By: Dorronda Bordley

On March 27, 2015, the American Civil Liberties Union (ACLU) of Delaware sued the Red Clay Consolidated School District in Chancery Court. The ACLU asserted that Red Clay violated, among other things, the Delaware Constitution guaranteeing “free and equal” elections.

In February 2015, Red Clay held a special election asking residents to approve an increase in school-related property taxes. To secure a favorable result, Red Clay held seventy-five events on election day. These events were held in the school buildings that also served as polling places, drawing at least 6,383 people to the polls, a majority of which were families. The election day events not only brought parents and guardians to the polls, but consequently became a barrier to polling access. As families attending these events jammed into parking lots, they effectively barred some elderly and disabled residents from finding accessible parking to take part in the election. In addition to election day events, Red Clay also engaged in “one-sided get-out-the-vote efforts” for four months leading up to the election. Avoiding communication channels that would inform the public as a whole, Red Clay used its access to confidential information to push parents within the district to vote. Similar to a fundraiser, the district assigned each school a goal number of “YES” voters and looked to target parents to reach its goal.

In May of this year, the Delaware Court of Chancery released a decision regarding the case. The Court found that the ACLU proved that Red Clay targeted an electorate to vote in favor of the tax increase. The Court also found that Red Clay rewarded voters for voting in favor of the increase by hosting the election day events. While assessing Delaware’s Election Clause and general public policy, Vice Chancellor Laster stated, “when a government provides a targeted reward for voting to a group it believes will favor its position, the election is not “free and equal”.” Relying on the Delaware Supreme Court’s decision in Brennan v. Black (Del. 1954), which held that a school district’s “expenditure of public funds in support of one side” must be “within reasonable limits”, the Vice Chancellor found “the extent and intensity” of the school district’s campaign was unconstitutional.

Aside from the victory of reinforcing free and fair elections, the Chancellor’s decision also addressed a key dysfunction in Delaware’s system to fund public schools. By statute, public school funding is determined by property values for tax purposes. These values are supposed to be assessed at the property’s current market value. However, assessments in New Castle County remain at values established by the 1982 Taxable Property Values and Assessments survey for Delaware. While the statute allows for more current assessments to be utilized, the county has rejected conducting recent assessments to modernize property values. This has left school districts like Red Clay with the same tax base for almost thirty-five years. With operating expenses increasing every year, the only option Red Clay had to avoid an imminent deficit was to ask district residents to approve a task increase. With these thoughts in mind, the Chancery Court waved its equitable wand and found that although Red Clay did violate the Election Clause, it would not invalidate the results of the election.

I argue that Young v. Red Clay Consolidated School District is a sound board to local legislatures to create a commission and update property assessments in not only New Castle County, but all Delaware counties. Well-resourced schools and fair elections are both compelling government interests that should not be at odds with each other. However, if the local government fails to assist school districts in accurately calculating their tax bases it leaves them in very murky waters. Understandingly, property reassessment is a politicized issue. However, inaction creates even more problems.

School districts choosing between influencing tax referendums or closing their schools for hundreds of students is a very difficult decision, particularly when there are ways to avoid both. Accordingly, if the government refuses to act, one can only imagine the tactics school districts may use to keep their doors open. In this case Red Clay’s involvement as a government entity reached unreasonable proportions, however, the Court did not address other alternatives that may fall within reasonable limits. In addition, in this case, the school district as a government actor openly influenced and rewarded it electorate. What if the school district asked a Parent-led Association to hold events at the polling place instead? What if third-party advocacy groups led the charge? Isn’t there an innate unfairness in forcing school districts to ask for tax increases at the expense of closing its doors? One could argue that residents within the district don’t even have a free and equal chance to disagree if a tax referendum is on the table. In this case, Vice Chancellor Laster is calling on the legislature to look at the system for funding public schools more closely. It is certainly time to re-evaluate the issue to escape another situation like Red Clay. However, if the local legislature cannot overcome the “political poison”, it may force the Courts to.

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