Delaware

Resources

State Protections and Legal Framework

    • Right to Education

    • Non-discrimination and Equity

      • Del. Const., Art. 1, § 21: Equality of rights under the law shall not be denied or abridged on account of race, color, national origin, or sex.

    • Other Student Civil Rights Protections

      • Delaware Anti-Bullying Law (14 DE Code § 4164 (2024): Bullying includes any intentional written, electronic, verbal, or physical act that:

        • Causes fear of harm to a student’s emotional or physical well-being or property.

        • Creates a hostile, threatening, humiliating, or abusive educational environment.

        • Interferes with a student’s ability to learn or feel safe.

        • Incites others to harm or demean someone.

    Cyberbullying is explicitly prohibited and treated the same as bullying.

    School Requirements under Anti-Bullying Law

    • Written Policy: Every district and charter school must adopt an anti-bullying policy and prevention program. Policies must include disciplinary consequences for bullying.

    • Reporting: Staff must report bullying immediately.

    • Schools must investigate promptly.

    • Notification: Parents/guardians of both the bully and the target must be informed.

    • DOE Reporting: Confirmed bullying incidents must be reported to the Delaware Department of Education within 5 working days.

    • Retaliation: Prohibited against anyone who reports bullying.

    • Schools must have a coordinating committee for prevention efforts.

    • Annual training for staff on bullying prevention and reporting.

    • State equivalents to Title VI, Title IX, Section 504, and EEOA

      • Title VI – 31 Del. C. § 501 (public assistance should be administered without discrimination to race, religion, and political affiliation)

      • Title IX – There is no direct equivalent but there is 14 Del. C. § 506 (preventing discrimination based on race, creed, sex, handicap, national origin, or poverty in charter school selection) and 14 Del. C. § 5523 (preventing discrimination based on field of study, county residence, sex, campus residence or commutation in granting scholarships for the University of Delaware)

    • Civil rights beyond federal requirements

      • Existence of a Delaware Human & Civil Rights Commission (https://humanandcivilrights.delaware.gov/commission-members/)

    • State law protections for color of law/pattern and practice in law enforcement in schools

      • 29 Del. C. § 2553(a)(2) (Division of Civil Rights general provision to investigate and prosecute color of Delaware law misconduct)

      • 29 Del. C. § 2553(b) (Division of Civil Rights investigates, prosecutes, and remediates patterns/practices that violate civil rights under the U.S. Constitution or Delaware Constitution including education rights)

    • Anti-discrimination under human rights statutes

    • Private right of action for civil rights and human rights

      • Generally, it appears that there is no private right of action

        • 14 Del. C. § 4163(g)(2) (no private right of action for child abuse)

        • 14 Del. C. § 9007A(b) (no private right of action for violation of chapter which is on sexual assault in higher education)

    • Does anti-discrimination include disparate impact?

      • There is no statutory reference to disparate impact.

      • There is case law related to disparate impact:

        • State v. Gattis, No. 90004576DI, 1996 WL 769328, at *5 (Del. Super. Ct. Dec. 11, 1996) (finding that disparate impact alone is not sufficient to prove an equal protection violation)

    • R.E.H. v. J.M.H., No. CK06–01697, 2009 WL 6340108, at *8 (Del. Fam. Ct. Oct. 23, 2009) (citing Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997)) (concluding that disparate impact with no additional facts is not sufficient to prove an equal protection violation)

    If there is disparate impact is there a private right of action?

    • Given that there is no additional protection for disparate impact other than the federal law there is no private right of action. 

How do I file a complaint about discrimination in a K-12 public school in Delaware? 

Delaware Division of Human & Civil Rights


    • You may file an individual discrimination complaint online go to How To File A Complaint - Division of Human and Civil Rights - State of Delaware and click the link for either “Equal Accommodations Discrimination Complaint Form” or “Housing Discrimination Complaint Form.”

    • There is no fee to file a complaint.

    • Complainants may bring their own attorney that they pay the expenses for, but no attorney is required.

    Deadline: You have 180 days from the date of the alleged incident to file.

    • Equal Accommodations Discrimination 

      • Federal and state laws prohibit discrimination in businesses and places considered “public accommodations.”

        • These places include: government buildings, courthouses and jails,schools, transportation systems, or recreational areas, like libraries, beaches, and parks. 

        • It can even include privately owned or operated businesses and buildings that offer goods and services to the public, like restaurants and hospitals. 

      • Delaware’s Equal Accommodation laws prohibit discrimination against people because of their race, age, marital status, creed, religion, color, sex, disability, sexual orientation, gender identity, or national origin.

