Role of Research and Experts in Litigation

The role of research and expert testimony from researchers is already substantial and expected to grow in school finance cases that seek an adequate and equitable education for all children. In the area of preschool education, this research dovetails especially well with emerging legal theory about educational adequacy. In New Jersey, Montana, Kansas and Wyoming, for example, attorneys have successfully argued that a constitutionally adequate education is one that, in part, enables all students to meet the standards set forth in the state’s curriculum guidelines. This constitutional standard opens the door for a strong legal argument in favor of including preschool in the state’s education funding formula, since the scientific evidence shows preschool helps children enter kindergarten better prepared for the tasks they will face.

Moreover, since the learning standards require year-to-year progress throughout the K-12 years, it is essential that children start kindergarten with the skills they need to succeed. The body of research on early childhood education shows that economically disadvantaged students not only start school far behind their more affluent peers, but also tend to stay behind, without adequate intervention. The research also shows that preschool can serve as that intervention, helping lower-income children start school on an equal footing with their more advantaged peers.

Thus, lawyers representing low- and middle-income children in a school funding case can use the research and call early education experts to support a claim for publicly-funded preschool as a way to equalize opportunities for their clients. Attorneys must carefully construct their case to establish the following facts:

1. High quality preschool education can help eradicate the early achievement gap and contribute to school success for economically disadvantaged students, while increasing productivity and decreasing long-term costs to society.

Resources:

Dr. Barnett’s power point presentation in Hancock v. Driscoll on the research on the benefits of high quality preschool. This presentation accompanied Dr. Barnett’s testimony in the Massachusetts trial, and honed in on the three major studies demonstrating the benefits of high quality preschool. The trial judge in Hancock cited Dr. Barnett’s testimony when she recommended the state fund preschool for all at-risk 3- and 4-year-olds.

Investing in Urban Early Childhood Education. Steve Barnett and Ellen C. Frede (Nov. 1997). This report, introduced by plaintiffs during the hearing on remedy in Abbott V, highlights the research on high quality early education programs and makes specific policy recommendations for implementation of a preschool program in New Jersey’s low-income school districts.

2. Children with low socioeconomic status and those who do not speak English as their primary language start kindergarten significantly behind their more advantaged peers in cognitive and developmental skills. National studies support this proposition, but state courts will find it far more compelling if shown disparities in school readiness between children in different districts within the same state. National or local experts can be called upon to do such local studies, as was the case in both Massachusetts and New Jersey.

Resources

Graphs prepared by Dr. Barnett and introduced in evidence at the trial in Hancock v. Driscoll. These graphs compare test scores on the Peabody Picture Vocabulary Test (PPVT), a test generally accepted as a predictor of early school success, for incoming kindergarten students in four low-wealth districts and two wealthy school districts in Massachusetts. The test scores showed that children in the low-income districts start school from one year to more than two and a half years behind children in the more affluent districts. The graphs also show that children in the affluent school districts are far more likely to attend a preschool than those in less affluent ones.

Early Childhood Education Needs in Low Income Communities: Final Report of An Assessment of Young Children’s Education Needs and Community Capacity in New Jersey’s Abbott Districts. Steve Barnett, Julie Tarr and Ellen Frede, Center for Early Education at Rutgers (May 1999). This report, submitted to the New Jersey Supreme Court in plaintiffs’ enforcement motion in Abbott VI, provides an assessment of the skill-level of incoming kindergartners in New Jersey’s Abbott districts, based on two scientific instruments, the Developmental and Communication scales of the Developmental Profile II (DP-II) and the Early Screening Inventory test (ESI). The results show that, on average, children in the low-income districts arrived at school seven months behind in their academic age and eighteen months behind in communication abilities. The gap was even wider for children who did not speak English as their primary language. Those children started a full year behind in academics and almost two years behind in communication skills. This report also includes a survey of families with 3- and 4-year-old children in the Abbott districts, with data on the developmental level of preschoolers, their current care and education arrangements, as well as their needs in the areas of health, nutrition and safety.

There are additional instruments available to assess at-risk children’s readiness for school in comparison to more advantaged children. For example, it may be possible to use some of the instruments in the Early Childhood Longitudinal Study, Kindergarten Class of 1999 (ECLS-K), an on-going, longitudinal study that, among other things, provides a nationally normed tool to assess the status of children’s skills as they enter kindergarten. Additionally, NIEER's website provides an early childhood assessment database.

