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American Civil Liberties Union Foundation of Delaware, American Civil Liberties Union Foundation Racial Justice Program, and Community Legal Aid Society, Inc., Complainants v. State of Delaware and Red Clay Consolidated School District, Respondents Complaint to the Office of Civil Rights, Region III Regarding Charter Schools and the Segregation of Delaware’s Public Schools in Violation of Title VI and § 504 of the Rehabilitation Act 12/3/2014 I. INTRODUCTION ................................................................................................................... 1 II. LEGAL FRAMEWORK ..................................................................................................... 6 III. DESEGREGATION HISTORY .......................................................................................... 9 IV. FACTS ............................................................................................................................... 16 A. Charter School Law ........................................................................................................ 16 B. Charter Schools in Delaware 2014-2015 ....................................................................... 19 C. Charter School of Wilmington ....................................................................................... 27 D. Sussex Academy ............................................................................................................ 29 E. Newark Charter School .................................................................................................. 32 F. Other Charter Schools Authorized by the State of Delaware ............................................ 36 V. COMPLAINANTS AND TIMELINESS .......................................................................... 37 VI. ARGUMENT ..................................................................................................................... 37 VII. PROPOSED LEGAL REMEDIES .................................................................................... 39 VIII. CONCLUSION .............................................................................................................. 40 i I. INTRODUCTION For over sixty years, the segregation of Delaware’s public schools has been the subject of litigation. While the state made considerable progress after its segregated schools were challenged in 1952, recent trends resulting from the state’s charter school policies have caused substantial and troubling resegregation. Specifically, the state’s Charter School Act of 1995 (“Charter School Act”) has led to the proliferation of high-performing charter schools1 with practices and policies that result in the disproportionate exclusion of African-American and Hispanic students, low income students,2 and students with disabilities. These disparities result from the state-sanctioned preferential admissions treatment of students in a 5-mile radius from a school, essay requirements regarding student “interest” in a school’s teaching methods or why a 1 This complaint refers to a charter school as “high-performing” when in the 2013-2014 academic year, at least 90% of students met the state reading and math standards (measured by the highest grade level for which data is available). See Exhibit A. In the 2013-2014 school year, these schools were: the Charter School of Wilmington, Newark Charter School, Sussex Academy, MOT Charter School, and Odyssey Charter School. Id. 2 In this complaint, we use the definition of “low income” utilized by the State of Delaware in their publically available charter school data. Prior to the 2010-11school year, Delaware considered students who received free or reduced lunch (“FRL”) to be low income. See “Other Student Characteristics,” State of Delaware: The Official Website of the First State, available at http://profiles.doe.k12.de.us/SchoolProfiles/CommonControls/popUp.aspx?distCode=0&schoolCode=0&dataBlock =Demographics&catBlock=OtherCharacteristics (last viewed Dec. 1, 2014). Between 2011 and 2013 Delaware counted students as low income who received FRL, TANF or SNAP Benefits. Id. Starting with the 2013-2014 school year, Delaware counts only students who receive Temporary Assistance for Needy Families (“TANF”) or Supplemental Nutrition Assistance Program (“SNAP”) as low income. Id. By eliminating students who receive free and reduced lunch (based on federal income guidelines) from the state’s count of low income students, Delaware lowered the household income limit for classification as low income from 185% of the Federal Poverty Level to approximately 137% of the Federal Poverty Level. Delaware’s FRL program allows households earning up to 185% of the Federal Poverty Level to qualify. See Income Eligibility