The Expanding Role of the Courts in Educational Policy: The Preschool Remedy and an Adequate Education

Conclusions: This study concludes that, although the preschool remedy is well designed to respond to some major problems that courts have persistently faced in school finance reform litigation, courts have considered the preschool remedy inconsistently and in an oversimplified fashion that does not reflect nuances in the underlying research on preschool. Moving forward, courts need to find a middle route that allows them to respond to problems they have faced in the past while treating scientific research in a more nuanced fashion.

Over the past half-century, the courts have played an increasingly important role in educational governance and decision-making. By interpreting both federal and state constitutional and statutory provisions, the courts have clarified and enforced students’ rights in areas ranging from desegregation to free speech. However, since the courts began to take such an active role in education, the efficacy and effectiveness of judicial intervention in education remain uncertain. Even in areas such as desegregation, in which the courts have been hailed as a powerful force for positive social change, evaluations of court-driven reform have been persistently mixed (Ford, 2004; Heise, 2004). School finance reform litigation, which is perhaps the most visible and widespread type of education litigation today, suffers from similar critiques (McUsic, 1999).

Largely in response to some of the persistent problems that school finance cases have faced, courts hearing these cases have begun to become more involved in the intricacies of setting educational policy than they have in the past; instead of only ordering states to revise their systems of educational funding upon finding that states have acted improperly in this area, courts have also begun to order states to implement particular systems of governance or educational interventions. Crafting such remedies represents a substantial departure from the actions courts have traditionally taken to findings in school finance cases that states have not complied with their constitutional duties to provide students with equal or adequate educations. In previous school finance cases in which courts found school financing schemes unconstitutional, courts generally crafted broad remedial orders specifying financial changes that state legislatures needed to implement to bring states into compliance with constitutional requirements (Reed, 2001). But given the little progress made by state legislatures to equalize and augment education funding and to ultimately increase student achievement, courts in at least eight states have now begun to order their states to institute a variety of specific educational reforms, including standards-based accountability systems, class size reduction, whole-school reform, and free preschool programs for “at-risk” children.¹

This study examines and analyzes this recent trend by focusing on the judicial consideration of the preschool remedy in two major school finance cases in New Jersey and North Carolina. This study specifically analyzes the ways in which these courts treated preschool from both educational and legal perspectives by conducting a detailed textual analysis of the decisions in which courts in New Jersey and North Carolina considered the preschool remedy, and by analyzing the legal rules and principles underlying these decisions. In addition, this study employs historical case study methodology (McDermott, 2006) to better understand the anatomies of these two cases; in addition to reviewing the judicial opinions that are related to the cases, the authors reviewed and analyzed an array of documents, including motions, briefs, complaints, and reports. Moreover, this study situates these decisions in their broader legal and historical contexts to understand the broad policy issues to which the emergence of the preschool remedy responds. Finally, this study draws heavily on the body of educational literature evaluating the effectiveness of preschool programs. By taking an interdisciplinary approach, this study aims to understand the range of factors spurring the recent emergence of the preschool remedy, the different ways in which courts have treated this remedy, and the potential effectiveness of this remedy. (A more detailed description of the methods used to conduct this study appears in the appendix.)

In short, this study suggests that the preschool remedy is well designed to respond to some major problems that courts have faced in previous school finance reform cases but that the courts’ consideration of the preschool remedy also raises important concerns. As will be discussed in more detail, courts have faced several problems in education cases, and school finance cases in particular. The legal doctrine underlying school finance decisions is quite ambiguous, and the remedial orders crafted by courts to reform systems of school finance have been accordingly vague as well. Given that the social issues implicated by school finance cases can raise widespread and heated political sentiment, these vague court orders have often faced heated political opposition and have failed to be fully implemented by states. Moreover, as highlighted by education researchers since the 1960s, the precise causal links between increased financial resources and student achievement are unclear (Cohen, Raudenbush, & Ball, 2003; Coleman et al., 1966; Hanushek, 1989). By ordering specific educational reforms, such as preschool, courts hearing school finance cases potentially can address such problems. Instead of simply ordering the equalization or augmentation of funds with the hope that such funds would be spent in appropriate ways to boost students’ educational opportunities, courts can impact the educational process more directly; orders to implement preschool require funds to be spent in specific ways that have a direct impact on what children actually do.

The increasing prevalence of the preschool remedy, however, also raises serious concerns because of the uneven ways in which courts have considered preschool. Although court orders to implement the preschool remedy are generally based on policies already being pursued by a state or on scientific evidence offered at trial, education researchers are still debating whether preschool programs can be effectively implemented on a large scale and precisely what features of these programs make them effective. In the cases analyzed in this study, courts considered the preschool remedy inconsistently and in an oversimplified fashion that glossed over potential design and implementation issues raised in the educational literature.

Among the several different types of reforms recently ordered by courts hearing school finance cases, the authors chose to focus on preschool in New Jersey and North Carolina for several reasons. First, free preschool is one of the most common types of educational interventions that courts hearing school finance cases have begun to order. Courts in at least five states have ordered this type of remedy, and it appears as if more courts may order preschool in the near future (Ryan, 2006).² The preschool research base is also quite extensive.³ As such, this study may yield insights not only into the ordering of preschool but also into the efficacy of the courts to address other types of education policies with less extensive research bases. The authors chose to focus the analysis on cases in North Carolina and New Jersey because these cases well illustrate different ways in which courts at various levels have considered preschool.⁴

Because courts ruling in school finance reform cases have only recently begun to order preschool programs as remedies in school finance cases, few researchers have conducted detailed examinations of cases that involved these remedies. For example, Almeida (2004) and Greif (2004) broadly analyzed the school finance litigation in North Carolina and New Jersey, but they did not focus in detail on the particular ways in which the courts in these cases considered the evidence underlying preschool, the actual evidence underlying preschool, or the broad policy issues to which the preschool remedy responds. Ryan (2006) conducted a detailed examination of the social science research on preschool and offered broad legal arguments, grounded in legal texts and history, supporting the institution of the preschool remedy. However, Ryan also did not conduct detailed examinations of how particular courts considered the preschool remedy. Our study significantly contributes to the research on this emerging legal and policy area by conducting a detailed examination of how some courts have considered the preschool remedy, by analyzing the courts’ considerations in light of research in the field, by situating this analysis in a broader legal and historical context, and by integrating these analyses to provide insight into the preschool remedy from multiple disciplinary perspectives.

To investigate the emergence of the preschool remedy in recent school finance cases, this study is divided into five primary parts. First, this study reviews the history of the courts’ activism and effectiveness in educational policy reform. Second, this study discusses the legal and historical contexts surrounding the emergence of the preschool remedy and highlights the major factors underlying this emergence. Third, this study examines in detail two school finance cases from New Jersey and North Carolina in which courts crafted remedial orders involving preschool. This part particularly focuses on the ways in which different courts in these cases considered the preschool remedy. Fourth, this study discusses the educational research on preschool. Fifth, this study analyzes the two cases in light of research on preschool, the problems courts have faced in past education cases, and the legal and historical contexts specific to the preschool remedy. Finally, this study concludes with a discussion of the research and policy implications of our analysis in light of the courts’ increasing presence in technical matters of educational policy.

THE COURTS’ ROLE IN EDUCATIONAL POLICY

Although courts at various levels are currently involved in several important aspects of educational policy, the courts’ presence in this field is a somewhat recent development in U.S. history. For most of U.S. history, courts generally did not hear claims regarding social issues—such as race, ethnicity, class, or religion—that challenged fundamental aspects of public education (Tyack & Benavot, 1985).⁵ But in the second half of the 20th century, the character of the courts’ involvement with education changed dramatically. Beginning primarily in 1954 with Brown v. Board of Education, courts began to get involved in “public law litigation,” or litigation aimed at reforming institutional structures through judicial rulings that arguably put the courts in the place of policy makers (Chayes, 1976). In this type of litigation, the legal process proceeds in a somewhat nontraditional fashion; instead of focusing on the application of relatively narrow legal rules and/or principles to the particular facts and actions of individuals involved in a case, the legal process is generally more flexible, deals with broader legal principles, and addresses perceived harms that result from more diffuse institutional behavior (Chesler, Sanders, & Kalmuss, 1988).⁶ As a result, courts ruling in public law litigation often craft broad remedies to address such harms. Through public law litigation, judges have become important drivers of educational policy in areas such as desegregation and school finance reform. This study focuses precisely on this type of judicial involvement in education.

