Sheff v. O'Neill

join, dissenting. The majority has reached a result driven conclusion based on a theory of constitutional liability that was never presented to the trial court or to this court, is ungrounded in the text and history of Connecticut’s constitutional provisions regarding the rights to public education and equal protection of the laws and is wholly at odds with the factual record in this case. The majority’s conclusion, moreover, is contrary to the teaching of Horton v. Meskill, 172 Conn. 615, 376 A.2d 359 (1977) (Horton I), this court’s principal precedent interpreting those provisions. In its zeal to reach a result that, it envisions, will eliminate racial and ethnic concentration in the public school districts of this state, the majority has “[renounced] this Court’s historical commitment to a conception of the judiciaiy as a source of impersonal and reasoned judgments *56. . . .” (Internal quotation marks omitted.) Payne v. Tennessee, 501 U.S. 808, 844, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991) (Marshall and Blackmun, Js., dissenting). In essence, “[p]ower, not reason, is the new currency of this Court’s [state constitutional] decisionmaking.” Id. I therefore dissent.1

More specifically, in reaching a result that is unprecedented in American jurisprudence the majority has created a constitutional theory of equal educational opportunity that: (1) in the long history of this case, has never been presented to the trial court or to this court, and is, therefore, a theory to which the defendants have never had an opportunity to respond; (2) misapplies our precedent on the meaning of an equal educational opportunity as expressed in Horton I, and is contrary to the voluminous factual findings of the trial court; (3) distorts the meaning of the term “segregation” in our state constitution; and (4) misrepresents the record regarding the question of a remedy for the constitutional violation that the majority has found.

In addition, the majority sends to the legislature and the executive branch a mandate to fashion a remedy for de facto racial and ethnic concentration in our public schools, a task that those branches of government will inevitably find to be extraordinarily difficult or perhaps even impossible, because the majority articulates no principle upon which to structure such a remedy. The necessary implication of the majority’s reasoning is that virtually every school district in the state is now either *57unconstitutional or constitutionally suspect. Without explicitly saying so, the majority has effectively struck down, not just for the greater Hartford area but for the entire state, the municipality based school system that has been in effect in this state since 1909.

It is significant, moreover, that the majority does not respond to the major substantive flaws in its analysis that this dissent identifies. Nor does it take issue with what I identify as the necessary implications of its decision.

I

INTRODUCTION

Before analyzing the majority’s reasoning and the constitutional claims that the plaintiffs did present in this case, I state the extent of my agreement with the majority. First, I agree that the case is justiciable, and that there is state action. Moreover, and most importantly, I agree with the majority on the desirability — as a matter of public and educational policy — of eliminating from our public schools the type of racial and ethnic concentration demonstrated by this record.

I also agree that racial and ethnic isolation in our public schools is harmful — both to those races and ethnic groups that are so isolated and to the other races and ethnic groups from whom they are isolated. I also agree with the majority’s statement, based upon the trial court’s finding, that the racial and ethnic isolation of Hartford’s schoolchildren is likely to worsen in the future. I agree, furthermore, that racial and ethnic integration of our public schools would be beneficial for all children and society in general. These points of agreement rest on the notions that, as the majority recognizes, schools are important socializing institutions that bear a central responsibility for imparting our shared democratic values to our children, and that *58the opportunity for children of different races, ethnic backgrounds, economic levels and social groups to get to know each other in school is important if they are to understand and respect each other. Finally, I agree with the majority that the health of the economy of our state requires an educated workforce, which includes “the urban poor as an integral part of our future economic strength.” Abbott v. Burke, 119 N.J. 287, 392, 575 A.2d 359 (1990). Thus, I agree with the majority on the importance in our state — indeed, in our nation — of finding a way to cross the racial divide.2

