DELAWAREANS FOR EDUCT'L OPP. v. CARNEY

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

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:

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:

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:

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:

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:

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:

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:

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

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:

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:

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:

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:

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:

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) "[t]ransitioning to a student-focused funding system and weighting funding based on demographic characteristics of students," and (ii) "[i]ntroducing 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

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:

"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:

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 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:

It is not possible to divorce a mandate to establish and maintain a system of public schools from the expectation that the schools will educate the students who attend them.147

Rather than focusing on the central concept of "schools," the parties have debated the meaning of "general and efficient." In my view, by examining these terms in isolation, they miss the bigger and more important picture. The Education Clause is not concerned with generality or efficiency as goods in themselves. The Education Clause deploys these terms instrumentally in service of a "system of free public schools." The terms do not limit the meaning of a school but rather describe two essential means by which the system should educate students: it should generally cover all students and efficiently accomplish the task of providing them with an education.

If I nevertheless focus on these terms, they support the existence of a qualitative dimension to the Education Clause. The Delaware Supreme Court has interpreted the term "general" to mean "state-wide and uniform."148 For that reason, the plaintiffs do not cite this term as the source of a qualitative dimension. The plaintiffs instead contend that that the term "efficient" contemplates a qualitative component. The State disagrees, contending that the term contemplates only managerial and administrative efficiency.

Dictionary definitions establish that the ordinary and natural meaning of the term "efficient" encompasses the concept of effectiveness, which incorporates a qualitative component. Black's Law Dictionary defines efficient as "[c]ausing an effect; particularly the result or results contemplated. Adequate in performance or producing properly a desired effect."149 Dictionaries published in the last decades of the nineteenth century similarly define "efficient" as "effective" or "causing or producing an effect":

By directing the General Assembly to establish an "efficient system of free public schools," the Education Clause calls for a system that will produce educated students.

The plain language of the Education Clause thus contains a qualitative component: It requires a system of free public schools that provides an education to the students who attend them. If the political branches create and maintain a system that falls demonstratively short in its task, then a constitutional violation exists.

2. Legislative History

The legislative history of the Education Clause confirms the preceding plain meaning analysis. Examining the history of public education in Delaware pre-dating Delaware's current constitution reveals a decentralized system in which schools of widely varying quality did not educate Delaware's children effectively. During the constitutional convention, the delegates sought to address this problem. They adopted the Education Clause and instructed the General Assembly to create a general and efficient system of public schools for the purpose of providing a meaningful education to Delaware's children.

a. Delaware's Schools Before The Constitution of 1897

Delaware has had four constitutions, adopted respectively in 1776, 1792, 1831, and 1897. The last continues in force today. They are not separate and independent, but rather linked. After the adoption of the first constitution in 1776, "[e]ach subsequent Delaware constitution has provided for a revision of the existing government rather than making a fundamental change."154 Delaware's current constitution reflects "a `layering' of the concerns of successive generations."155

The state's first constitution, adopted on September 20, 1776, did not address education or public schools.156 The state's second constitution, adopted in 1792, stated that "[t]he Legislature shall, as soon as conveniently may be, provide by law ... for establishing schools, and promoting arts and sciences."157 It thus gave the legislature the power to create public schools, but afforded "some discretion" as to how and when to exercise this power.158

Exercising its discretion, the General Assembly passed legislation in 1795 that established the "School Fund," financed from sales of public lands and from the proceeds of tavern and marriage licenses.159 Appropriations from the School Fund were first made in 1817, but only for educating poor children; parents of means were expected to send their children to private schools.160 The School Fund thus paid for the education of individuals, not for the creation of a system of public schools.

The original system was generally regarded as a failure, and efforts to organize a public school system began as early as 1817.161 During the next decade, Delaware's governors advocated for a system of public schools that would educate all children.162 In 1829, after a committee of the General Assembly concluded that Delaware's public schools were profoundly inadequate,163 the General Assembly adopted an "act for the establishment of free schools."164 The 1829 legislation divided each county into incorporated school districts, administered by an annually elected clerk and two commissioners, and overseen by unsalaried county superintendents.165 The statute was amended in 1830 to authorize school districts to raise funds by taxing local property, but only with the approval of a majority of the voters and subject to a cap on the amount raised.166

In 1831, Delaware adopted its third constitution. This iteration did not make any changes to the provision addressing public schools.167

By 1833, more than 133 school districts had been organized across the state.168 But despite having the power to tax, the districts struggled to raise revenue because of the need for voters to pass referendums.169 The schools also suffered from a lack of statewide organization. "Every school district had the absolute power of saying whether it should have a good school, a poor school, or no school, and there was no one to say them nay."170 During the 1850s, critics argued for reform.171

In 1861, the General Assembly provided for a mandatory tax levy in each county to establish a minimum level of support for the schools.172 In 1875, the General Assembly took a step towards centralization by establishing a state superintendent and a state board of education.173 The practical effects of these measures were limited.174 In 1887, the General Assembly returned to the "older individualistic county system."175

The situation had not improved by 1896. As one scholar noted, "Matters could hardly be worse.... The system was without system."176 "[E]ducation remained a highly local matter subject to the vagaries and tender mercies of local public opinion."177 "There was too much freedom; every county superintendent was a law unto himself; in matters of finance every school committee was a law unto itself. There was insufficient supervision and therefore little opportunity to locate and remedy weaknesses."178

b. The Constitutional Convention of 1896-97

On May 7, 1895, the General Assembly called for a constitutional convention to commence on December 8, 1896.179 Thirty delegates attended, ten chosen from each county.180 The delegates included ten lawyers, "three physicians, two preachers, several farmers, and business persons of all stripes."181 The convention lasted from December 1896 to June 1897. The new constitution took effect on June 10, 1897.182

The delegates created ten standing committees to accomplish the work of the convention, but the ten did not include a committee on education.183 On December 10, 1896, James B. Gilchrist moved for the creation of "a special committee of three" called the "Committee on Education." The delegates approved the motion, and the committee's members comprised Gilchrist, Ezekiel W. Cooper, and Andrew L. Johnson.184 On January 4, 1897, again on Gilchrist's motion, the Committee on Education was converted into a six-member Standing Committee, with Isaac K. Wright, Nathan Pratt, and Elias N. Moore joining as additional members.185

