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

Sep 11th, 2013
by Jeanette Doran


N.C. Pre-Kindergarten Part II: One of Many Programs for “At-Risk” Children

North Carolina Institute for Constitutional Law[1]

September 8, 2013

In response to the Supreme Court decisions in Leandro and Hoke County, the General Assembly enacted the “More at Four” program in 2001 to provide pre-kindergarten for at-risk children to prepare them for kindergarten.[2]  The program was amended in 2011 to rename it N.C. Pre-K and to cap the total number of at-risk children in the program at 20% of total enrollment. On appeal, the Court of Appeals declared “More at Four” the only program developed by the State to address “at-risk” children entering kindergarten.[3]  The court said that the State had time to develop other methods of addressing the problem, but it did not do so. Thus, according to the Court of Appeals, N.C. Pre-K is the method the State has decided to use without any other plan.[4]  The State must give all students the opportunity to a sound basic education, so it cannot deny pre-kindergarten to some at-risk students.[5] On March 7, 2013 the North Carolina Supreme Court granted discretionary review when the State appealed the 2012 Hoke County decision.[6]  As of the date of this paper, the Supreme Court has not ruled on this case. The Court of Appeals decision turned on its belief that N.C. Pre-K was the only step that the State had taken to remedy the problems experienced by at-risk students entering kindergarten. As explained below, that view overlooks several other measures implemented by the State.


I. State Programs for At-Risk Children Implemented Before Hoke County

             The 2012 Hoke County case recognized More at Four as the only program developed by the State to address at-risk children entering kindergarten.  However, More at Four was not the only State program for at-risk children.  The court failed to recognize many other programs the State implemented to address at-risk children, both before and during kindergarten.  Before delving into a discussion of these programs, it should be noted that this memorandum must address programs geared towards helping at-risk children in general terms because “at-risk” is not defined.  Generally, the term refers to those children at-risk of failing to obtain a sound basic education.  But which children are at-risk of such failure?  The term is not currently defined in the North Carolina General Statutes or the North Carolina Administrative Code, though the North Carolina House has proposed a bill that would define the term.[7]  In Judge Manning’s superior court decision, he described an at-risk child as “a defenseless, fragile child whose background of poverty or disability places the child at-risk of subsequent academic failure.”[8]  The North Carolina Department of Public Instruction (DPI) has used more specific guidelines in a presentation to the appropriations committee.[9]  According to the Supreme Court, there have been “numerous accepted ways of defining and identifying an ‘at-risk’ student.”[10]  The definition of “at-risk” is more fully addressed in a separate NCICL memo, “Defining At-Risk.”  With this ill-defined categorization in mind, what follows describes  the more notable programs the State provides which address the needs of at-risk students.

A. North Carolina Pre-Kindergarten (Previously More at Four)

Previously titled “More at Four,”[11] N.C. Pre-K seeks to “provide high-quality educational experiences to enhance school readiness for at-risk four-year-olds.”[12]  Along with the name change, N.C. Pre-K moved from the Department of Public Instruction to the Division of Child Development and Early Education in the Department of Health and Human Services in 2011.[13]  However, More at Four did not undergo any substantive changes in its transition to N.C. Pre-K.[14]

The goal of N.C. Pre-K is to “provide high-quality educational experiences to enhance school readiness for at-risk four-year olds.”[15]  N.C. Pre-K focuses on five domains to promote success in kindergarten: approaches to learning, emotional and social development, health and physical development, language development and communication, and cognitive development.[16]  To promote these domains, the program emphasizes family engagement[17] and assessments to measure child growth and development.[18] 

N.C. Pre-K is state-funded, and eligibility is based on age, family income, and certain risk factors.[19]  During the 2011-2012 school year, over 29,000 children attended N.C. Pre-K.[20]

B. Smart Start

In addition to N.C. Pre-K, the State prepares at-risk students for school with Smart Start.  Created in 1993, Smart Start is a public/private partnership that serves children from birth until age five.[21]  Smart Start is subsidized by the State, and helps working parents pay for childcare.[22]  In 2011, the State allocated Smart Start funds to counties based upon the number of children in each county under eleven years of age living in households earning less than 75% of the State median income.[23]

Smart Start has some similarities to N.C. Pre-K, but it is a distinct program. Smart Start seeks to ensure that all children are “prepared to succeed in a global community” and provides early educational opportunities so that children may learn skills they need for success in school.[24]  In 2011-2012, over 31,000 children were assisted by Smart Start.[25]  Although its long-term efficacy is debated, there is evidence that Smart Start improves children’s chances of success in school, with higher third-grade standardized test scores in counties with higher levels of Smart Start funding.[26]

            Smart Start is partially funded by the State, and serves at-risk children entering school.  Because State funding is based on low-income households with young children, Smart Start funding is focused in areas with high numbers of at-risk children.  Additionally, since Smart Start serves children from birth to age five, it assists children prior to entering kindergarten by promoting early childhood literacy through programs such as Raising Readers and by providing access to developmental screenings so that developmental delays may be detected and addressed early.[27]  Implemented prior to Hoke County case, Smart Start shows that N.C. Pre-K was not the only effort at the time by the State to assist at-risk children. 

