Enforcing affirmative state constitutional obligations and Sheff v. O'Neill.

• Author: Long, Justin R.
• Position: School desegregation efforts under the Connecticut Constitution

INTRODUCTION

While the United States Constitution is largely a grant of powers to a narrowly limited national legislature, (1) the state constitutions typically act to constrain legislatures imbued with plenary power. (2) Similarly, federal courts have jurisdiction sharply restricted by federal constitutional limits, (3) while state courts have broad common-law-making authority. (4) These distinctions are particularly acute in litigation over the affirmative obligations state constitutions impose on state legislatures.

The United States Congress may make laws affecting interstate commerce, (5) patents, (6) or federal property, (7) example, but it is difficult if not impossible to imagine a cause of action against the United States because of a congressional decision not to enter these fields. The federal legislature shall not make laws abridging freedom of speech, (8) imposing bills of attainder, (9) or granting aristocratic titles, (10) among other things; where Congress violates these prohibitions, the courts remain largely available to vitiate the forbidden action. (11)

In contrast, in addition to imposing permissive and negative obligations like those found in the U.S. Constitution, state constitutions typically impose various affirmative constitutional obligations on state legislatures: they shall balance the budget, (12) protect the environment, (13) reapportion electoral districts, (14) or provide free public education. (15) When the states operating under such affirmative obligations fail to comply, state courts are faced with the challenge of enforcing constitutional provisions against their own legislatures.

This Comment will attempt precisely to identify the difficulties of judicial enforcement of affirmative constitutional obligations and will suggest that taking procedural formalities more seriously may result in effective enforcement. This issue will be examined through the lens of ongoing school desegregation efforts under the Connecticut Constitution.

Part I of this Comment will discuss the history of Connecticut's constitutional litigation concerning school desegregation and outline problems with enforcing the state supreme court's landmark 1996 desegregation case, Sheff v. O'Neill. (16) While the facts and law of this case will be addressed with specific attention to the Connecticut context, the issues uncovered illuminate problems of nationwide concern.

Part II will examine possible implied affirmative obligations in the Federal Constitution and consider how federal courts have enforced those obligations. More significantly, this Part will review efforts by some of Connecticut's sister states to enforce their own affirmative constitutional obligations.

Part III will discuss broad problems inherent in judicial action mandating legislative conduct. Among these problems is the possibility that state legislatures may refuse to comply with their courts' decrees, a potentially serious threat to the legitimacy of state constitutionalism. As a solution, this Comment argues that state courts seeking to enforce affirmative obligations should make bold, morally confident decrees, but in close technical conformity with traditional concepts of civil procedure and legal formalism.

1. CONNECTICUT'S SHEFF LITIGATION

   Developing an understanding of the Sheff case and its effects on Connecticut requires attention to a narrative beginning long before seventeen schoolchildren sued their governor in 1989. School desegregation under the Connecticut Constitution implicates a complex socio-legal history extending back to the earliest days of the Connecticut Colony. While the characters and setting of this story are particular to the small state in question, the themes are far broader and more profound. Any government's relationship with its children is a sensitive and potentially controversial topic with inextricable moral concerns. Similarly, the effects of any law-inspired change in race relations extend well beyond law into morality and the society's very conception of itself. (17) When, as with school desegregation, the race-tinged relationship between a government and its children is formally defined by the government's founding document, official decisions are likely to be affective as well as rational and cultural as well as legal. (18) The three strands of Connecticut history described below--public schools, state constitutionalism, and race relations--entwine from the earliest colonial days through the latest court opinions to form the story studied here. (19)

   1. The Early History of Public Education, Constitutionalism, and Race Relations in Connecticut

      Hartford was founded in 1635 by Reverend Thomas Hooker, who walked with his congregation south from their Massachusetts church, (20) located one block away from the site of what was soon to become the Bay Colony's first public university (today known as Harvard College). (21) Thus, even before the Connecticut Colony was organized, its founders were familiar with the value of state-sponsored schooling and came from a community committed to the ideal of public education. Within ten years of settlement upon the banks of the Connecticut River, the fledgling Hartford community hired a teacher, established a school tax, set a curriculum, and invited all community children to be educated regardless of their economic status. (22)

