Lawsuit filed against Gov. Jared Polis and state education leaders over rollout of universal preschool program

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Colorado Gov. Jared Polis listens as students tell him jokes in the Rainbow Fish classroom at Fisher Early Learning Center in Denver, Aug. 15, 2023. Polis visited Fisher to mark the first day of the state’s free universal preschool program.

A sweeping lawsuit was filed Thursday against Gov. Jared Polis and state education leaders over the implementation of Colorado’s new universal preschool program known as UPK. The organization representing Colorado’s superintendents, another representing special education directors, and six school districts filed the state complaint Thursday.

The 61-page lawsuit alleges that the strict rules on the way the UPK system matches children with preschool providers violates federal and state laws protecting students with disabilities by depriving school districts of the power to meet those children’s needs.

The suit describes a system rife with “glitches, miscommunications and uncertainty” and a litany of problems that it argues has harmed districts and families as they’ve unsuccessfully tried to enroll in UPK. It describes numerous cases of young children for whom the district created special education plans and who should be enrolled in the school district but who still aren’t.

It alleges the UPK rollout has caused lost revenue, increased administrative workloads, and diminished relationships with parents, students and the community.

Jenny Brundin/CPR News
Superintendents and district officials at press conference announcing the lawsuit, Thursday Aug. 17, 2023.

In a statement, Gov. Jared Polis' spokesperson, Conor Cahill said the voters made their voice heard for UPK.

“While it’s unfortunate to see different groups of adults attempting to co-opt preschool for themselves, perhaps because they want to not allow gay parents to send their kids to preschool, or they want to favor school district programs over community-based early childhood centers, the voters were clear on their support for parent choice and a universal, mixed delivery system that is independently run, that doesn’t discriminate against anyone and offers free preschool to every child no matter who their parents are," the statement said.

On Wednesday, two Catholic preschools filed a different lawsuit against the executive director of Colorado Department of Early Childhood and the director of the Universal Preschool Program over being excluded from UPK. Faith-based preschools such as St. Mary Catholic Parish and St. Bernadette Catholic Parish cannot participate because they give Catholic families priority and do not allow their teachers, parents or students to be LGBTQ. Preschool providers have to meet the state’s non-discrimination requirements.

"We will continue to ensure that every Colorado child and family has access to preschool, meet the needs of all learners, and will vigorously defend this landmark program in court so that even more families can benefit from preschool and this is another reminder of why it’s important that we support Proposition ii," the statement said.

For the past 35 years, school districts have had control over how preschool works in public schools. UPK dramatically shifted that system.

The suit argues that a slow and lagging state system fouled up school registration for many families, especially those with children with disabilities. Further, it argues that Colorado’s constitution doesn’t give the new Department of Early Childhood (CDEC) power to control enrollment and placement decisions in public preschools. It claims school districts have been denied local control over the enrollment, staffing, and funding for their preschool programs.  

The complaint also alleges that state education funds meant for special education students landed in CDEC’s general education pot, violating federal law and leaving districts “grossly lacking in resources.”  

School districts already fund 66 percent of the cost of funding special education students, money that should likely come from the state or federal government, according to Lucinda Hundley, who heads up the Colorado Consortium of Directors of Special Education, one of the plaintiffs.

“You take $38 million away for preschool children with disabilities, school districts are still obligated to fund services and supports for those kids. So that 66 percent — the expenditure gap that school districts have to make up — is going to go up,” Hundley said.

 She said 68 rural school districts are already getting reimbursed for UPK at a rate lower than last year, which state officials promised wouldn’t happen. 

"As it is currently set up, elements of the UPK program currently prevent school districts from serving students and families as they should," said Bret Miles, executive director of the Colorado Association of School Executives.

Another claim, an equal protection claim, alleges that the UPK system poses substantial barriers of access to low-income, minority and non-English speaking families.

Finally, the lawsuit alleges that the state broke promises to fund thousands of families for 30 hours a week and that districts would not receive less preschool funding this year compared to last.  

It asks courts to force the state to follow federal and state disability laws, grant school districts access and control over placements of students with disabilities, and give districts real-time and accurate information for all students. It also wants to order CDEC to fund full-day preschool for all 4-year-old students with one qualifying factor, a promise the state reversed several weeks ago. It wants preschool funding for students with disabilities returned to school districts, and reimbursements for losses as a result of funding promises. 

During a press conference on Thursday morning, the Cherry Creek School District superintendent made a plea.

"There are smart people in this room who have done preschool for decades. We were told to go home. Invite us to the table. Let us help solve this problem. And we can, if we think collectively and together," Christopher Smith said.

Miles agreed.

"K-12 leaders only look forward. In no way is this any sort of statement that we can't fix it. We can," he said.

Groups warned state officials of potential UPK problems two years ago

Districts and others warned state officials about potential problems with the way UPK was structured, but claim that state officials ignored them. Miles called the timeline for the rollout needlessly aggressive.

"We repeatedly said the on ramp for this is too fast. We asked from the very beginning for a longer implementation time," he said. 

Hundley said the consortium has tried to partner with the state since July 2020.

“We have multiple communications listing our concerns, listing proposed solutions, and we believe it's been denied at every turn. And we're very concerned, very disappointed.”

Concerns were raised about the fast timeline — less than a year to set up and launch UPK — potential violations of state and federal law, equal access, and the adequacy of funding. Cherry Creek School District Chief Financial Officer Scott Smith said 18 months ago he did some back-of-the-envelope math and determined, “There’s no way they have enough money for this.”

