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With increasing frequency, plaintiffs in school finance litigation
are including a claim for state-funded preschool as a part of their
overall effort to reform the state’s education funding system. These
claims are supported by research showing that high quality preschool
helps all children acquire the skills and knowledge they need to succeed
in school. Such claims are generally grounded in education and
equal protection rights granted under state constitutions. The highest
courts in four states - New Jersey, Arkansas, North Carolina, and Massachusetts
- have issued a decision on the state’s obligation to fund preschool
education. In several other states, including Nebraska, Kentucky,
Georgia and Wyoming, a claim for state-funded preschool has been included
in a pending school finance case.
Ideally, public education and preschool advocates prefer to reach a
consensus with the legislature regarding state support for education
programs, without ever resorting to the courts, and often this is the
case. For example, since 1998, Oklahoma has expanded funding for its
universal preschool program so that in 2003-2004, it served sixty-four
percent of all four-year-olds in the state - the highest percentage
of preschoolers in the country. In other states as well, notably, West
Virginia, the legislature has significantly increased funding for preschool
in recent years without the threat of litigation.
School funding cases arise in states in which the legislature has refused
to rectify the causes of failing schools, in particular inadequate and
inequitable education finance, and parents and educators are left with
no alternative but to resort to the courts for a remedy. Notably,
in two states with a pending school finance case that includes a claim
for preschool funding, Kentucky and Georgia, the legislature funds a
preschool program. In fact, Georgia’s program alleges to be “universal” for
all four-year-olds in the state. However, in neither state does the
legislature support the program with enough funding to serve all children
who need and want preschool, and not all eligible children are served.
A claim for preschool within school funding litigation will not exist
in a vacuum, but will most likely arise in the context of an existing
preschool advocacy community. Most states have long-standing formal
and informal networks of child advocacy and community childcare providers
that have advocated for increased state funding and improved quality
standards for preschool. In this sense, litigation is just one part
of a broader strategy that can both support and be supported by the
state’s existing preschool advocacy effort.
The New Jersey Supreme
Court’s 1998 decision in Abbott
v. Burke1 was at the forefront
of the trend to include a claim for preschool
in school funding litigation. The Abbott ruling
required the state to implement a high quality
preschool program for all three- and four-year-old
children residing in the state’s highest poverty
school districts. In contrast, in Lake
View v. Huckabee (2002),2 the
Arkansas Supreme Court declined to direct the
state to fund a preschool program and held instead
that the decision to fund such a program was
within the exclusive domain of the legislature.
In Hoke County Board of Educ. v. State (2004),3 the
North Carolina Supreme Court recognized the state’s
constitutional duty to prepare disadvantaged
preschoolers to succeed in school, yet stopped
short of ordering state funding for preschool
as a specific remedy, at least at this juncture
in the state’s school finance litigation. More
recently, in Hancock v. Driscoll (2005),4 the
Supreme Judicial Court of Massachusetts (SJC)
upheld the constitutionality state’s school funding
system and, in process, rejected the trial court’s
recommendation directing the state to fund a
high quality preschool program for all children
at risk for school failure.
The Arkansas Supreme Court decision in Lake
View, the North Carolina Supreme Court decision
in Hoke County and the Massachusetts SJC
decision in Hancock each reversed a trial
court ruling directing the state to fund preschool
education. Significantly, in each of these states,
a strong trial court directive helped raise the
profile of the preschool issue and aided advocates
and policy makers in their efforts to secure
preschool programs and funding before the state
legislature.
From these early decisions on a state’s obligation
to fund preschool education, it is possible to
glean factors that may shape the arguments of plaintiffs
and the reasoning of courts. First, a state’s
legal precedent relating to separation of powers
and school funding will influence the outcome of
a preschool claim. All state courts express a reluctance
to decide education issues, recognizing that state
constitutions and statutes empower the legislative
and executive branches to determine education policy. Some
courts, including Pennsylvania and Illinois, have
ruled that school finance issues are within the
exclusive province of the legislature and are non-justiciable
by the courts. It is unlikely courts in these
states will consider a claim for preschool funding.
Even in states in which courts have exercised authority
to decide school finance issues, some courts may
feel constrained by the separation of powers doctrine
to limit their ruling to a declaration of unconstitutionality,
without issuing a specific remedy. This was
the approach taken by the Arkansas Supreme Court
in Lake View.
