LOUIS L, REDDING CITY COUNTY BUILDING {800 N. French Street, 8th Floor ‘Wilmington, Delaware 19801 (302) 395-8350 Fax: (302) 395-8385 [email protected] JEA P. STREET COUNCILMAN, TENTH DISTRICT Email: ‘August 10, 2017 Honorable Michael S. Purzycki, Mayor City of Wilmington and All Honorable Members of Wilmington City Council 800 N. French Street Wilmington, De 19801 Dear Mayor Purzycki and Members of Wilmington City Council, | have attached for your information and consideration information that I have assembled regarding the education of children in the City of Wilmington. The charts include test scores, discipline and special education information. | extrapolated the data from the Delaware Department of Education (DOE) School Profiles. At the writing of this letter, the most current discipline and test score information Is from the 2015-2016 school year. Although the discipline and test scores are a year old, | have good Cause to believe that the 2016-2017 data will be comparable to the 2015-2016 school year. You will find that the percentage of children attending regular schools in the City of Wilmington and meeting State standards in reading, math, science and social studies is devastatingly low in most schools (Copy of extrapolated test scores are attached here as attachment 1). It appears on the surface that the staff at Lewis Elementary is doing a better job of teaching children in two languages than other schools are doing teaching one language. The percentage of children not meeting the standards in the City Schools in Christina begs the question of why the schools are allowed to remain open. Consistent with my February 2, 2017 letter to Governor Carney (copy attached here as attachment 2), Bayard Middle School is the worst performing middle school in the entire State. \n regard to discipline you will find that 49% of all reported suspensions in the State were children attending schoo! in the four re-segregated school districts in Northern New Castle County. Further, 56% of all out of schoo! suspensions and 31% of all expulsions in the State were from the re-segregated school districts in Northern New Castle County (copy of discipline data attached here as attachment 3).‘Special Education information (copy attached here as attachment 4) shows that 41% (8,419) of all special education students in the State attend school in the four re-segregated school districts in Northern New Castle County, | find it necessary and appropriate to point out that on December 14, 2012, the Office for Civil Rights {OCR) determined that the Christina School District had discriminated in discipline, district wide at all levels (copy attached here as attachment 5). Worse, the discrimination was most egregious at elementary schools within the City of Wilmington (page 17). As a result, nobody was held responsible and nobody was held accountable, At the time, Wilmington City Council members were the only public officials that addressed the problem by holding a public hearing. In my view, the determination is still relevant based upon the current level of discipline and the dismal performance of students. In addition, | have good cause to believe that if the other three re-segregated districts serving City of Wilmington children are subjected to the same scrutiny, they will have comparable diseriminatory results. On July 6, 2000, in the matter of Parent information Center of New Jersey vs. Delaware Board on the Unauthorized Practice of Law (copy attached here as attachment 6), the Delaware Supreme Court Upheld the Board’s determination that prohibited lay advocates from representing parents and students in Special Education Hearings. To date, lay advocates have not been denied parti special education meetings. However, representation in special Education Hearings in the State of Delaware is limited to lawyers. In my view, what is set forth in the preceding makes it abundantly clear that the educational plight of children in the City of Wilmington cries out for relief. | respectfully suggest that this relief will not be forthcoming without the support of advocates and lawyers to provide individual services to children and parents as needed and at the same time advocate for and where necessary litigate to systemically change educational practices and policies. Prior Educational Advocacy for Children in the City of Wilmington In 1974, | was hired as Executive Director of the Parent Educational Resource Center (PERC) to help assist parents and students in the City of Wilmington make a smooth transition into Court Ordered School Desegregation. The Center was organized and governed by the Wilmington Home School ‘Community Council. It was originally funded with Community Block Grant money provided by New Castle County. Its original purpose was to provide services to parents and students in response to the order that was expected to come about as a result of the Evans vs. Buchanan litigation (subsequently Coalition to Save our Children vs. State Board et al) that was pending in Federal Court. Voluntary desegregation began in 1976, As a result of suspensions and proposed expulsions, PERC hired additional lay advocates to represent students and parents in hearings. In 1978 when the Court order was implemented, PERC had a total of seven advocates that included one lawyer. In addition, Federal funding established the Special Student Concerns Advocacy Project which had at least four advocates. There were also two Human Relation Specialists in each secondary school.From 1969 when the matter of Evans vs. Buchanan was reopened until the January 9, 1978 Federal Court Order was implemented, the City of Wilmington paid outside counsel that included the late Louls R. Lucas, Esquire, the late William L. Taylor, Esquire and Paul R. Diamond, Esquire. Local counsel, including the Late Louis L. Redding, Esquire, the late Irving Morris, Esquire and the late Judge Leonard L iams filed a fee petition after winning the litigation. The State agreed to a settlement of $1,000,000. 4s @ result of the fee that the State had to pay local counsel, the City has been punished financially every since. After paying the settlement, the Delaware General Assembly took a percentage of the City wage tax claiming that it was appropriate since the City no longer operated a school district. In my view, Itis Punishment forever consistent with the State's segregation forever actions. On the eve of the demise of Community Action of Greater Wilmington, all the advocates at PERC sought and obtained other jobs. After that, PERC did not exist and the Special Student Concerns Advocacy Project was only funded for two years. Northern New In 1980, the State Board of Education asked the Court to allow the one large District Castle County to be divided into the current four Districts. A group of volunteers and community leaders in conjunction with the NAACP formed the “Coalition to Save Our Schools"; subsequently it became the “Coalition to Save Our Children”. The organization was formed for the sole purpose of representing the Plaintiff class in the litigation. The Coalition opposed the four District plan in Court but did not prevail From 1981 to 1996 when the Court Order was officially lifted, Coalition members volunteered their time ‘0 represent individual students in special education and expulsion hearings. This was done with the advice and where needed assistance of Counsel that represented the Coalition in the litigation. When the Court order was lifted in 1996, the Coalition did not have standing with any Court and did not continue to operate, During the 102% session of Wilmington City Council (1997-2003), City Councilman Samuel L. Guy, Esquire requested and obtained funding to provide a student advocate to represent City students in expulsion cases. After the 102 session of City Council, funding for the student advocate did not continue. 'n 2007 in the matter of City of Wilmington vs. Christina School District, the City of Wilmington hired outside Counsel and sued Christina to prevent the District from closing several City schools. The City and Parents prevailed in that matter. In the absence of legal representation provided by the City, the schools would have been closed. 'n 2014 under the direction of former Mayor Dennis P. Williams, the City of Wilmington intervened in the matter of The New Moyer Academy vs. State of Delaware. The City hired outside counsel to represent parents in an effort to keep the school open. Regrettably, the City did not prevail in this ‘matter and the school was closed. For at least the last eight years the ACLU of Delaware has been very helpful. In 2014, the ACLU filed a Federal Complaint against the Delaware Department of Education and the Red Clay Consolidated SchoolDistrict alleging re-segregation in Charter Schools. In addition, they have represented several students and parents in complicated or unique circumstances involving discrimination or illegal decisions. This ‘support is ongoing and very much appreciated. However, it must be understood that the ACLU has a limited number of lawyers that assume other major legal responsibilities involving justice and civil rights. From 1981 until present, | have served as a volunteer student advocate in my capacity as Executive Director of Hilltop Lutheran Neighborhood Center. For a short period of time in the 1980's (approximately two years), New Castle County provided funding to Hilltop for one advocate to serve parents and students in the former DeLaWarr School District, n recent years, have limited that advocacy to expulsion and discrimination cases and matters that only require written or verbal communication with school officals, In matters involving Hilltop students, | proudly serve them as their Executive Director. In matters involving other students, | have used my vacation time to serve as their advocate. From 2013 until present, | have referred most ofthe calls that | receive for assistance to Education Voices that has been funded by Wilmington City Council. Most recently this year, | referred ‘one complicated special education case to the Student Disabilities Advocate (SDA), {tis important that | let you know that last year; the State Board of Education contemplated Promulgating rules of procedure that would prohibit lay advocates from representing students in suspension and expulsion hearings. In my view, it’s a clear indication of the effectiveness of the advocates. Please keep in mind that it was lawyers that complained to the Supreme Court Disciplinary Counsel about the advocates from the Parent Information Center practicing law without a license. in my view, with meritorious foundation, it was because they were effective and prevailed on a regular basis, As punishment for prevailing in a matter involving the graduation of a pregnant student in the Capital School District, the exact same thing was attempted with me. Representation is an ongoing matter of fundamental fairness. The harsh fact of the matter is there has not been a scintilla of a public outcry about the tax payer money that schoo! districts spend on lawyers to help expel our children, defend discrimination and discriminatory practices, justify the placement of our children in special education or to defend IEP’s that are non-compliant. The billing rate for at least one of the lawyers was $400 an hour aver twenty years ago. ! know for a fact that lawyers were paid in a futile attempt to defend Christina when that district was investigated by OCR. Lawyers were also paid to defend the Federal complaint that | filed as County Councilman against the Colonial Schoo! District in 2008. From 1993 to 1996 several law firms were paid millions of dollars of tax payer money to have the Districts declared unitary. During this period of time, there was contentious public debate about former ‘Mayor James H, Sills J. spending $100,000 to hire the late Louis R. Lucas to represent the City in the litigation and to help negotiate a settlement. in that regard, the money that the City has spent on advocates and lawyers is comparatively minute, Since at least 1974 when | entered the education arena, the City of Wilmington has played a major role in providing lawyers and advocates to protect the educational destiny of its children. It is my fervent hope that the City will continue to provide funding for educational advocacy and support and considerproviding additional funding for both lay advocates and lawyers. | respectfully represent to you that the attached infortnation cries out for relief that only the City can and will provide. in my view, the Clty’s failure to provide continued and enhanced educational advocacy and support will be an extraordinary abdication of its responsibility to City children, The harsh fact of the matter is that the Mayor and City Council are in charge of the allocation of City resources. In that regard, you should never let the public press make decisions regarding City children for you. | thank you for your consideration, 7 Jd P. Street, Councilman 10” District New Castle County Council Pe: Honorable John Carney, Governor Or. Susan S, Bunting, Secretary of Education kathleen MacRae, Executive Director, Delaware ACLU Richard H. Morse, Esquire, Legal Director, Delaware ACLUORDER OF ATTACHMENTS 1. February 2, 2017 letter to Governor John Carney from New Castle County Councilman Jea P. Street 2. Extrapolated Test Score information from the Delaware Department of Education Schoo! Profiles, extrapolated by Jea P. Street 3. Extrapolated Discipline information from the Delaware Department of Education School Profiles, extrapolated by Jea P. Street. 