CONSTITUTION AND ITS IMPACT ON EDUCATION
Dr. Samuel B. Hoff
August 14, 2007
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
constitutional deficiencies on a critical policy area, and to
evaluate the reasons for
Delaware’s inconsistency with Lutz’s
framework. It is clear that
constitutional history has been linked to its political culture, to
development of political parties in the state, to alternating
national trends, and to other
features unique to the state’s citizens.
has had four recognized constitutions, which were ratified in 1776,
1792, 1831, and 1897, respectively.
the start of the Seven Years’ War in 1754,
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
was the site of one minor battle.
On September 3, 1777,
militia attacked English soldiers marching to
at the Battle of Cooch’s
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
states, Delaware would
reformulate its own constitution to mimic certain characteristics
of the federal document.
According to Randy Holland, part of the reason why
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.
the legislature became bicameral.
Additionally, the office of the governor became an
independent branch, with the executive gaining authority to appoint
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
version, which with the addition of the right to bear arms remained
the same in succeeding
1831 Delaware Constitution was the result of eleven years of
about the structure of the judiciary.
Indeed, an 1820 amendment proposed in the General
Assembly precipitated a prolonged discussion of judicial reform.
judicial restructuring was the most significant change in this
version. Terms of
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
New Castle County residents who were dissatisfied
with the number of
legislative seats afforded the county in the General Assembly.
a convention lasting six months, the fourth and current
ratified in 1897. This
document added separate representation for the City of
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
In his 1988 study, Donald Lutz develops an eight-part theoretical
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
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:
Bill of Rights
Impeachment and Treason
Revenue and Taxation
Oath of Office
Amendments and Conventions
Subsequently, Article XVII, specifying the continuity of
governmental operations, was
length of the 1897
constitution is about 17,000 words.
It has been
amended more than one hundred times, with changes to Article II
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
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
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,
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
would not last long.
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.
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
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
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
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
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
as grade coverage;
(2) Progress toward better schools for blacks has been impeded by
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
(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
The latter report concluded that Delaware's 1921 law
requiring uniform and equal schools between the races had not been
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
Evidently taking their cue from the federal judiciary,
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
Two years later,
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
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
Court revisited the Brown II decision in its 1958 Cooper v. Aaron
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
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
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
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
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
School District--to the integrated
Hill Elementary School, under the jurisdiction of the
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
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.
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
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.
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
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.
and his colleagues sought the support of Louis Lucas, a
Tennessee attorney, to challenge
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.
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
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
to delay, modify, or reverse the 1976 order.
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
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
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
to deviate from previous court orders mandating desegregation.
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
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
in 1995. In affirming the 1995 ruling, the U.S. Court of Appeals
released New Castle
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
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
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
of Lutz’s purposes of state constitutions is to limit governmental
Yet, as was
described above, the convention which ratified the 1831
constitution made it
purposefully difficult to call subsequent conventions. Further,
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,
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
demonstrates how events during the American Civil War, including
the invasion of
soldiers to disarm militias, the suspension of habeas
corpus rights, the imprisonment of suspected southern sympathizers,
and the required
oaths of loyalty to the
administration, led to a three-decade domination of
state politics by the Democratic Party.
Not only did
reject the constitutional
amendments granting freedom and civil an voting rights to blacks,
but it also sent a
succession of Democrats to
who pleaded the cause of the defeated states
with such consistency that
came to be regarded as part of what would
eventually be know in political terms as the “Solid South.”
during the latter part of the nineteenth century contrasted starkly
It was at this
time that the current state constitution was ratified.
Obviously, the victims of this racism—those of color—would suffer
consequences in the educational field among other areas.
having an individualistic political culture and going against
trends politically for much of its history,
has failed to adequately
distribute political power, another purpose of state constitutions
One reason may
be a deficiency in the document which allowed
powerful interest groups to control the agenda for long periods of
This feature is identified by Grant and Omdahl as one of several
criticisms of state
Finally, it is apparent that several features of
Delaware’s political system
inhibited its ability to establish authority, another purpose of
according to Lutz.
encompass the part-time nature of the legislature, the
two-term limit for the governor, and the state’s ever-changing
Due particularly to the latter of the three,
Delaware’s courts proved unable to
effectively adjudicate cases dealing with educational desegregation
own until after the U.S. Supreme Court’s unanimous ruling in the
v. Board of Education case.
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
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
inter-district busing on a large scale.
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Dr. Samuel B. Hoff
is George Washington Distinguished Professor of History and
Political Science at Delaware State University. At DSU since
1989, he has earned four annual faculty excellence awards,
including two for teaching and one each for research and
university-community service. In 1999, Dr. Hoff became the
first full-time faculty member in DSC/DSU history to earn an
endowed distinguished professorship, which was bestowed by the
Delaware State Society of the Cincinnati. Dr. Hoff presently
serves as DSU's Law Studies Director as well as Director of the
Graduate Program in Historic Preservation and Director of
Graduate Programs for the College of Humanities and Social
Sciences. He has taught and written extensively on Delaware
history. Within the Dover community, Dr. Hoff is Chair of the
city's Human Relations Commission.