THE HUBRIS OF A COLOR-BLIND CONSTITUTIONALISM: CCJEF RULING APPEALED AND IS MORE DANGEROUS THAN THE STATUS QUO

On September 7, 2015 there was a moment when interest-convergence was happening right in front of us. As Superior Court Judge Thomas Moukawsher read his ruling on CCJEF v. Rell, advocates like myself started to believe that remedies for inequality were being granted permission to stand up and be recognized. To my consternation an appeal was filed. I believe the appeal filed by Attorney General Jepsen represents an unqualified dismissal of potential remedies. (Read Appeal)

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Derrick Bell

Law professor, civil-rights attorney, and Critical Race Theorist Derrick Bell defines interest-convergence as the moment when “white people will support racial justice only to the extent that there is something in it for them.” In 1980, while writing a piece called Brown v. Board of Education and the Interest-Convergence Dilemma, professor Bell warned us that “Policies necessary to obtain effective schools threaten the self-interest of teacher unions and others with vested interests in the status quo.”   The appeal filed by Attorney General Jepsen, with approval from Republicans and Democrats in the Connecticut General Assembly, is a response to the threat of the lily-white special interests of teacher unions, and the threat to the vested power of the legislature, the Education Committee included. Neither group has had its constitutionally given rights or obligations challenged because Judge Moukawsher repeatedly demands collaboration on proposals. The appeal is nothing more than an attempt at whitewashing the educational dilemmas affecting non-white, poor, and special education students in our state.

In his application to appeal, Connecticut Attorney General George Jepsen embraces a malignant narrative of color-blind constitutionalism (see Ian Haney-Lopez’s, White By Law) to dismiss over 5,000 exhibits, 2,000 fact admissions, 826 full exhibits, 50 witnesses, including nearly 20 education and financial experts, and 1,060 individual findings of fact as useless byproducts of a rogue judge. Among other things, he asks for a “reasonable timeframe,” and a “stay.” This appeal is a primal call for what Judge Moukaswher refers to as the “idiosyncratic status quo.” This analysis is eerily reflective of Derrick Bell’s criticism from thirty years ago.

Bell’s 1980 criticism rings an even louder truth if we include his analysis about judicially provided remedies, which is what the legislature and the educational professionals are really afraid of. Bell states “a judicial remedy providing effective racial equality for blacks where the remedy sought threatens the superior societal status of middle and upper class whites” will be fought like a plague. This appeal represents a defense of white privilege. As Bell did in 1980, I will state that little has changed.

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Connecticut Attorney General George Jepsen

Incredulously, Jepsen and our legislators both agree with Judge Moukaswher’s qualified claims for rational, substantial, and verifiable changes to Connecticut’s educational system(s). They disagree with his methods, to the degree change has to happen, and hide behind a privileged veil of color-blind constitutionalism. Judge Moukaswher’s ruling highlights one of Derrick Bell’s primary concerns. Bell, as is Moukashwer, is willing to sacrifice local control of schools if and when it is merited. In the status quo there are vibrant examples where local control needs to be wrested away. Bridgeport, Waterbury, and Hartford public schools are a few of those examples. It’s merited because Black and Brown students are disproportionately at risk to be victimized by a system of oppression that is unchecked. No other reason is needed.

In his ruling, Judge Moukaswher urges our elected officials to do it now and in front of the court. Our hope is that elected officials, those individuals who have been, and who will be, the locus for educational policy still believe rational, substantial, and verifiable policies will reverse the systemic ills that make inadequate educational opportunities the bedrock for inequality in Connecticut.   Simply and productively so, he put them on the clock. As advocates we can’t support any other position.

According to Jepsen’s logic, supported by our elected officials, non-white, poor, and special education students, as well as their families who are under-educated, under-served, and routinely victimized by the current system, should get to the back of the bus. This appeal is more dangerous than the status quo.

 

Written by our Co-founder

Robert M. Goodrich

 

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  1. […] tax dollars are being spent wisely and efficiently.  We need to act now before the hubris of a colorblind constitutionalism sanitizes this opportunity. In September, Superior Court Judge Thomas Moukawsher ruled on the CCJEF case in […]

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