According to some researchers, the courts can constitute a useful and effective venue for driving changes in educational policy. By bringing suit to address systemic social problems, disadvantaged groups can argue for the justifiability and value of different policy choices before a governmental institution that is (theoretically) more impartial than state or federal legislatures (Rebell & Block, 1982). When other governmental branches fail to act to address perceived policy problems, the courts offer reformers a potential means to overcome political inertia (Rebell & Hughes, 1997). Some have also argued that judicial rulings in public law litigation are needed to maintain a system of checks and balances (Chayes, 1976; Eisenberg & Yeazell, 1980).

Other researchers, however, have highlighted several factors limiting the abilities of the courts to effectively shape educational policy. Even though some courts may be more isolated from political pressure than other governmental branches, the courts are not completely insulated from political concerns, and their orders must be implemented by various actors who face varying degrees of political pressure. As a result, many court decisions prescribing unpopular changes in educational policy are not fully implemented (Ogletree, 2004). Underwood (1995) specifically highlighted the importance of political will for successful judicially mandated school finance reforms. Similarly, Mayrowetz and Lapham (in press) suggested that remedial orders may fail to be effectively implemented in the special education context without the broad and open participation of parties impacted by such orders during litigation. The courts have also faced several difficulties dealing with technical or scientific issues of educational policy (Heise, 2002). Recognizing such problems, courts have employed a range of tools to help them understand technical educational issues; expert panels, orders for additional fact finding or negotiations among parties, and special masters have provided courts with additional knowledge relevant to complex cases (Rebell & Hughes, 1997).⁷ But in cases in which the educational science is complex, courts still face difficulties understanding scientific arguments (particularly statistically oriented arguments) underlying factual claims, and because of their limited capacity to evaluate research, they may be misled into a “false sense of security” about the validity of claimed facts (Welner & Kupermintz, 2004).

Elements of public law litigation that may be more properly thought of as “legal” have limited the courts’ effectiveness as well. Because many public law cases are brought under legal theories based on broad constitutional provisions, the legal rules and doctrines at play in public law litigation in education can be quite ambiguous (Kaufman, 2005). Accordingly, these rules and doctrines often offer courts little concrete guidance for finding constitutional violations in public law litigation or for crafting remedies in response to such violations. Legal scholars, such as Glazer (1975), have argued that the courts are not legally justified to craft rulings that require them to make difficult and sweeping policy choices in the face of vague legal doctrine because making such policy choices is more properly thought of as the province of a legislature; by usurping the power to make such choices, the courts arguably violate the separation of powers principle. In perhaps the harshest and most famous critique of the courts’ role in public law litigation focusing on education, Rosenberg (1991) concluded that courts can “almost never be effective producers of significant social reform” (p. 338). Thus, although there may be some desirable and justifiable role for the courts to play in shaping and resolving difficult educational policy issues, several factors have limited the courts’ ultimate effectiveness in this field.

THE LEGAL AND HISTORICAL CONTEXTS OF THE PRESCHOOL REMEDY

As mentioned, the preschool remedy has recently begun to appear in the particular context of school finance reform litigation. Because local wealth or property value has traditionally constituted one of the primary determinants of school and district funding, there have often been dramatic per-pupil spending differences across districts within states. School finance reform litigation has generally targeted this funding structure by aiming at the equalization and augmentation of education funding. Although this type of public law litigation has certainly constituted a durable and pervasive type of education reform strategy in the United States, the form of this litigation has changed markedly over time. Describing the broad shifts in school finance reform litigation, scholars have characterized school finance litigation as appearing in three different waves (Levine, 1991).⁸ Certain classes of legal strategies have proved more successful than others, and courts have become increasingly sensitive to the problems that they have faced over decades of public law litigation in education, and school finance reform litigation in particular. The preschool remedy emerged largely in response to the evolution of legal logic in these cases and judicial recognition of the problems they had commonly faced.

Springing from the legal theories and social ideals underlying desegregation cases, the first wave of school finance reform, which emerged in the late 1960s and early 1970s, focused on achieving equality of funding across school districts. Like plaintiffs in desegregation cases, first-wave school finance plaintiffs brought their cases in federal courts and relied primarily on the Equal Protection Clause of Fourteenth Amendment of the U.S. Constitution. These plaintiffs generally argued that the Equal Protection Clause requires governmental entities to provide education equally to all students. But when the Supreme Court considered this argument in 1973, it refused to find that the Equal Protection Clause constitutes a viable basis for equalizing differences in education funding (San Antonio Independent School District v. Rodriguez, 1973).

In the second wave of school finance cases, which began after the Supreme Court ruled in Rodriguez in 1973 and lasted until the late 1980s, plaintiffs continued to rely on arguments based around the idea of equality, but they shifted both the venue and legal basis for their arguments. Plaintiffs now brought their claims in state courts under equal protection clauses contained in state constitutions. State equal protection clauses often mirror the U.S. Equal Protection Clause and provided a separate basis on which courts could find interdistrict funding disparities unconstitutional. Some second-wave plaintiffs also relied on “education clauses” contained in state constitutions. Unlike the U.S. Constitution, every state constitution contains an education clause, and these clauses generally indicate that states must provide students with a “thorough and efficient” education or some similar kind of education.⁹ Plaintiffs’ second-wave arguments rested on state equal protection clauses, education clauses, or both types of clauses together.

The effectiveness of second-wave school finance suits, however, was also limited. Equality is a vague concept that can be defined in several different ways in the context of school finance suits. One can view equality in terms of tax capacity, per-pupil expenditures, the goods or services bought with funds, or even student performance, and it is unclear which construction should be used. Moreover, as noted by Enrich (1995), each of these constructions suffers from particular problems. Although a construction such as per-pupil expenditures can be easily quantified, the causal links between expenditures and educational opportunities are often opaque, and some courts have focused on the lack of empirical evidence about clear causal links (see, e.g., Abbott v. Burke, 1990; Danson v. Casey, 1979). Similarly, although a construction such as goods or services offered is more closely related to actual educational opportunities, this construction resists easy quantification, and some courts have expressed that this construction would require them to delve more deeply into the inner workings of schools than they feel competent or justified to do (see, e.g., McDaniel v. Thomas, 1981).

Because successful equity arguments have often required the shift of resources from wealthier districts to poorer school districts, these arguments have also faced heated political opposition and have been portrayed as destroying local control of education (see, e.g., Levittown Union Free School District v. Nyquist, 1982; Olsen v. State, 1976). Indeed, the rhetoric of equity has proved politically problematic in legislative responses to successful second-wave suits; given the difficulties of defining equal educational opportunities and concerns about the legal justifiability of crafting more specific orders involving detailed policy matters, courts often crafted vague remedial orders, and legislative responses to these orders have rarely improved funding equity in states (General Accounting Office [GAO], 1998; Jaffe & Kersch, 1991). As a result of these sorts of doctrinal and political problems, courts dismissed several second-wave school finance cases, and legislative responses to successful school finance suits repeatedly failed to produce intended results, such as increases in student achievement (Joondeph, 1995).

In response to the problems faced in second-wave school finance suits, the third wave of school finance litigation emerged in the late 1980s and has lasted through the present. In the third wave, plaintiffs shifted the focus of their arguments from educational equity to adequacy and generally based their claims on the education clause of a state constitution. Instead of claiming that students were due equal educational opportunities, third-wave plaintiffs often argued that a state education clause requires a state to provide the level of funds necessary to ensure that students receive adequate or minimally sufficient educational opportunities. Adequacy arguments have proved moderately effective in court. According to a recent count, 32 states have faced adequacy suits, and plaintiffs have prevailed in 18 of these suits (Griffith, 2005). However, the rate of plaintiff success in adequacy cases appears to be rising; supreme courts in seven states ruled in favor of plaintiffs between 2003 and 2005 (Griffith).

Like equity arguments, adequacy arguments have faced problems of doctrinal ambiguity. Because of the difficulty of defining what constitutes adequate educational opportunities and the notion that legislatures are better situated to make such determinations, some courts have dismissed third-wave claims (see, e.g., Coalition for Adequacy and Fairness in School Funding, Inc. v. Childes, 1996; Committee for Educational Rights v. Edgar, 1996). However, certain characteristics of adequacy arguments have contributed to their greater success in school finance cases. First, adequacy arguments are not typically as politically explosive as equity arguments. The rhetoric of ensuring that all students have minimally sufficient educational opportunities does not directly threaten wealthy districts and undermine local control to the same extent as equity arguments. Second, unlike in the case of equity arguments, courts have legal sources that they can use to more specifically define educational adequacy. Some courts have examined the constitutional history of education clauses and expert testimony to determine the content of an adequacy standard (see, e.g., Rose v. Council for Better Education, 1989). In addition, some courts have recently begun to look to state standards to flesh out the definition of educational adequacy even more precisely (see, e.g., Campaign for Fiscal Equity, Inc. v. State of New York, 2001; Hancock v. Driscoll, 2004; Leandro v. State, 1997).

