Delawareans for Educ. Opportunity v. Carney, C.A. No. 2018-0029-VCL

CourtCourt of Chancery of Delaware
Citation199 A.3d 109
Docket NumberC.A. No. 2018-0029-VCL
Parties DELAWAREANS FOR EDUCATIONAL OPPORTUNITY and NAACP Delaware State Conference of Branches, Plaintiffs, v. John CARNEY, Governor of the State of Delaware; Susan Bunting, Secretary of Education of the State of Delaware; Kenneth A. Simpler, Treasurer of the State of Delaware; Susan Durham, Director of Finance of Kent County, Delaware; Brian Maxwell, Chief Financial Officer of New Castle County, Delaware; and Gina Jennings, Finance Director for Sussex County, Delaware, Defendants.
Decision Date27 November 2018

199 A.3d 109

DELAWAREANS FOR EDUCATIONAL OPPORTUNITY and NAACP Delaware State Conference of Branches, Plaintiffs,
v.
John CARNEY, Governor of the State of Delaware; Susan Bunting, Secretary of Education of the State of Delaware; Kenneth A. Simpler, Treasurer of the State of Delaware; Susan Durham, Director of Finance of Kent County, Delaware; Brian Maxwell, Chief Financial Officer of New Castle County, Delaware; and Gina Jennings, Finance Director for Sussex County, Delaware, Defendants.

C.A. No. 2018-0029-VCL

Court of Chancery of Delaware.

Date Submitted: August 29, 2018
Date Decided: November 27, 2018


199 A.3d 114

Ryan Tack-Hooper, Karen Lantz, ACLU FOUNDATION OF DELAWARE, INC., Wilmington, Delaware; Richard H. Morse, Brian S. Eng, COMMUNITY LEGAL AID SOCIETY, INC., Wilmington, Delaware; Counsel for Plaintiffs.

Barry M. Willoughby, Lauren E.M. Russell, Elisabeth S. Bradley, Lauren Dunkle Fortunato, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; Counsel for Defendants John Carney, Susan Bunting, and Kenneth A. Simpler.

William W. Pepper Sr., Gary E. Junge, SCHMITTINGER & RODRIGUEZ, P.A., Dover, Delaware; Counsel for Defendant Susan Durham.

Herbert W. Mondros, Helene Episcopo, MARGOLIS EDELSTEIN, Wilmington, Delaware; Counsel for Defendant Gina Jennings.

Adam Singer, Mary A. Jacobson, NEW CASTLE COUNTY OFFICE OF LAW, New Castle, Delaware; Counsel for Defendant David M. Gregor.

Norman M. Monhait, ROSENTHAL, MONHAIT & GODDESS, P.A., Wilmington, Delaware; David K. Lukmire, O'MELVENY & MYERS LLP, New York, New York; Counsel for Amicus Curiae The Education Law Center. Counsel for Amicus Curiae The Education Law Center.

LASTER, V.C.

The Education Clause in Delaware's constitution states: "[T]he General Assembly shall provide for the establishment and maintenance of a general and efficient system of free public schools ...."1 This clause manifests Delaware's commitment to provide a free public education to all of Delaware's children. It is a constitutional obligation that rests squarely on the State.

In their complaint, the plaintiffs allege that Delaware is failing—profoundly and pervasively—to meet its constitutional commitment to children from low-income families, children with disabilities, and children whose first language is not English (collectively, "Disadvantaged Students"). The numbers of affected students are considerable. Delaware has over 50,000 low-income students, more than 20,000 students with disabilities, and almost 10,000 students whose first language is not English.

In support of their claim that Delaware is failing to educate Disadvantaged Students, the plaintiffs cite the Delaware Department of Education's own standards and assessments. To evaluate student proficiency in grades three through eight, the Delaware Department of Education uses

199 A.3d 115

an assessment tool developed by the Smarter Balanced Assessment Consortium (the "Smarter Balanced Assessment"). To evaluate student proficiency in grades eleven and twelve, the Delaware Department of Education uses scores from the Scholastic Aptitude Test ("SAT"). The Delaware Department of Education uses the resulting scores to determine whether students are meeting Delaware's standards for grade-level proficiency. Only students whose scores meet Delaware's proficiency standards are considered to be on track for college and career readiness.

For the 2015–16 school year, Disadvantaged Students in grades three through eight achieved the following results on the Smarter Balanced Assessment:2

• Low-Income Students:

• Language Arts: 35.60% met State standards; 64.40% did not.

• Math: 25.42% met State standards; 74.58% did not.

• Students With Disabilities:

• Language Arts: 13.48% met State standards; 86.52% did not.

• Math: 10.36% met State standards; 89.64% did not.

• English Language Learners:

• Language Arts: 15.14% met State standards; 84.86% did not.

• Math: 18.10% met State standards; 81.90% did not.

The highpoint among these figures is the language arts performance of low-income students, where one in three met the standard for grade-level proficiency. Two in three did not. In other areas, the results were worse. Three out of four low-income students were not proficient in math. Nine out of ten students with disabilities were not proficient in either language arts or math. Eight out of ten students learning English as a second language were not proficient in either language arts or math.

For the 2016–17 school year, Disadvantaged Students in third and eighth grade achieved the following results on the Delaware Department of Education's assessments:

• Low-Income Students:

• Third Grade Language Arts: 37% proficient; 63% not proficient.

