Free Public Schools

CHAPTER 1. Department of Education

Subchapter I. Composition, Organization and Administration

§ 101. Establishment of the Department of Education.

The general administration of the educational interests of the State shall be vested in a Department of Education within the Executive Branch, hereinafter in this title referred to as the “Department.”

71 Del. Laws, c. 180, §  3

§ 102. Secretary; Deputy, Associate and Assistant Secretaries; Acting Secretary; appointment.

(a) The administrator and head of the Department shall be the Secretary of Education, who shall be a graduate of an accredited college and shall have not less than 5 years’ experience in teaching and administration, with experience in each such category. The Secretary shall be appointed by the Governor, with the advice and consent of the Senate, and shall serve at the pleasure of the Governor. The Secretary shall be paid a salary as determined by the General Assembly in the annual Appropriations Act. The Secretary of Education shall become a bona fide resident of the State within 6 months after the Secretary’s appointment; provided, however, that upon good cause shown, the Governor may grant an additional extension of 6 months.

(b) In the event the position of Secretary is vacant, the Governor, by appointment, shall have the power to fill the position or positions of Deputy, Associate, or Assistant Secretaries of Education as are vacant. Persons so appointed shall serve at the pleasure of the Governor and, upon the position of Secretary being filled, such persons may be removed by the Secretary with the written approval of the Governor.

(c) In the event of death, resignation, temporary incapacity or removal of the Secretary and prior to the appointment of the Secretary’s successor, the Governor may appoint the Deputy Secretary or an Associate Secretary of Education to serve as Acting Secretary. The Secretary may, during the Secretary’s absence from the State, appoint the Deputy Secretary or an Associate Secretary to serve as Acting Secretary during such absence. In either case, the Acting Secretary shall have all the powers and perform all the duties and functions of the Secretary during the Secretary’s absence or incapacity or until the Secretary’s successor is duly qualified and appointed.

27 Del. Laws, c. 106;  Code 1915, §  2274;  32 Del. Laws, c. 160, §  6;  Code 1935, §  2627;  14 Del. C. 1953, §  107;  67 Del. Laws, c. 281, §  20367 Del. Laws, c. 431, §  170 Del. Laws, c. 186, §  170 Del. Laws, c. 529, §  171 Del. Laws, c. 8, §  271 Del. Laws, c. 180, §  3

§ 103. Powers, duties and functions of the Secretary.

(a) The Secretary may:

(1) Supervise, direct and account for the administration and operation of the Department, its offices, functions and employees;

(2) Appoint and fix the salary, with the written approval of the Governor, of the following officers: Deputy Secretary, Associate and Assistant Secretaries, and an Executive Assistant. These officers may be removed from office by the Secretary with the written approval of the Governor, and they shall have such powers, duties and functions in the administration and operation of the Department as may be assigned by the Secretary;

(3) Appoint such additional personnel as may be necessary for the administration and operations of the Department, within such limits as may be imposed by law;

(4) With the written approval of the Governor, establish, consolidate, abolish, transfer or combine the powers, duties and functions of the branches, work groups, offices or units within the Department as the Secretary may deem necessary, providing that all powers, duties and functions required by law shall be provided for and maintained;

(5) Make and enter into any and all contracts, agreements or stipulations; retain, employ and contract for the services of private and public consultants, and research and technical personnel; and procure by contract consulting, research, technical and other services and facilities whenever the same shall be deemed by the Secretary necessary or desirable in the performance of the functions of the Department or to determine and ensure the quality and effectiveness of education programs and initiatives, and whenever funds shall be available for such purpose. All necessary legal services shall be provided pursuant to Chapter 25 of Title 29 unless otherwise provided by law;

(6) Delegate any of the Secretary’s own powers, duties or functions to the Deputy Secretary or an Associate or Assistant Secretary, except the power to remove employees of the Department or to fix employee compensation;

(7) Establish and promulgate such rules and regulations governing the administration and operation of the Department as may be deemed necessary by the Secretary and which are not inconsistent with the laws of this State;

(8) Maintain such facilities throughout the State as may be necessary for the effective and efficient operation of the Department;