Despite the advantages of adequacy arguments over equity arguments, significant problems still persist. When violations of a state’s duty to provide its students with an adequate education have been found, courts have faced major problems in crafting effective remedies. Like in equity cases, many courts simply pointed out that a state had failed to fulfill its constitutional duty and let the state determine how it would meet its duty; because of issues such as a legislature’s theoretically stronger capacities and legal authority to determine complex issues of educational policy, several courts finding constitutional violations let the state decide exactly what remedial actions it would take (see, e.g., Abbott v. Burke, 1990; Claremont School District v. Governor, 1993; DeRolph v. State, 1997; McDuffy v. Secretary of the Executive Office of Education, 1993). But left to their own devices, states have faced many difficulties devising and implementing effective remedial responses. Some states have simply been unable to overcome the political barriers of responding to a finding of inadequacy, even after years of attempts (see, e.g., Claremont School District v. Governor, 2002; DeRolph v. State, 2004; Montoy v. State of Kansas, 2004).

Even when states have overcome such political barriers, meaningful educational change in response to a school finance decision has been difficult to effect. For example, in response to a school finance decision, Massachusetts passed comprehensive legislation instituting funding changes and a standards-based accountability system. However, on a recent examination of this system, a court found that the state failed to implement its curriculum frameworks effectively and to sufficiently boost student performance (Hancock v. Driscoll, 2004). Indeed, as mentioned, successfully litigated school finance reform cases in several states have failed to increase academic performance. As a result of such responses to judicial findings of inadequacy, school finance reform litigation can drag on for years (and even decades) as plaintiffs repeatedly return to court seeking redress for their educational problems. In short, although adequacy arguments are proving more effective in court, the remedial orders issued and measures taken in response to such orders still face significant problems.

THE PRESCHOOL REMEDY

As remedies implemented by states repeatedly failed to bring states into compliance with their duties to provide students with opportunities to receive an adequate education, courts have begun to respond by crafting new types of decisions. Expressing a desire to prevent decades of litigation and to more directly boost educational quality through means other than funding, several courts have ordered the implementation of standards-based accountability systems, class size reduction programs, whole-school reforms, and free preschool programs (see, e.g., Campaign for Fiscal Equity, Inc. v. State of New York, 2003; DeRolph v. State, 2000). This new trend represents a dramatic departure from the actions that courts have previously taken in school finance cases.

This section explores the ways in which courts in New Jersey and North Carolina considered the preschool remedy in recent school finance decisions. This section particularly highlights how courts at different levels in both states considered the evidentiary base supporting preschool and accordingly structured their remedial orders.

NEW JERSEY

New Jersey had faced some form of school finance litigation for years before courts in the state considered the preschool remedy. The first school finance case in New Jersey was brought in 1970 and decided by the state supreme court in 1973 (Robinson v. Cahill, 1973). Responding to a finding that the school funding system was unconstitutional, the state legislature reformed the state’s system of school funding. In 1981, public school students from Camden, East Orange, Irvington, and Jersey City challenged the constitutionality of this new funding system in the case Abbott v. Burke. The litigation bounced between different state courts as the legislature attempted to respond to court orders and as the courts reviewed legislative responses and decisions of lower courts. Of particular note is the state supreme court’s decision in Abbott II, in which the court found funding legislation unconstitutional as applied to 28 “special needs districts,” or Abbott districts, because the legislation failed to ensure that students in these districts were receiving an adequate education.¹⁰ The Abbott II court required that the level of funding must “be adequate to provide for the special educational needs of these poorer urban districts” and vaguely indicated that special programs and services were required in the Abbott districts (Abbott v. Burke, 1990, p. 359).

In Abbott IV, approximately 16 years after the beginning of the Abbott litigation, the New Jersey Supreme Court found that the state’s most recent response to its remedial orders was not sufficient (Abbott v. Burke, 1997). As it had done before, the court found that increased funding was a necessary step toward an adequate education. But the court also indicated that increased funding was not sufficient by itself and that a more specific and effective remedy needed to be implemented because students in the Abbott districts had been denied adequate educational opportunities for too long. Specifically finding that “only comprehensive and systemic relief will bring about enduring reform,” the court remanded the case to the Chancery Division of the Superior Court to determine what judicial relief was necessary to address the need for supplemental programs and facilities improvements in the Abbott districts (Abbott v. Burke, 1997, p. 202).

The New Jersey Supreme Court specifically authorized the Superior Court to direct the New Jersey commissioner of education to prepare a report with findings and recommendations about the special needs that must be addressed in the Abbott districts. The court also authorized the Superior Court to appoint a special master to help the court understand the recommendations of the parties. According to the court, the “determination of appropriate remedial relief in the critical area of the special needs of at-risk children and the programs necessary to meet those needs is both fact-sensitive and complex,” and making such a determination “is a problem squarely within the special expertise of educators” (Abbott v. Burke, 1997, p. 199). Although an education specialist could determine effective educational approaches better than a court, a court could provide the governmental procedures to identify the educational suggestions to be implemented.

Judge Michael Patrick King, a judge normally residing in the Appellate Division, was temporarily assigned to the Chancery Division to oversee the case (Abbott V; Abbott v. Burke, 1998). Judge King directed the commissioner and both parties to submit reports and recommendations about supplemental programs and facilities needs. The judge also appointed Dr. Allan Odden, a professor at the University of Wisconsin–Madison, as the special master. In 1998, after 12 days of hearings, a review of 97 exhibits, consideration of Dr. Odden’s report and the testimonies of expert witnesses, a review of the experts’ reports and the educational literature discussed in the testimony, and 10 visits to selected schools in Camden, Judge King issued his report.

In the report, Judge King highlighted the recommendation of the state, the plaintiffs, and the special master. The state recommended that well-planned and “high-quality” half-day preschool should be provided in the Abbott districts to 4-year-olds in small classes with a 1:15 teacher-to-student ratio (King, 1998). According to the state, preschool was an effective educational intervention, but the research on the long-term effects of half-day preschool versus full-day preschool was inconclusive, and the research on the benefits of preschool for 3-year-olds was unpersuasive. In contrast, the plaintiffs recommended full-day preschool for 3- and 4-year-olds as an essential element of supplemental programs in the Abbott districts.¹¹ The plaintiffs relied heavily on the testimony of Dr. Steven Barnett, who testified that “high-quality” preschool could help close the gap in school readiness between children in wealthier and poorer districts.

To support their argument for a longer and more intensive preschool program than that suggested by the state, the plaintiffs focused on two longitudinal preschool studies: the Perry Preschool Program and the Abecedarian study (which were also cited by a judge in Hoke, as will be discussed). According to Dr. Barnett, the Perry Preschool Program revealed “strong effects” on school achievement of children in special education, graduation rates, adult economic success, and involvement in delinquency in crime. Similarly, Dr. Barnett testified that the Abecedarian program produced permanent gains in IQ scores of participating students. The plaintiffs additionally argued that their preschool recommendation would produce significant monetary savings in the long run: Preschool would reduce child care costs and costs of schooling through Grade 12 because of lower retention rates and would produce college graduates with increased earnings and decreased costs of crime and welfare dependency (King, 1998).

Dr. Odden’s special master report largely comported with the plaintiffs’ arguments. Dr. Odden wrote that the research is “very clear that high quality, preschool programs for students from low income backgrounds have discernible, positive, and significant impacts on student academic achievement in the early academic years” (Odden, 1997, p. 533). Dr. Odden also agreed that preschool programs would yield long-term cost savings. The court ultimately concluded that full-day preschool for 3- and 4-year-olds would have “a significant positive impact on academic achievement in both early and later school years” (King, 1998, p. 513). Moreover, the court stated that preschool was cost efficient and found that the “total incremental cost for recommended full-day kindergarten and preschool programs would be $148.4 million or $434.5 million less the $286.1 million the State allegedly has committed already to early childhood programs” (King, pp. 513–514). Thus, Judge King’s report ultimately found that “as the experts described, the long-term benefits amply justify this investment” (p. 513). Judge King accordingly recommended that New Jersey implement full-day preschool for 3­­- and 4-year-olds in the Abbott districts, as well as several other educational programs, including whole-school reform and technology programs.

