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

On December 19, 2021, with the fate of President Biden’s signature $1.7 trillion Build Back Better legislation very much in question, Senator Joe Manchin appeared on Fox News Sunday to share his latest thoughts on the bill’s progress. Instead, he delivered a death blow to the administration’s highest domestic priority, declaring that, “I cannot vote to continue with this piece of legislation. I just can’t.”

Those remarks from the senator from West Virginia signaled the end to hopes of passing a bill so ambitious that some described it as a “21st century New Deal.” A key part of the legislation was its plan for a $390 billion investment in child care and pre-K designed to drastically reduce child care costs for most Americans while providing free pre-K for all three- and four-year-olds. Senator Manchin’s unexpected Sunday morning comments ended the hopes of early education advocates who had worked for years to secure the kind of federal funding necessary to establish a right to child care and pre-K for young children.

With the defeat of Build Back Better, much of the energy behind establishing such a right has now shifted to individual states. It’s not unusual to hear advocates call for a "right to child care" for young children or a “right to pre-K” for all three- and four-year-olds. This four-part blog series, which will be published monthly, will focus on how states are using different strategies in an effort to establish a right to early education for young children. Part Two of the series will examine how states, such as Florida and New Jersey, have used their constitutions to extend early education access to more children. Part Three will highlight states, such as New Mexico and California, who have recently made substantial state investments to provide free early education for most, if not all, young children. Finally, Part Four will wrap up the series and highlight lessons learned from different states.

Defining exactly what it meant by a “right to ECE” is not as easy as one might imagine. For instance, after voters in New Mexico approved a constitutional amendment to provide a steady stream of $150 million a year for early childhood programs, some writers declared that the state constitution “now enshrines a right to education for children ages zero to five” while others insisted that the state’s voters had “made child care a constitutional right.” Others disagreed, noting that the amendment establishes a dedicated funding source for early education, but stops short of guaranteeing access for all young children.

While the Supreme Court ruled in 1973 that the federal constitution does not establish a right to education, all 50 states have constitutions that guarantee some sort of right to education, though they differ in their specifics. Generally, these education guarantees are silent about exactly who is entitled to education. Only a handful of state constitutions specify exact ages when discussing the right to education and those that do, such as Arkansas and Colorado, generally don’t include children younger than kindergarten age.

The push to establish a right to early education is similar to arguments that ECE is, and should be treated as, a public good. A precise definition of a public good can be elusive, but a few typical examples of public goods include national defense, infrastructure, and the environment. Lawrence and Sharrock, writing in support of establishing ECE as a public good, define it as goods and services that 1) benefit society overall, 2) are made available to all who can utilize it, and 3) are often, but not always, supplied by government institutions, typically through taxation. When imagining a future in which ECE is treated as a public good in the United States, they envision a “national program that guarantees all families have access to a continuum of ECE services in the first five years of a child’s life,” with universal, publicly funded pre-K for three- and four-year-olds that would be guaranteed in the same manner that K-12 education currently is. It’s important to remember that ECE is voluntary, so no family would be forced to enroll their child, but families who choose to do so would be guaranteed a spot at a price that’s affordable (for some families that would likely mean no cost at all).

The idea of a right to early education is not new. In 1971, the House and Senate passed the Comprehensive Child Development Act which would have created federally funded child care centers across the country “as a matter of right to all children regardless of economic, social, and family background.” The bill envisioned early education being provided for free to the poorest Americans with others paying on a sliding scale, which the sponsor, Senator Walter Mondale, saw as crucial so that the program would avoid being viewed “as a poor person’s program.”

Most readers will know how this story ends: with hopes being dashed as President Nixon, in a veto message drafted by White House advisor Pat Buchanan, rejected the bill, stating that it “would commit the vast moral authority of the National Government to the side of communal approaches to child rearing over and against the family-centered approach.” Almost exactly 50 years later, similar arguments were used by some to oppose the child care and pre-K provisions contained in the Build Back Better legislation. And, on the Senate floor, Mitch McConnell warned that these provisions amounted to a “toddler takeover” that would destroy family finances.

What’s uncontroversial at this point is that the current early education system in America is not working well, and the situation has only worsened since the pandemic. A report from the Department of Treasury lays out some of the sobering facts: a 2018-2019 survey found that the parents of two million children under age five “had to quit a job, not take a job, or greatly change their job because of problems with child care;” fewer than 20 percent of children eligible for the Child Care and Development Fund, the largest federal assistance program for families with low incomes, actually receive funding; early educators, who are overwhelmingly women, are generally poorly paid and struggle to stay afloat financially. It’s difficult to go a full week without coming across an article from a major news outlet highlighting the widespread shortage of early educators. And, while enrollment in state-funded pre-K has been steadily rising over the last twenty years, most children still cannot enroll in a publicly-funded early childhood education program and fewer than one in five can access a public program at age three.

The good news is that it doesn’t have to be this way, a fact made clear by a number of other nations. Generally, European countries have made the most progress in enshrining a right to early education. As of 2019, seven EU member states (Denmark, Germany, Estonia, Latvia, Slovenia, Finland and Sweden) as well as Norway guarantee a place in publicly funded ECE for each child from an early age, ranging from six to eighteen months. Meanwhile, a legal entitlement to early education has been either introduced or extended in the Czech Republic, Poland, and Portugal.

In response to low birth rates, Germany enacted a law in 2013 guaranteeing the legal right to a child care spot for every child over the age of one (the right had previously only applied to children aged three or older). 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 of a national effort to provide citizens with child care for about $10 CAD (about $7.30 USD) by 2026. While this blog series will focus on efforts within the United States to establish a right to ECE, international examples are useful as a reminder that a better system for young children and families is possible.