Free Public Schools
CHAPTER 2. The Public School System
Subchapter I. System of Free Public Schools
The system of free public schools throughout this State shall be general and efficient.14 Del. C. 1953, § 201; 56 Del. Laws, c. 292, § 4;
(a) The public schools of this State shall be free to persons who are residents of this State and who are age 5 years through 20 years inclusive when they are attending kindergarten through grade 12.
(b) The public schools of any school district which maintains schools established under § 203 or § 204 [repealed] of this title for persons below the age of 5 years shall be free to persons who are residents of such school district and who have attained the specified age below the age of 5 years for which such schools are established.
(c) Persons attending the public schools of this State shall attend the public schools in the school district within which they reside, except as provided in Chapters 4, 5 and 6 of this title and in Chapter 92, Volume 23, Laws of Delaware, as amended by Chapter 172, Volume 55, Laws of Delaware. Notwithstanding the foregoing, homeless children and unaccompanied youth, as defined by 42 U.S.C. § 11434a, shall attend school in accordance with the McKinney-Vento Homeless Education Assistance Improvement Act [42 U.S.C. §§ 11431 to 11435]; provided any person determined to be ineligible under the act may be denied enrollment. Children in the custody of the Department of Services for Children, Youth and Their Families under Chapter 25 of Title 13 must attend school in accordance with § 202A of this title.
(d) Persons who are nonresidents of this State may attend the public schools of this State under such terms and conditions as may be otherwise provided by law.
(e) (1) For purposes of this section, a student shall be considered a resident of the school district in which that student’s parents or legal guardian resides. If the child’s parents do not reside together and a court of appropriate jurisdiction has entered a custody order, the child’s residency for school attendance purposes shall be determined as follows unless otherwise agreed in a writing signed by both parents:
a. In cases in which 1 parent is awarded sole custody, the child shall be considered a resident of the district in which the sole custodian resides.
b. In cases in which the parents are granted joint custody, the child shall be considered a resident of the district in which the primary residential parent resides.
c. In cases in which the parents are granted shared custody, the child may be considered a resident of either parent’s district.
Under no circumstances shall a child be enrolled in 2 different schools at the same time.
(2) If a child seeks to be considered a resident of a particular school district based on the residence of anyone other than that child’s parent or parents or legal guardian, the student must have:
a. A signed order from a court of appropriate jurisdiction granting custody to or appointing as the child’s guardian the resident with whom that child is residing; or
b. Suitable documentation certifying that the child resides within the district by action of the State or approval by the school district to be considered the student’s residence; or
c. A completed and notarized Establishment of Delegation of Power to Relative Caregivers to Consent for Registering Minors for School (also known as “Caregivers School Authorization”) pursuant to subsection (f) of this section confirming a caregiver’s ability to provide consent in those cases where the student is being cared for by an adult relative caregiver without legal custody or guardianship.
(3) Children under the care or custody of the Department of Services for Children, Youth and Their Families are exempted from the provisions of this subsection. Children in the care and custody of the Department of Services for Children, Youth and Their Families who are in foster care under Chapter 25 of Title 13 must attend school in accordance with § 202A of this title.
(f) (1) A child may be enrolled in a particular school district based upon the submission of a Caregivers School Authorization if the following conditions are satisfied:
a. The child resides with a relative caregiver who is 18 years of age or older, is a Delaware resident, and resides in the district in which the child seeks enrollment;
b. The child resides with the relative caregiver as a result of:
1. The death, serious illness, incarceration or military assignment of a parent or legal guardian;
2. The failure or inability of the parent or legal guardian to provide substantial financial support or parental care or guidance;
3. Alleged abuse or neglect by the parent, legal guardian or others in the parent or legal guardian’s residence;
4. The physical or mental condition of the parent or legal guardian which prevents necessary care and supervision of the child;
5. The loss or uninhabitability of the student’s home as the result of a natural disaster; or
6. Other circumstances as deemed appropriate by the school district;
c. The child is not currently subject to an expulsion from school (as set forth in § 4130 of this title) or suspended from school for conduct that could lead to expulsion;
d. The child’s residency with the caregiver is not for the purpose of:
1. Attending a particular school (although a caregiver’s school district may be considered when deciding placement of the child as between 2 or more relative caregivers);
2. Circumventing the Enrollment Choice Program (Chapter 4 of this title);
3. Participating in athletics at a particular school;
4. Taking advantage of special services or programs offered at a particular school; or
5. Other similar purposes; and
e. The caregiver submits to the school district in which the child seeks enrollment a completed and notarized Caregivers School Authorization using the most recent form developed for this purpose by the Department of Health and Social Services. The Caregivers School Authorization must include the following:
1. The name and date of birth of the child;
2. The name, address and date of birth of the caregiver;
3. The names of the child’s mother, father, legal custodian or guardian;
4. Relationship of the caregiver to the child, documented by proof of relationship as defined by regulation;
5. A statement that the caregiver has full-time care of the student, documented as required by regulation;
6. A statement indicating which of the circumstances described in paragraph (f)(1)b. of this section applies;
7. A statement that the caregiver will be the person responsible for enrolling the student in school, being the legal contact for the school, and making school-based medical and special education decisions;
8. The notarized and dated signatures of the caregiver, parents, legal custodians or guardians, including a sworn statement of the accuracy of the information provided and confirming that the caregiver and other signatories are aware of the penalties for falsely completing the Authorization. If after a reasonable effort the caregiver is unable to locate the parents, then as an alternative to including the parents’ signatures, the Authorization shall include a statement of reasonable efforts made to locate the parents;
9. If available, any custody order in effect regarding the child. The order shall be submitted as an attachment to the Caregivers School Authorization and shall include only that portion of the order indicating to whom custody is granted.
