The state's business.

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A Connecticut Judge Reaches Too Far

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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A Superior Court judge just took over Connecticut's education system, ordering state officials to undertake major reforms of funding, teacher evaluation and graduation standards. The impulse to improve education is admirable, but the judge wildly overreached his authority.

The Sept. 7 decision is an object lesson in what happens when judicial restraint is ignored. Judges are poorly placed to compel and supervise detailed policy reforms, and they’re less expert on the subject than state officials who are responsible to the electorate.

To put the Connecticut decision in context, it’s worth noting that lots of state courts in recent years have demanded greater equality in distributing public-school dollars. That’s reasonable enough. The courts generally rely on a combination of state constitutional provisions that guarantee public education and equal protection of the laws.

The federal Constitution hasn’t been interpreted this way, though the Supreme Court came close in 1973. But if getting an education is the basic tool to achieve success in a modern economy, it makes sense for states to deliver this basic good on an equal basis, rather than letting rich kids in rich neighborhoods get a better-funded education than their poor counterparts in poor neighborhoods.

The Connecticut constitution says simply that “there shall always be free public elementary and secondary schools in the state.” In 1977, the state supreme court said that meant public education was a fundamental right for Connecticut residents. And in 2010, the state supreme court allowed a far-reaching challenge to Connecticut's educational system to go forward on the theory that the state constitution requires the system to be minimally adequate.

That led to a trial held before Superior Court Judge Thomas Moukawsher -- and to his 90-page decision, followed by 154 pages of appendices drawing factual conclusions from the record.

Moukawsher did demand greater equality in state spending, noting that cuts in recent years had hit schools in places such as New Haven and Bridgeport much harder than schools in better-off suburbs such as Greenwich and New Canaan.

But his decision went much further. Starting with the premise that the state’s educational system must be “rational,” Moukawsher went on to reject a range of policy choices as fundamentally irrational, and therefore illegal. In all this he went far beyond what most state courts have done. Probably the best analog to his decision is that of a California trial judge who struck down the state’s teacher tenure system, a ruling that was overturned on appeal.

Moukawsher began his opinion by holding that the state’s overall spending on education was sufficient to meet a minimum standard. The Connecticut Coalition for Educational Justice asked him to use the state’s equal protection clause to order the state legislature to allocate more funding to education. The judge refused, in that way denying the element of the case that was probably most important to the coalition when it began the litigation more than a decade ago.

The basis for the judge’s holding was that a rational educational system must feature “a substantial and verifiable link between educating children and the means used to do it.” That sounds logical, of course. The trouble lies in the difficulty of second-guessing complex political and policy decisions by describing them as delinked from the goal of education.

When it comes to funding, Moukawsher basically held that the state legislature must adopt some sort of rule-based allocation system rather than just allotting money to schools on an ordinary legislative basis. In other words, he demanded the preemption of the ordinary political process -- and ordered the legislature to do better. The basic problem, he said, was that Connecticut has some of the most successful school districts in the country – but also some of the worst performing.

Moukawsher admitted that funding alone may not solve that problem, but he said that the unequal results “cry out for coherently calibrated state spending.”

The judge’s attack on the state’s promotion and graduation policies was even more aggressive -- and an even clearer example of judicial overreach. Moukawsher observed correctly that “the state is paralyzed about high school graduation,” caught between the desire to graduate students and achieve rigor. But that paralysis is political -- and it reflects genuine policy uncertainty as well.

The judge essentially ordered the state to adopt an objective graduation standard. That sounds great -- in theory. In practice, however, he’s now more or less requiring the state to start denying high school diplomas to kids in poor neighborhoods, where it’s already hard to get a job.

In the long run, that might well be the right policy decision -- in fact, it probably is. But it’s not a decision that a judge should be making on the basis of his own intuition about the importance of “objective” standardized testing. In a democracy, the people’s representatives are supposed to make difficult policy choices that have tragic consequences.

Finally, in the part of his decision that will be most controversial, Moukawsher said that the state’s teacher evaluation and compensation systems are “impermissibly disconnected from student learning.” He demanded that student performance play a greater role in teacher evaluation, and rejected seniority-based pay as educationally irrational.

It’s easy to sympathize with this critique of the evaluation system, which ranks 98 percent of Connecticut’s teachers as fully competent and no doubt has been affected by pressure from teachers’ unions. But there is a real and substantial policy debate about the best and most effective ways to evaluate teachers and structure their compensation. The court isn’t qualified to choose among competing options -- and the data isn’t definitive.

Moukawsher peppered his opinion with rhetoric insisting that he wasn’t going to micromanage the state’s education system, but would only call for reform at a high level of generality. But that’s not realistic: In 180 days he’s going to review whatever reforms the state undertakes. Whether it happens now or at a later stage of the enforcement process, the state should appeal his judgment, and the state supreme court should overturn it.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Max Berley at mberley@bloomberg.net