24 High Quality Pre-Kindergarten as the First Step in Educational Adequacy: Using the Courts to Expand Access to State Pre-K Programs ∗ by Ellen Boylan I. Introduction state equal protection clauses13 and the state constitutions’ education articles.14 The educational and lifetime benefits of high quality In recent years, the focus of school funding early childhood education are well established in litigation has expanded to include not only additional research1 and widely accepted. The nation’s leading and more equitable resources, but also distribution of education organizations support expanding publicly- resources in a manner that ensures all students the funded pre-kindergarten,2 thirty-eight states3 and the opportunity to meet educational standards established District of Columbia4 fund pre-kindergarten to by the legislative and executive branches.15 This varying degrees, and in 2006, twenty-three governors more precise goal reflects the merging of school and the mayor of the District of Columbia proposed funding litigation with the standards-based reform to increase pre-kindergarten funding.5 Despite this movement. Since the 1990s, efforts to improve broad embrace of the merits of pre-kindergarten and student learning and achievement centered on the the growth in the number of children served in state- development and implementation of rigorous funded programs since 2001,6 program quality, curriculum standards and systems of assessment and funding, and access vary tremendously from state to accountability aimed at measuring students’ progress state7 and not nearly enough children are served. In toward meeting the standards.16 2005, only approximately seventeen percent of four- Closing academic achievement gaps—the year-olds and three percent of three-year-olds disparities in educational achievement that exist by nationwide enrolled in a state-funded pre- race, ethnicity, and socioeconomic status—is one of kindergarten program8 and many of these children the purported goals of the standards movement.17 As were in programs that lacked the quality needed to evidence of the gaps, policy makers, educators, and yield positive educational results.9 researchers point to differences in standardized tests Education finance litigation is one promising scores, grade point averages, placement in advanced avenue for expanding access to state-funded, high high school courses, and high school graduation rates quality pre-kindergarten, especially for disadvantaged between white and minority students and between students. Since 1998, school funding lawsuits have high-income and less affluent students.18 The federal resulted in hundreds of millions of new state pre- and state governments propose to equalize kindergarten dollars, tens of thousands of additional educational outcomes for all students through a children served each year, and significant, variety of K-12 education reform measures, but measurable gains for these children.10 Given these uniform curriculum standards and systems of extraordinary outcomes, education finance attorneys accountability are the most widely adopted reforms.19 and their clients ought to include a pre-kindergarten Every state now has in place curriculum standards claim in every case. and statewide assessments to measure student Beginning in the early 1970s and continuing progress in meeting the standards.20 through today, litigation has been a key strategy of The federal No Child Left Behind Act of 2001 parents, educators, and education advocates seeking (NCLB), the stated purpose of which is to ensure “all to remedy inequitable and inadequate public children a fair, equal, and significant opportunity to education funding. Over the past thirty-seven years, obtain a high quality education,”21 requires states school finance lawsuits have been filed in forty-five receiving federal education aid to employ standards- states, with state courts declaring the funding scheme based assessments in elementary, middle, and high unconstitutional in the majority of these cases.11 school.22 Schools are held accountable for raising Plaintiffs have maintained that their state’s school both overall scores and scores for racial and ethnic finance system fails to provide the resources needed subgroups, English language learners, low-income to guarantee all schoolchildren an adequate level of students, and students with disabilities.23 education and equal educational opportunity.12 They There is hardly unanimity of agreement on the have grounded their challenges in the federal and efficacy of standards- and test-based accountability for improving academic achievement and narrowing Children’s Legal Rights Journal Using the Courts to Expand Access to State Pre-K Programs 25 achievement gaps.24 At the least, it is unlikely that families enter school with greater educational deficits standards alone, without adequate resources and than middle-income children, but middle-income support for schools, communities, and families, will children also experience significant learning gaps and improve outcomes for low-income and minority risk of school failure when compared to their high- students. Nonetheless, standards and assessments are income peers.38 In fact, cognitive assessments at the the predominant education improvement measures, start of school show that children at the median and plaintiffs in school funding cases have adapted income level are as far behind children in the top their legal claims to these initiatives by demanding income quintile as poor children are behind the resources sufficient to provide all students an equal median income child.39 Middle-income children are opportunity to master the state’s learning standards.25 also at high risk of school failure, with a one in ten Here is where pre-kindergarten comes in. rate of grade retention and school dropout for Research shows that if all students are to have an children from the middle sixty percent of the income equal opportunity to succeed in school, education distribution.40 Studies suggest that pre-kindergarten reform cannot wait until children enter the K-12 can have positive impacts on middle-income education system.26 Researchers have documented children’s school readiness skills.41 For example, an significant differences by race, ethnicity, and evaluation of Oklahoma’s universal pre-kindergarten socioeconomic status (SES) in children’s cognitive program found substantial gains for all children, skills before they enter kindergarten.27 Studies show although gains were largest for minority and lower- that “the average cognitive score of children in the income children.42 A five-state study of high quality highest SES group are [sixty percent] above the pre-kindergarten programs