OPINION
STRINE, Vice Chancellor.
I. Introduction
The Neighborhood Schools Act, 14 Del. C. §§ 220-23 (the "NSA" or "Act") was adopted by the General Assembly in April 2000 to "establish and implement a plan for neighborhood schools in Northern New Castle County that is fair and equitable to all affected children in New Castle County."
In developing an Act-compliant Neighborhood School Plan, Christina faced a serious geographic problem. The "Suburban" portion of its District, surrounding the town of Newark, was located 15 miles from its "City" portion, in Wilmington. The General Assembly, however, offered no accommodation in the NSA for this non-contiguous district design, nor did it use the Act to reconfigure the Christina District to include its City students in any of the school districts contiguous with the City. Instead, Christina was left to craft a Neighborhood School Plan for a District for which that concept makes little or no geographic sense.
In November 2001, Christina presented its first Neighborhood School Plan to the State Board of Education. That plan largely kept the District's existing feeder patterns and grade configurations in place, only realigning attendance patterns to account for building capacities in the District's schools. Finding that Christina's initial plan failed to comply with the NSA as a matter of law, the State Board directed Christina to develop another plan.
In May 2002, Christina made its second submission to the State Board. This time the District used the grade configurations required by the Act, but it relied on a massive capital spending program to support that initiative. As a preferred alternative, the District resubmitted its first plan, which proposed to maintain the District structure without change. The State Board rejected both of these plans, finding that the District had an obligation to present a Neighborhood School Plan that met the statutory grade configurations using its existing school capacity. In so ruling, the State Board acknowledged the unique predicament Christina faced and expressed its hope that the General Assembly would act to address Christina's problematic geography, but indicated that Christina needed to take action to comply with the Act.
In late 2003, Christina suggested that it would engage in a planning process to comply with the requirements of the Act. During the summer of 2004, the General Assembly amended the NSA to explicitly permit the District a third bite at the apple. But, by early 2005, it appeared that Christina was content to muddle along, here and there making changes to feeder patterns and closing a school, but not undertaking any effort to come up with a formal Neighborhood School Plan, as required by the Act.
In 2006, a new superintendent arrived at Christina, only to find that the District had mismanaged its finances in a serious way, necessitating layoffs, reductions in programming, and substantial borrowing from the State to continue operations. As part of the effort to address its problems, Christina approved a "Strategic Plan" in March of this year that contemplates the closing of two of Christina's City elementary schools, including one for the coming school year, and the redeployment of two other City schools toward purposes other than regular public education. Once implemented,
Upon full execution of the Strategic Plan as it is currently envisioned, City students in Christina will attend one of two extremely large elementary schools in the City for their first six years of public education. Then, they will be dispersed to Suburban middle and high schools, spending their sixth through twelfth grade years some 15 miles away from their homes. As such, the Strategic Plan, when complete, will require City students to spend the majority of their public education — the final 7 of their 13 years in the system — in the Suburbs without any option to attend a middle or high school closer to home.
Moreover, no change to this dynamic can rationally be expected in the coming decade if the Strategic Plan proceeds as written. All told, the Strategic Plan will close four existing smaller elementary schools in the City to normal public school use, will offer no option for middle or high school programming in the City, and will commit the two City schools that had originally been built as middle schools to indefinite use as elementary schools. The Strategic Plan will also decouple referendum funding for development of a Suburban middle school from capital campaigns supporting renovations in the City, making the latter less likely to gain voter support from the District's overwhelmingly Suburban tax base.
This case comes before me now at the instance of parents of Christina students, and of the City of Wilmington, who together seek an injunction against the procession of the Strategic Plan. The plaintiffs allege, without contradiction from the District, that Christina has yet to submit a Neighborhood School Plan that complies with the Act's explicit mandates. In light of that fact, the plaintiffs ask me to enjoin the Strategic Plan, particularly the closing of the four City schools until Christina gains the State Board of Education's approval of a Neighborhood School Plan for the District that complies with the NSA.
The plaintiffs contend that whatever the educational merits of the NSA may be, the District is not permitted to ignore the Act and to proceed as if it did not exist. The consequences of allowing it to do so would be, say the plaintiffs, to allow the District to get away with providing a full span of neighborhood schools for its Suburban students, while precluding that option for its City students by closing their existing neighborhood schools and, as a practical matter, denying them any opportunity in the next decade or more to attend middle or high school in the City.
In this opinion, I rule for the plaintiffs. Without denying the difficulty faced by Christina, the court cannot ignore the District's failure to comply with the NSA or the adverse consequences that the plaintiffs face if an injunction does not issue. The issuance of an injunction preserves the right of the plaintiffs to compel the District to comply with the Act by developing a Neighborhood School Plan that addresses their needs as well as those of the District's Suburban students. Further, by preventing the four City schools from closing, an injunction will assure that the existing school facilities within the City remain available for the District's use toward that end.