In its first report to the convention, the Committee on Education proposed a draft of what became Article X. The draft contained six sections, the first of which consisted of a hortatory preamble:

The substance of the current Education Clause appeared in Section 4 of the committee's draft. It stated:

In February 1897, the delegates to the Convention debated the draft, sitting as the Committee of the Whole.188

The first point of debate was a proposal to eliminate the hortatory preamble in Section 1. Future Justice William Spruance moved to substitute the following language: "It shall be the duty of the General Assembly to provide for the establishment and maintenance of a general, suitable and efficient system of free schools."189 He explained that he did not know of any "encouragement" that the General Assembly should be providing "except the establishment of schools."190 Other delegates shared his view.191

Woodburn Martin questioned whether the constitution should address education at all, noting that the General Assembly had passed legislation creating a public school system.192 Spruance agreed that the General Assembly had done so, but observed that "whether they have done all that they ought to have done, I am not prepared to say."193 Martin pointed out that the General Assembly "could make it better now if they desire."194 Spruance again agreed but explained that the constitutional provision would make it "a duty."195

Martin continued to argue that the provision was unnecessary.196 At this point, Pratt jumped in, citing his personal experience with Delaware's ineffective public schools:

Charles Richards sided with Martin, arguing that the legislature already had the power to act and that Spruance's language would not add anything meaningful.198 Spruance again disagreed, explaining that his provision deployed simple mandatory language.199

The discussion next turned to the adjectives that Spruance had proposed: "general, suitable and efficient."200 William Saulsbury argued that the system should not be general because "[t]he laws must vary" in different parts of the state.201 He posited that the only adjective should be "suitable."202 Pratt responded that while the details in particular areas might differ, the objective was "so far as the taxes and the distribution of the funds go, [to have] a system that shall be uniform."203 He believed that the constitutional provision needed to contain language that would "be a guide to the Legislature towards uniformity."204

At this point, Martin piped in with his own objection to the adjectives. Martin was a lawyer, and he foresaw possible litigation over their meaning: "I do not believe that we want to leave this Constitutional question open as to what is a suitable system, in case you go into Court. What is an efficient system?"205 Vigorous debate ensued, with Martin and Saulsbury arguing that the adjectives should be omitted.206 Saulsbury moved to amend Spruance's language to strike "general," but the delegates rejected the motion.207 Without additional substantive discussion, the Committee of the Whole adopted Spruance's proposed language for Section 1: "The General Assembly shall provide for the establishment of a general, suitable and efficient system of free schools."208

Later in the day, the Committee of the Whole took up Section 4. Several delegates noted that the first part of the proposed section, which instructed the General Assembly to establish a system of free public schools, had now been adopted as Section 1. The real question was what to do with the second part of the proposed section, which authorized the General Assembly to require that students attend public school "unless educated by other means."209 Spruance moved to strike the first part, which was now redundant, and keep the second part.210 The delegates regarded striking the first part as non-controversial, and they approved it.211 But they hotly debated the language authorizing compulsory education.212 Martin saw no need for it because the General Assembly already had the power to impose compulsory education.213 Cooper responded that compulsory education should be required to ensure that the State's citizens could vote and participate in the democratic process.214 Contrasting the provision with the requirement to establish and maintain a system of public schools, Cooper acknowledged that the provision was not mandatory, but believed the section would encourage the legislature to act.215 Other delegates, including Spruance, agreed that it was beneficial language.216 The delegates also supported moving the language to Section 1.217

Before voting, the delegates confirmed their understanding that the language on compulsory education authorized the General Assembly to take this step, but did not require it. They contrasted this language with the General Assembly's obligation to provide a system of public schools, which they agreed was mandatory.218 Having underscored this point, the chairman called the question. The motion carried.219 As a result, Article X, Section 1 read as follows: "The General Assembly shall provide for the establishment of a general, suitable and efficient system of free schools, and may require by law that every child, not physically or mentally disabled shall attend the public school, unless educated by other means."

Between April 20 and May 20, 1897, the Committee on Phraseology and Arrangement reviewed the draft constitution. Its charge was "without changing the meaning, [to] correct verbal mistakes or inaccuracies in the various provisions acted upon by the Committee of the whole."220 Without debate, the Committee on Phraseology dropped the adjective "suitable."221 On May 20, 1897, the convention adopted the Education Clause.

c. Implications From The Legislative History

The legislative history indicates that the Education Clause was intended to mandate the creation of a system of public schools that would provide a meaningful education to Delaware's children.222 The delegates sought to mandate the creation of "an efficient and capable free school system" that would "teach those things which are proper to be taught for the general education of the people."223 The clause requires not just a system of public schools, but a "good system of public schools."224

Contrary to the defendants' contention, the delegates did not weaken the Education Clause to cater to opponents like Martin and Saulsbury. Martin did not want to include anything in the constitution about public schools, arguing that the General Assembly already had the ability to establish public schools. The delegates rejected that position. Martin and Saulsbury later argued for eliminating some or all of the adjectives in Spruance's proposal, and Saulsbury moved to strike the word "general." The delegates rejected the motion and adopted Spruance's proposal.

Contrary to the defendants' view, the delegates did not strike the hortatory preamble because they did not want schools to provide a meaningful education. The delegates rejected the preamble because (i) it called for the General Assembly to encourage knowledge through means other than schools, (ii) it singled out particular fields of technical study, and (iii) other sections of the constitution did not have similar introductions.225

Contrary to the defendants' argument, the elimination of the word "suitable" from the list of adjectives does not suggest that the delegates had no interest in the quality of the system. The Committee on Phraseology struck the word "suitable" as part of its charge to make non-substantive edits to streamline the text. If anything, the Committee's action implies that the delegates already believed that the Education Clause required "suitable" schools, either because the concept was inherent in the idea of a school or conveyed by the commonly understood meaning of efficiency.

The legislative history demonstrates that the drafters of the Education Clause did not envision a school system without educational substance. They would not have believed, as the defendants argue, that the Education Clause has nothing to say about education, other than it be general (in the sense of statewide) and efficient (in the sense of generating cost-savings). They intended for their mandate to have a qualitative dimension.