4. Extrapolated Special Education information from the Delaware Department of Education School Profiles, extrapolated by Jea P, Street. 5. December 14, 2012 letter to Dr. Freeman Williams, former Superintendent of the Christina School District from Ms. Wendella P. Fox, Director, Philadelphia Office United States Department of Education, Office for Civil Rights 6. July 6, 2000 Delaware Supreme Court decision in the matter of Parent information Center of New Jersey vs. Delaware Board on the Unauthorized Practice of LawATTACHMENT 1LOUIS L. REDDING CITY COUNTY BUILDING 800.N, Freach Street, 8th Floor ‘Wilmington, Delaware 19801 JRA P. STREET ‘COUNCILMAN, TENTH DISTRICT mal: [email protected] February 2, 2017 Honorable John Carney, Governor 820N. French Street Wilmington, De 19801 Re: Bayard Middle School Dear Governor Carney, am writing to you as a follow up to the letter | sent to the President of the Christina School District Board of Education on February 1, 2017. | am specifically requesting that you and the State Board of Education utilize all of your power and all of the authority and power of the Delaware Department of Education to address the critical problems in the Christina School District in general and Bayard Middle school in particular. in addition, | am asking that you call upon the Delaware General Assembly to assist you with this most important matter. My immediate concern is that Bayard middle school is not safe for children. | maintain this view for the reasons set forth in the February 1, 2017 letter. In addition, Bayard is the smallest of all the Christina ‘School District’s middle schools but has the highest number and rate of suspensions. The enrollment at Bayard has declined from the 416 students last year to 319 students this year. However, the district's own data shows that the number of suspensions at the school this year to date (August thru December) fhas increased (730 this year as compared to 628 last year) during the same period of time. The contrast of suspensions at Bayard and the District's other middle schools is shameful.School Enrollment Total Suspensions (August-September thru December 2016-2017) Bayard 319 730 * Gauger 996 361° kirk 680 107* Shue 853 109* ‘School District Disciplinary Dash Board for total *Sources ~ Schoo! Profiles for enrollment, Chri suspensions in and out of school. In my view, the disciplinary data speaks for itself and cries out for relief. It appears on the surface that Bayard school Is out of control and | am frankly afraid that the State’s failure to intervene could result in another tragedy in one of our public schools that no one wants to see again. ‘The school profiles make it crystal clear that the children at Bayard School are definitely not learning, ‘The School Profiles for Bayard show: 1, Reading: Only 5.1% of 6% graders, 6.3% of 7* graders and 13.7% of 8% graders meet state standards 2, Math: Only 3.5% of 6th graders, 2.1% of 7® graders and 4.9 of 8* graders meet state standards** 3, Sclence: Only 3.4% of 8th graders meet state standards ** 4, Social Studies: Only 8.7% of 7" graders meet state standards ** My perusal of the school profiles this morning makes it crystal clear that Bayard Middle School is the worst performing middle schoo! in the entire State of Delaware. This situation is unconscionable and warrants emergency action and relief by you, the State Board of Education and DOE, **Source School Profiles DOE, regrettably, the profiles reveal that there is not a single grade level at any of the Districts middle schools where at least 50% of the students meet the state standard in any subject.Gn December 14, 2012, the US Departments Cifice of Education Office of vil Rights Division (OCA) ‘ound that the Christina Schoo! District had discriminated in discipline district wide at all levels. n response, nobody was ever held accountable or responsible. In my view, as a result of the resolutlon that was agreed upon by the District and OCR, children in several Christina District schools have not been appropriately disciplined for the last four years. Teachers and students have complained and have been told that children could not be suspended because of “the law suit”. {adamantly disagree with this view and know full well that the resolution does nat prohibit schools from taking appropriate disciplinary action. This i especialy significant when the infraction rises to the level of assault and robbery that require medical treatment at a hospital. In that regard, the State cannot stand idly by and allow this unsafe ineffective so called education to continue. ‘This is now an issue of fundamental fairness. In the 2014-2015 school year, the Delaware Department of Education (DOE) and the Delaware State Board of Education closed both Moyer and Reach Academy primarily becalse of low test scores. The fact is that neither of the two schools had test scores as low as. those at Bayard last year. Further, to my knowledge, there were no incidents at either of the closed schools that resulted in children having to receive medical treatment at a hospital. The State Board was told at the time that the test scores at some regular public scores were lower than those of the closed schools and was challenged to do something about the falling public schools. To date, no action has been taken other than the proposal for the so called priority schools that was abandoned to move forward with the Wilmington Education Improvement Commissions (WEIC) Plat After extensive study and debate, the WEIC plan was approved by the four school districts in northern New Castle County, the State Board of Education and the Delaware House of Representatives. That plan specifically took children in the City of Wilmington out of the Christina School District that is in part non Contiguous to the City of Wilmington. This plan was sabotaged by the Delaware Senate and left City children in Christina's falling schools that have discriminated against them in discipline, district wide at all levels. This broken promise leaves absolutely no hope for relief and fairness and children in the City of Wilmington are suffering irreparable harm accordingly. The harsh fact of the matter is that the four districts in northern New Castle County were created by the Delaware General Assembly and it is now past time for the General Assembly to fix what is obviously broken.‘The instant matter in Christina In general and Bayard Schoo! in pafticulat cty cut for your leadership as Governor, the leadership of the State Boatd of Education appointed by the Governor and action by the Delaware General Assembly. | artxlously await the relief that has been requested for City children for at least 16 years. Sincerely, / 4A Bp for ef ph leaf. Street, Councilman 10® bisect New Castle County Council - PC: Honorable Matthew Denn, Attorney General All Honorable City of Wilmington Members of the Delaware General Assembly All Members of the Delaware State Board of Educ: All Members of the Christina Board of Education Honorable Michael Purzycki, Mayor, City of Wilmington All Hohorable Members of Wilmington City Council All Members of the Wilmington Education Strategy Think Tank (WEST) Mr. Devon Hynson, Executive Director, Education voicesATTACHMENT 2HARLAN Grade 3 Grade 4 Grade S PS DUPONT Grade 6 Grade 7 Grade 8 PERCENTAGE OF STUDENTS MEETING STATE STANDARDS 2015-2016 Brandywine School District City of Wilmington Schools Reading 53.7 37.7 42.5 64.0 58.2 512 MATH 46.3 36.4 219 46.6 476 38,7 SCIENCE SOCIAL STUDIES 38.2 13.9 52.0 53.3 Source: Delaware Department of Education School Profiles, extrapolated by Jea P. StreetBancroft Grade 3 Grade 4 Grade 5 Elbert Palmer Grade 3 Grade 4 Grade S Pulaski Grade 3 Grade 4 Grade 5 PERCENTAGE OF STUDENTS MEETING STATE STANDARDS 2015-2016 Christina Schoo! District City of Wilmington Schools Reading 10.1 235 245 174 47 15.8 15.3 25.3 32.9 Math Science Social Studies 14.1 98 23.5 61 9.8 10.9 16 233 27 206 213 28.0 15.3 23Christina Continued Page 2 ‘Stubbs Grade 3 Bayard Middle Grade 6 Grade 7 Grades Reading 14.5 205 14.0 Bsa 63 13.7 Math 29 1d 40 3S 24 49 Science Social Studies 7 20 a7 34 Source: Delaware Department of Education Schoo! Profiles, extrapolated by Jea P. StreetPERCENTAGE OF STUDENTS MEETING STATE STANDARDS 2015-2018 Red Clay Consolidated School District City of Wilmington Schools Excluding Charter Schools HIGHLANDS: Reading Math Science Social Studies Grade 3 34.0 34.0 Grade 4 377 25.5 35.9 Grade 5 333 74 13 LEWIS Dual Language Grade 3 54.9 64.0 Grade 4 424 48.3 67.2 Grade 5 42.9 97 a7 SHORTLIDGE NOT RATED 2015-2016 SCHOOL YEAR WARNER Grade 3 235 148 Grade 4 128 89 18.7 Grade 5 26.2 92 BS ‘Source: Delaware Department of Education Schoo! Profiles, extrapolated by Jea P. StreetATTACHMENT 3ALL Suspensions 2025-2016 All Suspensions in and Out of Schoo! State of Delaware 49,620 Brandywine 4,076 Christina 8618 Colonial 6,001 Red Clay 5,979 Total Four Districts in Northern 24,674 49% of all reported suspensions in the State New Castle County were children attending school in the four school districts in Northern New Castle County Source: Delaware Department of Education School Profiles, extrapolated by Jea P. Streetut of Schoo! Suspensions 2015-2016 Total out of school suspensions State of Delaware 27,364 Brandywine 3,353 Christina 4,695 Colonial 3,365 Red Clay 3,776 Total Four School Districts in Northern 15,489 56% of all the Out of Schoo! Suspensions New Castle County in the State were children attending school In the four school districts in Northern New Castle County Source: Delaware Department of Education School Profiles, extrapolated by Jea P. Street2015-2016 Suspensions Unduplicated number of Students State of Delaware 17,287 Brandywine 1,355 Christina 2,452 Colonial 1,948 Red Clay 2,071 Total Four Districts in Northern, 7,826 45% of all individual students suspended in the State New Castle County attend school in the four Northern Districts of New Castle County Source: Delaware Department of Education School Profiles, extrapolated by Jea P. StreetExpulsions 2015-2016 State of Delaware 123 Brandywine 0 Christina 32 Colonial 4 Red Clay 3 Total Four Districts in Northern 39. 31% of all expulsions in the State were children New Castle County enrolled in the four school districts in Northern New Castle County Source: Delaware Department of Education School Profiles, extrapolated by Jea P. StreetATTACHMENT 42016-2017 Special Education Enroliment Total Enrollment ‘Special Education 4 Special Education State of Delaware 137,217 149 20,445 Brandywine 10,400 148 1,508 Christina 15,076 19.9 3,000 Coloniat 9,909 16.9 1,674 Red Clay 17,484 128 2,237 Total Four School Districts in Northern 8,419 41% of all special education New Castle County students in the state attend school in the four school districts in Northern New Castle County Source: Delaware Department of Education School Profiles, extrapolated by Jea P. StreetATTACHMENT 5UNITED STATES DEPARTMENT OF EDUCATION actors OPPICK FOR CIVIL RIGHTS eewrucer aBeianD THB WANAMAKER BUILDING, SUITES15 ver vnenn WO PENNY SQUARE 2aST PHILADELPHIA PA 19107-2325 December 14, 2012 Freeman Williams, €¢. Superintendent Christina School District Drew Educational Support Center 600 North Lombard Street Wilmington, DE 19801 Re: Case No. 03-10-5001 Christina School District Dear Dr. Williams: This is to inform you of the resolution of this compliance review of the Christina School District initiated by the U.S. Department of Education, Office for Civil Rights (OCR), on March 19, 2010 under Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. Section 2000d et seq., and its implementing regulation at 34 C.E.R. Part 100. Title VI prohibits discrimination on the basis of race, color, or national origin by recipients of Federal financial assistance from the U.S. Department of Education (the Department). As @ recipient, the Christina School District (District) is subject to the provisions of Title VI. Title Vi and its implementing regulation require that a school’s disciplinary policies and Practices be applied to students without regard to a student's race. This compliance review investigated the District's discipline policies and practices and specifically whether the District discriminates against African American students by disciplining then more frequently and more harshly on the basis of race than similarly-situated white students, In conducting this review of the District’s discipline policies and practices, OCR examined the District’s written policies and procedures, reviewed data, including individual student disciplinary records, from 27 District schools, and conducted interviews with District administrators, teachers, counselors, school resource officers, support staff, and community members. Based on