      While the early Connecticut Colony was attending to the education of its youth, it also established a written framework of government, the Fundamental Orders. (23) Under the authority of the government established by the Fundamental Orders, a colonial diplomat obtained from King Charles II a royal charter that was highly favorable to the colonists. (24) By 1697, local reverence for the charter had grown so strong that when King James II sent a military governor from Boston to Hartford to revoke it, local officials hid the charter in a nearby oak tree rather than surrender it. (25) Connecticut's affection for its charter continued even after the colony's transition to statehood under the United States Constitution; the charter remained Connecticut's foundational document until 1818, when the first state constitution was established by convention. (26)

      While Connecticut exhibited strong support for both its public schools and foundational documents from the beginning, the state's history of race relations is less endearing. Although slavery was legally phased out beginning in 1784 and the Underground Railroad passed through the state, (27) "the city [of Hartford] was not particularly hospitable to blacks." (28) Economic and political discrimination severely restricted the rights of Connecticut's African-American citizens. (29) Because they could not legally own land, black Connecticutians were forced by economic necessity to live in cities, where rental housing and service sector jobs were more readily available. (30) In this way, the state's segregated housing patterns are the vestiges of early and long-enduring racist laws.

      In 1909, before large numbers of African-Americans fleeing southern poverty and Jim Crow discrimination had moved to Connecticut, (31) the general assembly passed a law directing schoolchildren to attend their neighborhood schools. (32) In 1941, during the period of mass migration of African-Americans into the state's urban centers, (33) the general assembly passed an act setting school district lines coterminously with town borders. (34) That action linked housing discrimination with school demographics in a way that would gradually produce viciously segregated schools. (35)

      Connecticut's history of race relations in the public schools was further complicated by a significant influx of Latino families, primarily from Puerto Rico, beginning in the early 1940s. (36) By 1970, Connecticut's Puerto Rican population had risen to 88,361, (37) roughly 2.9% of the state's total population. (38) In addition to the problems of racial isolation already present in the African-American community in Hartford, the arrival of Latino immigrants introduced the stubborn problem of linguistic isolation to the city's schools. (39)

      In the midst of these seachanges in the complexion of Connecticut's citizenry, a constitutional convention was called in 1965 to revise the 1814 constitution. (40) There, convention delegates proposed and debated two new sections for the Connecticut Constitution: article I, section 20, prohibiting segregation in any state program or policy; and article VIII, section 1, establishing a state duty to provide public schools. (41) These provisions would become the textual foundation of the state supreme court's holding in the landmark case of Sheff v. O'Neill.

   2. The Case Proceeds in the Superior Court

      By April 1989, Hartford's public schools were educating their students in an atmosphere of severe racial and economic isolation and the situation was getting worse. (42) Elizabeth Horton Sheff, an African-American community activist, politician, and mother of a Hartford fourth grader named Milo, decided to sue Democratic Governor William O'Neill to demand that the situation be fixed. (43) She joined with sixteen other African-American, Latino, and white plaintiffs from the Hartford metropolitan area to assert that the Connecticut Constitution guaranteed them an integrated public education. (44) The nature of the plaintiffs' demands was unprecedented, both in Connecticut and (45) across the country.

      Although the plaintiffs' legal theory that the state officials had an affirmative obligation to desegregate the public schools asserted a dramatic and controversial claim against the state, the complaint was also noteworthy for three of its somewhat technical characteristics. First, the case was brought on behalf of the seventeen named Hartford-area plaintiffs individually, not as a class action. (46) One might have expected the plaintiffs to choose the class action device for achieving broad institutional reform...