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