Pereira v. State Bd. of Educ.

Decision Date13 March 2012
Docket NumberSC18833 Dissent
CourtConnecticut Supreme Court
PartiesPEREIRA v. STATE BOARD OF EDUCATION-DISSENT

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PALMER, J., dissenting. Acknowledging their inability to fix a school system that has failed to meet minimum state standards for seven consecutive years, Bridgeport's mayor, superintendent of schools, and school board formally requested that the state board of education authorize the commissioner of education to reconstitute the Bridgeport school board,1 as authorized by General Statutes § 10-223e (h). In response, the state board, acting in furtherance of its constitutional and statutory duties to ensure that this state's schoolchildren receive an adequate public education,2 acceded to Bridgeport's request and directed the commissioner to reconstitute the Bridgeport board. For approximately seven months now, the reconstituted board has endeavored to repair Bridgeport's broken school system.

Today, the majority deals the schoolchildren of Bridgeport a major setback, striking down the state board's action without any legitimate basis for doing so. The majority holds that the Bridgeport board was not free to waive the training provision of § 10-223e (h). Yet it is axiomatic that a statutory requirement typically may be waived by the requirement's intended beneficiary or by the beneficiary's duly authorized representative, and this case presents no exception to that general rule: a local board of education is free to waive the training provision of § 10-223e (h) because that provision obviously exists to protect a local school district from an unwanted state takeover, not to force a local board of education to retain control even after the local board has determined that it cannot discharge its constitutional duty to provide an adequate public education. There is not a shred of evidence to support the majority's contrary conclusion—not in the statutory text, not in the legislative history, and not in our case law. The majority achieves its unfounded conclusion only by misapplying the law and ignoring this state's recent sea change in public policy toward failing school districts.

Not only does the majority disregard established principles of law, relying instead on superficially favorable language that it lifts from an assortment of largely irrelevant opinions, but the majority also invokes a nonexistent principle of statutory interpretation to rationalize ignoring the legislative history of § 10-223e and to justify saddling the training provision of § 10-223e (h) with an entirely fictional purpose: to provide ''notice'' of an impending reconstitution to the citizens of the entire state and to promote "transparen[cy]" and "delibera[tion]" during the ensuing reconstitution process. This purported statutory purpose receives no support from the evidence on which the majority relies, nor does it provide any support to the majority's conclusion that the training provision is nonwaivable. The majoritydoesnot even attempt to justify its assumption that permitting a local board of education to waive the mandated training would deprive the citizens of this state of adequate notice of an impending reconstitution or render the reconstitution process impermissibly opaque or overhasty. The majority also does not attempt to explain how the citizens of Connecticut's various towns and cities could have an overriding interest in the transparency and deliberateness of the reconstitution process in Bridgeport, an interest so strong as to outweigh that city's own interest in permitting the Bridgeport board, acting on behalf of the local electorate, to waive the training contemplated by § 10-223e (h) in order to discharge as expeditiously as possible the Bridgeport board's duty to protect the schoolchildren's constitutional right to an adequate public education.

In analyzing the training provision of § 10-223e (h), the majority refuses to consider the legislative history of the comprehensive statutory scheme of which the training provision is but a small part, a statutory scheme that grants the state sweeping power to rescue failing schools and school districts. To read the majority opinion, one would scarcely know the extent to which this grant of power represents a dramatic shift away from what was once a blanket preference for local control of education. Where our most profoundly troubled school systems are concerned, this state has abandoned any preference for local control. Oddly enough, however, it is in fact the majority opinion that disregards the value of local control, offering an analysis of § 10-223e (h) that yields an absurdly paternalistic result, namely, that the training provision could not have been waived even upon a 9 to 0 vote of the local board and upon unanimous community and political agreement that the Bridgeport school system required immediate state intervention. This irrational statutory construction defies common sense, not to mention settled principles of law. Compounding the problem is the majority's holding that the training provision serves the purpose of providing for a ''transparent and deliberate process.'' This holding yields the additional irrational result that, even if the members of a local board of education had voluntarily undergone all of the training that the state board possibly could have required of them, the state board could not reconstitute the local board without requiring the board members to undergo the training all over again.

It seems that what really drives the majority opinion is a general sense of unease with Connecticut's dramatic shift away from a policy of local control of failing school systems and a lack of affection for the state's newfound statutory power to reconstitute a local school board unable to stem the tide of chronic failure. Expressly agreeing with Justice Harper's critical view of the recon-stitution authority, the majority proclaims that ''local control over education fosters a beneficial and symbi-otic relationship between the parents, students and local school administrators, a relationship that should not be lightly disregarded.'' Footnote 24 of the majority opinion. Yet this case simply is not about whether permitting the state board to reconstitute failing school districts is good public policy.3 That is a question already answered by the legislature, and answered resoundingly.4

In sum, it is clear that a local board of education is competent to waive the protection of § 10-223e (h) both because it is the locality's duly elected representative and because it is an agent of the state charged with fulfilling the state's constitutional obligation to provide schoolchildren with a suitable education. That constitutional obligation adverts to what this case really is about: the dismal state of affairs confronting Connecticut's poorest schoolchildren. Absent from the majority opinion is anything more than a passing reference to this calamity.5 Yet the plight of Bridgeport schoolchildren is what prompted the state board to honor the Bridgeport board's request for state intervention and is what the legislature generally sought to remedy when it enacted a statutory scheme making that intervention possible. Because the state board's intervention in Bridgeport was statutorily authorized, and because the plaintiffs' constitutional claims are meritless, I disagree with the majority's conclusion that the state board's reconstitu-tion of the Bridgeport board was unlawful. I therefore dissent.

I

Before explaining my disagreement with the majority's waiver analysis, I find it necessary to discuss in some detail this case's historical and statutory back-drop.6 The majority pays scant attention to this important context, which amply reflects the state's dominant role with respect to failing school districts. This context makes it crystal clear that § 10-223e serves one overriding purpose: to endow the state with sweeping power to rescue failing schools and school districts. In light of the statute's interventionist purpose, it is obvious that the training contemplated by § 10-223e (h) serves simply to put a modest7 brake on the process of reconstituting a local board of education in order to protect the locality's still existing but minimal interest in retaining control over public education. In short, the training provision is a shield, a measure meant to protect a locality against what it might perceive as an unwarranted state takeover.8 The training provision is not a sword, a measure meant to force a local board of education to retain control over the education of...

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