Expanding access to preK and the legacy of Abbott v. Burke

A New Jersey case from the 1980s may inform current and future efforts to make preK an essential part of a student’s right to education.

The goal of providing all families, including those living in poverty, the option to enroll their children in public prekindergarten received a major boost in 1998, when, in the case Abbott v. Burke, New Jersey’s highest state court became the first in the nation to require high-quality preK for three- and four-year-olds as part of a child’s constitutional right to a K-12 public education. Since then, New Jersey has ranked at or near the top of the list of states providing the most extensive access to preK.

The Abbott case stands as one of the clearest examples of the power of state courts to expand educational opportunity. What has been Abbott’s impact on preK in New Jersey over the last 23 years, and how has it influenced preK in other states?

Abbott revisited

Abbott v. Burke actually comprises several dozen rounds of litigation, beginning in the early 1980s and spanning four decades. The Education Law Center, representing a group composed of all students in New Jersey’s poorest urban districts, launched the case as a constitutional challenge to the deep disparities in education funding, resources, and outcomes between New Jersey’s urban and suburban school districts.

Even before this seminal ruling, the New Jersey Supreme Court clearly had preK in mind as it addressed broader inequities in the state’s educational system. For example, in Abbott II (1990), the court held that the state’s failure to provide a “thorough and efficient education” in 28 (eventually 31) “poorer, urban” districts amounted to a “constitutional failure” that was “clear, severe, extensive, and of long duration.” In its ruling, the court alluded to the state’s determination that preK has important benefits for kids, as well as a declaration by the National Governor’s Association that “[o]ur first priority must be to provide at least one year of preschool for all disadvantaged children.”

In Abbott III (1994), the court rejected the state’s first attempt to remedy its constitutional failure through a new education funding law. Among the new law’s defects was the lack of funding for supplemental programs, including preK. The court cited expert witnesses who touted the importance of preK as a “beneficial or essential” service for children in the highest-need districts. And in Abbott IV (1997), which struck down the state’s latest funding law, the court underscored that early childhood education was “an essential educational program for children in [high-need districts].”

These rulings set the stage for Abbott V (1998), in which the court arrived at a full-throated endorsement of universal preK for children in high-poverty schools:

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.

Interestingly, the court exhibited restraint even as it mandated sweeping change. Although it noted that the provision of preschool education “has strong constitutional underpinning” and strongly implied that preK was a “critical” component of a “thorough and efficient” education (adjectives directly plucked from the New Jersey constitution), it refrained from explicitly characterizing preK as a constitutional right. The court also declined to mandate full-day preK, requiring only half-day programs for three- and four-year olds in the urban districts “as expeditiously as possible.” (The state voluntarily decided to implement full-day preK in “Abbott districts.”)

Reviewing this spate of judicial activity, one can’t help but marvel at the court’s tenacity in the face of delays; its delicate balance between prodding and then deferring to the state, and, above all, its willingness to wade into the minutiae of program implementation.

But the court took bold steps in other ways. Most importantly, instead of deferring to the state to determine funding levels, it took a needs-based approach, stressing that preK programs should be provided with the “necessary funding” for transportation and all other related staffing, space, services, and supports. The court also authorized the state to implement a mixed-delivery system, combining public preK programs with existing early childhood and day care programs. Further, and signaling its sense of urgency, the court ordered that the state implement the new preK program in the urban districts by the 1999-2000 school year (i.e., in less than two years). And in Abbott VI (2000) and Abbott VIII (2002), the court clarified its expectations related to preK educational standards, teacher certification, class size, day care provider contracts, adequate facilities, supplemental funding, and community outreach.

Reviewing this spate of judicial activity, one can’t help but marvel at the court’s tenacity in the face of delays; its delicate balance between prodding and then deferring to the state, and, above all, its willingness to wade into the minutiae of program implementation. It’s as if the court had suddenly found itself in a game of Whac-a-Mole, batting down thorny issues popping up in all corners: What should the preK teacher-student ratio be? Answer: 1 to 15! WHACK! When is the state’s preK curriculum framework due? Answer: April 15! WHACK! And so on.

Equally impressive are the collective efforts of litigators, community advocates, researchers, and financial supporters who enabled the court fight to continue over multiple decades. (See this report from the Education Law Center).

