Lawsuit pushing more school spending survives challenge

DOVER — Delaware’s Court of Chancery has denied a motion from the state to dismiss a lawsuit alleging Delaware’s education system does not provide the necessary resources for students who live in poverty, have a disability or do not speak English as their primary language.

Several nonprofits filed the lawsuit with the Court of Chancery in January, arguing not enough money goes to support disadvantaged pupils. As a result, they alleged, the state is violating the Delaware Constitution, which says the Legislature “shall provide for the establishment and maintenance of a general and efficient system of free public schools.”

The claim names Gov. John Carney, Education Secretary Susan Bunting, Treasurer Ken Simpler and the finance directors of each of the state’s three counties in their official capacity.

“The complaint alleges that Delaware fails to provide adequate funding for Disadvantaged Students,” Vice Chancellor Travis Laster wrote in his Tuesday opinion. “One reasonable and common sense inference supported by the allegations of the complaint is that Disadvantaged Students need more funding and more services than their more privileged peers.

“In Delaware, however, the educational funding system generally provides more support for more privileged children than it provides for impoverished children.

Travis Laster

“Put differently, schools with more Disadvantaged Students receive less financial support from the State than schools with fewer Disadvantaged Students. Likewise, school districts with poorer tax bases receive less funding from the State than school districts with wealthier tax bases.

“Unlike thirty-five other states, Delaware provides no additional financial support for educating low-income students. Unlike forty-six other states, Delaware provides virtually no additional financial support for educating students who are learning English as a second language.”

According to state data, of the approximately 137,200 public school students in the 2016-2017 school year, there were about 12,800 English language learners, 48,200 impoverished students and 19,800 special education participants, although that does include some overlap in categories.

Vice Chancellor Laster wrote in his ruling 31 percent of funding in the fiscal year ended June 20, 2016, came from local sources. Local school revenue is based on the assessed value of properties and the tax rate per dollar of assessed value in each school district. Districts, the opinion notes, generally need to hold successful referendums every three to five years to cover necessary costs.

One of the reasons for the disparity, the complaint says, is that the counties have not updated property assessments in more than 30 years.

Vice Chancellor Laster in October rejected a motion from the counties to dismiss.

The lawsuit asks the court to order changes such as smaller class sizes and more specialists like counselors and bilingual teachers to create a more equitable system.

State officials in their motion to dismiss made a “striking concession,” Vice Chancellor Laster wrote, by not disagreeing with the premise that Delaware’s schools are failing to properly educate students and claiming the constitution requires only that all students be included and that the system use “centralization to reduce administrative costs and yield economic efficiencies.”

Taking that argument to its ends, his findings state, could even allow a “dystopian hypothetical” to be legal: “At the extreme, the 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.”

Standardized test scores, on average, are drastically lower for students with intrinsic disadvantages. In the 2017-2018 school year, for instance, between 33 and 41 percent of students from impoverished backgrounds in each grade level from third through eighth grade tested as proficient in the English language arts portion of the Smarter Balanced standardized test.

For students not designated low-income, at least 62 percent in every grade scored as proficient.

Similar patterns appear for English language learners and students with disabilities. Less than 5 percent of English language learners in sixth grade were at grade level in math, while 42 percent of non-ELL sixth graders were. In Smarter Balanced’s English section, just 6 percent of non-native English speakers in sixth grade received a passing grade. About 55 percent of students not classified as ELL did so.

Eight of the state’s 19 districts have poverty rates of at least 40 percent, particularly in and around Wilmington, Dover and western Sussex County.

“The complaint alleges that in Delaware, schools with more Disadvantaged Students have larger classes, fewer specialists, fewer counselors, and insufficient dual-language teachers,” Vice Chancellor Laster wrote.

“The complaint also alleges that many Disadvantaged Students attend schools that have become re-segregated by race and class. At the pleading stage, these allegations support a reasonable inference that Delaware is failing to fulfill its constitutional obligation to educate Disadvantaged Students.

“This reasonable inference draws additional support from the complaint’s allegations regarding the findings made by a series of committees, established during the past two decades under the auspices of the General Assembly or by the Governor, which have investigated Delaware’s public schools, made similar observations, and reached similar conclusions.”

Over the past 17 years, state committees have on three occasions recommended changes to better serve needy students, particularly those living in Wilmington. Few of those recommendations have been taken up by decision-makers, however.

“These children have waited far too long. … With the exception of those early education initiatives, the sad, harsh reality is the state of Delaware as a state has not done anything to improve the quality of education for low-income and at-risk children unless a judge or judges has ordered them to do so,” Wilmington City Councilman Jea Street said when the lawsuit was announced earlier this year. “It’s a sad record.”

According to the suit, 26 states increased spending on low-income students from 1990 to 2011, mostly by court order, and those states have since seen better results from needy students.

A spokesman for Gov. Carney said the governor continues to review the ruling and remains “committed to investing in Delaware’s schools.”

Richard Morse, senior counsel for Delaware Community Legal Aid Society Inc., one of the nonprofits involved in the litigation, said there is currently nothing more scheduled regarding the case but further filings could come within a few weeks.

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