in Michigan, New Jersey, scores of the lowest SES group”;28 the “average math Oklahoma, South Carolina, and West Virginia achievement is [twenty-one percent] lower for blacks similarly found significant gains in early language, than for whites, and [nineteen percent] lower for literacy, and mathematical development for all Hispanics.”29 “Race and ethnicity are closely children participating in the programs, regardless of associated with SES,” with “[thirty-four percent] of ethnicity or economic background.43 black children and [twenty-nine percent] of Hispanic Most pre-kindergarten age children in the United children [] in the lowest quintile of SES compared States receive non-parental care before they arrive at with only [nine percent] of white children”;30 and kindergarten44 and forty-three percent of these socioeconomic status is more strongly related to early children attend a center-based program,45 yet many cognitive skills than any other factor, including race are in settings that lack the quality necessary to and ethnicity.31 This evidence strongly suggests that develop the cognitive and emotional skills needed for efforts to reduce achievement gaps must start with school success.46 Even in state-funded pre- eliminating the differences in skills and knowledge of kindergarten programs, there are large disparities in children entering kindergarten and first grade. quality. For example, seventeen states require pre- Early childhood research establishes that high kindergarten teachers to have a four-year-college quality pre-kindergarten can improve school degree, yet twenty-one states do not mandate a readiness and academic performance, especially for bachelor’s degree; furthermore, twenty-eight states children from low-income families and with other limit class size to twenty children or less, but ten risk factors associated with school failure.32 Studies states have no limit at all.47 As would be expected, show that disadvantaged children who attend a high research shows that higher quality programs yield the quality program perform better throughout greatest gains in school readiness skills and lifetime elementary and secondary school when compared to benefit, while programs with lower quality standards children who did not attend a program, with fewer show far less of an effect.48 referrals to special education, fewer incidences of The powerful research demonstrating that high grade repetition, and greater high school graduation quality pre-kindergarten prepares children to succeed rates.33 Moreover, the benefits of high quality pre- in school and beyond has impelled plaintiffs in kindergarten carry over into adulthood.34 Participants school finance cases to include a claim for pre- in such programs are more likely to be employed, kindergarten funding in their demand for increased own a home, and have less involvement in the public education funding.49 Plaintiffs make the case criminal justice system when compared to non- that high quality pre-kindergarten is a necessary “at- participants.35 Studies also show a high economic risk” educational program for economically return from public investment in pre-kindergarten.36 disadvantaged students that the state must fund as a Emerging research shows that middle-income part of its duty to provide a constitutional system of children also can benefit from pre-kindergarten, since education.50 After all, if students are not prepared to they too experience achievement gaps and problems learn when they enter kindergarten and first grade, of school failure.37 Children from low-income how will they ever master the state’s curriculum Vol. 27 ♦ No. 1 ♦ Spring 2007 26 Ellen Boylan standards and achieve the other goals of public have attempted to correct funding disparities with education? In some recent cases, plaintiffs go one various equalization formulas, but in most states the step further to claim that pre-kindergarten should be amount of education funding still varies widely from funded similar to K–12 as a component of the state’s school district to school district, with property-rich basic education program.51 Claims of this nature are districts having far more resources than property- strengthened by the research documenting the needs poor districts.56 Consequently, methods of financing of middle-income children. public education have a disproportionately negative To date, five state courts, including four high impact on the quality of education in economically- courts, have issued decisions on pre-kindergarten isolated, low-income urban and rural school districts. funding,52 and claims for this funding are now part of School finance lawsuits aim to correct this eleven pending cases.53 School funding litigation has imbalance. emerged as a significant strategy for increasing Historically, discussion of school finance access to high quality, state-funded pre-kindergarten litigation assumes three phases or waves of legal programs. theory advanced by plaintiffs.57 While these so-called This article examines the merits of pursuing a waves are not as discrete in reality as in academia,58 claim for pre-kindergarten funding in school finance the categorizations are commonly used and provide litigation from the perspective of those who wish to background to the claim for state pre-kindergarten expand access to state-funded early childhood funding within the cases. education. Specifically, the article makes the case The first wave of school finance litigation that high quality pre-kindergarten is the essential first focused on the Equal Protection Clause of the United step in a constitutionally adequate education, States Constitution, which had been successfully especially for students who, due to socioeconomic relied upon in Brown v. Board of Education59 to factors, are at-risk for school failure. Part II of the invalidate school segregation based on race.60 This article provides an overview of school finance wave began in 1971 with Serrano v. Priest.61 The litigation and the evolving equity and adequacy plaintiffs in Serrano challenged California’s reliance theories that support plaintiffs’ legal claims. Part III on local property taxes to fund education, a system then discusses how the standards-based reform that resulted in vast per-pupil funding disparities movement strengthens plaintiffs’ lawsuits by throughout the state, under the federal Equal providing a discernable measure of a constitutionally Protection Clause.62 The California Supreme Court adequate education and how pre-kindergarten fits found that education is a fundamental right63 and within the standards and adequacy frameworks. Part wealth is a suspect classification.64 Applying strict IV details the five state court decisions