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