This limited relief is well tailored to the potential harms that the plaintiffs confront. The process the plaintiffs seek is not one involving judicial involvement in the planning process; they simply ask that I require Christina to comply with the NSA and submit an Act-compliant Neighborhood
Although it is regrettable that the court must enjoin the plans of the cash-strapped Christina School District, the failure to do so would deny to the City students of Christina the benefits that the General Assembly believed would flow from the Act. By ensuring that further City schools are not closed until the Act's requirements are satisfied, an injunction preserves the chance for the plaintiffs to convince the District and the State Board that those schools should be utilized to meet their desire for schools close to their neighborhoods. When compared to the modest financial benefits the District expects from implementation of its Strategic Plan in the coming school year, the benefits of an injunction vindicating the statutory rights of the plaintiffs outweigh the costs.
II. Factual Background
This case highlights just one example of the many challenges still facing the Delaware schools as a result of the de jure racial discrimination that was the official policy of this state for most of its history.
As is widely known, the desegregation of American public schools did not proceed expeditiously or without controversy; certainly, that was true in Delaware. In 1977, the U.S. Court of Appeals for the Third Circuit affirmed a federal district court decision finding that the effects of de jure discrimination on the public schools had not been adequately remedied in the northern portion of New Castle County, Delaware and ordered the implementation of an effective remedy.
Three of the four — the Brandywine, Colonial, and Red Clay Districts — involved contiguous geographic units including both a portion of the City of Wilmington and a section of its surrounding suburbs. The fourth, the Christina School District, was quite different. Christina had a City portion, but its Suburban portion comprised the greater Newark area and was separated from Wilmington by 15 miles of interstate. This area had been included in the 9-3 remedial order lest a so-called "white flight" from the other portions of Northern New Castle County occur and defeat the intentions of the desegregation order.
After the initial tumult, including school closings, loss of students to private schools, and other adjustments that came with implementation of the 9-3 plan, the four districts settled in and lived under the plan for nearly twenty years. As part of the 9-3 plan, most schools kept their feeder patterns aligned so as to maintain their racial balance at a level where the percentage of black students was within 10% of the overall district average. This balancing function also helped avoid schools with concentrations of high-poverty students, as one of the many regrettable consequences of racial discrimination was a greater tendency for poverty among black students. By establishing racial diversity, the 9-3 plan also created greater socio-economic diversity in the schools. But this diversity came at a cost. For City students, it meant nine years outside their neighborhoods, three such years for Suburban students, and for many City and Suburban students, it meant relatively frequent changes in feeder patterns and irregular grade spans in many schools.
In 1995, the federal order requiring the four districts to desegregate was lifted, with the school districts being declared to have attained unitary status.
In April 2000, the General Assembly recognized that one of the desires many parents sought to fulfill for their children through the end of federal court supervision, and the choice and charter programs, was the desire to attend school close to their homes. In order to spur the four Northern New Castle County School Districts (the "Northern NCC Districts") to change their feeder patterns to address this desire, the General Assembly adopted the Neighborhood Schools Act of 2000. As will be seen next, the current case results both from what the Act did and what the Act did not do.
B. The Neighborhood Schools Act
The Neighborhood Schools Act was designed to "establish and implement a plan for neighborhood schools in Northern New Castle County that is fair and equitable to all affected children in New Castle County."
The NSA advanced these objectives by two means: (1) a non-mandatory process by which the General Assembly was to consider alternatives to the four-district configuration that existed for Wilmington and Northern New Castle County;
1. Rationalizing School District Boundaries To Promote A System Of Fair And Equitable Neighborhood Schools In Northern New Castle County: A Non-Enforceable Provision Of The NSA
To achieve the goal of a fair and equitable system of neighborhood schools, the first order of business one might expect to have been undertaken would have been the reconfiguration of the four Northern NCC Districts. After all, these Districts were designed for the implementation of a system that emphasized the creation of racially-diverse schools through mandatory student assignments, not for the purpose of educating children at the schools closest to their homes, within a system that promoted school choice and authorized charter schools. To move toward the goal of keeping children closer to home, the creation of geographically-compact and contiguous school districts might therefore have seemed the logical first step.
This is particularly true as applied to the City of Wilmington, which had been divided among the four Northern NCC Districts. Because of the interaction of that reality with the 9-3 plan, there was no traditional middle school in the City when the NSA was enacted,
Of those Districts, Christina was the worst positioned to address the needs of both of its City and Suburban students well. Each of the other Districts was at least contiguous with the City of Wilmington. Christina was not. The majority of Christina's 18,500 students hail from Newark and its suburbs, while only an 18% minority of the District's students reside in Wilmington.
The NSA did not ignore these obvious problems. But it addressed them in a non-mandatory way. Rather than reconfigure the four Northern NCC Districts from the get-go, the NSA established a Wilmington Neighborhood Schools Committee to develop ideas of that kind.
The Wilmington City leaders also discharged their duties under the NSA. The City Council passed an ordinance endorsing the recommendations of the Committee supporting a Metropolitan or Charter School District encompassing Wilmington. The Mayor vetoed that ordinance on March 15, 2001.