issued to date scrutiny, the court ruled that local control of on the state’s obligation to fund early childhood education was not a compelling interest justifying education as a part of its duty to provide a differential treatment in education resources.65 constitutionally adequate education. Attention is The decision in Serrano signaled the movement given to plaintiffs’ reliance on the compelling to reform disproportionate school finance systems research showing that many children start school at a through the courts.66 Two years later, however, in significant disadvantage when compared to their San Antonio Independent School District v. more affluent peers and that high quality pre- Rodriguez, the United States Supreme Court kindergarten helps close gaps in educational effectively closed the door on plaintiffs’ use of the achievement. Finally, Part V discusses the successful Federal Constitution and federal courts to remedy outcome of pre-kindergarten litigation, specifically such imbalances.67 The plaintiffs in Rodriguez how state legislatures have expanded funding for pre- challenged the educational disparities that resulted kindergarten in response to school finance lawsuits. from Texas’s reliance on revenue generated from local property taxes to fund the public education II. A Brief History of School system.68 The Supreme Court held that wealth is not a suspect classification under the Federal Finance Litigation Constitution and that education, although one of the Each state has a different formula and method for most important state services, is not within the funding public education, but “almost all rely on a limited category of rights recognized as guaranteed mixture of state and local funding, with localities by the Constitution.69 Decisions regarding state taxes funding” a majority of their contribution “through and public education were, according to the Court, property tax revenues.”54 Reliance on local revenue, fundamentally state issues.70 Applying a rational however, means that the amount of the education basis standard to the plaintiffs’ challenge, the Court funding available to a particular community will found that local control of public education justified depend largely on local property wealth.55 States the school funding system71 and that inter-district Children’s Legal Rights Journal Using the Courts to Expand Access to State Pre-K Programs 27 funding inequalities based on local property wealth function in society, both as workers and participants were not a violation of the federal Equal Protection in a democracy.86 Thus, the adequacy theory requires Clause.72 Following the Rodriguez decision, any courts to undertake a more substantive interpretation challenge to a state’s scheme for financing public of the education clause rather than focusing on equal education had to be brought in state court, under state distribution of education resources. law. The Kentucky Supreme Court’s 1989 decision in The second wave of school finance litigation also Rose v. Council for Better Education is cited as the challenged educational disparities based on an equity start of the adequacy movement.87 The court in Rose theory, but legal claims were rooted in state found all Kentucky schools, even those in wealthy constitutional guarantees of equal protection.73 In districts, inadequately funded when compared to Robinson v. Cahill, cited by commentators as the first accepted national standards.88 The court invalidated case in the second wave,74 the New Jersey Supreme the state’s school finance system and declared the Court found that the state’s reliance on local property entire public school system inadequate and taxes to fund public education had a disproportionate unconstitutional.89 Significantly, the court articulated impact on students in low-wealth districts, thereby broad guidelines in the form of the seven capabilities violating the state constitution’s mandate that the all children must be given the opportunity to achieve legislature provide a thorough and efficient system of in order for the education system to meet the goal of free public schools.75 The Robinson decision adequacy.90 The Kentucky legislature responded to successfully used the equity approach in state court the court’s ruling by passing the Kentucky Education while relying on the education clause as the source of Reform Act, a national model of education reform the right to equal educational opportunity.76 In legislation.91 The Rose decision opened the door to a contrast, subsequent second wave cases were rooted wider expanse of relief available to plaintiffs under primarily in state equal protection guarantees, an adequacy theory. although some also raised equity claims under the education clause.77 III. The Pre-Kindergarten and Second wave cases yielded mixed results, with Education Adequacy Nexus about one-half of school funding cases between 1973 and 1989 brought under an equity theory upholding Following the Rose decision, other state courts the finance system, despite spending disparities.78 For adopted the seven capabilities or similar education example, the Oregon Supreme Court, in Olsen v. standards as the equivalent of a constitutionally State, upheld per-pupil spending inequalities between adequate education.92 As education reform spurred school districts in spite of a constitutional provision implementation of state curriculum standards and for a uniform and general system of schools.79 Both assessment systems, however, courts began moving the New Jersey and the Oregon courts employed a beyond broad education goals as outlined in Rose and balancing test between the interest in educational instead equated a constitutionally adequate system of opportunity and the interest in preserving local education as one that, at least in part, provides all control over education.80 However, in contrast to the students the opportunity to master the state’s New Jersey court’s decision in Robinson, the Oregon standards.93 The relief sought by plaintiffs has Supreme Court found the state’s interest in local evolved to match this goal, with most cases now control of schools to be greater than its interest in including claims for both an increased per-pupil equal educational opportunity.81 foundation amount aligned with achievement of the The third wave of litigation, from 1989 through state curriculum standards and increased at-risk today, grew out of the resistance of some courts to program aid to enable schools to provide the services the demand for equalization of resources.82 Cases in and programs needed by students who, because of the third wave are grounded in state constitution socioeconomic status, limited English proficiency, education clauses, which