Lawsuit: Delaware schools are leaving children in poverty behind

There is no doubt in Jessica Antwi's mind that Delaware's education system is unfair.

Her son, 10-year-old Tylan Raburnel, was held back a year and is in fourth grade at Stubbs Elementary School in Wilmington, where 86 percent of students come from low-income families and more than 85 percent are black.

Tylan's backpack comes home empty every night and he doesn't have the tools to study at home and improve, Antwi said.

She feels like he isn't learning enough during the school day to do well. Unlike some other parents, Antwi can't afford to hire a tutor.

Tylan often comes home with stories about classmates who have been suspended. He's had issues with no father at home.

About 44 percent of the school's students were suspended last year, according to the state.

Clearly, Christina School District doesn't have enough resources to support students struggling with mental or behavioral problems, Antwi said. She thinks the school does the best with what it has, but there just isn't enough money.

Jeffers Brown, her son's principal, pointed to several workshops that teach staff how to cope with students' emotional and behavioral issues.

Even so, "I feel like the children are very aggressive," Antwi said. "I feel like the teachers are kind of scared of the students. There's a level of fear."

Giving students and teachers in so-called high-needs schools the support they need takes money, and a lawsuit filed by two civil rights groups — Delawareans for Educational Opportunity and the Delaware NAACP — demands the state change how it funds education. It claims the system provides more support for children who are well off than it provides for children living in poverty.

They are working with the Community Legal Aid Society and the American Civil Liberties Union of Delaware, which says the state's education system is not providing an adequate education to all students.

The lawsuit, similar to ones filed in 45 states, seeks to have more money given to schools with large numbers of low-income students, special education students and English language learners.

That funding would allow school districts like Christina to invest in tools that could help those students succeed, as districts in New Jersey now do. And it could keep experienced teachers from fleeing jobs in those schools that can be overwhelmingly stressful.

ACLU-DE legal director Ryan Tack-Hooper said despite the best efforts of teachers, families and school staff, the current education system fails too many Delaware children.

Even if the lawsuit is not successful, similar cases in other states have had a significant impact and raised public awareness of the issues.

According to the lawsuit, funding inequities harm students from low-income families, students with disabilities and students who are learning English. Schools struggle to hire specialists who can help them, and test scores for disadvantaged students are far below state standards set by the Delaware Department of Education in its new Every Student Succeeds Act, or ESSA, plan.

At Stubbs, for example, less than 5 percent of fourth-graders were at grade level in math last year and only about 6 percent were proficient in English language arts.

Antwi said often students' home lives are blamed for poor performance at school.

"There’s this perception that these kids come from a poor community and that their parents don’t care," she said, making it clear that she would do anything possible to help her son succeed. "But where you live doesn't define who you are."

She also wishes her son got more homework, so she could help him study at night, but the school is moving away from that.

"Homework is viewed as an end-all be-all by most of our parents," her son's principal said. "Our kids have been working diligently on the two new curriculums we implemented this year during school hours. They are very scripted and may not call for homework assignments. Only the lower grades receive homework packets every week."

Tylan has been attending Stubbs for about three months and previously attended Carrcroft Elementary School in Brandywine Hundred.

Pavia Fielder, who recently retired from a 16-year stint as a teacher at Warner Elementary School in the Red Clay School District, and now substitute teaches in New Castle County, said the problems aren't isolated to one school or one school district.

She sees a sharp contrast between schools that serve large amounts of low-income students and those that don't. Often, the inequities exist not between school districts, but within school districts, she said, between schools in the city or low-income neighborhoods and in the wealthier suburbs.

“I see it in all of the districts. I see it everywhere," she said. “Some schools have what they need, but these (low-income) schools never get what they really need. When is that going to happen?"

'Not perfect, not unconstitutional'

In a motion to dismiss the lawsuit, lawyers for Carney and the state Education Department argue that Delaware's Constitution doesn't guarantee students a fair or "adequate" education system. It only promises a "general and efficient" one that achieves maximum productivity with minimum wasted effort or expense.

"Delaware’s education system is not perfect, but it is not unconstitutional," the motion to dismiss says.

In a reply brief filed this week, ACLU and Community Legal Aid lawyers argue the framers of Delaware's Constitution sought to prepare children to engage in democracy and be productive citizens.

Delaware is failing to do that, the brief says.

"This failure is the result of policies and practices that deprive public schools of the resources and organizational structure needed for all children to receive necessary services and support," it says.