The General Assembly, however, never took any substantive action at all to address the Wilmington Neighborhood Schools Committee's proposal. Three bills relating to the plan were submitted, but none was ever put to a vote by both houses of the General Assembly.
Through inaction, the four Northern NCC Districts were left in place with their existing boundaries. This left them each to work in isolation on their required Neighborhood School Plans, the aspects of which I describe next.
2. School District Implementation Of Neighborhood School Plans: A Mandatory, Judicially-Enforceable Requirement Of The NSA
By comparison to the non-mandatory aspects of the NSA concerning the Wilmington Neighborhood Schools Committee's recommendations, the Act's requirement that the four existing Northern NCC Districts develop individualized Neighborhood School Plans was a mandatory provision enforceable in court. On that front, the NSA's charge to the four Districts was unambiguous:
The NSA gave the Districts some flexibility to deviate from strict geographical and neighborhood considerations by permitting Neighborhood School Plans to "assign students to schools based on factors other than geographic and natural neighborhood boundaries if a substantial hardship to a school or school district, student or student's family exists."
Through these requirements, the NSA mandated that the Northern NCC Districts review their school facilities and propose a configuration of their feeder patterns that would fill their available classroom capacity with the students living closest to those schools. If a District believed that substantial hardships justified a deviation from adopting the assignment pattern that would keep students closest to home, it could identify those hardships and propose deviations necessary to address them. Similarly, if one of the Districts believed that a grade configuration other than that contemplated by the statute "better accomplish[ed] the goals of [the NSA]," it could present an "alternative Neighborhood School Plan in addition to the plan based on the above [statutory grade] configurations."
In developing its Neighborhood School Plan, or Plans, each of the Northern NCC Districts was required to hold at least five public hearings.
Once a District succeeded in getting a Neighborhood School Plan approved by the State Board, it was given 18 months to fully implement its proposal, and it stood to receive $1.25 million in transitional funding as well as annual transportation savings payments over the next ten years.
C. Christina's Efforts To Comply With The Neighborhood Schools Act
In a written decision issued on March 28, 2002, the State Board of Education approved the Neighborhood School Plans of the Brandywine and Colonial School Districts.
From the start, Christina faced enormous challenges in complying with the NSA. The problems were several. For one thing, Christina did not run its schools in the grade configurations contemplated by the Act.
This shift was exaggerated by the public school choice program through which many Suburban students desiring to go to school closer to home opted out of their assigned City schools and into closer Suburban schools.
From a facilities point of view, the District also faced challenges. Christina did not operate a middle or junior high school in the City.
Finally, looming over the District were other regrettable, and undeniable, realities. If a series of neighborhood schools was created in the City portion of Christina, and if Suburban students were not required to attend those City schools, roughly 80% of the students in the City's neighborhood schools would come from impoverished families.
When Christina submitted its initial Neighborhood School Plan to the State Board of Education on November 14, 2001,
The "Existing Plan" that Christina submitted to the State Board retained the District's grade configurations of K-1 or K-4, 5-6, 7-8, and 9-12 schools. Further, it perpetuated what the State Board
As a consequence of this alignment, the State Board found that "Christina's City students attend five different schools, three of them by the 4th grade" and travel to the suburbs to attend classes for 8 of their 13 years of public education.
In advocating for its Existing Plan, Christina contended that reconfiguring its schools by grade and assigning students based solely on geographic distance and neighborhood boundaries would "produce grossly overcrowded suburban schools; significantly underused City schools; and high poverty concentrations in several schools, thereby requiring significant additional resources that [were] not likely to be available."
In its opinion, the State Board did recognize the "unique and difficult challenge" that Christina faced.
Rather than allow Christina to avoid the Act's requirements, the State Board reiterated the opinion of the Attorney General, who had interpreted the NSA as mandatory to "require that the affected districts submit a plan based on the statutory grade configurations" but enabling insofar as it "permitted the districts to submit another plan which the State Board may approve in place of the plan that meets the statutory requirements if it finds that the alternative plan would better accomplish the goals of the Act."
Christina's second submission to the State Board presented the Committee Plan, including its reliance on $40 million of unauthorized capital expenditures, as its purportedly NSA-compliant plan. Along with the Committee Plan, the District again submitted its Existing Plan, this time as its alternate and recommended proposal.
As notable as the State Board's determination that the Committee Plan did not comply with the NSA was its articulation of two of the consequences of that Plan. In one section of its decision, State Board criticized the Committee Plan for assigning 800 suburban students to City middle schools which were not their closest grade-appropriate schools so as to enable those schools to reach functional capacity and so as to decrease the poverty levels in those schools.
In these sections of its decision, the State Board identified but did not link two of the factors most challenging to Christina's ability to develop and implement a Neighborhood School Plan in a way that is beneficial for its students. By simple math, if Christina offered a series of neighborhood schools in its portion of the City, and if it did not mandate that Suburban students attend those schools, approximately 80% of the students in those City neighborhood schools would likely be impoverished because its City neighborhoods are that poor. Put bluntly, if Christina was, as the State Board suggested it
Even though it did not explicitly connect these concepts, the State Board noted in its second opinion the same difficulties Christina has had to confront all along because of its disjointed, but functionally-interdependent, physical plant.
