Robinson v. Wentzell

          ORDER ON MOTIONS FOR JUDGMENT ON THE PLEADINGS

          STEFAN R. UNDERHILL, UNITED STATES DISTRICT JUDGE

         Plaintiffs LaShawn Robinson, Nichole Burke-Kane, Natalie Delgado, Shara Ferguson, Marie Joulet, Tynima Toney, Juan Tirado, and Jahaira Velazquez (“Plaintiffs”), filed suit on behalf of themselves and their minor children against Defendants Dianna Wentzell, Commissioner of the Connecticut State Department of Education; Glen Peterson, Director of the Sheff and Regional School Choice Office; Allan Taylor, Chairperson of the Connecticut State Department of Education's Board of Education; Dannel Malloy, then-Governor of Connecticut; and George Jepsen, then-Connecticut Attorney General; (“State Defendants”), and Craig Stallings, Chairperson of the Hartford Public Schools Board of Education, all in their official capacities, alleging that the 75% minority cap on students attending Hartford magnet schools violates the equal protection clause of the Fourteenth Amendment (Count One), and that the “racial manipulation” of the Regional School Choice Office (“RSCO”) lottery violates the equal protection clause of the Fourteenth Amendment (Count Two).

         Plaintiffs seek declaratory judgments that the following policies are unconstitutional, illegal, invalid, and unenforceable because of race discrimination in violation of the equal protection clause: (1) the cap on minority students who may attend Hartford magnet schools, and (2) the use of race in the RSCO lottery. They also seek a permanent prohibitory injunction enjoining State Defendants and Defendant Stallings from enforcing the cap on black and Hispanic students who may attend Hartford's magnet schools.

         State Defendants, Defendant Stallings, and the Intervenors all filed motions for judgment on the pleadings. For the following reasons, the State Defendants' motion for judgment on the pleadings and the Intervenors' motion for judgment on the pleadings are DENIED. Defendant Stallings' motion for judgment on the pleadings is GRANTED, and the case against Defendant Stallings and the Hartford Board of Education is dismissed without prejudice. The case shall proceed to discovery against the following defendants: Dianna Wentzell; Glen Peterson; Allan Taylor; Ned Lamont; and, William Tong.^[1]

         I. Standard of Review

         “The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim.” Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). When deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, I must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiff, and decide whether the plaintiff has set forth a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         Under Twombly, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570; see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). The plausibility standard set forth in Twombly and Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief” through more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and . . . recovery is very remote and unlikely.” Id. at 556 (quotation marks omitted).

         II. Background

         The following facts are drawn primarily from Plaintiffs' complaint. In 1989, ten families filed a class action in Hartford Superior Court alleging racial discrimination and segregation in Connecticut, including in Hartford and its suburbs. Compl. at ¶ 28. The case, Sheff v. O'Neill, resulted in a ruling by the Connecticut Supreme Court requiring the State of Connecticut to provide all schoolchildren with a “substantially equal educational opportunity”, including a requirement that the schools would not be “substantially impaired by racial and ethnic isolation.” Id. at ¶ 29, citing Sheff v. O'Neill, 238 Conn. 1, 24 (1996). The Connecticut Supreme Court remanded the case to the Superior Court to oversee the enactment of remedial programs to address the issue of racial and ethnic isolation in the Hartford schools. Id.

         As a result of the Sheff decision, the Connecticut Legislature passed Public Act 97-290, which adopted many of the recommendations contained in a report issued by Governor John Rowland's Education Improvement Panel, including interdistrict magnet and charter schools and public school choice programs beyond neighborhood schools. Id. at ¶¶ 28-29. The program replaced a voluntary busing system that had been operating since 1966. Id. at ¶ 32. The Regional School Choice Office (RSCO) was created to operate and conduct a lottery process to place children in magnet schools and other public schools. Id. at ¶ 33.

         In 1998, the Sheff plaintiffs requested additional remedial action. Id. at ¶ 34. Negotiations led to a process by which reducing racial isolation would be measured for a period of four years. Id. at ¶¶ 36-38. After that period, and after the City of Hartford intervened in the case, another stipulation was reached in 2008, which included a “Desegregation Standard” that required “Sheff Region”^[2] interdistrict magnet schools to maintain no more than 75% minority-student enrollment in order to receive operating grants from the State of Connecticut. Id. at ¶¶ 38-39. That stipulation also put forth a goal that 41% of minority students would be in “reduced isolation settings” within five years. The Desegregation Standard was later incorporated into the definition of “reduced isolation setting” and was altered to exclude all minorities except for black and Hispanic students. The current stipulation includes the requirement of a total school enrollment in accordance with the reduced isolation setting standards for interdistrict magnet school programs, meaning that the total percentage of enrolled students who identify as black or Hispanic must be limited to no more than 75% of students in a magnet school. Id. at ¶ 42, 46.