*59The majority, however, has transformed a laudable educational philosophy into a constitutional mandate. That philosophy is that racially and ethnically integrated schools are socially and educationally preferable to racially and ethnically concentrated schools, because they confer certain significant social benefits on their students that such concentrated schools cannot, and they avoid certain significant social burdens that such concentrated schools are likely to impose. That belief, however, is utterly without basis as a constitutional claim of deprivation of an equal educational opportunity. Neither the record in this case, the text or history of the Connecticut constitution, nor our case law supports such a claim. A similar example of judicial overreaching *60comes to mind. Ninety-one years ago the United States Supreme Court, in Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), declared unconstitutional, as violative of the liberty of contract perceived to be implicit in the due process clause of the fourteenth amendment to the United States constitution, New York’s labor law imposing a daily limit of ten hours of work in the bakery industry. Justice Holmes dissented, stating that “[t]he Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” and that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Id., 75. This decision ushered into our constitutional jurisprudence what came to be known as the “Lochner era,” during which the Supreme Court undertook to strike down legislation that did not comport with the particular economic theories held by a majority of the justices. See Dolan v. Tigard, 512 U.S. 374, 409, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (Stevens, J., dissenting) (identifying the “superlegislative power the Court exercised during the Lochner era”); 2 R. Rotunda & J. Nowak, Treatise on Constitutional Law (2d Ed. 1992) § 15.4, pp. 403-404 (“independent review of legislation during [Lochner] era resulted in unprincipled control of social and economic legislation”); L. Tribe, American Constitutional Law (2d Ed. 1988) § 8-2.

The majority opinion in this case does much the same. Just as the justices of the United States Supreme Court “Lochneñzed” the federal due process clause by reading laissez faire economic theory into it, the majority of this court has “Loc/merized” our education and equal protection clauses by reading into them an educational theory that mandates racially and ethnically integrated schools. There is no more basis today in our constitution for judicial intervention to impose such a manda*61tory educational theory than there was in the Lochner era for the judiciary to impose laissez faire economics.

Thus, the majority has used this court’s power to interpret the constitution in order to mandate a vast and unprecedented social experiment, using the state’s schools and schoolchildren as test data, and thereby to construct what the majority perceives to be the necessary bridge over the racial divide.3 The majority has done so, however, without the bricks and mortar necessary to that construction — the facts, and sound constitutional principles. Indeed, had the factual findings by the trial court been those unsuccessfully sought by the plaintiffs, this case would have been very different on *62appeal. For example, had the trial court found, as the plaintiffs claimed, that racial and ethnic concentration, rather than poverty, results in different, educational outcomes and achievements, and that the measurements of those outcomes and achievements are valid for inter-district purposes, the plaintiffs’ constitutional claim of a deprivation of an equal educational opportunity, as they presented it, would have been powerful and might have legitimately prevailed.

As this record overwhelmingly demonstrates, however, the trial court found the facts, not in accordance with the plaintiffs’ version of the evidence on that claim, but in accordance with the defendants’ version of the evidence. The trial court found that it is poverty, not racial or ethnic concentration, that accounts for the differences in educational outcomes and achievements between the children of the Hartford schools and those of the surrounding districts. The trial court also found, contrary to the plaintiffs’ factual claims but in accordance with the defendants’ factual claims, that the measurements regarding those differences, although valid for certain intradistrict purposes, are not valid for measuring educational differences between different school districts.

Thus, there are no facts in the record to support what the majority asserts, in an opinion long on rhetoric and short on reasoning, are the “devastating effects that racial and ethnic isolation . . . have had on [the plaintiffs’] education.” Indeed, the facts found by the trial court contradict that assertion.4 Under the facts found by the trial court, all of the adverse effects on the educa*63tion of the plaintiffs result, not from their racial or ethnic isolation — either in whole or in part — but from their poverty. The majority, nonetheless, compensates for these factual shortcomings and for the trial court’s factual findings that are squarely contrary to the result the majority seeks to achieve, by ignoring those discomforting facts, and constructing a hitherto unknown constitutional theory — hitherto unknown in the long history of this litigation, and hitherto unknown in our even longer state constitutional history — that disregards all facts but those that are undisputed.