The New Jersey Supreme Court conducted a detailed examination of Judge King’s recommendations. The court generally found that the “evidence demonstrates that the earlier education begins, the greater the likelihood that students will develop language skills and the discipline necessary to succeed in school” (Abbott v. Burke, 1998, p. 462). The court focused on the Perry Preschool study and the Abecedarian study and found that they constitute solid evidence that there is a “strong correlation between the intensity and duration of pre-school and later educational progress and achievement” (p. 462). Based on such evidence, the court concluded that preschool for 3- and 4-year-olds would “have a significant and substantial positive impact on academic achievement in both early and later school years” (p. 463). Nonetheless, the court did not order the implementation of the preschool remedy as Judge King had constructed it. The court instead ordered well-planned, high-quality, half-day preschool for 3- and 4-year-olds in the Abbott districts. According to the court, whole-school reform must also be implemented (on a gradual basis), and preschool programs must be integrated as part of the whole-school reform effort. So, the court found that “as an initial reform, a half-day of preschool should enable Abbott children to be education-ready when they enter primary school and thus allow them to take advantage of the thorough and efficient education that whole-school reform will provide” (p. 464).

The saga of the preschool remedy in New Jersey courts, however, was not yet complete. Approximately 19 months after Abbott V was decided, the New Jersey Supreme Court again addressed the need for preschool programs in the Abbott districts. In Abbott VI, the plaintiffs returned to the courts, arguing that the state had failed to implement the well-planned high-quality preschool programs mandated by Abbott V (Abbott v. Burke, 2000). Although the court addressed several aspects of the state’s response to Abbott V, the court particularly focused on the regulations adopted by the state. Under these regulations, day care providers, licensed by the state Department of Human Services (DHS), could hire new teachers holding only a 2-year associate’s degree and not a bachelor’s degree (N.J.A.C. 6:19A-3.3, 1999). The regulations also allowed school boards to request waivers from the associate’s degree requirement upon a showing that teachers with a bachelor’s degree or an associate’s degree in early childhood education are not available. After reviewing these regulations, the court found that these regulations improperly allowed DHS-licensed preschool providers to employ teachers who where not sufficiently qualified to support high-quality preschool programs. As the court noted, “without qualified teachers, the children will lose the opportunity that well-run, substantive preschool programs offer.” (Abbott v. Burke, 2000, p. 90).

The court also focused on preschool class size. The regulations adopted by the Department of Education allowed preschool programs to provide one teacher and one aide for every 15 students, or one teacher and two aides for every 20 students. Although Judge King’s initial report in Abbott V ultimately did not recommend a specific class size in connection with preschool, the court found that the 1:15 ratio was the basis for Judge King’s decision. Emphasizing that this class size model was “proposed by the Commissioner” and “supported in the research literature he referenced,” the court “reaffirmed” the 1:15 ratio requirement (Abbott v. Burke, 2000, p. 92). Finally, the court discussed other insufficient state responses to Abbott V, including regulations governing day care provider contracts and funding. The court particularly focused on features of the regulations that were “designed to provide for supervision of small children in a daycare setting . . . they are not designed to provide a preschool educational experience that prepares disadvantaged children to achieve academically in school” (p. 92). Emphasizing that “quality preschool programs are a critical component of the whole school reform effort approved in Abbott V” (p. 96), the court ultimately found that the state’s actions violated Abbott V’s requirement that high-quality preschool programs be implemented in all the Abbott districts and ordered the state to alter its actions accordingly. Since Abbott VI, New Jersey has begun to implement full-day preschool programs for 3- and 4-year-olds in the Abbott districts (New Jersey Department of Education, 2005).¹²

NORTH CAROLINA

As is true with many other school finance cases (such as Abbott), the school finance case in North Carolina that involved the preschool remedy bounced between several courts over the course of several years. The case began as Leandro v. State. In this suit, five poor rural counties filed suit in May 1994 against North Carolina primarily using equity- and adequacy-based arguments. The plaintiffs cited several problems with school funding in North Carolina and claimed that, as a result, they did not have sufficient school materials to support student learning, such as laboratory equipment and textbooks. In October 1994, six wealthier urban school districts filed a complaint against North Carolina and became plaintiff-intervenors in the suit (and were thus effectively treated as plaintiffs as well). Unlike the five rural counties, the plaintiff-intervenors did not focus on interdistrict funding disparities; instead, the plaintiff- intervenors focused on the issue of funding for “at-risk” students.

After winding its way through a state-level trial court and appeals court, Leandro was eventually heard by the North Carolina Supreme Court in 1997. This court rejected the plaintiffs’ argument regarding the equalization of educational resources but unanimously found the adequacy argument more persuasive. In its decision, this court expressed a strong awareness of the problems that had persistently plagued other courts hearing school finance cases: The court indicated that “judges are not experts in education and are not particularly able to identify in detail those curricula best designed to ensure that a child received [an adequate education]” (Leandro v. State, 1997, p. 259). The court accordingly indicated that “the legislative process provides a better forum than the courts for discussing and determining what educational programs and resources are most likely to ensure that each child of the state receives a sound basic education” (p. 259). But the court also indicated that it had a duty to address a constitutional violation where it perceived one and accordingly allowed the case to proceed. Up through the state supreme court’s 1997 decision, the focus of the case was on whether there was a sufficient legal foundation to support continuing judicial consideration of the case. This decision established that there was such a foundation because the state “has the duty of providing the children of every school district with access to a sound basic education” (p. 258) and remanded the case to Superior Court Judge Howard E. Manning Jr. for a full decision based on the facts of the case.

Because of the different factual issues applicable to rural students and urban students, Judge Manning split Leandro into two separate cases. In the case focusing on rural education, entitled Hoke County Board of Education v. State, Judge Manning specifically looked at whether North Carolina students were receiving an adequate education as required by Leandro.¹³ In determining whether students had received adequate educations, Judge Manning was required to sort through a huge volume of technical educational information. The plaintiffs called 26 witnesses and introduced other testimony by deposition, and the defendants called 17 witnesses. By the time the trial had concluded, the parties had submitted 670 documentary exhibits totaling thousands of pages (Hoke County Board of Education v. State [Hoke County I], 2000, p. 8). After the trial, Judge Manning issued a series of four lengthy opinions over a span of approximately a year and a half, with each opinion focusing on separate aspects of the trial. These opinions analyzed a wide range of educational issues, including curricular offerings, the state funding delivery system, the state accountability system, and the educational needs of at-risk students. The second of these four opinions focused on the value of preschool for at-risk children.

Judge Manning’s belief in the potential efficacy of preschool was present before the trial in Hoke even began. Approximately a year before the trial, Judge Manning raised on his own motion the issue of preschool-age children’s rights. The judge then discussed with the lawyers for both parties the “necessity for a determination at an early stage of the proceedings” of whether

children under age five, who may be at-risk of not being in a position to perform and compete with others at the time they enter the five year old kindergarten program setting, are entitled to educational rights under the North Carolina constitution sufficient to prepare them for entry level into the five year old kindergarten. (Hoke County Board of Education v. State [Hoke County I], 2000, pp. 6–7)

Judge Manning then determined that, before the trial began, the parties could file amended complaints on this issue (Manning, 1998). The plaintiffs filed such complaints and argued that to receive an adequate education, children living in poverty need to receive preschool.

The opinion evaluating the claims about preschool began with an analysis of the characteristics of at-risk students and the educational problems they face. Judge Manning described at-risk students as a term “liberally used to describe students who are at-risk of academic failure” (Hoke County Board of Education v. State [Hoke County II], 2000, p. 1). He then continued that these students may be “performing below expected levels of proficiency; may be engaged in behaviors such as violence, absenteeism, drug/alcohol use, and disruptive behavior in the classroom” (p. 1). Furthermore, Judge Manning indicated that students who score at “Level II” or below on state tests (i.e., who have not scored at a “proficient” level or higher) are considered “academically at-risk because they have failed to master at least part of the skills required for an adequate education.” (p. 1). Judge Manning then highlighted nine socioeconomic conditions that he believed placed students at risk for academic failure: “(1) poor health, (2) poverty, (3) family break-up and instability, (4) low parental education, (5) inadequate or unstable housing. (6) racial/ethnic minority status, (7) lack of English language proficiency, (8) criminal activity in the school or neighborhood, and (9) parental unemployment or underemployment” (p. 4). Following these efforts to define an at-risk student, Judge Manning examined student performance in various grades, disaggregated by categories such as race and inclusion in Title I programs. Based on this evidence, Judge Manning found that “the answer to the question as to why these at-risk children are sorely lagging behind the majority is simple. When these children came to kindergarten at age five, they were at-risk, already behind, not ready to learn” (p. 26).

