Journalistic Malpractice

April 8th, 2017

Only one business–the press–enjoys protection under the U.S. constitution, very special protection that our nation’s news-mongers routinely abuse. The damage they do is all but incalculable, but it’s safe to say the awards would be astronomical if our courts recognized legal liability for journalistic malpractice. 

The latest atrocity from our embedded mass  media is their coverage of the US missile attack on a Syrian military airfield. As is their custom, US news reporters rushed past the facts surrounding the events, hurtling headlong into accusations, political pronouncements, declarations of pride and glory and applause for the brave civilian warriors in Washington who launched the missiles. Reporters had to abandon professional responsibililty to sell the story, which is not just false, but preposterous.

The story they’re telling is that the Syrian leader (who, in unreportable news, is supported by the overwhelming majority of Syrians and has waged a six-year struggle with a rebellion armed by governments in the US and Europe) this leader dropped poison gas on a village currently controlled by rebels. The only evidence presented by the media is a video of people who look as if they might have been poisoned. The video was provided by the rebels, who enjoy widespread support in Washington, London and Tel Aviv. This evidence is considered sufficient, in the nearly unanimous opinion of US news-mongers, to launch guided missiles against Syrian soldiers without legal authority of any kind. Although the missile attack was clearly meant as revenge, our media characterize it as an act of humanitarian intervention. Lately, they have been offering the attack as a seminal indication that Trump might just be a real president after all.

Whether news-consumers are buying this story can’t be known, since the media never assess their own credibility. Polls asking whether people believe what they hear in the news are few and far between. The media tell us we believe three skyscrapers fell down in Manhattan because airplanes crashed into two of them. They tell us we believe our government had nothing to do with the deaths of the people who were inside those buildings when they came down. Millions have expressed disbelief at the media account, skepticism that the media, speaking  with one voice, treat as madness.

From the point of view of media critics, madness is believing anything the media tell us. A wise man said that insanity is doing the same thing over and over and expecting a different result each time. We’ve had experience with presidents who waged war to escape adverse public opinion. Typically, the media allow them to lie about events and conditions, and we shed an ocean of blood in consequence on one or another pretext sold as a rationale for war. We’ve let this happen over and over again. If we’re not insane, we’ll eventually put a stop to this madness and hold our media to account.

If they were honest, the reporters would acknowledge that they probably invited the poison gas attack. The rebels know that our media will accept as truth any propaganda they care to produce. Poison a few civilians, put the sick and the dead on CD, send the CD off to CNN, and within days US missiles will rain down on your enemies in the Syrian army. It’s plausible, and it actually happened a few years ago, minus the missiles, which the president at the time decided not to launch. Now,  with a new, dumber US president, we’re expected to believe that the Syrian leader just felt like poisoning some civilians, and that’s the only reason this happened.  Yeah, right.

Reporters could have demanded additional evidence of the gas attack–debris from a bomb or missile, contaminated material or living tissue, photos of the site attacked, for instance–but they didn’t do that. They could have asked whether there was legal authority to attack Syria, but they didn’t. They could have invited a discussion of possible alternatives to armed force in response to the video, but they didn’t. They didn’t do anything to find out what really happened or to help us decide on the best course of action, as journalists are supposed to do. They are liars. They are whores. They are enemies. In a just world they would be sued till naked.

Judge Judged

March 23rd, 2017

If you would like to find out why Democrats are so widely reviled, spend a few hours watching the interrogation of Neil Gorsuch, now under consideration for the Supreme Court by the Senate Judiciary Committee. Gorsuch is a Federal appeals court judge from Colorado. Democrats found a half-dozen cases (out of the hundreds Gorsuch has decided) on which to base an orchestrated campaign of character assassination. Their attack was as unpersuasive as it was brutal. They owe the judge an apology.

As citizens, Gorsuch and I are almost certainly on opposite sides of many issues, but as lawyers we share a view of what judges are supposed to do, and Gorsuch, after hours of questioning, is exposed as an exemplary judge. What he does is follow precedent, as he’s required to do. Sometimes, the result is that decent people get hurt. There are deficiencies in federal law that judges have no authority to correct. Democrats turned up three or four such cases and they pounded him incessantly with them. The judge challenged the lawmmakers to remedy the deficiences with legislation, and they pleaded impotence.

