Litigation Update: Hartford Connecticut Magnet School Discrimination

Civil Rights Practice Group Teleforum

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Black and Hispanic children in Hartford, Connecticut are lined up in waiting lists hundreds deep for an opportunity to go to the city’s world-class magnet schools. The schools consistently rank higher in academic achievement and graduation rates than the city’s failing neighborhood schools, but many of these Black and Hispanic children are turned away—despite the fact that the schools have empty seats and would love to offer these children a spot. The reason is a state-wide racial quota imposed on magnet schools: schools must maintain a ratio of 25% white and Asian students or risk losing state funding.

Pacific Legal Foundation recently filed a case, Robinson v. Wentzell, challenging the state’s racial quota regulations and the racially-rigged lottery system that the City relies on when admitting students in its attempts at achieving racial balance within Hartford magnet schools. The suit alleges that Connecticut and Hartford are discriminating on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment. The parties have just completed briefing on motions for judgment on the pleadings brought by the defendants, with oral argument scheduled for October.


Joshua Thompson, Senior Attorney, Pacific Legal Foundation 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Civil Rights Practice Group, was recorded on Tuesday, September 18, 2018 during a live teleforum conference call held exclusively for Federalist Society members.       


Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a litigation update on Hartford, Connecticut magnet school discrimination, and is hosted by our Civil Rights Practice Group. My name is Wesley Hodges, and I'm the Associate Director of Practice Groups at The Federalist Society.


      As always, please note that all expressions of opinion are those of the expert on today's call.


      Today we are very fortunate to have with us Mr. Joshua Thompson, who is a Senior Attorney with the Pacific Legal Foundation. After our speaker gives his remarks today, we will move to an audience Q&A, so please keep in mind what questions you have for the case or for our speaker today. Thank you very much for speaking with us today, Joshua. The floor is yours.


Joshua Thompson:  Thank you, Wes, and many thanks to The Federalist Society for hosting this call. We at Pacific Legal Foundation are very appreciative. I'm here today to talk about one of our most interesting cases that we're currently litigating. It's a case titled Robinson v. Wentzell, and most of the things that I'll be talking about can be found on PLF's website,, including a video with our clients explaining some of the crazy things that are going on in Hartford, Connecticut.


      But this case actually starts in 1989. And in 1989, 10 families in Hartford filed a class action lawsuit in state court alleging that Hartford was segregating, discriminating against those kids on the basis of their race. Hartford, you may or may not know, is a very de facto segregated city. There's never been any state-imposed segregation, but the city itself is heavily segregated with the Black and Hispanic populations largely living in the city limits and the white population largely living in the suburbs. The families that filed that lawsuit in 1989 alleged that this de facto segregation was violating the Connecticut Constitution because it wasn't giving the children equal education. That lawsuit was brought by the ACLU and the NAACP and that case ended up going to the Connecticut Supreme Court.


      And in 1996, the Connecticut Supreme Court issued what has become a very famous decision, Sheff v. O'Neill, which held that this de facto segregation and the unequal status of Black and Hispanic kids in Hartford violates the Connecticut Constitution and requires some sort of state-action remedy. This is, of course, in contrast to the United States Constitution, which does not allow for de facto segregation to be actionable. But the Connecticut Supreme Court interpreted the Connecticut Constitution differently and mandated that the State rectify the unequal lot that Black and Hispanic kids were getting in Hartford.


      The case, then, proceeded to, essentially, settlements. The first settlement was reached almost six years later after that initial decision in 1996. Well, I should say, first, the State did a number of things in response to the decision itself. It created magnet schools. It created charter schools. It created interdistrict school choice programs so that if these suburban schools would allow Black and Hispanic kids, which some of them did, they could voluntarily transfer from the city to those suburban schools. Of course, that's a long trip for some of them, but some kids did choose to do that.


      But more importantly, they created these magnet schools and charter schools. These magnet schools ended up being some of the most fantastic schools in Hartford. I've had the chance of visiting a couple of them. To give you an example, one school has a very lively vivarium, which means that there's lots of butterflies flying around. It's a science-based magnet school. I've been to other magnet schools in Hartford that are fantastic. These are schools that are state run. They are unionized staff, but they are well-funded and they are excellent. These are in some of the worst parts of Hartford, but they are fantastic magnet schools. They've also created, as I said, charter schools and choice programs.


