Back to court on pre-k

by John Hood, John Locke Foundation and NC SPIN panelist, October 15, 2013.

The North Carolina Supreme Court has never ruled that the state constitution requires the delivery of early childhood services to all preschoolers, or even to all low-income preschoolers.

I know that may not be what you’ve read in news stories covering funding disputes about North Carolina Pre-K and Smart Start. But my statement is correct. You can check behind me by reading the relevant Leandro decisions at the website of theAdministrative Office of the Courts, including last year’s unanimous Court of Appeals ruling on the funding dispute. You can also ask the Supreme Court justices who wrote the original decisions in the long-running Leandro school-funding lawsuit what they meant.

I’ve done both. There is no constitutional right to preschool. No such provision was written into the current state constitution or added by constitutional referendum.

Because the funding dispute has now reached the Supreme Court again, with oral arguments scheduled for today, the faulty notion that taxpayer-funded preschool is constitutionally obligatory has again been propagated by the usual suspects. They’d dearly love the Court to order state government to spend hundreds of millions of dollars more on preschool, along with a commensurate tax increase. That was the original purpose of the Leandro lawsuit — to use judicial means to compel the General Assembly to raise education spending and taxes.

The plaintiffs lost that original claim. In 1997, the Supreme Court ruled that the state constitution does not require any particular level of funding for public education, or equivalent funding across districts, because such matters are properly left to elected representatives to determine. Instead, the Court ruled that several provisions of the state constitution created a civil right for all North Carolina children to receive the opportunity for “a sound, basic education.” The originalLeandro decision, in other words, was an attempt to balance the judicial role in interpreting and enforcing constitutional provisions and the legislative role in formulating public policy.

However, as the Leandro litigation continued, the judiciary also ruled that because some children bear the burden of special educational disadvantages — extreme poverty, for example, or parental neglect — state government is required by its constitution to provide remedies to give the children an opportunity for educational success. Then-Gov. Mike Easley and other elected officials opted to present preschool intervention to the trial court as a Leandro remedy. Regardless of whether you think that was a good or sufficient remedy, it is the only remedy that has been presented to the trial court.

The current legal dispute involves the shape and scope of that remedy. In 2011, the Republican-led General Assembly changed the funding and eligibility for North Carolina Pre-K. Some of their changes were unintended and later rescinded. Others were intentional, with lawmakers arguing that they were focusing the program on the neediest children rather than keeping eligibility broad and thus putting some of the neediest kids on the waiting list.

Then-Gov. Bev Perdue, Democratic lawmakers, and spending lobbies objected. Some argue that the state constitution requires expansive funding and eligibility for preschool, which is incorrect. Others argue, more plausibly, that because the state has never presented alternative Leandro remedies, legislative changes to North Carolina Pre-K require judicial oversight and approval.

Regardless of how the North Carolina Supreme Court rules in the latest dispute, the elected officials who now control the state’s legislative and executive branches should go before Wake County Superior Court Judge Howdy Manning and explain their preferred Leandro remedies, including early intervention for truly at-risk preschoolers, additional assistance for at-risk primary students, broader educational options for parents of low-income or disabled students, and more-accurate assessments of student learning so that teachers, parents, and policymakers can respond more effectively to their needs.

As long as they explain the rationale and empirical basis for their remedies, Manning cannot simply reject them due to personal preference. He is a judge overseeing litigation, not a policymaker. Until judicial oversight ceases altogether — a worthy end to pursue on its own, but separately — that’s the path to follow so that we don’t keep dragging the case up and down the docket.