our investigation, we conclude that the District has violated Title VI. Our investigation identified examples where African American students engaging in virtually identical behavior to ‘The Departsen of Education's mission sto promote student adievemet and preparation for globe conpetiienest ty fostering eduwstional exellece and ensiing eal aces, word govDr. Freeman williams ~ Page 2 white students were punished more harshly shen white students (who had the same or worse disciplinary history). A statistical analysis of all students referred for discipline for the first time, based on the District’s own records and categorizations, found that African Americans were at feast twice as likely to receive @ suspension (either an in-school suspension (ISS) or an out-of- school suspension (05S)) than white students for violations of similar severity. Moreover, African Americans experiencing their first referral were over three times more likely than white students to have the suspension be OSS, rather than ISS. For students whose fist disciplinary ‘eferral was for inappropriate Behavior, African American students were nearly seven times ‘more likely to receive OSS than white students. OCR's investigation also revealed that the District permitted decision-makers to apply penalties in excess of the provisions outlined in the Student Code of Conduct (Code), and that the imposition of higher penalties was most prevalent for the highly subjective violations and disproportionately fell on African American students (compared to similarly- situated white students referred for the same violation). These consistent and significant disparities also existed with regard to the threshold matter of disciplinary referrals. For example, in 2010-2011, African American students were 1.98 times more likely than white students to be referred for a first offense. African American students were twice as likely as white students to be referred for Inappropriate Behavior for their first disciplinary referral in 2009-10 and almost twice as likely in 2010-11. Also, at every school level, and in every year examined, the disparities In disciplinary referrals between African American students and white students were statistically significant. The extraordinary disparities in referrals for disciplinary action and to law enforcement, and the extraordinary disparities in the imposition of penalties, combined with the examples of individual African American students who received harsher discipline than similarly-situated white students, are sufficient to establish different treatment on the basis of race. OCR notes that, during the course of this investigation, the District initiated steps to support the strategies and goals reflected in the Resolution Agreement. These include: strengthening the Implementation of the Positive Behavior Support program; hiring personnel to assist in developing behavior modification plans and classroom management training; engaging parents and community members in the process of revising the Code; and working with the Delaware Department of Education to make improvements in the eSchool system. We also note a ‘number of positive statistical trends reflected in the data over the three-year period under investigation, including reductions in the numbers of students referred for discipline, receiving ISS and OSS, or being expelled.* " There was a 14.2% reduction in the total aumber of SS assignments between 2008-09 and 2010-11 (from 7,689. 06,597), nd the proportion of ISS assigned to African American students decreased rom 66.5% to 66.0% ‘There was a 42.8% reduction inthe total number of O55 assignments between 2008-09 and 2010-1 (from 9,451 105,403), and the proportion of suspensions assigned to African Amerlean students decreased from 75.3% to 729%, The total numberof students expelled from school ty the District fll from #4 to 15 (83%) between the 2008-09 and 2010-11 school years. Inthe 2010-11 school year, the difference inthe rate at which AfricanDr. Freeman Williams ~ Page 3 The District agreed to enter into a Resolution Agreement in order to address OCR's findings. | URAL AUTHORITY OCR investigates alleged discrimination in the application of student discipline consistent with federal statutory authority, the Department's regulations, and pertinent case law. Disciplinary policies and practices can result in unlawful discrimination based on race in two ways: fist, if students are intentionally subject to different treatment on account of their race (commonly referred to as “different treatment"), and second, even if a policy is neutral on its face but has a disproportionate and unjustified effect on student(s) of a particular race (commonly referred to as “disparate impact”) For different treatment, absent direct proof of intentional discrimination based on race, OCR asks the following questions to determine whether different treatment has occurred in the schoo! disciplinary context: (1) Did the schoo! treat a student or group of students differently than a similarly- situated student or group of students of another race in the disciplinary process, and thereby limit or deny the student(s) educational services, benefits, or opportunities? If so, (2) Did the school have any legitimate, non-discriminatory reason for its actions? If 30, (3) Was the reason given a pretext for discrimination? See, €.g., U.S. Department of Justice, Title VI Legal Manual 44-46 (Jan. 11, 2001); and U.S. Department of Education, Racial incidents and Harassment Against Students at Educational Institutions, 59 Fed. Reg. 11,448 (Mar. 10, 1994). See also McDonnell Douglas Corp. v. Green, 411 US. 792 (1973). For disparate impact, discrimination occurs if @ race neutral policy adversely affects students in a racially disproportionate manner, and the schooi district cannot demonstrate that the policy substantially furthers a substantial legitimate educational justification.” Even in situations where a school can demonstrate that a policy has a substantial legitimate educational Justification, OCR would still find a violation of Title Vi, ifthere are alternatives available that would comparably meet the school’s educational goal with less of an adverse racial impact. For bath different treatment and disparate impact, statistics alone are not sufficient to establish a violation of Title Vi, but significant statistical disparities can be evidence of a violation, ‘American students were expelled compared to white students was not statistically significant, ?See Elston v. Talladega County Board of Education, 997 F.2d 1394 (21th Cir, 1993) (there must be an “educational necessity” for the challenged program, practice or procedure); Title i Manual at 51.Or, Freeman Williams — Page 4 {FINDINGS OF FACT a. ckground ‘The District is the largest in the state of Delaware. The boundaries of the Christina School District include the city of Newark, the southeastern section of the city of Wilmington, the ‘towns of Christiana and Glasgow, and the township of Bear. ‘The 2010-11 District enrollment was 17,149 students, of which 7,148 students were African American (41.7%), 5,954 students (34.7%) were White, 2,920 students (17%) were Hispanic, and 1,127 students (6.6%) were listed as Other. The 27 District schools included in this review are: * Eighteen elementary schools (grades K~5): Bancroft, Brader, Brookside, Downes, Elbert-Palmer, Gallaher, Jones, Keene, Leasure, Maciary, Marshall, McVey, Porter Road, Pulaski, Smith, Stubbs, West Park Place and Wilson; ‘* Four middle schools (grades 6-8): Bayard, Gauger-Cobbs, Shue-Medill and Kirk; » Three high schools (grades 9 ~ 12): Christiana, Newark and Glasgow; and * Twoalternative schools: Douglass Alternative School and Sara Pyle Academy, Thirteen elementary schools (Brader, Brookside, Downes, Gallaher, Jones, Keene, Leasure, Maclary, Marshall, McVey, Smith, West Park Place, Wilson), three middle schools (Gauger- Combs, Kirk, Shue-Medill), and three high schools (Christiana, Glasgow, Newark) are located in the city of Newark. Four elementary schools (Bancroft, Elbert-Palmer, Pulaski, Stubbs), one middle schoo! (Bayard), and two alternative schools (Sara Pyle Academy, Douglass) are located in the city of Wilmington. One elementary school (Porter Road) is located in the township of Bear. B. The Oistrict’s System of Discipline 1. Weltten Policies The District publishes its Code, and distributes the current version in hard copy to every student at the beginning of the school year. The Code is also available on the District’s website. The District reported that the Board of Education requires the District to annually review the Code and revise it as needed. Staff, parents, and community members are invited to participate and provide input at meetings held around the District. Through this process, the Code has been revised in each of the last three school years, 2008-09, 2009-10 and 2010-11. We refer to these as the 2008 Code, 2009 Code and 2010 Code, respectively.’ * Although in most areas impacting this review the three Codes are substantially similar, a brief description of any relevant differences ot revisions year to year i cluded in the analysis below.Dr. Feeeman Williams ~ Page 5 The Code is the District’s primary form of notice to students and parents of the expected ‘behavior and of the potential consequences should a student fail to adhere to the ‘expected behavior. At the beginning of each school year, students are asked to discuss the Code with ‘their parents. Students and parents are expected to provide a written acknowledgement that they have received @ copy of the Code. The 2010 Code lists 46 violations for students in grades 6 to 12.* The violations were largely the same as in the 2008 and 2009 Codes and, a8 in previous years, were grouped under one of three “categories” or “levels.” Category | violations are those the District determined were the least serious, and include violations such as Abusive Language (student-to-student), ‘Inappropriate Behavior, and Unouthorized Use of Electronics. Category I violations are more serious, and include violations such as Abusive Language (student-to-staff), Academic Cheating, and Fighting. Category Ill violations are the most serious, including violations like Arson, Distribution of Drugs and/or Alcohol or Paraphernalia, and Rape or Attempted Rape. Each violation was followed by a progression of optional, recommended, and required penalties or other consequences pertaining to the misconduct. See Chart A for a list of the violations in the 2010 Code, by offense category. The following statements in all three Codes provided notice to parents and students of the District’s discretion to increase penalties’: This document is not all-inclusive nor does it restrict the Christina School District and/or Board of Education's authority to take actions that are appropriate to ‘maintain a safe and orderly educational environment. ‘The Student Code of Conduct is not all-inclusive, and a student committing an act of misconduct not listed may be subject to the authority of the principal or designee. Serious or excessive behavior that necessitates a more severe disciplinary action than that which is listed shall be subject to the discretionary authority of the principal and the Superintendent. This may include a recommendation for expulsion. [Emphasis added.] Some violations are not clearly defined in the Code. For example, Inappropriate Behavior is defined as “Language, gestures, or actions that incite, produce distractions or disruptions, or seriously interfere with effective functioning of the teacher, another student, class or any school activity.” As discussed in more detail below, this definition is subject to wide interpretation. Similarly, there are instances where the Code does not clearly identify the sanctions that may be imposed for a particular offense or a violation. The 2010 Code lists consequences as “optional,” “required” or “recommended,” but some consequences have no “There are 43 violations defined for younger students. The discussion herein focuses on older students, generally grades 6-12. * We noted that out of 184 teachers asked by OCR to explain the differences among the offense category levels, 20 did not know or were unable to doo, “These statements are found in the Introduction to the Code, which is approximately an 80-page document.Or. Freeman williams ~ Page 6 heading at all, which the District stated meant they were required. As for the meaning of “recommended,” District administrators told OCR that these consequences should be imposed. However, the date did not show a consistent pattern of following that guidance. Based on this, OCR finds that “recommended” consequences in the 2010 Code were not clearly stated and neither was It clear that consequences with no heading were required. The istrict’s Supervisor of School Climate and Discipline, who is responsible for oversight of disciplinary issues, informed OCR that she conducts a Code training course for administrators at the beginning of each school year. She reported that principals were previously required to provide Code training for teachers, but this was discontinued. When asked whether they received training on the Code, 72 out of the 189 teachers wham OCR interviewed indicated that they had no Code training. Of the teachers who were asked whether they received any kind of discipline training, 56 out of 89 responded that none was provided. 