Monday, September 12, 2016

Judge Moukawsher’s Obiter Dicta On Education In Connecticut

It’s been 228 years since Alexander Hamilton, seeking to allay fears that the national judiciary would swallow up the other two branches of government, wrote in The Federalist Number 78 that the Supreme Court, provided it observed what has come to be known as the separation of powers,  would under the Constitution be “the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.”

The Supreme Court has long far exceeded Hamilton’s modest expectations, and appellate courts have followed suit. A headline in the Hartford Courant demonstrates how far courts have progressed since Hamilton’s day: “Lawmakers Scramble To Craft Response To Judge's Education Ruling.

Cracking his judicial whip, Superior Court Judge Thomas Moukawsher has ordered Connecticut’s General Assembly to implement his prolix 254 page education manifesto in 180 days. Following the decision, the New London Day observed that the judge “has ordered the state legislature to fix everything he has concluded is wrong with the state’s public education system. It has 180 days. And if the judge is not satisfied, lawmakers will have to get back to work to fix it right.”

The members of Connecticut’s General Assembly, 187 thoughtless cowards in a teacup, are not at all concerned that judicial orders of this kind impinge on legislative prerogatives, but then it has been years since our politicians, many of whom are also lawyers, have revisited the Federalist Papers or the Connecticut and Federal Constitutions. Consequently, the central observation outlined by Hamilton – that a constitutionally weakened court can never endanger the general liberty of the people, provided the judiciary remains truly distinct from both the legislature and the Executive – likely is of little interest to members of the General Assembly or the state’s Judiciary.

The judge’s decision has kindled a brush fire between Governor Dannel Malloy and Democratic leaders of the General Assembly. “Governor, speaker argue over ruling on school funding,” noted the Waterbury Republican American.

“I think the judge has pointed out the failure of the legislature to do things that they could have done,” said Mr. Malloy. And the things the legislature could have done were, as it happened, things recommended by Mr. Malloy. Last April, the governor proposed a plan that would have cut state Education Cost Sharing (ECS) grants for 28 of Connecticut’s wealthiest school districts by $32 million and reduce funding for others – while maintaining current funding levels for 30 Connecticut under-performing public schools. To put the matter in plain-speak, the governor and the Democratic dominated General Assembly, some Republicans dissenting, de-financed successful schools while maintaining current funding levels for unsuccessful schools. Speaker of the House Brendan Sharkey took umbrage at Mr. Malloy’s recent shot over his bow: “It was unfortunate that the Governor chose to claim that he is the champion on this issue and blame the legislature for not following his lead,” said Mr. Sharkey.

It is crucial to point out here that instituting a system in which education dollars follow students easily might satisfied the concerns of all parties, while at the same time improving public education. If parents rather than judges and legislators were given the opportunity to decide which schools should be financed with their own tax dollars, the allocations would flow to successful schools – which would engender superior performance in all public schools, especially in urban pedagogical traps where students have been forced for decades to endure inferior educations. Parents ordinarily would not use their hard earned money to purchase rotten peaches for their children’s school box lunches; why should anyone -- including governors, legislators and judges – suppose they would be less discriminating when purchasing an education for their children?

All political issues ultimately may be reduced to two questions: 1) what should be done? and 2) who should decide what should be done? Hamilton’s answer to the second question is much different that of the average judge.

In the present case, Judge Moukawsher has decided he should determine the allocation of educational funds, the legislature having failed to disburse educational dollars equitably. But equitable funding does not assure quality education. If such were the case, the under-financed Amistad Academy in New Haven and other under-celebrated Achievement First charter schools in Connecticut and elsewhere could not provide for inner city students an education that is by all measures much superior to that supplied by failing schools that draw from the same pool of students.

It’s long past time for legislators to put on their thinking caps and do something precious and valuable for inner city students. Emoting and political posturing is rarely helpful, whether done by preening legislators, editorial writers or judges. 
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