If the documentation required to verify the information in the Caregivers School Authorization cannot be obtained by the caregiver, then the schools shall permit the child to enroll provided that a custody or guardianship petition that is date stamped to indicate that it has been filed with Family Court is provided within 10 business days of enrollment. Additional time for submission of the date stamped petition may be provided as deemed appropriate by the individual district. The petition shall permit enrollment until the end of the school year or until such time as the court enters a decision disposing of the custody or guardianship petition, whichever first occurs;
(2) A relative caregiver is an adult who by blood, marriage or adoption is the child’s great grandparent, grandparent, stepgrandparent, great aunt, aunt, stepaunt, great uncle, uncle, stepuncle, stepparent, brother, sister, stepbrother, stepsister, half brother, half sister, niece, nephew, first cousin or first cousin once removed but who does not have legal custody or legal guardianship of the student.
(3) A caregiver who completes and submits a Caregivers School Authorization form to register a child in that caregiver’s care for school is authorized and agrees to act in the place of the parent or parents with respect to the child’s education decisions (including but not limited to special education decisions) and the person the school contacts regarding truancy, discipline and school-based medical care. Once a Caregivers School Authorization is submitted and approved, school districts are no longer responsible, for so long as the Authorization is valid, for communicating with the parent, custodian or guardian who has signed the Authorization or is listed as unable to be found.
(4) A Caregivers School Authorization that complies with the requirements of this section shall be honored by any school in any school district. The school districts shall determine whether a particular Caregivers School Authorization complies with the requirements of this section. A caregiver may appeal the school district’s decision to the local board of education of the school district. Any school district that reasonably and in good faith relies on a Caregivers School Authorization has no obligation to make any further inquiry or investigation.
(5) Persons who knowingly make false statements in the Caregivers School Authorization shall be subject to a minimum civil penalty of $1000 and maximum of the average annual per student expenditure and may be required to reimburse the school district tuition costs. Further, such persons may be subject to criminal prosecution pursuant to § 1233 of Title 11. The justices of the peace shall have jurisdiction in these cases.
(6) Caregivers School Authorizations filed prior to January 1 shall be honored for the balance of the current school year and for the subsequent school year. Caregivers School Authorizations filed on or after January 1 shall be honored for the balance of the current school year and for the 2 subsequent school years. In either case, the Authorization shall expire on August 1 of the applicable school year unless the caregiver receives permission from the school district to extend the length of time that the Authorization will be honored. Caregivers School Authorizations may be cancelled at any time if the minor stops living with the relative caregiver or upon written revocation of the Authorization by the child’s caregiver, parent, legal custodian or guardian.
(7) The Department of Health and Social Services shall be authorized to promulgate regulations to implement this law. This law shall take effect upon the promulgation of such regulations. Relationship and proof of actual full-time caregiving will be verified as stated in the regulations.
