Establishing a Right to Early Education: Part Four of a Four-Part Series

This series began three months ago with a recognition that the defeat of Build Back Better means that much of the energy behind expanding access to early education has now shifted to individual states. It also began with an acknowledgment that the current early education system in America is not working well, and the situation has only worsened since the pandemic.

Part One of the series also pointed out international examples of countries that have stepped up to make ECE a right. As of 2019, seven EU member states as well as Norway guarantee a place in publicly funded ECE for each child from an early age, ranging from six to eighteen months. And America’s neighbor to the north, Canada, has recently invested significant sums of money to build a nationwide system of child care and ensure all families have access to high-quality, affordable early education.

Part Two explained how some state advocates responded to the 1973 Supreme Court decision that the federal constitution does not establish a right to education by taking advantage of the fact that all 50 states have constitutions that guarantee some sort of right to education. In New Jersey, litigation was filed in the early 1980s arguing that the state’s method of funding education was unconstitutional because it resulted in significant expenditure disparities between poor urban and wealthy suburban school districts.

Years of litigation led to the 1997 Abbott IV and 1998 Abbott V rulings that required a set of remedial measures for the poorer districts. One of the remedial measures involved requiring that all three- and four-year-olds in the highest poverty school districts have access to a high-quality pre-K education, making New Jersey the first state to mandate early education starting at age three for children at risk of entering kindergarten behind their more affluent peers. New Jersey now ranks second among all states in pre-K spending, averaging over $16,000 per child and serving over 51,000 children in 180 districts across the state in full-day, school-year programs that are available for two years starting at age three. “It's sort of embedded now in the whole notion of public education, which is you go to preschool, wherever you are, and the state has an obligation to make it happen,” says David Sciarra, head of the Education Law Center for over two decades and an integral part of the Abbott litigation

Almost twenty years after the New Jersey litigation was filed, Florida attempted to expand early education access by altering its state constitution rather than relying on litigation that depended on constitutional claims. In November 2002, Florida voters voted by a 59 to 41 percent margin to approve a constitutional amendment making their state the first in the nation to grant four-year-olds a state constitutional right to pre-K. Despite the fact that Florida four-year-olds have enjoyed a state constitutional right to high-quality pre-K for over twenty years now, reality has fallen short of the lofty goals announced upon the amendment’s passage. The good news is that sixty-seven percent of the state’s four-year-olds were enrolled in state pre-K during the 2022-2023 school year, making Florida second in the nation when it comes to pre-K access for four-year-olds. However, the state only spends about $3,100 per child, making Florida 42nd out of 46 states when it comes to per pupil pre-K spending. Currently, Florida pre-K meets four out of ten quality benchmarks as measured by NIEER’s quality standards checklist and typically only operates for three to four hours per day.

Finally, Part 3 highlighted how both California and New Mexico had made significant progress in ensuring a right to ECE. In early 2022, New Mexico Governor Lujan Grisham announced the expansion of free child care for families earning up to 400 percent of the federal poverty level (FPL) starting in May. The policy change, originally intended to last for just over a year but made permanent in May 2023, made New Mexico the first state in the nation to offer no-cost child care over such a broad income range. “It’s free, no more co-pays, no more waiting,” said Lujan Grisham. “This is the road to a universal child-care system.” The governor’s announcement meant that a family of four earning up to $110,000 now qualified for no-cost care. In a relatively poor state with a median household income of about $51,200 at the time, this meant that a majority of state residents now qualified for free child care. The money to fund such a dramatic expansion of no-cost care past the expiration of federal relief funds was guaranteed after the November 2022 elections when 70 percent of voters approved a constitutional amendment to direct an additional 1.25 percent of revenue from the Land Grant Permanent Fund to early education each year. The amendment’s passage meant that about $127 million additional funds per year would be directed to early education.

In California, transformational legislative wins last summer have brought the state closer to realizing a system of no-cost early education. Starting October 2023, families earning less than 75 percent of state median income don’t owe any child care fees at all and any outstanding fees are waived. The deal also makes clear that no family qualifying for subsidized care will have to pay more than one percent of their income in fees, with a maximum fee of about $61 per month.