    • This agency may also act as a conciliator/mediator in issues involving race, age, marital status, color, sex, disability, creed, national origin, sexual orientation, familial status or religion, in situations involving neighborhood tension, police conflict, hate crimes, or school culture issues. 

    • For Equal Accommodations Discrimination, a complaint must be filed no later than 180 days after the alleged discrimination took place. 

    • Fair Housing Discrimination (of interest for students and families)

      • Federal and state laws prohibit discrimination in the sale, lease, or rental of housing any aspect of a credit application. 

        • There are situations where the laws are not applicable. For example, owner-occupied building with less than 5 units, single-family homes sold or rented without a real estate agent, and housing operated by organizations. 

      • These laws prevent discrimination against protected classes which include age, creed, disability status, familial status, marital status, national origin, race and/or color, religion, sex, sexual orientation and gender identity, source of income, and housing status. 

    • For Fair Housing Discrimination, a complaint must be filed within one (1) year from the date of the alleged discrimination or one (1) year from the date of discovery of the alleged discrimination. 

    • After either an Equal Accommodations (school) or Fair Housing Discrimination complaint is filed an investigator will be assigned to the case. 

    • The investigator will then contact the Complainant and the Respondent to begin the investigation. 

    • A fact-finding conference may be scheduled, at which point the investigator will conduct a meeting. The investigator will discuss the complaint and determine whether a conciliation (a no-fault agreement) is possible between parties. 

    • If no agreement is reached at the fact-finding conference, the case will be referred to the Commission for an administrative hearing.

    • At the administrative hearing, testimony and evidence will be presented and after the Commission will make a written decision, which will be mailed to all parties. 

    • If a hearing is taking place the following is the process: 

    • 1. Opening statements 

      • The Complainant makes the first opening statement and then the Respondent follows. 

      • The opening statement allows the panel to know what you intend to prove. While an opening statement is not required it is very helpful to the panel. 

    • 2. Complainant(s) and witnesses give testimony, followed by cross examination 

      • Everyone who is testifying at the hearing will be administered an oath. You will present your witnesses and then the other party has the right to cross examine your witnesses. 

      • You have the right to use one of the opposing party’s witnesses as you own. 

      • During this process you can object to any evidence, witness, or testimony. Additionally, you can object to the questions asked to you or your witnesses. 

    • 3. Respondent(s) and witnesses given testimony, followed by cross examination. 

    • 4. Rebuttal evidence by both sides

    • 5. Closing comments by Panel Chair

      • The closing statement wraps up your case. The closing statement should summarize what has been shown through the testimony, evidence, and witnesses. 

      • The opposing party will also be allowed to present a closing statement. 

      • After the Respondent gives their closing statement, the Complainant will be allowed to attempt to rebut anything that the Respondent said during their closing statement. 

    • If you arrive to a hearing without an attorney, the Panel of Commissioners or the Deputy Attorney General will explain the process and answer any questions regarding the process. 

    • The Division of Human and Civil Rights Investigator assigned to your case can answer any questions about the hearing prior to the actual hearing. It is recommended that you make an appointment to discuss and questions you may have. 

    • Before the hearing commences, either party can bring any motions they would like the panel to hear. These motions include sequestration of witnesses, disqualifying a Commissioner due to a conflict of interest, or any other issue. 

    • The formal Rules of Evidence are not strictly followed at these hearings. The panel is allowed to exercise discretion to decide whether to permit testimony or evidence into the record. 

    • Either party can make objections during the hearing. When a party object they must state a reason for their objection. After an objection has occurred, the other party is given an opportunity to explain why the question should be allowed. 

    • When you are presenting your case, it is your job to submit your supporting documentation as exhibits to allow their appearance at the hearing. 

    • If a decision is released that the complainant is displeased with, they may appeal any Commission Order, which includes a dismissal order. This appeal will go to the Superior Court. The Superior Court will not conduct a new hearing, instead the Court will review the record for mistakes or incorrect rulings that resulted from the hearing. 

    • The Complainant has the right to ask the Commission to award damages if the Commission decides in their favor. The Commission will use its discretion when ruling on the issue of damages.

State Attorney General Enforcement Actions

    • I could not find any actions taken by the Attorney General in the last 5 years related to education.

    • The AG does not have any additional specific enforcement powers in education related cases. 

