ACLU sues State over education funding inequality

IRSD sees problems

Date Published: 
Jan. 25, 2018

The NAACP of Delaware and Delawareans for Educational Opportunity recently filed a lawsuit alleging that the State has not allocated education resources fairly, so disadvantaged students aren’t receiving the services they need.

Essentially, the Delaware Constitution promises a “general and efficient system of free public schools,” which suggests that all children will receive adequate education. But an outdated funding system can mean that schools don’t get additional resources for disadvantaged students, including low-income students, minorities, English language learners and students with disabilities.

The suit was filed Tuesday, Jan. 16, in the Delaware Court of Chancery.

The six defendants in the case are Delaware’s governor, treasurer, Secretary of education and the finance directors responsible for collecting school taxes in each county.

“This case is about making sure that every kid in Delaware has a fair shot at a good education,” said Ryan Tack-Hooper, ACLU—DE legal director.

“Every child, regardless of skin color or how much money their parents make, deserves enough attention and support that, if they work hard enough, they will thrive [and] survive in this world today,” said C. Linwood Jackson, president of the Delaware NAACP.

Delaware is in the minority in how it provides special funding, since 35 states provide for funding for low-income students and 46 for ELL students.

Ultimately, “Delaware’s system for funding schools is unconstitutional because it places an unreasonably heavy burden on taxpayers residing in school districts with low property values to provide sufficient resources to children in those districts,” the suit alleges.

“As a result of defects in its system of education funding and governance, Delaware fails to provide … ‘disadvantaged students’ with a meaningful opportunity to obtain an adequate education, one that will enable them to participate as active citizens in a democracy, to be employed in a modern economy, and to enjoy the benefits of our country’s social and cultural life.”

Local schools

have felt the pain

The ELL issue is definitely a local concern. Superintendent Mark Steele said the Indian River School District has already made similar arguments to the ones in the lawsuit.

“We have, really, the largest concentration of Hispanic population of any … district. We have to hire specialized teachers. We get not one penny from the state from ELL,” Steele said.

He said legislators will pass mandates that sound great on paper, such as requiring that a teacher team evaluate each ELL student. But school districts aren’t given extra funding to make it happen. They have to cut other parts of their budget to find funding to meet the mandates.

And ELL students arrive knowing Spanish, Creole-French, Chinese and other languages.

This year, 19.4 percent of IRSD’s 10,619 students are ELL; 32.6 percent are Hispanic; 36 percent are low-income; and 16.7 percent have disabilities.

But Indian River School District was only mentioned in the suit by name once, when the lawsuit argued that low-income students in some school districts are getting less money toward their education than their wealthier counterparts in the same district.

“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 districts where Division I funds are spent at a higher rate on wealthier students than on low-income students are the Appoquinimink, Capital, Caesar Rodney, Christina, Indian River, Milford and Red Clay Consolidated school districts.”

The phenomenon also carried across entire school districts.

“For example, in 2013-2014, Delaware allocated $1,694 per pupil less Division I funding 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.”

Property taxes

slow the system

County taxes aren’t keeping up with school expenses — an issue the lawsuit picks apart. Education funding comes from the federal, state and local taxes — that third set of taxes being collected by each county.

But it’s been at least 30 years since any properties were reassessed. In Sussex County, two generations of students have graduated from high school since properties were last assessed.

“Delaware law … requires that each property be assessed for tax purposes at its ‘true value in money.’ Nevertheless, property assessments are based on the value of property in 1987 (Kent County), 1983 (New Castle County) and 1974 (Sussex County),” the lawsuit notes.

Assessed values are different from real estate values, which have raced into the future with the modern housing market.

If the State or counties won’t reassess, then the districts have to keep requesting a property tax rate increase, to manage inflation and other rising costs while the assessments remain outdated. “This means that the school districts must regularly seek approval of tax rate increases from local voters — a costly endeavor that often fails,” the lawsuit states.

Even attempts to fix the system have been flawed, according to the suit. In New Castle County, the State Board of Education created a special school tax district for four districts, but the money was allocated by state statute, instead of the local residents or boards of education.

“The State’s decision to transfer tax receipts is not based on relative student need. To the contrary, Christina, which has the highest percentage of low-income students … is required to transfer tax revenue out, and Brandywine, which has the lowest percentage of low-income students, receives tax revenue collected elsewhere.”

The plaintiffs in the lawsuit aren’t the only ones who have noticed the problem. Last year, in deciding a court case related to a referendum in the Red Clay Consolidated School District, the Delaware Court of Chancery took time to criticize Delaware’s outdated local funding mechanism.


The ACLU went deeper into Delaware’s history of segregation to explain how Delaware policies continue to push disadvantaged students —especially students of color — into lower-funded schools, particularly in Wilmington. Even when integration was mandated on paper, which Delaware was also slow to enact, Wilmington schools remained essentially segregated because of low-income housing policies.