Thus, the majority opinion is, like the characters in Pirandello’s play, a result in search of a rationale.5 This case was litigated in the trial court for six years. The trial court heard evidence for eleven weeks. After a remand by this court to the trial court for the purpose of supplementing the factual record, the parties stipulated to 256 facts that are undisputed. Moreover, pursuant to our remand, the parties presented to the trial court for resolution a total of 676 disputed issues of fact — 551 by the plaintiffs and 125 by the defendants. With respect to these disputed issues of fact, the parties had presented extensive and conflicting evidence during the eleven weeks of trial. As a result, the trial court made 161 factual findings, in addition to the 256 stipulated facts. Those 417 factual findings constitute the factual basis for the constitutional claims advanced by the plaintiffs in the trial court and renewed on appeal.

Those findings, however, particularly the 161 facts found by the trial court that had been disputed, are critically and fundamentally adverse to the plaintiffs’ constitutional claims, as those claims were presented both to the trial court and to this court. Precisely because of that critical and fundamental factual adversity, however, the majority has, in an exercise of judicial *64revisionism, recast the plaintiffs’ constitutional claims so that the trial court’s critical factual findings have become irrelevant. Moreover, the assertion of the majority to the contrary notwithstanding, it cannot be tenably maintained that the constitutional theory created by the majority was ever presented to the trial court or to this court. The defendants, therefore, have never had the opportunity to respond to that theory.

There is no question, therefore, that everyone involved in this case shares the same goal: the ehmination of racial and ethnic isolation in the public schools of this state.6 Every desirable or wise policy, even every noble goal, however, is not necessarily embodied in the constitution. The debate, therefore, is over whether that goal is constitutionally mandated under the facts of this case. The majority, by an act of judicial will, without fidelity to the facts of the case or the claims of the parties, has imposed a constitutional mandate and has usurped a policy function that legitimately belongs to the legislature.

II

THE PLAINTIFFS’ CLAIMS AS DISCLOSED BY THE RECORD IN THIS CASE

The majority opinion7 conceals the constitutional claims presented by the plaintiffs and responded to by *65the defendants in the trial court, and on appeal in this court. In addition, the majority has cobbled together, from disparate parts of the plaintiffs’ claims, a constitutional theory that is wholly without support in the text, history and purpose of the constitutional provisions at issue in this case, or in the facts as found by the trial court. In order to appreciate these criticisms of the majority opinion, it is necessary to summarize the plaintiffs’ claims regarding a deprivation of an equal educational opportunity, as disclosed by this record rather than as expounded by the majority, and then to compare the majority’s analysis to the record. Only then is it possible to subject the facts found by the trial court and the constitutional provisions at issue to a reasoned and dispassionate analysis.

The plaintiffs presented three constitutional claims to the trial court: (1) the plaintiffs have been denied their constitutional right to an equal educational opportunity by virtue of their racial and ethnic concentration, and by the concentration of poverty in the Hartford school district, coupled with certain disparities in educational resources and outcomes as compared to the suburban districts; (2) the racial and ethnic concentration of the plaintiffs in the Hartford school district constitutes a per se violation of the education and equal protection clauses of the constitution, based solely on the undisputed demographic facts of that concentration; and (3) the inadequacy of certain educational resources in the Hartford school system constitute a denial to the plaintiffs of their constitutional right to a minimally adequate education.8

It is the plaintiffs’ first claim — that of a deprivation of an equal educational opportunity — (hat concerns us *66here, because that is the claim that the majority sustains on the basis of the undisputed demographic facts. It is indisputable, however, that the plaintiffs’ claim of a deprivation of an equal educational opportunity was based, not solely on the demographic facts of racial and ethnic isolation and concentration of poverty, but on those facts coupled with other facts claimed by the plaintiffs to demonstrate disparities, in terms of educational resources and outcomes, between the Hartford and suburban districts. The plaintiffs’ claim of the deprivation of an equal educational opportunity was premised on a factual showing that, because of — in a cause and effect sense — their racial and ethnic isolation, the concentration of poverty in which they live, and the disparities between the educational resources available in the Hartford schools and those available in the suburban schools, the quality of their education, as measured by educational outcomes, is significantly less than that of their suburban neighbors. Put another way, the plaintiffs undertook to persuade the trial court that, as a factual matter, all three of these factors — racial and ethnic isolation, concentration of poverty, and disparities in educational resources — have caused the quality of their education, as measured by the standards articulated by this court in Horton I, to be inferior to that of the surrounding suburban districts.