At this point in the opinion, Judge Manning turned his attention to preschool as a solution for the academic problems faced by at-risk students. According to the judge, “witnesses for all parties agreed that providing a quality pre-kindergarten program is an effective means of increasing the performance of low-income and otherwise at-risk students” (Hoke County Board of Education v. State [Hoke County II], 2000, p. 29). Judge Manning additionally indicated that a large body of research supports the efficacy of quality preschool programs. He stated, “Studies consistently have found that the quality of a pre-kindergarten program is important in determining whether such program will have any effect on improving the skills of low-income children upon entry into kindergarten” (pp. 30–31). And he indicated that several large-scale research studies (on preschool programs including the Carolina Abecedarian Project and the Perry Preschool Program) provide evidence of “both long-term and short-term positive effects on children’s development and academic achievement” (p. 32). Importantly, the judge did not seriously address potential ambiguities or complexities in the preschool research.

The final piece of Judge Manning’s analysis linked the potential benefits of preschool with the precise ways in which he believed students were failing to receive an adequate education. Judge Manning examined the academic performance of students in Hoke County (which contained students with several of the “risk factors” cited earlier by the judge) and then examined the preschool offerings in this county. Finding that only about one third of the at-risk students who needed preschool were actually enrolled in it, Judge Manning concluded that the state was failing to fulfill its constitutional duty. Moreover, Judge Manning emphasized, “Unfortunately, this pre-kindergarten program deficit permeates throughout the State of North Carolina for at-risk children who are not presently entering kindergarten ready to learn or take advantage of an equal opportunity to begin to obtain a sound basic education” (Hoke County Board of Education v. State [Hoke County II], 2000, p. 43). Based on this analysis, Judge Manning issued an expansive remedial order: “Pre-kindergarten educational programs for at-risk children . . . must be expanded to serve all of the at-risk children in North Carolina that qualify for such programs” (p. 46). Because the analysis and remedy discussed previously were included in only the second out of four opinions, Judge Manning found North Carolina deficient in other ways as well. For example, in the fourth ruling, the judge found that many students in the state were not being taught by qualified teachers, who were in turn led by qualified principals, and that it was the state’s duty to fix this problem (Hoke County Board of Education v. State [Hoke County IV], 2002). Shortly after this final decision came down, the state appealed, and the case went directly to the North Carolina Supreme Court.

The state supreme court agreed with Judge Manning about almost all aspects of his decision but notably disagreed about the justifiability and potential utility of the preschool remedy (Hoke County Board of Education v. State of North Carolina, 2004). The supreme court agreed that students in Hoke County were failing to obtain an opportunity to attain an adequate education because the state had failed to provide the necessary means for this opportunity and because there was an inordinate number of at-risk students whose needs were not being met. The North Carolina Supreme Court, however, concluded that the preschool remedy was not justified. The court framed its analysis of the preschool remedy in terms of the relationship between governmental branches: The court stated that the preschool mandate infringes on the “duties and expectations of the legislative and executive branches” (p. 373) and highlighted the greater expertise possessed by these branches in matters of educational policy. The court specifically noted that North Carolina had already begun to implement educational programs to respond to unacceptable education conditions and that “the imposition of a narrow remedy . . . would effectively undermine the authority and autonomy of the government’s other branches” (p. 393).

But in addition to these formalistic legal concerns, the court also dug into the evidentiary foundation for Judge Manning’s decision. The court stated,

The evidence shows that the State recognizes the extent of the problem—its deficiencies in affording “at-risk” prospective enrollees their guaranteed opportunity to obtain a sound basic education—and its obligation to address and correct it. However, a single or definitive means for achieving constitutional compliance for such students has yet to surface from the depths of the evidentiary sea. Certainly, both sides have conceded that pre-kindergarten is, and can be, an effective method for preparing “at-risk” prospective enrollees for the rigors of their forthcoming education. Nevertheless, neither side has demonstrated to the satisfaction of this Court that it is either the only qualifying means or even the only known qualifying means. (Hoke County Board of Education v. State, 2004, pp. 394–395)

Particularly emphasizing that the other two governmental branches “have developed a shared history and expertise in the field that dwarfs that of this and any other Court” and that “strict enforcement [of the preschool remedy] could undermine the State’s ability to meet its educational obligations for ‘at-risk’ prospective enrollees by alternative means” (p. 395), the court upheld Judge Manning’s finding of a constitutional violation but reversed the portions of Judge Manning’s order requiring North Carolina to provide preschool services to at-risk students (Hoke County Board of Education v. State, 2004).

RESEARCH ON PRESCHOOL

Given that both Abbott and Hoke involved arguments about providing free public preschool to students and judicial consideration of the social science evidence underlying these arguments, it is vital to consider current research on preschool itself. The number of preschool programs has grown dramatically across the country in recent years. In the spring of 2001, 60% of prekindergarten children under age 6 were in some form of care or education on a weekly basis from a caregiver who was not a parent (Mulligan, Brimhall, West, & Chapman, 2005). In the 2004–2005 school year, 38 states offered state-funded preschool programs, and state preschool initiatives served over 800,000 children, which represents an increase of about 16% from the 2001–2002 school year in the number of children served (Barnett, Hustedt, Robin, & Schulman, 2005). In the same school year, total state spending for preschool initiatives reached $2.84 billion (Barnett et al.).

Preschool arguably has a much more solid research base than many other types of educational initiatives being implemented in the United States. Some early childhood programs appear to have yielded measurable benefits for students in the short run and some benefits that persist after a preschool program has ended. For example, some preschool programs appear to have promoted short-term emotional development and to have produced measurable short-term gains in students’ IQ scores (Ehrlich & Kornblatt, 2004). In addition, Zill, Collins, West, and Hausken (1995) found that children who attended Head Start, prekindergarten, or other center-based preschool programs had higher emerging literacy scores at 4 years of age. Other researchers have also concluded that some programs produced short-term gains in student achievement (Ackerman, Barnett, & Robin, 2005; Magnuson, Meyers, Ruhm, & Waldfogel, 2005). Furthermore, a recent analysis of data from the Early Childhood Longitudinal Study showed that U.S. children who attended center- or school-based preschool programs had higher reading and mathematics scores in kindergarten and first grade than those who were cared for exclusively by their parents (Magnuson, Meyers, Ruhm, & Waldfogel, 2004). Other research shows that, in some cases, achievement gains may persist for years after a program has ended (Barnett, 1995; Currie, 2000). Finally, there is evidence indicating that some preschool programs result in reduced grade repetition (Magnuson et al., 2004) and fewer special education placements for disadvantaged students in the long term (National Research Council, 1998).

Participation in preschool may be particularly advantageous for disadvantaged children. Magnuson et al. (2004) found that children who were disadvantaged received greater benefits from center- and school-based preschool programs than those who were not. Unfortunately, Mulligan et al. (2005) found that American children living below the poverty line are more likely to be in the care of relatives, whereas children at or above the poverty line are more likely to be in the care of nonrelatives or attend centers. Thus, participation in preschool programs is less likely for disadvantaged children despite the apparent positive relationship that participation has with gains in academic achievement and the narrowing of achievement gaps.

Perhaps just as germane to an evaluation of preschool programs in the context of school finance reform, researchers have argued that the implementation of preschool programs results in long-term cost savings. Because of preschool, students appear to have stronger chances to succeed in various aspects of their lives (Karoly et al., 1998). This success can result in increased tax revenues, decreased welfare outlays, reduced expenditures for education, health, and other services, and reductions in crime. As a result, researchers at RAND cast high-quality preschool as a form of economic development with the potential to save the state of California $2.62 for every $1 invested (Karoly & Bigelow, 2005). Assuming a 70% participation rate, these researchers conservatively estimated the net present value of the savings associated with the provision of high-quality preschool at $2.7 billion annually for California.

Findings such as those reviewed here have led several scholars to argue that universal, high-quality public preschool is an educational and economic imperative (Zigler, Walters, & Jones, 2006). To be scalable, however, it is necessary to identify the features of preschool that produce desirable results. To this end, some recent evidence suggests that a qualified and well-compensated staff, low teacher-student ratios, small class size, and longer program duration likely contribute to positive effects of preschool programs on student achievement (National Research Council, 2001). Focusing in part on the features that produce high-quality preschool, Montie, Xiang, and Schweinhart (2006) examined preschools in 10 countries to analyze the impact of 4-year-olds’ experiences in those preschools on their cognitive and language performance at age 7. These researchers found that cognitive scores at age 4 were strongly and positively related to scores at age 7 and that the magnitude of the effect was related to two country-level predictors: the average time adults spent teaching, and the percentage of proposed preacademic activities. It is important to note that the findings of the effects of several important preschool design features were highly nuanced. For example, Montie et al. found that in countries where the percentage of free-choice activities predominated, each standard deviation increase in adult-child interaction resulted in a .18 SD increase in age 7 cognitive scores. However, in countries where free choice was a standard deviation below the mean, scores dropped .18 SD for every standard deviation increase in adult-child interaction.

