Memorandum of Law: N.C. Pre-Kindergarten Part I

Sep 11th, 2013
by Jeanette Doran


N.C. Pre-Kindergarten Part I: How the Pre-Kindergarten Mandate for “At-Risk” Students Developed

North Carolina Institute for Constitutional Law[1]

September 8, 2013

            Over the years, North Carolina courts have interpreted the North Carolina Constitution to require the State to provide children attending public schools the “opportunity to attain a sound basic education.”  The courts recognized that some children were not being given that opportunity, specifically “at-risk” children entering kindergarten. As a result, the constitutionally mandated “opportunity to attain a sound basic education” morphed into a requirement that the State provide “at-risk” children with access to pre-kindergarten[2] because a State funded pre-kindergarten (formerly More at Four and now NC Pre-K) was deemed the only method developed by the State to address at-risk children entering kindergarten.  This requirement grew from the landmark decision in Leandro and its progeny.  Set out below is a discussion of those cases and an explanation of how the pre-kindergarten mandate evolved.

A. Leandro v. State (1997)

            In Leandro v. State, students, parents or guardians, and school boards from a group of the State’s poorer school systems filed suit against the State, generally alleging inadequate and unequal educational opportunities.[3]  They were joined by wealthier counties which alleged the State failed to account for their large number of students with special educational needs.  Because special education expenses took away money from regular education programs,[4] wealthier counties claimed this left insufficient resources for other students to receive an adequate education.[5]

            The Plaintiffs’ claims arose under Article I, Section 15 and Article IX, Section 2 of the North Carolina Constitution.[6]  Article I, Section 15 states: “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”[7]  Article IX, Section 2 states: “The General Assembly shall provide by taxation and otherwise for a general and uniform system of free public schools, which shall be maintained at least nine months in every year, and wherein equal opportunities shall be provided for all students.”[8]  Leandro’s principle focus was on the disparity in funding for public schools around the state, which resulted from local funding which was not uniform across North Carolina.[9] 

            Plaintiffs argued that “equal opportunities” and a “general and uniform system” mandate equality in resources and programs available to all children.[10]  The Leandro Court explained the framers’ intent behind the general and uniform system provision to be a chance for a “sound basic education,” not necessarily an equal one.[11]  The equal opportunities clause addresses the equal opportunity to a sound basic education, not equal funding or advantages.[12]  In fact, because Article IX, Section 2 (2) expressly allows counties to provide additional funding for education, it is the natural result that counties will have unequal educational funding.[13]  Since local supplemental funding is addressed in the Constitution, any difference because of local funding is directly allowed under Article IX, Section 2(2).[14]  “A constitution cannot violate itself” the Court reasoned, so the ability for supplemental local funding and the requirement of “equal opportunity” in public schools must coexist, and cannot violate the state constitution’s equal protection requirements.[15]  The Court also noted the potential for a great increase in litigation if equal educational opportunities were required.[16]

              The Leandro Court coined the phrase “sound basic education.” Those words are an interpretation of the constitution but do not appear in the constitution itself. Considering the framers’ intent behind Article IX, Section 2(1) and Article I, Section 15, the Court found that the Constitution “guarantee[s] every child of this state an opportunity to receive a sound basic education in our public schools.”[17]  The Court defined a “sound basic education” as one that will at a minimum provide:

(1) sufficient ability to read, write, and speak the English language and a sufficient knowledge of fundamental mathematics and physical science to enable the student to function in a complex and rapidly changing society; (2) sufficient fundamental knowledge of geography, history, and basic economic and political systems to enable the student to make informed choices with regard to issues that affect the student personally or affect the student’s community, state, and nation; (3) sufficient academic and vocational skills to enable the student to successfully engage in post-secondary education or vocational training; and (4) sufficient academic and vocational skills to enable the student to compete on an equal basis with others in further formal education or gainful employment in contemporary society.[18] 


To consider whether the above requirements had been satisfied, the Court gave factors for future courts to consider.  These factors include, but are not limited to, educational standards adopted by the legislature, performance on standardized tests, and general and per-pupil expenditures.[19]           

Though the Court set out the general standard for a sound basic education, it acknowledged that the legislative and executive branches should decide which educational programs are best to ensure every child receives a sound basic education.[20]  The Court stated:

 [W]e reemphasize our recognition of the fact that the administration of the public schools of the state is best left to the legislative and executive branches of government.  Therefore, the courts of the state must grant every reasonable deference to the legislative and executive branches when considering whether they have established and are administering a system that provides the children of the various school districts of the state a sound basic education.[21] 