Thus, it was critical to the plaintiffs’ equal educational opportunity claim that they prove the following facts: (1) they are racially and ethnically concentrated — an undisputed fact; (2) they suffer from the effects of a concentration of poverty — also undisputed; (3) the educational resources of the Hartford district are less than those of the surrounding districts9- — a disputed fact; *67and (4) the combination of the first three cause lesser educational outcomes in Hartford when compared to the suburban districts — also a disputed fact. One cannot read this record — both the trial court record and the appellate record — any other way.

Thus, at a minimum, proof of lesser educational outcomes as a result of racial and ethnic isolation was essential to the plaintiffs’ case, because their constitutional theory of deprivation of an equal educational opportunity is based on the provisions of article first, § 20, of the state constitution, regarding race and ethnicity. In other words, without either race or ethnicity, or both, as a causative factor in lesser educational outcomes, the plaintiffs’ case under article first, § 20, would fall, because those are the two protected categories under that article that the plaintiffs invoke as the basis of their constitutional theory.10 Thus, it was essential for the plaintiffs to establish in the trial court that their racial and ethnic isolation, either alone or in combination with the concentration of poverty, caused diminished educational outcomes relative to those of the surrounding communities.

It is also clear that the plaintiffs, the defendants and the trial court considered these issues as questions of fact to be established by evidence — both documentary and by way of experts’ opinions — and not questions of *68law. It is equally clear that these are questions of fact and not of law. Moreover, the plaintiffs, the defendants and the trial court all understood that the plaintiffs were required to prove the existence of a diminished educational opportunity caused by the plaintiffs’ racial and ethnic isolation, in addition to the more generalized benefits of an integrated educational system and burdens imposed by a racially and ethnically isolated system.

In other words, the plaintiffs never claimed that the general social benefits of racial and ethnic integration and the burdens of racial and ethnic concentration were sufficient to establish the factual foundation of their equal educational opportunity claim. The plaintiffs, the defendants and the trial court all understood that the plaintiffs were required, in order to come within the reasoning of Horton I, to establish the specific facts of diminished educational outcomes, relative to the suburban districts, as a result of their racial and ethnic and concentration. To corroborate this summary of the plaintiffs’ claims, I now turn to a discussion of the factual background of this appeal.11

A

The Plaintiffs’ Claims as Presented to the Trial Court

The plaintiffs had presented their claims in a tripartite structure.12 Before presenting their evidence, the plain*69tiffs made an opening oral argument to the court explaining their claims and relating those claims to the specific counts of their complaint. The plaintiffs specifically drew a sharp distinction between the first and second counts of their complaint. As they explained their case to the trial court, the first count depended solely on the legal claim that the term “segregation” in article first, § 20, of the state constitution encompassed de facto as well as de jure segregation, and that no evidence or facts regarding the effects of that segregation was necessary to prove the allegations of that count.13 They explained that the second count was, *70unlike the first count, based on a combination of facts: racial isolation; concentration of poverty; and inadequate educational resources; all combining to cause a quality of education inferior to that of the surrounding suburban districts.14

In the posttrial proceedings — both by way of their briefs and their oral arguments — the plaintiffs reiter*71ated that their claim of a deprivation of an equal educational opportunity was premised on a factual inquiry into the actual quality of the education provided to them, relative to that provided to the students of the suburban districts. They repeatedly emphasized that they had proven that their racial and ethnic isolation, coupled with their inadequate educational resources and their concentration of poverty, caused the quality of their education to be inferior to that provided to their suburban counterparts.15 In those proceedings, moreover, they repeatedly contrasted their equal educa*72tional opportunity claim with their claim that de facto segregation was per se unconstitutional, making clear that the per se segregation claim was not an equal educational opportunity claim.16

