The Public School Forum's Friday Report

Volume 2, Issue 32 October 26, 2000

Friday Report Special

 

Judge Manning Issues Ruling in the Hoke County Case

 

This issue of the Friday Report is coming one day early because installment

two of the three part decision on the Hoke County Case (i.e., the Leandro

case challenging the state's system of funding) was issued on Thursday

morning and promises to lead the list of major news stories in tomorrow's

papers.

 

The Judge, in a forty‑three‑page ruling, has found that the state has a

constitutional obligation to provide at‑risk young people with early

education beginning at age four, a ruling that has major implications for

the state. While Smart Start has now been extended to all 100 North Carolina

counties, it is serving only a fraction of the young people who arguably

fall into an at‑risk category. Judge Manning also outlined other programs

for school aged children that research finds to benefit at‑risk youngsters

and may have given a foreshadowing of more sweeping findings in the

much‑anticipated third, and final, installment of his ruling.

 

As expected, the Judge did not define the criteria for "at risk" youth, nor

did he set out a timetable for responding to his order. Instead, he called

on the Executive and Legislative Branches of Government to determine how to

address the issue.

 

In commenting on the ruling, John Dornan, the Forum's Executive Director,

said, "At‑risk young people have just found one of the most eloquent and

persuasive champions they have ever had. The Judge's ruling shows a keen

grasp of the relationship between income and education and the Judge's

experience in dealing with hundreds of young people caught in a cycle of

poverty and crime has obviously impacted his thinking on the issues."

 

Dornan went on to say, "Last week in the Friday Report we raised the

question of whether the state would appeal this ruling if the judge found

some part of today's system unconstitutional. That is no longer an abstract

question. With both candidates for Governor campaigning on platforms calling

for early education, with bi‑partisan support for Smart Start and the value

of early education and with the State Board of Education strongly behind

Smart Start services, will this ruling be appealed; or, will the state turn

its attention to finding ways to expand early education programs?"

 

Excerpts Taken Directly from the Decision . . .

 

Setting the Stage: Judge Manning Tied the Knot Between Poverty, Education &

Crime

 

One end result for many of these at‑risk children is the criminal justice

system ‑ a system that is a gateway to prison rather than a gateway to being

a productive member of society. As a result of these criminal activities,

many innocent and law‑abiding citizens are the victims of these children who

have failed to succeed in school.

 

This Court, as well as the other 330 Superior and District Court Judges in

North Carolina, sees the failures of many of our at‑risk children every day

in the criminal and juvenile courts.

 

This Court, with first‑hand knowledge from presiding over Superior Court in

criminal sessions in more than 40 counties throughout Eastern and Central

North Carolina, can take judicial notice of the following:

 

First, of the hundreds of criminal defendants that this Court has dealt with

in Superior Court who have pleaded guilty or been convicted by a jury (most

pleading guilty) the overwhelming majority are high school dropouts,

regardless of race. In fact, 82% of the prison population is made up of high

school dropouts.

 

Second, of the hundreds of criminal defendants this Court has dealt with,

most have at least one, if not more, illegitimate children. These children

are born into an environment in which education is a little valued

commodity.

 

Most of those going to prison sought work release so they could help support

their children. Marriage is a relationship that appears to be obliterated

from their vocabulary or society. The majority of these young people were

at‑risk students when they were in school.

 

The children that these young men and women bring into this world, more

likely than not, will be at‑risk before they ever enter a school building

and it is not those children's fault. It is the fault of their at‑risk,

irresponsible parents who bring them into a world of poverty, with no family

structure and little hope for success.

 

Until and unless this vicious cycle is broken by education and better

opportunity for this segment of the at‑risk population and for the other

at‑risk children who are not passing through the criminal justice system,

there will not be an equal educational opportunity for every child in North

Carolina. The generally undisputed facts in evidence bear this premise out.

All agree that it is common for children from economically disadvantaged

backgrounds to have particular difficulty in gaining proficiency in school.

Low income often places children at risk of academic failure.

 

Judge Manning Identified Criteria for Defining "At‑Risk"

Critical Risk Characteristics

 

Low‑income families. Children from low‑income families are more at‑risk of

educational failure than children from higher income families. There is no

dispute that poor children typically perform less well in school than

families with more resources. Children living in families with incomes below

the poverty line are nearly twice as likely to be retained in a grade as

children in more affluent families, and also are more likely to drop out of

high school.