         To determine which magnet school a student may attend, RSCO operates a school choice lottery. Id. at ¶ 50. Plaintiffs allege that the RSCO lottery “uses race to carefully engineer the racial makeup of magnet schools in Hartford” and that state and local officials “test and tweak the lottery in order to tip the scales in favor of white and Asian applicants.” Id. at ¶ 55-60.

         Plaintiffs filed the complaint on February 15, 2018 (Doc. No. 1). State Defendants filed a motion for judgment on the pleadings, or in the alternative, motion for summary judgment, on April 27, 2018 (Doc. No. 34). On May 8, 2018, eight current and proposed plaintiffs in the Sheff litigation, Elizabeth Horton Sheff, Aldwin Allen, Suzann Beckett, Charles Hollis, Sandra Vermont-Hollis, Tyasha Adams Roberts, Amanda Soto, and Nordia Stone (“Intervenors”) filed a motion to intervene on their own behalves and/or on behalf of their minor children (Doc. No. 35). I held a status conference on May 10, 2018, and granted the motion to intervene on that date. Defendant Stallings, Chairperson of the Hartford Board of Education, moved separately for judgment on the pleadings on June 15, 2018 (Doc. No. 56). The Intervenors also moved for judgment on the pleadings that same day (Doc. No. 58). Plaintiffs responded on July 13, 2018 (Doc. No. 62). Replies were filed in early August (Doc. Nos. 64, 65, and 67). I scheduled a hearing, which took place on October 16, 2018 (Do. No. 73).

         III. Discussion

         State Defendants argue that their actions regarding the policy at issue were and are narrowly tailored pursuant to a compelling state interest. See Doc. No. 34. Defendant Stallings argues that the complaint against him is “devoid of allegations pertaining to the Hartford Board's role” regarding the policy at issue, and that the complaint fails to state a plausible claim for relief with regard to Defendant Stallings and the Hartford Board of Education. See Doc. No. 56. Intervenors argue that I should abstain from deciding the other motions for judgment on the pleadings while the state court proceedings in the Sheff case are pending. See Doc. No. 58. They argue in the alternative that the State Defendants should be subject to rational basis review rather than strict scrutiny. Id.

         The issue of standing was raised by the Intervenors in their motion for judgment on the pleadings, and I requested supplemental briefing after the October 16, 2018 hearing (Doc. No. 72). Intervenors argue that Plaintiffs do not have standing regarding either claim, and State Defendants argue that Plaintiffs have standing only to pursue Count One, challenging the cap on the percentage of minority students admitted to Hartford charter schools. Plaintiffs contend that they have standing to pursue both claims.

         Finally, State Defendants and Defendant Stallings have responded to my May 10, 2018 order instructing the parties to submit questions for potential certification to the Supreme Court of Connecticut (Doc. No. 39).

         A. Intervenors' Motion for Judgment on the Pleadings

         Intervenors request that I abstain from deciding Defendants' motions for judgment on the pleadings while the state court proceedings in Sheff are pending. Intervenors' Motion, Doc. No. 58-1, at 13. They rely on the Pullman abstention doctrine for support. Plaintiffs, however, argue that Pullman abstention is inappropriate here. Plaintiffs' Combined Response, Doc. No. 62, at 30.

         Under the Pullman abstention doctrine, the Supreme Court has “required deferral, causing a federal court to ‘sta[y] its hands,' when a constitutional issue in [a] federal action will be mooted or presented in a different posture following conclusion of [a] state-court case.” Growe v. Emison, 507 U.S. 25, 32 (1993). The Second Circuit has held that three basic conditions must be present to trigger Pullman abstention: “First, the state statute must be unclear or the issue of state law uncertain; second, resolution of the federal issue must depend upon the interpretation given to the ambiguous state provision; and third, the state law must be susceptible of an interpretation that would avoid or modify the federal constitutional issue.” United Fence & Guard Rail Corp. v. Cuomo, 878 F.2d 588, 594 (2d Cir. 1989).

         Intervenors contend that the issue whether the reduced isolation standard is an appropriate remedy in Sheff is currently before the Connecticut Superior Court. Intervenors' Motion, Doc. No. 58-1, at 14 (citing Exhibit J to Intervenor's Motion, Doc. No, 58-12, Superior Court Order). Intervenors argue that the “Sheff plaintiffs' recent motion for a preliminary injunction was the first time in which any Connecticut court was asked to expound on the propriety of the reduced isolation standard. The [S]uperior [C]ourt's rejection of the State Defendant's premature invitation to rule on these issues before the evidentiary hearing makes it evident that issues of state law remain uncertain.” Id.^[3]

         Plaintiffs argue that the current law regarding the requirement for reduced isolation is unambiguous, and that an argument that an issue might become ambiguous sometime in the future is not enough to warrant abstention. Plaintiffs' Combined Response, Doc. No. 62, at 32. Plaintiffs also argue that because the Superior Court has approved ...