North Carolina cannot impose a cap that limits pre-kindergarten for low-income 4-year-olds, a Superior Court judge reaffirmed in a new order that also swatted down attempts by Republican legislative leaders to intervene in the issue.
The Sept. 2 order by Wake County Superior Court Judge Howard E. Manning Jr. brings some clarity to the matter surrounding recent changes to the pre-kindergarten program formerly known as More at Four.
But the war of words continued between Republican lawmakers and Gov. Bev Perdue, a Democrat who considered Manning's decision a victory.
Senate leader Phil Berger, an Eden Republican, called the judge's order "judicial activism of the worst kind" and said Manning was "determined to create a massive new welfare program from the bench."
Perdue said she had directed the agency overseeing the pre-K program to come up with a plan to comply with Manning's order, which could open up pre-K education to many more children. Given limitations of space, staff and money, the program cannot be fully expanded immediately, Perdue cautioned in a statement.
"It is the intention of my administration to make sure that the order is implemented as expeditiously as possible," Perdue said. "Providing at-risk children with access to an academic pre-kindergarten program helps them prepare for success in elementary school and throughout their lives."
Last year, 32,000 4-year-olds were enrolled in the program at a cost of $161 million, but twice that many children would have qualified as "at risk." It's unclear how or when the program could be expanded to serve all who qualify.
Program under cloud
Confusion about the program's future has swirled for months. Earlier this year, the Republican-authored budget cut the program's funding by 20 percent, authorized co-payments for the first time and included language that limited participation by poor children to 20 percent.
Education budget cuts prompted attorneys for five poor school districts to file a legal challenge, which led to a hearing in June before Manning. That was the latest in a long-running lawsuit known as Leandro, which years ago established that all North Carolina children have a constitutional right to a sound, basic education.
Attorneys for the poor counties argued that changes to More at Four would keep out poor children the program was designed to serve.
Manning agreed, issuing an order in July saying the state cannot implement any barrier that prevents eligible at-risk children from enrolling in the pre-K program.
Republican leaders argued that Manning had simply misunderstood the 20 percent limit spelled out in the budget law. They admitted that the provision was poorly worded but contended its intent was to maintain the program for the poor. They argued the 20 percent limit applied not to poor children but to those with other risks, including children with disabilities or limited English.
Manning's strong words
Berger and House Speaker Thom Tillis filed a motion in August asking the court to clarify Manning's ruling and to allow them to intervene in the issue in their roles as leaders in the legislature.
Manning rejected their motions in his recent order. "This Court has no intention of putting itself, or the judiciary, in the middle of this political dispute," he wrote.
The judge pointed out that the court could not hash out what legislative budget writers intended with the 20 percent cap, nor could the court essentially rewrite the budget law to say so.
Manning merely reiterated his original ruling that the budget law's provision created "an impermissible barrier to the ability of 'at-risk' four year olds to take advantage of the opportunity to attend the Pre-K program and thereby have the opportunity to be prepared to obtain a sound basic education."
In his statement, Berger stressed that only the legislature - not the courts and not the governor - has the authority to decide whether to appropriate more money for an expansion.
"The General Assembly's leadership does not intend to spend money the state doesn't have," Berger's news release said.
The wrangling isn't over. The state Attorney General's Office has filed an appeal.
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