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Delawareans for Educational Opportunity v. Carney

Court of Chancery of Delaware

November 27, 2018

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.

          Date Submitted: August 29, 2018

          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; Counsel for Amicus Curiae The Education Law Center.

          OPINION

          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 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:
o Language Arts: 35.60% met State standards; 64.40% did not.
o Math: 25.42% met State standards; 74.58% did not.
• Students With Disabilities:
o Language Arts: 13.48% met State standards; 86.52% did not.
o Math: 10.36% met State standards; 89.64% did not.
• English Language Learners:
o Language Arts: 15.14% met State standards; 84.86% did not.
o 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.

         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 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 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.

         Notably, the plaintiffs do not blame the principals, teachers, and other professionals who work with Disadvantaged Students. The plaintiffs instead challenge a system that has charged educators with helping Disadvantaged Students achieve grade-level proficiency, yet has failed to provide the financial and educational resources that would enable them to perform that task. The plaintiffs assert that the "system of public schools" is failing Disadvantaged Students, not the hardworking and well-intentioned professionals who do their best within the constraints that the system imposes.

         As relief, the plaintiffs ask the court to issue the following declaratory judgments:

         All school-age children residing in Delaware have a fundamental right to a free public school education.

• The Education Clause requires that the State provide funding for public schools in a manner that creates a meaningful opportunity for all students to obtain an adequate education.
• Delaware's existing system of financing its public schools violates the Education Clause because it fails to provide the resources that are necessary to educate Disadvantaged Students.
• Delaware's existing system of public schools fails to provide an education for Disadvantaged Students that complies with the Education Clause.

         In addition to these declarations, the plaintiffs seek equitable relief compelling the State to comply with its constitutional obligations. This relief would take the form of particularized injunctions, either mandatory or prohibitive, that would be framed based on the facts proven at trial.

         As defendants, the plaintiffs have named the three State officials primarily responsible for overseeing, administering, and enforcing the education laws, including the system for funding Delaware's public schools. Those officials are the Governor, the Secretary of Education, and the State Treasurer. The plaintiffs have sued these individuals only in their official capacities. No one accuses them of creating the problem. Everyone agrees that they are sincerely concerned about the quality of public education in this State.

         The State officials have moved to dismiss the complaint. In a striking concession, they do not argue the complaint's allegations fail to plead that Delaware's public schools are failing to educate Disadvantaged Students. They agree that "not all of Delaware's public schools are serving Delaware students the way they need to."[4] Instead, they take the bold position that the Education Clause requires that the State provide students with a meaningful education. They say that the Education Clause only requires that the system be "general," in the sense of generally encompassing all of Delaware's students, and "efficient," in the sense of using centralization to reduce administrative costs and yield economic efficiencies.

         Under this interpretation, as long as the State established a state-wide program and labeled it "a system of public schools," then the State would satisfy the Education Clause. 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. Because the State does not think the Education Clause says anything about the quality of education, even this dystopian hypothetical would satisfy their version of the constitutional standard. Indeed, under a strict interpretation of the State's argument, this nightmare scenario would be constitutionally preferable to the current system, because it would be equally general (it would cover all students) and much more efficient (it would generate additional cost savings).

         In my view, the plain language of the Education Clause mandates that the State establish a system of free public schools, and it uses the term "schools" in accordance with its ordinary and commonly understood meaning-as a place where students obtain an education. The adjectives "general and efficient" relate to and function in service of this noun. Consequently, when the Delaware Constitution mandates that the State create and maintain "a general and efficient system of free public schools," it contemplates a system that educates students and produces educated citizens. The system of public schools must actually provide schooling.

         This reading finds support in the legislative history of the Education Clause. During the decades leading up to the Constitutional Convention of 1897, leaders in Delaware expressed concern about the quality of its public schools. They criticized Delaware's patchwork quilt of numerous small school districts, and they bemoaned the lack of uniformity that resulted in educational standards that varied widely across the State. These concerns led the delegates to call for a "a general and efficient system of free public schools," but they did not admire these attributes for their own sake. The delegates sought better educational outcomes, and they wanted a general and efficient system that produced educated citizens. The legislative history also shows that the delegates expected the Education Clause to be enforced in court.

         Delaware was not the only state that revised its constitution during the latter half of the nineteenth century. Sixteen other states adopted similar education clauses in this era. The highest courts in thirteen of those states have considered whether their comparable education clauses have a qualitative dimension. All said they do.

         The Education Clause therefore has substantive content and mandates that Delaware establish and maintain a school system that educates the students it serves. The State accepts that if this is the case, then the plaintiffs have pled a constitutional violation. In any event, the complaint's allegations support a reasonable inference that the State is violating the Education Clause by failing to provide a general and efficient system of public schools that educates Disadvantaged Students. The complaint's allegations support a reasonable inference that the State has determined what a meaningful education should look like. The complaint's allegations also support a reasonable inference that the State has demanded that public schools educate Disadvantaged Students to that standard. But according to the complaint, a critical component is missing: The State has not provided schools with the financial and educational inputs that they need to fulfill that charge. As a result, Disadvantaged Students achieve educational outcomes that fall short of grade-level proficiency.

         More broadly, the complaint's allegations support a pleading-stage inference that in critical respects, Delaware's system of public schools favors more privileged students at the expense of Disadvantaged Students. Seventy years ago, citizens could perhaps debate what might constitute sufficiently comparable schools under the fundamentally unsound and fully discredited notion of "separate but equal," yet this court ably determined that Delaware's schools for African-American children were not equal to Delaware's schools for white children.[5] The complaint's allegations regarding how the State allocates financial and educational resources, coupled with its allegations regarding how Disadvantaged Students have become re-segregated by race and class, support an inference that the current system has deep structural flaws. These flaws are so profound as to support a claim that the State is failing to maintain "a general and efficient system of free public schools" that serves Disadvantaged Students. That is particularly true where it appears at the pleading stage that the three categories of Disadvantaged Students constitute "discrete and insular minorities," whose status "tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."[6]

         The State's other principal ground for dismissal maintains that even if the Education Clause requires that Disadvantaged Students receive a meaningful education, and even if Delaware's public schools fall short of the mark, the constitutional obligation is not one the judiciary can enforce. The shortcomings of the public schools, the State says, present a non-justiciable political question that the courts cannot address.