B

The Remand Proceedings in the Trial Court

Upon our remand, the parties entered into a stipulation of 256 facts. Each side also presented to the trial court those disputed facts that it claimed to have proven. From the plaintiffs’ proposed factual findings, it is clear that they sought to persuade the court to find facts that supported their claim that the quality of the education provided the Hartford schoolchildren was inferior to that of the suburban districts, and that this inferiority was caused by their racial and ethnic isolation combined with the concentration of poverty in the district.17 The defendants’ proposed findings, by con*73trast, reflected their view that the evidence proved that it was the plaintiffs’ poverty, and not their racial and ethnic concentration, that caused the educational deficiencies of which the plaintiffs complained.

C

The Findings of Fact Regarding Equal Educational Opportunity

Thereafter, the trial court issued its “Finding,” which constituted its factual determinations “on the disputed facts disclosed in the proposed findings of fact submitted by the parties . . . .” These findings indicate that the trial court was persuaded by the defendants’ factual claims, and not by the those of the plaintiffs.

Many of the trial court’s findings of fact are directly pertinent to the plaintiffs’ claim of a deprivation of an equal educational opportunity. The trial court found as follows. Historically, racial or ethnic minority group membership has been associated with being educationally disadvantaged because members of those groups have failed to succeed in schools at the same levels as most members of the majority group. The generally poorer academic performance of black and Hispanic youngsters is explained for the most part by the social and economic conditions under which they and their families live.18

*74The court found further as follows: “It is poverty and not race that is a principal causal factor in lower educational achievement.” The problems of the Hartford schools are compounded by the fact that minorities in the inner cities are disproportionately poor, and the “real correlation with academic achievement is socioeconomic class rather than race . . . .” The fact that the students come from poor families “in and of itself is a significant problem in the schools. . . . The reason that children who live in poverty do not do well in statewide academic testing is because they are poor and disadvantaged and not because they are an ethnic or facial minority, because poor minority children exhibit the same patterns as those of their poor white counterparts, and poverty is the strongest predictor of poor academic achievement.” Moreover, the concentration of poverty may adversely affect academic achievement over and above the effect of family poverty. The socioeconomic status of schoolchildren dictates their academic performance. Thus, the improvement in the socioeconomic status of blacks explains the reduction by almost one half of the achievement gap between black and white students nationally between 1970 and 1990. The trial court also specifically found that “[v]irtually all of the differences in performance between Hartford students and those in other towns, as well as differences in college attendance, can be explained by differences in socioeconomic status and the background factors that socioeconomic status represents.”

The trial court also found that a higher concentration of students “at risk” may affect the achievement level of students in a particular school district. Thus, given two groups of students equal in all respects except the incidence of students with “at risk” factors such as low *75birth weight and mothers on drugs at birth, the group with the higher incidence of those “at risk” factors will perform more poorly in school than the other group.

The trial court further found that the level of achievement that should be attained by the students in a particular district cannot be assessed without considering the conditions that exist in the district that hinder academic achievement. Examples of those conditions are: the “mobility” of the students, namely, the frequency of their moving from school to school during a school year or from one year to the next; limited English proficiency of certain students; and the students’ socioeconomic status. The court found that, in order to understand the quality or effectiveness of a particular educational program, it is necessary to separate the disadvantages that students bring to school with them from the effects of the program itself. Moreover, it is necessaiy to separate the effects of poverty from the effects of racial isolation. Based on expert testimony, the court found that there are ways in which the separate effects of racial isolation and poverty can be measured statistically. The plaintiffs’ experts did not employ these statistical techniques.