The promises secured over the summer related to the rates paid to providers of subsidized care are no less significant. As part of a contract reached between the state and Child Care Providers United, a statewide union that represents over 40,000 family child care providers, the state pledged $600 million over two years for one-time rate increases. Even more important than this one-time funding increase, the state committed to a timeline for reforming how the state pays for subsidized care. The new agreement calls for a new and improved reimbursement model to be negotiated and then submitted for federal approval, likely resulting in a significant pay raise for providers who have been struggling to break even.

As this series concludes, a few questions linger for me:

How can issues of workforce compensation and support become an integral part of discussions focused on expanding the right to ECE?

It’s now common knowledge that the country is facing a shortage of early educators, fueled in part by the low average wages that persist. As states continue to expand access to ECE, an ever greater supply of teachers will be needed. “As long as educators do not enjoy a living wage, supportive work environments and professional support, a pipeline of new ECE teachers will continue to be deterred and existing educators will leave the field. Supply will never be able to meet the demand for early care and education expansion without a professionally compensated workforce” said Brandy Jones Lawrence, senior analyst at the Center for the Study of Child Care Employment, via email. The New Mexico Legislature recently provided $5 million to provide supplemental income to teachers of infants and toddlers as part of a three-year pilot project. The state’s current focus on establishing wage and career ladders for the ECE workforce can serve as an example to other states looking to recruit and retain early educators while simultaneously expanding access.

What makes constitutional amendments successful?

Both Florida and New Mexico were successful in passing constitutional amendments. But whereas the Florida amendment was focused on ensuring guaranteed access to pre-K, the more recent New Mexico amendment focused on ensuring guaranteed funding. Time will tell how successful New Mexico’s amendment ultimately is when it comes to long term funding and the higher rates of access that should accompany higher funding levels. What’s clear from the Florida example is that enshrining a right to pre-K in the state constitution is just the first step of many others, with perhaps the most important step being applying continual pressure to state policymakers to ensure higher levels of funding.

Should the ultimate goal for state policymakers and advocates be no-cost ECE or is low-cost enough?

The stories of New Mexico and California offer encouraging signs of progress in ensuring access to early education, but they also beg the question of where to draw the line between who gets free care and who has to pay. The Build Back Better Act would have followed California’s lead in making care free for families with incomes below 75 percent of state median income. At the same time, New Mexico uses an income of 400 percent FPL and Vermont has settled on 175 percent FPL as its threshold for qualifying for no-cost child care. What eligibility threshold makes the most sense? And should the ultimate policy goal be treating early education as a public good and offering free care for all or is simply offering affordable care an ambitious enough goal?

Elliot Haspel has argued that the field needs a coherent theory for why people should or should not pay for early education. Haspel points out the potential negatives of states being all-over-the-map when it comes to providing free early education, saying, “This isn’t a place where we want a thousand flowers to bloom any more than we want some states choosing to charge various amounts for fire service or middle school. We need a clear answer that is grounded in philosophically sound reasoning.” In an ideal world we would think of early education as a public good and fund it accordingly so that everyone who wants access could have access. Given the political and budgetary realities facing many states, for now we’ll likely have to settle for piece-meal progress as individual states slowly expand the right to early education to encompass a growing number of children and families. It makes sense to me to prioritize expanding free early education to families with low incomes in an effort to ultimately provide it all to citizens regardless of income.

What is the proper federal role in expanding access to early education?

The defeat of Build Back Better closed the door in the short term on chances to significantly expand access to early education on a national level. And with Senate Republicans eyeing pickup opportunities in at least six states, it’s unlikely that President Biden will be dealing with a Congress under unified Democratic control even if he’s able to win reelection. Still, it’s important for advocates of expanded access to early education to plan ahead for the day when significant legislation on the scale of Build Back Better is once again a possibility. When that day ultimately comes, should Democrats embrace a significant, bold investment in universal access to early education or a more measured and less costly approach that targets families with low incomes?