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Where Courts CAN Make a Difference: The Case for a Constitutional Right to Preschool

James E. Ryan, University of Virginia School of Law

Article comments

forthcoming, California Law Review, January 2006

Abstract

Currently, a bit more than twenty-five percent of all children, ages three through five, who are not in kindergarten, attend a private preschool. A little less than twenty-five percent attend a publicly-funded preschool. The federal government traditionally played the leading role in providing access to publicly-funded preschools, but that is beginning to change. Forty states and the District of Columbia currently sponsor pre-school programs, up from ten in 1980. Both federal and state programs typically target poor children, but even then only serve a limited portion of the eligible group. As a result, millions of three- and four-year old children do not attend preschool, many because they have no access to public programs and cannot afford private ones.

This article examines whether access to publicly-funded preschool ought to be expanded and, if so, whether courts should play a role in that expansion. I argue that litigators should seek recognition of a state constitutional right to preschool, and that courts should be receptive to such claims, for essentially three reasons. First, expanding access to preschool, at least for disadvantaged children, is an unquestionably worthwhile endeavor; the benefits of doing so clearly outweigh the costs. Second, a very strong legal case, based on education clauses within every state constitution, can be made on behalf of a state constitutional right to preschool. And third, there is good reason to be confident that state courts can play a productive role in this context.

In making this argument, this article bucks the prevailing trend in legal commentary to discount or disclaim the ability of courts to produce social change. As the article explains, litigation for preschool has the potential to become an instructive and perhaps inspiring example of where and how courts can act as agents of productive social change.

Subject Area

Constitutional Law, Public Law and Legal Theory

Recommended Citation

James E. Ryan, "Where Courts CAN Make a Difference: The Case for a Constitutional Right to Preschool" (June 2005). University of Virginia Legal Working Paper Series. University of Virginia Public Law and Legal Theory Working Paper Series. Working Paper 29.
http://law.bepress.com/uvalwps/uva_publiclaw/art29

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