From 1973-2017, Delaware was one of the few states around the country in which no equity or adequacy litigations had been filed in the state courts.
Initiating the first educational adequacy litigation in Delaware’s history, the American Civil Liberties Union (ACLU) of Delaware and the Community Legal Aid Society filed a lawsuit against state officials in January 2018 for their failure to fairly and adequately fund education across schools in the state (Delawareans for Educational Opportunity v. Carney). The suit argues that the Delaware Constitution’s requirement of a “general and efficient system of free public schools” guarantees all children a meaningful opportunity to obtain an adequate education and a substantially equal educational opportunity.
The plaintiffs specifically allege that the state has failed to provide sufficient funds to students from low-income families, students with disabilities, and students who are English language learners. In this regard, they state that 64% of low-income students, 85% of English language learners and 86% of students with disabilities did not meet the state standards in grades three through eight for English Language Arts established by the state. They further claim that the state’s education funding often provides more support for children who are well off than it provides for children living in poverty.
According to the complaint, the state provides virtually no additional financial support for the education of English language learners, unlike 46 other states; and unlike 35 other states, it provides no additional financial support for the education of low-income children. Furthermore, basic special education funding is not provided by the state for students with disabilities in kindergarten through third grade, causing them to fall farther and farther behind in their early school years.
The suit identifies several state policies as the source of the state’s failure to provide adequate funding. First, the state’s “equalization formula” does not solve inter-district and per-pupil funding disparities. Additionally, state policies like the Neighborhood Schools Act have led to re-segregation of school districts, prioritizing white suburban interests in education policy. The suit also argues that the state relies too heavily on local taxes to fund schools.
The suit was brought on behalf of two organizations: Delawareans for Educational Opportunity and the NAACP Delaware State Conference of Branches. The City of Wilmington later joined as a plaintiff, suing New Castle County. Prior to the filing of this lawsuit, Delaware was one of only four states across the nation where no educational adequacy litigation had been attempted. Now, it is only in Hawaii and Utah where no constitutional claims regarding inequities or inadequacies in education funding have ever been lodged.( A suit was also recently filed in Nevada.)
Property Tax Issues
Delaware Chancery Court Judge Travis Lester decided that the property tax and adequacy issues should be considered separately. In October 2018, he denied the state’s motion to dismiss plaintiffs’ claims that a failure by county officials to raise market values of properties that are used to levy taxes for school aid purposes violated the Delaware Constitution. A trial on these property tax issues was held early in 2020 and Judge Lester issued a lengthy decision in May 2020, holding that the assessment methodologies used by all three counties involved in the case do not assess property based on true market values and that these methods violate the state’s true value statute and the Uniformity Clause of the state constitution.
The judge held that these unjustifiable assessment methods required school districts to often hold referenda to obtain additional funding and that “School districts must conduct referendums in an effort to mitigate the harm that that the counties are inflicting. The fact that school districts are forced to conduct referendums is itself part of the harm,”
The judge did not issue an immediate remedy. Taking note of the impact of the Coronavirus pandemic, he stated that:
While the effects of the pandemic do not mean that the counties can continue indefinitely to operate a local tax system that violates the Delaware Constitution and the Delaware Code, the effects of the pandemic likely will introduce additional and significant considerations for the remedial calculus, particularly regarding the timing of a remedy.
Accordingly, he directed the parties to submit within 45 days a proposed scheduling order for what may be a lengthy remedial process.
In a scathing 133-page decision that excoriated the legal positions taken by the state defendants, Delaware Chancery Vice Chancellor J. Travis Laster denied the state’s motion to dismiss the substantive educational adequacy aspects of the complaint in late November 2018 in Delawareans for Educational Opportunity v. Carney. At the outset of his decision, Judge Laster emphasized that according to the complaint, on the state’s own proficiency exams, in 2016-2017 only 25% of low income students, 7% of students with disabilities, and 5% of English language learners achieved proficiency in eighth grade math, and that similar results occurred in other subjects and at other grade levels. Unlike thirty-five other states, he wrote, Delaware provides no additional financial support for educating low-income students and unlike 46 other states, Delaware provides virtually no additional financial support for educating students who are learning English as a second language.
In addition, Judge Laster noted that in Delaware schools with more disadvantaged students have larger classes, fewer specialists, fewer counselors, and insufficient dual-language teachers, and that the complaint also alleges that many disadvantaged students attend schools that have become re-segregated by race and class.
Although the plaintiffs will have to prove all of these facts by a preponderance of evidence at the trial, the Court ruled on a number of major legal issues that now have become the law of the case. Most notably, Judge Later rejected the state’s broad and vague interpretation of the terms “general” and “efficient” in the state constitution’s education clause, stating that under the state’s interpretation:
[T]he State could corral Disadvantaged Students into warehouses, hand out one book for every fifty students, assign some adults to maintain discipline, and tell the students to take turns reading to themselves. Because the State does not think the Education Clause says anything about the quality of education, even this dystopian hypothetical would satisfy their version of the constitutional standard.
Accordingly, he held that:
In my view, the plain language of the Education Clause mandates that the State establish a system of free public schools, and it uses the term “schools” in accordance with its ordinary and commonly understood meaning—as a place where students obtain an education. The adjectives “general and efficient” relate to and function in service of this noun. Consequently, when the Delaware Constitution mandates that the State create and maintain “a general and efficient system of free public schools,” it contemplates a system that educates students and produces educated citizens. The system of public schools must actually provide schooling.
The Court also analyzed equity and adequacy decisions in other states and found that 31 state courts had held that there is qualitative dimension to the state constitution’s education clause and that all 13 states that had language similar to Delaware’s had also found such a qualitative dimension. Judge Laster also made the interesting observation that although the U.S. Supreme Court has not held that Brown v. Board of Education prohibits de facto school segregation, in the context of a state education adequacy case, Brown does imply that a racially segregated school cannot be adequate and effective.
Avoiding a trial that was scheduled to take place early next year, the parties to the Delaware adequacy litigation reached agreement on a settlement on October 12, 2020. The settlement requires the governor to propose a series of budget increases for specific programs each year between 2022 and 2025, as well as other reform legislation. If the General Assembly does not appropriate the specified amounts and enact the proposed legislation, plaintiffs may petition the Court to reinstate the case and resume the trial.
Among the reforms listed in the agreement are:
- $25 million in Opportunity Funding in FY 2022, increased to $60 million by the 2024-2025 school year. $5 million of these funds will be reserved for mental health and reading supports in schools with the highest concentrations of low-income and English learner students.
- By the 2023-2024 school year, the Early Childhood Assistance Program, which funds preschool programs for low-income families, will double its funding from $6.1 million to $12.2 million.
- A $4 million annual commitment to support enhanced teacher recruitment and retention in high-needs schools beginning in the 2022-2023 school year.
- An ombudsperson program will be adopted to assist individual students and families in resolving disputes or complaints concerning disparate discipline, inequitable access to school programs, and different or unfair treatment.
- School districts seeking voter approval for capital construction and major renovations will be required to distribute an equity statement to explain how the capital project would impact equitable distributions of new and renovated buildings within the district.
- The State will hire an independent organization to complete a holistic assessment of the Delaware public school finance system by January 2024, which shall consider funding levels, revenue mechanisms, equity, and efficiency.
As of the 2024 fiscal year, the State was largely on track for meeting its funding commitments under the settlement agreement; the budget adopted in June, 2023 also included a 9% pay raise for teachers.