(g) For the purposes of this section, a military-connected student who is the dependent of either a person in the active military service of the United States, or in a full-time status during active service with a force of the Delaware National Guard, whose parent or guardian is being relocated to the State under military orders and is transferred to or is pending transfer to a military installation within the State, shall be deemed to be a resident for the purposes of enrollment by the receiving local school district or charter school. The local school district or charter school shall permit military-connected students to enroll preliminarily by remote registration without charge and shall not require the parent or guardian of the military-connected student or the student to physically appear at a location within the district to register the student, if the parent or guardian presents evidence of military orders that a parent or guardian will be stationed in this State during the current or following school year. The parent or guardian may use an address within the district of residence where the military-connected student is to be enrolled, the address of a temporary on-base billeting facility, a purchased or leased home or apartment, or federal government or public-private venture off-base military housing. Proof of required residency shall not be required at the time of the remote registration but shall be required within 10 days of the student’s attendance, unless the attendance occurs within the unit count window, where proof of residency should be provided prior to the close of unit count.14 Del. C. 1953, § 202; 56 Del. Laws, c. 292, § 4; 64 Del. Laws, c. 315, §§ 1, 2; 69 Del. Laws, c. 28, § 1; 70 Del. Laws, c. 180, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 52, § 1; 72 Del. Laws, c. 208, §§ 1, 2; 72 Del. Laws, c. 299, §§ 1, 2; 74 Del. Laws, c. 175, § 1; 74 Del. Laws, c. 403, § 1; 75 Del. Laws, c. 125, §§ 1, 2; 76 Del. Laws, c. 136, § 13; 81 Del. Laws, c. 92, § 1; 83 Del. Laws, c. 166, § 1;
(a) For purposes of this section, “school of origin” means any of the following:
(1) The school in which the child is enrolled at the time of entry into the custody of the Department of Services for Children, Youth and Their Families (DSCYF).
(2) The school in which the child is enrolled at the time of any change in placement while in the custody of DSCYF.
(3) The school identified for the next grade level in the same school district where the child in the custody of DSCYF is enrolled.
(b) (1) A child in the custody of DSCYF under Chapter 25 of Title 13 must remain in the child’s school of origin, unless a determination is made that it is not in the child’s best interest to attend such school.
(2) If it is determined that it is not in the best interest of a child to remain in the child’s school of origin, the child must immediately be enrolled in the child’s school of residence based on the current address of the DSCYF custody placement, even if the records or other documents normally required for enrollment are not produced. The school in which the child is enrolled shall immediately contact the child’s school of origin to obtain relevant academic and other records.
(3) The determination of a child’s best interest under this subsection must, at a minimum, be made by a representative of DSCYF, a representative of the child’s school of origin, and a representative of the child’s school of residence based on the address of the DSCYF custody placement at the time of the determination.
(c) (1) If a child leaves the custody of DSCYF, the child must remain in the school in which the child is enrolled through the remainder of the academic year, unless a determination is made that it is not in the child’s best interest.
(2) The determination of a child’s best interest under this subsection must, at a minimum, be made by a representative of DSCYF, a representative of the school in which the child is enrolled, and a representative of the child’s school of residence based on the address of the DSCYF custody placement at the time of the determination.
(d) The Secretary of Education shall promulgate regulations to establish a process for the determination of a child’s best interest under subsections (b) and (c) of this section.81 Del. Laws, c. 92, § 2; 82 Del. Laws, c. 243, § 35;
The Department with the approval of the State Board of Education and the school board of any local reorganized school district, either separately or jointly, may establish special programs for children who are in need of education not provided for in regular classes or schools. Such special programs may include, but are not limited to, bilingual programs, programs for persons who are truant or insubordinate or programs for pregnant students.14 Del. C. 1953, § 203; 56 Del. Laws, c. 292, § 4; 57 Del. Laws, c. 113; 63 Del. Laws, c. 177, § 1; 68 Del. Laws, c. 126, § 1; 71 Del. Laws, c. 180, § 16; 72 Del. Laws, c. 395, § 372; 75 Del. Laws, c. 155, § 1; 78 Del. Laws, c. 5, §§ 1-3;
Repealed by 71 Del. Laws, c. 180, § 17, effective July 31, 1997.
The Department of Education with the approval of the State Board of Education may establish such vocational-technical centers, or schools as in its judgment will promote the educational interests of the State.14 Del. C. 1953, § 205; 56 Del. Laws, c. 292, § 4; 71 Del. Laws, c. 180, § 18;
(a) In developing the individualized written education program for each student with blindness or visual impairment, it is the presumption that proficiency in Braille reading and writing is essential for each student to achieve satisfactory educational progress. The assessment required for each student includes a Braille skills inventory, including a statement of strengths and weaknesses.
(1) This section does not require Braille instruction and its use if, in the course of developing the student’s individualized educational program, each member of the team concurs that the student’s visual impairment does not affect reading and writing performance commensurate with ability.
(2) This section does not require exclusive use of Braille if other special education services are appropriate to the student’s needs. The provision of other appropriate services does not preclude Braille use or instruction.
