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Autumn 1996
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A Connecticut Yankee in Court
Walter Olson
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Just as the disputed borderland of Alsace-Lorraine abounds with flag-waving Gallic patriots, so we in Connecticut tend to insist, a bit too loudly, that we, too, are New Englanders. Sure, we’re only an hour or two from Times Square, but we can find brown eggs and Yankee at the Stop & Shop, and Essex might just as well be on Cape Cod. We even have town meeting.

Actually, there is something to this last point. Towns here do preserve their individual character, in large part because we lack anything like county government. Tedious and chaotic though it often is, town meeting symbolizes the way neighbors cooperate hereabouts. It’s a kind of face-to-face citizenship, concerned with every topic of local interest but, above all, with management of the schools.

These days will soon draw to a close if the Connecticut Supreme Court makes good on its widely hailed July 9 decision in Sheff v. O’Neill. In what three dissenting justices called “a vast and unprecedented social experiment,” the court blithely struck down Connecticut’s deeply rooted system of town-based school districts and turned the state toward a policy so utterly discredited since the 1970s that most of us never expected to hear of it again: mandatory city-suburb busing to achieve racial integration.

For years the lawyers behind the litigation trotted out lead plaintiff Milo Sheff, a black teen from Hartford, in order to give the suit an appealing public face. Yet there was nothing spontaneous, local, or personal about Sheff v. O’Neill. It arose from years of planning by national groups like the American Civil Liberties Union and the NAACP Legal Defense Fund, and no one thought it strange when the lawyers held their first post-victory strategy session in New York City. The idea was to get around the U.S. Supreme Court’s 1974 ruling in Milliken v. Bradley, which made clear that the federal Constitution does not require city-suburb busing. The new tactic was to subject various broadly worded provisions of the Connecticut Constitution to what former ACLU legal director John Powell called some “stretching.”

The plaintiffs won a 4-3 squeaker. Three Lowell Weicker appointees joined with departing chief justice and former Yale law professor Ellen Peters to propound a wholly new constitutional right of children to enjoy “access to public school education that is not substantially impaired by racial and ethnic isolation.” Rather than ordering some specific “remedy,” as courts normally do, the majority simply directed the legislature and the governor to take care of the problem at once—”to put the search for appropriate remedial measures at the top of their respective agendas”—without saying what would satisfy this command. This vagueness also reflected a deliberate strategy of the plaintiffs: during seven years in court, as the Hartford Courant reported, they had “never suggested any specific ways to correct the imbalance.” Better to get into the driver’s seat first and then decide in later rounds of litigation where they want to go.

Three dissenting judges, led by Justice David Borden, charged that the decision was “ungrounded in the text and history” of the state Constitution. They were less coy about its implications: “every school district in the state that is primarily white and that does not have an appropriate percentage of African-American and Hispanic students” was in violation of the court’s ruling and would have to alter its boundaries or its racial and ethnic makeup to remedy this “unconstitutionality.” The necessary practical result: “a statewide system of transportation based solely on racial, ethnic, and religious factors.”

The state’s governing elites have agreed to avoid any discussion of this prospect. “Busing is not an issue,” said James Fleming, majority leader of the Republican state senate. A confidential memo from the state Democratic leadership, inadvertently left behind in a conference room, warned that election-year talk might easily turn to “forced busing,” “loss of local control,” and “redistricting.” It advised lawmakers to “draw the debate away” from such disturbing possibilities.

Though it is impolitic to discuss busing openly, some opinion leaders see no harm in quietly preparing the public mind for it. The Hartford Courant reported that minority lawmakers “did not rule out some busing to help achieve racial balance.” Students already ride buses, the paper’s editorialists sagely noted: “Some extra transportation may be necessary, but it doesn’t have to be massive and over long distances.” One much-discussed option is forcing towns to merge into regional school districts—that way, no one could complain of being compelled to cross district lines.

Once under such a regional scheme, towns would inevitably lose control of school finances, hiring, discipline, and curriculum. Many parents are still only dimly aware that Sheff might mean so much for their children and communities. Like the cartoon character who doesn’t know he’s run off a cliff until someone directs his attention downward, they pack up the kids each morning for a school that, without their realizing it, has been abolished out from under them.
 

 

 


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