         To support this argument, the State contends that because the Education Clause commands that "the General Assembly establish and maintain a general and efficient system of free public schools," the judiciary has no role. In my view, the Education Clause directs the General Assembly to carry out a task. It does not say that the General Assembly gets to judge for itself whether it has fulfilled that task. Under our system of checks and balances, the judiciary performs the latter function through the mechanism of judicial review. "[O]nly the Delaware judiciary has the power, 'province and duty . . . to say what the law is' . . . ."[7]

         As further support for their political-question argument, the State maintains that it is impossible for a court to determine what constitutes a meaningful education. Fortunately, the plaintiffs are not asking this court to determine in the abstract what a meaningful education should look like. They make a more basic and straightforward claim: When educating Disadvantaged Students, Delaware's public schools must meet the standards and criteria that the Delaware Department of Education has chosen for itself. When judged by this standard, the public school system enjoys an advantage that few of its students ever receive: the ability to decide what will be on the test. A court can readily apply these established standards to the facts of the case. A court can also determine whether the current system discriminates against Disadvantaged Students rather than assisting them.

         Consistent with the vast majority of courts that have addressed similar questions, I believe this case is justiciable. The judiciary must of course afford full respect to the General Assembly's power to declare public policy in this State and to determine what is in the public interest. The judiciary must also recognize that the General Assembly has greater institutional competence in many areas and represents the preferred forum for addressing difficult social issues. And the judiciary must be sensitive to the complexity inherent in creating and maintaining a system of public schools, including the many dimensions and interests involved. Nevertheless, the responsibility for determining whether a particular statutory regime complies with or violates the Education Clause, either facially or as applied, lies with the judicial branch.

         Because the plaintiffs have stated justiciable claims, the motion to dismiss is denied.

         I. FACTUAL BACKGROUND

         By choosing to move to dismiss the plaintiffs' complaint, the defendants have triggered the application of a plaintiff-friendly standard. At this phase of a case, the facts are drawn from the plaintiffs' pleading. All well-pled allegations are assumed to be true, and the plaintiffs receive the benefit of all reasonable inferences.

         Because this opinion applies the standard that governs when a defendant has moved to dismiss a complaint, the factual recitations in this opinion do not constitute findings of fact. It may turn out, after trial, that the complaint included allegations that the plaintiffs believe and which have some evidentiary support, but which the plaintiffs cannot prove by a preponderance of the evidence. For present purposes, however, the plaintiffs well-pled allegations must be accepted as true.[8]

         A. Delaware's System of Public School

         Delaware's system of public schools serves approximately 138, 000 students.[9] The state has nineteen school districts with 225 traditional public schools.[10] Delaware also has six vocational schools, twenty-four public charter schools, and three magnet schools.[11]

         Title 14 of the Delaware Code establishes the legal structure for Delaware's system of public schools. Through this statute, the General Assembly vested "[t]he general administration of the educational interests of the State . . . in a Department of Education of the Executive Branch."[12] By statute, the Department of Education "shall exercise general control and supervision over the public schools of the State."[13] The Department of Education is required by statute to "adopt rules and regulations, consistent with the law of the State, for the maintenance, administration and supervision throughout the State of a general and efficient system of free public schools."[14] The Department of Education is also required by statute to establish "rules and regulations . . . governing the statewide assessment of student achievement and the assessment of the educational attainments of the Delaware public school system."[15]

         The Department of Education has carried out its charge by codifying uniform academic standards for every major learning subject area at every grade level.[16] The Department of Education also regulates the availability of school resources, personnel, and other aspects of instruction.[17]

         To assess the educational performance of Delaware's public schools, the Department of Education has adopted a standardized-testing regime known as the Delaware System of Student Assessment. The system is "designed to measure student achievement of state content standards," including grade-level standards and college readiness.[18] It encompasses (i) testing in language arts and mathematics using the Smarter Balanced Assessment in grades three through eight, (ii) testing uses the Delaware Comprehensive Assessments System in grades five, eight, and ten; and (iii) testing using the SAT in the eleventh and twelfth grades.[19] The State has established four levels of student performance: (i) proficient, (ii) superior, (iii) outstanding, and (iv) inadequate to demonstrate proficiency.[20]

         The assessment criteria describe what students must know and be able to do at a particular grade level. Academic promotion decisions are based on the student's assessment results.[21] To graduate, high school students must meet the State's testing requirements and complete the State's required coursework.[22]

         As part of the State-wide regime, the Department of Education issues an annual report, called an "Educational Profile," for each Delaware public school (including charter schools and vocational schools) and for the State as a whole.[23] The purpose of the Educational Profile is "[t]o monitor progress and trends towards the achievement of the State's educational goals, to provide parents and citizens with information they can use to make good choices for their children and to hold the public educational system accountable for the performance and cost-effective use of public funds."[24]

         Delaware's public schools receive funding from federal, state, and local sources. For Fiscal Year 2016, 60% came from State sources, 31% came from local sources, and 9% came from federal sources.[25]

         State funding falls into three buckets. Division I funding pays for administrators, teachers, and other personnel.[26] The State pays for these positions according to a salary schedule that provides more funding for more senior personnel.[27] Division II funding primarily pays for energy costs and materials and supplies, but can be used for any school purpose except transportation.[28] Division III funding is known as budget equalization funding and is allocated based on a formula designed to provide additional funds to less wealthy school districts.[29]

         The funds allocated to Division I dwarf the amounts allocated to Divisions II and III. In Fiscal Year 2018, Division I funds constituted 89% of the total for all three buckets. By contrast, 2.6% of State expenditures went to Division II and 8% to Division III. The State provides separate sources of funding for transportation and other specific programs.[30]

         Each year, the Delaware Department of Education allocates funding to school districts and individual schools based on their "units of pupils" on the last day of September. The number of students that comprise one unit varies with the type and grade of the students. For grades four through twelve, twenty "Regular Education" students make up a unit, as do 8.4 "Basic Special Education" students. For kindergarten through third grade, 16.2 students make up a unit, regardless of whether the students are Regular Education students or Basic Special Education students.[31]

