Making a Case for the Right to Preschool

In 1965, the Head Start Program was launched as the first form of public early childhood education in the United States. Since then, early childhood education has become an increasingly important topic amongst families, legislators, advocates, and educators. High-quality early childhood education has life-long academic, developmental, and social impacts, but access to early childhood education differs substantially for children from different backgrounds. This disparity poses a complex issue: do children have a right to publicly funded preschool? A case could be made that children do have a right to publicly funded preschool. Part I will provide an overview of the right to education for American children, including a discussion of federal law, seminal court cases, and the role of state constitutions. Part II will consider legal claims for a right to preschool. Part III will outline the role that courts could have in expanding access to publicly funded preschools in the future. 

Part I: The Right to Education in America: An Overview

It is first necessary to examine the right to education in general. Many people falsely believe that education is a constitutionally protected right, but the U.S. Constitution does not mention education. However, per the Tenth Amendment, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the state’s respectively, or to the people.”¹ This effectively makes education a function of the states, which was further reinforced in 1973 by San Antonio Independent School District v. Rodriguez, which noted that education is a “matter reserved for the legislative processes of the various States.”² Both the Tenth Amendment and Rodriquez beg the following question: what right to education do the states provide? Ultimately, every state constitution mandates a public education system.³ The specific educational provisions vary within each state constitution, but all children in the US have a right to a free, public education per their state constitution.⁴

The federal government has limited power to intervene regarding educational rights, though Brown v. Board of Education exemplifies this when the court ruled that it was unconstitutional to segregate public school students based on their race because “such segregation is a denial of the equal protection of the laws.”⁵ Segregation violates the Equal Protection Clause of the Fourteenth Amendment, which says that States cannot “deny to any person within its jurisdiction the equal protection of the laws.”⁶ Applying the Equal Protection Clause in Brown set an important precedent because it established that the federal government could enforce equal access to education. However, despite the federal government’s ability to ensure equality in education, the general right to education still falls to the states.

Another relevant case regarding the right to education is Plyler v. Doe. This case struck down a Texas policy that charged tuition to undocumented children in public schools. Using the Equal Protection Clause, it held that undocumented children are indisputably “people” within the “jurisdiction,” granting them Fourteenth Amendment rights, so it was not constitutional to deny access to free, public education based on immigration status.⁷ This case is particularly relevant to understanding education rights because of how evaluated whether rational basis review or strict scrutiny was more appropriate for the application of the Equal Protection Clause. 

To invoke strict scrutiny, a law must (1) “disadvantage a suspect class” or (2) “impinge upon a fundamental right.”⁸ Plyler does not consider adult immigrants a suspect class because they have chosen to illegally enter the country, but the court points out that children are not responsible for their undocumented status, and it is unjust to “impose [a] discriminatory burden on the basis of a legal characteristic over which children can have little control.” Plyler concludes that it is “difficult to conceive of a rational justification for penalizing these children,” affording immigrant children some level of suspect classification.⁹

Furthermore, Plyler acknowledges the precedent established in Rodriguez that education is more than “merely some governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.”¹⁰ Given the vast importance of education in American society, denying undocumented children education effectively bars them from civic participation and meaningful contributions to the US; given the “costs to the Nation,” the court finds that preventing this group of children from education “can hardly be considered rational.”¹¹ Thus, Plyler does not directly apply strict scrutiny or rational basis review; instead, the court applies intermediate scrutiny. This seminal case established a precedent in education law by deeming that intermediate scrutiny was an appropriate level of analysis. 

Part II: A Right to Preschool?

With the current costs of private preschool, ensuring that all children have access to early education opportunities requires publicly funded preschool options. Public preschool has support from educators, families, and legislators across the political spectrum, but implementation is complex. In “A Constitutional Right to Preschool,” James Ryan argues that “pursuing litigation as a part of a larger political strategy is worthwhile.”¹² This section will examine two theories on which a legal argument could rest: (1) preschool as integral to an adequate education, and (2) preschool as indispensable for equal educational opportunity. Because the right to education is provided by state constitutions, the specific provisions vary from state to state, making some more ripe than others for making a legal claim. 