uniformly place the duty to and other special needs, face a host of obstacles that provide a public education system on state interfere with learning that standards.94 government.83 These cases challenge the school The standards framework sets the stage for finance system not because some districts are able to plaintiffs to make the case for the essentiality of high spend more money than others, but because funding quality pre-kindergarten. The framework assumes is insufficient to finance an adequate level of that learning is cumulative and children progress in education.84 Adequacy cases assert that the education skills and knowledge from year to year.95 Children clause guarantees a level of funding sufficient to entering kindergarten are expected to master the provide a certain minimum level of education to all kindergarten curriculum standards in preparation for children in the state.85 This minimum level is broadly first grade where they master the first grade defined as an education that prepares students to standards, and so on through the grades.96 It follows, Vol. 27 ♦ No. 1 ♦ Spring 2007 28 Ellen Boylan then, that if children are to master the skills and disadvantaged pre-kindergarteners to succeed in acquire the knowledge set by the standards, they must school106 but, unlike the New Jersey Supreme Court, begin school with the skills and knowledge needed to it stopped short of ordering a pre-kindergarten progress from year to year. Research shows, program as a specific remedy.107 Instead, the North however, that many children lacking early learning Carolina Supreme Court left it to the legislative and skills when they enter kindergarten start school executive branches to determine which programs behind and stay behind.97 From the outset, these were needed to ensure that low-income pre- children do not have an equal opportunity to an kindergarteners had an equal opportunity to learn.108 education that satisfies constitutional requirements. In a 2005 decision along the same lines, the trial Because research also shows that high quality pre- court in Abbeville County School District v. State kindergarten can help level the playing field by found that South Carolina’s low-income providing children, most notably those from low- schoolchildren were being denied their state income backgrounds, with necessary school readiness constitutional right to a “minimally adequate skills,98 state funding for these programs must be a education” because of the state’s failure to fund early central part of a constitutionally adequate system of childhood intervention programs designed to education. remediate the impact of poverty on children’s The recognition by several courts that the educational success.109 concept of educational adequacy will evolve over Plaintiff victories on the pre-kindergarten front time, depending on educational research and social have not been unanimous, although, arguably, neither context, further supports including pre-kindergarten of the two adverse decisions supports a broad limit on in a state system of education.99 Research on school judicial authority to direct a pre-kindergarten remedy. readiness gaps and the benefits of high quality pre- In Lake View v. Huckabee (Lake View III), a 2002 kindergarten is now widely accepted.100 Studies also decision, the Arkansas Supreme Court overruled a show that the majority of pre-kindergarten-age trial court decision directing the state to fund a pre- children spend at least a part of their day in non- kindergarten program.110 The court’s decision was parental care, but most are not in settings that based on language unique to the Arkansas promote early learning skills.101 Since it is now Constitution, which specifically vests in the state known that young children, especially those from legislature and local school boards the authority to disadvantaged backgrounds, reap educational benefits implement educational programs for children under from high quality pre-kindergarten, without which the age of six.111 The court found that the language many will not succeed in school, lawyers can make deprived it of authority to consider a pre-kindergarten the case that an education system that excludes pre- remedy.112 In 2005, the Massachusetts Supreme kindergarten is constitutionally inadequate. Judicial Court, in Hancock v. Driscoll, reversed the trial court’s recommendation that the state fund a pre- IV. The Courts and kindergarten program for all children at risk for school failure as a remedy for the unconstitutional Pre-Kindergarten funding scheme.113 The court found that the finance New Jersey was at the forefront of the movement to system was constitutional, thereby rejecting all of the include pre-kindergarten in school finance litigation. trial court’s recommended remedies, including pre- In the 1998 Abbott v. Burke (Abbott V) ruling, the kindergarten.114 New Jersey Supreme Court directed the state to provide a high quality pre-kindergarten program to 1. Abbott v. Burke all three- and four-year-old children residing in the In the 1998 landmark Abbott V decision, the New state’s lowest-income school districts.102 The court Jersey Supreme Court directed the state to implement found that the state’s constitutional duty to provide a and fully fund a series of remedial measures to “thorough and efficient” education for all children103 address decades of under-funding and neglect of the encompassed the provision of high quality pre- state’s low-income, urban school districts, now kindergarten to help disadvantaged children known as the Abbott districts.115 High quality pre- overcome the effects of poverty on educational kindergarten for all three- and four-year-old children achievement.104 in the Abbott districts was among the remedies The North Carolina Supreme Court articulated a ordered by the court, even though the New Jersey similar state duty in the 2004 decision in Hoke Constitution’s guarantee of a “thorough and County Board of Education v. State, but with a efficient” education only reaches children between different result.105 The court found that the the ages of five and eighteen.116 In two subsequent constitution’s mandate for a “sound basic education” rulings, Abbott VI and Abbott VIII, the New Jersey for each child imposed a state duty to prepare Children’s Legal Rights Journal Using the Courts to Expand Access to State Pre-K Programs 29 Supreme Court expounded upon the state’s obligation “traditional and prevailing educational programs in to provide the pre-kindergarten program, dictating these poorer urban schools were not designed to meet uniform program quality standards, the method of and are not sufficiently addressing the pervasive calculating state funding, and