DELAWARE’S CONSTITUTION AND ITS IMPACT ON EDUCATION

DELAWARE’S CONSTITUTION AND ITS IMPACT ON EDUCATION

Dr. Samuel B. Hoff

August 14, 2007

INTRODUCTION

The purpose of this essay is to trace the establishment and development of Delaware’s constitution, to examine the most recent version of Delaware’s document as it pertains to Donald Lutz’s eight purposes of state constitutions, to present a case study of the impact of Delaware’s constitutional deficiencies on a critical policy area, and to evaluate the reasons for Delaware’s inconsistency with Lutz’s framework. It is clear that Delaware’s constitutional history has been linked to its political culture, to the development of political parties in the state, to alternating national trends, and to other features unique to the state’s citizens.

DELAWARE’S FOUR CONSTITUTIONS

Delaware has had four recognized constitutions, which were ratified in 1776, 1792, 1831, and 1897, respectively.

By the start of the Seven Years’ War in 1754, Delaware had already been an American colony for ninety years. Delaware was not included in the Albany Plan of Union, which was proposed by American colonists in 1754. However, the colony did participate in the First and Second Continental Congresses. Delaware became the ninth state to approve the Declaration of Independence in July 1776 and wrote its first constitution in 1776. During the Revolutionary War, Delaware was the site of one minor battle. On September 3, 1777, Delaware militia attacked English soldiers marching to Philadelphia at the Battle of Cooch’s Bridge.

After independence, Delaware ratified the Articles of Confederation in 1779 and became the first state to ratify the federal Constitution, doing so on December 7, 1787. Like many states, Delaware would reformulate its own constitution to mimic certain characteristics of the federal document. According to Randy Holland, part of the reason why Delaware’s 1792 constitution resembled the U.S. Constitution is because of the presence of state resident John Dickinson at both ratifying conventions.

Delaware’s 1792 constitution affected all three branches of government. For instance, the legislature became bicameral. Additionally, the office of the governor became an independent branch, with the executive gaining authority to appoint officers. Finally, the judiciary was altered to reduce the number of judges and reorganize the various courts constituting the branch. Notably, Delaware also added a Bill of Rights in this constitutional version, which with the addition of the right to bear arms remained the same in succeeding renditions.

The 1831 Delaware Constitution was the result of eleven years of discussion, mostly about the structure of the judiciary. Indeed, an 1820 amendment proposed in the General Assembly precipitated a prolonged discussion of judicial reform. Not coincidentally, judicial restructuring was the most significant change in this version. Terms of elected officials, General Assembly sessions, election cycles, and the procedures for assembling constitutional conventions were also revised. Because the 1831 state constitution made the latter method difficult, an 1849 effort to hold a convention failed. Just four years later, a proposed new constitution was approved by a convention but rejected by voters, largely due to complaints by New Castle County residents who were dissatisfied with the number of legislative seats afforded the county in the General Assembly.

After a convention lasting six months, the fourth and current Delaware constitution was ratified in 1897. This document added separate representation for the City of Wilmington in the General Assembly. Additionally, it granted the governor a veto power—both regular and line-item forms—together with more flexibility over administrative appointments, took away the authority to grant divorces and incorporate businesses from the legislature, and prohibited judges who presided in initial cases to hear appeals.

APPLYING LUTZ’S FRAMEWORK TO DELAWARE’S CONSTUTION

In his 1988 study, Donald Lutz develops an eight-part theoretical framework for understanding the constitutional history and theory of each state. Ostensibly the purposes of state constitutions include defining a way of life, defining a people, defining political institutions, defining citizenship, establishing authority, distributing political power, providing for conflict management, and limiting the power of government. These may be used to assess Delaware’s constitution and its failure to address the issue of equal educational opportunity in the state.