(9) Adopt an official seal or seals for the Department;

(10) In consultation with the State Board of Education, prepare a proposed annual operating and capital improvement budget for the Department and state support of the public school system to be submitted for the consideration of the Governor and the General Assembly. The Department shall be operated within the limitations of the annual appropriation and any other funds appropriated to it by the General Assembly. Special funds may be used in accordance with approved grants, programs and appropriations; and

(11) Appoint committees or advisory entities to assist the Secretary in performing the duties of the Secretary’s office. When the committee or entity is formed to assist in developing policies or regulations the adoption of which must be approved by the State Board, the Secretary shall consult with the State Board regarding the composition of such committee or entity.

(b) The Secretary shall develop and implement policy for grades 1-12 that will substantially decrease the number of nonperformance-based promotions, or social promotions, which allow students who have not passed a course or courses required for promotion to the next grade to advance to the next grade, with the goal of eliminating those promotions by the year 2001.

(c) The Secretary shall calculate a Voluntary School Assessment, which applicants shall have the option of paying in lieu of any school certification required by § 2661 of Title 9 or § 842 of Title 22. Voluntary School Assessments shall be calculated on a per unit basis for each project that seeks to pay such assessments in lieu of certification as follows by:

(1) Calculating the average cost (including land or, if the school district already owned such land, the then-fair market value of such land at the time of construction), per child, for the average new public schools (1 elementary school, 1 middle school, 1 high school) constructed with state assistance in New Castle County as determined by the State of Delaware School Construction Technical Assistance Manual prepared by the Delaware Department of Education (as such manual exists as of June 30, 1999, such manual to be updated for purposes of this calculation no earlier than July 1, 2005, and thereafter updated as the Department normally updates such manual);

(2) Multiplying that number by the local percentage share then required by state law of the local school district in order to receive state capital assistance;

(3) Multiplying the resulting figure by 0.50, representing the average number of school-aged children projected to be housed within each residential unit, provided that in no event shall the Voluntary School Assessment exceed 5 percent of the total cost of the residential unit.

27 Del. Laws, c. 106;  Code 1915, §  2274;  32 Del. Laws, c. 160, §  6;  Code 1935, §  2628;  14 Del. C. 1953, §  108;  70 Del. Laws, c. 186, §  171 Del. Laws, c. 180, §  372 Del. Laws, c. 237, §  4

§ 104. State Board of Education; composition; term; powers and duties; qualifications; vacancies; staggered appointments; office location; compensation; removal.

(a) The State Board of Education, referred throughout this subchapter as “State Board,” consists of 9 members who are citizens of this State andappointed as follows:

(1) The Governor shall appoint, with Senate confirmation, 7 voting members.

a. Six of the 7 voting members are appointed for terms of up to 6 years, to ensure that no more than 2 members’ terms expire in the same year. Each of the 6 voting members serves until that member’s successor qualifies.

b. One of the 7 voting members is appointed as the President of the State Board and serves at the Governor’s pleasure.

(2) The Governor shall appoint annually 1 nonvoting member who is a former Delaware State Teacher of the Year and employed as a Delaware public school educator. The Teacher of the Year Advisory Board shall provide annually to the Governor a list of recommendations that includes at least 1 individual from each county in this State. This appointment does not require Senate confirmation.

(3) The Governor shall appoint annually 1 nonvoting member who, at the time of appointment, is or will be in the next school year an eleventh or twelfth grade student at a public school in this State, with priority given to the selection of an individual who has demonstrated commitment to ensuring quality education for Delaware students. This appointment does not require Senate confirmation.

(b) The State Board of Education has powers, duties, and responsibilities as specified in this title, including all of the following:

(1) Provide the Secretary of Education with advice regarding the development of policy in those areas of education policy where rule- and regulation-making authority is entrusted jointly to the Secretary and the State Board. The State Board shall also provide advice on new initiatives which the Secretary may from time to time propose. The Secretary shall consult with the State Board regularly on such issues to ensure that policy development benefits from the breadth of viewpoint and the stability which a citizens’ board can offer and to ensure that rules and regulations presented to the State Board for its approval are developed with input from the State Board. The State Board may recommend that the Secretary undertake certain initiatives which the State Board believes would improve public education in Delaware.