Because of Gorsuch’s adherence to judicial precedent, nearly all the cases he has sat on were decided unanimously. He’s been reversed only once by the Supreme Court in ten years on the appeals court bench. His Democratic assailants tried to find something in his record showing political bias, but there was nothing, so they resorted to underhanded tactics like guilt by association (anonymous rich people have spent millions promoting  his nomination) and name-calling (he’s an “originalist” and a “corporatist”).

The Dems’ onslaught was transparently phony, as senators read statements prepared by others pulling quotes out of context from writings Gorsuch published before he was appointed to the federal bench and goading him to agree or disagree with opinions of others on controversial legal issues and to disclose his personal political opinions. As hard as it may be to believe that a clown like Trump could pick a qualified person for the Supreme Court, the hearing–two days of nonstop, repetitive, often disrespectful interrogation–was conclusive: the nominee is an asset and  should be confirmed. C-SPAN has the hearing archived, and if you can watch Feinstein, Blumenthal and Franken without nausea, it’s definitely worth a few hours.

The Brand

March 8th, 2017

A few days ago at a high school basketball game here in Connecticut, fans cheering for the mostly light-skinned home team taunted players from the mostly dark-skinned visiting team by chanting the word “Trump.” The school principal correctly interpreted the chant as a comment on the race of the visiting players and disciplined the offending students. The incident made news across the state and embarrassed a number of people.

The media discussion of the incident focused on the racial prejudices that might have given rise to it. What the media missed was the reflection this chant casts on the Trump name. It’s a name that once stood for wealth and status and success that’s suddenly become a shorthand expression of racial mockery. And it wasn’t Trump’s detracters that used his brand in this way–to hurt feelings–but his most ardent young supporters.

What if the Trump brand is being degraded by his presidency? Some would say the brand is his principal asset. If the brand is losing value, the value of the property that bears the brand must also be in decline. That means the monetary worth of Trump’s estate depends critically on what he does as president. We call that a conflict of interests, and there’s only one remedy for it: liquidation.

Trump can’t function properly as president as long as there is a Trump brand. His assets must be sold and the Trump brand must be retired. Sorry, Donald. Nobody forced you to run for president. It’s unfortunate that the mass media didn’t mention this during the election, but that’s fake news for you. You knew about it, and so did many of us.

The home-team school principal did point out that it was a small group in the student cheering section that took up the Trump chant, and it’s probably worth noting that the same is true for Trump support generally. Sixty million people may have voted for him, but over a hundred million didn’t who could have. For some reason, the media never ask him whether he owes any obligation to that majority. He does. The idea that his side “won” the election and is thus entitled to make policy without consulting the majority is delusion. Policy’s just words on paper.

Trump, as the fake news media don’t tell you, faces these two imperatives: he must sell his assets, and he must accommodate the majority who don’t support him. If he fails in either of these, he will have abused the authority of his office and must be impeached and removed.

Presidents Day

February 20th, 2017

The Donald Trump presidency exposes a serious deficiency in our constitutional system. Despite numerous safeguards adopted by the authors of our charter–checks and balances, as we call them–the president of our union of sovereign states now wields imperial power, far beyond anything the founders could have contemplated. Backed by military force of unprecedented destructive power, the US chief executive can decree the political course of just about every nation on earth. Letting that power reside in the hands of a vanity-driven real estate speculator frightens many people.

Far from a world order with the US president at the head of it, the government created at the founding was one of enumerated powers, controlled by the people acting through Congress. The founders’ writings tell us that the president’s role was to supervise the officers and departments created by Congress to administer the government, always according to rules acceptable to the people, expressed as the will of Congress.

Observers around the world claimed to be startled when the first president George Washington vacated his office in favor of his successor at the expiration of his second four-year term, but locals knew that Washington wouldn’t have dared to assume authority not granted by the Constitution. Neither would Congress ever have permitted such a usurpation.

Right up through Dwight Eisenhower, presidents have been held fairly closely to the rules. Franklin Roosevelt had to wait for Japan to attack before he could join World War II. Truman had to call the Korean War a “police action” to keep it legal, and the courts kept him from taking over private industry. Things changed abruptly in the 1960’s. Since Kennedy, there’s been no such delicacy, as successive chief executives simply seized power, putting the country through war, debt and discontent as a result.

Not that presidents before Kennedy did much better. Most presidents have been vain, ingratiating crackpots who have done more harm than good. Our presidents have proved that the ability to get votes is by no means a qualification to govern.