      The first stipulation that was entered into this case, seven years after the State did those things voluntarily, essentially was designed to combat the continued racial isolation of the Hartford School District. Despite the State's efforts, Hartford as a city remained heavily segregated, and, in fact, is moving to be more segregated in that the city was remaining Black and Hispanic and the suburbs were remaining largely white. So the first stipulation reached in 2003 essentially said, "We need to do something in order to combat the racial isolation these kids are facing. Despite the fact that we have great schools here, the racial isolation is continuing to violate the Connecticut Constitution."


      Well, their hopes and wishes didn't really result in any demographic changes in the city of Hartford. So by 2007, when it was time for the second settlement, there was really no change in the racial makeup of Hartford schools. So led by the ACLU and NAACP plaintiffs, the second stipulation had a little bit more teeth. The second stipulation, the phase two stipulation, required that these interdistrict magnet schools, these beautiful schools in some of the worst parts of Hartford, must maintain a 75 percent -- let me state that differently, they must maintain 25 percent of their students have to be reduced-isolated students. That's essentially double speak for saying that 25 percent of the students have to be white. In order to ensure that the Black and Hispanic students are no longer being racially isolated, they need to mandate that 25 percent of the student body is what they call "reduced-isolated students," which are white students.


      So that settlement lasted for six years requiring that the magnet schools maintain this 75 percent -- or 25 percent white-person quota. Unsurprisingly, the schools had a lot difficulty meeting this standard. So in 2013, in the phase three stipulation, they decided that Asian students could now be considered white students and that would allow, essentially, more Black and Hispanic kids to get into these schools. Because what's happening is that if the schools cannot meet their 25 percent white-person quota, they cannot enroll the next Black kid or the next Hispanic kid. So these schools are actually sitting significantly empty, sometimes 40, 60 percent empty, and they cannot enroll a Black kid if that would push them over the 75 percent cap on Black and Hispanic kids at these schools.


      So in 2013, they decided that Asian kids could be considered white and could be considered reduced-isolation children or students and that, essentially, allowed more Black and Hispanic kids into these fantastic magnet schools. But as things tend to do, the demographics of Hartford are continuing to move towards more segregation. The city is now over 90 percent, maybe even 95 percent, Black and Hispanic. You can imagine that this is putting a significant strain on the magnet schools to create reduced isolated settings.


      So now we're looking at 2017 with the phase three stipulation running out and the parties are kind of throwing up their hands. "What are we going to do? The schools are 40 percent, 50 percent capacity. The neighborhood schools are heavily racially segregated, but you can't get into a magnet school if there isn't another white or Asian kid to sit next to." So these kids are on waiting lists to get into these fantastic schools. Sometimes these waiting lists are hundreds deep. Over a thousand kids are on these waiting lists citywide, but they are not allowed to get into these schools because they don’t have the right skin color. If they were white or Asian, of course they could get in because that would allow the school to meet their reduced-isolation percentage.


      So in 2017, the State of Connecticut proposed something radical. They said, "Well, we're having a very difficult time given the demographics of Hartford, of meeting this reduced isolation standard. Is it possible, Court, that we could reduce the white-student quota to 20 percent in order to allow more Black and Hispanic kids to get into these schools?" The NAACP and ACLU vehemently opposed this solution to allow more Black and Hispanic kids into the magnet schools, and the trial court denied the State's attempt to change the reduced-isolation standard from 75 to 80 percent.


      So as of February 2017, which is going to be relevant here in a second, actually February 2018, the state of Connecticut schools was dire, especially the Black and Hispanic students. If they did not win out on the lottery—the lottery which I'll get to shortly—they were relegated to one of these failing neighborhood schools, and these neighborhood schools are horrible. By and large horrible. There are a few exceptions. But despite great efforts to try to get into the magnet schools, they have the wrong skin color and they are significantly disfavored from getting in there. These schools have empty seats, and yet, they are prohibited from getting into the classrooms.


      In 2018, Pacific Legal Foundation, me and my colleagues Wen Fa, Oliver Dunford, Jeremy Talcott filed a lawsuit in federal court in the District of Connecticut challenging the reduced-solation standard, the 25 percent white-person quota, as well as the lottery as unconstitutional under the Fourteenth Amendment to the United States Constitution. We've talked about the reduced-isolation standard. I think I would like to talk a little bit about the lottery.


