The Honorable Terry R. Spence, Speaker of the House 
The Honorable Wayne A. Smith, Majority Leader 
The Honorable William A. Oberle, State Representative 
The Honorable Timothy U. Boulden, State Representative 
The Honorable Vincent A. Lofink, State Representative 
The Honorable Gregory F. Lavelle, State Representative 
State of Delaware 
Legislative Hall 
Dover, DE 19901 

Re: Neighborhood Schools Act of 2000 

Gentlemen: 

You have asked for an opinion whether "a school district may refuse to establish the grade configurations required by [14 Del.C. §223(b)] on the ground that altering its grade configurations to comply with the statute would give rise to a 'substantial hardship.'" 

For the reasons below, we conclude that the answer to your specific question is "no." School districts submitting a Neighborhood School Plan to the State Board of Education for approval must submit a Plan which contains the grade configurations required by Section 223(b). The school district may also submit for approval an alternative Plan which does not meet the statutory grade configuration requirements if the alternative plan better accomplishes the goals of the Neighborhood Schools Act of 2000. 

Requirements of the Neighborhood Schools Act

The Neighborhood Schools Act of 2000, codified at 14 Del.C. §§220 to 223 (2000), provides that the school boards of the Brandywine, Colonial, Christina and Red Clay Consolidated School Districts "shall develop a Neighborhood School Plan for their districts that assigns every student within the district to the grade-appropriate school closest to the student's residence, without regard to any consideration other than geographic distance and the natural boundaries of neighborhoods." 14 Del.C. §223(a). The Plan may assign students to school based on factors other than geography and neighborhood boundaries if a "substantial hardship" exists for a school, a school district, a student or a student's family. Id. 

Unless a district has only two school configurations, "Neighborhood School Plans shall consist of the following grade configurations: 

(1) A lower-level school, or elementary school, consisting of either grades K-5 or grades K-6; 
(2) A middle-level school, or junior high school, consisting of either grade 6 or 7, to grade 8 or 9; or 
(3) An upper-level school, or high school, consisting of either grades 9-12 or grades 10-12." 

14 Del.C. §223(b)(emphasis added). Section 223(b) of the Act further provides that "[t]o the extent a district concludes that an alternative configuration would better accomplish the goals of this [Act](1), the district may present an alternative neighborhood school plan in addition to the plan based on the above configurations."(Emphasis added.) 

The affected local school boards were required to submit their Plans to the State Board of Education by November 15, 2001, for the State Board's review and approval. 14 Del.C. §223(d). Other non-vocational Delaware school districts were also authorized, but not required, to submit plans to the State Board of Education for approval. 72 Del.Laws, c. 287, § 3. 

Analysis

1. Some general principles of statutory construction. 

The fundamental rule in applying a statute is "to ascertain and give effect to the intent of the legislature." Coastal Barge Corporation v. Coastal Zone Industrial Control Board, Del.Supr., 494 A.2d 1242, 1246 (1985), citing 73 Am.Jur.2d Statutes §146 (1974). Where the language used in a statute is "'plain and conveys a clear and definite meaning, the courts will give to the statute the exact meaning conveyed by the language, adding nothing thereto, and taking nothing therefrom.'" State, ex rel. State Board of Pension Trustees v. Dineen, Del.Ch., 409 A.2d 1256, 1260 (1979), quoting Federal United Corporation v. Havender, Del.Supr., 11 A.2d 331, 337 (1940). 

Courts invoke rules of statutory interpretation when a statute is ambiguous. Coastal Barge, 494 A.2d at 1246, citing Carper v. New Castle County Bd. of Ed., Del.Supr., 432 A.2d 1202, 1205 (1981). A statute is ambiguous when it is "reasonably susceptible of different conclusions or interpretations" or when the literal meaning of its words would "lead to such unreasonable or absurd consequences as to compel a conviction that they could not have been intended by the legislature." Id., internal citations omitted. "If [a] statute is unambiguous, there is no room for interpretation and the plain meaning of the words controls." Rubick v. Security Instrument Corp., Del.Supr., 766 A.2d 15, 18 (2000). 