2, Blaclolinary Referral Practices and Recordkeeuina ‘The 2010 Code stated in general terms that, except in emergencies, teachers were expected to use reasonable behavior management techniques in the classroom prior to referring misconduct to an administrator for disciplinary action. In interviews, most teachers indicated that they handled Category | violations themselves by using classroom management techniques - such as giving a student “a look”, providing warnings, redirecting, reiterating expectations, staying In close proximity to the student, or moving the student's seat — rather than referring the student to an administrator for discipline. When students were referred for discipline, District staff generally filled out paper forms reflecting the referral. Upon receiving the referral, building administrators were responsible for identifying the specific Code provision violated and assigning the appropriate disciplinary action. The incident and outcome were then recorded in an electronic information and records management system known as eSchooiPLUS (eSchool). The eSchool system is intended to store the District's student records, including all instances of discipline. Alt school districts in Delaware use eSchoo!, which, among other purposes, is designed to support the collection of data on school crimes. On some referral forms and on all notice letters there was a statement that the student was given a chance to present his/her side of the story. However, of the 1600 discipline files that OCR reviewed, fewer than half indicated that the student was actually given this opportuntty before the penalty was assigned and carried out. OCR also observed that the intent of a misbehaving student’ could mitigate or increase the severity of the penalty (although the Code was silent on this). Additionally, some of the plainly stated required penalties were treated by administrators as non-mandatory, including those requiring expulsion, notification of police or filing criminal charges. * OCR found that some referral forms collected information on the “possible motivation” behind a student's behavior, including whether the behavior was motivated by the student seeking attention fram peers or staff or by ‘an ongoing contict.Br. Freeman Williams ~ Page 7 ‘While referral forms have a space provided to record any contact with a parent or guardian, we found that this space was mostly left blank." Some referral forms included notations that parents were contacted, but there was title or no documentation of the information given to the parent; many other telephone records left It unciear whether actual contact with a parent was accomplished. For example, some forms had only a parent or guardian’s name and telephone number arid nothing more, or else the “phone” or “parent contact” boxes were checked off. Some forms indicated that a message was left for the parent or guardian. Other forms noted that contact was made, usually with a handwritten notation such as “parent contacted” or “spoke with mom" and nothing more. We also found referral forms with the box “E-mail” checked off or the notation of “e-mail” written on it, but none of the discipline files Included the copy of an e-mail to the parent. On rare occasions the notation recorded the Parent's reaction, not what was said to the parent: Furthermore, as many as half of the violations defined in the Code lacked a corresponding match in eSchoa!'s preset dropdown menus for entering disciplinary data. Although the District had developed a cross-reference to guide employees in choosing an eSchool approximate for the actual Code violation, It did not resoive all consistency problems because a single eSchool code could still be used for different Code violations. The District maintained that employees were also instructed to record the District Code violation in the comment field, but this was not always done. Thus, the District often did not make or record an official determination of the specific Code provision violated. We also noted various other inconsistencies in disciplinary recordkeeping among the files reviewed, e.g., documentation was missing from the file; the student received a penalty for conduct not enumerated in the Code; the penalty assigned and/or the initial referral itself was not recorded in eSchool; or the conduct described did not fit the defintion of the violation noted in the record, © Data Analysis Methodology OCR investigated the District’s administration of discipline, including both a statistical analysis of its records and a review of the contents of hundreds of paper files: OCR reviewed all of the District’s electronic records of disciplinary referrals fram the 2008-09, 2009-10, and 2010-11 school years in order to determine whether there were statistically significant disparities in referrals and in the imposition of penalties based on race. OCR also reviewed over 1600 disciplinary referrals, including corresponding paper files and eSchool records, made during the 2009-10 school year to identify instances of individual students subjected to different treatment on the basis of race. * The District did not require that parents receive formal written notice ofall discipline until the 2010-11 schoo! year.Dr. Freeman Williams ~ Page 8 OCR reviewed 2009-10 and 2010-11 school year data in order to compare the treatment of African American and white students referred for similar viotations at the time of the student's first disciplinary referral of the school year. Finally, OCR analyzed the penalties that were assigned for five high-incidence violations in each of the three years to determine whether there were statistically significant differences by race in the distribution of penalties (from least severe to most severe) assigned for those violations. For example, OCR isolated the number of students referred, by race, for a first offense of Inappropriate Behavior and compared the severity of penalty received. A similar analysis was conducted of students referred for a second and third offense, Analysis: Disparities in Disciplinary Referrals During the three years under review, African American students comprised 43.6% (2008-08); 43.4% (2009-40); and 41.7% (2010-11) of the total enrollment of the 27 schools. However, while African American students constitute less than half of the enroliment, the vast majority of referrals entered in the eSchool system each year (68.4% In 2008-09; 67.1% in 2009-10; 65.5% in 2010-14) were for African American students. In comparison, white students constituted 36.8% (2008-03), 36.2% (2009-10), and 34.7% (2010-11) of enrollments, and 20.7% (2008-09 and 2009-10) and 20.1% (2010-11) of disciplinary referrals. When breaking this data down to the number of individual students by race, African American students constituted 60.6% of all students referred for discipline at least once in 2008-09; 60% in 2009-10; and 58.2% in 2010-11. White students comprised 26.1% of individual students referred for discipline at least once in 2008-09, 25% in 2009-10, and 24.7% in 2010-11. For all three years, the results are statistically significant. OCR also analyzed students referred for discipline at least once by school level and found statistically significant disparities in each of the 2008-09, 2009-10, and 2010-11 school years, and at all school levels. African American students were twice as likely as white students to be referred for inappropriate Behavior for their first disciplinary referral in 2009-10 and almost twice as likely in 2010-41, Disparities in Disciplinary Penalties a. In-School Suspensions (ISS) ‘The disparity between African American students’ representation in the enrollment population and those receiving ISS was statistically significant for all three school years reviewed, The proportion of ISS assigned to African American students was 66.5% in 2008-09 and 66.0% inOr. Freeman Williams ~ Page ¢ 2010-14; the proportion of ISS assigned to white students was 23.8% In 2008-09 and 19.4% in 2010-14. The percentage of African Americans among those assigned 15S at least once remained constant at 63.7% from 2008-09 to 2010-11. The percentage of white students among those assigned ISS at least once decreased from 25.3% in 2008-00 to 20.8% in 2010-31. OCR also analyzed the number of students assigned ISS at least once by school level. Overall, the disproportionate representation of African American students who were assigned ISS was statistically significant when compared to white students in the 2008-09, 2009-10, and 2010-11 school years, and at each schoo! level. OCR conducted an additional analysis of 15S comparing, by race, students referred for disciplinary action to students in that group who received ISS at least once, African American students were disproportionately assigned ISS to a statistically significant degree when ‘compared to white students for all three school years District-wide and at each schoo! level, except at the middle school and high schoo! levels in 2009-10. 'b. Qut-of-Schoo! Suspensions (O55) i. 08 for all Violations ‘The disparity between the number and proportion of African American students receiving out of school suspension (05S) for any viclation was statistically significant for all three school years reviewed. The proportion of suspensions assigned to African American students was 75.3% in 2008-09, 73.2% in 2003-10, and 72.9% in 2010-11; the proportion assigned to white students was 14.6% in 2008-09, 21.9% In 2009-10, and 13.9% in 2010-11. The percentage of African ‘Americans among those suspended for any violation was 69.5% in 2008-09, 68.9% in 2009-10, and 68.6% in 2010-11. Of individual students suspended for any violation, the percentage who were white students was 19.5% in 2008-09, 19.3% in 2009-10, and 17.1% in 2010-11. At each school level, the disproportionate representation of African American students who were assigned OSS at least once was statistically significant when compared to white students in each of the 2008-09, 2009-10, and 2010-11 school years. The percentage (approx. 80%) of African American students who were assigned OSS at the elementary schoo! level was particularly high. OCR conducted an additional analysis of OSS comparing, by race, students referred for disciplinary action to students in that group who received OSS at least once. African American students were disproportionately assigned OSS to a statistically significant degree when compared to white students in all three school years District-wide, and at each school level. Ji. O85 for a Category | Violation The Codes for all three school years stated that OSS did not apply to any Category | violation except Trespassing. However, the data show that OSS was assigned for conduct labeled as,Or, Freeman Williams - Page 10 Category | violations other than Trespassing in many instances.? The disparity between African American students and white students who received OSS for a Category | violation was statistically significant. For exemple, in 2010-41 2,444 (58.9%) of the students referred for @ Category | Violation were African American; in that same school year, African American students comprised 680 (70.9%) of 959 students who were referred for a Category | and were assigned OSS on at least one occasion. Over the three-year period, the number of African American students assigned OSS at least once for a Category | violation declined. However, the percentage of such instances involving African American students remained static at around 74%. The disparity between African American students and white students who were referred for a Category | violation that resulted in an OSS was statistically significant in each of the 2008- 09, 2009-10, and 2010-14 school yeers. OCR also analyzed the number of students referred at least once for a Category | violation that resulted in OSS, by school level. The disparity that exists between African American students and white students who were referred for Category | violations and received OSS was statistically significant at the elementary and middle school levels in each of the 2008-09, 2009- 10 and 2010-11 school years and at the high schoo! level in the 2008-09 and 2010-11 school years. SS for an inappropriate Behavior Violation As discussed in detail below, Inappropriate Behavior was the most common violation for which African American students were referred in all three data years reviewed. Inappropriate Behavior is a Category | violation, and is defined in the Code as “Language, gestures, or actions that incite, produce distractions or disruptions, or seriously interfere with effective functioning of the teacher, another student, class or any school activity. This does not include severe insubordination, a separate Level I! offense." None of the Codes for the three school years listed OSS as a consequence for any conduct labeled as Inappropriote Behavior; however, the District did assign OSS for it in many instances. OCR analyzed the number of students who were referred at least once for Inappropriate Behavior and the number who received an OSS at least once for Inappropriate Behavior, to determine whether the disparity between African American students and white students who received OSS for Inappropriate Behavior was statistically significant. For example, 1,491 (61.1%) of the 2,442 students referred for Inappropriate Behavior in 2010-11 were African American. However, of the 304 students who were given an OSS at least once as a result of such a referral, 227 (74.7%) were African American. Between 2008-09 and 2010-11, there was ° For grades 6-42, the 2010 Code required OSS for most Category Il violations as ofthe third offense, whereas in the 2009 and 2008 Codes OSS was mandatory for most Category i violations as of the first offense. *° OCR notes that while there is no violation labeled “severe insubordination” in the Code or as a choice in the ‘Schoo! data, the Code does include a Category | violation called insubordination and @ Category ll violation called Defiance that is defined as “serious insubordination ... (student to administrator)". Defiance of Schoo! Authority was a choice In the eSchool system during the three years of data reviewed, whereas insubordination was not. ue to the District’s efforts, insubordination was added to eSchool for the 2012-13 school year.Dr. Freeman Williams ~ Page 1. 