(b) Instruction in Braille reading and writing are sufficient to enable each student with blindness or visual impairment to communicate effectively and efficiently with the same proficiency expected of the student’s peers of comparable ability and grade level. The student’s individualized educational plan must specify at least all of the following:
(1) The results obtained from the inventory required in subsection (a) of this section.
(2) How Braille will be implemented as the primary mode for learning through integration with other classroom activities.
(3) The date on which Braille instruction will commence.
(4) The length of the period of instruction and the frequency and duration of each instructional session.
(5) The level of competency in Braille reading and writing to be achieved by the end of the period, and the objective assessment measures to be used.
(6) The evidence used to determine that the student’s ability to read and write effectively without special education services will not be impaired if a decision has been made under subsection (a) of this section that Braille instruction or use is not required for the student.
(c) Each publisher of a textbook that a local education agency purchases must, in addition to granting copyright permission for transcription into Braille, large print, or tape for students with visual impairments as already established by law, furnish to the Division for the Visually Impaired a print or electronic copy in the American Standard Code for Information Interchange (ASCII) from which Braille versions of the texts can be produced. The print copy is also required since the accompanying graphics must be reproduced by hand and some subject matter, such as mathematics, must still be hand transcribed.
(e) In order to meet the instructional needs of each student with blindness or visual impairment, the Division for the Visually Impaired shall hire an itinerant teacher of the visually impaired for every 28 students, or a major fraction thereof, who are registered and receiving instruction from a local education agency. At least 2 of these teacher units must be 12-month employees in order to insure competent Braille instruction during the summer months.70 Del. Laws, c. 237, § 1; 71 Del. Laws, c. 180, § 19; 78 Del. Laws, c. 179, § 132; 83 Del. Laws, c. 455, § 1;
Repealed by 73 Del. Laws, c. 312, § 334, effective June 25, 2002.
All boards of education of public school districts, vocational-technical high school districts, and all boards of directors of charter schools shall digitally record all of their public meetings and shall make the recordings available to the public on the districts’ or charter schools’ websites within 7 business days of each meeting. These recordings shall remain available on the website for at least 1 year after their posting on the website. These recordings are not official board minutes, but are a means to enhance communication to the public and to state legislators. The requirements of this section do not apply to board executive sessions, or workshops and retreats where no voting will take place.80 Del. Laws, c. 244, § 1;
(a) An individual may not serve as a member of the State Board of Education or the board of a public school district or vocational-technical school district if any of the following apply to the individual:
(1) The individual has ever been convicted or has ever pleaded guilty or nolo contendere to any of the following:
a. Any crime against a child constituting a felony.
b. Any sexual offense against a child.
c. Any crime constituting a felony sexual offense or unlawful sexual contact in the third degree under § 767 of Title 11.
(2) The individual has been convicted or has pleaded guilty or nolo contendere within the preceding 10 years to any crime constituting a felony that is not a permanent disqualification under paragraph (a)(1) of this section.
(3) The individual has been convicted or has pleaded guilty or nolo contendere within the preceding 5 years to any of the following:
a. Any crime against a child constituting a misdemeanor, except for unlawful sexual contact in the third degree under § 767 of Title 11.
b. Possession of a controlled substance or a counterfeit controlled substance classified as such in Schedule I, II, III, IV, or V of Chapter 47 of Title 16, except for any of the following:
1. Possession of a personal use quantity of marijuana under § 4764 of Title 16.
2. Possession of drug paraphernalia under § 4771 of Title 16.
c. Any crime constituting a misdemeanor offense against public administration involving bribery, improper influence or abuse of office.
(4) The individual fails to comply with subsection (c) of this section.
(b) Before an individual may be appointed to or qualify as a candidate for membership on the State Board of Education or the board of a public school district or vocational-technical school district, the individual must obtain a criminal background check and Child Protection Registry check under § 309 of Title 31.
(c) (1) a. A member of the State Board of Education or a vocational-technical school district board must inform the Governor if the member is charged with a crime under subsection (a) of this section.
b. The Governor may require a member of the State Board of Education or a vocational-technical school district board to obtain a new background check under § 309 of Title 31 if the Governor has reasonable suspicion that the member has been charged with a crime under subsection (a) of this section.
(2) a. A member of the board of a public school district must inform the superintendent of the school district and other members of that school district board if the member is charged with a crime under subsection (a) of this section.
b. The superintendent of a school district may require a member of the district school board to obtain a new background check under § 309 of Title 31 if the superintendent has reasonable suspicion that the member has been charged with a crime under subsection (a) of this section.83 Del. Laws, c. 187, § 1;