Photo: Caroline Silber for Strategies for Children

Do children have a Constitutional right to attend preschool?

James Ryan, dean of the Harvard Graduate School of Education, says that they could.

“As enrollment in publicly funded pre-K continues to rise in many states, it might be time to dust off a law review article I wrote about a decade ago,” Ryan explains in an Education Week blog. Ryan was previously a law professor at the University of Virginia.

In the Ed Week blog, he writes: “All state constitutions guarantee a right to a public education, and most emphasize that public education should be free.”

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

One example that Ryan’s 2006 law review article points to is New Jersey, where the state’s supreme court “recognized a right to preschool for students living in poor, urban districts.” This was the result of a lawsuit, and Ryan argues “that pursuing litigation as part of a larger political strategy is worthwhile.”

The law review article adds:

“Many state legislatures seem poised to act and are rhetorically committed to expanding access to preschool. But thus far they have failed to follow through, most likely because of the costs involved and the specter of having to raise taxes to fund preschool.”

So even though polls show that most voters support universal access to preschool, many state legislatures aren’t taking action.

“By recognizing a right to preschool, courts could provide cover for risk-averse legislators who would like to increase access but fear repercussions from raising taxes or cutting other programs. This is precisely how some successful school finance cases have played out in the legislatures.”

One example is a preschool case that has been winding through Connecticut’s courts, WNPR reports:

“The Connecticut Coalition for Justice in Education Funding has sued the state, claiming that Connecticut’s funding system is unbalanced and has deepened the divide between the haves and the have-nots.

“One of the coalition’s arguments is that preschool should be available to all children. In October, a judge allowed this idea to be on the table when the case goes to trial.”

“The governor and the legislature have supported the idea of universal preschool, but implementation has been slow due to budget problems at the state.”

In this case: “The court could also decide whether something called ‘wrap-around services’ are an educational right. These are services that focus on the entire family, instead of just the student, like family counseling and school-based health clinics.”

In his Ed Week blog, Ryan says that New York City is making the public policy case. Ryan quotes Josh Wallack, the deputy chancellor of Strategy and Policy in the New York City School District, who said in an interview, “We see pre-K, as a central part of the public education system in New York.”

If what Wallack says is true, Ryan explains, “Don’t students therefore have a constitutional right to attend pre-K, the same way they have a constitutional right to attend kindergarten through 12^th grade?”

In his law review article, Ryan concludes:

“State legislatures and executive officials have already started down the path of providing access to preschool. Court decisions recognizing a right to preschool should move them further along that path. The ultimate destination will not be dictated by any court, as legislatures and officials will determine which of many forks in the road to take. But there is reason to be optimistic that the trip will be a productive one, leading more children to quality preschool programs, which would benefit them and the rest of us.”