The trial court also made certain findings regarding the state mastery test scores. The court found that the scores serve two purposes: (1) to inform districts so that they can improve their programs, correct deficiencies and plan for the future; and (2) to provide a basis for funding to districts that perform below remedial standards. This testing program was not designed for interdistrict comparison, but to provide information about individual students and programs within particular districts, and to trigger remedial services to students in need of them. Moreover, the trial court found, it would be an abuse of the purposes of the testing program to use the scores as the basis for comparing the quality of the education between schools or school sys*76terns. The test results should not be seen as primarily caused by racial isolation in the schools because the results could be related to many other factors. Thus, it is inappropriate to use the mastery test data as a basis for drawing conclusions about the quality of education in Hartford without taking into account the effects of other important variables, such as socioeconomic status, early environmental deprivations, and diminished motivation to succeed academically. Other variables that contribute to depressed test scores of Hartford schoolchildren that must be considered are the number of students with limited English proficiency and the extraordinary mobility of the student population.

The trial court also found that Hartford students and those in the surrounding towns are scoring at the level to be expected if the dramatic differences between them in poverty levels are taken into account. The disparity in test scores does not indicate that Hartford is doing an inadequate job of educating its students or that its schools are failing, because the test scores, based on the relevant socioeconomic factors, are at the approximate projected level when adjustments are made for those factors. Teachers and administrators have no control over where their students live or the conditions under which they live. They are not in a position to remedy the disadvantages that their students bring with them when they enter the educational system. Thus, the court found that there are no educational strategies or initiatives that can fully deal with the complex social issues that produce inequality of performance and undermine education, because hunger, parental neglect, crowded and substandard housing, and inadequate employment opportunities disproportionately attack minority children in our state and divert them from educational opportunity.

This, then, is the factual record upon which this case was presented to and decided by the trial court, and *77upon which the appeal came to this court. I turn, next, to this appeal as presented to us by the plaintiffs.

D

The Plaintiffs’ Case as Presented to This Court on Appeal

In their initial and reply briefs in this court, the plaintiffs made crystal clear that the three constitutional claims that they were presenting to us for our adjudication coincided perfectly with the three claims that they had presented to the trial court. For ease of reference, and more importantly for fidelity to the plaintiffs’ own understanding and characterization of their claims, I refer to the three claims as: (1) an equal educational opportunity; (2) per se segregation; and (3) a minimally adequate education. The plaintiffs’ briefs make equally clear that the first and third of these claims, namely, an equal educational opportunity and a minimally adequate education, are based on factual claims regarding, not only the undisputed facts of the degree of racial and ethnic concentration in the Hartford schools but, critically and essentially, the plaintiffs’ version of the disputed facts regarding the differences in educational outcomes and achievements in the Hartford schools relative to the surrounding suburban school districts, and the causes of those differences. Thus, the plaintiffs’ equal educational opportunity claim is squarely based on a combination of factual matrixes: the facts that demonstrate the racial and ethnic isolation of the Hartford schools, combined with what the plaintiffs claim to have established in the trial court as the educational deficiencies that are caused by that isolation,19

*78The plaintiffs set out the nature of their claims definitively at the very beginning of their appellate brief: “Hartford children attend schools that are the most racially, ethnically, and economically isolated in the state. These schools have the least educational resources and suffer from the worst academic performance. The cumulative effects of these inequities deprive Hartford’s children of the preparation necessary to join the mainstream of society.”20 (Emphasis added.)

With this introduction in mind, I turn now to the plaintiffs’ own more detailed explication of their claim of a deprivation of an equal educational opportunity21 *79as presented in their two briefs in this court. This explication is derived directly from, and is identical to, that claim as ultimately presented to the trial court for adjudication. The plaintiffs correctly point out that the right to an equal educational opportunity was recognized by this court in Horton I. The plaintiffs then accurately pose the question under this claim: “As a legal matter, this case falls squarely under [Horton I],22 and the question before this Court is whether the undisputed condition of racial and economic isolation of the public schools, coupled with the undisputed and extreme disparities in educational resources afforded Hartford's schoolchildren, violate plaintiffs’ constitutional right to an equal educational opportunity.” (Emphasis added.)