(2) Provide the Secretary of Education with advice on the Department’s annual operating budget and capital budget requests.

(3) Provide the Secretary of Education with advice in the preparation of the annual report specified in § 124 of this title, including recommendations for additional legislation and changes to existing legislation.

(4) Provide the Secretary of Education with advice concerning the implementation of the student achievement and statewide assessment program specified in § 122(b)(4) of this title.

(5) Decide, without expense to the parties concerned, certain types of controversies and disputes involving the administration of the public school system. The specific types of controversies and disputes appropriate for State Board resolution and the procedures for conducting hearings must be established by rules and regulations under § 121(a)(12) of this title.

(6) Fix and establish the boundaries of school districts which may be doubtful or in dispute, or change district boundaries as provided in §§ 1025, 1026, and 1027 of this title.

(7) Decide on all controversies involving rules and regulations of local boards of education under § 1058 of this title.

(8) Subpoena witnesses and documents, administer and examine persons under oath, and appoint hearing officers as the State Board finds appropriate to conduct investigations and hearings under paragraphs (b)(5), (6), and (7) of this section.

(9) Review decisions of the Secretary of Education, upon application for review, where specific provisions of this title provide for such review. The State Board may reverse the decision of the Secretary only if it decides, after consulting with legal counsel to the Department, that the Secretary’s decision is contrary to a specific state or federal law or regulation, not supported by substantial evidence, or arbitrary and capricious. In such cases, the State Board shall set forth in writing the legal basis for its conclusion.

(10) Approve Department rules and regulations that require State Board approval, under specific provisions of this title, before the rules and regulations are implemented.

(11) Approve rules and regulations governing institutions of postsecondary education that offer courses, programs of courses, or degrees within the State or by correspondence to residents of this State under§ 121(a)(16) or § 122(b)(8) of this title.

(12) Any provision of Chapter 5 of this title to the contrary notwithstanding, decide appeals of decisions by the board of directors of a charter school to suspend or expel a student for disciplinary reasons. In deciding such cases, the State Board shall employ the standard of review under § 1058 of this title.

(13) Digitally record all of the State Board’s regular monthly public board meetings and make the recordings available to the public on the Department of Education’s website within 7 business days of each meeting. These recordings are not official board minutes, but are a means to enhance communication to the public and state legislators. The requirements of this section do not apply to meetings where recording equipment is not available, executive sessions, or other State Board meetings, such as workshops, retreats, and committee meetings. The Department of Education must provide a written transcript of a regular monthly public State Board meeting that is digitally recorded under this paragraph, or other reasonable accommodation, within 7 business days upon request of an individual with a hearing impairment.

(14) Under Chapter 33 of this title, serve as the State Board for Vocational-Technical Education (Career and Technical Education) and as the “eligible agency” and sole agency responsible for the supervision of administration of career and technical education for purposes of the federal Carl D. Perkins Career and Technical Education Act of 2006 (Perkins IV) (20 U.S.C. § 2301 et seq.), and any subsequent reauthorization thereof, and be subject to its requirements and any implementing regulations. As used in this title, “career and technical education” has the same meaning as “vocational-technical education.”

(c) (1) The Department, through the Secretary, shall provide reasonable staff support to assist the State Board in performing its duties under this title. The Department shall provide to the State Board all of the following:

a. Reports and data necessary to enable the State Board to perform its duties under this title.

b. One staff member, an Executive Director. A majority of the State Board members shall select the Executive Director. Once appointed, the Executive Director is an employee of the Department, subject to all of the Department’s employment policies and procedures, and serves at the pleasure of the State Board. The Executive Director’s duties are as follows:

1. Coordinate and implement all requirements for State Board meetings, including posting meeting notices and minutes.

2. Provide necessary reports and data in conjunction with paragraph (c)(1)a. of this section regarding the State Board’s responsibilities.