         The number of units determines the number of staff that each school can hire. By law, at least 98% of the Division I funding associated with a school's units must be used at that school. The school district only has flexibility to reallocate the remaining 2%. A school district can determine how it will deploy the unit funding to hire personnel within each school, but the number of units is fixed. If a school district allocates a school's unit funding for particular staff positions, such as reading specialists or behavioral counselors, it has less unit funding available for teachers.[32]

         From 1978 until 1995, the four school districts in northern New Castle County operated under federal court oversight to achieve desegregation.[33] Shortly after the lifting of the desegregation order, the General Assembly enacted the Neighborhood Schools Act of 2000 to regulate the assignment of students to schools in these districts.[34] It requires that the covered school districts assign "every student within the district to the grade-appropriate school closest to the student's residence, without regard to any consideration other than geographic distance and the natural boundaries of neighborhoods," subject to an exception only "if a substantial hardship to a school or school district, student or a student's family exists."[35] The statute further provides that "no student shall be assigned to any school on the basis of race and school assignments shall be made without regard to the racial composition of the schools."[36]

         B. Delaware's Disadvantaged Students

         The complaint seeks relief on behalf of three categories of Disadvantaged Students: children from low-income families, children with disabilities, and children whose first language is not English. The complaint asserts that for these students, Delaware has failed to provide a public school system that delivers on the State's promise of educational opportunity.

         1. Low-Income Students

         Approximately one-third of the students attending Delaware's public schools meet the Delaware Department of Education's definition of "low income."[37] For the 2016-17 school year, Delaware identified 51, 319 students as children from low-income families, representing more than 37% of the overall student population.[38]

         a. The Challenges Facing Low-Income Students

         Compared to their wealthier peers, low-income students face many disadvantages. They typically start school behind other students in reading, writing, and mathematics.[39]They are also more likely than other students to face challenges due to environmental factors associated with their low-income status, such as:

• Lack of access to a healthy diet;
• Recurring medical issues;
• Lack of stable housing, and
• Violence at home and in their neighborhoods.

         Precisely because their families have low household incomes, these students face higher levels of financial stress. Broader challenges include pervasive stereotypes about children who live in poverty.[40]

         Any of these issues would be individually challenging. For low-income students, these issues often appear in combination. Without support, low-income students face a greater risk of developing emotional and behavioral problems, including deficits in their ability to self-regulate, to focus and pay attention, and to deal with frustration. These consequences interfere with their ability to learn.[41] Low-income students can overcome these challenges if they receive greater support from their schools. The complaint identifies measures that have been shown to help compensate for the challenges associated with low-income status, including:

• smaller class sizes;
• access to more skilled and experienced teachers;
• supplemental supports in counseling, including access to school psychologists, and social workers;
• additional reading and math instruction;
• wider availability of after-school programs;
• expanded school-to-work partnership programs; and
• mental health services and wellness centers.

         In short, low-income students benefit from targeted and concerted efforts to reach and engage both the children and their families in effective learning while at the same time connecting them with available services and supports.[42]

         b. The Challenges Of High-Need Schools

         In Delaware, low-income students often cluster in particular schools and school districts ("High-Need Schools").[43] On average, students in schools where more than 40% of the population consists of low-income students perform worse academically, read less, have lower attendance rates, and are more likely to have serious developmental delays and untreated health problems.[44] The complaint alleges that 93 of Delaware's public schools have student populations where more than 40% of the students qualify as low-income. In some of these schools, more than 80% of the students qualify.[45]

         Because they have more low-income students, and because low-income students need more educational services, High-Need Schools require more resources than other schools.[46] High-Need Schools also experience higher rates of teacher turnover. In Delaware, the rate of annual teacher turnover across all schools statewide is 15%. Yet the annual turnover rate at Bayard Middle School, a High-Need School, is approximately 30%, and in the 2015-16 school year, it was more than 60%.[47]

         Because they have more low-income students, and because low-income students face a range of challenges, High-Need Schools require additional resources to provide services for these students.[48] Providing professional treatment services within schools can help low-income students address behavioral issues and mitigate discipline problems. Without designated professionals, teachers must take time away from teaching to address disciplinary problems.[49] Likewise, providing wellness centers within schools can help address health issues. In Delaware, High-Need Schools frequently lack sufficient professionals, and elementary schools and middle schools rarely have wellness centers.[50]

c. The Intersection Between Poverty And Race

         Regrettably, Delaware's public school system has become racially re-segregated, and many High-Need Schools have vastly higher percentages of students of color than wealthier schools.[51] As a result, the challenges of poverty intersect with dimensions of race.[52]

         The complaint identifies salient examples of the re-segregation of Delaware's schools and its effect on High-Need Schools. Several examples involve the Red Clay Consolidated School District, which during the 2016-17 school year had a student population that was 43.6% white, 6.6% Asian, 20.5% African-American, and 26.5% Hispanic/Latino. Yet at Warner Elementary School, a High-Need School, the student population was 2.6% white, 0.7% Asian, 75.5% African-American, and 16.8% Hispanic/Latino. Over 93% of the students at this High-Need School were students of color. At Shortlidge Elementary School, another High-Need School, the student population was 3.3% white, less than 0.5% Asian, 76.7% African-American, and 15.9% Hispanic/Latino. Once again, over 93% of the student population comprised students of color. These figures contrasted sharply with the student population of Heritage Elementary School, a low-poverty school, which was 70% white, 2.6% Asian, 9.7% African-American, and 14.8% Hispanic/Latino. The Charter School of Wilmington, an exceptionally low-poverty school, was 57.5% white, 30.9% Asian, 6.3% African-American, and 4% Hispanic/Latino.[53]

         The complaint alleges that Disadvantaged Children in the City of Wilmington face additional challenges because they are split into four public school districts. In each district, they comprise a small minority of the students. To successfully organize and mobilize for change across the City, families must convince four separate school boards. Because their numbers are divided among four districts, families have difficulty gaining representation on the school boards and having their voices heard.[54]

         The complaint attributes the re-segregation of Delaware's public schools to the State's decision to abandon the enrollment and transportation policies that had previously resulted in highly integrated public schools, the adoption of the Neighborhood School's Act, and the authorization of a charter schools program that permits the use of admission criteria with a disparate impact on low-income students.[55] The complaint alleges that these policies deprive Disadvantaged Students of an adequate education.

         d. Delaware's Counterintuitive Approach To Providing Resources For Low-Income Students

         Given the incremental needs of low-income students relative to their wealthier peers, schools that predominantly serve low-income students logically should receive more resources than schools that do not. Because low-income students face additional educational challenges, it follows that low-income students should receive instruction from more experienced and effective teachers. At a minimum, low-income students should not receive instruction from less effective teachers than wealthier students.