After Christina's second submission to the State Board was rejected, the consequences of that failure to gain State Board approval were uncertain. At that time, Red Clay shared the same predicament. And, at the time, the NSA only gave Districts the opportunity to make two submissions to the State Board. But it still set forth its mandate for the Districts to put in place a Neighborhood School Plan in unambiguous terms.
The General Assembly provided some relief to Christina, and a lot to Red Clay in an amendment to the NSA enacted in July 2004. That amendment provided an opportunity to make a third NSA submission to the State Board. This allowed Christina a third chance at compliance before it was vulnerable to a lawsuit.
Although Christina knew it could tender a third proposal to the State Board as a result of this amendment, it never exercised that option. In late 2003, Christina's then-Superintendent, Joseph Wise, wrote a letter to State Board President Joseph A. Pika suggesting that the District was embarking on a process to address the requirements of the Act.
D. The Christina Transformation Plan And Strategic Plan
Despite Christina's failure to secure approval from the State Board for any of its Neighborhood School Plans, no remedial action was ever taken by the State Board and Attorney General against the District.
The failure of the District to develop an Act-compliant plan did not mean that the District stopped making changes to feeder patterns or schools. Rather, the District has charted at least two plans for its students and facilities since the enactment of the NSA.
Both of these plans draw on a history of capital referenda dating back to 2002. In
In anticipation of the expanded capacity in the suburbs, Christina approved a "Transformation Plan" in the spring of 2004.
The process of selecting, purchasing, and developing the Porter Road and Astro Power sites, however, took longer than expected and involved higher than projected costs. By now, the District has exhausted its funding with the Astro Power construction less than 65% complete and without a single shovel of dirt having been excavated at Porter Road.
To address its capital funding challenges, Christina attempted to secure additional funding through a capital referendum in January 2006. At that time, the District sought funding to complete its projects at the Porter Road and Astro Power sites,
In this same period, Christina went through a transition in leadership, with defendant Lillian Lowery replacing Joseph Wise as Superintendent of the District.
Hoping to begin emerging from a crisis-driven agenda, Christina began developing, in early 2007, a new "Strategic Plan" which it hoped would curry greater support from its families and tax base.
Although the Strategic Plan has many elements, the most critical are listed below:
Upon its completion, the Strategic Plan will create neighborhood schools for the District's Suburban students, never requiring them to travel into the City to attend classes. By contrast, the Strategic Plan will require City children to endure bus rides into the suburbs for the last 7 of
As a consequence of decoupling the renovation of Bancroft from the completion of the Astro School, the District recognized that the ultimate passage of a later referendum to create a City middle school was far from certain given that over 80% of its base resided in the Suburbs.
The Strategic Plan will also have a more immediate impact on the residents of the City of Wilmington. If it is fully implemented, the Strategic Plan will close four schools in City communities, including the Elbert-Palmer School this coming year, and the Stubbs School the following year. These facilities would then be put to other uses or leased to bolster the District's bottom line. In either event, although the District would continue to own the facilities, they would no longer be immediately available for school purposes.
In the case of Elbert-Palmer, if it is closed, it will be leased to the Edison Charter School, which will begin holding classes there, initially for a small group of students in grades K-3.
In contrast to the financial gains the City may realize by closing Elbert-Palmer, the parents of the students of that school will lose not only a community bulwark, but also a small, safe, and academically-challenging environment for their children. After consolidating all of the City's K-5
Even before factoring in the increased size of these schools, the existing differences between the large school, Bancroft, and the small school, Elbert-Palmer, are notable. If Elbert-Palmer students are relocated to Bancroft, they will move from a school rated "Superior," the highest rating awarded by the State Department of Education in 2005-2006, to Bancroft, which bears the lowest rating of "Academic Watch."
E. The Plaintiffs Promptly Challenge The Strategic Plan
Inspired by the imminent closing of Elbert-Palmer and the long-term changes projected for their communities, the plaintiffs in this case challenge Christina's Strategic Plan on the grounds that it does not comply with the mandate of the NSA.
Christina opposes the plaintiffs' requested remedy but does not seriously dispute the fact that it has not substantively complied with the NSA. The Christina Board voted to approve the Strategic Plan by a margin of 4-2.
Despite these admissions, the District argues that even though it has never obtained state approval under the NSA, it is discharged from that obligation by its prior submission of two (albeit non-conforming) plans to the State Board. Further, the District references the State Board's decision denying its second submission, which stated, "[T]here is no solution to the
As a consequence of its unique structural challenges and current financial straits, Christina also argues that enjoining its Strategic Plan will do more harm than good. In total, the District calculates it will lose nearly $550,000 during the next school year.
