Judge dismisses universal preschool lawsuit against state saying school districts should address concerns through policies

Jenny Brundin/CPR News
Gov. Jared Polis visits a preschool class at Bal Swan Children’s Center in Broomfield on Aug. 24, 2023.

A Denver judge dismissed a lawsuit brought by several Colorado school districts over the state’s implementation of the universal preschool program.

Judge Jon J. Olafson ruled this week that the plaintiffs — six school districts, the organization representing Colorado’s superintendents, another representing special education directors, two families and a rural school cooperative agency — didn’t prove that they were harmed by the rollout of the state program.

In their lawsuit, districts had detailed many examples of having to turn away families because they couldn’t verify they were properly placed, long waits on hold for families, or families lost somewhere in the system. They argued there was harm, in particular, against students with disabilities.

Though plaintiffs had argued there had to be a legal remedy for the chaotic rollout of the UPK program, Olafson said districts have experienced “the ordinary nuances and headaches” as a result of the changes but “these growing pains, however, are not legally protected injury.”

The lawsuit against Gov. Jared Polis and state education leaders alleged the state’s complete control over how a family is matched to a childcare provider caused a litany of problems and prevented them from meeting the needs of thousands of families in a timely manner, especially students with disabilities. School districts argued the centralized system usurped local control decisions about enrollment, placement, staffing and funding. They also argued it was a violation of the federal constitution’s equal protection clause.

In the 20-page ruling, the judge found that implementation of UPK “does not invade local control.”  He said regulating admissions and handling enrollment has historically been controlled by the state. The judge also ruled that school districts aren’t “persons” under the federal equal protection clause.

The judge said both federal and disability law provide administrative remedies but the plaintiffs didn’t pursue those in the form of complaints. He said the state law that created UPK doesn’t have language that allows school districts to legally challenge the state department of early childhood.

The decision hands a victory to Polis, who championed free half-day or full-day preschool for every 4-year-old in the state and some 3-year-olds. Voters approved UPK in 2020. Nearly two-thirds of eligible children are participating. They can choose to go to a public preschool, a private center or a family-based home provider for between 10 and 30 hours a week.

In one of the claims, the districts asked the state to cover the costs of full-day preschool for 9,000 families who found out just before school started they’d only have half day paid for. The judge ruled school districts lack standing because they weren’t parties to the agreements signed by parents.

Olafson heard arguments for and against dismissing the lawsuit in May. In his ruling, he agreed with the state’s argument that concerns outlined in the lawsuit should be addressed through policy-making or administrative means, not the courts.

State officials said they had no immediate comment.

In a statement, the Colorado Association of School Executives said it is disappointed in the court’s decision.

 “Filing this lawsuit was a last resort and our top priority has always been ensuring that the violations of special education law, funding, and equal protections for students are rectified,” it said. “While this fix won’t occur through a court order, it doesn’t change our path forward.”

It said it will continue to work with the state on transparency and solutions to the issues impacting students and families.

More action on another lawsuit over UPK

Less than a month after declaring that a federal court decision in June meant that the state had discriminated against two Catholic preschools, lawyers for those schools will appeal the ruling.

That’s because while a federal judge ruled that preschools at St. Mary in Littleton and St. Bernadette’s in Lakewood have the right to consider religion when enrolling families, the judge stopped short of allowing them to reject LGBTQ+ families.

Judge John L. Kane rejected most of the claims made by the two Catholic preschools that filed a lawsuit against the state last year. He said Catholic preschools could not discriminate on the basis of protected classes such as sexual orientation and gender.

The preschools claimed the non-discrimination condition for participating in UPK conflicted with their religious beliefs by requiring them to enroll LGBTQ+ families. The two schools didn’t participate in the program in its first year because they didn’t want to agree to follow the state’s non-discrimination rules.

Lawyers for the preschools appealed to the 10th Circuit Court of Appeals in late June.

Nick Reaves, senior counsel at Becket law firm, said in a statement that Catholic churches are obligated to uphold the church teachings in classroom instruction and in their operations.

“While the district court correctly recognized that the state has no right to prevent Catholic schools from considering religious affiliation in their enrollment decisions, the court still did not permit them to participate in the UPK program while operating consistently with their Catholic mission.”