DATE FILED: August 17, 2023 11:27 AM

FILING ID: 4F7C26B5277E5

DISTRICT COURT, CITY AND COUNTY OF DENVER,
CASE NUMBER: 2023CV32387
COLORADO
1437 Bannock Street
Denver, Colorado 80202

Plaintiffs:
COLORADO ASSOCIATION OF SCHOOL EXECUTIVES;
CONSORTIUM OF DIRECTORS OF SPECIAL EDUCATION;
BRIGHTON SCHOOL DISTRICT 27-J; CHERRY CREEK
SCHOOL DISTRICT NO. 5; HARRISON SCHOOL DISTRICT
2; MAPLETON PUBLIC SCHOOLS; PLATTE VALLEY COURT USE ONLY
SCHOOL DISTRICT; and WESTMINSTER PUBLIC
SCHOOLS.

v.

Defendants:
STATE OF COLORADO; JARED POLIS, in his official capacity
as Governor; COLORADO STATE BOARD OF EDUCATION;
COLORADO DEPARTMENT OF EDUCATION; SUSANA
CORDOVA, in her official capacity as Commissioner of
Education; COLORADO DEPARTMENT OF EARLY
CHILDHOOD; and LISA ROY; in her official capacity as
Executive Director of the Department of Early Childhood.

Attorneys for Plaintiffs:

Case Number:
SEMPLE, FARRINGTON, EVERALL, & CASE, P.C.
Jonathan P. Fero, No. 35754
Div./Courtroom:
Robert P. Montgomery, No. 49502
1120 Lincoln Street, Suite 1308
Denver, CO 80203
Phone: 303-595-0941
Fax: 303-861-9608
Email: jfero@semplelaw.com; rmontgomery@semplelaw.com

COMPLAINT

Plaintiffs, through counsel SEMPLE, FARRINGTON, EVERALL & CASE, P.C., by

Jonathan P. Fero and Robert P. Montgomery, for their claims against Defendants, and each of

them, state as follows:

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 INTRODUCTION

1. This action is brought pursuant to C.R.C.P. 57, 65, and 106, as well as the Uniform

Declaratory Judgments Law, for declaratory and injunctive relief to determine and enforce rights

guaranteed by the Colorado and United States Constitutions, state and federal statutes, and

contract.

2. This Court has jurisdiction over the subject matter at issue. COLO. CONST. Art. VI,

Sec. 9; see also C.R.C.P. 57, 65, 106(a)(2).

3. Venue in this Court is proper pursuant to C.R.C.P. 98(b).

PARTIES

4. Plaintiff the Colorado Association of School Executives (“CASE”) is a nonprofit

corporation organized under the laws of the State of Colorado. CASE is a professional organization

that exists to unite school executives to promote the continuous improvement of public education,

and its mission is to empower Colorado education leaders through advocacy, professional learning,

and networking to deliver on the promise of public education. CASE represents approximately

3,300 public school administrators from nearly all of Colorado's 178 school districts. CASE’s

members include superintendents, senior district administrators, and school leaders who have

professional responsibility for ensuring that all students, including those with disabilities, English

language learners, minority students, and economically disadvantaged students, are appropriately

served in compliance with federal and state law.

5. CASE’s members are state and local taxpayers with an interest in a constitutional

Universal Pre-Kindergarten (“UPK”) preschool program and expenditure of public funds

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regarding UPK. CASE is a Plaintiff on its own behalf and in its representative capacity on behalf

of its membership. CASE has expended substantial resources in its efforts to work collaboratively

with the Defendants to resolve the underlying concerns with regard to the implementation of the

Act. The Plaintiffs’ circumstances, as described in these allegations, are representative of the

experiences of most (if not all) CASE members and the claims and relief sought in this action will

benefit all CASE members. The claims and relief sought do not require the individual participation

in this lawsuit by all of CASE’s members.