      The lottery is essentially a rigged game at the outset. There is a very detailed expose that was run by the Hartford Current approximately a year before we filed our lawsuit, which essentially tipped us off to what was going on in Hartford, that explained what the lottery does. The lottery is a race-neutral-in-name-only system for selecting students to go to the magnet schools. And I saw race neutral in name only—they give significant preference to students that happened to live in heavily white neighborhoods in the suburbs, and they run the simulation as many times as necessary in order to get the result that they want. So they know the results that they're seeking. They run the simulation until it spits out the right lottery percentages, and then they say that's the one that we're going with. So with this bias and discrimination in favor of white and Asian kids, even more Black kids are being discriminated throughout this process. So we're challenging the lottery process as a discriminatory means of achieving racial balance in Hartford schools, and we're challenging the reduced-isolation standard, the white-person quota, as violations of our client's rights.


      And who are our clients? Our clients are four Black families and four Hispanic families that live in Hartford. They all have children that have been through the lottery that are stuck in neighborhood schools in Hartford and are losing out on the discrimination that's being perpetrated by the State of Connecticut. Our clients range from high school kids to pre-school kids, but they are united in their opposition to a system that tells them they can't go to the best schools because they have the wrong skin color.


      We filed this lawsuit in February. The State defendants moved for a motion for judgment on the pleadings. Essentially, their argument is, "We have to do this because the Connecticut Supreme Court told us we had to do it, and we entered into a settlement with the ACLU and NAACP that said we had to do that. So these, essentially, are our compelling interests, and it is merely tailored because it is mandated by a court." Essentially, it's throwing its hands up in the air and saying, "What can we do? We're required to do this," and they moved for judgment on the pleadings.


      After they did that, the ACLU and NAACP, the plaintiffs in the underlying Sheff litigation that is still ongoing in Connecticut state court, intervened into our lawsuit to defend, explicitly defend, the quota—the 25 percent white-student quota. And they argue essentially two things: they argue that judgment should be rendered, a motion for judgment on the pleadings, because notwithstanding there being no proof of underlying discrimination going on in Hartford, that housing policies dating back to the 1950s have caused the racial segregation in city of Hartford; therefore, it was state action that was needing a remedy, and therefore this policy is meeting the strict scrutiny standard. They also argue that the federal court should abstain from deciding this case because it is litigating the case currently in the trial court. So because the trial court case is still ongoing, they're still going through settlement negotiations almost every year, the ACLU and NAACP interveners argue that the federal court should not hear this case.


      That motion for judgment on the pleadings will be heard coming up in October. In about one month from now, my colleague, Wencong Fa, will be arguing that motion before the District Court of Connecticut, and that's essentially where the case stands now.


      I would like to add a few other tidbits. The governor of Connecticut, Dannel Malloy, who is a -- he's a Democratic governor, has come out and said that he believes that the reduced-isolation standard, the 25 percent white quota, is wildly unconstitutional and that they need to do something to help the Black and Hispanic kids of Hartford. The governor's statement spurred the State to seek the change from a 25 percent white and Hispanic quota to a 20 percent quota that was essentially defeated by the NAACP and ACLU.


      I'd also like to add that the primary argument, at least in the press, of the ACLU and NAACP plaintiffs that are defending this quota is that we need to remedy the continued racial isolation of these students. The problem with that -- one of the problems with that argument is that by requiring the magnet schools to be 25 percent white, they are ignoring the nearly 53 percent of Hartford students that are still stuck in the neighborhood schools. And although you can make the argument that sure by having this racial quota at the magnet school level, you have, essentially, remedied what the Connecticut Supreme Court saw as a state constitutional violation that ignores the vast majority of kids that are still stuck in the neighborhood schools, the failing neighborhood schools, that are more racially isolated than they ever have been. These are almost 100 percent Black or Hispanic schools. They are failing, and despite the fact that there are fantastic schools with open seats in their neighborhood that they are not allowed to go to because they have the wrong skin color.


      As one example, the bus that takes kids from the suburbs to a magnet school and one of our client's houses drives right by her house, but it won't stop there because her kids have the wrong skin color. Instead, she's got to send her children to one of the schools that are not succeeding at educating the kids of Hartford.