History tells us we need additional restraints on the power of the executive branch. We probably ought to have three presidents–the people’s top three choices–with equal authority, acting by majority rule. They could check and balance each other and guard against the neo-dictatorial regime we tolerate now, one that conflicts starkly with the fundamental values of republican government.


December 16th, 2016

There was a time when the word “incredible” described an unwholesome condition.  Saying that a narrative is beyond belief implies dishonesty and distrust. But these days, you hear “incredible” in conversation all the time, and it doesn’t seem to mean unworthy of belief but, rather, worthy of admiration. Accomplishments that are altogether credible are described as incredible. It seems to be the general-purpose superlative of choice. This would be fine if we could still recognize incredibility, but it‘s possible that the overuse of the term signals a general inability to distinguish between what should be believed and what shouldn’t.

The fact is that there are no facts. You can say almost anything about almost anything and expect to be believed. The New York Times and Washington Post told you there were nuclear weapons in Iraq. Without a single fact to back up their claim, the papers goaded the nation into aggressive warfare. Our government killed hundreds of thousands of people on the basis of this incredible, unverified claim. NPR and others told us, with no supporting facts, that the president of Syria attacked his enemies with poison gas.  We almost went to war over that lie, but a few generals defied civilian authority, and our leaders had to be content with other means of destroying Syrian society. Candidates for high office routinely tell us lies that our mass media pass on without critical comment. Too often for enumeration, the reports of news-mongers are truly incredible, but we believe them, or we pretend to believe them.

There ought to be some cognitive dissonance. That’s a phrase from the psychology glossary describing a  morbid condition of mind touched off when we try to resolve conflicting beliefs. The theorists tell us that the condition forces us to resolve the conflict by denying one of the beliefs, even if that means denying objective facts.  I disagree with the theorists on this point. I think we’ve adapted socially to the point that we are now able to hold conflicting views with no psychological consequences whatsoever. If the consensus is that all narratives are to be believed, the credible along with the incredible, then there no facts and no two propositions can ever be truly inconsistent with each other.  We knew the grounds for war with Iraq were incredible, but we waved flags and banged the war drums anyway.

The current preoccupation with fake news is a good illustration of genuine incredibility. It really is incredible that an industry that has treated consumers to a stream of gossip, rumor and fiction on foreign affairs, justice, politics, and the economy–at incalculable cost to the people–should expect to be credited when it accuses others of circulating falsehoods.  Does anybody really believe that the Russians are to blame for our election? Do the neojournalists at the Times, the Post and NPR really think anybody is buying that story? Who will step up and charge that our news is censored and fabricated? Anybody? Nobody?

We are tested for cognitive dissonance at least once a year around September 11. We’ve been told to believe that three New York skyscrapers collapsed to dust because airplanes crashed into two of them. Even though this is impossible and truly incredible, Americans pretend to believe it. Just like Hans Christian Anderson‘s characters pretending to believe the emperor wasn’t naked, you’d rather not be the guy that says the unthinkable. Every year, cognitive dissonance prompts a few brave Americans to face the bitter truth about the events of September 11, but with the help of the mass media, whose censorship of discussion on the topic is complete, most seem able to hold on to their belief in the incredible.  The annual test of the public’s tolerance for incredibility gives the mass media some idea of what they can get away with.

Right at the moment, we are expected to believe that it’s OK for us to bomb Arabs in Iraq but it’s not OK for the Russians to bomb Arabs in Syria. It’s OK for us to interfere in elections in Ukraine and Venezuela but it’s not OK for other countries to interfere in ours. It’s OK for us to credit fake news from NBC but not fake news from Facebook. Incredible.

The Terrorist You Know

November 12th, 2016

It’s possible that the killing of non-white citizens by police is not so much racism as terrorism. The point of terrorism is to use fear to control large numbers of people. Police are officially charged with the task of controlling large numbers of people. If it is possible to bring large numbers of them into compliance by “making an example” of a few noncompliant–or even innocent–individuals, why wouldn’t police naturally employ this tactic?

There may have been a time when respect for law was sufficient to allow police authorities to exact obedience on the part of the general public, but that time has passed. The legal immunity of the rich and powerful and the particular legal vulnerability of unpopular minorities have eroded public respect for law to the point that all standards of conduct are at serious risk. It’s possible that, in the absence of respect for law, fear is the only means of control available to police.