As a result, the court noted its deference to the legislative and executive branches in the field of education.[22]  In order for a court to conclude that the other branch had not satisfied the mandate to give children the opportunity to attain a sound basic education, there must be a “clear showing to the contrary.”[23]  Only such a “clear showing to the contrary” authorizes the judicial branch to determine what course of action will satisfy the constitutional requirement.[24] 

B. Hoke County Board of Education v. State (2004)

            A continuation of the Leandro case, Hoke County (sometimes described as Leandro II) reviewed a trial court order that declared that the State failed to provide some students the opportunity to receive a sound basic education.  In proceedings after the Leandro decision from the Supreme Court, the trial court bifurcated the case by separating rural districts from urban districts.[25]  Then, the court decided to focus on the individual district of Hoke County as the representative of the rural districts.[26]  Additionally, plaintiffs amended their complaint to include the following:

Many children living in poverty in plaintiff districts begin public school kindergarten at a severe disadvantage.  They do not have the basic skills and knowledge needed for kindergarten and as a foundation for the remainder of elementary and secondary school. . . . The plaintiff school districts do not have sufficient resources to provide the prekindergarten and other programs and services needed for a sound basic education.[27] 


            The trial court held the State had failed to provide the opportunity for a sound basic education and ordered the State to fix the constitutional violation in part by expanding pre-kindergarten programs to all at-risk children.[28] 

On appeal, the Supreme Court reviewed the trial court’s decision finding a violation of the constitutional right to a sound basic education.[29]  The Court affirmed the use of “output” data like standardized test scores, graduation rates, dropout rates, employment statistics, and post-secondary educational success.[30]  For standardized testing, the trial court established “Level III” proficiency as the standard needed for a sound basic education; Level III proficiency requires mastery of the subject and demonstrates that the student will be successful at the next level in that subject.[31]  Hoke County students were failing to achieve Level III proficiency in numbers “far beyond the state average” in the “fundamental”[32] subjects of math, English, and history.[33]  Considering the rate that Hoke County children were failing to meet Level III proficiency in end-of-grade tests, the Court concluded it was a proper factor in determining whether Hoke County students received a sound basic education.[34]             

The Court also affirmed the relevance of other output data, specifically low graduation and high dropout rates in determining whether students had the opportunity to attain a sound basic education.[35]  Additionally, the Court concluded testimony from local major employers is relevant to demonstrate whether those students that do graduate are able to compete on an equal basis with others for employment. Testimony showed that Hoke County graduates lacked basic skills and often required special training for jobs.[36]  The Court also affirmed that high enrollment in remedial classes for core subjects, below-average grades, and low graduation rates at post-secondary schools and universities evidences a failure to achieve a sound basic education. As a result, the Court concluded that an inordinate number of Hoke County students failed to obtain a sound basic education.[37] 

            Then, the Court looked at whether the State was providing the opportunity for Hoke County children to obtain a sound basic education.  The trial court combined the question of whether Hoke County students generally had the opportunity to obtain a sound basic education with whether “at-risk” Hoke County students in particular had the opportunity to a sound basic education.[38]  The Court could not determine whether the “plight of non ‘at-risk’ students in Hoke County was considered by the trial court.”[39]  Consequently, the Court narrowed its focus to provisions for at-risk children.

            Since “an unusually high number of Hoke County school children” were at-risk children, Hoke County had a high number of students who needed special assistance in order to have the opportunity to attain a sound basic education.[40]  The State’s failure to meet these special needs hurt the students’ opportunity to attain a sound basic education. The State failed to identify the high number of at-risk students in Hoke County, failed to provide them the opportunity to a sound basic education, and failed to monitor funding for that purpose.[41]  The Court affirmed the trial court’s guidelines given to the State to resolve the problem:

(1) that every classroom be staffed with a competent, certified, well-trained teacher; (2) that every school be led by a well-trained competent principal; and (3) that every school be provided . . . resources . . . so that the educational needs of all children, including at-risk children, to have the equal opportunity to obtain a sound basic education, can be met.[42]


            Next, although the parties had raised an issue implicating the age requirement for starting school, the Court explained that the age requirement is a nonjusticiable political question.[43]  Article IX, Section 3 gives the power to determine the proper school age to the General Assembly.[44]  However, the issue in this case was not the students’ age per se, but whether the State must help prepare at-risk students entering school at the legislatively prescribed age.[45]  Since “at-risk” students in Hoke County were not being given the opportunity to a sound basic education, evidence was properly admitted showing that action before kindergarten would be more cost effective than waiting for them to enter school.[46]  At the time of the trial, the State’s programs targeting “at-risk” students in Hoke County were three pre-kindergarten classes with eighteen students each.[47]  As this was the only program from the State, the State’s efforts to provide at-risk students with the opportunity to a sound basic education were deemed inadequate.

