March 11, 2002

Agreeing that literal implementation of the controversial Neighborhood Schools Act would result in "substantial hardship," the state Board of Education unanimously approved an alternative plan which will permit the district to retain its present grade configuration and attendance zones.

Although obviously elated by the decision, Brandywine school board president Nancy Doorey said it is "almost a certainty" that it will be challenged in court. State Representative Wayne Smith, primary sponsor of the law and its staunchest public advocate, told Delaforum the state board was "inviting a lawsuit," but declined to say whether he would instigate one.

Doorey said she was referring to a provision in the law which gives any citizen who is affected the right to sue if not satisfied with an attendance assignment and not to the state board's decision, which she described as virtually unchallengeable. "They went through a methodical process" of assuring compliance with the law, she said.

State board member Claibourne Smith  (who is not related to the legislator) said at a special meeting on Mar. 11 that Brandywine backed up its hardship claim with "a preponderance of evidence" that not only the district but individual students and their families would suffer through creation of high-poverty schools which would be unable to attract more competent teachers. Board president Joseph Pika said he was impressed by the amount and thoroughness of the district's documentation of "the negative consequences of creating high-poverty schools."

Brandywine defines such schools as ones in which more than half the students are from households with incomes low enough to qualify for federally subsidized lunches. It currently has none.

Pika agreed with Brandywine's assertion that a statement in the law referring to "fair and equitable" treatment for all students as one of its purposes is as much a part of its legislative intent as a desire to have children go to school in buildings

closest to their homes and thereby eliminate or greatly reduce the amount of busing required to get them there. "I do not believe 'fair and equitable' was a throw-away clause," he said.

While rejecting a similar plan proffered by the Christina district, the state board seemed to invite that district to follow Brandywine's lead by resubmitting its plan as a better alternative for one that did comply with the law's requirement that districts return to a class alignment considered traditional before federal court in 1978 ordered realignment as part of its racial desegregation plan. Christina also would have to support a hardship claim, but both Doorey and  Pika indicated they thought that Brandywine's evidence would be even more convincing if applied to that less compact district.

Deborah Rodenhouser, administrative assistant to the superintendent, said the Christina board will take up the matter after it is formally notified of the state board action. The four northern New Castle County districts named in the law are required within 60 days to submit a new plan to replace one that is rejected.

The state board was less clear with regard to what might follow its rejection of the Red Clay district's plan, which called for allowing it to continue its pre-Neighborhood Schools Act path to become a district in which all, or most, attendance would be determined by the state's public school choice law. Its high schools already are so structured.

Pika said members of the state board had difficulty understanding how the plan would work. "Under the plan, choice becomes elevated to a fundamental right rather than an option," he remarked.

"It is not clear how a plan which doesn't comply with the law in the first year is going to comply in [subsequent years] just because you don't have to fill out another application," said board lawyer Louann Vari.

No one from the Red Clay district attended the meeting.

The board accepted as fully compliant the Colonial district's configuration and student assignment plan, which have already been implemented.

It rejected an Appoquinimink district plan because it includes provision for all students at that level to attend a free-standing kindergarten, rather than be assigned to elementary schools, but indicated that could pass muster if submitted as a preferred alternative to a plan which did assign them to schools. Plans submitted by the Seaford and Delmar districts

Smith: Board members violated
their oaths of office

 State Representative Wayne Smith denounced state Board of Education approval of the Brandywine Neighborhood Schools Act plan as a "farce" and charged that members of the board "chose to violate their oaths [of office]" by doing so.

He added that they were "inviting a lawsuit."

"The provisions of the law are very clear. I'm sorry to see the state board buying into [the Brandywine position] and continuing that farce. It's a sad day for law," he said.

He declined to say whether he would instigate a suit or to speculate on what, if any, next steps might be taken.

Brandywine board president Nancy Doorey said that she thinks a lawsuit is likely. She said any resident of the district who felt aggrieved would have standing to bring such a suit. As it happens, Smith is both a Brandywine resident and a district parent.

In his capacity as a lawmaker, he declined to speculate on what legislative remedies might be available. The General Assembly has very rarely used authority to impeach executive appointees. State board members are appointed by the governor and confirmed by the state Senate.

Board president Joseph Pika replied when informed of Smith's comments: "It's not my role to second guess the General Assembly."

Initially, he said the board "took pains to do our job so that it would be [upheld] by the courts." But he said later in the conversation that he would not comment when asked by Delaforum if he expected to be put to that test.

The board used unusual procedure as it considered all seven plans before it. It declared its deliberations "off the record" -- although remaining in public session, rather than going into executive session behind closed doors. It went "back on the record" to vote on each plan.

Its deliberating process carefully followed what it called a "decision tree" -- similar to a flow chart defining questions to be decided depending on whether the answer to the previous one was 'yes' or 'no'.

in Sussex County were accepted. Although not required to do so, those three districts submitted plans so they would qualify to receive state-provided transition money.

All the board's actions were taken by unanimous voice votes. The seven-member panel moved rapidly through its agenda, dealing with six of the seven plans in about 90 minutes. It saved Brandywine for last, devoting about 70 minutes to it.

Throughout the discussion on the Brandywine plan, board members repeatedly endorsed points the district had made in previous presentations. The plan "is fair and equitable and provides the best educational opportunities for Brandywine students," said member Jean Allen. "Brandywine made a strong case."

She and other board members said at various points they were impressed by the extent of public involvement in developing the Brandywine plan, including a plebiscite last autumn. "At the public hearing [in February], a sense of pride in the Brandywine community came through very clearly," she said. Board member Smith agreed, adding that "it was almost as if they had redefined the district as their community."

The closest anyone came to dissent was Mary Graham who asked how much additional weight should be given to comments in a letter from Representative Smith to the board in which the lawmaker described the Brandywine plan as a way of "circumventing, negating and rendering inoperable" the law. Graham did not say she agreed with that position, but her question gave Vari the opportunity to characterize the letter as "another bit of public comment" comparable to other statements the board received at public hearings and by way of other letters and e.mail.

Only the degree to which it reflected Smith's understanding of his legislative colleagues' minds when they approved the law might give it some additional weight. But Vari added that "what might be on any given legislator's mind might not be the opinion of another one."

In a separate context, Pika said that Brandywine's research into the effects of the law amounted to something that should have been done before it was enacted. "I do not believe [its] full impact was really assessed during the legislative process," he said.

He also took issue with the General Assembly for its not having acted on recommendations of the Wilmington Neighborhood Schools Committee during its 2001 session. "The opportunity for a community-wide solution was missed last year," he said. He later explained that he regrets "having to make piecemeal decisions" on four separate district plans instead of being able to deal with public education in the city of Wilmington on a unified basis.

Doorey touched on the same theme briefly during her after-meeting comments. She said the Brandywine board and district administration would be "willing to be at the table" for a discussion of "the quality of education for kids in the city of Wilmington." She declined to elaborate or be specific about what that might entail.

The Wilmington Metropolitan Urban League got in the last word in the public debate over the issue when its representative, Hector Figueroa, took advantage of the state board's usual meeting-opening public comment session when he declared the Neighborhood Schools Act to be "untenable and subject to prolonged litigation" while bringing about "undue hardships for children of color."

The board later agreed that the Brandywine plan was in no way based on race -- which the law forbids -- but Pika said he had been moved by students at the public hearing held in the district having decried the potential loss of racial, religious and economic diversity if the district was required to implement a literal interpretation of the law.

2002. All rights reserved.

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Read material concerning the Neighborhood Schools Act at the
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