    The office only accepts general complaints which can be filed on their website: https://attorneygeneral.delaware.gov/publictrust/

  • The AG’s office does not have an education specific division, but it does have a Civil Rights and Public Trust division that protects the “educational rights of children.” https://attorneygeneral.delaware.gov/publictrust/

Other State Enforcement Systems

    • State Department of Education - relevant divisions and complaint processes

    • Human Rights/Relations Commissions (state and local)

    • State Civil Rights Departments independent of AG offices

    • Attorney General Offices - identify relevant sections/divisions (Children's Bureau, Civil Rights Department, etc.)

    • Other State Offices with relevant jurisdiction

For each relevant enforcement agency, document complaint process details (one chart per agency):

Delaware Department of Education

    • A state complaint is initiated by filing a written complaint with the Delaware Department of Education--State-Complaint-Information-Guide-English-July-2024.pdf 

    • Any private or public organization, public agency, or individual, including an individual from another state, can file a signed written complaint. 

    • A State complaint alleges violations of Part B of the IDEA or related state special education regulations (like failure to implement an IEP, missed timelines for evaluations, or procedural violations.) 

    • Must be filed within one year (1 year) of the alleged violation. 

    • A state complaint must be in writing, signed by the complainant, and include the following:

      • A statement that a school district, charter school, or other public agency violated a requirement of Part B of the IDEA, or the Delaware Department of Education’s regulations concerning the education of children with disabilities.

      • The facts that the statement is based on. 

      • The signature and contact information of the individual filing the complaint, and the contact information for their legal representative, if they have one, or the signature and contact information for the individuals representing a public agency or private organization filing a complaint. 

      • If the allegations involve a specific child, the complaint should include: the child’s name and address, the name of the school the child is enrolled at, a statement describing the nature of the issue with the child, and a proposed resolution to the issue. 

      • The complaint can also contain the following optional information: the time frame of when the alleged violation occurred, and a description of the attempts made to resolve the issue prior to the filing of the complaint.

    • The conduct cannot have occurred more than one (1) year prior to the date the Department receives the complaint.

    • Within one (1) business day after the receipt of the complaint, the Department will send the LEA and the complainant a copy of the complaint, and a notification that the complaint was received. 

    • Within five (5) business days an investigator will be assigned and send a written notification confirming receipt of the complaint to the school district and the complainant, and any other involved party. 

      •  The notice will include:

        • The name of the assigned investigator. 

        • Confirmation that the complaint was received and the due date for the written decision with the sixty (60) calendar day timeline.

        • The procedure for granting extensions beyond the sixty (60) calendar day timeline. 

        • Notice that both parties can submit additional information, orally or in writing. 

        • Notice to the school district, charter school, or public agency that they have a right to submit a response to complaint within fifteen (15) calendar days of receipt. 

        • Information on no cost meditation options.

        • The Department’s Special Education State Complaint Information Guide. 

        • The Delaware Procedural Safeguards Parents and Child Rights in Special Education. 

        • The school district, charter school, or public agency will receive a copy of the complaint.

    • If the Department determines that the complaint does not contain all the required information, the complainant will be notified in writing, within five (5) business days of receiving the complaint. The Department will dismiss the complaint and provide the complainant with directions for resubmission of the complaint. Resubmissions are considered new complaints, which resets the sixty (60) calendar day timeline. 

    • The Department completes its investigation by the sixty (60) calendar day timeline, unless an exceptional circumstance arises compelling an extension, that does not include meditation.

    • This process is governed by FERPA, therefore parental consent is needed prior to releasing the child’s information.

    • When the investigation is completed, the investigator will prepare a draft written decision and forward it to the Director of the Exceptional Children Resources Work Group for finalization. 

    • The final written decision will be issued by the Director of the Exceptional Children Resources Work Group with a notice addressed to the parent, and school district, charter school, or public agency involved in the complaint. 

    • The written decision will include:

      • A summary of the complaint issues and alleged violations. 

      • Identify the parties and the investigation process, including people who were interviewed. 

      • A concise finding of fact relevant to each complaint issued and alleged violation. 

      • Citations to relevant federal and state statutes and regulations for each complaint issued and alleged violation.

      • Draw conclusions based on the above.

      • Provide reasons for the Department’s final decision. 

      • Specify the corrective action ordered by the Department. 

      • Close the complaint. 

    • There is no appeal or reconsideration.

Delaware Department of Education filing a Due Process Complaint  - Disability Rights- addressing disputes about identification of a child as having a disability, educational placement, or Provision of Free Appropriate Public Education

    • The Individuals with Disabilities Education Act (IDEA) and corresponding state law provide parents of children with disabilities the right to request an impartial due process hearing regarding the identification, evaluation, or educational placement of their child, or the provision of a free, appropriate public education to their child. 