4 significant decrease in the number of African American students who were referred for Inappropriate Behavior and given OSS on at least one occasion as well as a slight decrease In the percentage of such instances Involving African American students. Overall, however, the disparity between African American students and white students who were referred for Inappropriate Behavior and received an OSS remained statistically significant in each of the 2008-09, 2009-10, and 2010-11 school years. OCR also analyzed, by school level, the number of students receiving OSS at least once as a ‘result of a referral for an Inappropriate Behavior violation. The disparity between African American students and white students who were referred for inappropriate Behavior and Feceived OSS was statistically significant at the elementary and middle school levels in each of the 2008-09, 2009-10 and 2010-11 school years and at the high school level only in the 2008-09 school year. Of particular note is the high percentage (in excess of 80%) of African American students at the elementary school level assigned OSS for inappropriate Behavior in all three years. Students and parents had no notice, other than the general language in the Code reserving the right of discretion for the District that the violation Inappropriate Behavior could result in OSS When OCR discussed with the District this disproportionality and its practice of giving students penalties harsher than the Code required under Category |, the Supervisor of Climate and. Discipline acknowledged that Inappropriate Behavior had become a “broad category ... which encompasses a wide range of offenses including Levels | through Ii” As shown by the evidence noted above, the District's use of Inappropriate Behavior as a catch-all violation affected African American students in particular. &. Expulsions Although African American students were disproportionately expelled at a statistically significant rate when compared to white students in 2008-09, the difference was not statistically significant in either 2009-10 or 2010-11."* d. Referrals to Law Enforcement The District maintains agreements with the ington Police Department, Delaware State Police, and the Newark Police Department through which the District receives the services of a school resource officer (SRO) in all middle, high schools and alternative schools. These SROs are trained police officers. The SROs are responsible for maintaining a safe and secure school ¥ Under Delaware's previous “zero tolerance” law, the District had been required to expel students for certain conduct. In June 2009, the law was amended and school districts gained discretion in expulsion decisions. That ‘year, the District took steps to end mandatory expulsions, as permitted by the change inthe law. For example, with regard to Category Il violations, the 2010 Cade recommended expulsion for the frst offense of five particular violations and made it optional forall other violations; for the second offense, expulsion was recommended but, stil not required. In the 2008 and 2008 Codes, expulsion had been required with regard to certain Category I violations, even on the first offense.Dr. Freeman Williams ~Page 12 environment, crime prevention, being a positive role model and mentor, and investigating crimes that occur on school property. According to the Distriet’s data submission and administrator interviews, SROs are generally not involved in the school discipline process. OCR analyzed the total number of referrals that resulted in police notifications, as well as the ‘number of Individual students for whom a referral resulted in a police notification. For all three school years reviewed, African American students were disproportionately referred to police to a statistically significant degree. The overall number of disciplinary referrals in which police ‘were notified fell from 407 to 264 between the 2008-09 and 2009-10 school years, and increased to 275 in 2010-21." However, the percentage of police referrals that involved ‘African American students rose: 66.3% Involved African American students in 2008-09, 70.8% in 2009-10, and 69.5% in 2010-11. Thus, while there was an overall reduction in the number of referrals of African American students which resulted in police notification, there was a slight increase in the percentage of Aftican American student referrals resulting in police notification. OCR also reviewed data on the number of students referred to law enforcement at each school level. The representation of African American students referred to the police was statistically significant when compared to white students at the elementary school level in the 2008-09 school year and at the middle and high school level in each of the three school years. OCR conducted an additional analysis of referrals to law enforcement comparing, by race, students referred for disciplinary action to students in that group who were referred to law enforcement st least once. District-wide, Africon American students were disproportionately ‘referred to law enforcement to a statistically significant degree when compared to white students during the 2009-10 and 2010-11 school years. By school level, the comparison was Statistically significant at the elementary school level in 2008-09, the middle school level in 2009-10, and at the high school level in 2010-11. Individual Examples of Different Treatment OCR examined individual incidents of discipline at the District's schools, including reviews of disciplinary files, and identified individual examples of different treatment. Examples of different treatment were found at the elementary, middle and high schoo! levels. The examples covered a wide range of conduct, including cutting class, smoking, using foul language, engaging in unsafe horseplay during science lab, pulling fire alarms, aggressively touching another student or a teacher, making a bomb threat, and having a box cutter or small knife. Provided below are a few specific examples. The violations were identified in the District’s eSchoo! discipline database. 7 tn the 2010 Code, for Category Il violations, for grades 6-12, pale notification was required for only one Milation, Threatening Behavior to Staff, on the first and second offenses, and for Threatening Behavior to Staff and Threatening Behavior to Student on the third offense. In contrast, the 2008 and 2009 Codes required p notification for several more Category Il violations on the fist and second offenses. Category Ill violations for sgrades 3 and up nearly always require police notification for all years.Or. Freeman Williams ~ Page 43 + An African American kindergertner was assigned a five-day 05S for the violation of Fire Alarm incident. The disciplinary record notes that the student pulled the alarm, Similarly, an 41 grade African American student wes assigned a five-day OSS for the violation of Fire Alarm incident. The disciplinary record notes that the student pulled the covering of the fire alarm, causing It to go off. In contrast, a 9” grade white student was disciplined for banging on a fire alarm cover, which set off the fire alarm. The violation was identified as Inappropriate Behavior: Safety Violation and the student was assigned a one-day OSS. None of the three students had a prior disciplinary history, * An African American student and a white student (both 9" graders) whose prior disciplinary histories were substantially similar engaged in a fight and were disciplined for the violation of Fighting. This was the African American student's only offense of Fighting, and the white student's second offense of Fighting. The African American student was assigned a five-day OSS, while the white student was assigned a two-day oss, * An African American student and a white student (both 11” graders) were, on separate ‘occasions, disciplined for the violation of Tobacco Possession and/or Use. The African American student had no prior disciplinary history, while the white student had been referred for smoking twice before. The African American student received a one-day 55, while the white student received a detention. '* An African American student and a white student (both 11” graders) were, on separate ‘occasions, disciplined for the violation of inappropriate Behavior: Disrespect to Staff Member. Both students used abusive language towards a teacher. Neither student had a prior disciplinary history. The African American student, however, received a one-day OSS, while the white student received a one-day ISS. The same administrator administered the penalties in both incidents. + AnAfrican American student and a white student were disciplined for violation of the offense of Defiance of School Authority. The comment field noted that the African ‘American student refused a hall monitor's request to take his hat off and was taken to the office by the monitor where he refused a request by an administrator to remove his hat. The student had incurred six disciplinary referrals for other offenses prior to this incident. The comment field for the white student noted that the student was asked four times to remove his hat and refused all requests. The white student had incurred ten disciplinary referrals for other offenses prior to this incident. The African American student received a one-day OSS, while the white student was assigned a detention. ‘+ An Airican American student and a white student were disciplined for the violation of Unauthorized Use of Electronic Devices. The African American student was assigned a one-day 05S, while the white student received detention. Neither student had a prior disciplinary history.Dr. Freeman Williams ~ Page 14 tin 2 for OCR analyzed 2009-10 and 2010-11 school year data to compare the treatment of African American and white students referred for similar violations at the time of a student's first disciplinary referral of the school year, In conducting this analysis, we identified the first disciplinary referral made for African American and white students in each school year and identified the specific violation for which the referral was made, The analysis wes focused solely on referrals where there was clear alignment between a violation identified in the Distriet’s Code of Conduct and the corresponding eSchool coding for that violation As a result of this analysis, OCR found thet African American students were more likely than white students to receive elther an in-school suspension (ISS) or an out-of-school suspension (05S) when the first disciplinary referral was for a Category | violation; this difference was statistically significant. Specifically, the analysis revealed that: * African American students were more than twice as likely as white students to receive a suspension (155 or OSS) for their first disciplinary referral in 2009-10 and 2010-11. * African American students were over three times more likely than white students to receive OSS for their first disciplinary referral in 2009-10 and 2010-41. African American students were also more likely than white students to receive OSS when the first disciplinary referral was for inappropriate Behavior. Specifically, the analysis revealed that: * African American students were three times more likely than white students to receive a suspension (ISS or OSS) in 2009-10 and more than twice as likely in 2010-11. * African American students were more than five times more likely than white students to receive an OSS in 2009-10 and almost seven times more likely in 2010-12. Ql for OCR identified the top violations listed in eSchool for which African American students were referred for discipline: Inappropriate Behavior, Defiance of School Authority, Disruption of the &ducational Process and Tardiness: Late to Class. The data indicate that Inappropriate Behavior was by far the most common conduct for which all students were referred. Among all referrals, Inappropriate Behavior violations increased between 2008-09 and 2010-11. Noteworthy constants in the list were Inappropriate Behavior and Defiance of School Authority, two violations that require subjective interpretation, OCR analyzed the penalties assigned and compared the data concerning African American students and white students to determine whether African American students were penalized with OSS more severely compared to white students." For example, OCR isolated the umber of students referred, by race, fora first offense of Inappropriate Behavior ‘and compared the severity of penalty received (eg, 5, OSS]. A similar analysis was conducted of students referred for a second and third offense.Dr. Freeman Williams — Page 15 Usted below for each year and each offense are the violations where the penalties received by African American students were statistically significant when compared to white students. However, only the data for the violation that showed the greatest variance in O55 between African American and white students are presented. 