Guidelines, State of Delaware: The Official Website of the First State, available at http://www.doe.k12.de.us/Page/1237; Federal Child Nutrition Programs-Income Eligibility Guidelines, Fed. Reg. Vol. 79, No. 43 (Mar. 5, 2014), available at http://www.fns.usda.gov/sites/default/files/2014-04788.pdf (last viewed Dec. 1, 2014). Comparing Delaware’s TANF income eligibility limits to the Federal Poverty guidelines shows that the state’s TANF income limits are approximately 137% of the Federal Poverty Level. See Temporary Assistance for Needy Families (TANF), State of Delaware: The Official Website of the First State, http://www.dhss.delaware.gov/dss/tanf.html (last viewed Dec. 1, 2014); Income Eligibility Guidelines: Federal Poverty Guidelines-100%, Fed. Reg. Vol. 79, No. 43 (Mar. 5, 2014), available at http://www.fns.usda.gov/sites/default/files/2014-04788.pdf. Residents of Delaware receiving SNAP benefits must earn at or below 130% of the Federal Poverty Level. Food Supplement Program, State of Delaware: The Official Website of the First State, http://www.dhss.delaware.gov/dss/foodstamps.html (last viewed Dec. 1, 2014). While this complaint alleges that the State of Delaware’s policies have the effect of allowing schools to discriminate against low income students, complainants recognize that there is no income-based disparate impact claim available. However, we refer to the effect of Delaware’s charter school policies on low income students to emphasize that, in a state where income is so closely correlated with race and the race-based achievement gap is so stark, such policies will have a detrimental effect on both low income families and families of color. 1 school is a “good choice” for one’s child, and the state’s failure to adequately regulate school- level barriers to admission (i.e. expensive uniform requirements, parental involvement requirements, and activity fees). The State of Delaware through the Delaware Department of Education (“DDE”) and Red Clay Consolidated School District (“RCSD”) authorize all of the charter schools in the state and are responsible for the disproportionate exclusion of students of color, low income students, and students with disabilities from the high-performing schools. These circumstances are informed by a long history. In 1952, eight African-American parents sued for their children’s right to attend the all-white public school in their community of Claymont, challenging the constitutionality of the “separate but equal” doctrine.3 The judge who heard the case, Chancellor Collins Seitz, ordered the all-white high school to admit the African- American students, bravely reversing centuries of state-sanctioned segregation in education.4 Chancellor Seitz weighed the merits of the “separate but equal” principle, ultimately concluding that the African-American school’s inferior facilities, limited curriculum, and heavy teaching load violated this principle.5 The court echoed plaintiffs’ assertion that “legally enforced segregation in education, in and of itself, prevents [African-American students] from receiving education opportunities which are ‘equal’ to those offered white [students]”6 and held that both the “facilities and educational opportunities” at the all-black school were “substantially inferior in a Constitutional sense, to those at [the all-white school].”7 In a rebuke to Plessy v. Ferguson,8 Chancellor Seitz ruled that he did “not believe the relief should merely be an order to make [the two schools] equal.”9 Through appeals, Belton became one of the five cases the Supreme Court consolidated into Brown v. Board of Education.10 The decision appealed from Delaware was the only decision that the Supreme Court affirmed when ruling in Brown. Over the course of the next forty years, Delaware integrated its public schools through the extensive use of busing and race-conscious 3 See Belton v. Gebhart, 87 A. 2d 862 (1952) aff'd sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955). 4 An Interview with the Honorable Collins Jacques Seitz Conducted by the Honorable A. Leon Higginbotham Jr. and by David V. Stivison, in CHOOSING EQUALITY: ESSAYS AND NARRATIVES ON THE DESEGREGATION EXPERIENCE 75 (Robert L. Hayman Jr. & Leland Ware, eds., Pennsylvania State Univ. Press 2009). 5 Belton, 87 A. 2d at 868-69. 6 Id. at 864. 7 Id. at 871. 8 Plessy v. Ferguson, 163 U.S. 537 (1896). 9 Belton, 87 A. 2d at 871. 10 Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483, 490 (1954) supplemented sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955) (hereinafter “Brown”). 2 public school assignments. Unfortunately, the integration Delaware public schools achieved has been significantly diminished over the last two decades, in step with the proliferation of charter schools across

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