The Education Department had no comment on the case. Gov. John Carney's office pointed to new investments outlined in his proposed 2018 budget and said they will give students more support.

They include $16.5 million to help improve education in the five struggling Christina School District schools in Wilmington and $6 million for the Opportunity Grants program that assists schools serving high poverty and non-English speaking students — a three-fold increase over the current allocation.

Carney believes that all Delaware children deserve a quality education, said Jon Starkey, a spokesman for the governor. "He is committed to investing in Delaware's schools, and providing additional support and resources for schools serving low-income children, English learners and students with special needs."

Critics say the new investments proposed by Carney won't have a significant, lasting impact.

Many schools in Delaware do not have the money to pay for smaller class sizes, expanded school time, highly qualified specially trained teachers, technology, effective family engagement and partnerships with health, family welfare and specialized education service providers.

Mike Griffith, a senior school finance analyst for the Education Commission of the States, said Delaware's education funding system only exists in six other states: Alabama, Georgia, Idaho, Mississippi, Tennessee and Virginia.

It's top-down, and many states have moved away from that model, he said. The state basically determines how many teachers, principals, nurses, etc. a school qualifies for and sets aside money to fill those positions. Districts can "cash in" some of those positions, but then only get a portion of the total salary to use for other purposes.

“Your system doesn’t allow there to be dollars, money dollars," Griffith said. "It allows there to be teachers.”

That can really hamper schools, he said in a 2016 Q&A with the Rodel Foundation of Delaware.

"The big thing in Delaware is that the current system doesn’t allow for flexibility in the new areas where education is now being taken," Griffith said. "Digital learning, for instance, is one of the biggest growth areas in education, as is dual and concurrent enrollment. In a more flexible system, you can say we’re going to use these funds to pay for teachers and for these enrollment opportunities for our students.

"Today we see more and more kids splitting time between virtual learning environments and brick-and-mortar school environments. Your system is built strictly on that brick-and-mortar idea. It’s not flexible for modern learning."

The lawsuit says tying money to teachers creates other problems, such as staff instability.

Since high-poverty schools have a large proportion of students with extra needs but lack the resources to address them adequately, they are difficult places to work. Teachers with more seniority often choose to teach elsewhere, which leaves relatively inexperienced staff serving those disadvantaged students.

The annual rate of teacher turnover at high poverty schools is much higher than the statewide average of 15 percent. For example, at Bayard Middle School in the Christina School District, about 30 percent of teachers changed last year and in the 2015-16 school year, turnover was more than 60 percent, according to the lawsuit.

Fielder, who worked at Warner Elementary for 16 years and has been certified as a teacher in Delaware since 1999, had more experience than many of the teachers there. Fifty-six percent have been teaching for nine years or fewer, according to the state Education Department. Twenty-four percent have been teaching for four years or fewer.

"Every single year, we had teachers that would leave before October," Fielder said. "And definitely, if they made it through the school year, they were gone. They were looking for something that wasn't so intense."

As the result of the Charter School Act and Neighborhood Schools Act, which requires students attend the school closest to their homes, Warner has been effectively re-segregated, according to the lawsuit. Only 1.8 percent of students there are white.

By contrast, Heritage Elementary School, in the same school district but outside the city of Wilmington, is 72 percent white.

Fielder said she couldn't blame the teachers who left Warner, because it was a tough place to work. There were students dealing with serious trauma, and not enough support staff to help them deal with their needs.

“It’s a serious, serious problem that all schools are dealing with, but not in the magnitude and numbers that the priority schools are dealing with," she said, referring to the state's lowest-performing schools.

Warner, where 16.7 percent of fourth-graders were proficient in English last year and 8.9 percent were proficient in math, is one of them.

“Unless we really just have some real conversations about what’s going on," Fielder said, "I don’t see how it will change.”

Setting precedent

The lawsuit has provoked some conversation already, though it is unclear if the issue will actually be taken up by Chancery Court Judge Travis Laster.

In other states, judges have refused to hear such cases, arguing that they do not have jurisdiction over legislative funding formulas. And when cases are heard, it can take an average of seven years for them to wind their way through the court system, Griffith said.

As of now, there are only four states — Hawaii, Mississipi, Nevada and Utah — that haven't faced litigation over their school funding formula.