Other recent studies have looked at the features of high-quality preschool as well. The National Institute of Childhood and Human Health Development (NICHD) Early Child Care Research Network (2002) found that although family characteristics such as parenting, maternal education, and income show the strongest association with cognitive outcomes, overall child care quality was a moderately strong predictor of these outcomes. In this study, children who attended high-quality child care scored higher on preacademic skill and language than those who attended lower quality child care. The measures for high-quality child care in this study largely centered on characteristics of the caregivers, such as the extent to which the caregiver expressed positive affect, spoke positively, and stimulated social development. A follow-up NICHD study found that the relationship between quality preschool and cognitive development continued through third grade (NICHD Early Child Care Research Network, 2005). However, NICHD (2002) also indicated that child care can have a negative effect on children: Children who averaged 30 or more hours of child care per week during their first 4.5 years had more problem behaviors at age 4.5 than children who averaged less than 10 hours of child care.

Importantly, some researchers have argued that there are several limitations to the research evaluating the effectiveness of preschool programs. One criticism focuses on the justifiability of drawing causal inferences from this research; much of the research on preschool has employed quasi-experimental and nonexperimental study designs that do not use random assignment (Olsen, 1999; Shonkoff & Phillips, 2000). Some researchers have also argued that it is difficult to compare many preschool studies because most of the preschool programs studied vary in significant respects, including the location and nature of services provided, risk factors used to select participants, and ages when preschool intervention takes place (Karoly et al., 1998). Thus, despite the existence of several studies on the effects of preschool, there is limited evidence about the comparative effectiveness of specific designs and instructional approaches for preschool.

However, researchers have focused on some model programs—small-scale programs implemented in specific communities by researchers with expertise in child development—as providing useful information about the efficacy of preschool programs. Currie (2000) argued that four such programs, including the Abecedarian Project and Perry Preschool Program (cited by courts in both Hoke and Abbott), stand out because they used random assignment, were relatively free of attrition bias, and followed students. Indeed, as Currie highlighted, evidence from these projects suggests that model preschool programs can have positive long-term effects on academic performance.

Nonetheless, precisely what made such programs successful is somewhat unclear. For example, among the four model programs cited by Currie (2000), the Abecedarian Project had an infant program, whereas the Perry Preschool Program did not (Carolina Abecedarian Project, 2000). Although certain aspects of preschool programs—such as small class size, better qualified teachers, and daily length of preschool programs—may increase the likelihood of productive interactions between teachers and children, researchers have yet to articulate the exact contribution of such features and precisely what such features should look like (National Research Council, 2001). Moreover, as discussed, the research that has recently begun to highlight the features of quality programs is highly nuanced, and the range of features that constitute program quality is quite broad (Christina & Nicholson-Goodman, 2005). At the very least, some researchers have suggested that even quality preschool programs by themselves are not enough to create lasting effects with large magnitudes on variables such as student achievement; preschool likely needs to be a part of an intervention program sustained over several years to achieve such results (Karweit, 1989; Lee & Loeb, 1995; National Institute of Child Health and Human Development Early Child Care Research Network, 2004; Slavin, 1994).

Some researchers have also argued that the extant research is unclear about the effects that different criteria for program eligibility have on program effectiveness. Karoly et al. (1998) highlighted that many preschool programs that have been studied in detail, including the model programs discussed earlier, focus on providing services to “at-risk” children. In such programs, the term at-risk generally refers to children who are subject to one or more “stressors” in the form of cognitive, emotional, or resource deficiencies. However, as Karoly et al. also noted, different programs have used different definitions for children who are most at risk, and have targeted populations based on such differing definitions.

Perhaps most important, researchers have highlighted potential problems in scaling up preschool programs to impact large numbers of children. The model programs that have yielded the most solid information on the benefits of preschool were undertaken with a relatively high level of resources and highly trained staff (Cardiff & Stringham, 2006; Christina & Nicholson-Goodman, 2005). At this point, it is uncertain whether state agencies can gain enough resources to sufficiently duplicate model programs, whether large-scale programs can attract staff with the same training and stake in the outcomes as the staff who implemented model programs, and whether large-scale programs can ensure consistent services in the context of fragmented and multilayered systems of governance (Christina & Nicholson-Goodman). One would hope that the federal Head Start program, which has provided a comprehensive set of educational, health, mental health, and social services to low-income children across the country for over 30 years, could provide reliable information on the effectiveness of scaled-up programs. But researchers’ opinions on the program’s impact are divided. For example, although the General Accounting Office located 600 studies on Head Start, it identified only 22 studies that it considered sufficiently rigorous, and the GAO identified many methodological and design weaknesses even in these studies (GAO, 1997). As a result, the GAO concluded that the body of research on Head Start is inadequate for drawing conclusions about the impact of this program in any area in which it provides services. So, although researchers have found that certain preschool programs are effective in certain contexts, the research community has yet to consistently agree about efficacy of preschool to produce the same effects in various contexts at a broad level.

DISCUSSION

Together, the particular historical and legal background of school finance reform litigation, the roles that the courts have broadly played in educational policy, the actions of the courts in North Carolina and New Jersey, and the research on preschool offer important insight into the preschool remedy. On one hand, the preschool remedy constitutes a well-targeted response to major problems that courts ruling in school finance reform cases have persistently faced in the past. As a result of vague education clauses and concerns about the effectiveness and justifiability of crafting precise remedial orders without more specific legal text, courts ruling for plaintiffs in school finance cases have often issued vague orders to states. Without specific direction and in often hostile political climates, legislatures have repeatedly failed to respond effectively to such orders. And even when legislatures increased educational funding as a result of such orders, student achievement did not consistently rise. Ordering the preschool remedy appears to constitute a well-reasoned response to such problems. Compared with general increases in funding for plaintiff districts, this type of remedy is very precise. Even if state politics weigh against the implementation of more preschool programs, failure to implement these programs would put the state in direct violation of a court order. Indeed, as discussed in this article, researchers have suggested that the courts represent a venue where disadvantaged groups can go to overcome low levels of political will.

Ordering the preschool remedy would also seem to bypass another problem that has plagued school finance reform litigation for years: uncertainty about the extent to which or ways in which “money matters.” Instead of simply ordering the equalization or augmentation of funds with the hope that such funds would be spent in appropriate ways to boost students’ educational opportunities, courts can impact the educational process more directly: Orders to implement preschool programs require funds to be spent in particular ways that have a direct impact on what children actually do. Moreover, researchers have suggested that preschool programs ultimately result in long-term monetary savings. Given that school finance reform litigation is at least in part due to limited resources at the state level, such a result would appear quite desirable to courts ruling in school finance reform cases. And researchers have suggested that preschool programs ultimately result in long-term achievement gains. Without ordering a remedy with such a degree of specificity and at least the promise of increasing student achievement and conserving limited resources, courts hearing school finance cases may well continue to face the problems that have persistently plagued them in the past.

On the other hand, the preschool remedy raises several concerns. Although preschool appears to be a potentially effective step for providing at-risk students with educational opportunities that can be considered adequate, there is still much about preschool on which education researchers have yet to agree. The judicial consideration of preschool in the cases in North Carolina and New Jersey glossed over important ambiguities and complexities in the research on preschool. One important area in which the courts disregarded such complexities involves the criteria that should be used for inclusion in preschool programs. Judge Manning articulated several quite precise indicators for determining whether children were “at-risk” and accordingly should be served by preschool programs. Without delving into the particular characteristics of at-risk students, Judge King broadly indicated that all students in the Abbott districts should receive preschool. Preschool researchers, however, have yet to consistently agree on the precise characteristics of students who should be present in order for preschool to constitute a particularly effective educational intervention.