Alongside the erosion of respect for laws and other standards, there has evolved a wholesale rejection of authority and authority figures, compounding the problem of control. Even schoolchildren now revolt against unfairness or perceived unfairness in their treatment at the hands of grown-up school personnel. By way of response, heavily armed officers now patrol the halls of some schools with gun butts clearly visible to the youthful, regulated public. The potential for the use of force is implied. On the rare occasions when force is actually applied, all are frightened, in theory, and the object of the terrorist is achieved.

There may be readers who recoil at the idea that authority figures use fear to control us, but most of us tend to applaud when we see the tactic in day-to-day practice, typically in fictional accounts of crime and punishment. We’re likely to be in favor of law enforcers’ application of force until they use it on us.

Not so long ago, it was easy to ignore the excessive use of force by police. Instances of police misconduct rarely made news. Today most people are equipped with miniature video recording devices, and new episodes of police bullying, sometimes lethal, are recorded with some regularity. As the video record demonstrates, there are victims of all skin colors, but dark-skinned people are targeted disproportionately. Why? Because it’s cheaper. The cop is more likely to find contraband on the target if he’s black or brown, and he’s much more likely to be believed if he has to plant contraband on the target to justify his use of force. On those rare occasions when courts become involved, the abuser stands a better chance of acquittal or leniency against a dark-skinned victim. Terrorism is particularly effective when it’s done at minimal cost. It may not be that cops hate black people. It may be simply that blacks make the most convenient terrorism targets.

It isn’t just police who use terrorism to control us. Political figures have better luck gaining our trust when we’re scared. They make it their business to find enemies for us and duly target the designated enemies for punishment. They come and go, our enemies. When we stop feeling threatened by one–we had Castro for decades, but he’s old and harmless now–they give us another one. These days, if we credit our leaders at all, we’re supposed to be very afraid of Kim of Korea and Putin of Russia.

If we credit our media and most of the political establishment it’s Donald Trump we should be afraid of. The political campaign on behalf of the Democratic nominee was a stream of character assassination designed to evoke fear of Trump among voters. The tactic didn’t work to swing the election, but it did leave a residue of terror in a sizable swath of the population, including many hapless schoolchildren, victims of their parents’, teachers’ and newsmongers’ unabashed reign of terror.

Newsmongers could well be the biggest purveyors of terrorism. Fear is known to attract audiences, and that’s what the current events branch of the entertainment industry is meant to do: attract an audience for exposure to the epidemic of food, drug and cosmetic advertising that generate revenue for them. It’s not just Trump, but Russia, tropical viruses, Arabs, urban violence, and transexuals in our children’s bathrooms that they want us to fear. In the aftermath of the 2016 election, they left many people in a state of panic. Over the years, they’ve scared a dumbed-down populace into more wars than we can count, into a draconian, profit-generating penal system, and, most recently, into authoritarian government.

So if you’re looking for terrorists, don’t look in Afghanistan or Syria. Look over your shoulder. Terrorists in law enforcement, politics, and the mass media are using fear to manipulate us every hour of every day.

The Clinton Doctrine

October 11th, 2016

Is anybody else detecting hints of hypocrisy in the vehement criticism of Donald Trump’s remarks on the privileges rich and famous men enjoy in the presence of attractive women? His observations, recorded eleven years ago over an open microphone during a casual conversation with another rich and famous man, were actually a succinct statement of the Bill Clinton/Clarence Thomas doctrine, which holds that high-status men have a license to exact sexual submission from lower-status women. 

When I was admitted to the bar in 1978, there was no legal redress for a woman who submitted to sex with her boss. On the contrary, it was common knowledge that a pretty girl could, with minimal effort, advance her career simply by letting the boss touch her and talk to her in certain ways. Unscrupulous men in positions of authority routinely took advantage of this privilege.

Bill Clinton and Clarence Thomas came to the bar around the same time I did, and, like Donald Trump, they must remember when the legal landscape was suddenly transformed. They should remember, because both were confirmed sexual predators at the time and should have anticipated that somebody would eventually complain.