3. Delaware Precedents Interpreting The Education Clause

The Delaware Supreme Court has indicated that a court seeking to apply a constitutional provision should consider existing precedent. In this case, there does not appear to be any decision that addresses whether the Education Clause has a qualitative dimension.

In 1901, the Education Clause made its first appearance in a judicial decision.226 Shortly after the Constitution of 1897 was ratified, the General Assembly sought to fulfill the Education Clause's mandate by adopting "[a]n act concerning the establishment of a general system of free public schools."227 Exercising authority granted by the act, a school district levied a tax for the construction of a new school. A property owner challenged the tax under a prior law that had limited the amount of the levy.228 The Delaware Superior Court, sitting in banc, explained that "[t]he proper determination of the sole question directed to be heard here will be found in the careful examination of the provisions of the act of 1898 in connection with the antecedent legislation relating to the gradual evolution and development of free public school education in this state."229 After conducting a thorough and scholarly review, the Superior Court held that the 1898 act repealed prior laws by implication, including the earlier limitation on taxation.230 As additional support for its analysis, the decision touched on the Education Clause, explaining:

The court was not called upon to and did not address whether the Education Clause had a qualitative component.

The Delaware Supreme Court first considered the implications of the Education Clause in 1921, in response to a request by Governor John G. Townsend, Jr. for an opinion on the constitutionality of the School Code of 1919.232 The governor asked the Delaware Supreme Court to address whether school districts created under the School Code or ratified by it were validly established, or whether the districts also had to comply with another provision in the Constitution of 1897 which required that all corporations be formed under the Delaware General Corporation Law and not by special act.233 The General Assembly had relied on the Education Clause when enacting the School Code, so the high court examined whether the School Code fell within the scope of that clause. The high court concluded that it did, reasoning as follows:

Having found that the General Assembly had the constitutional power to act, the Delaware Supreme Court readily rejected a series of other challenges to the statute.

Unfortunately, this decision provides little guidance for the current case. It makes clear that the General Assembly has broad power over the education system, and it sheds light on the concept of generality, but it does not address whether the Education Clause has a qualitative dimension. The request for an advisory opinion only asked the high court to review the School Code for purposes of the challenges presented. The Delaware Supreme Court was not presented with an as-applied challenge to the functioning of Delaware's system of public schools based on allegations that the system fails to provide a meaningful education to broad swathes of students.

In 1954, the Delaware Supreme Court addressed the Education Clause as part of its multifaceted decision in Brennan v. Black.235 The plaintiff in that case brought an array of challenges against a local property tax that a school district levied after a referendum. In one of the challenges, the plaintiff argued the Education Clause required property tax rates to be state-wide and uniform, claiming that different local tax levies resulted in unequal levels of taxation across districts that violated the Education Clause.236 After characterizing this argument as "diffuse" and "not wholly clear,"237 the high court rejected it as

Based on this language, the State contends that the Education Clause only requires "[u]niformity in administrative matters" and does not have any qualitative component. But the Delaware Supreme Court did not have to consider whether the clause incorporated a qualitative component. The high court diligently addressed seriatim the issues raised by a frustrated taxpayer, whose lawyers seemingly advanced every argument they could muster in an effort to set aside a referendum. The taxpayer did not argue about whether the Education Clause has a qualitative component, which was irrelevant to her challenge, and the Delaware Supreme Court did not rule on that question.

In 1968, the Delaware Supreme Court issued a second advisory opinion regarding the Education Clause, this time in response to a request from Governor Charles L. Terry, Jr.239 The General Assembly had adopted legislation that reorganized school districts across the state. The newly combined districts were responsible for debts of the constitutive districts. Opponents of the act contended that this step was unconstitutional and imposed burdens of debt and tax liability upon residents without due process. The Delaware Supreme Court rejected this challenge:

The Delaware Supreme Court also rejected contentions that the General Assembly had improperly delegated its power to the State Board of Education, that the legislation was invalid because it addressed more than one subject, and that the legislation impaired the obligation of contracts protected by the United States Constitution.241

As with the advisory opinion rendered in 1921, the opinion from 1968 provides little guidance for the current case. It confirms that the General Assembly has broad power over the education system, but it does not consider whether the Education Clause has a qualitative dimension. The request asked the high court to consider five legal questions. The Delaware Supreme Court was not presented with an as-applied challenge to the functioning of Delaware's system of public schools.

In 1979, the Delaware Superior Court ruled on whether a school district could invoke sovereign immunity in a personal injury action that accused the school district of negligence.242 In one of their arguments against sovereign immunity, the plaintiffs argued that the doctrine did not apply to school districts, contending that "local school districts, as they have evolved under Delaware law, are more analogous to political subdivisions," which had been denied the defense of sovereign immunity.243 The Superior Court agreed, reasoning as follows:

The State suggests that this passage support its position in this case, particularly the Superior Court's observations that the Education Clause does not prescribe "the method and format" of Delaware's system of public schools and that the General Assembly "is free to adopt any format to provide a general educational system in the State." Both observations are true, but that does not foreclose a qualitative component. The Education Clause obligates the State of Delaware to create and maintain a system of public schools that successfully educates Delaware's students. The Education Clause grants the State broad discretion over the means it chooses to achieve this end, as long as it achieves that end. The issue in this case is whether the means that the State has chosen is achieving that end for Disadvantaged Students.

There are other Delaware cases that the parties have cited, but they add little to the mix. Two correctly cite the broad authority that the General Assembly possesses under the Education Clause.245 Another observes that "merely because an education program may be imperfect does not render it constitutionally invalid."246 Although that decision addressed a challenge brought under the federal equal protection clause, the observation applies equally to the Education Clause and to the claims asserted in this case.

Existing Delaware precedent simply does not address whether the Education Clause has a qualitative dimension. The issue presented in this case is one of first impression.