In essence, Christina argues that it should not be punished for making the best of a bad situation. It points out that its Strategic Plan will achieve the grade configurations required by the NSA if allowed to be fully implemented and will offer shorter commutes for all of its students during the formative K-5 years. For those reasons, the District argues that it should be permitted to implement its Strategic Plan without being required to comply with the NSA.
To address these contrasting positions expeditiously, discovery, pre-trial briefing, and a two day trial were completed in less than two months after the complaint was filed on March 23, 2007. The remainder of this post-trial decision explains how I have resolved the parties' dispute.
III. Legal Analysis
The injunction standard implicated by plaintiffs' claims is well established. To warrant permanent injunctive relief, the plaintiffs must succeed on the merits of their case after a full hearing, demonstrate that irreparable harm will result in the absence of an injunction, and prove that, on balance, the equities weigh in favor of issuing the injunction.
A. Has Christina Violated The Neighborhood Schools Act?
The merits determination is easier than usual. Both the language and intent of the NSA are unambiguous.
By the Act's plain terms, a compliant Neighborhood School Plan must assign students to the grade-appropriate school closest to their homes per § 223(a), subject to only such limited exceptions as are necessary to avoid identified "substantial hardship[s]," and must use the grade configurations specified in § 223(b). Although the Act enables a district to submit an "addition[al] plan" using "alternative [grade] configuration[s]" that the district believes better serve the Act's goals, the obligation to submit a Neighborhood School Plan that complies with the statute's primary elements is mandatory.
Instead, Christina's first submission presented a plan that avoided the statutory grade configuration element in its entirety, keeping the District's prior grade spans and feeder patterns in place. That proposal, the State Board concluded, was so noncompliant that the Board considered it "unnecessary and wasteful" to analyze the other school assignment components of
Similarly, on its second submission, Christina again ignored the Act's mandate that students be assigned to the grade-appropriate school closest to their homes by proposing assignments to schools that were not in existence and functional at the time the District submitted its revised plan. The use of existing facilities rather than a reliance on new construction is implicitly assumed by the Act itself,
Thus, to date, Christina has never disputed the NSA's mandate, but it has also never done what the plain terms of the Act require. It has never taken its existing stock of school space, attempted to use that capacity to assign students to the schools closest to their homes in the grade configurations specified by the NSA, and then adapted those assignments only insofar as necessary to avoid specific substantial hardships. Put simply, that was the mandate of the NSA — a mandate Christina has not followed.
To avoid the consequences of this substantive noncompliance, Christina raises two unpersuasive arguments. Initially, the District says that because it followed the procedural mandates of the NSA by holding hearings and making two Neighborhood School Plan submissions to the State Board of Education, its obligations under the Act should be considered discharged even though it never submitted a Neighborhood School Plan meeting the statutory criteria. Alternately, Christina asserts that it should be excused from compliance with the NSA because of the insurmountable challenges presented by the geography and socioeconomic character of its District.
The problems with Christina's first argument — that, in essence, the District was only required to twice try by following the Act's submission process, but not actually comply with the Act's substantive policy mandates — are several. The substantive goals of the Act would be a nullity if, as Christina says, all that was required of it was to convene a series of meetings and offer up two sheaths of papers designated as Neighborhood School Plans for consideration by the State Board, however noncompliant those plans were with the substantive requirements of the NSA. To accept that claim would make compliance with subsections (c) and (d) of § 223, which require public hearings and set deadlines for plan submissions and resubmissions, the only mandatory obligation of the affected districts, rendering the independent and substantive provisions of subsections (a) and (b) of § 223 purely hortatory. Such a reading would literally codify the
By its plain terms, the NSA contemplates at least two enforcement mechanisms when a district fails to comply with its obligations under the NSA. One directs the State Board promptly to ask the Attorney General to take whatever legal action is necessary to bring a district into compliance if a district does not file a second Neighborhood School Plan in conformity with the Act submission within 60 days after its initial plan was rejected for not meeting the requirements of the Act.
But the other enforcement mechanism expressly in the NSA makes it absolutely clear that Christina's argument that it only had to try, not comply, is without merit. That enforcement provision allows a citizen to bring a private cause of action to enforce the requirements of § 223(f), the section that requires districts to implement a Neighborhood School Plan reflecting the statute's emphasis on geographic proximity as the primary basis for determining where students go to school.
The obvious purpose for that cause of action is to give affected citizens the clout to hold school districts accountable for failing to implement a Neighborhood School Plan that substantively meets the Act's requirements. Christina's proffered alternative to that intuitively and linguistically sensible conclusion — namely, that the General Assembly provided for an express cause of action but only for the purpose of requiring a district to submit two plans to the State Board in the required time frame, however non-conforming in substantive terms — is bizarre indeed.
The General Assembly's passage of an amendment giving districts a third chance to submit a conforming plan did not alter the substantive import of the private right of action codified in the NSA. The amendment is best viewed as a third chance bill that gave districts who were not in conformity a final chance to get into voluntary compliance before they faced legal exposure for non-compliance.