         In Delaware, neither proposition is true. Unlike thirty-five other states, Delaware does not provide any additional funding for low-income students. The unit funding approach that Delaware uses does not take low-income status into account.

         Delaware also does not take steps to encourage experienced and effective teachers to work at High-Need Schools. Instead, the opposite is true: Low-income students are five times more likely than non-low-income students to be taught by a teacher that has been rated "ineffective."[56]

         Under the State salary scale, experienced teachers make more money than less experienced teachers. Largely as a result of the allocation of teachers, Delaware spends more money on students in wealthier schools than on students in High-Need Schools.[57] For many of Delaware's public schools, an inverse relationship exists between the number of low-income students in a school and the amount of funding that goes to the school: The more low-income students in a school, the less State funding the school receives.[58]

         A similarly counterintuitive relationship exists between the amount of resources that a school district receives from the State and the value of its tax base. The amount of local funding that a school district can raise depends in part on the value of the property in its tax base. A school district with a more valuable tax basis can more easily raise any given sum than a less wealthy peer district because the amount raised represents a smaller percentage of the wealthier district's tax base.

         To counter the effects of poverty, one might expect that Delaware would provide more funding to school districts with less valuable tax bases. To its credit, Delaware offers Division III funding to offset the financial advantage possessed by wealthier districts. But the effects of Division III funding are swamped by the far larger effect of the Division I funds that pay personnel costs. The Division III program also does not incorporate any factor that accounts for the greater needs of Disadvantaged Students.[59]

         As a result, under the existing system, Delaware provides more funding to districts with wealthier tax bases than it does to poorer districts. In 2013-14, for example, the tax basis in the Brandywine School District was 1.5 times more valuable per student than the tax base in the Woodbridge School District. Yet the State provided funding to the Brandywine School District that was equivalent to $1, 694 more per pupil than the funding it provided to the Woodbridge School District.[60] During the same year, the value of the tax base in the Appoquinimink School District exceeded the value of the tax base in the Caesar Rodney School District by more than $100, 000 per student, yet the State allocated funding to the Appoquinimink School District that was equivalent to $450 more per pupil than it provided to the Caesar Rodney School District.[61]

         Delaware's system of unit funding also penalizes High-Need Schools in other ways.[62] To serve the needs of low-income students, High-Need Schools need more personnel, including professionals with diverse qualifications. With limited exceptions, the "unit funding" approach treats all students as if they were the same. If a High-Need School wishes to hire reading specialists or counselors, it has less unit funding to pay for teachers and other personnel. To make the numbers work, High-Need Schools must find the money by cutting elsewhere.

         One option is to cut extracurricular activities, like clubs and sports, or eliminate special programs, such as gifted and talented education.[63] Schools also may forego a full time librarian or cut an art or music teacher.[64] These steps deprive low-income students of opportunities to build confidence, achieve success outside of the traditional classroom, and develop skills that could lead them out of poverty. The absence of extracurricular activities and special programs also impairs the ability of children attending High-Need Schools to obtain admission to selective schools like Conrad School of Science or Cab Calloway School of the Arts. Unlike children applying from wealthier schools, children from High-Need Schools cannot point to their participation and achievements in special programming.[65]

         Another option is to reduce the number of teachers in traditional subjects and allow class sizes to increase. In the High-Need Schools in the Christina School District and the Capital School District, many classes have more than thirty students. As of October 31, 2017, two of the three fifth-grade classes at Smith Elementary School had thirty-six students, and the third had thirty-two students. At Oberle Elementary School, each fifth grade class had thirty-three to thirty-five students, and each fourth-grade class had thirty-one to thirty-two students. At Kirk Middle School, the honors social studies class had forty students.[66]

         Particularly for low-income students, smaller class sizes-not larger ones-are linked to student success. Students in large classes suffer from reduced access to certified teachers. State law mandates that unless the Delaware Department of Education grants a waiver, there cannot be more than twenty-two students in a class in kindergarten through third grade.[67] To respond to the law and address the problems of large class sizes, High-Need Schools in the Christina School District have hired additional paraprofessionals in place of certified teachers.[68] Although the paraprofessionals doubtless aid in student learning and classroom function, the low-income students in these classes are not receiving the same degree of access to certified teachers that their wealthier and more privileged peers receive.

         Other practical problems resulting from large class sizes include the basic question of obtaining books. Science and math curriculum materials are sold in units of thirty. Unless a school purchases an extra set, there are not enough for every student in a class larger than thirty to have a book. Students have gone without books in Smith Elementary School, Skyline Middle School, Kirk Middle School, and Bayard Middle School.[69] Similar problems arise with inadequate access to other classroom resources, such as computers.[70]

         If school districts had greater flexibility in deploying funds, they could shift money within districts to support their High-Need Schools. State law effectively forecloses that option by requiring that 98% of the funding generated by a school's units be used at the school accounting for the units.[71]

         Another option is simply to refrain from hiring the needed specialists. At Seaford High School, a High-Need School, there is no reading specialist. According to the most recent state test results, more than 65% of the students at Seaford High School fail to meet the state proficiency standards for language arts.[72] The Caesar Rodney School District has elected not to hire additional counseling staff, resulting in the existing counselors being overwhelmed by demand. A similar situation exists in the Red Clay Consolidated School District at A.I. DuPont High School, where a child in need may have to wait a week for an appointment to see a counselor. Waiting times in the Christina School District also approach a week.[73] Smith Elementary School chose to forego hiring a computer teacher.[74] Linden Hill Elementary School cut its librarian, requiring a technology teacher to double part-time in that role. In the Christina School District, the high schools and middle schools do not have full-time librarians.[75]

         e. The Problematic Results Of Delaware's Approach To Low-Income Students

         Based on the Delaware Department of Education's own metrics, the complaint alleges that Delaware's public schools are failing to educate low-income students. In 2017, the Delaware Department of Education reported on the number of low-income students in grades three through eight who met state standards for proficiency in language arts and math based on the Smarter Balanced Assessment. Based on data from the 2015-16 school year, only 35.60% of low-income students met state standards in language arts; 64.40% did not. Only 25.42% of low-income students met state standards in math; 74.58% did not.[76]