    • School districts, charter schools, and other public agencies responsible for providing education to children with disabilities may request a hearing as well. 

    The following link directs you to a PDF with all of the information regarding filing a complaint--Due-Process-Information-Guide-English-July-2024.pdf

    • The due process complaint can be filed by a parent or a public agency responsible for providing education to children with disabilities. 

    • Due Process hearings are an option for any matter related to the identification, evaluation, or educational placement of a child with a disability, or the provision of a free appropriate public education to the child. 

    • A Due Process Complaint must have the following: 

      • The complaint must be in writing, signed by the filing party.

      • The child’s name, address, the name of the child’s school. 

      • A description of the problem, including all the related facts, and proposed resolution to the issues.  

    • The alleged incident cannot have occurred more than two (2) years before the date the parent, school district, or charter school knew or should have known about the alleged action that forms the basis of the complaint. This limitation is not applicable if the parents could not file the Due Process complaint as a result of the schools’ misrepresentations. 

    • The complaint must be hand-delivered, mailed, faxed, or E-mailed to the Secretary of Education. 

    • The party filing the complaint is responsible for serving a copy of the complaint to the opposing party at the same time as the Secretary of Education. 

    • The Secretary of Education shall appoint an attorney, an educator, and a layperson, on a rotating basis to hear the case. 

    • The Secretary of Education will send written notice of the appointment to the panel members and to the parties and their attorneys, if represented. 

    • The complaint will be deemed sufficient unless the opposing party raises sufficiency issues. Within five (5) calendar days of receiving the notice of insufficiency, the hearing panel must make a determination on the face of the complaint as to whether it contains all the requires content. The complaint cannot be supplemented upon learning about the sufficiency challenge.

    • A party can amend the complaint, but only if the opposing party consents in writing to the amendment and is given the chance to resolve the amendment to complaint through alternate means. 

    • The school must within ten (10) calendar days provide a written response to the complaint that includes: 

      • A written explanation of why the school district or charter school proposed or refused to take action raised in the due process complaint.  

      • A written description of other options the IEP team considered and the reason why those options were rejected.

      • A written description of each evaluation procedure, assessment, record, or report the school district or charter school used as the basis for the proposed or refused action. 

      • A written description of the other factors that are relevant to the proposed or refused action by the school district or charter school. 

    • If the school district or charter school filed the due process complaint, the parent must, within ten (10) calendar days of receiving notice of the complaint, send a written response to the school district or charter school that addresses the issued raised in the due process complaint. 

    • Before the due process hearing the parties have the chance to resolve the issues through a resolution meeting. 

      • The school district or the charter school must convene a resolution meeting within fifteen (15) calendar days of receiving the parent’s due process complaint.

      • When the school district or charter school files the due process complaint, a resolution meeting is NOT required.

      • When the resolution meeting is mandatory, and there are no regulatory provisions that allow either party to unilaterally waive the resolution meeting, the resolution meeting may be bypassed only if: 

        • Both parties agree in writing to waive the resolution meeting. OR 

        • Both parties agree to use the mediation process instead

    • The burden of proof is on the school district or the charter school. 

    • The hearing panel decision on whether the child received a free, appropriate public education, must be based on substantive grounds. 

      • If the parent alleged that the school district or charter school violated the procedural requirements of the IDEA, the hearing panel may find the child did not receive free, appropriate public education, but only if the procedural violations: 

        • Impeded the child’s right to a free, appropriate public education;

        • Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free, appropriate education to the child; or

        • Caused a deprivation of educational benefit.

    • In some circumstances, a parent may file a due process complaint and receive an expedited hearing. Some circumstances may include if a parent disagrees with a manifestation determination, or the parent believes the school district or charter school has not complied with certain disciplinary placement procedures.  

    • A school district or charter school may also request an expedited hearing if the school district or charter school believes that maintaining the current placement of the child is substantially likely to result in injury to the child or others. 

    • Expedited due process hearings are heard by a single hearing officer, instead of the three-member panel. 

    • Expedited due process hearings must occur within twenty (20) school days of the date the complaint is filed with the department. No extensions may be granted. 

    • In expedited due process hearing, the hearing officer must render a decision within ten (10) school days after the hearing concludes.

    • There is no requirement for a response to be filed after the opposing party receives an expedited due process complaint.

    • In an expedited hearing, the parties are still afforded a resolution period to resolve the complaint, but the timeline is shorter. 

      • The school district or charter school must convene a resolution meeting within seven (7) calendar days of receiving notice of the due process complaint, unless the parent and school district or charter school agree, in writing, to waive the resolution meeting or use mediation instead. 

