By Wendy Lecker
The plaintiffs in Delaware’s first school funding lawsuit have reached a settlement with the state defendants, including Governor Jay Carney. The settlement provides for long overdue reforms of Delaware’s inequitable school funding system, including millions of dollars in new investments targeted to schools serving low-income students, English language learners (ELL) and students with disabilities. The settlement also sets the stage for action by the Legislature, which has, in recent years, stood in the way of meaningful reform and urgently needed increases in funding.
The plaintiffs, Delawareans for Educational Opportunity and the NAACP Delaware State Conference, filed the lawsuit in 2018, charging that Delaware (State) persistently underfunded its public schools, particularly those serving high concentrations of low-income students, students with disabilities and ELLs. This underfunding, plaintiffs claimed, is so severe that it deprives these students of the resources essential to achieve Delaware academic standards, a violation of their constitutional right to an adequate education under Delaware’s constitution.
The plaintiffs also contended that the manner in which Delaware counties assess property values impedes school districts’ ability to levy taxes and receive their fair share of State school funding. The plaintiffs are represented by the American Civil Liberties Union of Delaware, the Community Legal Aid Society, and the law firm Arnold & Porter, appearing pro bono.
The State moved to dismiss the case in 2018, but Vice Chancellor J. Travis Laster denied their motion. In a landmark ruling under Delaware law, Vice Chancellor Laster held that students have a qualitative right to a meaningful education under the state constitution and that the courts had the responsibility to determine whether the state has fulfilled its obligation to provide an adequate education to all Delaware public school children.
The Chancellor also bifurcated the case, trying the county tax claim first. After a June 2019 trial on that claim, the court found that Delaware’s three counties improperly assessed property values in violation of the uniformity clause of the Delaware constitution, which requires equal treatment of taxpayers residing in the same tax district. The adequacy claim before the Chancellor then moved to the discovery and trial phase.
On the eve of trial, the plaintiffs and the State entered into a settlement agreement, approved by the Chancellor, of the constitutional adequacy claim. The key reforms in the settlement include:
- $25 million in Opportunity Funding for ELLs and low-income students, to increase to $60 million per year by the 2024-25 school year and become a permanent funding stream. A portion of this funding is to be earmarked for mental health and reading supports in schools with the highest concentrations of low-income students and English learners.
- Basic funding for special education, currently provided only from fourth through twelfth grade, will be extended to cover students in kindergarten through third grade.
- Funding for preschool programs for low-income students will double, from $6.1 million to $12.2 million by 2023-24.
- Beginning in 2022-23, $4 million will be allocated annually for teacher recruitment and retention in high-needs schools.
- A State ombudsperson program will be established and funded to work with students and families on complaints related to disparate school discipline, inequitable access to school programs, and different or unfair treatment.
- A comprehensive, independent study of Delaware’s school funding system will be funded by the State and completed by 2024. The study must provide findings and recommendations to the Governor, Secretary of Education, Speaker of the House, Senate Pro Tempore and the House and Senate Education Committees for further reforms.
- Districts seeking voter approval of school construction or renovation projects will be required to distribute a statement indicating how the project will affect the equitable provision of new and renovated school facilities within the district.
Court Retains Jurisdiction
The settlement provides for the court to retain jurisdiction to ensure State compliance in enacting and implementing the reforms in the coming years. Importantly, the settlement also provides that should the Governor fail to propose a budget that conforms to the settlement terms , or should the Legislature fail to enact legislation or appropriate the requisite funds, for fiscal year 2022 or in future years, the plaintiffs may apply to reinstate the case and proceed to trial. If the Governor or Legislature fails to abide by the terms of agreement prior to January 2025, the State may not oppose the plaintiffs’ court application to enforce the settlement.
The settlement marks a pivotal turning point in the continuing efforts of Delaware education and civil rights advocates to secure meaningful reform of the State’s broken finance system. The State’s most underserved students will a receive significant and permanent boost in state school aid, as well as protections against unequal treatment. Moreover, the State has committed to an independent, expert assessment of its current method of funding public education to help ensure a State finance system that will, for future generations of students, be based on the actual cost of an adequate education and Delaware’s unique student and school needs.
Wendy Lecker is a Senior Attorney at Education Law Center
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