4. Other States' Interpretations Of Comparable Education Clauses

Every state's constitution has a provision addressing education.247 Except for Mississippi's, every state's constitution mandates, at a minimum, that the state maintain a system of free public schools.248 As of 2013, courts in thirty-one states had held that the education clauses in their state constitutions contained a quantitative component and mandated a minimally adequate education.249 Because the constitutional provisions differ in their language, this decision looks for persuasive authority in those jurisdictions that adopted provisions similar to the Education Clause during the wave of state constitutional reform that swept over the United States during the second half of the nineteenth century.

a. Types of Education Clauses

Scholars who analyze education clauses in state constitutions classify them into four categories.250

The different framing of the education clauses could readily lead courts to reach different results when applying the provisions.260

When considering precedent from other states, it is important to understand what type of education clause the court was interpreting. Delaware's Education Clause is a center-of-the-fairway Category II provision. To determine whether it incorporates a qualitative component, this opinion looks to decisions from other jurisdictions that have considered Category II provisions that were adopted during the same historical period.

There are sixteen states that adopted provisions resembling the Education Clause after the Civil War and before the turn of the twentieth century: Ohio (1851), Minnesota (1857), Maryland (1867), Illinois (1870), West Virginia (1872), Pennsylvania (1874), Arkansas (1874), New Jersey (1875), Colorado (1876), Texas (1876), Florida (1885), South Dakota (1889), Montana (1889), Wyoming (1889), Idaho (1890), and Kentucky (1891).

For purposes of analyzing precedent, this decision omits Montana, Florida, and Illinois. Montana's education clause originally resembled Delaware's,261 but the state revised its clause substantially in 1972.262 After the revision, the Montana Supreme Court held that the education clause had a qualitative component.263 At that point, however, the significant textual differences between the two clauses weaken the persuasiveness of the Montana case for purposes of interpreting the Education Clause.

Florida's clause is sui generis, both because its development followed a unique course early on and because the clause was subsequently amended in 1968 and 1998.264

The extant opinions deal with the later versions of the clause and conflict on key points, with the Florida Supreme Court having accepted jurisdiction in a recent case.265

Illinois's clause is also distinguishable. The original provision from 1870 contained Category II terminology that called a "thorough and efficient system," but it went further by instructing the legislature to create a system of public schools "whereby all children of this State may receive a good common school education."266 In 1970, Illinois replaced its education clause with a new provision that required the state to "provide for an efficient system of high quality public educational institutions and services."267 The new provision thus reinforced and strengthened the qualitative component, and case law interpreting the provision does not provide meaningful insight into whether a qualitative component should otherwise exist.268

An argument could be made for including Arizona and New Mexico. The constitutions of both states contained Category II provisions when they were admitted to the Union in 1912, within what historians think of as the "long nineteenth century" (1776-1914).269 Arizona's original constitution contained a provision resembling the Education Clause,270 and the Arizona Supreme Court held that this provision contained a qualitative component.271 The same is true for New Mexico.272 Including these jurisdictions would reinforce the conclusion that this decision already reaches.

b. The Thirteen Jurisdictions

Omitting Illinois, Montana, and Florida leaves thirteen jurisdictions that adopted Category II-style education clauses after the Civil War and before the turn of the twentieth century. The highest courts in all thirteen states have held that their education clauses contain a qualitative component. These include the highest courts in the states whose constitutions the delegates to the Convention of 1896-97 referenced during their debates over the Education Clause.

During the constitutional debates, delegate Spruance cited Arkansas as one of the models for the Education Clause.273 The Arkansas clause reads: "Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the state shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education."274 The Arkansas Supreme Court has held that this clause contains a qualitative component: "There is no question in this court's mind that the requirement of a general, suitable, and efficient system of free public schools places on the State an absolute duty to provide the school children of Arkansas with an adequate education."275 The court did not attempt to state what constituted an adequate education, but rather affirmed the trial court's application of specific standards that the court had developed to address the claims.276

During the constitutional debates, Spruance cited Minnesota as one of the precedents he considered when drafting the Education Clause, noting that it contained an introductory preamble that provided "a little bit of 4th of July oratory" that he found unnecessary.277 The Minnesota clause states: "The stability of a republican form of government depending mainly upon the intelligence of the people, it is the duty of the legislature to establish a general and uniform system of public schools."278 The Minnesota Supreme Court has held that this provision imposes an obligation to "ensure a regular method throughout the state, whereby all may be enabled to acquire an education which will fit them to discharge intelligently their duties as citizens of the republic."279

During the constitutional debates, Spruance cited Pennsylvania as a precedent for the Education Clause.280 At that time, Pennsylvania's education clause stated: "The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public schools, wherein all the children of this Commonwealth above the age of 6 years may be educated, and shall appropriate at least one million dollars a year for that purpose."281 After being revised in 1967, the clause currently states: "The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth."282 The Supreme Court of Pennsylvania has held that the clause incorporates a qualitative component.283 The court declined to spell out in the abstract what the qualitative standard was, choosing instead to remand the case so the trial court could develop standards to resolve the issues presented, taking into account both Pennsylvania's existing educational standards and other sources of authority.284

In Delaware's neighboring states of New Jersey and Maryland, the state supreme courts have likewise held that their respective education clauses contain a qualitative component. The New Jersey education clause states: "The Legislature shall provide for the maintenance and support of a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years."285 The New Jersey Supreme Court has held that its plain language contemplated "an equal educational opportunity for children."286 The court later elaborated on this concept: "The Constitution's guarantee must be understood to embrace that educational opportunity which is needed in the contemporary setting to equip a child for his role as a citizen and as a competitor in the labor market."287 In a subsequent decision, the New Jersey Supreme Court explained that the clause requires "a certain level of education, that which equates with thorough and efficient."288

In Maryland, the education clause states: "The General Assembly, at its First Session after the adoption of this Constitution, shall by Law establish throughout the State a thorough and efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance."289 Maryland's highest court has held that the education clause has substantive content and requires that the General Assembly "establish a Statewide system to provide an adequate public school education to the children in every school district."290

The Ohio education clause states: "The general assembly shall make such provisions, by taxation or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State...."291 The Supreme Court of Ohio has held that the clause did not permit a system in which "part or any number of the school districts of the state were starved for funds," nor one "in which part of any number of the school districts of the state lacked teachers, buildings, or equipment."292