Delaware’s 1897 constitution contained sixteen distinct articles. They are listed below in sequence:

Preamble

I. Bill of Rights

II. Legislature

III. Executive

IV. Judiciary

V. Elections

VI. Impeachment and Treason

VII. Pardons

VIII. Revenue and Taxation

IX. Corporations

X. Education

XI. Agriculture

XII. Health

XIII. Local Option

XIV. Oath of Office

XV. Miscellaneous

XVI. Amendments and Conventions

Subsequently, Article XVII, specifying the continuity of governmental operations, was added.

The length of the 1897 Delaware constitution is about 17,000 words. It has been amended more than one hundred times, with changes to Article II (Legislature) and Article IV (Judiciary) being the most numerous. Most amendments to the state constitution have been ratified voluntarily and independent of federal mandate. However, a handful have been undertaken after U.S. Supreme Court decisions which rendered certain sections of Delaware’s document unconstitutional. Among these is the Article X education amendment which removes language providing for the maintenance of separate schools based on race.

EDUCATION IN DELAWARE

Desegregation in education is an immensely important issue, of which Delaware has been a major participant, for better and for worse. This section of the essay traces historical trends in African American education in the state and summarizes the Evans v. Buchanan case--which began in 1956 and stayed alive in one form or another until 1990, a thirty-four year odyssey.

We can note that a half-century ensued between the first public school education in Delaware, formally established in 1829 for those of Caucasian background, and initial state government support for education of minorities. This fact epitomizes the disparity in education between the races which Delaware has wrestled with throughout its existence.

In 1866, the Delaware Association for the Moral Improvement and Education of Colored People was founded. This organization created thirty-two schools for black students in the next decade. In 1875, the Delaware legislature passed a law to tax black citizens for support of their own schools. However, that move was reversed by general funding fur colored schools in 1881.

The momentum for minority education in Delaware would not last long. In its 1896 ruling in Plessy v. Ferguson, the U.S. Supreme Court declared that the "separate but equal doctrine" satisfied the constitutional requirements of the equal protection clause of the 14th Amendment. Though that case dealt with transportation facilities, most states interpreted it broadly as encompassing all public accommodations. Just a year after the Plessy v. Ferguson decision, Delaware's new constitution instituted a segregated public school system. It would be almost a century before the state’s constitution would officially delete reference to “separate schools for white and colored children.”

The effect of separate education for the races in Delaware was evident. Between 1910 and 1920, those schools for whites received ten times the amount of state funding as those for colored students. Across a similar period, studies found that Caucasian students attended school three months longer on average than minority children. Finally, literacy rates among white students exceeded those of black students by twenty percent.

An investigation of Negro school absences in Delaware between 1919 and 1921 uncovered additional consequences of segregated education facilities. Illness was found to be the leading reason for missing school, which was undoubtedly caused by the dearth of properly constructed school houses, lack of ample playgrounds, and inadequate instruction on health issues.

In 1921, the Delaware General Assembly passed a law requiring the State Board of Education to maintain separate schools for those of color, which were supposed to be uniform and equally effective as those for whites. However, the only high school for Negro students supported by the state between 1912-1935 was at the State College for Colored Students in Dover. What the state government was unwilling to do, philanthropist Pierre DuPont accomplished. He furnished $2.6 million for the construction of eighty-six school buildings for Negro pupils. Still, about a third were single-teacher schools and none outside Wilmington offered a high school education.

There remained many differences in education among the races in Delaware. A 1943 study by George Miller, referred to as "Adolescent Negro Education in Delaware," made the following conclusions about the inequity of education facilities:

(1) Secondary schools for Negroes lack uniformity in organization as far as grade coverage;

(2) Progress toward better schools for blacks has been impeded by public attitudes, which reject equality and favor continuing segregation;

(3) School failures among colored students are caused by shortcomings with teaching and curricula. The salaries for black teachers are inordinately low compared to those of Caucasian instructors;

(4) Health and work reasons are still among the top reasons why black students quit school;

(5) Extracurricular activities together with physical education and health classes are in need of rejuvenation;

(6) Except for Smyrna, the guidance services for black students are ''pitifully inadequate."