      I'm very grateful, again, for The Federalist Society for allowing me to speak today and I'm happy to answer any questions about this case and about appeals practice generally.


Wesley Hodges:  Thank you, Joshua. It looks like we do have one question out of the gate, so Joshua, let's go ahead and move to our first caller.


Royce Van Tassell:  This is Royce Van Tassell from Utah, and I was really interested in this disagreement that the ACLU and the NAACP have about what constitutes de jure v. de facto discrimination. It sounds like they are using basically the argument that Richard Rothstein put together at the last year tracing a variety of discriminatory practices under Jim Crow and saying, "See this is de jure discrimination." And I guess the question in my mind goes to are there precedents that say there is a time limitation after which historic discrimination doesn't count in the definition of what constitutes de jure as opposed to de facto discrimination?


Joshua Thompson:  Yeah, that's a great question. I think there's a couple of things I'd like to say about that. First, you're right that that is the argument, this newly invented argument, for enacting race-based policies. And to my knowledge, this is probably one of the first cases that will be testing that argument. And because we're only at the motion for judgment on the pleadings, I don't know precisely what the ACLU is going to argue, but we got a good sense because they submitted a bunch of -- from when they submitted a survey from 1954 that tried to allege that -- tried to show that Hartford has segregative housing policies. Whether there's some sort of time limit, I think that there must be simply because you couldn't have a de jure discrimination from the 1700s being remedied by some sort of race preference today. That just doesn't make sense. And I think all of those things go towards the narrow tailoring problem that the ACLU and NAACP would have.


      So even if you could argue, if you could even conceive that, okay, if there is some sort of Jim Crow discrimination that occurred in the 50s that resulted in discriminatory housing policies, how is a policy that caps the number of Black kids that can go to a magnet school tailored to that remedy whatsoever? For one thing, it's not limited in time. As you note, there's a time problem. But for another, it doesn't really even go to the harm that was caused. If you had segregative policies, a cap on magnet schools is not tailored to alleviating that past discrimination.


      So I welcome that argument. I think that is going to be their argument, and you've identified one of the, I think, many tailoring problems that they're going to have if they try to prove that argument in court.


Royce Van Tassell:  Well, it feels to me -- I mean, you sort of suggested that you couldn’t solve a 17th century discrimination problem, but certainly the advocates for race and gender preferences routinely ask to resolve those things when they say there's a legacy of slavery and we have to have different flavors of reparations. So I hope that the courts can see that there ought to be limitation there because certainly the advocates don’t believe that.


Joshua Thompson:  But even -- well, in the current Supreme Court, while -- there's essentially two arguments that can allow for race preferences, and there is only one that has ever been held to hold for primary and secondary education and that's the alleviation of past de jure discrimination. And all of those cases, even examples of de jure discrimination from the 70s, or 60s, or 50s, they are remedied eventually and then the court must dissolve the consent decrees. So the courts have recognized a mechanism for proving that the discrimination has been remedied and that you can no longer use that rationale to continue to tinker and meddle with the race of students. And the diversity rationale should have no purchase in K-12 education. It never has been accepted by any court, and we don’t even think that the State of Connecticut is going to pursue that.


      So that's going to be their argument. I think you're right, but I think the courts have recognized that stale discrimination -- even in like the contracting example. So if you have a contracting preference, the State makes you prove that the past effects of discrimination are still present. Now, there's a lot of problems with disparity studies and all that stuff, but at least they go to show that the current racial disparities are a result of past discrimination. That's what they're designed to do. So you have to demonstrate, if you are the ACLU and NAACP here, that this policy, this racial quota, is designed specifically to remedy the past effects of de jure discrimination. Not only is there no de jure discrimination on its face, but they're going to have all those tailoring problems.


Wesley Hodges:  Thank you, caller, for your question --


Royce Van Tassell:  [CROSSTALK] Somebody's going to write The Shape of the River for housing [inaudible 21.55] warm over Derek Bok.


Joshua Thompson:  You're right.


Wesley Hodges:  Sorry for interrupting, caller. And we appreciate your question. Looks like we do have three more in the queue, so let's go ahead and keep rolling.