“In most cases, the resort to litigation or to lawsuits is the last resort," said David Sciarra, executive director of the Education Law Center in New Jersey. “What’s happening in Delaware is systematic of what you see in states across the country."

Sciarra said his organization has tracked multiple school funding cases and they often serve as an important catalyst for change.

In about 60 percent of the lawsuits, the court sided with the plaintiffs, according to SchoolFunding.Info. Most cases point to academic and graduation standards that states began adopting in 1989 and to low test scores to argue states aren't fulfilling their responsibilities.

“You have states — every state now actually — prescribing standards that schools, teachers, students have to meet," Sciarra said. "But if the resources aren’t there, all this talk about closing achievement gaps among legislators is frankly hollow."

“The kids that get hurt by that the most, or harmed by that failure, are the ones that have the greatest need. And you just see that play out from state to state to state.”

There have been several school funding lawsuits in New Jersey, he said.

In 1973, the New Jersey Supreme Court declared the state’s school funding formula was unconstitutional because it violated the “thorough and efficient education” requirement of the state Constitution. Since that decision, the Supreme Court has issued more than a dozen school finance opinions.

A new funding formula was created in 2008 and is considered a national model, even though since it was only fully funded in 2009 school districts have been getting less than the court says they should. Even so, for several years now, New Jersey has been ranked near the top in the nation for student achievement.

“The graduation rate of all poor people in New Jersey is higher than the national average for all children," Sciarra said.

Pennsylvania is also in the middle of a school funding lawsuit, which could have implications for Delaware, Sciarra said. While Pennsylvania courts had maintained they didn't have jurisdiction over school funding, the Pennsylvania Supreme Court in 2017 reversed that and said it would take up the issue.

That opened the door for a school funding overhaul in Pennsylvania. It highlights a fundamental shift in legal strategy for education funding lawsuits and outlines one potential path the school funding case can take in Delaware's Chancery Court, Sciarra and other experts said.

"That's probably going to loom large over (Delaware's) case," Sciarra said.

A possible solution?

"We spend a lot on public education, that's a line you hear a lot," said Eve Buckley, who has two children at Shue-Medill Middle School in Newark. “I think the main thing is we’re not spending the money in a smart way. We’re not directing it where the needs are.”

Over the years, she's seen programming cuts and class size increases at Shue-Medill, she said.

About 40 percent of students there are classified as low-income and 16 percent have special needs, according to the state Education Department. About 6 percent are English-language learners.

Buckley said the school no longer has a French teacher and that it doesn't have a shop teacher or librarian.

Though she personally can afford to enroll her children in private lessons, she knows many families cannot.

"We don't feel that our kids are being hugely adversely impacted because we trek them to all kinds of things after school," she said, adding that she and her husband are both on the faculty at the University of Delaware. "But for a lot of their classmates, it's just not an option. We're not investing in those children in the way that we should be."

Wendy Lapham, spokeswoman for Christina School District, said principals have to make hard decisions about staffing based on available teaching units, student interest and enrollment.

"Since many of the resources dedicated to students needing additional support come from a variety of sources ... it is not accurate to assume that resources intended for the general student population are redirected to students that need additional support," Lapham said.

Shue-Medill Principal Michele Savage said the school offers Spanish classes, and plans to offer Mandarin Chinese in 2019-20.

"We do not offer shop class because of the impact of the funding/staffing cuts," she said.

About 46 states provide additional financial support for English language learners, giving the schools that serve them more money so they can hire specialized staff and teachers. There are 35 states that provide additional financial support for low-income children.

Delaware does neither, and also does not provide special education funding for students with disabilities in kindergarten through third grade. (The Joint Finance Committee, last Tuesday, recommended $2.9 million to support students in kindergarten through third grade who require the lowest category of special education services, such as reading support or physical therapy. That would need to be approved by the full Legislature as part of the state budget process.)

The lawsuit is scattered with examples of what that means in under-resourced schools in Delaware.

Special education specialists managing individual education plans in the Christina School District have caseloads of more than 100 students, the lawsuit says. There are 46 English language learners at Kirk Middle School but only one ESL teacher. At Smith Elementary School, two fifth-grade classes had 36 students in them as of Oct. 31.

In the fourth grade, there were classes of 29, 30 and 32 students, according to the lawsuit.

There is no reading specialist at Seaford High School, where many students live in poverty and more than 65 percent are not proficient in English language arts. In one third-grade special education class at Highlands Elementary School in Red Clay, all 12 children had to share one computer, according to the lawsuit.