requirements for array of problems that inhibit the education of poorer reaching full enrollment of all eligible children.117 urban children.”131 The court concluded that “[u]nless The Abbott pre-kindergarten rulings are by far the a new approach is taken, these schools—even if most comprehensive and directive of any court ruling adequately funded—will not provide a thorough and on the state’s obligation to provide early childhood efficient education.”132 education. Other state courts have found a state duty The court left the specific determinations to prepare disadvantaged preschoolers to succeed in regarding the need for, and cost of, such the public education system,118 but none have gone so supplemental programs to the legislature.133 It did, far as to mandate a high quality program for all however, cite the National Governor Association’s eligible children.119 recommendation that all disadvantaged children The Abbott V remedial order grew out of twenty- should have access to a successful preschool five years of litigation that challenged New Jersey’s program,134 and noted that “an intensive pre-school system of school financing.120 Beginning with and all-day kindergarten enrichment program [would Robinson v. Cahill (Robinson I) in 1973, attorneys help] to reverse the educational disadvantage these representing children in the state’s lowest-income children start out with.”135 school districts charged that the state’s use of In 1994, four years after the Abbott II ruling, the property taxes to pay for public education created New Jersey Supreme Court issued the Abbott III enormous inequities, with inner-city schools starved decision declaring the state’s revised school funding for adequate resources to educate their students.121 law unconstitutional.136 The court invalidated the law The Abbott case focused not only on fiscal inequity in based on its failure to provide adequate and equitable per-pupil funding but also on the quality of the per-pupil foundation aid and additional funding to educational programs and outcomes resulting from meet the special educational needs of students in the the inequality.122 impoverished school districts.137 The court once The New Jersey pre-kindergarten remedy had its again refrained from ordering a specific remedy but genesis in the constitutional framework established reaffirmed the state’s obligation to study and fund by the New Jersey Supreme Court in the 1990 Abbott programs to address the special needs of II decision.123 The court in Abbott II upheld an disadvantaged students.138 In its discussion of administrative law judge’s extensive findings supplemental programs, the court noted that both the regarding the gross inadequacies of the education plaintiffs’ and the state’s expert witnesses identi- offered to students in the state’s poor, urban school fied pre-kindergarten as a needed supplemental districts.124 The court found that the education program.139 provided to students in low-income areas was In the 1997 Abbott IV decision, the New Jersey unconstitutional by every measure when compared to Supreme Court once again faced an unconstitutional the education offered in affluent, successful school education funding scheme.140 By this point, however, districts.125 The court adopted a two-part approach the court was no longer willing to merely instruct the for remedying the constitutional violation.126 First, legislature to cure the constitutional deficiencies.141 the court held that students in low-income school Instead, the court initiated a process to determine districts were entitled to basic “foundation aid” equal appropriate remedies for the state’s longstanding to the amount spent in successful suburban school constitutional violation.142 The court also signaled districts.127 Second, the court found that children in that pre-kindergarten would likely be one of the low-income school districts were entitled to remedies.143 additional aid to meet the “special educational needs Abbott IV involved the court’s review of the … [and] extreme disadvantages” arising from the Comprehensive Education Improvement and conditions of urban poverty.128 In order for students Financing Act of 1996 (CEIFA),144 the legislature’s in impoverished urban communities to receive the response to Abbott III.145 CEIFA presented a formula thorough and efficient education guaranteed by the for basic public education foundation aid and two state constitution—an education that enables all funding formulas aimed at addressing the New Jersey students to function as citizens and workers in the Supreme Court’s directive for programs designed to same society129—the state must provide additional meet the unique needs of low-income students: (1) interventions in the form of supplemental programs Demonstrably Effective Program Aid (DEPA) to and services designed to “wipe out their provide supplemental program funding for at-risk disadvantages as much as a school district can.”130 students in grades K-12 and (2) Early Childhood The court based its approach on its conviction that Program Aid (ECPA) to fund full-day kindergarten Vol. 27 ♦ No. 1 ♦ Spring 2007 30 Ellen Boylan and pre-kindergarten programs for low-income three- Program.157 The Perry Preschool study followed low- and four-year-olds.146 income, African American children who were The court ruled that the foundation formula in randomly assigned to an intensive preschool program CEIFA was facially constitutional because it equated in Ypsilanti, Michigan at ages three and four.158 Two the state’s recently adopted curriculum standards certified teachers taught pre-kindergarten classes of with the substantive definition of a constitutionally twelve children in the morning and conducted home adequate education147 but unconstitutional as applied visits in the afternoon.159 Dr. Barnett testified that to the Abbott districts because it failed to provide research following the program participants through sufficient funds to enable students in those districts to age twenty-seven showed that they had fewer meet the new standards.148 To remedy the disconnect referrals to special education, increased high school between the legislature’s own determination of graduation rates, more economic success as adults, constitutional adequacy and the funding it provided and less involvement in delinquency and crime when to urban districts, the court in Abbott IV issued an compared to non-participants.160 The Abecedarian unprecedented remedy requiring the state to provide program, located in North Carolina, provided full- the Abbott districts with foundation aid on par with day, year-round childcare with an educational focus per-pupil spending in the state’s successful suburban on low-income, mostly