RALEIGH — Spending tax dollars on preschool intervention for at-risk North Carolina children may be a worthwhile idea. In fact, I have long favored a carefully designed, carefully targeted early-childhood program as part of a comprehensive strategy for education reform. But this policy is not required by the state constitution – as a N.C. Court of Appeals panel has just ruled in a case about More At Four.
The three-judge panel did find that the Republican-led legislature erred in enacting restrictions on More At Four eligibility that appeared to deny preschool services to some at-risk children. But legislative leaders had already recognized their error and fixed it in a subsequent bill. The truly momentous question is whether the North Carolina constitution, as interpreted by the N.C. Supreme Court in its Leandro decisions, requires lawmakers to fund a preschool program in the first place.
It does not.
The unanimous decision, written by Judge Rick Elmore, is worth reading. It is short and to the point. Under the long-running Leandro litigation, the state of North Carolina is required by several provisions of the state constitution to enact a policy or set of policies that give at-risk children an opportunity for a sound, basic education. At the time the second Leandro decision was handed down, former Gov. Mike Easley was in office. He was a strong believer in preschool programs. So were the state board of education, the state superintendent of public instruction, and the leaders of the Democratic state legislature.
These politicians all responded to the Leandro decisions by creating and funding More At Four as a preschool intervention for at-risk four-year-olds — and, importantly, as a service delivered by public, for-profit, and nonprofit providers. While North Carolina also implemented other education reforms during the period, they were not specifically identified by the state as responses to Leandro. So while the state judiciary has never found preschool to be a constitutional right, Elmore observed that once chosen by elected officials as the sole remedy for Leandro, More at Four cannot then be subject to artificial restrictions on eligibility for at-risk children.
Based on “the present record,” Elmore wrote, “it cannot be said that the trial court’s order requiring the State to allow the unrestricted enrollment of at-risk prospective enrollees to pre-kindergarten programs ‘effectively undermine[d] the authority and autonomy of the government’s other branches’… since both the executive and legislative branches have evidenced their selection and endorsement of this – and only this – remedy to address the State’s constitutional failings identified in Leandro II.”
If a future governor, state board of education, and state legislature choose to adopt a different set of policies to help at-risk students, Elmore continued, they would be within their rights to do so. They will need to file a motion with the trial court of jurisdiction, currently that of Wake Superior Court Judge Howard Manning Jr., explaining their plans and intentions.
Upon re-reading and reflection, I believe that the judges’ decision is reasonable given the facts and circumstances presented to them. We are in a transition period in North Carolina politics, a period in which the executive branch and legislative branch don’t see eye-to-eye. Leandro was never meant to be a permanent, sweeping transfer of political authority over education to the judicial branch. No one has elected Howdy Manning or any other judge to decide how best to educate North Carolina children.
But under Leandro, the judiciary does have the responsibility to demand that the executive and legislative branches pay attention to the needs of at-risk students. I suggest that in 2013 the newly elected governor and legislature file a motion in Manning’s court clarifying that North Carolina will satisfy its constitutional obligations by 1) funding preschool programs delivered by public and private providers to poor children with risk factors such as incarcerated, addicted, or absent parents; 2) paying teachers according to demonstrable success with at-risk students, and 3) giving the parents of at-risk students the ability to choose the school that best meets their needs.
Each of these education policies has precedent and evidence of success. If those are the relevant criteria, surely the courts wouldn’t object.
Hood is president of the John Locke Foundation and author of Our Best Foot Forward: An Investment Plan for North Carolina’s Economic Recovery.