Wencong Fa:  Hi Joshua. This is Wencong Fa, your colleague from the Pacific Legal Foundation. The question I had relates to Brown v. Board of Education. I found it pretty interesting, the op-eds that were published during this litigation by the ACLU and the NAACP saying that we're really -- this litigation is somehow against Brown v. Board of Education, and that's interesting because I think that's been a debate that been present in some of the court's other cases. For example in Parents Involved, both the majority and the dissent had a debate about who was on the side of Brown v. Board of Education. So I was wondering if you could talk a little bit about that and about how exactly Brown v. Board of Education, what it held, and how our litigation is actually vindicating the principles of Brown v. Board of Education.


Joshua Thompson:  Sure. Thank you, Wencong. I'd be happy to. I think it's important here not to ascribe bad motives to the plaintiffs that are arguing for the quota. I obviously think the quota's evil, and it's hurting students, but I think that they believe what they're doing is vindicating Brown. Their argument goes that Brown is all about integration of schools, and that what we're doing here with the racial quota and keeping the Black and Hispanic kids out of the good schools is ensuring that the schools remain integrated.


      I think our belief is that Brown v. Board of Education stands for the proposition that the government should not be discriminating against students on the basis of race in their education, that segregative polices and policies that treat kids differently because they have a certain skin color are violative of the Constitution and need to be rooted out of the law. And that's what our lawsuit is designed to do. Our lawsuit is designed, certainly, to hold that the racial quota that has been adopted by the State of Connecticut is unconstitutional because it is discriminating against these Black and Hispanic students. And the fact that if you allow more Black and Hispanic students into these fantastic magnet schools, you're going to have -- you're no longer going to be able to maintain the 25 percent racial quota is secondary to us.


      We want to ensure that these kids get the best education possible, that their skin color is not a detriment to them in their lives, both now and in the future, and we are going to fight for the principle first enunciated in Brown and reiterated in many Supreme Court cases, including Parents Involved, that discrimination on the basis on race is abhorrent, immoral, insidious, and should be rooted out of the law. As the Chief Justice said in Parents Involved, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. And we believe in that claim. We believe that the students of Hartford deserve better. We believe that the Black and Hispanic clients that we have should have the opportunity to attend these schools, irrespective of the quota that is in place and irrespective of their race.


Wesley Hodges:  Thank you for your question. Looks like we do have one more question in the queue. Let's go ahead and move to our next caller.


Les Pinter:  Hi. This is Les Pinter from Danbury, Connecticut. I wanted to ask you and perhaps drill down a little bit on some previous part of the conversation, Joshua, where wasn't the -- was the State of Connecticut, essentially, arguing that it wasn't intentionally discriminating these social factors, social adjustments, change in population, change in demographics beginning with the 1996 Sheff case -- was not an intentional act on the part of the State of Connecticut or its offices, but rather against social changes. Could you speak about that distinction?


Joshua Thompson:  Yeah, absolutely. You are right. The State of Connecticut has vehemently denied any intentional discrimination, of course, other than that which has been required by the courts. They can't deny that their law mandates a 25 percent racial quota, but they argue that that is in their right, that that has been, essentially, imposed by the settlements that they agreed to.


      But Connecticut has always denied, beginning 1989, that they have never done anything to discriminate against Black and Hispanic kids in the state or in Hartford. But what the lawsuit does, what the Sheff lawsuit says is that doesn't matter. What matters is the effects, even if they were unintentional, even if they were just demographic factors, the Connecticut Constitution mandates that the State remedy the de facto discrimination that's going on, that it remedy the unequal treatment of inner-city kids with suburban kids.


      So despite the State's vehement denials of any discrimination, what the Connecticut Supreme Court essentially said is that it doesn't matter. You have to undertake affirmative efforts to remedy this de facto discrimination. And as the population of Hartford continues to grow even more Black and Hispanic and the State has even more difficulty meeting the racial quota, their hands are tied. And on some level, I'm sympathetic with the State. They are forced to abide by this mandate. Yet, they have done no overt discrimination, and there's no finding that they've ever done anything overtly discriminatory.


      So, yeah, it's -- and that's their argument. Their argument is that they are in between a rock and a hard place, and that the Connecticut Constitution requires them to do 'x' and the United States Constitution requires them to 'y' and these are incompatible. And our argument is simple: the United States Constitution wins out in that battle, and your federal constitutional rights require that you not discriminate against individuals on the basis of race. And that's what we're arguing in federal court.


Les Pinter:  Thank you.