African-American children school districts.149 The court also found that the ages four months to five years old.161 Dr. Barnett funding formulas in both DEPA and ECPA were testified that the Abecedarian study showed that unconstitutional because they were not based on the through age seventeen, program participants actual needs of the children in the low-income, urban experienced not only greater gains in achievement school districts.150 and social behavior, but also permanent gains in IQ The court concluded that the legislature’s scores.162 He further made the case that high quality continued failure to address the Abbott pre-kindergarten would yield significant educational schoolchildren’s unique educational needs required a and societal cost-savings in the long run.163 Dr. court remedy.151 Therefore, the court directed the Barnett testified about a cost-benefit analysis he state to study the special educational needs of conducted of thirty-eight early childhood programs children in the Abbott districts, identify supplemental that examined IQ, achievement, and academic programs to address those needs, and develop a plan success as measured by special education placement, to implement those programs.152 The court then grade retention, and high school graduation. Based on remanded the Abbott case to a Superior Court judge this analysis, Dr. Barnett found that the economic to hold an evidentiary hearing and make return on preschool education exceeded “the average recommendations for funding the Abbott districts’ rate of return on investments in the stock market over supplemental program and facility needs.153 the last [thirty] years.”164 The Abbott plaintiffs urged the Superior Court to In addition to the plaintiffs’ expert, several other recommend to the Supreme Court a pre-kindergarten individuals gave testimony recommending pre- program for all three- and four-year-olds in the kindergarten programs. A Special Master appointed Abbott districts with the following components: full- by the superior court, Dr. Allan Odden of the day, year-round school; a class size of fifteen University of Wisconsin-Madison, supported the students; a certified early childhood teacher and one plaintiffs’ position and recommended a full-day pre- teacher’s assistant for each class; an extended day kindergarten program for all three- and four- program; health and social services; collaboration year-olds.165 Dr. Robert E. Slavin of Johns Hopkins with Head Start and other community-based early University, one of the state’s experts, testified that childhood providers; extensive professional children who attend full-day pre-kindergarten development and supervision; and district preschool beginning at age three were more likely to have councils.154 Both the Abbott plaintiffs and the state success in school.166 The state, by contrast, argued presented evidence during the remand hearing of the that the needs of the Abbott schoolchildren could be need for a pre-kindergarten program.155 met by a half-day program for four-year-olds.167 The The plaintiffs’ expert, Dr. Steven Barnett of Superior Court judge issued an extensive decision on Rutgers University, testified that disadvantaged recommended remedies168 that included state funding children often enter school lacking the language and for full-day pre-kindergarten for all three- and four- literacy skills that are prerequisites to literacy and year-old children in the Abbott districts.169 that high quality pre-kindergarten can help close The court in Abbott V considered the record and school readiness gaps.156 Dr. Barnett also testified recommendations from the Superior Court and about the research findings of two longitudinal directed the state to implement several studies of intensive pre-kindergarten programs, the groundbreaking education reforms to assure Perry Preschool Program and the Abecedarian educational adequacy to children residing in the Children’s Legal Rights Journal Using the Courts to Expand Access to State Pre-K Programs 31 Abbott districts.170 The reforms included “well- condition for the attainment of a thorough and planned, high quality” pre-kindergarten for all three- efficient education once a child enters regular and four-year-olds, full-day kindergarten, standards- public school.178 based education driven by state curriculum standards, Notably, the court did not rule that Abbott new and rehabilitated facilities, and needs-based schoolchildren have a constitutional right to pre- supplemental programs to “wipe out student kindergarten, perhaps wanting to avoid the disadvantages.”171 All of these reforms, the court constitutional language granting the right to a found, were necessary to help students in the Abbott thorough and efficient education to children between districts overcome the effects of poverty on the ages of five and eighteen. Instead, the court based educational achievement and receive the thorough its pre-kindergarten directive on two considerations: and efficient education guaranteed by the state (a) the Commissioner of the Department of constitution.172 Education’s recommendation during the remand The court noted “no fundamental disagreement hearing for “[w]ell-planned, high quality” pre- over the importance of pre-school education.”173 It kindergarten for all four-year-olds residing in the grounded its directive for programs for all three- and Abbott districts, together with his authority under four-year-olds in the Abbott districts on the early CEIFA to restructure curriculum in Abbott districts childhood research presented in the remand and (b) the legislature’s requirement in CEIFA for proceedings: pre-kindergarten funds for four-year-olds in all Empirical evidence strongly supports the Abbott districts and three-year-olds in most Abbott essentiality of pre-school education for districts.179 The court characterized that statutory children in impoverished urban school districts. requirement as “a clear indication that the Legislature That evidence demonstrates that the earlier understood and endorsed the strong empirical link education begins, the greater the likelihood that between early education and later educational students will develop language skills and the achievement.”180 Although the court rested its pre- discipline necessary to succeed in school. A kindergarten ruling on the commissioner’s authority review of two major studies on pre-school cited and statutory interpretation, it nonetheless found that by the parties … also reveals that there is a “because the absence of such early educational strong correlation between the intensity and intervention deleteriously undermines educational duration of pre-school and later educational performance once the child enters