The latter report concluded that Delaware's 1921 law requiring uniform and equal schools between the races had not been reached.

We do see that the Supreme Court of the United States starts chipping away at Plessy v. Ferguson, and in doing so segregation as it relates to education. In1938, the Court invalidated Missouri's out-of-state tuition program for African American students. Twelve years later, the Supreme Court invalidated segregation in graduate schools across the U.S. In that same year, it invalidated segregation in law schools in the Sweatt v Painter decision. Evidently taking their cue from the federal judiciary, Delaware took a number of steps toward desegregating schools at the outset of the 1950s. For example, in1950 the Delaware Chancellory Court ordered the elimination of all restrictions for black enrollment at the University of Delaware. Two years later, Delaware's Catholic parochial school system started to integrate. In its 1952 decisions in Bulah v Gebhart and Bulah v Gebhart, the Delaware Chancellory Court ruled that the state's segregated schools for those of color were not equal to white schools. These cases were later incorporated into the U.S. Supreme Court's1954 Brown v. Board of Education decision, which unanimously declared that the separate but equal concept was unconstitutional.

Subsequently, the Brown v Board of Education IT decision in 1955 affirmed the first Brown ruling and ordered that schools be desegregated ''with all deliberate speed." There are many comparisons between Brown vs. Board of Education I and Brown II. Brown I was said to have moral clarity but perhaps not doctrinal foundation, whereas Brown II in many scholars' views lacked both. If the first Brown decision redefined the equal protection clause by finding that separate but equal was unconstitutional, then the Brown II decision sought to identify remedies to the separate facilities which were not equal. The Court in Brown II refused to furnish specific deadlines for action. Because of this and the financial costs of desegregating schools, many states ignored the ruling or found ways to delay implementation. Meanwhile, groups such as the National Association for the Advancement of Colored People (NAACP) pressed for immediate action. In a series of per curium decisions between 1955 and 1958, the U.S. Supreme Court invalidated segregation and at state parks, beaches, bath houses, golf courses and public transportation. The Court revisited the Brown II decision in its 1958 Cooper v. Aaron ruling. In the case, the Supreme Court rejected attempts to postpone desegregation and rebuked governors and state legislators who claimed that they could basically ignore the supremacy clause of Article VI of the Constitution. We can observe that despite these moves, a 1964 study revealed that only 2 percent of formerly segregated school facilities had in fact desegregated ten years after the Brown rulings.

It is in this political and legal environment that the Evans vs. Buchanan case-the premier desegregation --in Delaware--began. Contrary to a 1955 text, which declared that Delaware was one of six states having good results with desegregation, the state actually chose a strategy of obstruction and delay. In1956, the Claymont School District said they had no plans to desegregate schools. The State School Board of Education refused requests to mandate educational integration, so Louis Redding and his associates filed a class action suit. Originally titled Evans vs. Members of the State Board of Education, the case was renamed Evans vs. Buchanan Evans was Brenda Evans, one of the five original plaintiffs; her name was cited because she was the first in alphabetical order. Buchanan was Madeline Buchanan, who at the time was the President of the State Board of Education.

Evans vs. Buchanan came to be seen as unique in the history of American jurisprudence at the time because unlike other states, whose strategic efforts to desegregate were aimed at city or county school boards, Redding and his associates in Delaware chose to target the State Board of Education. Evans vs. Buchanan began in Federal District Court with a judge denying a motion to dismiss the desegregation order. It proceeded for thirty-four years and about thirty different rulings, demonstrating the plethora of tactics, which opponents undertook to derail school integration.