The Kentucky education clause states: "The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state."293 The Supreme Court of Kentucky has held that the clause has substantive content and requires that the General Assembly provide every Kentucky student with "equal opportunity" to receive an "adequate education."294 The court went on to define an "efficient system" of education as one that includes eight minimum characteristics295 and "has as its goal the development of seven capacities."296

The West Virginia education clause states: "The Legislature shall provide, by general law, for a thorough and efficient system of free schools."297 The Supreme Court of Appeals of West Virginia held that the clause has substantive content and requires a system that "develops, as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreation and citizenship, and does so economically."298 The court also identified eight areas that an educational system needed to address.299

The Texas education clause states: "A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools."300 The Supreme Court of Texas has declared that this provision has substantive content and requires that the legislature establish a system that will provide for a "general diffusion of knowledge." The court disagreed with the state's interpretation of "efficient" as "a simple and inexpensive system" and held that the term means "effective or productive of results[,] connot[ing] the use of resources so as to produce results with little waste...."301

Wyoming's education clause states:

The Wyoming Supreme Court concluded that the clause has substantive content and requires the legislature "to provide an education system of a character which provides Wyoming students with a uniform opportunity to become equipped for their future roles as citizens, participants in the political system, and competitors both economically and intellectually."303

South Dakota's education clause states:

The South Dakota Supreme Court held that this language guaranteed for the state's children "a free, adequate, and quality public education which provides them with the opportunity to prepare for their future roles as citizens, participants in the political system, and competitors both economically and intellectually."305

Colorado's education clause states: "The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously."306 The Colorado Supreme Court has held that clause has substantive content, explaining that "the phrase `thorough and uniform' in the Education Clause describes a free public school system that is of a quality marked by completeness, is comprehensive, and is consistent across the state."307

Idaho's education clause states: "The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools."308 The Idaho Supreme Court held that the clause has substantive content and requires that state provide a "safe environment conducive to learning."309 The Idaho Supreme Court has stressed that courts should give meaning to the requirement of a "thorough" system by looking to the executive branch's "promulgated educational standards pursuant to the legislative's directive...."310

This brief survey of decisions from states with similar Category II provisions shows that courts have uniformly interpreted them as having a qualitative component. These decisions counsel in favor of holding that Delaware's Education Clause likewise has a qualitative component.

5. The Qualitative Component And The Plaintiffs' Claims

The plain language of the Education Clause, its legislative history, and decisions from other states all point to the conclusion that the Education Clause has a qualitative component. The Education Clause requires that the General Assembly establish and maintain a system of public schools that lives up to that description in substance and not just in form.

From a linguistic standpoint, it is easiest to speak of this qualitative component using an adjective, such as an "adequate" or "meaningful" or "effective" education. Jurisprudentially, it is simplest to follow the lead of other courts and scholars who speak in terms of an "adequacy requirement." Recognizing that an adequacy requirement exists is only the first step. The more difficult question is how to implement it.

The parties have not devoted significant briefing to this issue. The State argued that the Education Clause did not contain an adequacy requirement. The State did not dispute that the complaint pled a violation in the event the court held that the Education Clause contained an adequacy requirement. The plaintiffs touched lightly on what adequacy means. They principally relied on the standards that the Delaware Department of Education has set for itself.

Courts in the thirteen Category II jurisdictions that have addressed the question of adequacy have taken different approaches. Some courts, like the Supreme Court of New Jersey, have framed a general definition:

Others have adopted specific criteria.312

A third approach uses the existing standards adopted by the legislative or executive branches to define and measure adequacy.313 In my view, this approach recognizes the primacy of the political branches in this area. It also recognizes that the political branches are better suited to determine in the first instance the educational standards that schools must meet.

Consequently, I believe that the proper course in this case will be for the court to look first to the standards that the General Assembly and the Delaware Department of Education have chosen. The parties will have to establish what standards govern this case. The plaintiffs have alleged sufficiently for pleading purposes that the testing standards used to measure grade-level proficiency are a suitable metric to use. There are likely other components. For its part, the State suggested at the end of oral argument that the test standards did not measure grade-level proficiency, but were aspirational standards designed to push for greater student achievement. The statutory language directing the Delaware Department of Education to establish standards for grade-level proficiency does not support that contention,314 but if it proves to be the case, I would take that into account.

At least one court has expressed concern about using standards developed by the political branches, both because it could constitutionalize the prevailing beliefs of the day and render judicial review merely symbolic.315 I do not believe that deferring to the political branches in the first instance would do that. This approach rather recognizes that educational standards change over time and that the political branches are best suited to keep up with the times. Judicial review also remains meaningful in cases like this one, where the plaintiffs contend that the State is failing to meet its own standards. Ultimately, if the political branches fail to adopt any standards at all, or if they implement unacceptably low standards, then the judiciary might be forced to establish a constitutional minimum. If the political branches decided that the dystopian hypothetical from the introduction provided an adequate education, a court would have the power and the duty to hold that the constitutional minimum requires more. But once the analysis moves away from the extremes, there remains a wide range for the exercise of legitimate discretion. Within those bounds, I believe a court should deploy the standards for educational adequacy that the political branches establish.

For purposes of the motion to dismiss Count I, the plaintiffs have pled sufficiently that Delaware's system of public schools fails to provide an adequate education to Disadvantaged Students. The complaint starts with educational outputs, alleging that Disadvantaged Students fail to achieve grade-level proficiency at shockingly low rates. The introduction and the Factual Background detail those statistics, which need not be repeated. Based on these results, Delaware is not fulfilling its constitutional obligation to Disadvantaged Students.

Although the allegations regarding educational outputs would be sufficient standing alone to state a claim, the complaint does not stop there. The allegations of the complaint describe shortages in critical educational inputs like financial resources, high-quality teachers, specialists and counselors, and textbooks. The Factual Background summarizes those allegations, which support a reasonable inference that the State is not providing Disadvantaged Students with sufficient educational inputs to receive an adequate education.