 

Free and Reduced Price Lunch

 

The most common measure of an economically

deprived family background is eligibility for federal free and reduced price

("FRPL") programs that were created to support the nutrition of young people

coming from low‑income homes. (PX 33, p. 8) The FRPL is a strong predictor

of student success, whether the standard is SAT performance or performance

on the ABCs tests given to students in North Carolina. It is not disputed

that students who receive free or reduced price lunch are more likely than

other students to drop out of school.

 

Level of Parental Education

 

Students with parents who never graduated from

high school are more at‑risk of poor educational performance and school

failure. There is a direct correlation between students' performance on

State EOG and EOC tests and parent education. Low scores of young children

on developmental screening tests are often highly correlated with low

maternal education. T. 9/29 p.99. This data is confirmed by "The Green Book"

aka The North Carolina State Testing Results. For 1998‑99, (the data is

similar for earlier years as well) the percent of Grade 3 students statewide

who scored below grade level (Levels II and I) in both reading and

mathematics and whose parent(s) had not graduated from high school was

65.7%. That translated into 7,362 children performing below grade level.

Racial and/or ethnic background. Racial and/or ethnic minority group

membership is perhaps the best‑known factor associated with being

educationally disadvantaged. Many reasons have been identified to explain

the generally poorer academic performance of African American and Latino

children. The most obvious reason is the inability to able to communicate in

the English Language that is the language of the society in which children

live and hope to achieve. This barrier can be overcome with education.

Contributing to this barrier are the social and economic conditions in which

African American and Latino families live, their language and cultural

background, and past social discrimination.

 

Limited English Proficiency ("LEP")

 

Students whose primary language is not

English or who have limited English proficiency ("LEP"), are at risk of

school failure and face obstacles to success in school where the language of

instruction is English.

 

Other factors

There are more factors that place students at risk of school

failure:

a. The health status of children. The physical health and well‑being of

children have a clear connection to the ultimate performance of children in

school.

b. The composition of the family. Children living in single parent families

have been found to score lower on standardized tests, receive lower grades

in school and to drop out of high school more frequently.

c. The housing status and environment in which the student lives. Adequate

and stable housing is crucial to the foundation that children use as a basis

for successful participation in school. A disrupted living environment

impedes school performance and presents barriers to educational success.

d. Crime. Higher levels of violence and vandalism often are associated with

high concentrations of at‑risk students. Crime hurts not only the victims,

but also other students who are witnesses to the crime. It follows that when

levels of violence and vandalism in a school are high, some students will be

afraid to attend.

e. The labor force participation of parents. There are social benefits to

children who live in families in which the parents work. Children benefit

when they grow up in a home where the parent(s)work and the children see the

positive effect of the work ethic.

 

These environmental factors outside of the school grounds, which place

children at risk of educational failure, create barriers to the at‑risk

child's educational success and to the at‑risk child's opportunity to

receive a sound basic education.

 

Manning Concludes that Schools Can Succeed With At‑Risk Youth

 

Placing responsibility for the poor educational performance of at‑risk

children on the children is inconsistent with positions taken by the State

Board of Education and DPI. According to the State Board and DPI, North

Carolina's schools are accountable for 100 percent of the students who are

following the SCOS. DX 213,p. 13. "High achieving schools accept their

responsibility for enhancing student achievement and do not look for

'scapegoats' among the students, parents or other organizations." DX283,

p.S28024.

 

The State's own expert witnesses testified that schools have the power to

help disadvantaged students overcome their weaknesses. Schools can improve

such problems as absenteeism by providing interesting, high quality programs

and by working with parents to try to encourage children to attend schools.

Schools can improve the amount of homework that students do. In fact, there

is much schools can do to affect motivation, attendance and homework

completion.

 

Manning Concludes that Needs Can Be Met

 

The educational needs of at‑risk children can be met. As the educators and

education experts for all parties unanimously agreed at trial, given the

proper resources, the educational needs of at‑risk students (such as

students living in poverty) can be met. All children can learn, even

children with substantial disadvantages. Many disadvantaged children not

only learn, but they break through the disadvantages and do well

academically in spite of their at‑risk factors. Unfortunately, there are way

too many at‑risk children who do not break out and continue to perform

poorly and below grade level. It is these children's needs that must be

addressed in order to attempt to break the cycle of poverty and

disadvantage.