public school, the progress and achievement.174 provision of pre-school education also has strong The court also relied on the findings in a 1996 constitutional underpinning.”181 Carnegie Task Force report on learning in the The court issued specific directives to the state to primary grades, which recommended that high ensure full implementation and availability of the quality early learning opportunities be made pre-kindergarten program to every three- and four- universally available to all children ages three to year-old in the Abbott districts.182 It instructed the five.175 The court referred to the Task Force’s finding commissioner to make the program available to all that one-third of children entering elementary school children in the Abbott districts as “expeditiously as lack basic school readiness skills due, in part, to the possible,” or by no later than September, 1999.183 It scarcity of high quality early care and education also required the state to adequately fund the pre- programs in poor communities.176 kindergarten program and ensure that transportation The court recognized the research-based link and other services, support, and resources related to between high quality pre-kindergarten education and the program were provided.184 Further, the court a constitutionally adequate education, which, instructed the state to prioritize construction of pre- according to the court, is one that allows attainment kindergarten facilities to ensure full enrollment in the of the state’s learning and curriculum standards:177 program.185 Finally, the court authorized This Court is convinced that pre-school for “cooperation with or the use of existing early three- and four-year-olds will have a childhood and day-care programs in the community” significant and substantial positive impact on in order to allow the state to implement the pre- academic achievement in both early and later kindergarten program as expeditiously as possible.186 school years. As the experts described, the Two years later, in Abbott VI, the New Jersey long-term benefits amply justify this Supreme Court reaffirmed its commitment to high investment. Also, the evidence strongly supports the conclusion that, in the poor urban quality pre-kindergarten for the Abbott school districts, the earlier children start pre- schoolchildren.187 The plaintiffs returned to court on school, the better prepared they are to face the an enforcement action alleging that the state was challenges of kindergarten and first grade. It is failing to comply with the mandate in Abbott V for this year-to-year improvement that is a critical “well-planned, high quality” pre-kindergarten.188 Vol. 27 ♦ No. 1 ♦ Spring 2007 32 Ellen Boylan They alleged that the state’s use of community court ordered the Commissioner of the Department of childcare centers staffed by uncertified teachers and Education to: finalize pre-kindergarten curriculum governed by Department of Human Services guidelines; develop district-level plans to boost pre- childcare standards, as well as its failure to develop kindergarten enrollment whenever the district failed developmentally appropriate curriculum guidelines, to meet the department’s enrollment goals (set at violated the “high quality” component of the Abbott ninety percent of the eligible universe by the 2003- V pre-kindergarten ruling.189 2004 school year); approve contingency facilities The court in Abbott VI confirmed that only a plans for districts that lack enough permanent “high quality” program would satisfy the state’s duty classroom space to serve every child who wants to to the Abbott schoolchildren.190 The court accepted enroll; include Head Start programs in the Abbott “a core understanding” put forward by the plaintiffs pre-kindergarten program so that children enrolled in “that the needs of at-risk children can be met only by Head Start receive the benefits of the high quality quality preschool programs.”191 The court Abbott program; provide reasonable funds to help acknowledged the need for, and benefits of, Abbott Head Start and community-based childcare providers school districts contracting with community childcare meet the high quality standards for the Abbott programs to deliver the Abbott pre-kindergarten program, including funds to help raise teacher program192 but ordered the state to eliminate salaries and retain qualified staff; and base program disparities in quality between school-based and budgets on a thorough assessment of the actual costs community programs.193 The court stated: of delivering the pre-kindergarten program according The record in Abbott V overwhelmingly to the Abbott quality standards, rather than an demonstrated that substantive, quality early- arbitrary, predetermined per-pupil amount.200 childhood education does make a difference, and that poor urban youngsters do better 2. Hoke County Board of Education v. academically when they have participated in State (Leandro II) enriched preschool programs from an early age. Our constitution requires a thorough and In Hoke County Board of Education v. State efficient education for all of our children (Leandro II), the North Carolina Supreme Court because we believe that educated citizens are found that the state has a constitutional duty to better able to participate fully in the economic prepare at-risk pre-kindergarten-age children201 to and communal life of the society in which we avail themselves of the opportunity for the “sound all live. Quality preschool, whole school basic education” required by the North Carolina reform, adequate, secure school buildings in Constitution.202 The court reversed a 2000 trial court which to learn, health and social services, and decision ordering the specific remedy of state funding other programs as needed—those are the for pre-kindergarten for at-risk children, finding elements of a commitment to the Abbott inadequate factual support in the record to sustain children, to their future.194 this remedy.203 The court agreed with the lower The court ordered the department of education to court’s finding that the state’s efforts towards at-risk ensure the following components of a high quality pre-kindergarteners were constitutionally inadequate program for all Abbott pre-kindergarten programs, but, citing the separation of powers doctrine, the whether in a school district or a community-based court granted the legislative and executive branches program: (1) lead teachers with a bachelor’s degree the opportunity to design an appropriate remedy.204 and an early childhood certification and (2) class size of no more than fifteen.195 The court also directed the The Leandro II case built upon an earlier challenge to the state’s school finance system, department