The Delaware Department of Education’s Secretary of Education Dr. Susan Bunting requested a legal opinion from the Delaware Department of Justice. She wanted to know if the Department could legally enforce local school districts to send non-minor capital improvement match tax funds to Delaware charter schools. What did the DOJ say?
On October 13, 2017, the Department of Justice received a request from the Delaware Department of Education for an opinion regarding the application of the formula contained in Title 14, Sections 408(d) and 509(e) of the Delaware Code to “match tax” expenditures that are funded by taxes levied by local school boards under authority granted by 14 Del. C. § 1902(b). Your letter indicated that it was being sent pursuant to a request from local school superintendents for an Attorney General’s opinion.
This issue regarding local funding for charter school choice payments exploded last school year when the Delaware DOE changed the formula but then former Secretary of Education Dr. Steven Godowsky put a hold on those changes. As a result, 15 Delaware charter schools sued the DOE and the Christina School District. The matter resulted in a settlement over a year ago.
We have engaged in no independent factual investigation of these issues and rely entirely on the information you have provided us to assess these issues. With those caveats, our conclusion is that the statutes in question place this issue entirely within the discretion of the Secretary of Education.
The Deputy Attorney General handling the opinion was Catherine Hickey. She is also assigned to the Delaware DOE by the Delaware DOJ. She ruled in favor of the Delaware Secretary of Education having the discretion to determine how local funds from school districts can be applied to choice payments to charter schools as long as the decision is not “arbitrary” or “capricious”. While there is no case precedence on this issue, Hickey wrote the intent of the Delaware General Assembly is very important.
If the legislative intent was that these funds be subtracted from the Total Operating Expenditure in Preceding Fiscal Year when calculating per pupil costs, the legislature could have included such language in the epilogue, amending Sections 408(d) and 509(e) and listing non Minor Capital Improvement match tax funds as a category to be subtracted before computing per pupil costs. Its decision not to do so must be given meaning when interpreting the statute.
So what does this mean? It means this will be the way things go on charter school choice payments going forward unless the General Assembly changes the statute. The DOE did give a three-year tier system for these changes. This year, districts can hold 50% of those funds, next year 25%, and in year three they can’t hold back any. To read the DOJ legal opinion, please see below.
The Season Of Myths 
Why not look at alternatives instead of constantly and repeatedly pounding the Governor, Education Secretary, and everyone else who doesn’t agree with the teachers union regarding how to improve Delaware schools. The Governor was “voted” into his position by Delaware Democrats and supposedly carries out the will of the people. If people are unhappy with what the Governor is doing then they should vote him out. Did Democratic voters actually believe the last Democratic Governor (Markell) wouldn’t hand down the same agenda to the next Democratic Governor (Carey)? The US spends more tax dollars on education than any other developed country in the world and yet our students lag behind countries like Japan, Germany, United Kingdom, Switzerland, and Canada.
Even if a Delaware parent wanted to send their child to a private or religious school they would have to continue to pay Delaware school taxes, plus any additional monies they want to contribute to a 529 Plan and most families can not afford both fees although they may want to send their child to a private/religious school. However, if one of the money obligations was removed they might be able to afford sending their child to a private/religious school of their “choice”. Unfortunately, Delaware is one of only eight states (Alabama, California, Hawaii, Kentucky, New Jersey, Massachusetts, and Minnesota) that has no deduction or credit for 529 plan contributions. How can any Delaware state representative claim to be a supporter of education and NOT support the 529 plan that allows taxpayers to deduct 529 contributions which would help send their children to college and prevent them from borrowing thousands of dollars and go into debt for their child’s education.
The Tax Cuts and Jobs Act of 2017 heavily expanded 529 plans to include K-12 public, private, and religious school tuition and other expenses for this reason. The original plan, called the Cruz amendment, called for home school expenses to also qualify for 529 plans but due to the Byrd Rule in the Senate the home school expenses provision was stricken by the Senate parliamentarian while the K-12 tuition provision was allowed. According to the new law 529 plans can be used to fund all K-12 school tuition costs up to $10,000 per year per child.
What a wonderful opportunity for our citizens – too bad they won’t be able to take advantage of it since Gov. Carney and Sec. of Ed Bunting would have to fix the state’s 529 plan so parents/guardians could use the 529 plan to send their children to a school of their “choice”.
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I don’t believe the John Carney that appeared on the campaign trail is the same John Carney that now sits in office. He presented himself to be something different and he has failed to be that person.
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Love MS Hickey! Was anyone really that surprised that the attorney on loan from the Department of Justice to the Department of Education would interpret the questions posed by the Department of Education’s Director/Secretary any differently? It’s all about who butters her very white bland Delaware Bread. The people most certainly do not.
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