         For the 2016-17 school year, based on the Smarter Balanced Assessment, the Delaware Department of Education reported the following results for low-income students in third and eighth grade:

• 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.[77]

         For the same year, based on performance on the SAT, the Delaware Department of Education reported the following results for low-income students in eleventh and twelfth grade:

• 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.[78]

         These results support a reasonable inference that Delaware is not providing a system of public schools that is fulfilling its educational purpose for low-income students.

         2. Students With Disabilities

         Approximately 15% of the students attending Delaware's public schools have at least one diagnosed disability. For the 2016-17 school year, this percentage translated into approximately 20, 000 children.[79]

          Students with disabilities can qualify for additional services under two federal statutes. The first is Section 504 of the Rehabilitation Act of 1973, [80] which is designed to protect the rights of individuals with disabilities to participate in programs and activities that receive federal financial assistance. The implementing regulations require that a school district provide a "free appropriate public education" to each qualified student with a disability within the school district's jurisdiction, regardless of the nature or severity of the disability. To receive services under Section 504, a student must have a formally diagnosed physical or mental impairment that substantially limits one or more major life activities.[81]Generally speaking, the purpose of providing services under Section 504 is to enable children with disabilities to learn alongside their peers and have access to the same educational opportunities that their classmates receive. School districts seek to achieve this goal by providing accommodations, such as seating at the front of the class, extended time on tests, access to textbooks in alternative formats (like audiobooks), and the ability to take short breaks. Students also may receive services such as speech-language therapy, occupational therapy, or help with study skills. In some cases, the 504 Plan may contemplate modifications in the educational program, such as shorter readings or fewer vocabulary words. Once a child has been identified as eligible for supports or services under Section 504, the school district must prepare a "504 Plan," which documents the accommodations or modifications that the child will receive.[82]

         The second statute is the Individuals with Disabilities Education Act ("IDEA"), which mandates that children with statutorily identified types of disabilities receive special education and related services that will enable them to receive "a free appropriate public education."[83] In general, the IDEA defines a "child with a disability" as a child

(i) with intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance (referred to in this chapter as "emotional disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) who, by reason thereof, needs special education and related services.[84]

         Within thirty days after determining that a child is eligible, the school district must prepare an Individualized Education Plan ("IEP") for the child. In contrast to a 504 Plan, which seeks to enable the child with a disability to learn in the same environment as peers, an IEP contemplates individualized special education and related services to meet the unique needs of the child.[85]

         a. Delaware's Counterintuitive Approach To Providing Services To Students With Disabilities

         Precisely because they have at least one disability, these students need more resources and support to succeed than students without disabilities. Schools who serve larger numbers of students with disabilities logically should reserve more resources than schools that do not.

         Yet as with low-income students, Delaware takes a counter-intuitive approach to providing resources to students with disabilities. Delaware does not allocate any additional resources to schools that serve students with disabilities in kindergarten through third grade. The only exception is if a student has an IEP that identifies their required educational program as "intensive" or "complex."[86] During the critical formative years, Delaware does not allocate any additional resources for schools serving students with 504 Plans or who have IEPs calling for individualized programs that are neither "intensive" nor "complex."

         Delaware's counterintuitive approach extends to staffing. Because children with disabilities require more services, including specialized staff, it would be logical for schools serving children with disabilities to receive additional staff, including appropriate specialists. Delaware, however, has not provided schools with enough specialists to support students with disabilities, and the problem is particularly acute for children in kindergarten through third grade.[87] For example, children attending Bayard Middle School and Marshall Elementary School in the Christina School District have faced delays in obtaining IEPs- and some never receive them-because the district lacks sufficient specialists to conduct the evaluations.[88] The specialists that the Christina School District does have carry overwhelming caseloads of more than 100 students. As a result, children who have IEPs often go without services because their specialists are too overworked.[89]

         Starved of the necessary resources, Delaware's schools have developed stopgap measures. Some schools hired general education teachers who also have the certification required to teach special education students. Although an improvement over no special education at all, these professionals must perform double duty filling both roles.[90] A more pernicious stopgap measure is the apparent refusal of Delaware's public schools to identify children who need IEPs. The percentage of students identified as needing IEPs has been rising across the country, while falling in Delaware.[91] There is no reason to believe that children in Delaware are different. Rather, Delaware's policies create powerful incentives for schools to resist identifying students who need services.

         b. The Problematic Results Of Delaware's Approach To Students With Disabilities

         Based on the Delaware Department of Education's own metrics, the complaint alleges that Delaware's public schools are failing to educate students with disabilities. For the 2015-16 school year, using the Smarter Balanced Assessment, the Delaware Department of Education identified the number of students with disabilities in grades three through eight who met its own standards for proficiency in language arts and math. In language arts, 13.48% of students with disabilities met State standards; 86.52% did not. In math, 10.36% of students with disabilities met State standards; 89.64% did not.[92]

         For 2016-17, based on the Smarter Balanced Assessment, the Delaware Department of Education reported on the number of students with disabilities in third and eighth grade who met Delaware's standards:

• 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.[93]

         For the same year, based on their performance on the SAT, the Delaware Department of Education reported on the number of students with disabilities in the eleventh and twelfth grades who met Delaware's standards:

• 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.[94]

         These results support a reasonable inference that Delaware is not providing a system of public schools that is fulfilling its educational purpose where students with disabilities are concerned.

         3. English Language Learners

         Approximately 7% of the students attending Delaware's public schools are learning English as a second language. For the 2016-17 school year, this percentage translated into approximately 9, 980 children.[95] Approximately two-thirds of Delaware's English language learners are in High-Need Schools.[96]

         The predominant language for teaching students in Delaware is English. Precisely because these students are learning English, they need more resources and support to succeed. Schools who serve larger numbers of students who are learning English as a second language logically should reserve more resources than schools that do not.