2. Section 223(b) requires districts to submit a plan including the statutory grade configurations and permits them to submit another plan which does not. 

Section 223(b) of the Neighborhood Schools Act is unambiguous regarding the configuration requirements of Plans submitted to the State Board of Education. The language of the section is simple and direct: Plans developed by the districts "shall consist" of the identified grade configurations. Use of the word "shall" in a statute means that the obligation imposed is mandatory, Ross v. Dept. of Correction, Del.Supr., 697 A.2d 377, 378 (1997)(subsequent history omitted) and courts are reluctant to create exceptions to the positive requirements of a statute. State v. Dineen, 409 A.2d at 1260. In addition, the existence of a single, quite specific exception to the configuration requirement (for districts having only two school configurations) buttresses our conclusion that no other exceptions were intended. 

This conclusion is further confirmed by the final sentence of Section 223(b), which authorizes the districts to submit an "alternative" plan to the State Board which does not meet the specified configurations "in addition to the plan based on the above configurations." Words and phrases in a statute must be read in context and are "construed according to the common and approved usage of the English language." 1 Del.C. § 303(2000). See also Coastal Barge, 492 A.2d at 1245. 

The legislature clearly intended to require that the affected districts submit a plan based on the statutory grade configurations and permitted the districts to submit another plan which the State Board may approve in place of the plan that meets the configuration requirements if it finds that the alternative plan would better accomplish the goals of the Act. 

3. The substantial hardship exception applies to the pupil assignment provisions of the Plans, not to the grade configuration requirements. 

We have concluded that the only exception to the grade configuration requirements is for districts having two school configurations. It follows that districts cannot avoid the grade configuration requirements on the grounds of hardship, substantial or otherwise. 

This logical conclusion is consistent with the text of Section 223. The phrase "substantial hardship" appears only in Subsection (a) of Section 223. It is the basis for an exception to the requirement that Neighborhood School Plans assign students to schools based on geographic distance and natural neighborhood boundaries. The phrase does not appear in the portions of the law addressing the grade configuration components of the Plans, either expressly or by reference. The substantial hardship exception is itself limited by a condition prohibiting student and school assignments on the basis of race or the resulting racial composition of the schools. The hardship exception is available exclusively for the pupil assignment components of the Neighborhood School Plans submitted by the districts. 

In short, the hardship exception is not available to relieve a district of its obligation to submit a Plan that meets the grade configuration requirements in Section 223(b). 

Conclusion

The grade configuration provisions of the Neighborhood Schools Act are unambiguous. They require that Neighborhood School Plans developed by the Brandywine, Colonial, Christina and Red Clay Consolidated School Districts contain the grade configurations contained in Section 223(b) of the Act unless the district has only two school configurations. Districts are permitted to submit an alternative plan which does not contain the statutory grade configurations in addition to a plan which does. Any alternative plan submitted must better accomplish the goals of the Act. Substantial hardship is not a ground for failing to submit a plan which meets the grade configuration requirements in Section 223(b). 

Very truly yours, 

Louann Vari 
Deputy Attorney General 


Approved: 

Malcolm S. Cobin, 
State Solicitor 

cc: The Honorable M. Jane Brady 
Phillip G. Johnson, Opinion Coordinator 
Members, State Board of Education 

1. We note an apparent error in the Delaware Code, which refers to the "goals of the chapter...." In contrast, the Neighborhood Schools Act passed by the General Assembly contains the words "this Act." (See 72 Del. Laws, c. 287, §2.) 

The Neighborhood Schools Act added Sections 220 to 223 to Title 14, designating these sections as subchapter II. It did not substantively amend any other sections of Title 14. The Delaware Code Revisors are authorized to substitute the proper section or chapter number for the term "this Act." (See 1 Del.C. §211(a)(5) (2000)). It appears that the proper substitution for the words "this Act" in the Neighborhood Schools Act should have been the words "subchapter" or even "Sections 220 to 223." Our observation has been brought to the attention of The Delaware Code Revisors.