6. Plaintiff the Colorado Consortium of Special Education Directors (the

“Consortium”) is a professional organization of all directors of special education in the State of

Colorado. The purpose of the Consortium is to provide professional support and advocate for

special education directors working for school districts and BOCES. The Consortium’s members

have professional responsibility for ensuring that students with disabilities are appropriately served

in compliance with federal and state law.

7. The Consortium has expended substantial resources regarding implementation of

the Colorado Universal Preschool Program Act, including advocacy that the Defendants make

needed changes. The Consortium’s members are state and local taxpayers with an interest in a

constitutional UPK program and expenditure of public funds regarding UPK. The Plaintiffs’

circumstances, as described in these allegations, are representative of the experiences of all

Consortium members and the claims and relief sought in this action will benefit all consortium

members. The claims and relief sought do not require the individual participation in this lawsuit

by all of the Consortium’s members.

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 8. Plaintiff Brighton School District 27J (“27J Schools”) is a public school district

organized and operating pursuant to Colorado law located in multiple municipalities in Adams and

Arapahoe Counties, Colorado. C.R.S. § 22-30-103. In addition, 27J Schools is a local education

agency (“LEA”) pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) and

an administrative unit (“AU”) pursuant to the Colorado Exceptional Children’s Educational Act

(“ECEA”) for purposes of special education. 20 U.S.C. § 1401(19)(A); C.R.S. § 22-20-103(1).

9. The UPK system, as implemented, has caused harm and will continue to cause harm

to 27J Schools in the form of, among other things, lost revenue, increased administrative

workloads, and diminished relationships with parents, students, and the community, as well as by

prejudicing its ability to provide educational opportunities to all students, comply with federal and

state law, and exercise its constitutional rights.

10. Plaintiff Harrison School District (“HSD”) is a public school district organized and

operating pursuant to Colorado law located in Colorado Springs, Colorado. C.R.S. § 22-30-103.

HSD is the LEA and AU pursuant to the IDEA and the ECEA respectively for purposes of special

education.

11. The UPK system, as implemented, has caused harm and will continue to cause harm

to HSD in the form of, among other things, lost revenue, increased administrative workloads, and

diminished relationships with parents, students, and the community, as well as by prejudicing its

ability to provide educational opportunities to all students, comply with federal and state law, and

exercise its constitutional rights.

12. Plaintiff Cherry Creek School District (“CCSD”) is a public school district

organized and operating pursuant to Colorado law located in multiple municipalities in Arapahoe

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County, Colorado. C.R.S. § 22-30-103. In addition, CCSD is a local education agency (“LEA”)

pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) and an administrative

unit (“AU”) pursuant to the Colorado Exceptional Children’s Educational Act (“ECEA”) for

purposes of special education. 20 U.S.C. § 1401(19)(A); C.R.S. § 22-20-103(1). The Act and the

acts and omissions of the Defendants have caused and will continue to cause harm to CCSD, in

the form of, among other things, lost revenue, increased administrative workloads, and diminished

relationships with parents, students, and the community, as well as by prejudicing its ability to

provide educational opportunities to all students, comply with federal and state law, and exercise

its constitutional rights.

13. The UPK system, as implemented, has caused harm and will continue to cause harm

to CCSD in the form of, among other things, lost revenue, increased administrative workloads,

and diminished relationships with parents, students, and the community, as well as by prejudicing

its ability to provide educational opportunities to all students, comply with federal and state law,

and exercise its constitutional rights.

14. Plaintiff Platte Valley School District (“PVSD”) is a public school district

organized and operating pursuant to Colorado law located in Weld County, Colorado. C.R.S. § 22-

30-103. PVSD is a member school district of the Centennial Board of Cooperative Educational

Services (“BOCES”). A BOCES is a “regional educational services unit created . . . and designed

to provide supporting, instructional, administrative, facility, community, or any other services

contracted by participating members.” C.R.S. § 22-20-103(3). The Centennial BOCES acts as the

LEA pursuant to the IDEA and is the AU for PVSD and its other member school districts pursuant

to the ECEA for purposes of special education. 20 U.S.C. § 1401(19)(A); C.R.S. § 22-20-103(1).