         Delaware does not provide any additional funding for educating students who are learning English as a second language. Delaware is one of only four states that does not allocate any additional funding to serve the unique needs of these students.[97]

         Many school districts do not have sufficient teachers who are trained to teach English as a second language ("ESL").[98] The accepted educational standard is that a student learning English as a second language should see an ESL teacher five days per week. At New Castle Elementary School in the Colonial School District, students see an ESL teacher only twice a week.[99]

         Based on the Delaware Department of Education's own metrics, the complaint alleges that Delaware's public schools are failing to educate students who are learning English as a second language. For the 2015-16 school year, using the Smarter Balanced Assessment, the Delaware Department of Education identified the number of ESL students in grades three through eight who met its own standard for proficiency. In language arts, only 15.14% met State standards; 84.86% did not. In math, only 18.10% met State standards; 81.90% did not.[100]

         For the 2016-17 school year, the Delaware Department of Education reported on the number of ESL students in third and eighth grade who met the State's standards for proficiency based on the Smarter Balanced Assessment:

• 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.[101]

         For the same year, the Delaware Department of Education reported on the number of students learning English as a second language in eleventh and twelfth grade who met the State's standards for proficiency based on their performance on the SAT:

• 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.[102]

         These results support a reasonable inference that Delaware is not providing a system of public schools that is fulfilling its educational purpose for ESL students.

         C. The State's Knowledge Of The Problems And Potential Solutions

         The complaint pleads that Delaware's officials have long known about the problems facing Disadvantaged Students and the potential solutions for addressing them. In April 2000, when the General Assembly adopted the Neighborhood Schools Act, it established a Wilmington Neighborhood Schools Committee to report on the challenges facing High-Need Schools and propose solutions. Although focused on schools in Wilmington, the committee's observations and recommendations applied equally to High-Need Schools elsewhere in Delaware.[103] The committee's report detailed how the State's educational funding formula was failing to serve the needs of low-income students. It also explained that High-Need Schools required additional funding from the State to be able to recruit and develop the professionals necessary to provide students with an adequate education.[104]

         In 2008, the General Assembly established the Wilmington Education Task Force and charged it with examining the state of public education in the City of Wilmington.[105]The report made a variety of recommendations for improving public education in the City of Wilmington. Among other things, the report observed that State funding formulas must be modified to reflect the diverse needs of students and to ensure that schools have adequate and equitable funding.[106] The report also discussed the need to recruit additional teachers for High-Need Schools and provide them with supplemental training.[107] Although focused on schools in Wilmington, the committee's observations and recommendations again applied to High-Need Schools across Delaware.[108]

         In 2014, Governor Jack Markell established the Wilmington Education Advisory Committee to provide input on educational issues. In April 2015, the committee issued a report that criticized Delaware's system for funding public schools and recommended changes.[109]

         In 2015, the Delaware General Assembly adopted a joint resolution that recognized the problems inherent in Delaware's system for funding public schools, as well as the problems faced by Disadvantaged Students.[110] In the resolution, the General Assembly made the following determinations:

• "[T]he 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 . . . ."[111]
• "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 . . . ."[112]
• "A modernized education funding system . . . would allow the State to target resources to students in poverty, students with disabilities, English language learners, and other high-needs children . . . ."[113]

         Having made these findings, the General Assembly established an Education Funding Improvement Commission to conduct a comprehensive review of Delaware's public education funding system and make recommendations to modernize and strengthen the system. The General Assembly instructed the commission to make recommendations regarding (i) "[transitioning to a student-focused funding system and weighting funding based on demographic characteristics of students," and (ii) "[introducing more flexibility for the state, districts, and schools to raise and spend resources more effectively for their students."[114] The complaint does not describe the resulting report, but publicly available information indicates that the commission conducted a substantial amount of work and made important recommendations.[115]

         The various reports exhibit a remarkable consensus about the key steps that the State needs to take to address the problems with Delaware's public schools and improve educational outcomes for Disadvantaged Students. Foremost among the recommendations is to restructure how Delaware funds its public schools.

         D. This Litigation

         On January 16, 2018, the plaintiffs filed this litigation. Both plaintiffs are institutions with a strong interest in Delaware's educational system and the challenges faced by Disadvantaged Students.

         Delawareans for Educational Opportunity is a nonprofit association of Delawareans who are concerned about whether the State is providing all children with an adequate education. They have joined together for the purpose of improving the Delaware education system so that all children have a meaningful opportunity to obtain an adequate education regardless of where they live, their economic circumstances, their health, their disability status, or their first language. The membership of Delawareans for Educational Opportunity includes the parents of Disadvantaged Students who are enrolled in Delaware's public schools.

         The NAACP Delaware State Conference of Branches ("NAACP-DE") is a non-partisan organization affiliated with the National Association for the Advancement of Colored People. NAACP-DE has seven branches located throughout the State. NAACP-DE's mission is to ensure the political, educational, social, and economic equality of rights of all persons and to eliminate race-based discrimination. NAACP-DE is dedicated to ensuring that all students in Delaware have an equal opportunity to obtain a high quality public education. Members of the NAACP-DE have worked since 1915 to remove barriers to the participation of minority students on a fully equal basis, and to ensure that all students receive the services they need to succeed. The members of NAACP-DE and its branches include parents of Disadvantaged Students who are enrolled in Delaware's public schools.

          The plaintiffs' complaint asserted three claims. In Counts I and II, the plaintiffs asserted that the State of Delaware is violating the Education Clause. Count III asserted that the counties are violating the statutory requirement that the assessed value of property reflect the property's "true value in money."[116] In an earlier decision, this court held that Count III stated a claim on which relief could be granted.[117] This decision addresses Counts I and II.

         As defendants for Counts I and II, the plaintiffs named John Carney, Susan Bunting, and Kenneth A. Simpler. As defendants for Count III, the plaintiffs named three county officials who are responsible for collecting taxes in their respective counties. Because this decision addresses Counts I and II, it does not discuss the county officials.

