient voice to the reasoned judgment of the legislature.

Justice Palmer offered a number of reasons why the General Assembly was entitled to such great deference.  Those reasons include:

1. “The judicial branch must accord the legislative branch great deference in this area because, among other reasons, courts are ill-equipped to deal with issues of educational policy; in other words, courts ‘‘lack [the] specialized knowledge and experience’’ to address the many ‘‘persistent and difficult questions of educational policy’’ that invariably arise in connection with the establishment and maintenance of a statewide system of education.  Thus, these issues are best addressed by our elected and appointed officials in the exercise of their informed judgment.”
2. “Another compelling reason for judicial restraint in matters relating to educational policy is the potential that exists for a costly and intrusive remedy if it is determined that the state’s system of public education has failed to meet the constitutional standard of quality. The recent experience of our neighbors in Massachusetts and New York is instructive. In both of those states, trial courts found that certain schools were constitutionally deficient and imposed remedies that ultimately were upheld on appeal, costing billions of dollars. Despite these expenditures, and after years of good faith efforts by the political branches to ameliorate the constitutional violations, trial courts in both Massachusetts and New York concluded that the educational deficiencies persisted and ordered further remedial action.”
3. “The potential for long, protracted and expensive litigation is yet another factor favoring an approach that affords a substantial degree of deference to the legislature concerning the discharge of its responsibility under article eighth, § 1. In his dissenting opinion, Justice Zarella discusses a number of cases in which sister state courts ‘‘have become bogged down for years in [seemingly] endless litigation’’ over the nature and scope of the state constitutional right to a free public education and the appropriate remedies for violations of that right, including, most notably, the New Jersey courts, and I need not repeat that discussion here.”

Justice Palmer concluded his opinion by observing that

even though schools are important socializing institutions in our democratic society, they cannot be constitutionally required to overcome every serious social and personal disadvantage that students bring with them to school, and that seriously hinder[s] the academic achievement of those students. . . .  [A]rticle eighth, § 1] is not a panacea for all of the social ills that contribute to many of the achievement deficiencies identified by the plaintiffs in their complaint . . . .

In my opinion, and in the opinion of noted legal professionals, Judge Moukawsher did not show the General Assembly the deference to which it is constitutionally entitled. Although he acknowledged the words in Justice Palmer’s opinion, and although he said he was applying the “minimally adequate” standard to the facts and extending the legislature the appropriate deference, an objective review of his decision does not support his legal conclusions. This is particularly true of his scathing review of the teacher evaluation process. Assuming that the judge is 100% correct in his analysis of the weakness of that process, can anyone really say that the teachers in Hartford, Bridgeport, New Haven, etc. are not qualified to offer their students a “minimally adequate” education?

I am not suggesting that Judge Moukawsher intentionally ignored the law to reach a result he desired. I do not question the sincerity of his findings or his legal analysis. I disagree with his legal analysis and legal conclusions.

From a legal perspective, a judge’s decision cannot be evaluated only by reference to its outcome or result. What matters is the legal reasoning that a judge employs to reach his or her decision. Judge Moukawsher’s decision may be absolutely right as a matter of public policy, but it is absolutely wrong as a matter of constitutional law. The General Assembly should consider carefully what the judge says in his opinion about the problems in our educational system. After all, he heard months of evidence and listened to many experts. But Judge Moukawsher overreached when he ruled that the educational system was largely unconstitutional and ordered the General Assembly to fix the problems “or else.”