 

Manning Identifies Strategies That All Parties & Research

Agree Will Help At‑Risk Youth

 

As a general premise, witnesses for all parties agreed as to a number of

particular programs and interventions that are effective in improving the

scholastic performance of at‑risk students, either by increasing the time

devoted to instruction or by increasing the intensity of instruction by

lowering class size or providing expanded staff development programs.

Reducing class size. Witnesses for all parties agreed that reducing class

size is an effective means of improving student achievement and performance

for at‑risk children. Smaller class sizes are particularly beneficial for

at‑risk children and in schools that serve a student population with a high

percentage of at‑risk students.

 

Tutoring

Witnesses for all parties agreed that tutoring, especially when

one‑on‑one with a trained tutor, is an effective means of increasing the

academic performance of students, and especially at‑risk students.

More time on task. Witnesses for all parties agreed that providing at‑risk

students with more instructional time, by increasing the length of the

school day or the school year is an effective means of increasing academic

performance. Student performance is, to a large extent, a function of time

on task. Several State witnesses testified that at‑risk students often

require more instructional time than other students to master the SCOS.

The evidence shows that with additional resources applied in a common‑sense

and practical manner, children with significant disadvantages can receive

and take advantage of the equal opportunity for a sound basic education,

including, but not limited to preschool programs, tutors and reduced class

size.

 

According to DPI, preschool programs, use of trained tutors,

improving teacher quality, lowering class size and supporting teachers'

professional development are effective methods for improving student

performance. A large and well‑accepted body of research

establishes that programs that substantially improve the academic

performance of children from poverty and at risk backgrounds (of course

these programs would improve any child's performance) include early

childhood intervention, more instruction, tutoring and lower class size, and

recruitment and retention of good teachers.

 

Competent and well‑trained teachers with updated professional development

It goes without saying that competent, well‑trained teachers who are kept

abreast of their subject matter through professional development are

essential to dealing with the needs of at‑risk children. Teachers who

undertake the task of helping at‑risk children must have high expectations

of their students and believe that those students, with their help, can

succeed in school and perform at Level III or above.

Early childhood intervention for at‑risk children. The Smart Start

Evaluation Team reported to the Department of Human Resources in 1997,

"Children from poor families had fewer skills than those from non‑poor

families, supporting long standing research that 'poverty is a component of

school failure'." PX 396,p.2.

 

Reduction in class size

 Smaller classes make the greatest impact in early

grades for disadvantaged and minority students. Also, class size is

especially important where there is a school with a concentration of at‑risk

students. When a school has a high concentration of at‑risk students, those

students bring all the risk factors with them into the classroom, imposing

additional demands on their teachers. Reducing class size for students who

are below proficiency would permit one‑on‑one instruction. Small group

teaching would assist those students in reaching proficiency.

 

No one single program will meet all needs. The bottom line is that there is

not necessarily one single program that is going to meet all the needs of

at‑risk students. Effective solutions are those that build upon one another

as the child progresses through school. Having said that, however, the Court

is convinced, by the greater weight of the evidence, that the earlier there

is an opportunity to intervene in the at‑risk child's educational ladder,

the better chance that child will have to take advantage of its

constitutional right to an equal opportunity to receive a sound basic

education.

 

This Court has previously ruled that the right of every child in North

Carolina to the opportunity to receive a sound basic education may not be

conditioned on age, but is to be conditioned on the needs of the individual

child. The evidence in this record supports this conclusion.

 

The clear logical, common‑sense solution to this problem is to offer at‑risk

children a pre‑kindergarten educational opportunity so that they can have

the opportunity to start kindergarten on a level close to, if not equal to,

those children who are not at‑risk.

 

Judge Acknowledges Existing Pre‑School Programs

 

Pre‑Kindergarten Programs that work exist in North Carolina, but do not

reach sufficient numbers of at‑risk children.

Witnesses for all parties agreed that providing a quality pre‑kindergarten

program is an effective means of increasing the performance of low‑income

and otherwise at‑risk students.

State Board Chairman Phil Kirk remarked that it is a "no brainer" that

pre‑kindergarten education would be a helpful way to address the needs of

disadvantaged students. Pre‑kindergarten education is particularly helpful

for economically disadvantaged children and can help them to progress as

fast as middle class children.