         Carney is Delaware's current Governor. The Governor is vested with "[t]he supreme executive powers of the State" and is charged with "tak[ing] care that the laws be faithfully executed."[118] Governor Carney has recognized the problems that Disadvantaged Students face. In 2017, he characterized powerfully and accurately the situation described in the complaint, observing that while Delaware's public schools have many dedicated teachers and principals, the levels of student proficiency at many schools fall "well short of what's acceptable."[119] He continued by observing that

right now, we're consigning far too many of our students to a life that no parent wants for their child. Every student we graduate who can't do basic math or who can't read or write, we're sending into the world knowing he or she doesn't have the tools to succeed. Doors are closing for these children before they even leave the third grade.
I believe, and I know you do too, that it would be immoral to let this situation continue this way.[120]

         At its core, the complaint asserts that the situation Governor Carney identified is not only a moral problem, but also a violation of the Education Clause.

         Bunting is Delaware's current Secretary of Education. The Secretary of Education is "[t]he administrator and head of the Department [of Education, ] appointed by the Governor, with the advice and consent of the Senate, and . . . serve[s] at the pleasure of the Governor."[121] The Department of Education is vested with "[t]he general administration of the educational interests of the State."[122]

         Simpler is Delaware's current State Treasurer. The State Treasurer is the "Trustee of the School Fund" and "make[s] disbursements authorized by law."[123] The State Treasurer also "serve[s] as treasurer of each reorganized school district in the State" as well as receiver and custodian of "all moneys to which the reorganized school districts are entitled by law and all those moneys collected for school purposes by the receiver of taxes and county treasurer . . . ."[124]

         To reiterate, no one has accused these individuals personally of engaging in any wrongdoing. No one suggests that they created the current situation. The plaintiffs instead challenge the educational system. Because the plaintiffs are focused on the system rather than the individuals, this decision does not refer to the officials by name. It refers to the "State" and speaks in terms of positions that "the State" has taken.

         The plaintiffs seek relief in the form of the judicial declarations described in the introduction. They also seek orders and decrees that would require the State to cease violating its constitutional obligations. The framing of specific relief, if warranted, will take place only after a trial, and only if the plaintiffs successfully prove a constitutional violation.

          II. LEGAL ANALYSIS

         In Brown v. Board of Education of Topeka, [125] the Supreme Court of the United States recognized the fundamental importance of education, both for individual success and as the foundation for civil society:

[E]ducation is perhaps the most important function of state and local governments. . . . It is required in the performance of our most basic public responsibilities . . . . It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.[126]

         "Providing public schools ranks at the very apex of the function of a State."[127] "Indeed, education is often viewed as a state-given fundamental right."[128]

         The Education Clause represents Delaware's promise to provide educational opportunity through "a general and efficient system of free public schools." In Counts I and II of their complaint, the plaintiffs contend that Delaware has failed to fulfill its promise to educate Disadvantaged Students.

          The State has moved to dismiss both counts, arguing that the legal theories fail to state a claim on which relief can be granted. When considering such a motion, "(i) all well-pleaded factual allegations are accepted as true; (ii) even vague allegations are well-pleaded if they give the opposing party notice of the claim, [and] (iii) the Court must draw all reasonable inferences in favor of the non-moving party."[129] When applying this standard, "dismissal is inappropriate unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof."[130]

         The State argues that it can meet this high bar for Count I because the Education Clause does not mandate any minimum level of education. As the State sees it, the Education Clause only requires something that can be called a "system of public schools." It does not matter for constitutional purposes whether the system does any educating. In the State's view, the complaint's allegations about Disadvantaged Students not receiving an education are beside the point and do not matter, because the Education Clause does not require that the State provide Disadvantaged Students with an education.

         The State attempts to obtain dismissal of Count II by misconstruing what the plaintiffs seek. The complaint asserts that because the Education Clause mandates that the State create and maintain a system of public schools, the State must provide enough financial resources to each school district to enable the district's schools to meet that constitutional mandate, including for Disadvantaged Students. The plaintiffs maintain that the State is not providing sufficient resources to educate Disadvantaged Students. Instead, counterintuitively, the State is discriminating against Disadvantaged Students by providing more funding to wealthier districts with fewer Disadvantaged Students and less funding to poorer districts with more Disadvantaged Students. The State has reinterpreted this claim as a demand for an equal amount of funding per student. The State correctly observes that the Education Clause does not require an equal amount of funding per student, but that is not what the plaintiffs are contending.

         The State finally claims that even if the complaint adequately pleads that Delaware's system of public schools is failing to meet its constitutional commitment to Disadvantaged Students, the claim is nevertheless non-justiciable. The State argues that the General Assembly must be permitted to decide for itself whether it has fulfilled its constitutional mandate.

         For the reasons that follow, this decision rejects these positions. Counts I and II state justiciable claims on which relief can be granted.

         A. Count I: The Claim That Delaware's System Of Public Schools Fails To Provide A Meaningful Education To Disadvantaged Students

         In Count I, the plaintiffs contend that Delaware's public schools are not providing a meaningful education to Disadvantaged Students. In support of this claim, they cite (i) the dismal educational outcomes that Disadvantaged Students achieve on the assessment tools that the Delaware Department of Education has selected to evaluate grade-level proficiency and (ii) the inadequate levels of educational inputs that Disadvantaged Students receive, particularly when clustered in High-Need Schools. The State contends that Count I cannot state a viable claim because the Education Clause does not have any qualitative component. The State believes that as long as the General Assembly has established a system that is "general," in the sense of applying uniformly state-wide, and "efficient," in the sense of using centralization to generate cost savings, then the constitutional mandate is satisfied. Under this approach, the Education Clause does not require that Delaware's system of public schools actually provide any schooling to Delaware's students. One consequence of this approach is that a plaintiff could never bring a constitutional challenge based on the quality of Delaware's schools. No matter how bad the education might be, there could never be a violation of the Education Clause because (as the State sees it) that provision does not require any minimum level of education.

         The plaintiffs view the Education Clause differently. They contend that a "general and efficient system of free public schools" necessarily contemplates that the schools will provide schooling. The plaintiffs believe that if they can prove that the system of free public schools is not educating Disadvantaged Students, then they will have established a constitutional violation.