One proposed solution to equity issues has been to institute a needs-based funding formula, which gives a bigger piece of the pie to disadvantaged students.

Think about it this way. Every student would start with roughly the same amount of funding, depending on their grade level. Then, students who need special help would get extra funding.

The total amount of money Delaware spends on education could stay the same in a needs-based model but would be redistributed.

Such a change would likely be controversial, because school districts with relatively few low-income students and English language learners, like Appoquinimink, could stand to lose money. Some of the state funding they currently receive would likely be shifted to poorer school districts like Christina.

Money raised via referendum and local property taxes would not be affected.

It's something that has been argued for by the Wilmington Education Improvement Commission, a state advisory committee established by former Gov. Jack Markell in 2015 to come up with ideas to improve education in the city.

But Carney has said he is not in favor of needs-based funding, in part because it gives extra money to districts without holding them accountable for how they use it. He has said there is neither the financial nor political support for such a measure.

Other politicians have questioned whether there's enough evidence that needs-based funding works. Some studies show money can have a positive impact on academic outcomes and others show that it doesn’t.

Sometimes school districts spend the extra money on the wrong things, experts say. But when they spend money on the “right” things, test scores and outcomes improve, research shows.

One study published by the Washington Center for Equitable Growth found that the achievement gap between students in high- and low-income districts shrank by roughly 20 percent after spending increased. In states with no school-funding reform, the gap grew.

“School finance reforms are perhaps the largest national effort we have made to increase equality of educational opportunity since the school desegregation movement,” the study’s authors wrote. “There have been dramatic improvements in equality of school funding over the last two decades, many spurred by a series of state court rulings demanding more adequate school funding. We show that these reforms translated into sharp and immediate increases in funding in low-income districts.”

In a study conducted by The National Bureau of Economic Research in 2015, researchers looked at long-term outcomes such as educational attainment and students’ income after graduation.

It said low-income students from schools that got more money were less likely to be poor as adults. They were 10 percentage points more likely to graduate high school and earned about 10 percent more at work.

The study looked at all students, but for non-impoverished children, the funding benefits were found to be “statistically insignificant.” The research is intended to show that while some benefits of increased funding may not necessarily translate into higher test scores, they can still improve students’ overall outcomes.

The extra funding was spent on changes such as smaller class sizes, more guidance counselors, higher teacher salaries and longer school years.

While some states have made significant investments in early childhood education, as Delaware has, research shows that some of the benefits fade by the time those students leave third grade. Lackluster funding in elementary school can negate some of the positive effects.

Siawaa Antwi, Tylan Raburnel's older sister and a junior at Freire Charter School in Wilmington, isn't sure Delaware is giving students what they need at all.

As a member of TeenSHARP, which prepares high school students of color for top colleges, she's come to realize how underprepared she is and how hard she'll have to work to secure her future. TeenSHARP has summer programs that help teens get up to speed, but she worries she'll be unable to catch up.

Freire, a fairly new school where 72 percent of students are African-American and about 52 percent are low-income, does not have advanced placement or international baccalaureate classes, she said.

Paul Ramirez, co-head of school at Freire, said the school did have its first dual-enrollment class this year. AP classes will come next year when the school has its first 12th-graders, he said.

"AP classes themselves aren't a huge cost burden," he said. "More to the point, I do think that the per-student funding rate only covers the basics of what we offer, and we're able to provide a lot of the rich programming we have at the school only by seeking funding from other sources. "

Siawaa worries about her brother, she said. Growing up in Wilmington, she knows what can happen to kids who get held back in school and don't get the education they need.

“I was just having this conversation with my mom, and I think it’s really messed up because you can't make up for 12 years of a bad education," Siawaa said. "You can’t make it up over a summer.”

She said Tylan's father isn't involved in his life and her father killed himself, which has left the family struggling. While Siawaa admits changes in circumstance have led to her brother to act out in school, she can't help but feel the education system is failing him and that schools should have more counselors and psychologists to help children coping with trauma.

"It's like a domino effect," she said. "You go to a bad elementary school, you go to a bad middle school, you go to a bad high school. How do you get into a good college and get a good job?"

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Original lawsuit

Motion to dismiss

ACLU and Community Legal Aid's response

Contact Jessica Bies at (302) 324-2881 or jbies@delawareonline.com. Follow her on Twitter @jessicajbies.