Christina's second argument for avoiding the NSA's mandatory terms departs from the statutory text and focuses on the uniquely difficult issues created by the District's geography. Although Christina is undeniably hampered by its responsibility for two non-contiguous territories, neither the General Assembly nor the State Board of Education excused Christina from compliance with the Act on those grounds. Instead, the Act provided a rubric of "substantial hardship" within which Christina could argue for deviations from the NSA's rigid mandate of geographic proximity. But, that rubric actually emphasizes the priority that the General Assembly demanded be given to neighborhood schools because it requires Christina to hew as closely to the statutory focus on proximity as practicable and to justify any deviation from that focus on a case-specific "substantial hardship" basis.
Likewise, the NSA enabled Christina to present an "addition[al]" plan using grade configurations other than those referenced in the Act.
In light of this argument, it is critical to note that Christina does not seek to justify its previous non-compliance with the NSA on the grounds that the NSA is unconstitutional. Christina has not challenged its ability to follow the NSA and honor its constitutional obligations. As a result, this court's duty is to require Christina to meet its statutory obligations.
Relatedly, Christina has not argued that the NSA, as plainly read, produces absurd results. That would be difficult to do, as § 223 of the NSA implicitly recognizes, through its suggestion of inter-district solutions among others, the difficulty Christina might have given its non-contiguous and socio-economically diverse District. But the General Assembly clearly decided to impose on Christina the same mandatory duty to develop and implement
In this same regard, Christina's argument that the NSA poses down-the-road issues for districts after securing initial approval of their Neighborhood School Plans is also unavailing. Christina is correct that the NSA raises nearly as many questions as it answers in this regard because the Act is entirely silent about what process, if any, it requires beyond the implementation of an initial Neighborhood School Plan.
B. Are Plaintiffs Entitled To An Injunction?
The more difficult question I must address is whether to issue the injunction the plaintiffs seek.
The plaintiffs further believe that Christina's failure to follow the mandates of the NSA has contributed to what they perceive to be this one-sided approach to moving toward a system of neighborhood schools. By abandoning adherence to the process set forth in the NSA or to the Act's substantive provisions, Christina avoids having to account for its respect for the rights afforded to its City students by the NSA, accountability that State Board review would enforce. By seeking an order requiring Christina to make any decisions that would close City schools within the process and using the criteria established by the NSA, the plaintiffs seek the opportunity to influence the direction of Christina's approach to moving toward neighborhood schools, in the forums where the General Assembly determined that community conversation should occur.
The trial in this case was largely taken up by conflicting testimony about the very educational issues the plaintiffs argue should be addressed within the context of the NSA. For example, witnesses for the plaintiffs stressed the educational merits of relatively small schools like Elbert-Palmer, citing educational literature to this effect.
In response, Christina stresses that the core student population at Bancroft performed at about the same level as the Elbert-Palmer population, and attributes Bancroft's lower rating to minor deficiencies, such as the failure to test enough students in certain categories. Christina admits that Bancroft had many more serious
A similar back-and-forth was had over whether Christina could increase the population of Elbert-Palmer and generate funding units for a principal and counselor simply by adjusting feeder patterns. The plaintiffs put on a colorable case that Christina could do just that by assigning the former Drew/Pyle students to Elbert-Palmer, rather than their current assignment to Bayard, especially given that Elbert-Palmer is closer to their homes. Christina had rational, but not compelling, responses. This was, like the debate about whether Elbert-Palmer kids would do as well at Bancroft, a matter over which reasonable minds could, and apparently do, differ.
Put in the most direct terms, the plaintiffs want to be able to make the case that children in the Elbert-Palmer community should not be forced to give up the small, safe, and effective neighborhood school to which they now walk and be forced to attend a huge, high-poverty school with greater disciplinary problems a bus ride away. Before Christina takes such a step, the plaintiffs say that it should convince the State Board that the NSA permits it to do so.
A similar good faith debate was also had at trial over the long-term implications of the Strategic Plan on the ability of City students to attend schools close to their homes in grades 6-12 — but the debate was more limited in extent. Because Christina intends to retain ownership of the Douglass and Pulaski facilities and does not plan to close them as schools for another two years, Christina contends that their capacity would be sufficient to allow either Bancroft or Bayard to be converted to a middle school. That is, according to Christina, if Douglass and Pulaski were used for K-5, sufficient capacity in the City would exist to convert Bancroft or Bayard to a middle school.
Notwithstanding that claim, the plaintiffs are dubious (and I perceive rationally so) about the idea of allowing Christina to divest itself of the ability to use Elbert-Palmer for six years, in advance of a coherent process to develop a Neighborhood School Plan for its City students. By closing one neighborhood school from the get-go, and planning to shutter three others,
The limitation of the back-and-forth on this issue is critical, however. Christina's Superintendent candidly admitted that the District's decision to go to referendum only on the Astro School and not to convert Bancroft, too, likely means that there will be no City middle school in Christina for the coming decade.