to issue developmentally appropriate pre- Leandro v. State (Leandro I).205 In Leandro I, low- kindergarten curriculum standards that would apply to all Abbott programs.196 Finally, concerned about income school districts argued that their students were denied an adequate education under the state under-enrollment in the pre-kindergarten program, constitution because the state’s school funding the court ordered the Department of Education to system failed to provide adequate resources to the make funding available to Abbott districts for low-income districts.206 The North Carolina concerted outreach to families of pre- kindergarteners.197 Constitution requires the state to provide “for a general and uniform system of free public schools … In 2002, the Abbott plaintiffs again challenged wherein equal opportunities shall be provided for all the state’s implementation of the pre-kindergarten program.198 In Abbott VIII, the New Jersey Supreme students.”207 The North Carolina Supreme Court in Leandro I held that this constitutional language Court found, for the second time, that the state’s imposed a state duty to provide adequate funding and implementation of the program was insufficient to meet the needs of the Abbott schoolchildren.199 The services to ensure all students a “sound basic Children’s Legal Rights Journal Using the Courts to Expand Access to State Pre-K Programs 33 education.”208 The court defined “sound basic provide that every child of appropriate age … shall education” as one that will provide the student with at attend the public schools.”217 The North Carolina least: General Assembly had enacted legislation requiring (1) sufficient ability to read, write, and speak mandatory school attendance for seven-year-olds and the English language and a sufficient providing that five-year-olds may attend school.218 knowledge of fundamental mathematics and Notwithstanding the General Assembly’s physical science to enable the student to determination, the trial court held that the function in a complex and rapidly changing constitutional right to an education extended to society; (2) sufficient fundamental knowledge children before the age of five: of geography, history, and basic economic and Under the North Carolina Constitution as political systems to enable the student to make interpreted by Leandro, the right of each child informed choices with regard to issues that to … a sound basic education … is not to be affect the student personally or affect the conditioned upon age, but rather upon the need student’s community, state, and nation; (3) of the particular child, including, if necessary, sufficient academic and vocational skills to early childhood pre-kindergarten education enable the student to successfully engage in prior to reaching the age of five and prior to post-secondary education or vocational entering five-year[-]old kindergarten.219 training; and (4) sufficient academic and For evidence, the plaintiffs presented the national vocational skills to enable the student to research on the school readiness gaps experienced by compete on an equal basis with others in disadvantaged pre-kindergarteners and the further formal education or gainful educational benefits of high quality pre- employment in contemporary society.209 kindergarten.220 They introduced a publication of the The court remanded the case for trial on the North Carolina Department of Human Resources that plaintiffs’ claim that the state’s education funding summarized this research.221 Plaintiffs’ early system failed to provide a sound basic education to childhood expert, Dr. Ellen Peisner-Feinberg of the children in the low-income school districts.210 This Frank Porter Graham Child Development Center remand proceeding is known as Hoke County Board (FPG) at the University of North Carolina, testified of Education v. State.211 about the findings of a major national study Applying the Leandro standard for a sound basic conducted by FPG, the Carolina Abecedarian education, the Hoke trial court upheld the Project.222 She described how this project provided constitutionality of the state education system in an intensive pre-kindergarten program to low-income almost all regards, finding that the state’s curriculum children and compared them over a number of years guidelines, when properly implemented, exceeded the to a similar group of children who did not receive Leandro standards for an adequate education; the early intervention.223 According to Dr. Peisner- state’s standards for teacher certification were valid Feinberg, the Abecedarian Project found that after and sufficient to ensure qualified teaching; the school three years in school, low-income children who accountability program was appropriate for received intensive pre-kindergarten intervention measuring and improving the academic performance scored significantly higher on standardized tests in of public school children; and the state’s assessments reading and math than those who did not participate provided adequate evidence of whether students were in an early intervention program; furthermore, those receiving a sound basic education.212 advantages persisted through ten years of school.224 When it came to at-risk children, however, the Dr. Peisner-Feinberg testified that the most recent trial court came to different conclusions.213 The court findings of the study trace participants through age found that those students were not provided with a twenty-one and report significant long-term effects sound basic education because they did not have on cognitive performance as measured on access to the same resources as their peers in more achievement tests and IQ scores.225 She also testified affluent districts.214 The trial court ordered the state about FPG’s research showing that the quality of to ensure that such students be given competent public school pre-kindergarten programs in North teachers “with high expectations,” sufficient funding, Carolina was generally good and produced school and early intervention.215 readiness gains for children.226 However, public The trial court raised, on its own motion, the school programs serve only a fraction of the rights of pre-kindergarteners and whether the disadvantaged children who need pre-kindergarten.227 constitutional rights enumerated in Leandro I Dr. Peisner-Feinberg testified that many community extended to at-risk children before they reach the age childcare centers do not provide the high quality of five.216 The North Carolina Constitution does not program required for gains in young children’s set an age limitation for public education, but it cognitive development.228 explicitly requires that “the General Assembly shall Vol. 27 ♦ No. 1 ♦ Spring 2007