Civil rights groups sue Delaware over education funding for low-income, disadvantaged students

Two civil rights groups on Tuesday filed a lawsuit against the state of Delaware over how it funds education, claiming the system provides more support for children who are well off than it provides for children living in poverty. 

The American Civil Liberties Union of Delaware said the state's education system is not providing an adequate education to all students. The suit, filed in Chancery Court, is brought on behalf of Delawareans for Educational Opportunity and the Delaware NAACP.

"For too long children from low-income families, students whose first language is not English, and children with disabilities have been left behind," said Kathleen MacRae, the executive director of the ACLU of Delaware. 

“Every child deserves a chance to succeed. All students have a right to an education that prepares them adequately for college and the world of work."

Jea Street, president of the Delawareans for Educational Opportunity and a New Castle County councilman, said only by investing in education can Delaware lower its incarceration and crime rates, creating a brighter future for its children. 

"I believe in my heart that so long as we continue to miseducate our children, our crime rate, our violent crime rate, will continue to rise," he said. 

The Delaware Department of Education issued the following statement about the suit: "The Delaware Department of Education has not seen any complaint from these groups and will respond to any litigation against it in court. It is the goal of the Department to assist Delaware's schools in preparing every student to succeed in college or career and life."

Jonathan Starkey, spokesman for Gov. John Carney, said his office was reviewing the complaint. 

"As Governor Carney has said since the day he took office, he believes that all Delaware children deserve a quality education," Starkey said. "He is committed to investing in Delaware's schools and providing additional support and resources for schools serving low-income children, English language learners and students with special needs. He will talk more about his commitment to public education in his State of the State Address this week and in his budget presentation later this month."

According to the lawsuit, the state is failing students from low-income families, students with disabilities and students who are learning English. Test scores for disadvantaged students are far below state standards set by the Delaware Department of Education in its new plan, the Every Student Succeeds Act, or ESSA. 

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One of the most glaring examples is Bayard Middle School in Wilmington, where only 3 percent of students are proficient in math and a mere 8 percent are proficient in English. More than 75 percent of the school's students are considered low-income and almost 9 percent are English language learners. About a quarter of the school's students are in special education.

Students at Bayard are almost entirely African-American and Hispanic/Latino.

State testing data shows 64 percent of low-income students, 85 percent of English language learners and 86 percent of students with disabilities did not meet the state standards in grades three through eight for English language arts, the lawsuit said. 

Seventy-four percent of low-income students, 81 percent of English learners and 89 percent of students with disabilities were below the state’s math standards in those grades, the lawsuit added. 

About half of Delaware's third-graders struggle to read. 

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The suit claims the state has long recognized that disadvantaged students are performing poorly in comparison to their peers, and the problem has been detailed in state-commissioned task force reports issued in 2001, 2008 and 2015.

Those reports lay out educational standards and interventions necessary to support achievement, including smaller class sizes; expanded school time; highly qualified, specially trained teachers; a focus on early literacy; current technology; effective family engagement; and partnerships with health, family welfare and specialized education service providers.

Yet, the lawsuit says many schools in Delaware are not provided with enough resources to follow these recommendations and recent spending cuts have made them even further out of reach.

“Despite the best efforts of teachers, families and school staff, the current education system fails too many Delaware children," said ACLU-DE legal director Ryan Tack-Hooper in a statement. "The state often provides more support to children who are well off than it provides to children living in poverty. The state must meet its constitutional obligation to adequately educate all students." 

There are also fewer resources available to schools because property values have not been reassessed for more than 30 years, the lawsuit said. The result is that the underlying school tax base has remained flat for decades while the cost of running schools has risen substantially due to inflation and increased enrollment, the lawsuit said. 

One proposed solution has been to institute a needs-based funding formula, which gives a bigger piece of the pie to disadvantaged students by weighting them more highly. It's something that has been argued for by the Wilmington Education Improvement Commission, a state advisory committee established by former Gov. Jack Markell in 2015 to come up with ideas to improve education in the city. 

But Gov. John Carney, listed as a defendant in the lawsuit, has said he is not in favor of needs-based funding, in part because it gives extra money to school districts serving at-risk kids without holding them accountable for how they use it. He has also said there is neither the financial nor political support for such a measure. 