Like so much of our law, the right of working women to be secure from sexual predation at the hands of their bosses turned out to be illusory. Thomas got away with it and sits comfortably on the United States Supreme Court. Clinton got away with it and is cheered enthusiastically whenever he appears before an audience of women. Trump tells an inconvenient truth when he says a star has license to grab a beautiful girl by the crotch if he feels like it. That’s because there’s a corollary to the Clinton doctrine providing that it’s futile to complain if you are a victim of one of these men. You won’t be believed.

I saw the rule in practice as a lawyer. I’ve sued a few bosses for humiliating the female help. They followed the Clinton/Thomas strategy of denial and character assassination as if they’d attended a seminar on it. They start with an acknowledgement that, yes, they do like women, and they do compliment them from time to time, and there’s nothing wrong with that. And, yes, they’re pleased when the women who work for them get dolled up, and, yes, they show their appreciation, and there’s nothing wrong with that either. But they would never ever resort to any sort of unwanted attention, and anybody who says they would is either mistaken or a liar. Because, look, rich and powerful men are easy targets for opportunistic women, and nothing’s easier than an accusation of sexual misconduct, and that’s how disgruntled female employees become plaintiffs in sex harassment lawsuits.

My clients were exceptionally strong in the face of such brutal defense tactics, and we eventually got some money out of the wrongdoers, but the retribution was always insufficient, and no lessons were learned. On the contrary, the lesson of Clinton, Trump and Thomas is that you lose if you complain. Hillary Clinton, who accused her husband’s victims of being whores and opportunists, is poised to move back into the White House with Bill at her arm. Trump, who continues to enjoy the protections of the Clinton doctrine well into his dotage, is altogether immune to any sort of legal accountability for his licentious activities. And Thomas’ crimes are so distant from us today that they have been forgotten, even by staunch feminists.

Come down on Donald Trump if you like for being a pig, but don’t doubt what he says. The Clinton doctrine is in full force and effect. If you’re touched by a rich, handsome, powerful man, why get all mad about it? Confront him, and you’ll regret it. Why not just appreciate the attention?

Second Place

October 7th, 2016

The embedded mass media have decreed the results of the 2016 presidential election, and they have let us know that any effort to thwart their plan is doomed to fail. In a few weeks, the Clintons will prepare to move back into the White House and the Republican candidate, as second-highest vote-getter, will return to his business in New York City. The Libertarian and Green Party candidates will receive a few “protest” votes and will be forgotten within days.

The media narrative conflicts with the expectations of the Green Party candidate and her entourage. They believe there is a substantial proportion of voters who foresee a continuation of corrupt government with either the Democrat or the Republican and are determined to cast a vote consistent with conscience. The media tell us this is a tiny minority, but their bias is blatant and they’re not embarrassed to let it show. Nobody knows how strong this voting bloc is.

What we do know is that the mass media are committed to a Clinton victory and are doing everything they can to see that it is secured. To hear the newspapers and news readers tell it, there is one issue and that issue is Trump. He’s rotten. How rotten is he? Twice as rotten as he was yesterday. And dangerous. Want to compare him to a mass murderer? Fine. Even the candidate seems to agree. The character he plays on TV is a textbook psycho, with not the slightest resemblance to somebody who wants to win an election.

Character assassination is indispensable in this election because the Democrats’ nominee is also a person of low character, an architect of the permanent state of war that afflicts our nation and the principal defender of the sexual predator who defiled the office she now seeks. She’s not a likeable person.

That leaves us with a challenging confluence of circumstances. There’s a bunch of voters–we don’t know how many–who reject both major party candidates for a variety of reasons. There’s a campaign of unprecedentedly vicious character assassination against the Republican candidate, who seems to be taking a dive. The Democrat will win, but she is poorly tolerated, and many voters can’t hold their noses tightly enough to choose her. Why, under these peculiar circumstances, shouldn’t the Green Party expect to take second place in this election?

If the Greens were to strive for second place, it could remove the “spoiler” label that the mass media like to hang on minor-party voters. These voters would consider the minuscule risk of a Trump presidency to be worth the effort to overtake him and deal a powerful blow to the right wing he and his opponent represent. Maybe it’s time for the Tea Party and its Republican affiliates to become the third party. It would take lots of voters to accomplish that, but they are out there. We saw them pack the rallies for Sanders. Why shouldn’t Greens contest the Clintons for these votes? Don’t principled people owe that to each other?