 

The State of North Carolina does provide some early childhood education

through the Smart Start program and some Smart Start programs provide

funding for some pre‑kindergarten programs in some LEAs such as Hoke and

Charlotte‑Mecklenburg. Also, the Federal Government provides Title I money

that can be used for in school pre‑ Smart Start is an important state

initiative that provides funds for early childhood health and welfare

programs. Smart Start is operated by the North Carolina Partnership for

Children, not DPI or the State Board. Governor Hunt, who has made the Smart

Start program a major priority, acknowledged in 1999 that the existing

programs have "barely scratched the surface of what needs to be done for¼

children." Smart Start is not principally a pre‑kindergarten education

program. There is no requirement that Smart Start funds be used for

educational programs, but there is no prohibition against such use by a

particular Smart Start program. The bottom line is that Smart Start is an

existing public‑private partnership through which programs for early

educational intervention for at‑risk children could be established and

funded.

 

 

DISCUSSION AND CONCLUSION

 

The bottom line is simple. The Court, based on the clear and convincing

evidence, finds that at‑risk children should be provided the opportunity to

attend a quality pre‑kindergarten educational based program that has, as its

goal, the preparation of at‑risk children for kindergarten.

This educational opportunity should be geared to put at‑risk children in a

position to take advantage of the equal opportunity to receive a sound basic

education when they reach five‑year old kindergarten. As a result, the

at‑risk children should arrive at five‑ year old kindergarten prepared, as

best they can with the extra help, to

take advantage of the opportunity to receive a sound basic education on a

level with those children that are not at‑risk.

The investment in early childhood pre‑kindergarten education for at‑risk

children should yield dividends in their future educational experiences.

 

The Court finds that the academic performance of these at‑risk children

should materially improve as shown by the evidence and data coming out of

the Bright Beginnings and the Hoke County pre‑kindergarten programs.

This vital early childhood intervention should improve academic achievement

by at‑risk children so that by the end of kindergarten, first grade, second

grade, third grade and onward, these at‑risk children will be performing at

or above grade level and receiving a sound basic education as is their

constitutional right and no longer be academically at‑risk.

 

The Court is not so naļve as to think that every single at‑risk child will

be an academic superstar as a result of this early childhood intervention,

but the Court is convinced that without this intervention more children will

be doomed to the academic basement when in fact, with this help, they can

perform at grade level or above and receive a sound basic education.

 

In conclusion, the Court, based on the clear and convincing evidence, finds

and concludes as a matter of law that under the North Carolina Constitution

as interpreted by Leandro, the right of each child to an equal opportunity

to receive a sound basic education in the public schools is not to be

conditioned upon age, but rather upon the need of the particular child,

including, if necessary, the equal opportunity of an at‑risk child to

receive early childhood pre‑kindergarten education prior to reaching the age

of five and prior to entering five‑year old kindergarten.

 

The Court further finds and concludes as a matter of law that at the present

time, the State of North Carolina lacks sufficient quality pre‑kindergarten

educational programs to meet the needs of its at‑risk children. As a result,

those at‑risk children, who are not presently in quality pre‑kindergarten

educational programs, are being denied their fundamental constitutional

right to receive the equal opportunity to a sound basic education.

 

The denial of this fundamental constitutional right is the failure of the

State to provide early childhood education in the form of quality

pre‑kindergarten educational programs that will help at‑risk children come

to school ready to take advantage of the educational opportunities offered

in five‑year old kindergarten and beyond.

 

CAVEAT

 

The Court's decision does not require the State of North Carolina to

provide every four (4) year old child with a pre‑kindergarten program at

state expense. A universal four-year-old pre‑kindergarten program is not

required to meet the sound basic education standard of Leandro because,

fortunately, the majority of four-year-olds are not at‑risk and are able to

enter the kindergarten at age five ready to learn.

 

Pre‑kindergarten educational programs for at‑risk children, however, must be

expanded to serve all of the at‑risk children in North Carolina that qualify

for such programs. The nuts and bolts and implementation of the expansion of

pre‑kindergarten educational programs for at‑risk children is a matter to be

taken up by the Executive and Legislative Branches of Government.

 

This is so because Leandro instructs the Court to grant deference to those

branches of Government in terms of the implementation of such programs if a

constitutional deficit is determined to exist.

 

Notwithstanding this, the pre‑kindergarten deficit for at‑risk children must

be made up in Hoke County, as well as in other counties in North Carolina,

at a reasoned and deliberate pace.

This the ______ day of October, 2000.

___________________________________MHoward E. Manning, Jr.

Superior Court Judge