In 1957, the U.S. District Court granted a summary judgment to the plaintiffs--Evans and her colleagues--in support of desegregation and against the members of the State Board of Education. In that same year, the Clayton district appealed the latter decision to the 3m Circuit of the U.S. Court of Appeals. The result of that was that again Evans and those supporting desegregation won, as the appeal was found, not to be legally prosecuted by the legal board in accordance with law. There was a consolidation of the Evans v. Buchanan case with six other cases in July of 1957. A U.S. District Court ordered the State Board of Education and the state superintendent to submit a desegregation plan within sixty days. That plan was supposed to provide for admittance, enrollment and education on a racially non-discriminatory basis to alleviate those problems with segregated facilities previously mentioned. Over the next year, the state board and the superintendent appealed the1957 district court order. A 1958 U.S. Appeals Court ruling in the Evans case affirmed the 1957 district court ruling. However, what seemed like a technical win turned out to be a practical loss for desegregation proponents, as the appeals body vacated the district court's time line for the desegregation plan.

Returning to the U.S. District Court as a result of a latter ruling--with the change of the district court chief judge from Judge Leahy to Layton-the district court ruled in late 1958 that the state board had submit a new desegregation plan within 112 days. But the Delaware State Board of Education rejected that deadline, proposing instead a grade-by grade desegregation plan to be implemented one year at a time. The U.S. District Court approved that twelve- year plan in 1959. That decision as appealed to U.S. Court of Appeals in 1960, which affirmed the 1957 order and rejected the grade-by-grade approach. In 1961, the U.S. District Court approved with modification a State Board of Education plan which allowed black students desiring integration to transfer immediately to white or other integrated schools, and provided a plan for integration in the future. But that ruling was criticized as one-way desegregation of those black students to majority white schools. In fact, it would be another seven years before the U.S. Supreme Court would demand two-way desegregation and use a social engineering tool to do so: mandatory busing. Evans v Buchanan took a different track in the year 1962 when nine black students sought to transfer from the all-black Dunlieth School-administered by the Millside School District--to the integrated Rose Hill Elementary School, under the jurisdiction of the Rose Hill Minquadale School District. This case was represented by Leonard Williams, often called a protégé of Lewis Redding, along with Irving Morris and others. In the case, Williams and his colleagues used the equal protection law to argue that the Constitution compelled the state to provide integrated education. Later in 1962, the U.S. District Court did permit the transfer of those children to the Rose Hill School, but likewise stated that the state did not have affirmative constitutional duty to provide integrated education. So once again a technical victory became a practical loss. Following the district court's ruling above, a nine-year hiatus occurred in the Evans v. Buchanan case.

In 1965, the Delaware State Board of Education adopted a resolution, which over a five-year period was to close a number of the smaller schools; that plan would lead to phasing out the 1ast so called black school district. In 1968, the State of Delaware General Assembly passed the Education Advancement Act. This act's most significant feature was its creation of twenty-six school districts around the state. But the act excluded Wilmington from any consolidation plan and therefore from any desegregation plan. It capped as it maximum enrollment any school district with 12,000 students; Wilmington had 15,000 students in its school district.

It was at this time that a number of lawyers, including Lewis Redding and his colleagues, sought support from the NAACP Legal Defense Fund. Redding contended that the exclusion of Wilmington from desegregation efforts meant that in fact that there were separate but unequal facilities in the state of Delaware. According to Irving Morris, NAACP Legal Defense Fund Director Jack Greenberg denied the request based on a cost-benefit analysis. Evidently, he held that there was no chance of victory in Evans v Buchanan. Consequently, Redding and his colleagues sought the support of Louis Lucas, a Memphis, Tennessee attorney, to challenge Delaware's Educational Advancement Act.

In 1971, the aforementioned act was challenged in U.S. District Court, and out of the ashes came Evans v Buchanan. Likewise in 1971, the U.S. Supreme Court ruled in the Swann v. Charlotte-Mecklenburg Board of Education case that mandatory busing could be employed as a device to advance desegregation.

