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A Constitutional Right to Pre-K?

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I will begin this blog adventure near the beginning:  pre-K.

As enrollment in publicly funded pre-K continues to rise in many states, it might be time to dust off a law review article I wrote about a decade ago, which argued that children have a constitutional right to pre-K education.  If you missed the article when it came out, no worries--you were surely not alone, as most law review articles are not widely read, and this article was not an exception.

The basic argument is straightforward.  All state constitutions guarantee a right to a public education, and most emphasize that public education should be free.  These rights have been enforced and explicated by courts, mostly in the context of school finance litigation.  A number of courts, for example, have read their state constitutions to guarantee a right to an adequate education or a right to equal educational opportunities.

Very few state constitutions specify, either by age or grade, what constitutes a "public education" or, more precisely, when it begins.  The key question, of course, is whether pre-K is or should be included within the definition of public education.  If it is considered part and parcel of a public education, four-year olds (and perhaps three-year olds) would presumably have a right to attend--and their case would be stronger in states whose courts have recognized a right to an adequate or equal education.

In the past, the answer to whether pre-K is considered part of public education would have been an easy "no," as very few states provided funding for pre-K.  The federal government has long provided funding for the Head Start program, but that program was so separate from state education systems that it would have been hard to suggest that the existence of Head Start alone meant that pre-K was a part of any state's public education system.  But the times are obviously changing, as Bob Dylan might say, were he to turn his attention to pre-K.  As more children enroll in publicly funded pre-K programs, it may become harder for states to say that pre-K is not part of their public education systems.  At a certain point, suggesting that only some students are entitled to pre-K could be akin to saying that only some students can attend kindergarten--or third grade.

If this seems unrealistic, consider this quote from Josh Wallack, who is Deputy Chancellor of Strategy and Policy in the New York City School District.  New York has embarked on an ambitious plan to provide pre-K to all four-year olds in the City.  "We see pre-K," Wallack said in an interview, "as a central part of the public education system in New York." If and when pre-K is indeed considered "a central part of the public education system," the key question, again, is this:  Don't students therefore have a constitutional right to attend pre-K, the same way they have a constitutional right to attend kindergarten through 12th grade?

There is a healthy policy debate about how to expand access to pre-K, including whether free pre-K should be universally available or offered only to children from families below a certain income level.  For better or worse, depending on your view of whether access to pre-K should be universal or need-based, state constitutions and state courts may ultimately limit the policy options states can pursue.

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