Second, a court’s willingness to order a state
to fund preschool education will also depend on
the stage of the school funding litigation. Even
if a court is willing to decide a school finance
dispute, separation of powers considerations will
most likely prevent a court from ordering the state
to implement a specific educational program, including
preschool, without first giving the legislative
and executive branch the opportunity to correct
deficiencies in the school funding system. The
cases in New Jersey, Arkansas, North Carolina and
Massachusetts were in the remedy phase, with the
courts having previously declared the school finance
system unconstitutional. In each of these cases,
plaintiffs had returned to court alleging the state
had not cured the constitutional violations and
sought state funding for preschool as a part of
the remedy for the state’s failure to act. In
New Jersey’s Abbott V case, the Supreme
Court had declared the school finance system unconstitutional
in three previous rulings before issuing the preschool
mandate. In each of these prior decisions, the
Court had directed the legislature to remedy the
constitutional violations, and had also suggested
preschool should be a component of any legislative
remedy. The Court issued its preschool directive
only after the legislature had repeatedly failed
to take appropriate steps to implement an equitable
and adequate school finance system. In the Hoke
County decision, the North Carolina Supreme
Court stated that it would not direct the state
to fund preschool “[a]t this juncture”5 in
the litigation, indicating the separation of powers
doctrine required that it first grant the other
branches of government the opportunity to address
the needs of preschoolers. In the Driscoll case
in Massachusetts, the Supreme Judicial Court found
that the state had in fact cured the constitutional
deficiencies in the school finance system, and
was therefore unwilling to order any remedy.
Third, the language of the education clause in
the state constitution will influence a court’s
ruling on preschool. The education clause in the
Arkansas constitution states: "… the General
Assembly and/or public school districts may spend
public funds for the education of persons … under
six (6) years of age as may be provided by law,
and no other interpretation shall be given to it." The
Arkansas Supreme Court in Lake View interpreted
this clause, in particular the phrase “no other
interpretation shall be given to it,” as granting
sole authority to local school districts and the
legislative branch to decide to fund a preschool
program.6 On the other hand,
in Abbott V, the New Jersey Supreme Court
was not deterred by constitutional language requiring
the state to fund a public education for children “between
the ages five to eighteen.” Instead, it grounded
its preschool mandate in a combination of state
statute, public policy and constitutional interpretation,
thereby avoiding an analysis of the language regarding
age.7 The education clause in the
North Carolina constitution does not contain an
age limitation, although it does grant the legislature
authority to establish the age for school attendance: “The
General Assembly shall provide that every child
of appropriate age … shall attend the public schools.” By
statute, the North Carolina legislature has determined
that five-year-olds may attend public schools.
The Court in Hoke County found the state
has a constitutional duty to address the needs
of at-risk preschoolers before they start school,
even though the legislature has exclusive authority
to determine the appropriate age for school attendance.
Fourth, a court’s interpretation of the scope
and nature of the constitutional right to an education
will influence plaintiff’s framing of the preschool
issue. For example, if the court has equated
a constitutionally adequate education with the
opportunity to achieve the state learning and curriculum
standards, as the courts in New Jersey and North
Carolina have, plaintiffs can argue the state has
a constitutional obligation to fund preschool in
order to prepare all children to achieve the state
standards. However, if the courts have taken an
equal protection analysis, then plaintiffs must
focus on the disparities in school readiness between
at-risk children and their wealthier peers, arguing
that state-funded preschool must be offered to
make up for these inequities to bring the children
to a level playing field.
Fifth, the nature and extent of the trial court
record on preschool will impact the ruling. In
New Jersey and Massachusetts, plaintiffs presented
expert testimony on the research demonstrating
the individual and societal benefits of high quality
preschool for disadvantaged children. They established
a record showing that children in low-wealth school
districts begin school far behind their more advantaged
peers, and that high quality preschool programs
can help close the early achievement gap and contribute
to success in school and beyond. The New Jersey
Supreme Court in Abbott V and the Massachusetts
trial court in Hancock cited this research
evidence to support their rulings in favor of state-funded
preschool. While the Massachusetts Supreme
Judicial Court overturned the trial court’s finding
that the school funding system was unconstitutional
and, in the process, rejected the lower court’s
recommended remedies, including state funding for
preschool, the trial court’s detailed factual findings
on preschool remain an example of the manner in
which plaintiffs’ proofs at trial can influence
a favorable ruling.
The plaintiffs in Arkansas and North Carolina,
on the other hand, did not present expert witnesses
on early childhood education and did not introduce
evidence on the extensive body of research showing
such programs help redress the early learning gap
experienced by disadvantaged students. The
lack of evidence on the benefits of high quality
preschool may not have been a factor in the Arkansas
Supreme Court’s ruling in Lake View, since
the Court rested its decision on a strict interpretation
of the language in the education clause, but it
may have been a factor in the North Carolina Supreme
Court’s decision in Hoke County. The
Court in Hoke County specifically found
the record supported a finding of the state’s constitutional
obligation to address the educational needs of
disadvantaged preschoolers, but provided "inadequate
foundational support"8 for preschool
as an effective remedy.
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