The complaint also discusses relative disparities between High-Need Schools and wealthier schools. In my view, when considering educational adequacy, a reviewing court should take into account not only absolute levels of educational inputs in particular school districts, but also relative levels of inputs across school districts. This is because education is both an absolute good, in that learning new facts or skills has value in its own right, and a relative good, in that the value of one's knowledge and skills depends to some degree on a comparison with others' knowledge and skills.316 Particularly in the areas of financial resources and access to high-quality teachers, the complaint's allegations support a reasonable inference that the State is not providing Disadvantaged Students with sufficient educational inputs to receive an adequate education in a relative sense. To the contrary, the allegations of the complaint indicate that the State has established and maintained a counterintuitive system that provides more financial resources and high-quality teachers to wealthier, more privileged school districts, resulting in de facto discrimination against Disadvantaged Students.

The complaint further pleads that many Disadvantaged Students attend High-Need Schools that are effectively segregated by race and class. The Supreme Court of the United States held in Brown that a racially segregated education was inherently unequal, implying that it could not be adequate or effective.317 The allegations of the complaint support a reasonable inference that Delaware's High-Need Schools, which are effectively segregated by race and class, do not provide an adequate education to the Disadvantaged Students who attend them.318

Count I pleads a violation of the Education Clause. The motion to dismiss Count I on this basis is denied.

B. Count II: The Specific Challenge To The State's Funding System

In Count II, the complaint challenges how Delaware allocates state funds to school districts, contending that the system fails to provide sufficient funding to enable property-poor school districts to provide an adequate education to Disadvantaged Students. To some degree, this theory overlaps with Count I, because inadequate funding contributes to the current state of educational inadequacy for Disadvantaged Students. In Count II, the plaintiffs mount a standalone challenge to the state-funding system.

As with its response to Count I, the State does not take on the plaintiffs' claim directly. Instead, the State re-characterizes it as a demand for equalized funding. In its opening brief, the State claimed the plaintiffs were seeking "equal per-pupil funding state-wide."319 But the plaintiffs never argued that every pupil must have access to the same amount of funding. To the contrary, they contend that Disadvantaged Students require greater educational resources, and they believe the Education Clause mandates a funding system in which pupils who need more funding receive more funding, not one in which every pupil receives the same funding.

The State also contends that Count II should be dismissed because Delaware law permits individual districts to tax themselves at higher rates if they wish to provide greater funding for education.320 The plaintiffs do not dispute this point. They accept that individual districts can tax themselves at higher rates and generate more funding for their local schools.

Neither of the State's arguments for dismissal addresses the claim that the plaintiffs advance in Count II. Candidly, the plaintiffs could have done a better job spelling out their claim. The four paragraphs comprising Count II state:

The plaintiffs' claim becomes more clear when these contentions are read in conjunction with the balance of the complaint and against the backdrop of judicial decisions from jurisdictions with similar Category II education clauses. Indeed, paragraph 182 of the complaint paraphrases a holding by the Supreme Court of Texas in a decision that upheld a successful challenge to a state financing system structurally similar to Delaware's: "There must be a direct and close correlation between a district's tax effort and the educational resources available to it; in other words, districts must have substantially equal access to similar revenues per pupil at similar levels of tax effort."322

The plaintiffs start with the basic proposition that a certain amount of funding is necessary for a school district to be able to provide a constitutionally adequate education to its students. That amount must take into account the nature of the student population, including the fact that Disadvantaged Students generally require greater levels of funding. They further argue that the Education Clause imposes the obligation to establish and maintain a general and efficient system of public schools on the State.323 It does not impose the obligation on the local school districts. Consequently, if there are school districts that cannot provide an adequate education based on the amounts they are receiving, then the State must make up the difference. The plaintiffs then take the next logical step and contend that the inquiry should not be whether a school district could provide the necessary incremental resources under any circumstances, such as by enduring disproportionately high tax rates. The plaintiffs maintain that the residents of a property-poor district should not have to shoulder an excessively high tax burden.324 They consequently contend that each district should have access to sufficient funds from the State to provide a constitutionally adequate education with a reasonable tax burden.

At this point, a simplified example may help. Assume that an adequate education requires average spending of $100 per student. Assume that the State provides funding equal to $60 per student, and that the federal government provides funding equal to another $10 per student. Further assume that the State has three districts that differ only in the value of their tax base.

The plaintiffs believe that the State must provide enough funds to District 2 so that it can provide an adequate education to its students. They also believe that the State must provide enough funds to District 3 so that it can provide its students with an adequate education at a lower level of taxation. As best I can tell, the plaintiffs are not contending that the State must provide the full $100 needed for educational adequacy, nor the $90 needed once federal funding is taken into account. In my view, that would be a more straightforward argument that comports with the State having the constitutional obligation to provide an adequate education. The plaintiffs instead contend that the State can provide something less than $100 per student and force the districts to make up the difference, as long as the resulting tax burden is not "unreasonably heavy."325 The plaintiffs accept that District 1 will always have the ability to generate additional funds through local taxation and that Brennan permits District 1 to use those funds to provide a superior education for its students.

Interpreting similar arguments under comparable Category II provisions, courts in New Jersey, Ohio, and Texas have held that their state funding systems, which structurally resembled Delaware's, violated their education clauses.326 The plaintiffs' theory has legal support that the State has not made any effort to rebut. The State's only response to Count II was to mischaracterize the plaintiffs' theory.

The complaint's allegations are sufficient to state a claim under the plaintiffs' theory. The complaint alleges that the State provides approximately 60% of the funding that school districts need for their schools. Another 9% comes from the federal government. The balance comes from the school districts.327

It is reasonable to infer that funding from the local districts is necessary to achieve a constitutionally mandated minimum level of education. Under an arguable reading of the Education Clause that imposes on the State the obligation to fund a minimally adequate education, this situation alone presents a constitutional violation.

Taking the plaintiffs' view that the State can offload part of its funding obligation onto local school districts as long as it does not result in an unreasonably heavy tax burden, the complaint's allegations still support a reasonable inference of a constitutional violation. The complaint alleges that Delaware's school districts vary widely in their ability to provide the incremental funding necessary to achieve adequacy and that some struggle to meet this threshold. The complaint cites a report from the State's Equalization Committee which found that if each local district taxed its property at a reasonable rate, the resulting funding available per unit of students would range from $28,896 to $103,248.328 The Equalization Committee observed that poorer districts would not be able to raise revenue comparable to what wealthier districts could generate without imposing "astronomical tax rates."329 In other words, wealthy districts can easily make up the shortfall between the State's level of funding and educational adequacy, particularly if they have fewer Disadvantaged Students. Poorer districts cannot, particularly if they have more Disadvantaged Students. The report of the Equalization Committee also supports a reasonable inference that although the State purports to use Division III Equalization Funds to address the imbalance, the amount is insufficient, is allocated based on outdated criteria, and generates arbitrary results.