    • After the hearing, the panel must issue a written decision containing findings of fact and conclusions of law. 

    • The written decision must be issued within forty-five (45) calendar days after the expiration of the thirty (30) calendar day resolution period or the adjusted time period. 

    • The hearing decision is final and binding on all parties unless it is appealed by the filing of a civil action in the United States District Court or in the Family Court of the State of Delaware. 

    • An appeal must be filed within ninety (90) calendar days from the date of the final decision. 

    • When a civil action is filed seeking judicial review or a hearing decision, the Secretary of Education, or the Secretary’s designee, will certify and file with the court the record of the administrative hearing. 

    • A party may appeal the decision in an expedited due process hearing in the same manner as decisions in regular due process hearings

Delaware Department of Education - Disputes and Misconduct-Delaware Public Education Ombudsperson Program (DPEOP)

    • The Delaware Public Education Ombudsperson Program (DPEOP) assists students and families who have been unable to resolve non-legal disputes with districts, charters and the Delaware Department of Education (DDOE). DPEOP services may include:

    • Acting as a conduit between families and students, districts/charters, and DDOE as requested, with an emphasis on working directly with individual students.

    • Assisting families and students in navigating programs, services, policies, and procedures.

    • Acting as an advocate for families and students in school-based meetings, which may include IEP and 504 plan reviews, behavioral concerns, and disciplinary matters, including but not limited to, suspensions, expulsions and school related arrests.

    • Facilitating the resolution of parent and student concerns regarding discriminatory acts, policies, and practices, ensuring due process.

    • Participating in securing representation for families and students in school-based litigation, when appropriate and when other measures have not secured a positive outcome for the child.

    • Helping parents and guardians understand their rights.

    • Providing ongoing support and mentorship to students after the resolution of disputes or complaints to ensure that resolutions adequately address students’ needs.

    • The Delaware Public Education Ombudsperson Program will also collaborate on and share with DDOE and the districts and charters the development of research based best practices to ensure equity, including discipline, academic, social emotional learning, and extra-time supports and evaluating program satisfaction by parents, guardians, and students who are recipients of the program’s services.

    • The Delaware Public Education Ombudsperson Program is facilitated through the Educational Equity Council.

  • Please note, the DPEOP should be used after students and families have worked with their district or charter and the DDOE to resolve an education dispute and no resolution was met.

    Submit a Dispute Intake Form, available here: SAC Dispute Intake Form

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Delaware Department of Justice Division of Civil Rights & Public Trust

    • Delawareans must fill out the complaint form to file a complaint.  

    • The complaint must have all relevant information and contact information. 

    • Once the complaint is filled out, the complaint will be automatically sent to the Division of Civil Rights and Public Trust.

    • The Division of Civil Rights and Public Trust cannot provide individual legal advice causing some situation to require a private attorney.

    • Before filing a complaint ensure that the claim you are bringing falls under the jurisdiction of the DOJ--Frequently Asked Questions - Delaware Department of Justice - State of Delaware 

    • Division of Civil Rights and Public Trust - Delaware Department of Justice - State of Delaware

    • The Division of Civil Rights and Public Trust covers four main areas: 

      • First, enforcing Delaware laws that protect individual rights and liberties of Delawareans. Examples include rights guaranteed by the Delaware and United States Constitution, Delaware’s public accommodation laws, housing laws, employment discrimination laws, and laws protecting educational rights of children and the rights of Delawareans with disabilities. 

      • Second, laws designed to ensure citizen trust in the government. This includes election laws, laws governing public funds, and laws governing the conduct of public employees and officials. 

      • Third, investigation where the DOJ’s other responsibilities may cause a conflict of interest. Examples include investigations of use of force by police officers, and investigations of deaths or near-deaths of children under the supervision of Delaware. 

      • Fourth, investigations of police officer involved shootings. 

    • The complaint form asks for information like the complainant’s name and contact information, information about the subject of the complaint, and information about the actual complaint.

    • Once a complaint is filed, the complainant will receive an e-mail from an employee of the Division of Civil Rights and Public trust stating that the complaint has been received. 

    • The complaint will be reviewed by the DOJ attorneys to decide whether there is a sufficient basis for action to be taken by the Attorney General. 

    • Complainant will not be notified of the progress of complaint because it could interfere with the process.  

    • When a complaint is filled, a lawsuit or proceeding is not initiated on your behalf. 

    • Once the review of the complaint is completed an employee from the Division of Civil Rights and Public Trust will contact the complainant and explain the determined appropriate course of action. 

    • There was indication of an appeal process if the complaint is determined to lack sufficient basis.