The plaintiffs then explain precisely why they maintain that their right to such an opportunity has been violated. Under the heading, “The Segregated, Economically Isolated and Unequal Conditions in Hartford Metropolitan Area Public Schools Violate Plaintiffs’ Right to an Equal Educational Opportunity”; (emphasis added); the plaintiffs, quoting from Horton I, state: “Equality of educational opportunity is ascertained by comparing the quality of education provided in the school districts. In Horton I, this court identified criteria for measuring the quality of education, including: ‘(a) size of classes; (b) training, experience and background of teaching staff; (c) materials, books and supplies; (d) school philosophy and objectives; (e) type of local control; (f) test scores as measured against ability; (g) degree of motivation and application of the students; (h) course offerings and extracurricular activities.’ Horton I, [supra, 172 Conn. 634].”

*80With this legal, and appropriate, standard in place for the evaluation of a claim of a deprivation of an equal educational opportunity, the plaintiffs then attempt to persuade us that, as demonstrated by the evidence presented in the trial court, they should prevail on this claim. They attempt to do so, however, not by relying on the general harms associated with a racially and ethnically isolated school system or on the general benefits of an integrated school system, but by arguing that the trial court’s adverse factual findings were clearly erroneous.23

In their reply brief in this court, the plaintiffs reinforce this understanding of the basis of their equal educational opportunity claim.24 The plaintiffs then, in order *81that we not be confused about their claims, reiterated the three claims that they had presented in this case, and the doctrinal differences between them. “First, plaintiffs claim that the extreme levels of racial segregation and the concentration of poor children in the Hartford schools, along with well-documented deficiencies and disparities in educational resources and reflected by the vast gulf in outcomes, violates plaintiffs’ fundamental right to an equal educational opportunity. Second, plaintiffs claim that the extreme levels of racial segregation in the Hartford area constitute a per se violation of Connecticut’s constitution. Third, plaintiffs claim that the conditions in the Hartford schools violate plaintiffs’ right to a minimally adequate education, pursuant to Article Eighth, § 1 and plaintiffs’ due process rights.”

To summarize: the plaintiffs’ first claim is their claim of a deprivation of equal educational opportunity as articulated in Horton I. As a factual matter, this claim rests on a complex factual matrix: the undisputed facts regarding the racial and ethnic concentration, and the concentration of poverty, in the Hartford district; the disputed facts regarding the claimed inadequate educational resources in the Hartford district; and the disputed causal effect of that combination of factors on the educational outcomes claimed to be prevalent in the Llartford district.

The plaintiffs’ second claim is based entirely on the legal theory that the term “segregation” in article first, *82§ 20, means de facto segregation. As a factual matter, this claim rests on only the undisputed facts regarding the racial and ethnic concentration in the Hartford schools, to the exclusion of the disputed facts regarding the claimed disparities between the educational resources and outcomes of the Hartford school district, on one hand, and the resources and outcomes of the suburban school districts, on the other hand.

The plaintiffs’ third claim is their claim of a deprivation of a minimally adequate education under article eighth, § 1, of the state constitution as articulated in Horton I. This claim rests on disputed facts regarding certain claimed inadequacies in the Hartford school district.

Having summarized the plaintiffs’ claims as disclosed by this voluminous record, I will next analyze the majority opinion in light of the record in this case. I turn, therefore, to that task.

Ill

THE FUNDAMENTAL FLAWS IN THE MAJORITY OPINION

A

The Majority’s Adjudicative Process

The first flaw in the majority opinion involves the adjudicative process by which the opinion was created. As the record demonstrates, the constitutional theory conceived by the majority bears only a passing resemblance to the claims of the plaintiffs as disclosed by the record. The majority’s theory is a combination of the legal theories presented in the plaintiffs’ first and second claims, completely shorn of the facts that the trial court found after six years of litigation. The theory upon which the majority opinion is based, therefore, is brand new and was never advocated by the plaintiffs.

*83The majority asserts, nonetheless, that “[t]he constitutional implications raised by these allegations were fully argued before the trial court, and were fully briefed by the parties before this court.”25 This is like saying that water is the same thing as hydrogen and oxygen because water is the result when the two gases are combined in a certain proportion.