And what if Trump wins? Trump is not going to win. He doesn’t want to win. It would cost him a bundle if he won this election. He would have to quit acquiring assets and abandon his businesses. Plus, when the Clintons return to Washington, they will owe Trump a huge debt for making himself a candidate, and they will be in a position to pay handsomely. He’ll have a good laugh over this election, and it will be at the voters’ expense. It’s pretty clear that he’s used every conceivable tactic to lose this election, and for good reason. You want to take the smirk off Trump’s face? Make him come in third.

JASTA Truth and Nothing But

September 29th, 2016

The passage of Senate Bill 2040, the “Justice Against Sponsors of Terrorism Act,” overriding a presidential veto, will almost certainly result in a lawsuit against the government of Saudi Arabia, seeking compensation for injuries resulting from the events of September 11, 2001. The Saud family, which rules the kingdom by divine right, could face liability for billions of dollars in damages. There is evidence that members of the Saudi Arabian government had advance knowledge of the destruction of the World Trade Center and may have financed the operation.

It is likely that the Sauds will defend themselves by pointing the finger of culpability at others, including people in the highest echelons of the United States government. In the 15 years that have intervened since the collapse of the buildings, the US government’s explanation of the events of that day has never been tested in a court of law. That’s likely to change under the new statute.

The victims’ lawyers will have to prove by a preponderance of the evidence that the skyscrapers fell down because airplanes crashed into them. That will be a problem. Video of the destruction of the buildings clearly shows explosions immediately preceding and during the collapse, and over 100 witnesses, including news reporters and rescue workers, confirm that evidence. Both buildings came down in a few seconds without apparent resistance from below, an unprecedented act of destruction except in cases of controlled demolition. Expert witnesses will testify that these could only have been demolitions, prearranged not by Saudi Arabians but by the owners and operators of the buildings. There’s also a question, under federal practice, whether the court will be able to allow expert testimony in support of the government’s theory that the buildings collapsed because of fire.

There’s a legal doctrine called “last clear chance” that mitigates the liability of a defendant if some other party had a clear opportunity to prevent the damage. If it is the case that airplanes were deliberately crashed into the buildings, why was the US Air Force not deployed to stop that from happening? It’s routine for jet fighters to intercept off-course airplanes that might present a danger, and there was ample opportunity for the Air Force to respond. In the years since 2001, the US government has offered at least three separate, mutually contradictory explanations for the failure of the military, and we should expect all of them to be trotted out by the defense.

Don’t be surprised if the Israeli government is implicated by the defendants. A group of men who turned out to be Israeli intelligence assets were arrested and held for a couple of months after they were seen celebrating the destruction of the World Trade Center from a vantage point in New Jersey. That little party is almost certain to become a point of contention in any lawsuit against Saudi Arabia.

Any claim for damages resulting from injuries sustained at the Pentagon on September 11 will have to overcome evidence that the Vice President declined to intercept the offending aircraft when he knew it was headed for Washington. There is sworn testimony to that effect from the Secretary of Transportation, who was in a bunker with Richard Cheney when warnings were relayed to him. The litigants could encounter some difficulty even proving that an airplane crashed into the Pentagon. The absence of any trace of a commercial airliner–engine, tail assembly, passengers, luggage–will be a focus of the defense.

I don’t believe the President when he says he vetoed S. 2040 because it threatens the doctrine of sovereign immunity. I think he vetoed the bill because it will bring about the reconsideration of unanswered questions surrounding the events of September 11, 2001, possibly implicating a US president in the slaughter of innocents and revealing a 15-year cover-up that exposes our current leaders as accessories to mass murder.

Unequal Education Prompts Judicial Rant

September 19th, 2016

A Connecticut judge has ordered the state government to implement key improvements to public education or else. Or else what the judge doesn’t say explicitly, but he’s so harsh in his critique of standards for academic and professional performance that state legislative and executive leaders probably shouldn’t laugh in his face. His tone was so critical that his decision made national news.

Making frequent reference to the testimony he’d heard, trial judge Thomas Moukawsher read his plain-language decision from the bench, castigating the defendant state of Connecticut for an irrational system of elementary and secondary education. The plaintiffs’ evidence, he ruled, proved beyond a reasonable doubt that in several crucial areas, the state is failing to implement the constitutional directive to provide a free public education for all children. Drawing inescapable conclusions from the testimony of the various experts who had testified at trial earlier this year, the judge found the services provided to many children so inadequate that they don’t satisfy state constitutional guarantees.