• Third Grade Math: 39% proficient; 61% not proficient.

• Eighth Grade Language Arts: 34% proficient; 66% not proficient.

• Eighth Grade Math: 25% proficient; 75% not proficient.

• Students With Disabilities:

• Third Grade Language Arts: 21% proficient; 79% not proficient.

• Third Grade Math: 24% proficient; 76% not proficient.

• Eighth Grade Language Arts: 11% proficient; 89% not proficient.

• Eighth Grade Math: 7% proficient; 93% not proficient.

• English Language Learners:

• Third Grade Language Arts: 32% proficient; 68% not proficient.

• Third Grade Math: 40% proficient; 60% not proficient.

• Eighth Grade Language Arts: 5% proficient; 95% not proficient.

• Eighth Grade Math: 5% proficient; 95% not proficient.
199 A.3d 116

Just one in ten eighth graders with a disability was proficient in language arts. Less than one in ten was proficient in math. Just one in twenty eighth graders learning English as a second language was proficient in language arts, with the same holding true for math.

For the 2016–17 school year, students in the eleventh and twelfth grades achieved the following results:

• Low-Income Students:

• Reading: 34% met State standards; 66% did not.

• Essay Writing: 32% met State standards; 68% did not.

• Math: 12% met State standards; 88% did not.

• Students With Disabilities:

• Reading: 7% met State standards; 93% did not.

• Essay Writing: 10% met State standards; 90% did not.

• Math: 5% met State standards; 95% did not.

• English Language Learners

• Reading: 6% met State standards; 94% did not.

• Essay Writing: 7% met State standards; 93% did not.

• Math: 5% met State standards; 95% did not.

For low-income students, just one in ten demonstrated grade-level proficiency in math. For students with disabilities, less than one in ten demonstrated grade-level proficiency in reading, just one in ten demonstrated grade-level proficiency in essay writing, and one in twenty demonstrated grade-level proficiency in math. For English language learners, less than one in ten demonstrated grade-level proficiency in any area. Just one in twenty demonstrated grade-level proficiency in math.

To reiterate, the complaint does not cite assessments that measured Delaware's Disadvantaged Students against an external set of standards that someone else imposed. The complaint cites the criteria for grade-level proficiency that the Delaware Department of Education chose for itself.

In addition to citing these educational outputs, the complaint cites educational inputs. Key indicators of educational quality include levels of spending, teacher effectiveness, class size, and the availability of support services.

The complaint alleges that Delaware fails to provide adequate funding for Disadvantaged Students. 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.3 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

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educating students who are learning English as a second language.

The complaint further alleges that Delaware's schools fail to provide Disadvantaged Students with the classroom environments and educational services that they need to succeed. The complaint alleges that schools can address the needs of Disadvantaged Students through smaller class sizes, appropriate specialists, dual-language teachers, adequate counseling, and other efforts designed to reach and engage with student families. The complaint alleges that in Delaware, schools with more Disadvantaged Students have larger classes, fewer specialists, fewer counselors, and insufficient dual-language teachers. 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...

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2 practice notes
  • In re Del. Pub. Sch. Litig., C.A. No. 2018-0029-JTL
    • United States
    • Court of Chancery of Delaware
    • May 8, 2020
    ...officials moved to dismiss the complaint, and the court denied the motion. See Delawareans for Educ. Opportunity v. Carney (DEO II ), 199 A.3d 109 (Del. Ch. 2018).With the claims against the state officials and the county officials both moving beyond the pleading stage, the court bifurcated......
  • GLIMPSES OF REPRESENTATION-REINFORCEMENT IN STATE COURTS.
    • United States
    • Constitutional Commentary Vol. 36 Nbr. 2, September 2021
    • September 22, 2021
    ...AFFLUENCE AND INFLUENCE: ECONOMIC INEQUALITY AND POLITICAL POWER IN AMERICA (2012). (60.) Delawareans for Educ. Opportunity v. Carney, 199 A.3d 109, 119 (2018) (citing footnote (61.) Rose v. Council for Better Educ, Inc., 790 S.W.2d 186, 190 (Ky. 1989). (62.) McCleary v. State, 269 P. 3d 22......
1 cases
  • In re Del. Pub. Sch. Litig., C.A. No. 2018-0029-JTL
    • United States
    • Court of Chancery of Delaware
    • May 8, 2020
    ...officials moved to dismiss the complaint, and the court denied the motion. See Delawareans for Educ. Opportunity v. Carney (DEO II ), 199 A.3d 109 (Del. Ch. 2018).With the claims against the state officials and the county officials both moving beyond the pleading stage, the court bifurcated......
1 books & journal articles
  • GLIMPSES OF REPRESENTATION-REINFORCEMENT IN STATE COURTS.
    • United States
    • Constitutional Commentary Vol. 36 Nbr. 2, September 2021
    • September 22, 2021
    ...AFFLUENCE AND INFLUENCE: ECONOMIC INEQUALITY AND POLITICAL POWER IN AMERICA (2012). (60.) Delawareans for Educ. Opportunity v. Carney, 199 A.3d 109, 119 (2018) (citing footnote (61.) Rose v. Council for Better Educ, Inc., 790 S.W.2d 186, 190 (Ky. 1989). (62.) McCleary v. State, 269 P. 3d 22......

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