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State Education Funding Lawsuit: How can the system work better?

Delaware Public Media

The state of Delaware finds itself in court, defending its public school funding system in a lawsuit filed last year.

This week, Delaware Public Media completes an in-depth look at the key issues in the case with Part 2 focusing on the actual system used by the state to deliver education funding.  Last week, Part 1 dealt with the controversial issue of property reassessment.

In January 2018, two organizations, Delawareans for Educational Opportunity and the NAACP Delaware State Conference of Branches, with legal support from the ACLU Foundation of Delaware and the Community Legal Aid Society, filed suit in the Court of Chancery challenging Delaware’s system of funding public education. The suit contends that inequities in the funding system impair the opportunity of disadvantaged students to receive an adequate education. The plaintiffs also argue that the current system for levying property taxes at the county level contributes to the problem because it violates long-established standards set by the Delaware General Assembly.

In a two-part series Delaware Public Media is examining the key issues in the case. Last week: assessments and property taxes. This week: the state funding system.

The numbers are stunning.

During the 2015-16 school year, 35.6 percent of the low-income students in Delaware’s public schools met state standards in language arts in the annual Smarter Balanced Assessment, and 64.4 percent did not. In math, 25.42 percent met the standards, 74.58 percent did not.

Among students with disabilities, 13.48 percent met standards in language arts in 2015-16, and 86.52 did not.

Among English Language Learners, 15.14 percent met standards in language arts and 84.86 percent did not. In math, 18.1 percent met the standards and 81.9 percent did not.

Statistics like these fill the first pages of Vice Chancellor Travis Laster’s November opinion rejecting the state’s motion to dismiss the suit filed by Delawareans for Educational Opportunity and the NAACP Delaware State Conference of Branches against Gov. John Carney, Secretary of Education Susan Bunting, former State Treasurer Kenneth Simpler and the county officials responsible for collecting property taxes on behalf of local school districts throughout the state.

But those numbers tell only part of the story.

In his opinion, on several occasions, Laster describes the state’s complex system of education funding as “counterintuitive.”

The reason for that description, he writes, is this: “The educational funding system generally provides more support for more privileged children than it provides for impoverished children….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.”

In other words, the state, which provides more than 60 percent of public school funding, isn’t directing that money into the schools where the students’ needs are greatest.

The statistics Laster cites put the state’s defendants in a difficult position, because all those numbers were generated through the system that the state itself has adopted to measure the performance of its schools and their students. On top of that, Laster cites four studies mentioned by the plaintiffs – from 2000, 2008, 2014 and 2015 – as evidence that “Delaware’s officials have long known about the problems facing Disadvantaged Students and the potential solutions for addressing them.”

In attempting to craft a defense, the state made what Laster called “a striking concession.” Hard put to discredit their own data, the state acknowledged that “not all of Delaware’s public schools are serving Delaware students the way they need to.”

Instead, the state staked out, in Laster’s words, “the bold position” that the education clause in the 1897 state Constitution “does not require that the State provide students with a meaningful education,” because the clause only requires that the school system be “general” and “efficient.”

In rejecting this argument, Laster himself carried this rationale to the extreme, describing a “nightmare scenario” in which “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.”

That background takes us to where the suit stands today. Laster has broken the case into two parts, with the portion relating to the counties and property tax assessments being heard first, and a decision on that portion possible by the end of this year.

The portion on state funding is expected to be tried and decided sometime next year.

Plaintiffs’ attorney Ryan Tack-Hooper, legal director for ACLU Delaware, says this portion of the case breaks into two categories: What things in schools have to change, like adding teachers and programs to better serve students with special needs, and where does the state find the money to pay for these additional services.

“The reason we’re suing,” he says, “is that the political process has been unable to reach a solution that complies with the state Constitution.”

While waiting for this portion of the suit to move forward, Gov. Carney and the General Assembly are attempting to address some of the financial issues that go to the heart of the case.

Given the way the suit has unfolded, the big question on the state funding side is what the state will do to remedy the inequities spelled out by the plaintiffs, and whether those actions will convince the judge that the issues are being resolved.

Carney stepped up in January, proposing to include $60 million -- $20 million a year for three years – in the state budget for programs to benefit disadvantaged students. Schools districts would receive $300 for each low-income student they enroll and $500 for each English language learner. They would create targeted programs, subject to approval by the state Department of Education, that would include options like hiring reading or math coaches or trauma counselors, or developing after-school programs. After three years, programs would be evaluated, with any eye toward replicating the most successful initiative on a broader basis.

At the time, Carney said the pending lawsuit was not a factor in offering the proposal but added that the plan could possibly help the state’s case.