Ryan’s first legal argument rests on the notion that preschool is a component of adequate education. There is an important precedent for educational adequacy in school finance litigation, as plaintiffs have won cases where disparate funding violates the right to an adequate education. Ryan explains that courts in school finance litigation require defining a projected outcome and indicating that a specific input is necessary to reach the outcome.¹³ Using this framework, one could claim that preschool is an input that contributes to outcomes associated with educational adequacy (academic achievement, school preparedness, college/workforce readiness, etc.). In “High Quality Pre-Kindergarten as the First Step in Education Adequacy,” Ellen Boylan echoes this argument. Boylan explains that Rose v. Council for Better Education effectively expanded the adequacy theory by pointing out that ensuring children enter school poised to receive an adequate education requires providing early education opportunities — like preschool.¹⁴ Thus, Boylan argues that “state funding for these programs must be a central part of a constitutionally adequate system of education.” James agrees, stating that a “strong legal case, therefore, can be made for including universal preschool in any definition of the right to an adequate education.”¹⁵

Adequacy is not the only legal theory on which a right to preschool could rest, and courts may be more successful by supporting targeted efforts at expanding access to preschool.¹⁶ This argument utilizes a more constricted conception of adequacy, as it suggests that “disadvantaged children need more assistance in order to obtain an adequate education.”¹⁷ Preschool can be a valuable tool in making a narrower claim for adequacy, as much of the research focuses on the magnified benefits of preschool for children from disadvantaged backgrounds. Thus, in states where the courts may be hesitant to broadly institute a right to universal preschool, it may be advantageous to use a more targeted approach. 

Though both James and Boylan discuss the precedent of school finance litigation, neither comprehensively analyzes the scope of Plyler. However, the precedent of Plyler is quite relevant when raising a claim for a targeted expansion of publicly funded preschool. To begin analyzing the scope of Plyler, consider the two components required for strict scrutiny as outlined in the case: (1) “disadvantag[ing] a suspect class” or (2) “imping[ing] upon a fundamental right.”¹⁸ It may seem unlikely that low-income children would be granted suspect or quasi-suspect status based on Rodriguez’ precedent, but in “The Poor as a Suspect Class under the Equal Protection Clause: An Open Constitutional Question,” Henry Rose posits that “the issue of whether the poor are or are not a suspect class under Equal Protection was not answered by the majority in Rodriguez.“¹⁹ Rodriguez ruled that students in lower-income districts were not receiving an inadequate education or being discriminated against but made no judgements on if the poor were a suspect class. Rose concludes that “the status of the poor under the Equal Protection Clause of the Fourteenth Amendment remains an open constitutional question.”²⁰

Because Rodriguez does not apply to suspect status for low-income children, the precedent of Plyler must be considered. Plyler rejects the notion that undocumented adults are a suspect class, but it holds the children of undocumented adults to a different standard because their status is involuntary; this argument also applies to low-income children. In “Denying Protection to Those Most in Need: The FDA’s Unconstitutional Treatment of Children,” the author explains that children meet many qualifications for being a suspect class including that they have no political power and have an “immutable characteristic.”²¹ It is reasonable to believe that a suspect or quasi-suspect classification could be granted to low-income children.