         Following the lead of other jurisdictions, the parties have framed the qualitative question as whether the Education Clause requires "adequate" public schools or an "adequate" public education, and they call this the "adequacy requirement." In my view, this terminology is misleading, because it implies that the plaintiffs are asking the court to determine for itself, in the abstract, what constitutes an adequate education. Judges are neither education experts nor education professionals. For understandable tactical reasons, the State harps on the incongruity of a judge setting educational policy and determining what an adequate education should look like. They open their submissions by quoting from an intermediate appellate court in Florida that issued one of the comparatively few decisions to embrace the State's position:

The most effective manner in which to teach students science, mathematics, history, language, culture, classics, economics, trade skills, poetry, literature and civic virtue have been debated since at least the time of ancient Greece. Brilliant philosophers, thinkers, writers, poets and teachers over the past twenty-five centuries have dedicated their talents to identifying the best means of providing a proper education to help each child reach his or her highest potential in a just society. In a republican form of government founded on democratic rule, it must be the elected representatives and executives who make the difficult and profound decisions regarding how our children are to be educated.[131]

         These observations ring true, but they are not what this case is about.

         The plaintiffs in this case are not asking the court to determine in the abstract "what is the best means of providing a proper education," nor are they asking the court to decide what Delaware's schools should teach. The plaintiffs advance the more limited claim that that the Education Clause has something to say about education and that the concept of a general and efficient system of public schools contemplates actual schooling. For purposes of this case, the plaintiffs argue that Delaware's system of public schools can and should be evaluated using the standards that the Delaware Department of Education has established for grade-level proficiency. This approach seems intuitively fair, since it only seeks to apply the standards that the Delaware Department of Education has chosen for itself.[132] The plaintiffs also contend that the court can address what they view as irrational allocations of financial and educational resources, in which more state funding goes to wealthier school districts, less state funding goes to poorer school districts, and Disadvantaged Students do not receive the additional resources they need to succeed despite a state-level consensus that additional resources are required. These arguments are more limited than the free-wheeling philosophical expositions that the State fears.

         Notably, the State does not dispute that the complaint alleges facts sufficient to support a claim that Delaware's public schools are not providing an adequate education to Disadvantaged Students. The State responds instead that Count I should be dismissed because the Education Clause does not require an adequate or effective education. Thus, if the Education Clause contains a qualitative requirement, then it is undisputed that Count I pleads sufficiently that the State has failed to meet it.

         The threshold issue for the motion to dismiss is therefore whether the Education Clause has any qualitative component. There does not appear to be any Delaware precedent on point, giving rise to a question of first impression.

         The Delaware Supreme Court has held that when interpreting a constitutional provision, "[t]he question is: What did the delegates to the Constitutional Convention of 1897 intend . . . ?"[133] The attempt to answer that question "begins with that provision's language itself."[134] If the meaning of a constitutional provision is unclear, then the court may consider "the legislative history of our 1897 Constitution."[135] The court may also consider discussion or commentary from other Delaware precedent, even if they do not directly answer the question presented.[136] Finally, this decision considers how other jurisdictions have interpreted similar clauses in their own constitutions that were adopted during the same generative period as the Education Clause.

         Taken together, these sources convince me that the Education Clause has a qualitative dimension. Put differently, the Education Clause obligates Delaware to maintain a system of public schools that meets a constitutionally mandated level of educational adequacy. That does not mean that the judiciary gets to sit as a super legislature or school board on high. In my view, a court should measure Delaware's public schools against the standards that the political branches have established, at least absent an egregious scenario involving a demonstrated failure by the political branches to establish meaningful standards. A court must also take into account and afford due deference to the political branches' efforts to address the multi-faceted and ever-evolving challenges inherent in designing and implementing an educational system. No system will be perfect. Ultimately, however, the Education Clause contains a qualitative component, and a complaint can state a claim for a violation of the Education Clause if it sufficiently alleges (as is undisputed here) that the State has failed to meet it.

         1. The Plain Language Of The Education Clause

         Under the plain language of the Education Clause, the State must create a system of public schools that educates Delaware's children. In full, the Education Clause states:

The General Assembly shall provide for the establishment and maintenance of a general and efficient system of free public schools, and may require by law that every child, not physically or mentally disabled, shall attend the public school, unless educated by other means.[137]

         The clause thus both (i) mandates that the General Assembly establish and maintain a "general and efficient system of free public schools" and (ii) contemplates that the General Assembly may require "every child" to attend those schools "unless educated by other means." By deploying a compound verb ("shall provide" and "may require"), the drafters established a clear connection between the "system of free public schools" and the outcome of children being "educated." The purpose of the former is to produce the latter. For that reason, the "unless" language in the Education Clause permits children to be exempted from attending the State's public schools if they are "educated by other means."

          Even without the condition addressing "educat[ion] by other means," the goal of providing an education is inherent in the concept of a school. The Delaware Supreme Court has held that language in a constitutional provision should be afforded "its ordinary and natural meaning."[138] In a case involving a statute that used the term "school," the Delaware Supreme Court held that its ordinary and natural meaning "refers to the 'organized body' of students, faculty, administrators and employees who come together as a community to engage in the 'act or process' of education."[139] The high court further explained that the ordinary and natural meaning of "education" is "the 'act or process' of educating or learning."[140] Schools are places where the process of learning takes place. They exist to provide students with an education.

         Dictionary definitions similarly support the instrumental linkage between a "system of free public schools" and the goal of educating students. The Delaware Supreme Court has explained that "[b]ecause dictionaries are routine reference sources that reasonable persons use to determine the ordinary meaning of words, we often rely on them for assistance in determining the plain meaning of undefined terms."[141] In Black's Law Dictionary, the first definition for the word "school" is "[a]n institution of learning and education, esp. for children."[142] Dictionaries published in the last decades of the nineteenth century-the era when the Education Clause was adopted-likewise connect the definition of "school" to the goals of learning and education: •

• "An institution of learning of a lower grade, below a college or a university. A place of primary instruction."[143]
• "[A] place for instruction: an institution of learning, esp. for children . . . ."[144]
• "1. A place or establishment in which persons are instructed in arts, science, languages, or any species of ...

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