The plaintiffs contend that the resulting financing system violates the Education Clause, "because it places an unreasonably heavy burden on taxpayers residing in school districts with low property values to provide sufficient resources to children in those districts."330 In a constitutional system, the State would provide all school districts with enough resources to provide the constitutionally mandated level of education per pupil, taking into account that Disadvantaged Students need extra resources. At a minimum, the State would provide sufficient resources so that "local school districts have substantially equal access to similar revenues per pupil through a similar tax effort."331 In such a system, poorer districts would not have to strain make up the difference and potentially fall short of the amount required to achieve the constitutionally mandated minimum.

At the pleading stage, it is reasonably conceivable that the plaintiffs could prove a set of facts at trial that would enable them to prevail on this claim. They have pled disparities in taxable wealth and student spending across districts. They have also pled that the system benefits wealthy districts who need it least and harms poorer districts who need it most. At the pleading stage, the system seems to be generating arbitrary and unfair results. Either way, it is reasonably conceivable that such a system is not "general and efficient."

Count II pleads a violation of the Education Clause. The motion to dismiss Count II on this basis is denied.

C. Justiciability

So far, this decision has concluded that the Education Clause has a qualitative dimension and that the complaint's allegations state a claim that Delaware's system of public schools falls short of the constitutional mandate. According to the State, the plaintiffs' claim still should be dismissed because the courts are not competent to apply the Education Clause. The State maintains that whether Delaware's system of public schools satisfies the Education Clause is a non-justiciable political question. This decision reaches a different conclusion.

Delaware's Constitution vests the "judicial power" in the Delaware Supreme Court and Delaware's system of lower courts. Article I, Section 9 states: "All courts shall be open; and every person for an injury done him or her ... shall have remedy by the due course of law, and justice administered according to the very right of the cause and the law of the land...."332 Under these provisions, it is "the duty of the courts to protect constitutional guarantees."333 "[O]nly the Delaware judiciary has the power, `province and duty... to say what the law is'...."334

The federal courts have developed the concept of a "political question" to describe a case that a court should abstain from hearing because the issue would intrude on the authority of a coordinate branch of government.335 The Delaware Supreme Court has discussed the possibility of political-question abstention on four occasions, but has never abstained on that basis.336 Instead, the Delaware Supreme Court has held that a case which "turns on the meaning of a constitutional provision ... presents a justiciable issue."337

When plaintiffs have brought challenges in other jurisdictions involving an education clause, the defendants have regularly argued that the claim represented a non-justiciable political question.338 In the jurisdictions with Category II clauses like Delaware's, the highest courts in ten states have rejected political-question arguments explicitly and held that comparable challenges under their states' education clauses were justiciable.339 In three other states with Category II clauses, the states' highest courts held implicitly that the comparable challenges were justiciable by addressing the claims on the merits.340 Illinois is the only state with what is arguably a Category II clause that has held that a comparable claim was non-justiciable.341

Based on extant Delaware precedent, this case does not present a political question. It turns on the meaning of the Education Clause, which requires that the General Assembly "establish and maintain a general and efficient system of free public schools." The case thus "turns on the meaning of a constitutional provision" and "presents a justiciable issue."342 Not only that, but the legislative history of the Education Clause shows that the delegates to the Constitutional Convention of 1896-97 understood that the clause was mandatory and could be enforced in court. Martin and Saulsbury, two principal opponents of the clause, sought to reduce or eliminate the adjectives that appeared in Spruance's proposal ("general, suitable and efficient") precisely because Martin anticipated that there could be litigation over the meaning of those provisions.343 Consistent with their expectations, the Delaware Supreme Court has addressed claims under the Education Clause in Brennan344 and twice issued opinions at the request of the Governor addressing questions involving whether laws relating to Delaware's public schools were constitutional under the clause.345 No decision has ever called into question the power of the Delaware courts to interpret the Education Clause.346 In this arena, as in others, "only the Delaware judiciary has the power, `province and duty ... to say what the law is'...."347

A closer examination of the factors considered in political-question analysis confirms this conclusion. When discussing the possibility of political-question abstention, the Delaware Supreme Court has cited the considerations identified by the Supreme Court of the United States in Baker v. Carr, a case which challenged a legislative failure to update a voter apportionment statute to reflect changes in population distribution and density.348 The plaintiffs in that case asserted a violation of the Equal Protection Clause. As part of its analysis, the Baker Court discussed when it would be appropriate for a federal court to decline to address an issue:

The Baker Court held that the apportionment challenge was in fact justiciable.350

Under the Baker test, the question is not whether a case might implicate one or more of these considerations, but rather whether the role of any factor is so "inextricable from the case" as to prevent judicial resolution. That situation does not exist here.

1. A Textually Demonstrable Commitment A Coordinate Branch

The State argues that the Education Clause contains "a textually demonstrable constitutional commitment of the issue to a coordinate political department" by virtue of its statement that "the General Assembly shall provide for the establishment and maintenance of a general and efficient system of free public schools." In reality, the Education Clause imposes a mandate on the General Assembly. It is not a grant of authority, but rather a constitutional command that the General Assembly must carry out.351 The judiciary can and should determine whether the General Assembly has complied with this constitutional requirement.352

In support of its argument for absolute deference to the General Assembly, the State points to cases that have referred to the legislature's "plenary" power over education.353 The General Assembly does indeed have broad and expansive authority in this area, but the Education Clause does not make that authority non-reviewable. A direction to perform a task does not mean that the party performing it judges its own performance. "The idea that any legislature ... can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with the fundamental law, is in opposition to the theory of our institutions."354 "[T]he separation of powers in our tripartite system of government typically depends upon judicial review to check acts or omissions by the other branches in derogation of constitutional requirements."355