In a series of decisions over the next five years, the U.S. District Court ruled on the substance of the complaint of the newly retooled Evans v. Buchanan case. However, the seminal decision relating to desegregation in Delaware came in the 1976 Evans v. Buchanan ruling by the U.S. District Court. Unhappy with the exclusion of Wilmington from desegregation efforts, the court proposed a plan with 10 to 35 percent minority student targets within eleven New Castle school districts and mandated inter-district busing on a substantial scale as a remedy to existing racial separateness. The breath of the busing plan-affecting a large metropolitan area-represented the first of its kind in the nation. Over the next four years, various federal courts rejected twelve separate attempts by the State of Delaware to delay, modify, or reverse the 1976 order.

In June 1980, the Delaware General Assembly passed a law relating to reorganization, taxation, and governance of public school systems in the area of the state subject to the 1976 desegregation order. In response, the State Board of Education created four school districts in New Castle County and petitioned the District Court to modify the 1976 ruling. A December 1980 ruling by the Delaware Supreme Court found the latter law to be consistent with the Delaware constitution. A 1981 U.S. District Court decision supported the four-district setup, which was opposed by the lawyers backing the plaintiffs in Evans v. Buchanan. In the final decision dealing with the Evans v. Buchanan case, the U.S. District Court denied a 1990 attempt by the Brandywine School District to deviate from previous court orders mandating desegregation.

Over the decade of the 1990s, several other actions occurred in Delaware dealing with school desegregation. Separate U.S. District Court rulings in1990 and 1991 found that the Red Clay School District in New Castle County failed to comply with a 1978 desegregation order. However, two U.S. Supreme Court decisions in 1991 and 1992 relaxed desegregation requirements in other states. Delaware used those decisions to advocate for looser standards of desegregation. The tactic worked, as a U.S. District Court applied relaxed desegregation procedures to New Castle County in 1995. In affirming the 1995 ruling, the U.S. Court of Appeals released New Castle County from federal supervision over desegregation in Delaware's schools in 1996. This court specifically rejected claims by desegregation proponents that the gap in performance between black and white students was caused by the long-standing segregated school system in Delaware.

In 1995, the Delaware General Assembly amended the state constitution to formally abolish the separate educational system which was encoded in the 1897 constitution.

CONCLUSION: DELAWARE’S CONSTITUTION AND THE LUTZ FRAMEWORK

The preceding review makes evident the fact that Delaware failed to fulfill several purposes of state constitutions identified by the Lutz framework as they pertain to education. In this last section of the essay, the reasons for Delaware’s inconsistency with these purposes are evaluated.

One of Lutz’s purposes of state constitutions is to limit governmental power. Yet, as was described above, the convention which ratified the 1831 Delaware constitution made it purposefully difficult to call subsequent conventions. Further, Delaware included in that and the successor 1897 constitution the provision that only the legislature could propose and act on individual amendments to the state constitution. No other state prohibits citizen inclusion in the process of constitutional amendment ratification. Perhaps a reason for this concentrated government power is the political culture of the state. As depicted by Daniel Elazar, Delaware possesses an individualistic political culture, where government exists primarily to distribute favors to governmental supporters and to regulate the economy for the pursuit of self-interest. This type of political culture favors large bureaucracies, the use of political patronage, and limited involvement by citizens in the political process. It is contrasted with the moralistic political culture, where government exists to achieve moral goals which are in the public interest, and traditional political culture, which acts to preserve the existing social order.

Delaware’s political party history must be reviewed in order to understand why the state was deficient in meeting another of Lutz’s purposes of state constitutions, defining citizenship. Hoff demonstrates how events during the American Civil War, including the invasion of Delaware by Union soldiers to disarm militias, the suspension of habeas corpus rights, the imprisonment of suspected southern sympathizers, and the required oaths of loyalty to the Lincoln administration, led to a three-decade domination of state politics by the Democratic Party. Not only did Delaware reject the constitutional amendments granting freedom and civil an voting rights to blacks, but it also sent a

succession of Democrats to Washington who pleaded the cause of the defeated states with such consistency that Delaware came to be regarded as part of what would eventually be know in political terms as the “Solid South.” Delaware’s politics during the latter part of the nineteenth century contrasted starkly with national trends. It was at this time that the current state constitution was ratified. Obviously, the victims of this racism—those of color—would suffer the consequences in the educational field among other areas.