“I repeatedly raised that concern to the Department of Early Childhood. For lack of a better term, I was ignored or treated like Chicken Little, that the sky was falling. But lo and behold, when the rubber meets the road, there isn't the funding to do it.”

Jenny Brundin/CPR News
Scott Smith, center, Cherry Creek School District's chief financial officer, speaking during a press conference announcing a lawsuit against Gov. Jared Polis and state education leaders over the implementation of Colorado’s new universal preschool program. Aug. 17, 2023

Since the 400-page bill granting at least 10 hours a week of preschool for Colorado 4-year-olds, and more for children with a qualifying condition like homelessness, was signed into law, it’s been a year of continually shifting rules, and school districts say, a lack of knowledge about who and how many children will be showing up to classrooms.

Some districts report they have hundreds fewer students than they typically do, especially students with disabilities, and are being forced to decline matches for students without disabilities to hold spots in the event that they do show up.

Districts describe a highly complicated process that in some cases may take weeks to properly enroll a student with an individualized education plan, or IEP, a process that districts previously did in minutes themselves.

Districts prevented from following federal and state disability law

Before UPK, districts had their own preschool systems where they could screen and place students with disabilities into the correct programs.

Special education laws spell out many requirements for school districts, such as creating an IEP for the child and ensuring the child spends some time in a regular classroom with children without disabilities.

The lawsuit argues that because the state denied districts access to the state’s online matching system, BridgeCare, school districts can’t follow the law. Districts are also obligated under federal law to tell parents of children with disabilities their rights, even students at private providers, but the state won’t provide districts with details. 

“We're concerned that parents with kids with special education needs are choosing private schools not understanding the implication of the services that their child is entitled to, but won't receive at that private school,” said Smith at the Cherry Creek School District. He said the district is known for its special education programs.

"This puts schools in a legal jeopardy," said Miles, with Colorado Association of School Executives. "This puts the districts in direct conflict with federal law."

Districts say in many cases, for students on their rosters, they don’t know who has an IEP and who doesn’t, who has 15 hours of free preschool and who has 30. This has made budgeting impossible, allege districts. Districts didn’t get UPK revenue information until a month after district budgets were finalized.

In one case, Westminster Public Schools evaluated and drafted IEPs for students before they were 4, through the district’s Child Find program. Those families say they’re planning to enroll. But none of the 16 students has appeared in BridgeCare. But the district must still hold those spots for IEP students and has had to reject other students. The suit argues when districts controlled enrollment, WPS could assist families even when schools were full.

“This is impossible under CDEC’s regime,” the lawsuit says.

The suit also alleges children with disabilities have been placed in schools that cannot meet their needs.

Districts say the implementation of UPK is the problem

The Harrison School District 2 in southern Colorado Springs alleges it hasn’t received an initial payment for UPK, which it should have by now. School started on Aug. 8. To date, 27J Schools north of Denver has received $60,000 less in funding for its preschool program than it did this time in last school year and expects this trend to continue based on enrollment status of its students.

"This has failed our students and families and is failing students across the state," Harrison school district superintendent Wendy Birhanzel. "The state's created a system where my families are behind the ball and we've created an education gap at three years. Our most at-risk kids are suffering."

The Mapleton district says it’s aware of several families who gave up on enrolling when they encountered problems.

“This is devastating, given that UPK was presented by the state as an expansion of the number of students served,” the suit said.

Students have been declined spots in Platte Valley School District’s preschool, when parents made it their first choice. The district alleges slots have been removed in the state’s system, and the district doesn’t know which students qualify for 30 hours, and which for 15. Families have arrived in district offices not knowing they needed to enroll with the state.

Cherry Creek estimates it has spent an additional $6 million ramping up for UPK for which it won’t be reimbursed. Smith stresses public schools are deeply committed to 4-year-old preschool. It’s the way UPK was implemented that’s the problem.

“This is going to be one of the largest unfunded mandates that the state has ever put on public education, when it has been sold as the greatest thing since sliced bread,” said Smith. 

A last-minute rule change

The suit goes on to argue that a last-minute change to a state rule that stripped 9,000 families of an additional 15 hours of care has hurt, in particular, high-poverty districts like Westminster. Last year, under the old preschool system, the district was able to provide 30 hours of preschool for 328 students.

When the state changed its rule several weeks ago, 254 families out of 318 enrolled this year were expecting full-time care. Only 80 students now qualify for 30 hours. The district plans to honor the commitment to provide 30 hours to those who originally qualified — but it will cost the district an extra $2 million.

“This likely means taking funds from other school district programs, impacting the students and employees in such departments,” it said.

Parents blame the districts

Early on, Cherry Creek School District officials only offered the minimum 10 hours of schooling the law stipulates for the first year. But the state told families with children with IEPs that they qualified for additional hours, implying those programs would be available at the district. When it turned out not to be true, parents turned their anger toward the district.

CCSD staff have had to endure several calls and confrontations by angry and distraught parents who have been promised something that is unavailable. 

The suit alleges the state changed course so when BridgeCare opened, about half of Cherry Creek’s sites weren’t in the system because the state hadn’t yet licensed them. Some parents opted for private providers. Then they tried to go back into the school system where there were more services available and encountered problems.  

The district argues that accessing the system in Spanish and Arabic requires technical savvy that same families don’t have. Smith reiterated that he supports UPK if it was rolled out properly with adequate funding.

“Really what we're doing is we're balancing this program on low-income students, English-language learners and special education students so that our affluent families can get 10 hours of preschool for free,” he said.

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