The Education Clause obligates the General Assembly to create and maintain a system of public schools. It does not say that the General Assembly has the authority to determine for itself whether its actions meet the constitutional requirement. As the Minnesota Supreme Court observed, "[a]lthough specific determinations of educational policy are matter for the Legislature, it does not follow that the judiciary cannot adjudicate whether the Legislature has satisfied its constitutional duty under the Education Clause."356 The Supreme Court of Pennsylvania likewise distinguished between a provision that assigns responsibility for a task and a provision that divests judicial review:

Like the Pennsylvania education clause, Delaware's Education Clause does not "confer[ ] upon the General Assembly the exclusive authority to monitor its own compliance."358

The fact that the judiciary retains its power to "say what the law is" for purposes of the Education Clause does not divest the political branches of their authority in this area. It rather ensures that the judiciary plays its proper role within a constitutional framework of checks and balances.359 As courts and scholars have recognized, for the judiciary to endorse the political question argument would constitute an abdication of the judiciary's responsibility in the area of education.360

Like the vast majority of other courts that have interpreted similar provisions, I do not believe that the Education Clause grants the General Assembly the authority to self-monitor, thus depriving the judiciary of its role in a system of checks and balances. The Education Clause assigns a task to the General Assembly. It does not manifest a textually demonstrable commitment to the notion that the General Assembly should judge for itself whether it carried out that task.

2. Judicially Discoverable and Manageable Standards

The State next argues that "a lack of judicially discoverable and manageable standards" makes it impossible for the judiciary to determine whether Delaware's system of public schools complies with the Education Clause. The State equates the qualitative component of the Education Clause with the need to determine and proclaim in the abstract what constitutes a proper education, and the State argues that it would be hubristic for this court to think it could "articulate a standard that has evaded scholars since the time of ancient Greece."361

I have already discussed my belief that the court should not determine and proclaim in the abstract what constitutes a proper education. The court instead can and should use in the first instance the standards for school adequacy and grade-level proficiency that the political branches have established.362 The complaint in this case pleads that the State is failing to provide an adequate education based on these standards.

On a broader level, there is nothing particularly vague or indeterminate about the standard that the Education Clause imposes compared to other legal standards. Judicial decisions interpret and enforce concepts such as "probable cause," "due process," "equal protection," and "cruel and unusual punishment."363 In corporate law, Delaware courts have developed a meaningful jurisprudence based on fiduciary duties of care and loyalty, and a subsidiary concept of good faith.364 The Delaware judiciary is equally able to interpret and apply the Education Clause.

The State also fears that this litigation would grow into an unmanageable monster, citing lawsuits in other states have generated "protracted litigation spanning multiple years, even decades."365 The Delaware courts regularly manage complex litigation. This case is within the competence of the Delaware courts.

3. The Need For An Initial Policy Decision

The State next argues that it is impossible for a court to rule on this case without an initial policy determination of a kind clearly not suited for the judiciary. The framers of the Constitution of 1897 made the initial policy decision when they drafted the Education Clause and mandated a "general and efficient system of public schools." The judiciary can interpret and apply that standard. Since then, the General Assembly and the Delaware Department of Education have established detailed standards for grade-level proficiency, including metrics for assessing student achievement. The judiciary can interpret and apply those standards as well.

4. Respect For Coordinate Branches Of Government

The State finally argues that by resolving this case, this court would express a lack of respect for coordinate branches of government. But as other courts have observed when rejecting similar arguments, this case is no different from others in which a court must pass on the constitutionality of a statute or action taken by the executive.366 It does not show a lack of respect to coordinate branches for the courts to fulfill their constitutional role in the system of checks and balances. One might posit that it shows a lack of respect for the role of the judiciary when the political branches argue that their actions should not be subject to any form of review and that the courts are incompetent to perform their role.

The possibility of interference with a coordinate branch looms largest for the remedial phase. If the plaintiffs succeed in proving a constitutional violation, then there will be questions about whether and to what extent this court can impose a remedy. Courts in other jurisdictions have reached different conclusions about the remedies a court can impose. Some have stopped at issuing a declaration regarding constitutional compliance, leaving the solution to the political branches. Others have given the political branches a first crack at a solution. And others have deployed more substantive remedies.367

Whether and what kind of remedy issues should be addressed at a future date. The court will only need to cross this bridge if the plaintiffs prove their claims. Any relief will be tailored to address the claims and remedy the harm. The parties will of course have significant input in the crafting of relief. Depending on what (if anything) the plaintiffs prove, the situation might warrant only declaratory relief. Or, it might warrant equitable relief. It is also possible that the court might need to provide provisional relief pending action by the political branches.368 The possibility that a remedy might include relief that goes beyond a declaratory judgment is not a reason to dismiss the complaint at the pleading stage and deny the plaintiffs an opportunity to prove their case.

D. The Treasurer's Status As A Defendant

The Treasurer contends that he should not be a defendant because his office has nothing to do with education. In terms of the substance of what Delaware schools teach and how they go about doing it, that is true. In terms of the financing of Delaware's public schools, this assertion misses the mark. The Treasurer is the "Trustee of the School Fund" and "make[s] disbursements authorized by law."369 The Treasurer also serves as the treasurer of each school district and as the receiver and custodian of all moneys to which school districts are entitled by law.370

The plaintiffs contend that the State allocates financial resources among school districts and schools in a manner that violates the Education Clause. The Treasurer oversees that process. He is therefore a proper defendant. A survey of sixty-one similar cases in other jurisdictions found that approximately 20% named the state treasurer and another 10% named the state director of finance.371 To include the Treasurer is therefore not uncommon.

The additional burden of keeping the Treasurer in the case appears minimal. The plaintiffs have sued all of the defendants in their official capacities; none are being sued personally as individuals. The Treasurer is not facing different claims, nor does he have any unique defenses. Recognizing this fact, the defendants have adopted to date and doubtless will continue to adopt a united front. In substance, it is the State that is the real defendant. The Treasurer's separate motion to dismiss is therefore denied.

III. CONCLUSION

The Education Clause mandates that the General Assembly "establish and maintain a general and efficient system of free public schools." Counts I and II assert legally cognizable claims that the State has failed to satisfy its obligation for Disadvantaged Students. These issues are justiciable. The motion to dismiss is denied.