If low-income children are deemed as a suspect or quasi-suspect class, the precedent of Plyler can be used to determine if a fundamental right has been infringed upon by not providing publicly funded preschool to targeted populations. Because Plyler extends distinct protection to education, Ryan argues that preschool should be considered education and granted the same protection. Forty-six states already provide some amount of publicly funded preschool; as enrollment in these programs continues to grow, “it may become harder for states to say that pre-K is not part of their public education systems,” and he adds that “at a certain point, suggesting that only some students are entitled to pre-K could be akin to saying that only some students can attend kindergarten — or third grade.”²²

The justifications cited in Plyler for protecting education also apply to preschool. Plyler states that equal access to education is necessary because “we cannot ignore the significant social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests.”²³ Preschool’s critical role in helping children absorb their elementary and secondary education means that the Nation has an obligation to ensure equal access to preschool. Akin to not educating undocumented children in Plyler, failing to provide low-income students with access to preschool “surely adds to the problems and costs of unemployment, welfare, and crime,” so “whatever savings might be achieved by denying these children an education, are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.”²⁴ While claiming a right to preschool is not completely synonymous with the right to education, much of Plyler applies, especially for disadvantaged children.

Part III: The Role of Litigation and the Courts in Expanding Preschool Access

The right to preschool in America is complex, but there is potential for successful claims to be made in state courts. In Abbott v. Burke, the New Jersey Supreme Court ruled that publicly funded preschool was a constitutional right to three- and four-year-old children in poor, urban school districts.²⁵ Further, cases that are lost in court still benefit preschool advocacy. Even introducing unsuccessful preschool litigation “raises the salience of the issue” and prompts legislators to act.²⁶ For instance, when the Arkansas Supreme Court overturned a state right to preschool, the legislature mobilized to expand funding and access regardless.²⁷ Ultimately, litigation in state courts — both successful and unsuccessful — is valuable for expanding preschool access. Using precedents in existing education litigation will be instrumental in transforming preschool equity for American children.

1. U.S. Constitution, amend. 10. ↩︎
2. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 6. ↩︎
3. Emily Parker, “Constitutional Obligations for Public Education. 50-State Review,” Education Commission of the States, March 2016, https://files.eric.ed.gov/fulltext/ED564952.pdf. ↩︎
4. ACLU, “Your Right to Equality in Education,” July 17, 2003, https://www.aclu.org/documents/your-right-equality-education. ↩︎
5. Brown v. Board of Education, 347 U.S. 483 (1954), 5. ↩︎
6. U.S. Constitution, amend. 14.  ↩︎
7. Plyler v. Doe, 457 U.S. 202 (1982). ↩︎
8. Ibid. ↩︎
9. Ibid. ↩︎
10. Ibid. ↩︎
11. Ibid. ↩︎
12. James E. Ryan, “A Constitutional Right to Preschool,” California Law Review 94 no. 1, (2006): 49-100. ↩︎
13. Ryan, “A Constitutional Right to Preschool.” ↩︎
14. Ellen Boylan, “High Quality Pre-Kindergarten as the First Step in Educational Adequacy: Using the Courts to Expand Access to State Pre-K Programs,” Children’s Legal Rights Journal 27, no. 1 (2007): 24-55. ↩︎
15. Ryan, “A Constitutional Right to Preschool.” ↩︎
16. Ibid. ↩︎
17. Ibid. ↩︎
18. Plyler v. Doe, 457 U.S. 202 (1982). ↩︎
19. Henry Rose, “The Poor as a Suspect Class under the Equal Protection Clause: An Open Constitutional Question,” Nova Law Review 34, no. 1 (2010): 401-421. ↩︎
20. Rose, “The Poor as a Suspect Class under the Equal Protection Clause.” ↩︎
21. Althea Gregory, “Denying Protection to Those Most in Need: The FDA’s Unconstitutional Treatment of Children,” Albony Law Journal of Science & Technology 8, no. 1 (1997): 121-150. ↩︎
22. James E. Ryan, “A Constitutional Right to Pre-K?” Education Week, March 9, 2016, https://www.edweek.org/teaching-learning/opinion-a-constitutional-right-to-pre-k/2016/03. ↩︎
23. Plyler v. Doe, 457 U.S. 202 (1982). ↩︎
24. Ibid. ↩︎
25. Boylan, “High Quality Pre-Kindergarten as the First Step in Education Adequacy.” ↩︎
26. Ryan, “A Constitutional Right to Preschool.” ↩︎
27. Ibid. ↩︎