Joshua Thompson:  You bet.


Wesley Hodges:  Thank you, caller. We do have two more questions in the queue. Let's keep rolling.


Brian Ruit (sp):  Yes, this is Brian Ruit. Would you think that it's accurate to describe this case as pitting, because the ACLU and NAACP's intervention, as pitting integration versus the right to education?


Joshua Thompson:  I don't think that. I think that integration -- I think that state-mandated discrimination on the basis of race needs to be remedied through affirmative integration efforts. Whether demographic changes -- I don't believe that demographic changes mandate a constitutional remedy that the State can undertake—and the Supreme Court would be on my side—integrative efforts to -- well, I would say discriminatory efforts, race-based methods, to remedy de facto discrimination.


      So I'm a little bit hesitant to say that we are anti-integration here. I believe that we're fully and supportive of integration when there is a need to remedy past constitutional violations. And in some sense I think you're right that that's how the -- well, the ACLU would probably say they're in support of families, too. They would disagree with the second part of your claim. But we believe and we represent the parents of Hartford, the Black and Hispanic kids of Hartford that deserve a great education and are being kept out of the best schools because they have the wrong skin color. And the ACLU is saying that they support schools that have a certain racial mix. In my mind, that's not integration any longer; that's racial balancing for the sake of racial balancing.


      So I'm a little bit hesitant to accept your dichotomy that you're presenting there, but I do understand where it's coming from, and I don't think it's completely out of left field.


Wesley Hodges:  Thank you, caller. Looks like we do have one more question in the queue. Let's go ahead and move to the next person.


Bob Fitzpatrick:  Hi, this is Bob Fitzpatrick. Having been arrested 52 years ago for following a school bus too closely and mapping patterns in a traditional school desegregation case in Mississippi, I'm pretty interested in what you guys are talking about. And I don’t quite understand how people are lining up in this battle. I understand the de jure/de facto, you know, all those arguments, and I tend to agree with you guys that there is no de jure, et cetera, et cetera.


      But what I'm having difficulty with is the ACLU and the NAACP afraid and what's really driving their opposition to you all is their fear that that 25 percent is going to become substantially below that. And you guys seem to be saying it's going to be, given the population, given the number of applicants, et cetera, et cetera, that the end result of removing this quota will be actually substantially greater enrollment in the magnet schools by Black and Hispanic kids. So am I getting it right? You guys say greater -- they're scared that the (outfit)'s going to be less. Is that what's really driving this battle?


Joshua Thompson:  No, I think they would concede that if we were victorious and the racial quota was no longer in place, that more Black and Hispanic kids would get this great education in the magnet schools.


Bob Fitzpatrick:  Gosh, that's really sad.


Joshua Thompson:  Yeah, what's driving their concern is that they have a primary belief that integration or a racial balance is more important than the education of the kids. So that they're defending the makeup of the school in opposition to allowing more Black and Hispanic kids into the schools.


Bob Fitzpatrick:  Spot on. Hope you win.


Joshua Thompson:  Thank you. Appreciate it.


Wesley Hodges:  Thank you, caller. We do have another question in the queue. Let's go ahead and move to the next caller.


Molly:  Hi, there. This is Molly. I had a question about how does the Connecticut Constitution, the precedent that you mentioned, recognizing de facto segregation as a compelling state interest, wear with the federal Constitution. Meaning does the Connecticut precedent violate the Supreme Court precedent only recognizing de jure segregation as a compelling state interest?


Joshua Thompson:  Yeah, thank you, Molly. I think that that is an interesting question. It's an interesting question, but I think that after a little bit of research, I think the answer's pretty straightforward. So the Connecticut Supreme Court held -- they interpret their constitution to say that when it says that the students must have an equal education that that means that racial balancing is essentially mandated, that you need to have some sort of -- maybe not exactly what the Sheff decision said, but that's how the Sheff decision's been interpreted by the ACLU plaintiffs, and frankly, that's how the State of Connecticut agreed that it should be interpreted.


      So everybody's complicit in saying that Connecticut's Constitution requires a race-based remedy for de facto segregation. But the question you raised is how does that square with the United States Constitution? I think it's an interesting question that if you have a state constitution that is mandating something, isn't it a compelling government interest to follow your own state's constitution? If you frame it that way, it sounds a little bit interesting that maybe this wouldn’t be allowed by the United States Constitution, but maybe there's a compelling interest there.