Judges in North Carolina and New Jersey also disregarded complexities regarding the characteristics of a quality preschool program. Judge Manning, Judge King, and the New Jersey Supreme Court ruled that their respective states must implement quality preschool programs. Judge Manning did not specify exactly what constitutes a quality program; he left this decision up to the state. Judge King was more specific about the details of a quality program; he indicated that such a program is one that lasts the entire day. The New Jersey Supreme Court was also quite specific but differed on the details: This court indicated that a half-day preschool program can be high quality but also added in Abbott V that such a program is characterized by a teacher-student ratio of at least 1:15 and teachers who have bachelor’s degrees. Although the research on preschool has focused on the need to have a quality program and on features such as class size, teacher quality, and daily program length that are integral to support such a program, researchers have not consistently reached agreement about the precise effects of such features. Moreover, to the extent that recent research has highlighted important features of a quality preschool program, such findings are quite nuanced, and the range of features pointed to by researchers is very broad. And as discussed in this article, research indicates that a significant amount of child care per week may result in increased behavioral problems.

Judges in both cases also did not seriously address potential problems in the designs of the research that supported the imposition of a preschool remedy. Judge Manning, Judge King, and the New Jersey Supreme Court stated that several studies, such as the Abecedarian Project and Perry Preschool Program, support the conclusion that preschool constitutes an effective intervention for providing at-risk students with stronger educational opportunities. Although these studies certainly provide some evidence for this conclusion, there are potential issues concerning this research that these courts did not discuss. As discussed earlier, some researchers have criticized such studies on methodological grounds, and some researchers have also argued that preschool programs need to be combined with other interventions to be effective. Although the courts in North Carolina and New Jersey also ordered the implementation of other reforms, these courts did not devote significant attention to the potential difficulties of aligning preschool programs with other interventions. Perhaps most important, none of the courts seriously addressed the potential problems associated with scaling up preschool programs. Without addressing these potential problems, the courts glossed over one of the biggest potential hurdles for enacting quality preschool programs for entitled students.

In addition to the concerns raised by the ways in which each court discussed the reasons for their orders to implement preschool programs, a comparison of the ways in which the courts considered preschool raises concerns as well. There is very little consistency in the ways in which courts in North Carolina and New Jersey addressed preschool. Judge Manning, Judge King, and the New Jersey Supreme Court all indicated that preschool has a quite solid research foundation, but they differed, sometimes dramatically, in the features of preschool programs that they considered mandatory. The North Carolina Supreme Court found that the evidentiary foundation supporting preschool was not sufficient to justify the preschool remedy.

There are several potential reasons underlying the courts’ treatment of preschool in an inconsistent way that reflect a lack of nuanced understanding of the underlying research. First, much of the research on preschool does not easily lend itself to policy-making by any policy-making body, including both courts and legislatures. As discussed, some key conclusions in the research are tentative, and more research evidence is needed. Some of the research is also very complicated, and the findings are sometimes highly nuanced. Indeed, the nature of scientific research as an enterprise aimed at the creation of justifiable knowledge in part weighs against the easy and direct applicability of scientific knowledge to making concrete policy decisions.

Other limitations inherent in the institutional structure of courts also appear to have influenced the judges’ treatment of the preschool remedy. The courts’ lack of technical and educational capacities likely contributed to their treatment of the preschool research. In both of the cases, judges were required to sort through, analyze, and synthesize a large amount of complex information. Most of the courts examined in this study appeared to confidently stride forward without deeply considering the potential limitations in the research. In this respect, the courts seem to have fallen into the “false sense of security” described by Welner and Kupermintz (2004) that can emerge when courts deal with technical evidence in education. Even in the Abbott litigation, the presence of a special master was not sufficient to facilitate a more nuanced consideration.

Moreover, the applicable legal language in both cases was quite vague; the preschool remedies in both cases were crafted to ensure that states comply with the ambiguous requirements of education clauses and provide students with adequate educational opportunities. Without precise guidelines, the courts appeared somewhat adrift in the evidentiary sea described by the North Carolina Supreme Court. In the context of this vague language, there were substantial differences among the courts’ considerations of the legal foundation for ordering a preschool remedy. Whereas the New Jersey Supreme Court felt that there were strong constitutional underpinnings for ordering the implementation of preschool, the North Carolina Supreme Court found that imposing this remedy would violate the separation of powers principle by infringing on the duties of other branches. Although it is unclear whether these courts’ consideration of preschool was limited by the preschool research, their abilities to understand technical educational issues, the precise evidence (or lack thereof) presented, judges’ preexisting beliefs in the efficacy of preschool, or the applicable legal frameworks, it is likely that a combination of these factors impacted the courts’ decision-making. Regardless, it seems clear that these courts did not express a nuanced understanding of some major issues involved with implementing preschool programs, and it is unclear whether the courts ultimately can do so consistently in the context of school finance reform litigation.

CONCLUSION

The preschool remedy represents a dramatic departure from the types of remedies ordered in the past by courts ruling in school finance reform cases, and a new willingness to delve into the details of educational policy. Although the courts had long been content to issue rather vague orders to states focusing largely on funding for education, courts have begun to experiment with new types of more specific remedies requiring the implementation of particular educational programs or systems of governance. The preschool remedy is one of the most common of these remedies.

As an analysis of the cases in North Carolina and New Jersey indicates, it appears that the preschool remedy entails both significant opportunities and potential pitfalls. Because of certain persistent problems facing school finance reform litigation, the effectiveness of this litigation has been quite mixed. The preschool remedy (and other like remedies) constitutes a well-reasoned and targeted response to some of these problems: The preschool remedy addresses problems stemming from the vagueness of legal orders, political realities in states, and a lack of knowledge about the extent to which “money matters” by providing states with very specific actions to take. The preschool remedy, however, also raises concerns because courts consider it somewhat inconsistently and, at least sometimes, with apparent disregard for the educational ambiguities and complexities involved with designing and implementing preschool programs. The courts in New Jersey and North Carolina specifically considered the preschool remedy with a lack of attention to complexity, may have been relying on false assumptions, and appeared to exhibit a false sense of security in their knowledge. If courts do not change their approach, the problems they have persistently faced in school finance cases are likely to persist. But if courts continue down this path, they appear likely to face a new set of problems resulting from oversimplified considerations of preschool and the resulting imposition of legal mandates.

At this point, the precise contours of the problems that would arise from remedial orders to implement preschool are unclear. The preschool remedy in school finance reform cases is a quite recent phenomenon, and researchers have yet to conduct detailed analyses of preschool programs implemented under court orders. According to Reed (2001), however, the precise language of opinions in school finance cases has constituted an important factor guiding the shape of school funding policies subsequently instituted by state legislatures. The language of opinions ordering preschool remedies in the context of school finance cases would likely function in a similar fashion. Where courts gloss over potential design and implementation issues for preschool programs in their opinions, preschool programs instituted by states may ultimately be less effective than they otherwise could have been. In the worst case scenario, judicial opinions may gloss over fundamental design and implementation issues, such as the abilities of states to scale up model programs, and the widespread implementation of preschool programs may be ineffective. As a result, states may spend significant time, money, and energy to comply with judicial orders with little to show for their efforts.

This problem appears to be exacerbated when courts ruling in school finance reform cases order similarly specific remedies involving programs other than preschool. Preschool has perhaps the most extensive research base of all the educational programs recently ordered by courts in adequacy litigation. If courts have difficulties considering preschool programs in a nuanced fashion, they will likely experience even greater difficulties considering other programs that may have less extensive research bases. In the specific case of preschool, some of these concerns may be a moot point. As discussed, a large majority of states have begun to offer state-funded preschool programs without any sort of judicial mandate. However, several states have not, and the judicial consideration of the preschool remedy still raises concerns about, and points to, the need for more research on other types of detailed remedial orders.

Given the opportunities and potential pitfalls of the preschool remedy, it seems that courts need to find some sort of middle route moving forward; courts need to find a way to craft remedies for violations of education clauses that respond to problems they have faced in the past while also maintaining a complex and nuanced consideration of educational programs and research. There are several possible approaches that the courts could take. In addition to the strategies employed in Abbott and Hoke (e.g., reliance on the evidence submitted by the parties and on testimony offered at trial, and the appointment of a special master), courts can convene expert panels and order additional fact finding to better understand the research underlying potential remedies. Sturm (1991) suggested that a court ruling in public law litigation should institute a deliberative process in which representatives of the stakeholders potentially impacted by the decision negotiate an acceptable remedy. After the negotiations occur, the stakeholders should file reports, and the court should hold a public hearing to hear objections to the proposed remedy. Because such strategies entail an increased amount of information, flexibility in the presentation of information, and a range of sources of information, using an array of these strategies in combination with each other in adequacy litigation may better ensure that the courts have a nuanced view of the pertinent research.