3. Support State Board members in necessary training and preparation to fulfill their roles and responsibilities.

4. Serve as the State Board’s point of contact regarding matters specific to the State Board.

5. Produce and post minutes for each State Board meeting, including uploading digital recordings under paragraph (b)(13) of this section.

(2) The Secretary of Education, in addition to the Secretary’s other duties of office, serves as Executive Secretary of the State Board.

(d) The members of the State Board appointed under paragraph (a)(1) of this section must be of good character and fitness and, in addition to the requirements of subsection (a) of this section, are subject to the following qualifications:

(1) At least 2 members must have prior experience on a local board of education.

(2) No more than 4 members may belong to the same political party.

(3) An individual who has been a resident of this State for less than 5 years immediately preceding appointment is not eligible to be a member.

(4) An individual who is already subject to the State Board’s authority may not be appointed to the State Board as a voting member.

(5) A member is eligible for reappointment unless otherwise disqualified by this title.

(6) The members must meet the following geographic qualifications:

a. The President and 1 other member may be appointed from the State at large.

b. One member is a resident of the City of Wilmington.

c. Two members are residents of New Castle County outside the City of Wilmington.

d. One member is a resident of Kent County.

e. One member is a resident of Sussex County.

(e) (1) If, after appointment, a State Board member is convicted or pleads guilty or nolo contendere to a crime under § 209(a) of this title, the Governor must remove the member.

(2) a. If a State Board member is charged with a crime under § 209(a) of this title, the State Board member is automatically suspended pending the final resolution of the charges.

b. If the charges under § 209(a) of this title that are the basis of the suspension under paragraph (e)(2)a. of this section are resolved in favor of the suspended State Board member before the expiration of the suspended State Board member’s unexpired term, the State Board member may immediately return to service as a member of the school board.

(3) If a State Board member is suspended under paragraph (e)(2)a. of this section, the State Board member’s seat is treated as vacant for purposes of quorum under subsection (i) of this section until 1 of the following occur:

a. The suspended school board member resigns.

b. The suspended school board member’s term expires.

c. The charges that are the basis for the suspension are resolved in favor of the suspended school board member.

d. The suspended school board member ceases to be a member of the school board under paragraph (e)(1) of this section.

(f) [Repealed.]

(g) The Department shall provide or obtain office space in Dover for the State Board.

(h) State Board members shall receive $100 for each day’s attendance at State Boardmeetings, not to exceed 24 days’ attendance in any 1 calendar year, and be reimbursed for actual travel and other necessary expenses incurred in attending meetings and transacting the business of the State Board.

(i) The number of members who must be present at a State Board meeting in order to have a quorum and conduct official business is the majority of appointed, voting members.

(j) The Governor may remove a State Board member for gross inefficiency, neglect of duty, malfeasance, misfeasance, or nonfeasance in office. A member is deemed in neglect of duty if the member is absent from 3 consecutive, regular Board meetings or attends less than 50% of State Board meetings in a calendar year. The Governor may consider the member to have resigned, and may accept the member’s resignation.

(k) The State Board shall rotate locations of regular meetings among the 3 counties of this State, with each location to host, whenever possible, an agenda item that is relevant to the county in which it is being held, and rotating the locations among the 3 counties in such a way to facilitate parents’, teachers’, and other community members’ attendance.

21 Del. Laws, c. 67, §  126 Del. Laws, c. 94, §§  1, 2;  Code 1915, §  2273;  32 Del. Laws, c. 160, §  237 Del. Laws, c. 193, §  1;  Code 1935, §  2623;  14 Del. C. 1953, §  101;  59 Del. Laws, c. 173, §§  1, 269 Del. Laws, c. 16, §  170 Del. Laws, c. 186, §  171 Del. Laws, c. 180, §  373 Del. Laws, c. 164, §  473 Del. Laws, c. 188, §  777 Del. Laws, c. 51, §  177 Del. Laws, c. 431, §§  13-1578 Del. Laws, c. 45, §  179 Del. Laws, c. 83, §  181 Del. Laws, c. 376, § 183 Del. Laws, c. 187, § 283 Del. Laws, c. 339, § 31

§ 105. State Board of Education procedures.