1m 2008-09, African American students were more harshly penalized compared to white student * For first offenses of: inappropriate Behavior; Defiance of School Authority; Disruption of the Educational Process; and Tardiness: Late to Class African American students were 74.2% of the students who incurred a first offense of Disruption of the Educational Process, but 86.3% of the students who received 055 for their first offense of Disruption of the Educational Process. in comparison, white students were 14.8% of the students who incurred a first affense of Disruption of the Educational Process, but only 4.5% of the students who received OSS for the first offense of Disruption of Educational Process. © For second offenses of: Disruption of the Educational Process; Tardiness: Late to Class African American students were 75.6% of the students who incurred a second offense of Disruption of the Educational Process but 88.3% of the students who received OSS for their second offense of Disruption of the Educational Process. In comperison, white students were 14.3% of the students who incurred a second offense of Disruption of the Educational Process, but only 1.9% of the students who received OSS for the second offense of Disruption of the Educational Process. © For third offenses of: Disruption of the Educational Process African American students were 72.8% of the students who incurred a third offense of Disruption of the Educational Process, but 91.3% of the students who received OSS for their third offense. In comparison, white students were 17.5% of the students who incurred a third offense of Disruption of the Educational Process, but 0% of the students who received OSS for a third offense of Disruption of the Educational Process. In 2009-10, African American students were more harshly penalized compared to white students: © For first offenses of: Inappropriate Behavior; Defiance of School Authority African American students were 64.9% of the students who incurred a first offense of Inappropriate Behavior, but 80% of the students who received OSS for their first offense of Inappropriate Behavior. In comparison, white students were 22.1% of the students who incurred a first offense of Inappropriate Behavior, but only 9.8% of the students who received OSS for the first offense of Inappropriate Behavior.Or. Freeman Williams — Page 16 + For second offenses of: inappropriate Behavior African American students were 68.9% of students who incurred a second offense of Inappropriate Behavior, but 82% of the students who received OSS for their second offense of Inappropriate Behavior. In comparison, white studertts were 20.3% of the students who incurred a second offense of Inappropriate Behavior, but only 10.2% of the students who received O55 for the second offense of inappropriate Behavior. + For third offenses of: Defiance of School Authority African American students were 73% of the students who incurred a third offense of Defiance of School Authority, but 77% of the students who received OSS for their third offense of Defiance of Schoo! Authority. in comparison, white students were 17% of the students who incurred a third offense of Defiance of Schoo! Authority, but 14% of the students who received OSS for their third offense of Defiance of School Authority. In 2020-44, African American students were more harshly penalized compared to white students: * For first offenses of: inappropriate Behavior African American students were 61% of the students who incurred a first offense of Inappropriate Behavior, but 77.7% of the students who received OSS for their first offense of Inappropriate Behavior. in comparison, white students were 23.5% of the students who incurred a first offense of Inappropriate Behavior, but only 7.4% of the students who received OSS for their first offense of Inappropriate Behavior. * For second offenses of: There were no statistically significant violations in this category. * For third offenses of: Inappropriate Behavior African American students were 62.9% of the students who incurred a third offense of Inappropriate Behavior, but 86% of the students who received OSS for their third offense of inappropriate Behavior. in comparison, white students were 22.3% of the students who incurred a third offense of Inappropriate Behavior, but only 4% of the students who received OSS for their third offense of inappropriate Behavior. As reflected above, OCR analyzed the racial breakdown of students referred for a first offense of Inappropriate Behavior and, of thase same students, the percentage receiving OSS as a result of that referral. Over the three school years of this review, African American students were more likely and white students were less likely, to a statistically significant degree, to receive the more severe penalty of OSS for a first offense. It is of particular concern to OCR given that,Or. Freeman Williams Page 17 under the Code of Conduct, OSS was not a required penalty for any offense of Inappropriate Sehavior in any cf the three years. mn general, the evidence revealed statistically significant disparities occurred less often for violations that were objective in nature. For example, the analysis did at reveal statistically significant differences in penalty assignment in Skipping Class in any year where that violation was part of the top five, The evidence further revealed that schools located in the city of Wilmington, OE (Bancroft £5, Elbert-Palmer ES, Stubbs ES, Pulaski ES, and Bayard MS), accounted for a significant portion of the harsher penalty assignments made for the highly subjective categories of inappropriate Behavior and Disruption of the Educational Process. Ouring the 2008-09 school year, 321 OSS were assigned District-wide for first offenses of Inappropriate Behavior. Three city schools (Elbert-Palmer ES, Stubbs 65, and Bayard MS), whose combined enrollment was 7.5% of the total District enrollment, accounted for 196 of the 321 OSS assigned (or 61%) of them. During that same year, there were 263 OSS assigned for first offenses of Disruption of the Educational Process. The same city schools accounted for 188 (or 71%) of them. During the 2009-10 schoo! year, four city schools (Bancroft ES, Elbert-Palmer ES, Stubbs ES, and Bayard MS), whose combined enrollment was 9.5% of the total District enrollment, accounted for 114 out of 239 {or 47.6%) total OSS given for the first offense of Inappropriate Behavior. During the 2010-11 school year, three city schools (Elbert-Palmer ES, Stubbs ES, and Bayard MS), whose combined enrollment was 8.3% of the total District enrollment, accounted for 101 out of 152 (or 66.4%) total OSS assigned for the first offense of Inappropriate Behavior. The African American enrollment of four of these five schools is among the highest in the District (the enrollment of African American students in Pulaski ES is slightly below the District average). Even in those schools where the enrollment is almost exclusively African American—where there are few or no white students--African American students are excluded, at extraordinarily high rates, from the benefits of the educational program MW, LEGAL ANALYSIS Itis each school district’s responsibility to ensure that its disciplinary policies, procedures, and practices are administered in a manner that does not result in discrimination on the basis of, race, in violation of Title VI. ‘The illustrative evidence revealed that African American students were disciplined more harshly than similarly-situated white students, in violation of Titie Vi."° The instances of different treatment of African American students that were identified by OCR at elementary, middie and * Note that the total number of OSS assignments for each school year was considerably higher: 9,451 in 2008-09; 695 in 2008-10; 5,403 in 2010-11. **OK's application of the theory of different treatment inthis matter does not preclude analysis ofthe evidence pursuant to the theory of disparate impact. However, because OCR found sufficient evidence to support a finding of violation of Title VI with respect to different treatment, itis unnecessary to conduct further analysis pursuantto the secand applicable theory.Or, Freeman Williams ~ Page 18 high schools in the Olsteict indicate that disciplinary policies and practices have not been applied consistently, without regard to race. Furthermore, the District has nat provided legitimate, non-discriminatory reasons for the harsher treatment of African American students than similanly-situated white students. In addition to the examples of different treatment of African American students found by OCR, ican American students were dispraportionately referred for discipline, suspended, and referred to law enforcement compared to white students to @ statistically significant degree. Furthermore, during the course of the three school years under review, African American students were referred in high numbers for violations that are subjective in nature, including Inappropriate Behavior, Defiance of School Authority, and Disruption of the Education Process. With regard to the violation of inappropriate Behavior, OCR found that staft used a range of vague definitions when making such a referral, including “calling out,” “bothering another student,” “horseplay,” and “can be anything,” The District's policies and practices afforded decision-makers broad discretion in interpreting and applying provisions of the Code, including applying penalties in excess of the provisions outlined in the Code, which contributed to the resulting disparities. The evidence also showed that the District failed to ensure that all staff received training on the Code. Even where there was guidance, administrators did not follow it consistently. The evidence revealed that the imposition of penaities in excess of those authorized was most prevalent for the highly subJective violations and disproportionstely fell on African American students. (V. SUMMARY AND CONCLUSIONS Based on this investigation, OCR concludes that the District discriminates against African American students by disciplining them more frequently and more harshly than similarly- situated white students, in violation of Title VI. In order to address the compliance issues identified above, the District entered into a Resolution Agreement with OCR (attached). When fully implemented, the Resolution Agreement will address these issues. OCR will monitor the District’s implementation of the Resolution Agreement to ensure the District’s compliance with Title VI. The District has agreed to provide data and other information in a timely manner in accordance with the reporting requirements of the Agreement. This letter sets forth OCR’s determination in an individual case. This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such. OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the public. Under the Freedom of Information Act, it may be necessary to release this document and related records upon request. In the event that OCR receives such a request, it will seek to.Or, Freeman Wilitams — Page 19 protect, to the extent provided by law, personal information which, if released, could Feasonably be expected to constitute an unwarranted invasion of privacy. OCR appreciates the courtesy and cooperation shown by your staff during the investigation and ‘resolution of this case. We thank you and all District administrators and staff who worked with OCR throughout the course of this review. If you have any questions or concerns, please contact Program Manager Joseph Mahoney at (215) 656-8564. Very truly yours, Wendella P. Fox Director Philadelphia Office EnclosureOr. Freeman Wil ns — Page 20 CHART A-~ infractions listed in 2010 code Offense Category | (22) Offense Category Il (22) Offense Category Ill (22) “Abusive Language (student-to- student) Class Cutting Forgery Gambling Inappropriate Behavior Imappropriste Bus Behavior Insubordination Lateness to class* Leaving School without ‘Authorigation ‘Student Presence in Any Prohibited School Area Trespassing Unauthorized Use of Electronics Abusive Language (Student to staff) Academic Cheating Breaking and Entering Bullying Careless or Reckless Behavior Defiance Criminal Mischiet/Vandalism Fallure to Attend Saturday ‘School/Detention* Fighting Inappropriate tem/Material Inappropriate Sexual Behavior Instigation Offensive touching (Student to Student) Reckless Burning Reckless Driving Sexual Harassment ‘Smoking/Possession of Tobacco/Tobacco Products Tampering with any Fire Safety Device Theft/Possession/Transfer of Stolen Goods ‘Theft Using Coercion ‘Threatening Behavior to Staff Threatening Behavior to Student ‘Arson Assault on Statt Assault on Student ‘Attorney General's Report (Juvenile ‘Arrest Warrant and Complaint) Dangerous instruments) Possession/Concealiment/Sale ‘Weapon(s)/ Deadly Weapons) Possession/ Concealment/Sale Distribution of Orugs and/or Aleohol ‘and/or Paraphernalia Use and/or Possession of Drugs ‘and/or Alcohol and/or Paraphernalia Offensive Touching to Statt Rape or Attempted Rape Robbery ‘Threat to the Orderly School Process * Only Applicable to Students in Grades 6-12ATTACHMENT 6IN THE SUPREME COURT OF THE STATE OF DELAWARE IN THE MATTER OF: § No. 440, 1999 § MARILYN ARONS, § UPL No. 4, 1996 RUTH WATSON and § PARENT INFORMATION § CENTER OF NEW JERSEY, INC. § § § Respondents. Submitted: May 23, 2000 Decided: July 6, 2000 Before VEASEY, Chief Justice, WALSH, HOLLAND, HARTNETT,* and BERGER, Justices, constituting the Court En Banc. Upon Review of the Findings and Recommended Disposition of the Board on the Unauthorized Practice of Law. Affirmed. Mary M. Johnston, Esquire, Chief Counsel and Michael $. McGinniss, Esquire, Disciplinary Counsel, (argued), Office of Disciplinary Counsel, Wilmington, Delaware, for Appellee. Walter Speed Rowland, Esquire, Wilmington, Delaware and David C. Viadeck, Esquire (argued) and Amanda Frost, Esquire, Public Citizen Litigation Group, Washington, D.C. for Appellants-Respondents. Bill Lann Lee, Esquire, Acting Assistant Attorney General, Mark L. Gross, Esquire, and Lisa J. Stark, Esquire, Department of Justice, Washington, D.C., for The United States as Amicus Curiae. WALSH, Justice: *Retired Justice sitting by designation pursuant to Del. Const. art. IV Sec. 38. This is an appeal from a decision of the Board on the Unauthorized Practice of Law (the “Board”), an arm of the Supreme Court of Delaware,concluding that the appellants had engaged in the unauthorized practice of law. The appellants, supported by the United States Department of Justice as amicus curiae, contend that the Board erred in not recognizing their entitiement under federal law to represent parents of children with disabilities before State administrative agencies. That entitlement, it is argued, preempts state law and is supported by due process considerations. We conclude, however, that the Board's decision is supported by the evidence and free of any error of law. Accordingly, we affirm. I The appellants, Marilyn Arons and Ruth Watson, are, respectively, the founder and Executive Director of Parent Information Center of New Jersey, Inc, (collectively “Appellants”). The Parent Information Center is a non-profit organization founded in 1977 that provides advice, counseling and advocacy services to families of children with disabilities. On five occasions, the Center has represented families of children with disabilities in “due process” hearings held by the Delaware Department of Public Instruction pursuant to the federal Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 er seq.! "Because Delaware participates in and receives federal funds under the IDEA, proceedings governing the special education of children with disabilities conform to IDEA (continued...)Four of these five hearings were handled by Arons, while the other hearing was handled by Watson. Although neither Arons nor Watson is an attorney, both possess special knowledge and training with respect to the problems of children with disabilities, The IDEA is intended to “ensure that children with disabilities and their Parents are guaranteed procedural safeguards with respect to the provision of free appropriate public education.” 20 U.S.C, § 1415(a). Under the IDEA, the parents of a disabled child are entitled to challenge any proposal to change or initiate, or refusal to change or initiate, the identification, evaluation, educational placement or any other aspect of the provision of a free appropriate Public education service to that child. See id. at § 1415(b)(3). When complaints are received, “the parents involved in such complaint shall have the opportunity for an impartial due process hearing.” Id. at § 1415(f). Due process hearings in Delaware are conducted in a manner typical of contested, adjudicatory hearings. The parties include the parent(s), the local school board and the Department of Public Instruction. The hearing is conducted by a three-member panel consisting of an attorney admitted 10 practice in Delaware; an educator who is either certified in the area of special \(...continued) requirements, as well as Delaware law.education or who has been a post-secondary educator in the area of programs for students with disabilities; and a lay person with demonstrated interest in the education of students with disabilities from an approved list compiled by the Governor's Advisory Counsel for Exceptional Citizens. Hearings are chaired by the attorney member of the panel Due process hearings usually last from two to four days. The school board and the Department of Public Instruction are always represented by counsel. ‘The hearing begins with opening statements from each party. Evidence is then presented through witnesses, who are subjected to direct and cross-examination. Although the rules of evidence do not apply strictly, the Chair rules on legal issues, the qualification of experts and objections to relevance, materiality and admissibility. Following the presentation of evidence, the parties make closing statements and may be asked to file written submissions on key questions. On August 8, 1996, the Office of Disciplinary Counsel (*ODC”) filed a petition with the Board requesting that Arons, Watson and the Parent Information Center be declared to have engaged in activities constituting the unauthorized practice of law by representing families of children with disabilities in due process hearings. While admitting the representation of at least five such families in Delaware due process hearings, Appellants denied that their 4activities, even if amounting (0 the practice of law, constitute the unauthorized practice of law. They argued that section 1415(h)(1) of the IDEA permits the representations in which they have engaged and preempts any state-law proscription against the unauthorized practice of law that might otherwise apply. That section provides that any party to a due process hearing “shall be accorded ++ the right to be accompanied and advised by counsel and by individuals with special knowledge or training with respect to the problems of children with disabilities.” ‘They also claimed that Delaware is alone among the fifty states in precluding non-lawyer representation in these circumstances. ‘The matter was submitted to the Board on a stipulation of facts, including transcripts of due process hearings, briefs, oral argument and post-hearing correspondence. On September 24, 1999, the Board issued a written opinion concluding that the IDEA does not authorize the practice of law by non-lawyers, including Appellants, in due process hearings. This appeal followed. Following the entry of this appeal, the United States Department of Justice sought leave to appear as an amicus curiae. Leave was granted and the Department has filed a brief in support of Appellants’ position.‘The present appeal poses the first occasion for this Court to exercise its Power of review of decisions of the Board. Under Supreme Court Rule 86(¢), this Court will accept factual findings by the Board so long as they are supported by substantial evidence, We review ona de novo basis findings by the Board related to legal issues. See Supr. Ct. R. 86(e), Because the parties stipulated to the facts in this matter and the only dispute relates to matters of law, this Court's review on all issues is de novo. Appellants’ principal argument is that the IDEA guarantees parents the right to have trained non-lawyers advocate on their behalf in due process hearings. They contend that the IDEA could hardly be clearer because it draws no distinction between counsel and “individuals with special knowledge or training with respect to the problems of children with disabilities.” To the extent that Delaware law conflicts with federal law, the argument runs, Delaware law is displaced and federal law governs. The ODC responds that the IDEA unambiguously supports its position. It argues that counsel have inherent and presumptive representational ability and authority, while educational consultants do not, and that the statutory language of section 1415(h) neither creates nor implies an equivalence of permissible roles for “counsel” and for “individuals with special knowledge or training.”Appellants and the ODC each argue that the pertinent language of the IDEA in dispute — “the right to be accompanied and advised by counsel and by individuals with special knowledge ot training with respect to the problems of children with disabilities” — unambiguously supports their respective positions, We do not share the parties’ vision of clarity. In our view, section 1415(h)(1) is ambiguous to the extent it appears to confer joint authority on lawyers and non-lawyers to accompany and advise parents and others affected by the operation of the due process hearings provided under the IDEA. That being said, however, case law as well as statutory history support the ODC’s interpretation The pertinent language of section 1415(h)(1) has been discussed by the United States Court of Appeals for the Third Circuit in Arons v. New Jersey State Board of Education, 34. Cir., 842 F.2d 58 (1988). In that case, Appellant Arons sought an award of fees for her successful representation of parents in a due process hearing in New Jersey, where state law allows non-lawyers to represent parents in due process hearings. In affirming a decision of the United States District Court for New Jersey that held that the New Jersey regulation authorizing such fees permitted payment of only legal fees and not those of lay advocates, the court of appeals rejected the statutory intent argument advanced by Appellants here. The court explained: 7The carefully drawn statutory language does not authorize these specially qualified individuals to render legal services, Although the [IDEA] does give "{aJny party to any hearing” the right to "present evidence and conftont, cross-examine, and compel the attendance of witnesses,” those functions are not designated to be performed by lay advocates. Furthermore, the statute does not use the word “represent” in subsection (d)(1), as Would be expected if Congress intended to place expert and legal counsel on the same footing. Our search through the legislative history has failed to uncover any indication that Congress contemplated that the “individuals with special knowledge" would act in a representative capacity. The Senate Report describes the "individualf's]" role as one of consultation, with emphasis on the responsibility to identify educational problems, evaluate them, and determine proper educational placement, The provisions's (sic] text and history thus cast substantial doubt on the plaintiff's statement in her brief that "Congress intended that no distinction be drawn between lawyers and lay advocates.” tee 842 F.2d at 62-63 (citations omitted). Because the sole issue presented in Arons was whether a lay advocate, whose authority to represent parents in the IDEA proceedings was unchallenged, was entitled to seek fees for her services, the Avons holding is contextually distinct from the issue posed in this appeal. We find the analysis of the federalism issue articulated by the court of appeals to be persuasive. Thatcourt's reference to a 1975 Senate Report discussing the IDEA? is arguably dicta. Nevertheless, the contents of the Senate Report describing the non- lawyer's role as one of consultation is compelling evidence that Congress did not intend non-lawyers to advocate on behalf of parents in due process hearings. ‘See Arons, 842 F.2d at 62 (citing S. Rep. No. 94-168 (1975). Also supportive of the ODC’s proposed interpretation of the IDEA are a Senate Conference Report addressing the statute and remarks made by the original author of the Senate bill, Senator Harrison Williams of New Jersey. ‘The Conference Report states that in administrative due process hearings a party is entitled to “the right to counsel and to be advised and accompanied by individuals with special knowledge, training or skills with respect to the problems of handicapped children.” $. Conf. Rep. No. 94-455 (1975). Senator Williams, in providing a detailed analysis of the legislation before the Senate on November 19, 1975, echoed those words verbatim. See 121 Cong. Rec. 37416. This language confirms the clear distinction that Congress envisioned between the representational role of counsel and the advisory role of non-lawyers. *The Senate Report actually discusses the forerunner to the IDEA, the Education of All Handicapped Children Act (“EHA"). Because the EHA and the IDEA are identical with regard to the language relevant to the present discussion, this opinion will not draw a distinction between the two Acts and will refer to both as the IDEA. 9Recent amendments to the IDEA turther bolster the ODC's position. Pursuant to these amendments, one of the safeguards required for agencies receiving federal funds under the IDBA is the adoption of procedures by the agency “that require the parent of a child with a disability, or the attorney representing the child, to provide notice” to the state or local educational agency of certain information in connection with a complaint. 