By having an individualistic political culture and going against national trends politically for much of its history, Delaware has failed to adequately distribute political power, another purpose of state constitutions according

to Lutz. One reason may be a deficiency in the document which allowed powerful interest groups to control the agenda for long periods of time. This feature is identified by Grant and Omdahl as one of several criticisms of state constitutions.

Finally, it is apparent that several features of Delaware’s political system inhibited its ability to establish authority, another purpose of state constitutions according to Lutz. These encompass the part-time nature of the legislature, the two-term limit for the governor, and the state’s ever-changing judicial structure. Due particularly to the latter of the three, Delaware’s courts proved unable to effectively adjudicate cases dealing with educational desegregation on their own until after the U.S. Supreme Court’s unanimous ruling in the 1954 Brown v. Board of Education case.

The many victories emanating from the Evans v. Buchanan case in Delaware are a tribute to the perseverance, moral principles, legal knowledge, and courage of those who refused to surrender to the forces of racism and recalcitrance. Yet, one has to wonder what could have been accomplished if the millions of dollars spent by the state’s school districts on employee time, attorney fees, and court costs to block desegregation orders, and on busing to achieve equality, were instead invested to improve educational opportunities for all of its residents. Delaware, appropriately referred to as The First State because of its enthusiasm in quickly ratifying the federal Constitution, likewise was the initial state to face a lawsuit against its Board of Education and court rulings mandating inter-district busing on a large scale.

REFERENCES

Baker, Mary C. 1980. A Record of the Efforts of the NAACP To End Racial Discrimination in the Public Schools of Delaware, 1951-1979.

Dover: Delaware Chapter of the National Association for the Advancement of Colored People.

Bergman, Peter M., and Mort N. Bergman. 1969. The Chronological History of the Negro in America. New York: New American Library.

Broyles, Randall L. 1974. Concepts of Delaware. West Palm Beach, FL: Universal Publishing Associates.

Cooper, Richard Watson, and Hermann Cooper. 1923. Negro School Attendance In Delaware. Newark: University of Delaware Press.

Elazar, Daniel. 1972. American Federalism: A View From the States. New York: Harper and Row

Encyclopedia of Delaware. 2001. Santa Barbara, CA: Somerset Publishers, Inc.

1978 Fact Book: New Castle County School System and History of Evans v. Buchanan. 1978. Wilmington: Sane of Delaware.

Fuetsch, Michele. 2003. "Del. Schools Achieve Diversity-At a Price." Wilmington News Journal, September 14, p. A1, 7.

Grant, Daniel R., and Lloyd B. Omdahl. 1987. State and Local Government in America. Boston: Allyn and Bacon.

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Hoff: Samuel B., and Bradley Skelcher. 2003. "Civil Rights and the Supreme Court in the Reagan-Bush Years.” Lincoln Journal of Social and Political Thought. Spring, Volume 1:2, p. 81-92.

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Irons, Peter. 2002. Jim Crow's Children: The Broken Promise of the Brown Decision. New York: Viking/Penguin Putnam Publishers.

Lutz, Donald S. 1988. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press.

Miller, George R 1943. Adolescent Negro Education in Delaware: A Study of the Negro Secondary School and Community. Ph.D. dissertation. New York: New York University.

Morris, Irving. 2002. ''The Role of Delaware Lawyers in the Desegregation Of Delaware's Public Schools: A Memoir." Widener Law Symposium Journal. Volume IX: l, p. 1-54.

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O'Brien, David M. 2003. Constitutional Law and Politics, Volume 2. New York: W.W. Norton and Company.

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Rubenstein,