The majority’s theory of alack of an equal educational opportunity is a hybrid of two disparate parts of the plaintiffs’ case, as argued to and litigated in the trial court and as argued and briefed in this court. One part of the hybrid is the legal theory of the plaintiffs’ first claim, namely, that under Horton /, they have been deprived of an equal educational opportunity, but without the factual matrix that the plaintiffs themselves presented to support that theory. The second part of the hybrid is the theory of the plaintiffs’ second claim, namely, that “segregation” in article first, § 20, means de facto as well as de jure segregation when applied to education. That theory, however, does 'riot constitute an equal educational opportunity claim, as understood and presented by the plaintiffs throughout this case, as *84understood and responded to by the defendants throughout this case, and as briefed and argued in this court.

Moreover, I confess that, having read the briefs carefully and having participated in the oral argument with great concentration, the majority’s theory of a deprivation of an equal educational opportunity was a complete surprise to me. I can only wonder about the reaction of the defendants, who for the past six years have been defending this case on the basis that the record demonstrates, rather than the basis on which the majority has decided the case. In fact, I suspect that even the plaintiffs are surprised that they have prevailed on a theory of a deprivation of an equal educational opportunity that they did not present, and that renders wholly immaterial the entire factual matrix that they did present, appropriately albeit unsuccessfully, under that doctrine as articulated in Horton I.

The newness of the majority’s constitutional theory is not only demonstrated by comparing the record to the majority opinion, it is demonstrated by certain language in the majority opinion itself. When the majority asks, at the beginning of its analysis, whether “the plaintiffs’ complaint encompass[es] [the constituent elements of the affirmative constitutional mandate to provide all public schoolchildren with a substantially equal educational opportunity]”, it asks a question that no one else has ever asked us to answer, namely, whether the plaintiff's’ complaint is legally sufficient.26 In elaborating on that question, moreover, the majority’s language is curiously but revealingly qualified: it refers to the plaintiffs’ claim “as we have defined it.” This question and qualification are necessitated solely by *85the fact that the majority’s, rather than the plaintiffs’, theory of the equal educational opportunity claim has now become dispositive, and that this theory was never in this case until the majority issued its opinion.

Although prior to trial the defendants challenged the legal sufficiency of the plaintiffs’ complaint, they lost that challenge and, except for the arguments regarding justiciability and state action, did not renew it on appeal. Moreover, at no time in this appeal was the question raised of whether the plaintiffs’ pleadings stated a cognizable claim. At no time in this appeal was the question raised whether the plaintiffs’ pleadings could be read to support their constitutional challenge. The sole reason that these questions and these qualifications became necessary is that the majority has recast the essential nature of the plaintiffs’ complaint, as presented by the plaintiffs at trial and on appeal, in order to fit the majority’s predetermined outcome.

This method of adjudication is fundamentally flawed for several reasons that call into question the integrity of the majority decision. First, it is egregiously unfair to the defendants. Having defended this case for six years in the trial court, and having responded to the plaintiffs’ appeal on the legal and factual bases presented by the plaintiffs, the defendants have not had the opportunity to respond to the new theory of equal educational opportunity fashioned by the majority either by evidence or argument in the trial court, or by briefs and oral argument in this court. Indeed, we will all have to wonder what evidence or arguments the defendants would have produced in the trial court and this court had they known that this hybrid theory was the basis of the equal educational opportunity claim to which they were required to respond.27

*86Second, the majority’s treatment of the plaintiffs’ pleadings in this case turns our traditional treatment of pleadings on its head, and adds to the unfairness to the defendants. It is true that, under our modem jurisprudence, we read pleadings “broadly and realistically, rather than narrowly and technically. . . . Beaudoin v. Town Oil Co., 207 Conn. 575, 587-88, 542 A.2d 1124 (1988); Fuessenich v. DiNardo, 195 Conn. 144, 150-51, 487 A.2d 514 (1985). As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank,