Rosen Asks Supreme Court To Reconsider

Connecticut’s schoolchildren should not be penalized for a judge’s misunderstanding of the law, an attorney argued in a last-ditch effort to persuade the Supreme Court that the state’s public education system is unconstitutional.

That argument, laid out in a new brief, asked the State Supreme Court justices to reconsider their 4 – 3 ruling earlier this month in Connecticut Coalition for Justice in Education Funding v. Rell. This month, a narrow majority of justices said that the state’s schools might not be up to snuff for the needy student, but they provide enough for the average student to meet constitutional requirements.

In a filing submitted late Friday, David Rosen, the New Haven civil rights attorney fighting CCJEF’s case, said the trial-court judge clearly took issue with the state’s educational system, but he hadn’t lined up his factual findings with the justices’ changing definition of a suitable education.

“According to the trial court, the evidence of deficiencies was so profound that it had no choice but to characterize schools as ​‘utterly failing,’ and to conclude without qualification that for ​‘thousands of Connecticut students, there is no elementary education … and no secondary education.’ Those are forceful and unequivocal findings of ultimate facts,” Rosen wrote. ​“The trial court should be afforded an opportunity on remand to consider whether those damning findings suffice to meet this integrated standard.”

Rosen’s 17-page brief must be persuasive enough to sway at least one of the four justices who had their minds made up two weeks ago. But if his last-gasp effort succeeds, it would be one more remarkable turn in a 13-year-old case that nearly upended the state’s education system.

In 2010, a plurality of State Supreme Court justices said Connecticut’s constitution ensures each child the opportunity to get a suitable education. They remanded the case back for a lower-court judge to investigate whether it was meeting that burden.

Six years later, after hearing from 52 witnesses, Superior Court Judge Thomas Moukawsher found that the state was failing. The legislature provided enough money, he said, but its distribution was ​“irrational” and ​“arbitrary.” In a sweeping order, he demanded that the legislature rectify the imbalance.

The attorney general appealed, arguing the judge had taken an ​“uncharted and legally unsupported path.”

On Jan. 14, the Supreme Court reversed Moukawsher’s order. All seven justices agreed that the judge hadn’t used the criteria from their 2010 ruling that describes a ​“minimally adequate education,” instead inventing his own idea of what schools should offer.

Reading into Moukawsher’s 254-page opinion, the majority said it couldn’t find enough evidence that schools lacked adequate classrooms, desks and pencils, up-to-date textbooks and qualified teachers — the measurable inputs that Chief Justice Chase T. Rogers argued are the only guarantees the state must provide.

By contrast, the minority argued Moukawsher can find plenty of evidence if he conducts another trial. ​“The plaintiffs were not afforded the opportunity to prove their case according to the correct legal standard, and … there is reason to believe that the trial court may have found one or more violations … if that test had been applied properly,” Justice Richard N. Palmer wrote. ​“I would remand the case for a new trial.”

That’s exactly what Rosen asked for in his brief. Particularly in high-poverty districts like Bridgeport and East Hartford, he pointed out, the trial testimony had already highlighted many details that Moukawsher skimmed over in his analysis.

In Bridgeport, the schools shortened their academic year and packed classrooms. Each year, at least 200 teachers left, citing low pay and poor working conditions. Two elementary schools had leaky roofs, radiators and water fountains that hadn’t been repaired for up to 11 years. At another school, a computer lab had only two dozen computers, all of which were broken.

In East Hartford, the textbooks in math class dated back to 1991. The physical science textbooks were 10 years old, and the biology textbooks were 15 years old. As one high school teacher testified, ​“The bindings are falling apart, so I keep packing tape in my drawer so I can repair them as best as possible.” She said one science textbook’s section on computers referenced floppy disks but not the Internet.

“That the trial court erred in its approach does not cause those factual findings to evaporate; they retain their forcefulness as a vivid indictment of the failures … impacting many of our schools,” Rosen wrote. ​“Before consigning thousands of young people to a future shackled by a lack of preparation produced by an ineffective school system, the [Supreme] Court should permit the trial court to consider the fundings that so troubled it.”

In a four-page response filed on Tuesday afternoon, the state said that CCJEF was cherry-picking details — a new and inaccurate line of argument, wrote Joseph Rubin, the associate attorney general.

“A mixture of positive and negative factual findings for both sides is inevitable in a trial of [this] magnitude,” Rubin wrote, but that ​“does not provide a license for either side to claim that the trial court was wrong … because of how it weighed the competing and sometimes conflicting underlying facts.”

In any case, Rubin said, the Supreme Court justices already weighed that evidence themselves and rejected CCJEF’s interpretation. Any missing details from the trial weren’t there because CCJEF failed to provide ​“an adequate record for review,” an oversight that didn’t merit a reconsideration, he added.