Such a decision, as stated in the candid and stark way it was at trial, again highlights the irreconcilable tension Christina faces in implementing the NSA. The State Board found that it was unfair of Christina to implement a system of assignment whereby over 20% of Suburban middle school students would attend a City middle school.
If Christina enables all its Suburban students to spend all their school years in the Suburbs, an action that would be wholly consistent with the primary goal of the
But it is precisely as to the questions of how, and in what forum, difficult choices like this should be made on which the remedial calculus tilts strongly in favor of the plaintiffs. Although Christina argues that granting the plaintiffs the relief they seek will involve the court in decisions that educators, and not courts, should make, Christina ignores the actual argument that the plaintiffs make. The plaintiffs do not seek an order preventing Christina from presenting any particular Neighborhood School Plan to the State Board, even one resembling the current Strategic Plan, although that is clearly not the plaintiffs' preference. The plaintiffs just seek to require Christina to develop and justify a plan under the Act that satisfies the State Board as an appropriately fair and equitable one, which gives due weight to the statutorily-relevant considerations, including the interests of City students in having opportunities to attend neighborhood schools.
The plaintiffs' argument is an intensely pragmatic one. The plaintiffs acknowledge
What the plaintiffs simply want is for Christina to respect that the NSA grants all citizens of New Castle County certain rights. Now that geographic proximity in assignment is the officially required state policy, Christina must follow that policy, but in a way that accords equal rights to City students.
Before Christina closes City schools that City students can walk to, the plaintiffs want Christina to justify that action to the State Board within the context of a Neighborhood School Plan that complies with the Act. Before Christina forecloses City students from the opportunity for neighborhood middle schools, the plaintiffs want Christina to justify that decision within the context of the planning process required by the Act, which forces the District to justify its decisions to deviate from geographic proximity for City students with specificity.
Not only that, the plaintiffs urge the court to use the narrowest, and least intrusive, remedial tool of all. The plaintiffs do not want this court to answer the vexing and important educational issues Christina
As Christina candidly admits, its Strategic Plan does not purport to be an Act-compliant Neighborhood School Plan.
As important, the plaintiffs want Christina to have to answer to the educational experts at the State Board. The plaintiffs do not underestimate the difficulties Christina faces. In fact, one of the most refreshing things about this litigation is the respect that the plaintiffs and Christina have shown each other. Christina has acknowledged the heart-felt concerns of the plaintiffs. The plaintiffs have not engaged in attacks on Christina's motives, just its plans.
The plaintiffs do not question that many of the concerns that Christina has over what to do with their existing facilities — such as whether some schools will be overcrowded and others underpopulated — are legitimate factors for consideration in developing a Neighborhood School Plan. In particular, the plaintiffs realize that it would be a better, world if there were no schools with high percentages of high-poverty students, and that Christina is correct to consider the problems such schools present.
The plaintiffs just ask that they be afforded their right to have Christina address these concerns within the statutory framework. As they point out, the State Board has provided other districts with the chance to deviate from the most geographically-proximate assignments on the grounds of substantial hardship.
The plaintiffs' remedial request is less intrusive than other options available to them under the capacious language of the private right of action established in § 223(f) of the NSA. The plaintiffs do not ask for an injunction until such time as the State Board develops an Act-compliant plan for Christina, even less do they seek to have a court develop such a plan for the District.
All they ask is for Christina to do what is plainly required to do under the NSA before closing four City schools and embarking irrevocably on a Strategic Plan that likely forecloses the creation of City middle schools for the next decade.
Given the important value the General Assembly has placed on neighborhood schools in the NSA, the interests of the plaintiffs in having their statutory rights vindicated outweighs any harm that will befall the District if an injunction issues. In the short term, the costs of an injunction will deprive Christina of budget savings of a half-million dollars next year. But those costs are outweighed by the injury that might result to the plaintiffs if Elbert-Palmer, a successful neighborhood school for City students, is closed as the result of District decisions that do not comply with the Act. Even more, if an injunction does not issue now, the District will lose control of Elbert-Palmer for six years.
The more delicate question is the scope of the injunction that should issue. On this question, the plaintiffs have been more than a tad ambivalent. At the post-trial oral argument, they initially took the position that they were only seeking to enjoin the closing of Elbert-Palmer as an elementary school for next year, and the proposed closing of the other City schools, pending Christina's compliance with the NSA. The plaintiffs did not, they said, want to enjoin all the aspects of the Strategic Plan.
In my view, the plaintiffs' original position is closer to the mark. The harm that the plaintiffs face that is imminent and irreparable is the closing of Elbert-Palmer. If Christina is permitted to shutter that school and disperse its faculty and students, it will be almost impossible to put things back together without great disruption to all affected constituencies, especially its current student body. At a minimum, an injunction to prevent that is in order. Likewise, Christina shall be enjoined from taking further steps to close its remaining City schools until Christina obtains approval for those decisions within the context of an approved Neighborhood School Plan. As Christina prepares to comply with the NSA, the full range of City facilities should be available for consideration.
