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Delaware

Constitutional Provisions

Compelled Support Clause

“[Y]et no person shall or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his or her own free will and consent ….” Delaware Const. Art I, § 1.

Blaine Amendment

“No portion of any fund now existing, or which may hereafter be appropriated, or raised by tax, for educational purposes, shall be appropriated to, or used by, or in aid of any sectarian, church or denominational school; provided, that all real or personal property used for school purposes, where the tuition is free, shall be exempt from taxation and assessment for public purposes.” Delaware Const. Art X, § 3.

Education Articles 

“The General Assembly shall provide for the establishment and maintenance of a general and efficient system of free public schools, and may require by law that every child, not physically or mentally disabled, shall attend the public school, unless educated by other means.” Delaware Const. Art X, § 1.

“No part of the principal or income of the Public School Fund, now or hereafter existing, shall be used for any other purpose than the support of free public schools.” Delaware Const. Art X, § 4.

“The General Assembly, notwithstanding any other provision of this Constitution, may provide by an Act of the General Assembly, passed with the concurrence of a majority of all the members elected to each House, for the transportation of students of nonpublic, nonprofit Elementary and High Schools.” Delaware Const. Art X, § 5

Vouchers: No

Tax Credits: Yes


Existing Private School Choice Programs

None.

Relevant Case Law

State ex rel. Traub v. Brown, 172 A. 835 (Del. Super. Ct. 1934)
The Superior Court of Delaware held that transporting private school students at public expense would
“help build up, strengthen and make successful” religious schools in violation of the state’s Blaine Amendment.

Opinion of Justices, 216 A.2d 668 (Del. 1966)
The justices of the Delaware Supreme Court opined in an advisory opinion that a bill for transporting private school students at public expense would violate the Delaware Constitution because even incidental aid violates the language of the state’s Blaine Amendment.

Analysis and Recommendations

A tax credit program is Delaware’s best option for school choice. The Delaware Constitution contains both a Compelled Support Clause and a Blaine
Amendment. The restrictive interpretation of the latter by Delaware state courts makes a general voucher program problematic.

In 1934, a Delaware Superior Court ruled in Traub v. Brown that transporting private school students at public expense violated the state’s Blaine Amendment. In a 1966 advisory opinion in response to a legislative busing proposal, the Delaware Supreme Court opined that the Traub decision was correct. Voters passed a constitutional amendment to overcome this restrictive interpretation of the state’s Blaine Amendment, but it is likely that vouchers would require a similar amendment.

Model Legislation: Education Savings Account, Great Schools Tax Credit Program, Family Education Tax Credit Program

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