C. Personal Education Plans

            Efforts to assist at-risk students continue as soon as kindergarten begins.  Starting in 2001,[28] Personal Education Plans (PEPs) were implemented to assist at-risk students entering kindergarten.[29]  Beginning in kindergarten, teachers and local administrative units work to identify at-risk students who may need extra or different instruction.[30]  Identification begins no later than the first quarter and may be based on “grades, diagnostic and formative assessments, State assessments, and other factors, including reading on grade level . . . .”[31]  If a student is identified as at-risk, then that student’s parents are contacted and included as local school administrators and teachers develop a personal education plan for that child.[32]

            Personal Education Plans focus on areas where the student needs improvement.[33]  They provide personalized benchmark goals for the student each grading period, which are meant to bring the student to grade level with extra instruction.[34]  Extra instruction may include tutoring, summer school, extended days, and reading interventions.[35]  All extra instruction associated with a PEP is free-of-charge.[36]

            PEPs address at-risk children entering kindergarten because they identify children quickly upon entering school as at-risk.  These children receive individualized plans tailored to their strengths and weaknesses as soon as possible so that they may reach grade level proficiency quickly.  Also used prior to Hoke County, PEPs provide a way to assist at-risk children immediately upon entering kindergarten so that they will not fall behind and thus have the opportunity to attain a sound basic education.

D. Raising Readers

            Started in 2005,[37] Raising Readers is an initiative to improve child literacy through television.[38]  Initiated by PBS, the United States Department of Education, the Corporation for Public Broadcasting, and the Ready to Learn Partnership, Raising Readers uses television to build reading skills, with a focus on low-income children.[39]  UNC-TV, which is funded partially by the State of North Carolina,[40] broadcasts Raising Readers programs.[41]  Though direct funding allocations for the Raising Readers program are not publically available, $10.7 million of UNC-TV’s $26.5 million budget is derived from State funds.[42] 

            Targeting low-income children,[43] Raising Readers is designed for at-risk children.  This additional program provides yet another opportunity for at-risk students to be exposed to educational information before kindergarten.  UNC-TV reaches nearly every North Carolina household[44] and is watched by 79% of children between the ages of two and eleven at least once per week.[45] 

E. Lifting the Charter School Cap

            In 2011, the General Assembly lifted the cap on charter schools.[46]  A study by the State Board of Education and the Department of Public Instruction explained that with the flexibility of charter schools, charter schools have the potential to effectively serve high-poverty areas.[47]  Charter schools that have implemented supportive learning environments, character education programs, a culture of high expectations, extended school days, data driven instruction, and small school size have been successful in educating students from high-poverty areas.[48]  Other studies have shown that impoverished students in charter schools show more growth in math and reading than impoverished students in traditional public schools.[49]

            By lifting the cap on charter schools, the State is allowing the list of high-poverty charter schools to grow.  Though not all charter schools are geared towards at-risk children, the study by SBE and DPI lists 29 high-poverty charter schools out of 99 charter schools statewide as of 2011.[50]  For example, The Learning Center is one of the charter schools identified by SBE and DPI as educating students in a high-poverty area.[51]  The Learning Center works to give students a sense of responsibility, encourages individualized instruction, and works with students on promoting self-esteem.[52]  With the flexibility of charter schools, these schools have the ability to focus on the particular needs of at-risk students as they enter kindergarten. 


II. Programs for At-Risk Children Enacted Following the 2012 Hoke County Decision

            In addition to legislation in place prior to Hoke County, the State enacted other measures that will ensure at-risk children have the opportunity to attain a sound basic education.  The North Carolina Supreme Court should keep these programs in mind when it revisits the 2012 Hoke County decision.

A. Read to Achieve

            Effective beginning in the 2013-2014 school year,[53] Read to Achieve focuses on students’ reading ability.  The goal of Read to Achieve is to have every student reading at or above grade level by the end of the third grade.[54]  Within thirty days of enrollment, every kindergarten student will be given a developmental screening to address essential domains of school readiness: “language and literacy development, cognition and general knowledge, approaches toward learning, physical well-being and motor development, and social and emotional development.”[55]  If a screening shows that students need extra help, those students will be tutored in instructional supports such as phonics and vocabulary.[56]

            By the end of third grade, if a student fails to meet third-grade reading proficiency on a State-approved standardized test, then that student will repeat the third grade.[57]  “Good cause exemptions,” including certain disabilities and students who demonstrated that they are reading at a third grade level outside of standardized testing, allow the student to be promoted to the fourth grade.[58]

            Like Personal Education Plans, Read to Achieve will identify and begin to assist at-risk children upon entering kindergarten.  Additionally, students will remain in the third grade if they are not prepared for the opportunity to attain a sound basic education in future grades.  This is a step towards assuring all students are prepared for the materials they are being taught in the classroom and akin to the Level III proficiency data the Supreme Court considered in the 2004 Hoke County decision.