The court focused on four key deficiencies, finding no rational basis for school funding decisions, for elementary and secondary school instructional requirements, for professional evaluation and compensation and for the provision of services to children with learning disabilities. The judge ordered the state to present a plan within six months that would remedy the enumerated deficiencies, but he didn’t say just how the legislative branch might proceed to comply with his ruling or mention what he might do if the state fails to comply.

State school funding decisions are arbitrary, with rich communities benefiting at the expense of children in poor urban districts. Some years ago, in the wake of a state supreme court decision faulting the government for unconstitutional inequities in the allocation of educational resources, state legislators devised a formula to deliver resources where most needed, but that formula has since degenerated to a system that fails to address the inequities. A third of the state money spent on schools is dedicated to building construction and renovation, the judge pointed out, at a time when the population of school children is in decline. This huge pot of money–one billion dollars–is spent disproportionately in districts with politically powerful legislators. The judge didn’t say it explicitly, but he implied that connected construction contractors are the principal beneficiaries of school funding decisions. “Spending,” the judge stated, “must follow a formula influenced only by school needs and good practices.”

The state has no rational, objective definition of elementary and secondary education. Elementary school children in many districts now enter high school without knowing how to read, write or do math well enough to progress, and many urban high schools now graduate students who fail to meet basic academic requirements.

The judge found unanimous agreement among the witnesses appearing at trial that only tiny minorities of students in the poorest school districts leave elementary school with sufficient skills to learn anything in high school, but Connecticut has no rational standard for students to pass to secondary school. The judge pointed out that the situation with unprepared elementary school children is dire but not irremediable. He was sympathetic to the plea of one trial witness who advocated “triage,” whereby all educational resources are marshaled to bring third-graders to third-grade competency. He ordered the state to propose a definition of what it means to have an elementary school education that is rationally and primarily related to developing the basic skills needed for high school.

High school graduation rates have been rising, the judge noted, but the educational attainments of graduates, according to facts and figures cited in the decision, have been falling in many urban school districts. Taking a critical look at the statutes governing high school graduation, the judge found them devoid of substance, likening them to a “sugar-cube boat” that dissolves before it’s launched. The judge referred to the report of a legislative task force convened in 2015 on graduation requirements as “some kind of spoof.” A new system is constitutionally required to rationally, substantially and verifiably connect a high-school diploma with an education.

The problem with professional pay and evaluation is that they have no rational connection to the education of children. Teacher evaluation is locally controlled and results in a stated proficiency rate of 98 percent, a figure that the judge found neither accurate nor helpful. Such guidelines as the state has for teacher evaluation are not mandatory, and they do not measure student growth over the course of the school year. Standards for the evaluation of principals and other administrative personnel are even looser, the court found. The problem with teacher pay is that it’s determined by just two factors: seniority and the possession of advanced degrees. That’s not good enough, according to the judge. A rational system would at least provide pay differentials to attract the best teachers to the neediest school districts and afford incentives for teachers to take jobs where instructional help is in short supply. The judge was not particularly sympathetic to suggestions that teacher pay be tied to student test scores, but he was not averse to rewarding teachers for academic growth in their pupils.

The judge found wide disparities from school district to school district in the identification of students in need of special education, attributing the chaotic situation to a lack of state standards for identifying specific disabilities and methods of dealing with them. He was also critical of irrational interpretations of federal disabilities law that lead many school districts to spend vast sums to place multiply-disabled children in mainstream classrooms when there is no prospect of educating them. The judge ordered the state to submit a plan that focuses efforts on those disabled students who can profit from some form of elementary and secondary education. The judge conceded that the state may have a duty to serve multiply-disabled children, but suggested it rethink whether local school districts should pick up the tab using local school money.

The state is appealing the judge’s decision as a judicial intrusion into what is a legislative function. This sort of intrusion is not without precedent in Connecticut, but the conditions cited by this judge might not exist if the legislative branch had paid any heed to past intrusions into state education policy. There’s a veiled threat in the decision to start voiding unconstitutional laws if the legislature fails to act, but that threat probably won’t bring about any sort of consensus among legislators, who have digested the lessons of the past and learned not to take judges’ rants very seriously.  If his reasoning holds up on appeal, this judge may have occasion to crack down with something a bit more substantial than critical rhetoric.