Inequality at the Starting Gate: Social background differences in
achievement as children begin school. Economic Policy Institute (2002). Using data from the U.S. Department of Education’s Early Childhood Longitudinal Study Kindergarten Cohort (ECLS-K), the report explores the relationship between children’s cognitive ability and social background (i.e., race, ethnicity and socioeconomic status). Differences in achievement between disadvantaged children and their more advantaged peers are shown to begin even before kindergarten. See also P. Carneiro & Heckman, J. (2002). Human Capital Policy. NBER Working Paper 9495. Cambridge, MA: NBER.

4. The quality of the preschool and child care programs available in the school district as measured against accepted standards for high quality preschool education. Many children attend programs that do not meet the standards for high quality preschool education. Those programs, both private and public, need additional resources, support and regulation in order to meet young children’s educational needs. This information can be particularly critical as courts shape the nature of preschool as a remedy. In some states, public schools do not have the space to provide additional preschool classes. Surveys also show that parents need or want neighborhood-based programs, for convenience, cultural preferences or extended hours. Some parents also say they prefer to have three-year-olds in a smaller, less institutional setting than the public schools. Thus, it is possible a court may order that existing private and public programs be included in any preschool remedy, and need specific information on what it would take to ensure quality programming in such settings. In New Jersey, for example, the court in Abbott VI acknowledged the state’s need to use community-based centers to provide preschool, but also ordered that programs meet research-based standards of high-quality preschool education. That finding, in turn, required state officials to come up with the funding to upgrade both the quality of programs and staff in those centers.

Resources

Early Care and Education in Massachusetts Public School Preschool Classrooms. Wellesley Centers for Women and Abt Associates, Inc. (2002). This report by Dr. Nancy Marshall of Wellesley College and colleagues, funded by the Massachusetts Department of Education, was introduced into evidence by plaintiffs in Hancock v. Driscoll. The study assessed the quality of Massachusetts’ public preschool classrooms using the Early Childhood Environment Rating Scale (ECERS), a standardized measure of preschool classroom structure and process. The study concluded that 70% of the public classrooms met a “good” benchmark on a total ECERS score, with even higher scores on two important subscales: language-reasoning (74%) and social interactions (87%). Of particular note, the study found that the quality of the public preschool programs was uniformly good and did not vary with the socioeconomic status of the students served. An earlier study by the same group of researchers found that only 45% of private child care programs met a “good” rating on the ECERS scale. The Cost and Quality of Full Day, Year-round Early Care and Education in Massachusetts: Preschool Classrooms. Wellesley Centers for Women and Abt Associates Inc. (2001). That study also showed higher ECERS scores for programs serving moderate to high-income families.

Fragile Lives, Shattered Dreams: A Report on Implementation of Preschool Education in New Jersey’s Abbott Districts. Steve Barnett, Julie E. Tarr, Cindy Esposito Lamy and Ellen C. Frede, Center for Early Education at Rutgers. (2001). This report, submitted to the New Jersey Supreme Court in Abbott VIII, assesses the quality of education offered to preschool children in three settings within the low-income districts: public schools, Head Start classrooms and community child care centers. The researchers used the Early Childhood Environment Rating Scale (ECERS), a standardized measure of classroom structure and process. The report concludes the vast majority of preschool classrooms did not provide children with experiences that would lead to large gains in language and cognitive abilities. Inadequate facilities and materials, coupled with inadequate teacher support, preparation and professional development, precluded the provision of quality programs. The report makes policy recommendations to improve the Abbott preschool program, several of which were adopted by the Supreme Court in the Abbott VIII decision or by New Jersey’s department of education under Governor James McGreevey.

Early Childhood Education Needs in Low Income Communities: Final Report of An Assessment of Young Children’s Education Needs and Community Capacity in New Jersey’s Abbot Districts. Steve Barnett, Julie Tarr and Ellen Frede, Center for Early Education at Rutgers. (May 1999). This report, submitted to the New Jersey Supreme Court in Abbott VI, contains results of direct observations of child care centers using the Classroom Practice Inventory (CPI), a research-based measure of the quality of preschool practices. The report also contains results of a survey on quality and capacity in licensed centers. The report concludes the quality of programming was “far too low in most community programs to meet the intensive educational and developmental needs of children in the Abbott districts.”