Alternatively, the courts could look to other governmental organizations that are potentially better positioned to deal with complex educational matters. Legislative processes are more flexible than judicial processes and give an array of interested parties the opportunities to weigh in on policy decisions. Some administrative entities, such as state departments of education, specialize in educational policy. Both legislatures and executive agencies make decisions that are less final than courts because of the binding quality of precedent. Recognizing the potential advantages of other governmental branches, some courts have already begun to look to these branches for help in school finance reform cases; some courts have looked to state standards to flesh out the concept of adequacy (Heise, 2002). These standards are generally developed through a long interplay between legislative and executive entities, and after detailed consideration of expert educational opinion. Similarly, looking to decisions made by other governmental branches to flesh out remedial orders may help the courts avoid some problems they have experienced in their consideration of complex educational matters.

Beyond the particular advantages and disadvantages of the preschool remedy, this study also highlights one of the most important issues in educational policy from a broader standpoint:  the difficulties of crafting educational policies with limited and complex information. Most (if not all) fields of education research are ambiguous or complex in some key respects, and it is often difficult for policy makers to determine precisely what programs should be implemented in particular contexts to produce desired effects in the most efficient fashion possible. Still, it is the job of policy makers to make decisions about program design and implementation. In both Hoke and Abbott, the courts ran into precisely this problem: They looked to a considerable, but ultimately limited and complex, body of research to make policy. Even if the courts had considered this research in a more nuanced fashion, the research still would not have offered them a direct and simple guide about how preschool should be designed and implemented. Given the limitations of educational research, other governmental branches with potentially higher competence to deal with complex educational issues would have been required to deal with this issue as well. Indeed, the problems of governance in an increasingly technical and scientific field replete with politics (and sometimes arcane legal rules) are considerable, and policy-making in this context is extremely difficult for any governmental entity. It is the responsibility of policy makers and researchers to ensure that the interface between science and policy works as well as possible.

Notes

1. Courts have ordered the implementation of standards-based accountability systems in at least Massachusetts (Hancock v. Driscoll, 2004), New Hampshire (Claremont School District v. Governor, 2002), and New York (Campaign for Fiscal Equity, Inc. v. State of New York, 2003). Courts have ordered the implementation of class size reduction programs in at least New Jersey (Abbott v. Burke, 1998) and Wyoming (Campbell County School District v. State of Wyoming, 1998). Courts have ordered the implementation of preschool programs in at least Arkansas (Lake View School District No. 25 v. Huckabee, 2002; discussing the unpublished opinion of the trial court), Massachusetts (Hancock v. Driscoll, 2005), New Jersey (Abbott v. Burke, 1998), North Carolina (Hoke County Board of Education v. State [Hoke County II], 2000), and South Carolina (Abbeville County School District v. State, 2005). Courts have ordered the implementation of whole-school reform programs in at least New Jersey (Abbott v. Burke, 1998). Moreover, courts in Montana (Columbia Falls Elementary School District Number 6 v. State of Montana, 2004) and Ohio (DeRolph v. State, 2000) have construed standards-based reforms as integral to an educational system that provides adequate educational opportunities.

2. As mentioned, courts have ordered free preschool for children in Arkansas (Lake View School District v. Huckabee, 2005), Massachusetts (Hancock v. Driscoll, 2005), New Jersey (Abbott v. Burke, 1998), North Carolina (Hoke County Board of Education v. State [Hoke County II], 2000), and South Carolina (Abbeville County School District v. State, 2005).

3. For example, the General Accounting Office conducted a meta-analysis on the effects of Head Start and located over 600 studies.

4. The authors chose to limit this study to the cases in North Carolina and New Jersey because including the other two preschool cases would add relatively little value to the analysis. In Arkansas, a trial court ordered the preschool remedy in an unpublished opinion that is not readily available. Although the trial court’s order is discussed in the opinion of a reviewing court, the authors did not believe that the opinion of the higher court was sufficient to support a detailed analysis (Lake View School District No. 25 v. Huckabee, 2002). In South Carolina, a trial court also ordered the preschool remedy, but at the time of this writing, a higher court has not reviewed the justifiability of this remedy (Abbeville County School District v. State, 2005). In Massachusetts, the highest court issued a split decision in which three groups of justices considered the preschool remedy differently, and none of the justices addressed the justifiability of the preschool remedy in considerable depth (Hancock v. Driscoll, 2005).

5. To be sure, some claims regarding social issues were brought during the beginning of the 20th century. For example, in the foundational case Pierce v. Society of Sisters (1928), an order of Catholic nuns challenged the constitutionality of a state statute requiring children to attend public instead of private schools. However, most educational claims were not directed at these sorts of issues.

6. To be sure, the difference between public law litigation and the more traditional form of litigation (sometimes referred to as “adjudicatory”) in education is somewhat hazy; several cases involve legal processes that contain elements of both forms. However, for sake of clarity in introducing these ideas, we have described the models in their “purest” forms. The cases on which this article particularly focuses constitute remarkably pure examples of public law litigation.

7. A special master is typically a lawyer, magistrate, or scientist appointed by a court to assist with difficult issues at trial, including understanding expert testimony about scientific claims. After the presentation of scientific evidence, special masters generally submit reports to the court, which in turn become evidence.

8. Koski (2003) argued that the wave metaphor is not entirely accurate. However, we have used the wave metaphor here because it is useful for structuring a brief overview of the history of school finance reform litigation.

9. In contrast to state constitutions, the U.S. Constitution does not contain an education clause and includes no explicit mention of education anywhere in its text (Enrich, 1995).

10. In 1998, the New Jersey legislature expanded the number of Abbott districts to 30 under powers granted by the New Jersey Supreme Court. In 2004, the New Jersey legislature designated a 31st Abbott district.

11. The plaintiffs particularly argued that preschool programs, including the following components, should be provided to 3-, 4-, and 5-year-olds: Full-day, year-round school, classrooms of 15 students, one certified early childhood education teacher and one trained aide per class, extended day care health and social services, collaborations with Head Start and other community-based agencies and providers, professional development, and supervision.

12. During the 2004–2005 school year, the Abbott districts enrolled over 39,000 children, 3 and 4 years old, in preschool. Abbott preschool classrooms combine a 6-hour, 180-day-per-year component (run by the New Jersey Department of Education) with a wraparound program that provides daily before- and after-care and summer programs (run by the Department of Human Services). Given the state of the available data about program implementation, it is very difficult to draw solid conclusions about the implementation of preschool programs in Abbott districts thus far.

13. Notably, Jude Manning never launched a second trial because the plaintiff-intervenors were generally allowed to participate in Hoke, and Judge Manning’s ruling in Hoke applied to both the plaintiffs and plaintiff-intervenors.

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APPENDIX

METHODS

To collect the data pertinent to Abbott and Hoke, the authors first examined several Web pages and newspaper articles. These sources were used to help construct the basic anatomies of the cases. The authors then obtained several documents filed with the Hoke and Abbott courts from various online sources, such as LexisNexis, Westlaw, and Web sites run by individuals and organizations interested in the cases. These documents included judicial opinions, briefs, complaints, and reports. After collecting these data, the authors engaged in two primary types of analyses. First, the authors conducted analyses that are more traditionally thought of as “legal” (Murray & DeSanctis, 2006). That is, the authors identified the shape and scope of the legal issues in question (which largely pertained to litigation stemming from school finance reform). Then, using online legal search engines, the authors identified the cases, constitutional provisions, statutes, rules, and administrative regulations that pertained to these issues. The authors furthermore identified the claims, causes of action, and defenses that were brought or asserted with regard to the cases in question. Following the identification of these legal elements, the authors developed an understanding of the rules, principles, and basic reasoning at play in Abbott and Hoke and how the legal mandates applied to the arguments presented by the parties in the cases.

Second, the authors engaged in a historical case study analysis of the documents (Skocpol, 1984). Historical case studies are useful for considering “questions about social structures or processes understood to be concretely situated in time and space” (p. 1). The authors treated Abbott and Hoke as separate historical cases and examined various documents to construct the historical narratives of these cases, including judicial opinions, briefs, complaints, regulations, and reports. While doing so, the authors looked for emerging patterns grounded in the literature discussing the courts’ role in educational policy, the history of school finance reform litigation, and the literature analyzing the effectiveness of preschool programs. The authors then developed categories of judicial consideration that would highlight potential opportunities and pitfalls of judicial involvement in the particular context of the preschool remedy.

The authors also engaged in a detailed literature review of the research on preschool. This review of literature included a search of governmental reports on the rate of preschool participation, and research on the design of preschool programs and the educational and economic effects of participation.