Abbott’s legacy in New Jersey

During the 2019-20 school year, New Jersey’s Abbott Preschool Program — now called the Preschool Expansion Program — provided public preK in 118 of the state’s poorest school districts, serving nearly 52,000 three- and four-year-olds (and in the 2020-21 school year, the program expanded to 156 districts). These districts include the original 31 urban or “Abbott districts,” where preK is now fully universal, as well as other high-poverty districts that have agreed to offer preK under Abbott standards. The state also provides free preK education through local contracts with private childcare centers or Head Start programs that meet state standards. (See reports from the National Institute for Early Education Research and the Education Law Center.)

New Jersey’s preK programs share some important features, thanks to Abbott: These are full-day, school-year programs available for two years, starting at age three. Programs include wrap around services and must meet rigorous learning and teaching standards. They enjoy high funding levels, about $15,000 per child per year, with the state funding 100% of the cost. Their teacher education requirements and salaries are on par with K-12 teachers, and class sizes are capped at 15 children. Positive outcomes for children who attend public preK in New Jersey include lower rates of grade retention and placement in special education, significant annual reductions in achievement gaps, and substantial positive effects in math, language and literacy, and science achievement through the 10th grade (Barnett & Jung, 2021; and see the related webinar).

A nationwide Abbott effect?

Today, 44 states offer some form of public preK. Nationwide, over the last two decades, public preK participation among three-year-olds has doubled, from 3% to 6%, and it has more than doubled among four-year-olds, from 14% to 34%. Federal proposals for expanding preK began in earnest during the Obama administration, and President Joe Biden has unveiled a $200-billion proposal to provide universal preK for all three- and four-year-olds across the country. No doubt, Abbott has had a significant influence on such developments.

But what about Abbott’s influence on the judicial side? Outside New Jersey, just a handful of state courts have taken up the issue of whether students from low-income families have a right to high-quality early education. Nearly 20 years ago, trial courts in North Carolina, Arkansas, and Massachusetts even ordered state officials to provide free preK programs, but those rulings were reversed on appeal (Ryan, 2006).

Outside New Jersey, just a handful of state courts have taken up the issue of whether students from low-income families have a right to high-quality early education.

The tide, however, may be turning. In the past decade, state appellate courts in North and South Carolina ordered their legislatures to provide free early childhood education to remedy constitutionally inadequate educational conditions (Woodson, 2017; and see Abbeville Cty. Sch. Dist. v. State, 2014 Hoke Cty. Bd. of Educ. v. State. 2012). In 2018, in Yazzie/Martinez v. New Mexico, a state trial court cited numerous deficiencies in preK in its holding that the state’s public education system violated the education clause of the state constitution. And earlier this year, in Maisto v. State, a New York appellate court held that deficiencies in preK and other education services in specific districts violated the state constitutional requirement to provide all students the opportunity to receive a “sound basic education.”

None of these rulings cited Abbott as precedent, which makes me wonder whether they might be casting a wary eye at New Jersey and asking themselves whether they want to get so deeply involved in policy and practice. Indeed, in Pawtucket v. Sundlun (R.I. 1995), the Rhode Island Supreme Court observed that Abbott serves as “a chilling example of the thickets that can entrap a court that takes on the duties of a [l]egislature.”

Putting aside Abbott’s slippery coattails, the relatively slow pace of litigation in recent times suggests a more fundamental problem: the lack of  capacity among lawyers, advocates, researchers, and experts to take on a complex arena implicating all three branches of state government and a number of often disconnected programs and funding streams, from childcare to Head Start to private preK programs. And yet, despite these challenges, expanding preK remains one of the brightest legal and policy avenues available to improve educational opportunities and outcomes. A renewed commitment will be needed to encourage more states to reach the same conclusion that the Court did in Abbott: that high-quality, accessible preK is an essential component of students’ right to a quality public education.

References

Barnett, W.S. & Jung, K. (2021). Effects of New Jersey’s Abbott preschool program on children’s achievement, grade retention, and special education through tenth grade. Early Childhood Research Quarterly, 56, 248-259.

Ryan, J.E. (2006). A constitutional right to preschool. California Law Review, 94, 49.

Woodson, K. (2017). Why kindergarten is too late: The need for early childhood remedies in school finance litigation. Arkansas Law Review, 87, 87–88.

This article appears in the October 2021 issue of Kappan, Vol, 103, No. 2.