After the courts blasted that fact in 1975, the state government successfully worked to improve integration. But, in “1995, the federal court found that New Castle County had among the most integrated schools in the country [and] removed supervision over the operations of the New Castle County districts.”

According to the suit, Delaware then “abandoned the enrollment and transportation policies that led to racial integration,” allowed new charter school admissions rules and created four New Castle school districts based on geography, which the lawsuit said dilutes the urgency of low-income or racial concerns.

“The effect of these policies is to place the most disadvantaged students in racially segregated, high-poverty schools, which are the same schools least served by the education policies of the state,” the lawsuit alleges.

Measuring the goods

If Delaware measures knowledge and skills through standardized testing, then “the assessment results show how badly Delaware has failed its disadvantaged students,” the lawsuit states, citing scores from 2016-2017.

“Recent data shows that between 64 and 89 percent of students who fall into these disadvantaged categories do not meet state standards in grades three through eight for either English language arts or math. The results for high school students are even worse,” according to the ACLU.

Some test results even dip into the single digits.

The ACLU argues that Delaware is providing more resources to wealthier students and failing to provide disadvantaged students with the support they need to succeed academically.

Low-income students can definitely thrive in school, but they’re more likely to need more support than their peers.

“The difficulties of living in poverty often reduce the knowledge base they acquire at home. Moreover, unlike their wealthier peers, they may not have had the benefits of pre-school programs,” but are more likely to be dealing with “lack of safe and affordable housing; little access to a healthy diet; violence and instability at home and in their neighborhoods; high unemployment rates; pervasive stereotypes about children of color who live in poverty; magnification of the effects of institutionalized racism and classism; and emotional challenges and trauma.”

They might have trouble focusing in school or need more counseling or teaching support.

Skilled, longtime teachers are more likely to transfer to high-performing schools, leaving junior teachers at lower-performing schools. Again, that means more state salary money is flowing through privileged schools.

High-poverty schools are more likely to suffer from having fewer reading specialists, counselors, pathologists, special-education teachers, technology and parent volunteers. A number of schools have more than 30 students per class, so there may not be enough textbooks for everyone. All of that adds up to children not getting the educational support they need.

“It’s not a problem of teachers not doing their job. It’s a problem of teachers not having the resources they need,” said Maria Beauchamp, a parent activist.

Meanwhile, schools with more money for gifted-and-talented programs could send more students to more prestigious high schools or colleges, while underprivileged schools are dedicating excess money to social services support.

Additionally, the youngest children might not be tested for disabilities as early as they could be, since Delaware only provides special-education funding for grades K to 3 when students of those ages are specified with “intensive” or “complex” disabilities, but not for the average student requiring an Individualized Education Program (IEP).

Government knows

the problems

The problems don’t come as any surprise to those in state goverment. The General Assembly has assigned various committees to study Delaware’s educational problems, which often yield the same complaints found in the suit.

The State did not implement the recommended changes from the 2000, 2008 and 2015 reports and instead cut Division II by $26 million in the 2018-fiscal-year budget. (Now, school administrators are keeping a close eye to ensure that funding is restored in future budgets, as promised, said IRSD Superintendent Mark Steele.)

In 2015, the General Assembly specifically asked for advice on the kind of flexible funding, based on student demographics, that the lawsuit now mentions. Over the years, various commissions were assigned to study Delaware’s educational problems, including with Senate Joint Resolution 4 in 2015.

“The State will not be able to build a world-class education system for its children without modernizing the 70-year-old education funding system,” stated the text that instructed the Education Funding Improvement Commission to review and make recommendations to modernize Delaware’s public education funding system.

“The current education funding system was developed 3/4 of a century ago and does not reflect the needs of today’s children, teachers, schools, and districts; and … Delaware is 1 of only 4 states in the nation that does not provide additional funding for English language learners, and 1 of only 15 states that does not provide additional funding for students in poverty.”

Lately, Gov. John Carney has worked to address some of those issues. In December, he unveiled English Learner Strategic Plan to provide more supports for ELL students. Last summer, he also proposed a grant program for schools to serve disadvantaged students (although Steele recently said he’d rather schools be given their money back in the budget, instead of competing for it in grants).

Righting the wrongs

The lawsuit’s goal is to persuade the court to compel the State to right those wrongs. “Plaintiffs are entitled to an order that will require that Delaware cease its violation and meet its constitutional obligations,” the lawsuit states.

They’ve asked the court to demand and oversee implementation of “a general and efficient system of free public schools that provides all disadvantaged students with a reasonable opportunity to be equipped for their roles as citizens, full participants in our society and competitors in the labor market.”

The plaintiffs are represented by American Civil Liberties Union (ACLU) and the Community Legal Aid Society. The 55-page complaint and more details are online at and