I decline, however, to go further than that for now. For example, I see no reason to enjoin Christina from providing greater neighborhood school opportunities immediately to its Suburban students using its existing facilities. That direction has been embraced by Christina, is consistent
More troubling is the question of whether to enjoin Christina from going to referendum solely on the Astro School. Arguably, if Christina is successful in that regard, it will have an excuse to claim that its only facilities that are fit to be middle schools are in the Suburbs, and to thereby deny a City middle school option to City students. I am not persuaded, however, that Christina is in a position now to claim that none of its City facilities can be operated as a successful middle school. More important, I am not persuaded that the State Board lacks the authority to take Christina's decision to abandon a plan to renovate Bancroft into account in determining whether Christina's Neighborhood School Plan complies with the NSA. And, in that respect, there is no question that the State Board, with the support of the Executive and Legislative Branches,
Regardless of the more limited nature of the injunction that will issue, it remains regrettable that this court must enjoin any aspect of a burdened school district's plans. But the plain terms of the NSA dictate this course of action. And Christina is well-positioned to limit the duration and extent of any injunction by seriously and expeditiously engaging in the development and submission of a compliant Neighborhood School Plan.
If Christina believes that it urgently needs help from the General Assembly or from other neighboring districts in that process—and its briefs and trial arguments evince that it holds that belief and the evidence overwhelmingly supports the rationality of that belief—it is up to Christina to seek such help. But the absence of legislative action to change Christina's boundaries provides no justification for denying Christina's City students the rights granted to them by the NSA. The avoidance of the analytical and equity-enforcing rigor of State Board review that is involved with Christina's current approach to addressing demands for neighborhood schools is even less likely to generate "fair[ness] and equit[y],"
IV. Conclusion
For all these reasons, I find for the plaintiffs as to their claim that Christina has violated the NSA. A final judgment and permanent injunction consistent with this decision shall issue, upon the submission by plaintiffs of a conforming order, after notice as to form to the defendants. Each side shall bear its own costs.
FootNotes
Although the Committee's suggestion was a logical one, the prospects for securing support for it and planning for its implementation in a time frame that proceeded the Northern NCC Districts' duty to come up with their own Neighborhood School Plans under the NSA seems, in retrospect, non-existent. Among the tasks that would have had to be undertaken would have been: redrawing district boundaries, reconciling the contractual rights of two different staffs; figuring out which administrative personnel were redundant and how to fairly treat them; considering what transitional choices for school attendance would be offered to current Colonial and Christina students who were to be educated by the new district; evaluating how to transfer the property rights of Colonial and Christina over their City schools to the new district; determining whether the new district should keep all of its local property taxes and addressing its revenue and other needs to tackle the challenges that would come from educating a more impoverished school population. And Mayor Baker's veto illustrates the substantive disagreements that had to be addressed before the Committee's plan would secure sufficient support for enactment into law.
Christina has challenged the standing of the City of Wilmington in this action because it is a municipal corporation, not a human "citizen." I find that term "citizen" as used by the NSA in 14 Del. C. § 223(f) is broad enough to include the City of Wilmington. A reference to a "citizen" in a statute can be "meant to include a corporation." Zazanis v. Jarman, 1990 WL 58158, at *3 (Del.Super.1990). More importantly, allowing affected municipalities to enforce § 223 seems wholly consistent with the purpose of the NSA. E.g., Kelley v. Mayor and Council of the City of Dover, 300 A.2d 31, 38 (Del.Ch.1972) (stating that "statutory and constitutional provisions must be construed to determine whether their benefits were intended to be conferred on corporations"). The preamble to the NSA specifically points out the community value of neighborhood schools. Moreover, § 222 of the NSA recognizes the special interest Wilmington has in the issues addressed by the NSA. The failure of § 223(f) to mention the City of Wilmington, as opposed to citizens, is not, as Christina argues, fatal to the City's standing. Rather, it might better be read as reflecting the General Assembly's understanding that other municipalities, like Elsmere, Newark, or Newport, might have an interest in protecting schools within their borders. In this regard, I am also aware that litigation is costly for all individuals, and may be beyond the reach of those in poverty. Reading the Act as giving the City standing provides a mechanism for the concerns of disaggregated parents to be litigated at the instance of their local elected officials.
In any event, the arguments about Wilmington would not, however they were resolved, affect the outcome. Because the claims of the parents and the City were identical and focused almost exclusively on the educational issues facing the City's children, the same result would obtain even if the City were excluded from this litigation. Although it may be true that the City has unique interests tied to the economic development of its communities in the Christina territory and its tax base, those were not advanced in depth at trial and do not form the basis for the City's desired relief. See Tr. at 97 (asserting that the closing of Elbert-Palmer will "pull the rug out from under" the "massive effort" currently in process by the City to revitalize the South Wilmington community where that school is located); Tr. at 100 (explaining that Elbert-Palmer is "at the heart of what [the City is] trying to do" in the South Wilmington community).
Comment
User Comments