(a) The State Board shall hold an annual meeting in Dover each July and, at each annual meeting, elect 1 of its members to serve as Vice-President. Other meetings must be held at such times and places as the duties and business of the State Board require, consistent with the requirements of § 104(k) of this title. A motion or resolution may not be adopted without the concurrence of a quorum of the State Board.

(b) Whenever this Code requires that the State Board approve a regulation or other action proposed by the Department, the State Board must decide whether to approve such regulation or action at a meeting held in conformity with Chapter 100 of Title 29. Provided that the Department has complied with Chapter 101 of Title 29 in proposing a regulation or other regulatory action to the extent such action is governed by Chapter 101 of Title 29, the State Board is not subject to Chapter 101 of Title 29 in approving or refusing to approve the proposed regulation or other regulatory action.

(c) (1) The State Board shall permit public comment on each agenda item before voting on the agenda item and in proximity to the time at which the State Board discusses the agenda item.

(2) Notwithstanding paragraph (c)(1) of this section, the State Board is not required to permit public comment on an agenda item that, under Delaware law or Department or State Board rules, has a formal comment period or a process for making a record in an administrative matter that has closed before the State Board’s discussion of the agenda item, including charter school applications or formal reviews, amendments to Department and Professional Standards Board regulations, and student appeals.

71 Del. Laws, c. 180, §  381 Del. Laws, c. 376, § 2

§ 106. Advisory Board to the Secretary of Education.

There shall be formed an Advisory Board to the Secretary of Education consisting of a representative from each board of education and from each county vocational-technical district, and such additional representatives of educational stakeholder organizations as appointed by the Secretary and the State Board. This Board shall not meet less than twice in any calendar year and the State Board shall participate in such meetings. The Advisory Board shall:

(1) Review current state policies and submit recommendations to the Department of Education when appropriate for changes, modifications or deletions;

(2) Study and review planning guides for program improvement of the Delaware Public School System as submitted by the Department of Education and make appropriate recommendations to the Department of Education on legislative and policy implementation; and

(3) Meet at a time and place that shall be at the discretion of the Secretary of Education or the Deputy Secretary. The call for the meeting shall be through the office of the Secretary of Education. The members of the Advisory Board shall receive their actual expenses for 2 dinner meetings per year, but not including travel expenses. The Department of Education shall not expend more than $1,000 for such expenses during any 1 fiscal year.

14 Del. C. 1953, §  110;  57 Del. Laws, c. 9071 Del. Laws, c. 180, §  3

§ 107. P-20 Council.

(a) There shall be formed a P-20 Council to coordinate educational efforts of publicly-funded programs from early care through higher education and to foster partnerships among groups concerned with public education. The P-20 Council shall make recommendations designed to ensure a more integrated, seamless education system that enables children to enter school ready to learn, receive challenging instruction throughout their school careers, graduate from high school ready for college and careers, and continue their education through postsecondary study in a way that makes them productive and successful citizens.

(b) The P-20 Council shall be co-chaired by the Secretary of Education and the President of the State Board of Education. The Council members shall include the presidents (or their designees) of the public institutions of higher education in Delaware, along with the presidents of the institutions of higher education offering degree programs in education (or their designees). Additional members shall include the Chair of the Delaware Early Care and Education Council, the Chairs of the House and Senate Education Committees, a representative of the Governor’s Office, the Chair of the Business Roundtable Education Committee, the Executive director of the Delaware State Chamber of Commerce, the Secretary of the Department of Labor, the Secretary of the Department of Services for Children, Youth and their Families, the Secretary of the Department of Health and Social Services, the Secretary of the Department of Technology and Information, the Chief of the Delaware Chief School Officers Association, the President of the Delaware State Education Association, the President of the Delaware Parent-Teacher Association and the President of the Charter School Network, or their designees.

(c) The Co-Chairs may also establish such subcommittees as needed and determine the subcommittee memberships.

75 Del. Laws, c. 62, §  178 Del. Laws, c. 113, §§  1, 278 Del. Laws, c. 234, §  1