20 U.S.C. § 1415(b)(6) and (7) (emphasis added). The word “attorney” is an indisputable reference to a member of the Bar and not a layperson, even if that layperson possesses “special knowledge or training with respect to the problems of children with disabilities.” Equally supportive of the ODC’s position is the fact that while the IDEA has been amended several times since Arons was decided, Congress has not attempted to overrule that judicial interpretation. Finally, Congress has explicitly included language in other federal statutes to permit lay representation where such a result was intended. See, e.g., 7 U.S.C. § 2020(€)(7) (Food Stamp Act provision allowing households in certification process to “be represented by a person other than a member of the household so long as that person has been clearly designated as the representative .... and .... is an adult.”). Congress obviously knows how to provide such authority when it wishes to do so. The absence of similar language 10in the IDEA strongly suggests that Congress chose not to create a right to lay Tepresentation in due process hearings. Appellants place great reliance on, and request our deference to, an interpretation of section 1415(h)(1) contained in an April 8, 1981 letter of ‘Theodore Sky, the then acting General Counsel of the United States Department of Education. That letter was written in response to a request by the Superintendent of Public Instruction for the State of Washington for a “legal analysis regarding the role of lay advocates in educational agency administrative hearings” conducted under the IDEA. The superintendent suggested that the IDEA’s language indicates that non-lawyers are not in fact authorized to engage in activities conventionally viewed as legal representation, such as examining and cross-examining witnesses. In its response, the Department of Education rejected the superintendent’s reading of the IDEA, concluding that notwithstanding the Senate Conference Report and the absence in section 1415(h)(1) of the term “represent,” lay advocates are permitted to represent parties at due process hearings and appeals under the IDEA. In reaching its conclusion that section 1415(h)(1) authorizes lay representation in due process hearings, the Department of Education relied on three factors. First, it reasoned that because no “bifurcation of function” is set forth in the statute between counsel on the one hand and individuals with special Mlknowledge or training on the other, the permissible roles of the two must be the same. Second, the Department looked to the remarks of Congressman George Miller and Senator Alan Cranston, both of California. Congressman Miller, a member of the Subcommittee on Select Education which prepared the House bill, explained section 1415(h)(1) to his colleagues by observing that parents “will have the right to be accompanied by counsel or other qualified individuals who possess ‘special knowledge or training with respect to the education of handicapped children.’” 121 Cong. Rec, 25539 (1975). Senator Cranston noted that the “procedural requirements [of the IDEA] are consistent with the existing California statutory and master plan requirements on this subject,” which, at the time, permitted the lay representation of parties in California due process hearings. 121 Cong. Rec. 374 19 (1975). Third, the Department relied upon the fact that lay representation had been authorized by Congress for certain other types of administrative proceedings. Because section 1415(h)(1) is arguably ambiguous, the Department's interpretation of that section is entitled to some level of deference by this Court, See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-45 (1984). Here, however, that level of deference is modest. Where Congress has not expressly delegated “authority to an agency to elucidate a specific provision of the statute by regulation,” deference is due only to a 12“reasonable” administrative interpretation. Id. at 843-44, Further, less deference is due to informal agency interpretations, such as that expressed in the Sky letter, than to formal agency regulations adopted after a notice and comment period. See Cleary v. Waldman, 3d Cir., 167 F.3d 801, 807-08 (1999). Bven if this Court were required to give greater deference to the Department of Education's interpretation of section 1415(h)(1), it is doubtful Whether that interpretation could withstand the sheer weight of the legal and factual support for the opposite conclusion. The Department's analysis of the statute is subject to criticism. First, in concluding that the permissible roles of counsel and individuals with special knowledge or training with respect to the problems of children with disabilities must be the same, the Department overlooked the inherent and presumptive representational authority with which counsel are cloaked and non-lawyers are not. Second, the Department selectively chose statements made by two lawmakers, while placing no weight on the Senate Report, the Senate Conference Report, or the remarks of Senator Williams. Such an approach renders that aspect of the Department's analysis questionable. See generally Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980) (“{Clontemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history”). Finally, the Department’s reliance upon the fact that lay 13Tepresentation had been authorized by Congress for certain other types of administrative proceedings is puzzling because, as previously noted, that factor actually supporis the opposite conclusion — that Congress knew how to authorize lay representation when it wished to do so. 14mu In addition to their statutory interpretation argument, Appellants contend even if the IDEA does not expressly entitle them to represent parents in due process hearings, due process would be violated by forbidding parents from having non-lawyer representation in hearings under the IDEA. ‘They note that due process hearings are formal adversarial proceedings in which the State of Delaware funds the attorneys who argue for the parents” adversaries. Denying parents and children access to “the only assistance available to them,” the argument goes, raises “unyielding due process problems.”* The parties agree that Mathews v. Eldridge, 424 U.S. 319 (1976), governs the determination of what process is due to safeguard a child’s fundamental right to education, Under Mathews, courts must consider: (i) the importance of the individual interest involved; (ii) the value of specific procedural safeguards to that interest; and (iii) the governmental interest in fiscal and administrative efficiency. See id. at 335. *This Court has some difficulty understanding the applicability of this argument to the matter at hand. It is not alleged that forbidding parents from having non-lawyer assistance in hearings under the IDEA will deprive the Appellants of their due process rights, nor are the parents, whose rights are purportedly abridged, parties to this action. Appellants appear fo be acting as surrogates in pressing the due process claim. We will address Appellants’ argument, however, in the context of adopting a statutory construction that will avoid constitutional entanglements. See DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). 15The ODC acknowledges that the individual liberty interest at stake in due process hearings under the IDEA is substantial. It also concedes that some parents will forego their statutory right to contest changes to their child’s education plan because they cannot afford legal counsel and will opt not to proceed pro se due to the complexity of the hearings and the prospect of facing two sets of government lawyers. The ODC submits, however, that Appellants “grossly and unfairly” exaggerate the risk that Delaware will deprive children of that interest unless the children and their parents are allowed to be represented by lay advocates. In this regard, the ODC notes that Delaware’s Community Legal Aid Society has, on occasion, provided representation at IDEA due process hearings to parents and children whose cases satisfy the organization's case acceptance criteria. The ODC further contends that the State of Delaware has a compelling interest in regulating the practice of law within its boundaries, and that this interest significantly outweighs any potential benefit that some individual parents and children may obtain through the services of lay advocates, We agree. A balancing of the Mathews factors suggests that procedural due process would not be violated by forbidding parents from having non-lawyer representation in hearings under the IDEA. While there is no question of the importance of the individual interests involved, it seems clear that parties to an 16IDBA hearing are already provided with substantial procedural safeguards. ‘The hearings are conducted in a manner typical of contested, adversarial adjudicatory hearings, including the direct and cross-examination of witnesses and the tequired exchange of witness lists and documents in advance of the hearing.* While we recognize that Appellants possess some expertise in the area of the educational needs of disabled children, they admittedly lack the training and skills that lawyers are expected to exhibit in matters of evidence and procedure. Second, it seems logical that the third Mathews factor, i.e., “governmental interest in fiscal and administrative efficiency,” would encompass this State’s exclusive authority to regulate the practice of law. It would also implicate the ODC’s argument that lay advocates are unregulated and, unlike members of the Bar, are not answerable to the disciplinary process that operates as an arm of this Court. This Court does not exercise its inherent authority to regulate the practice of law for the purpose of protecting the financial interests of the lawyer. Our role is to insure that the public will enjoy the representation of individuals who have been found to possess the necessary skills and training to represent others. “We also believe that the three member panel consisting of an attorney, an educator in the area of special education, and a lay person with demonstrated interest in the education of students with disabilities, affords parents an unbiased hearing and, coupled with the above mentioned safeguards, adequate structural protection. 7Finally, the recotd does not support Appellants’ assertion that parents and children will be denied access to “the only assistance available to them.” The stipulation of the parties does state that the five families represented by the Appellants looked diligently to find legal counsel to represent them on a reduced-cost or pro bono basis prior to obtaining Appellants’ services. But the record also reflects that Delaware's Community Legal Aid Society has in the past provided representation at IDEA due process hearings to parents and children whose cases satisfy the organization’s case acceptance criteria. The record further reflects that the State Superintendent of Public Instruction and the district involved are required to provide information to parents regarding the availability of free or low-cost legal services which may be available. If it could be demonstrated that an unmet need exists and that the local bar could not adequately respond, this Court would consider the adoption of a rule allowing lay representation in a certain limited class of cases, See, e.g., Supr. Ct. R. $7 (permitting civil actions before Justice of the Peace Courts in which an artificial entity or public body is a party to be prosecuted and/or defended by an officer or employee of that artificial entity or public body, who need not be an attorney duly licensed to practice law in this State). At present, however, such a need has not been demonstrated. 18Iv For the foregoing reasons, the language of section 1415(h)(1) cannot be interpreted as granting any clear right to lay representation, This conclusion renders moot Appellants’ claim that the IDEA preempts any state-law proscription against the unauthorized practice of law that might otherwise apply to the activities of such individuals with special knowledge or training in this context. Accordingly, we affirm the decision of the Board. 1920