Carney is working with the Christina School District to improve educational outcomes in Wilmington, where Bayard is located, and has proposed giving the Christina School District $1.5 million (to increase by 2 percent every year) for new initiatives there, plus additional money for a dual-generation center. 

Elizabeth Lockman, a Wilmington parent, vice chair of WEIC, and a member of Delawareans for Educational Opportunity, said the lawsuit was not an indictment of Carney's plan and that those dollars could be beneficial. 

"But how much more meaningful and exciting would it be to fix the funding system and the way those resources flow?" she said, adding that it's almost unfair to use Bayard Middle School as an example because there are low-performing, low-income schools throughout the state and changing the funding formula could help all of them. 

"This is not a brand new idea," she said. "The inequities have been very clear." 

The lawsuit said 46 other states provide additional financial support for English language learners. There are 35 states that provide additional financial support for low-income children. 

"From 1990 to 2011, 26 states substantially increased funding for low-income students and high poverty schools to ensure meaningful educational opportunity for all — the majority as a result of court orders," MacCrae said, quoting the lawsuit. "As a result, we now have two decades of robust empirical evidence about whether and how school funding affects student achievement. It demonstrates that adequate funding leads to increased achievement, even among students who face significant barriers to achievement because of their socioeconomic circumstances."

Paul Herdman, president and CEO of the Rodel Foundation, said his organization has been studying the needs-based funding issue and has found that lawsuits often serve as an important catalyst for fundamental shifts in education funding. 

"We've written for over a decade that this current funding system has to change," he said. "And candidly, I don't know of any state that has come to a different funding system on their own, without legal action. 

"My hope is that we can use this as an opportunity to step back and say we've had this funding system for 70-plus years, let's not just band-aid what we've got," he said. "There are very few things that were built 80 years ago that don't need to be redesigned a bit. It's not that it's a flawed system inherently. It's just, in my view, served its purpose and needs to be rethought." 

Tack-Hooper, with the ACLU, said the lawsuit does not ask the court to impose a specific funding formula or needs-based funding but does ask that it finds the current funding system unconstitutional and in need of change. 

While the state does not determine the amount of money spent at each school on a per-student basis, the lawsuit says "an analysis of teacher salary data at every school shows that, in at least seven school districts, the per-student expenditure at a school decreases as the percentage of low-income students in the student body of a school increases."

The seven districts are Appoquinimink, Capital, Caesar Rodney, Christina, Indian River, Milford and Red Clay. 

There are also disparities from district to district. For example, in 2013-2014, Delaware allocated $1,694 per pupil less to Woodbridge School District than to Brandywine School District, even though Brandywine’s per-student wealth (property value divided by the number of school children) is more than one and one-half times that of Woodbridge.

Similarly, the state spent $450 per pupil less in Caesar Rodney School District than it did in Appoquinimink School District, although Appoquinimink’s per-student wealth exceeds Caesar Rodney’s by approximately $100,000.

The lawsuit also mentions racial discrimination and outlines the history of desegregation in Delaware. It contends that the Neighborhood Schools Act passed in 2000 and the Charter School Act has led to re-segregation in some places. 

For example, in the 2016-2017 school year, Red Clay's Warner and Shortlidge Elementary schools were 2.6 percent and 3.3 percent white, respectively, while the district in which they are located is 43.6 percent white.

By contrast, Heritage Elementary School, in the same district but outside the city of Wilmington, was 70 percent white. The highest-performing charter school in the area, the Charter School of Wilmington, was 6.3 percent black.

The percentage of black students enrolled in predominantly non-white schools in 2010 was ten times higher than 1989.

Linwood Jackson, president of the Delaware NAACP, said the fight for educational opportunity is not new to his organization. He said Louis Redding, Delaware's first black lawyer, did not join the legal team in Brown v. Board of Education to create a system where African-American and low-income kids were relegated to rundown school buildings with inadequate resources, however.

"It would have been unthinkable to him," Jackson said. 

Delaware NAACP is dedicated to ensuring that all students have an equal opportunity to obtain a high-quality public school education. Delawareans for Educational Opportunity is an association of concerned parents and community leaders that includes parents of low-income students, students with disabilities and English language learners.

The complaint and other information is available at www.ACLU-DE.org and www.DECLASI.org.

Contact Jessica Bies at (302) 324-2881 or jbies@delawareonline.com. Follow her on Twitter @jessicajbies.

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