            The trial court ordered the State to provide pre-kindergarten for all “at-risk” prospective enrollees.[48]  But the Supreme Court did not agree.  As the clear province of the legislative and executive branches, such a specific remedy imposed by the judiciary was inappropriate at that time.[49]  The Court held pre-kindergarten is not the only means to meet the needs of prospective at-risk students.[50]  Therefore, the order was reversed and the State was not required to provide pre-kindergarten to all entering at-risk students.[51]  The legislative and executive branches were given the task of providing a remedy to the constitutional violation, whether that is pre-kindergarten or some other program.

C. Hoke County Board of Education v. State (N.C. Ct. App. 2012)

As a response to the Supreme Court, the General Assembly enacted the “More at Four” program in 2001 to provide pre-kindergarten for at-risk children to prepare them for kindergarten.[52]  The program was amended in 2011 to rename it N.C. Pre-K and cap the total number of at-risk children in the program at 20% of the total number of children in the program. A trial court order prohibited the State from denying any eligible at-risk child from the program and enjoined the 20% cap.[53]

On appeal, the Court of Appeals declared “More at Four” the only program developed by the State to address “at-risk” children entering kindergarten.[54]  The court declared that the State had time to develop other methods of addressing the problem, but it did not do so.[55]  Thus, according to the Court of Appeals, N.C. Pre-K is the method the State has decided to use without any other plan.[56]  The State must give all students the opportunity to a sound basic education, so it cannot deny pre-kindergarten to some at-risk students.[57] On March 7, 2013 the North Carolina Supreme Court granted discretionary review when the State appealed the 2012 Hoke County decision.[58]  As of the date of this paper, the Supreme Court has not ruled on this case.

The Court of Appeals decision hinged on its view that the State had done nothing to remedy the problems experienced by at-risk students entering kindergarten other than the N.C. Pre-K program. As explained in Part II of this legal memorandum series, that view overlooks several other measures implemented by the State

[1] For more information, please contact Jeanette Doran at 919-838-5313 or This memorandum was prepared with the assistance of Ashley Berger, law student intern.

[2] For purposes of this paper, pre-kindergarten refers to the State-run program N.C. Pre-K, not pre-kindergarten programs generally. 

[3] Leandro v. State, 346 N.C. 336, 342 (1997). 

[4] Id. at 343. 

[5] Id. 

[6] Id. at 345. 

[7] N.C. Const. art. I, § 15; Leandro, 346 N.C. at 345.   

[8] N.C. Const. art. IX, § 2(1); Leandro, 346 N.C. at 345. 

[9] Leandro, 346 N.C. at 345. 

[10] Id. at 348. 

[11] Id. 

[12] See id. at 348-49. 

[13] See id. at 349-50. 

[14] Id. at 352. 

[15] See Leandro, 346 N.C. at 352. 

[16] Id. at 350-351.

[17] See id. at 347-48. 

[18] Id. at 347. 

[19] Id. at 355-56. 

[20] Id. at 354-55. 

[21] Id. at 357 (emphasis added).

[22] Id.   

[23] Id. 

[24] Id. 

[25] Id. at 613. 

[26] Id. 

[27] Id. at 618.

[28] Hoke County Bd. Educ. v. State, 358 N.C. 605, 608-09 (2004). 

[29] Id. at 623. 

[30] Id. at 623-630.  

[31] Hoke County, 358 N.C. at 623-24. 

[32] Leandro, 346 N.C. at 347.

[33] Hoke County, 358 N.C. at 625-26. 

[34] Id. at 625. 

[35] Id. at 627. 

[36] Id. at 628.

[37] Id. at 630.

[38] 632-33. 

[39] Id. at 634ß.

[40] Id. at 636-37. 

[41] Id. at 637. 

[42] Id. at 636.

[43] Hoke County, 358 N.C. at 638-39. 

[44] Id. at 639. 

[45] Id. at 639-40. 

[46] Id. at 640-41. 

[47] Id. at 641-42. 

[48] Id. at 642.

[49] Id. at 642-43. 

[50] Id. at 644. 

[51] Id. at 645. 

[52] Hoke Co. Bd. Educ. v. State, 731 S.E.2d 691, 692-93 (N.C. Ct. App. 2012). 

[53] Id.

[54] Id. at 694-95. 

[55] Id. at 694-96. 

[56] Hoke County, 731 S.E.2d at 694-95. 

[57] Id. at 695. 

[58] Hoke Co. Bd. Educ. v. State, 738 S.E. 2d 362 (2013) (order granting discretionary review).