B. Special Education Scholarships

            The General Assembly passed House Bill 269 to provide special education scholarships to children with disabilities.[59]  The scholarship grants will be for up to $6,000 per year to be used by a student for services related to special education at either home school or a nonpublic school.[60]  The bill appropriates $3,670,500 for the 2013-14 fiscal year and $4,341,000 for the 2014-15 fiscal year to fund the program.[61]

            Students at risk of academic failure because of disabilities, rather than those at risk due to low income, will benefit from this program.  Reaching a different population of at-risk students, these scholarships will give students with disabilities the opportunity to attend schools outside the public school system which may more closely meet their particular individual needs in order to have the best opportunity to attain a sound basic education.

C. Opportunity Scholarships

            The 2013-2014 budget establishes opportunity scholarships, also referred to as vouchers, for students living in households with incomes at or below 133% of the standard to qualify for free or reduced lunches.[62]  Qualifying students will receive up to $4,200 per year towards tuition at a “nonpublic school.”[63]  Opportunity scholarships will be issued to low-income students beginning in the 2014-2015 school year.[64]  Among others, low-income students entering kindergarten will be eligible for opportunity scholarships.[65]

            Opportunity scholarships target low income, at-risk children to give them an option other than the public school system.  While students may still seek their constitutional right to a sound basic education in public schools, opportunity scholarships will give at-risk students the opportunity to attend nonpublic schools which may more closely fit the needs of some at-risk students.




            The State has enacted many programs in addition to N.C. Pre-K to address the needs of at-risk children before and as they enter kindergarten.  On appeal, the North Carolina Supreme Court should recognize that the Hoke County court failed to account for multiple programs in place in addition to N.C. Pre-K to assist at-risk children.  The Supreme Court will also have to revisit the decision in light of more recent steps taken by the State to ensure at-risk children are given the constitutionally mandated opportunity to attain a sound basic education.


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

[3] Id. at 694-95. 

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

[5] Id. at 695. 

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

[7] H.B. 935 (N.C. 2013). 

[8] Hoke Co. Bd. Educ. v. State, 95 CVS 1158, 23 (July 18, 2011).

[9] Department of Health and Human Services, Presentation on NC Pre-K to the Joint Appropriations Committee,,%202013/HHS%20Pre-K%20Presentation%204-4-13.pdf (2013) (defining at-risk as at or below 75% of the state median income or a student with limited English proficiency, a disability, chronic health condition, developmental concerns, or from an eligible military family).

[10] Hoke County, 358 N.C. at 636 n.16.

[11] Session Law 2011-145.

[12] 10 NCAC 09 .3001. 

[13] Sess. Law 2011-145.

[14] Quality and Characteristics of the North Carolina Pre-Kindergarten Program, 1 (2013),

[15] 10A NCAC 09 .3001.  

[16] NC Pre-Kindergarten Program Requirements and Guidance, 1-1 (2012), 

[17] 10A NCAC 09 .3010.

[18] 10A NCAC 09 .3008.

[19] NC Pre-Kindergarten Program Requirements and Guidance, 1-1, 3-1 (2012),  Risk factors include developmental disabilities, limited English proficiency, and having a chronic health condition.

[20] Id.

[21] Smart Start Frequently Asked Questions, 

[22] Id.

[23] Sess. Law 2011-145.

[24] Smart Start Frequently Asked Questions.

[25] North Carolina Partnership for Children, Report to the General Assembly (2012),

[26] Id.

[28] Sess. Law 2001-424, § 28.17.

[29] N.C.G.S. § 115C-105.41.

[30] Id.

[31] Id.

[32] Id.

[33] Personalized Education Plans, Sample Form 1-K-5,

[34] Id.

[35] N.C.G.S. § 115C-105.41.

[36] Id.

[37] The Ready to Learn Grant: History of the Grant,

[38] Raising Readers,

[39] Id.

[40] Fiscal Research Analysis of the 2012 Center for Public Television/UNC-TV Continuation Review, 1,

[41]Raising Readers.

[42] Fiscal Research Analysis of the 2012 Center for Public Television/UNC-TV Continuation Review, 1

[43] The Ready to Learn Initiative,

[44] Fiscal Research Analysis of the 2012 Center for Public Television, 1.

[45] Id. at 2.

[46] Sess. Law 2011-164.

[47] Charter Schools that Work: Policies and Practices of Effective High-Poverty Charters, 1 (2013),

[48] Id.

[49] National Charter School Study, 36-36 (2013),

[50] Charter Schools That Work, 9, 11.

[51] Id. at 2.

[52] See Out-of –the-Box Education,

[53] North Carolina Read to Achieve: A Guide to Implementing House Bill 950, 22 (

[54] N.C.G.S. § 115C-83.1.

[55] Id. § 115C-83.5.

[56] Id. § 115C-83.6.

[57] Id. § 115C-83.7.

[58] Id. § 115C-83.7 (b).

[59] H.B. 269 (N.C. 2013).

[60] Id. § 4.

[61] Id. § 5(a).

[62] Sess. Law 2013-360, §8.28(a) (to be codified at N.C.G.S. § 115C-562.1 (2)(b)).

[63] Id. (to be codified at N.C.G.S. § 115C-562.2(b)).

[64] Id. § 8.29(e).

[65] Id. § 8.29(a), (to be codified at § 115C-562.1 (2)(a)).