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

In 1973, a closely divided Supreme Court ruled in San Antonio Independent School District v. Rodriguez that the federal constitution does not establish a right to education. Four years later, Justice William Brennan, one of the four dissenting justices in the Rodriguez case, published an article in the Harvard Law Review urging lawyers to instead look to their state supreme courts to litigate their constitutional claims.

Education advocates from across the country soon heeded Justice Brennan’s advice, taking advantage of the fact that all 50 states have constitutions that guarantee some sort of right to education, though they differ in their specifics. Seeking to undo the impact of Rodriguez, advocates filed a flood of cases on a state-by-state basis that explicitly relied on state constitutional law. The outcomes in each state varied widely based on both the ideological makeup of state courts and how much fidelity state legislatures displayed in implementing the subsequent judicial decisions.

In New Jersey, a complaint was filed in 1981 in the case of Abbott v. Burke, 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. “A huge record was developed that basically showed what kids got when they went to underfunded schools in Newark, Camden, Paterson, Jersey City, and other cities compared to what kids got when they went to well-funded suburban schools,” says David Sciarra, head of the Education Law Center for over two decades and an integral part of the Abbott litigation. A series of decisions by the New Jersey Supreme Court starting in 1985 with Abbott I have led some experts to regard the Abbott cases as the most important education litigation for disadvantaged students since the Brown decision in 1954.

In Abbott II in 1990, the New Jersey Supreme Court upheld a ruling that the state’s school funding law was unconstitutional when applied to children in 28 poorer school districts (later expanded to 31). 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. The court ruled that such remedial measures must be implemented to ensure that children from the poorest areas “receive the educational entitlements that the Constitution guarantees them.” Specifically, the Court noted:

“This Court is convinced that pre-school for three- and four-year olds will have a significant and substantial positive impact on academic achievement in both early and later school years. As the experts described, the long-term benefits amply justify this investment. Also, the evidence strongly supports the conclusion that, in the poor urban school districts, the earlier children start pre-school, the better prepared they are to face the challenges of kindergarten and first grade. It is this year-to-year improvement that is a critical condition for the attainment of a thorough and efficient education once a child enters regular public school.”

While the Court described pre-K as a “critical” part of a “thorough and efficient” education (taking language directly from the state Constitution), it fell short of explicitly characterizing pre-K as a constitutional right. Still, the Abbott decisions were an important force in shaping many of the features found today in the state’s pre-K programs. 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. The program currently meets eight out of ten quality benchmarks as measured by NIEER’s quality standards checklist. “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 Sciarra.

Despite the success of the Abbott litigation, Sciarra cautions against assuming that litigation alone will result in expanded access to early education. “Litigation did play an important role in those cases, but it is only a tool as part of a larger political strategy… People will come to me and say, ‘Let's file a lawsuit and fix our school system,’ and I would always say, ‘Well, you can do that. But the courts are not going to make the changes that you want.’ If you have a receptive court and can sustain the effort it takes to litigate, a win in court can create leverage. But, in the end, complying with court decrees and enacting needed reforms rests ultimately with the elected branches of state government -- state legislatures and governors.”

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. The Florida Constitution now states that, “Every four-year old child in Florida shall be provided by the State a high quality pre-kindergarten learning opportunity in the form of an early childhood development and education program which shall be voluntary, high quality, free, and delivered according to professionally accepted standards.” A case study published shortly after the amendment’s passage noted that Florida voters “had occasion to thump their chests with pride for what they had done for their 4-year-olds.” Passage of the constitutional amendment led to the 2005 launch of Florida’s Voluntary Prekindergarten Education Program (VPK) which now enrolls over 157,000 students.

Despite the fact that Florida four-year-olds have enjoyed a state constitutional right to high-quality pre-K for over twenty years now, VPK has fallen short of the lofty goals announced upon the amendment’s passage. The good news is that sixty-eight percent of the state’s four-year-olds were enrolled in VPK during the 2021-2022 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 $2,200 per child, making Florida 43rd out of 46 states when it comes to per pupil pre-K spending. That funding amount remains significantly lower than the estimated cost of approximately $4,300 per child for a six hour day that was provided to the Legislature in 2002 (about $7,400 in today’s dollars when adjusted for inflation). Currently, VPK only meets two out of ten quality benchmarks as measured by NIEER’s quality standards checklist and typically only operates for three to four hours per day.

Despite these concerns, Dave Lawrence, founder and chair of The Children's Movement of Florida and a key figure in passing the amendment, focuses on the positives that have resulted from the amendment’s passage and the early education guarantee now included in the state constitution: “It's a significant distance from perfection, but it's something to build from… most importantly, it's embedded in the Constitution. It cannot be taken out unless people try to repeal it, and that's not going to happen.”

Passage of a comprehensive bill in 2021 aiming to improve the state pre-K program by strengthening accountability systems and mandating training on teacher-child interactions and emergent literacy has some advocates hopeful that the best days of VPK lie ahead. “This legislation will support the thousands of Florida families that rely on our early learning programs to prepare their children for kindergarten by helping identify the support students need,” said Governor DeSantis upon signing the pre-K overhaul. For his part, Lawrence is hopeful that the state will continue to make strides when it comes to meeting the promise of a high-quality early education promised by the constitutional amendment, saying, “The state has made progress. I look at life through the eyes of evolution, not revolution.”

While the states pursued a common goal, the outcomes have been vastly different and highlight both the promise and peril of relying on state constitutions to establish a right to early education. “The differences between New Jersey and Florida are stark, with one state having serious enforcement of an implied constitutional guarantee and the other state not even pretending to meet the explicit constitutional requirements,” Steve Barnett, founder and Senior Co-Director of the National Institute for Early Education Research (NIEER) at Rutgers University, told me via email. As state advocates consider the best strategies for expanding the right to early education, the story of both New Jersey’s Abbott litigation and Florida’s passage of a constitutional amendment guaranteeing pre-K are instructive. What unites both state efforts is a common goal: ensuring that more children have access to the type of high-quality early educational experiences that are paramount for ensuring future academic and life success.