      But I think if you think about it, we've had a lot of cases recently, particularly with same-sex marriage or with other rights, where the Court has held that despite the state constitution, the Equal Protection Clause triumphs. So a state that mandates discrimination in its constitution doesn't get a free pass to discriminate just because it's in their constitution. And, in fact, what we point out in one of our briefs is the State of Alabama still has a mandate in its constitution to segregate schools. But nobody here believes that if Alabama started enforcing that mandate in its constitution, that that would somehow survive scrutiny by the United States Supreme Court under the United States Constitution.


      So notwithstanding the fact that something may exist in a state constitution, it still needs to meet federal constitutional standards, and if they are going to argue that the Connecticut Constitution mandates this racial balancing of Hartford schools—which they haven’t yet, but it seems likely to come—then we would certainly argue that the federal Constitution trumps that and that cannot withstand scrutiny.


Wesley Hodges:  Thank you very much, caller. While we wait for any more questions from the audience, I do want to ask you, Joshua, I think you've touched on this a little bit, but would mind spelling out for us the next steps for the case and where you see the case going.


Joshua Thompson:  Yeah, you bet. As I mentioned at the outset, we're facing a motion for judgment on the pleadings, as well as an abstention motion, as well as a motion for certification in October, and my colleague who you heard earlier on the call, Wencong Fa, is going to be arguing that. It's a big date. There's a lot of ways that this case could go. One thing I didn't mention is what the State is arguing primarily in their motion that's going to be heard at that hearing is that the court should certify a question to the Connecticut Supreme Court and that the Connecticut Supreme Court should have the first crack at deciding our case.


      We, obviously, are opposing that because we're dealing here with a federal constitutional right, and the State Supreme Court shouldn't have the first crack at interpreting that. But that motion is happening, the ACLU and NAACP's motion to abstain is happening, and both of the parties' motions to essentially dismiss this case or have a judgment on the pleadings is happening at that October hearing. We're very confident. Our arguments, the burden on them, on all of those motions, is very high, and you can see the briefs on our website. We are confident in our legal arguments.


      Assuming that those motions are denied, this case will go to discovery, in which we will try to ascertain what justifications that they are going to put forward for their discriminatory plan. We expect a very lengthy discovery process to compile our evidence and present the best case to the court that this policy violates the Constitution. And I think that whichever way that trial court decides, this case is destined for an appeal to the Second Circuit, and if necessary, an appeal to the Supreme Court. But I think we're probably looking, assuming that the motion hearing in October goes in our favor, we're probably looking at a trial court decision a year from now, an appeal -- an appellate decision a year after that, and then any Supreme Court decision a year after that.


      So we're in this for the long haul. We believe strongly in our clients. They are fighters, and frankly, they're facing some backlash by the ACLU and NAACP, who are in Hartford today trying to shame not only PLS but our clients into abandoning this case. Many thanks to our communications staff who have been fighting back. I've been back to Hartford with Wen and Oliver and Jeremy a number of times, and our clients are strong. They're not going to back down, and we recognize that this is going to be a long case, but we're ready for the fight.


Wesley Hodges:  Thank you so much, Joshua, for sharing that insight and telling us more about the ongoings of this case. I want to let everyone know that this call is being recorded to be turned into a podcast, so you'll be able to download this, as well as many of our other recordings or teleforums have also been turned into podcasts. You can find these on iTunes, Google Play, and on The Federalist Society website.


      Seeing no more questions in the audience, Joshua, do you have any final comments you'd like to make before we end today?


Joshua Thompson:  Sure, Wes. I want to thank you, I want to thank The Federalist Society for giving me this opportunity, and I want to thank all of the listeners who called in, the callers who asked questions. This is a case that I believe, personally, very strongly in and our clients are very grateful for all the support. You can read about this case, including a case video that will tug at your heartstrings and really demonstrates what our clients are going through at PLS website, If you need to get a hold of me or have any more questions, you can reach me at But thank you, again. It's been a fun time. Thanks.


Wesley Hodges:  We're very grateful, Joshua. On behalf of The Federalist Society, I'd like to thank you for the benefit of your valuable time and expertise. We welcome all listener feedback at email at Thank you all for joining. This call is now adjourned.


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