“If approved, this would be the first weighted funding program in Delaware’s history, and provide new supports for Delaware’s most disadvantaged students,” said Jonathan Starkey, Carney’s communications director.

While it’s early in the state’s budget process, key lawmakers say Carney’s proposal will likely be approved.

“I haven’t heard any rumblings that people aren’t willing to go ahead with the governor’s plan,” said Sen. Laura Sturgeon, D-Brandywine Hundred, a member of the budget-writing Joint Finance Committee and chair of the Senate Education Committee.

“I’m very confident it will get through the Joint Finance Committee,” added Rep. Earl Jaques, D-Glasgow, chair of the House Education Committee. “It’s a good first step.”

But Sen. Elizabeth Lockman, D-Wilmington West, a co-chair of the Wilmington Education Improvement Commission that recommended funding improvements that the state declined to adopt in 2016 and 2017, warned that Carney’s plan, if workable, must be made “sustainable and permanent.”

While legislators are beginning to talk about long-term reforms in funding procedures that would provide additional grants for disadvantaged students, the consensus is that this will not occur this year – and it might take three years, the time needed to assess whether Carney’s “Opportunity Grants” are effective.

Also, legislators like Sturgeon, a high school teacher, and educators like Brandywine School District Superintendent Mark Holodick are concerned with how the Department of Education will evaluate the districts’ pilot programs. Overreliance on Smarter Balanced scores as a metric should be avoided, they said. Factors they mentioned for use in evaluations include attendance rates, school climate and discipline statistics and the use of restorative justice procedures.

“There’s a lot of consensus in support of weighted funding” to target additional resources to schools with high populations of disadvantaged students, says Lockman, who is also vice-chair of the Senate Education Committee. “We see the writing on the wall. The question is, what is the best mechanism? Do we keep the unit system [of funding]? Should the money follow the child? That’s a conversation we need to have. That’s where we’re stuck.”

“We’re talking about a number of things, but there’s nothing I can latch onto now,” Jaques says.

Jaques did acknowledge that there is some sentiment among legislators to wait and see what the court orders before moving ahead with significant reforms.

But their attitude hardly matches the sense of resistance demonstrated by members of the General Assembly during the 1970s court battles over desegregation in New Castle County schools.

“We have not funded [programs for] English language learners and low-income students enough,” even though almost every other state has done so, Jaques says. “It’s the right thing to do.”

Other school finance reform measures that could have an impact on the lawsuit are also likely to get consideration this year.

Rep. Kim Williams, D-Newport, is sponsoring H.B. 48, which would provide additional funding for special education students in kindergarten through third grade. As with the low-income and English-language learner groups, most other states provide special funding for this student demographic, but Delaware does not.

Jaques says he is planning to introduce legislation that would give school boards authority to increase tax rates without going to voters with a referendum.

He hasn’t worked out the details yet, and realizes it may be a challenge to persuade voters, but he says it would be less expensive to taxpayers in the long run if districts raised rates by a couple of cents per $100 of assessed valuation each year, rather than holding a referendum that would raise taxes by a larger amount, only to stash much of the revenue away so it could be spent over a period of four, five or six years.

Sturgeon says that she would like to see school boards have greater authority to raise taxes but has heard that some board members don’t like the idea, in part because voters might blame them and vote them out of office should they seek re-election.

Meanwhile, in New Castle County, the council this week saw four members introduce an ordinance that would create a “reassessment reserve account,” essentially setting aside funds each year to help pay for a countywide property reassessment.

One reason for all this activity is the recognition – by lawmakers and the governor – that they would rather make the big decisions on school funding than have the courts do it for them.

“Governor Carney believes this is an issue that can and should be addressed through the legislative process,” spokesman Starkey says.

But the prospect for long-term school finance reform, something that would overhaul or replace the state’s 70-year-old unit system of funding, remains as elusive as ever.

“The system does not need to be blown up, but it does need some changes,” says Dusty Blakey, superintendent of the Colonial School District and current head of the state’s Chief School Officers Association, an organization of district superintendents.

Multiple students in the last decade or so have pointed to flaws and inequities in the state’s funding system but no specific proposals have been developed and the issue has never risen to the top of the agenda in either Legislative Hall or the governor’s office.

“A large-scale overhaul is a massive project, and individual legislators would all come at it from different perspectives,” Sturgeon says. “We need leadership from above. We feel we need to have to governor on board, to have him lead the way so we can take our cues from him.”

Larry Nagengast, a contributor to Delaware First Media since 2011, has been writing and editing news stories in Delaware for more than five decades.
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