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 15. The UPK system, as implemented, has caused harm and will continue to cause harm

to PVSD, in the form of, among other things, lost revenue, increased administrative workloads,

and diminished relationships with parents, students, and the community, as well as by prejudicing

its ability to provide educational opportunities to all students, comply with federal and state law,

and exercise its constitutional rights.

16. Plaintiff Westminster Public Schools (“WPS”) is a public school district organized

and operating pursuant to Colorado law located in multiple municipalities in Adams County,

Colorado. C.R.S. § 22-30-103. In addition, WPS is an LEA pursuant to the IDEA and an AU

pursuant to the ECEA for purposes of special education. 20 U.S.C. § 1401(19)(A); C.R.S. § 22-

20-103(1).

17. The UPK system, as implemented, has caused harm and will continue to cause harm

to WPS, in the form of, among other things, lost revenue, increased administrative workloads, and

diminished relationships with parents, students, and the community, as well as by prejudicing its

ability to provide educational opportunities to all students, comply with federal and state law, and

exercise its constitutional rights.

18. Plaintiff Mapleton Public Schools (“Mapleton”) is a public school district

organized and operating pursuant to Colorado law located in Adams County, Colorado. C.R.S. §

22-30-103. In addition, Mapleton is a local education agency (“LEA”) pursuant to the federal

Individuals with Disabilities Education Act (“IDEA”) and an administrative unit (“AU”) pursuant

to the Colorado Exceptional Children’s Educational Act (“ECEA”) for purposes of special

education. 20 U.S.C. § 1401(19)(A); C.R.S. § 22-20-103(1).

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 19. The UPK system, as implemented, has caused harm and will continue to cause harm

to Mapleton in the form of, among other things, lost revenue, increased administrative workloads,

and diminished relationships with parents, students, and the community, as well as by prejudicing

its ability to provide educational opportunities to all students, comply with federal and state law,

and exercise its constitutional rights.

20. Defendant State of Colorado is a body politic.

21. Defendant Jared Polis, in his official capacity as Governor, is vested with the

supreme executive power of the state and is charged with the duty to take care that the laws are

faithfully executed.

22. Defendant Colorado State Board of Education (“SBE”) exercises the general

supervision of the public schools of the state and appoints the Commissioner of Education pursuant

to Article IX, Section 1 of the Colorado Constitution and legislation enacted pursuant thereto.

23. Defendant Colorado Department of Education (“CDE”) is a state executive agency

administered by the Commissioner of Education (“Commissioner”), who is appointed by the SBE.

CDE has extensive powers, duties, and functions regarding public education, and it is the only

state education agency (“SEA”) with responsibility under federal special education law to ensure

students with disabilities are appropriately served.

24. Defendant Susana Córdova, in her official capacity as the Commissioner, is the

chief state school officer and executive officer of CDE, as appointed by the SBE. The

Commissioner’s duties include executing all policies, rules, and regulations adopted by the SBE,

and overseeing CDE’s discharge of its powers, duties, and functions.

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 25. Defendant Colorado Department of Early Childhood (“CDEC”) is a state executive

agency responsible for administering state early childhood functions and programs, including the

Colorado Universal Preschool Program (“UPK”).

26. Defendant Lisa Roy, in her official capacity as the Executive Director (“Director”)

of CDEC, is the executive officer of CDEC, serving at the pleasure of the Governor. The Director’s

duties include overseeing CDEC and ensuring the proper and efficient discharge of its powers,

duties, and functions.

FACTUAL ALLEGATIONS

A. Background of the Universal Preschool Program.

27. On April 25, 2022, Governor Polis signed into law House Bill 22-1295, the

Colorado Universal Preschool Program Act (“Act”), establishing the Colorado Universal

Preschool Program (“UPK”). The Act contained over 400 pages and was the culmination of more

than two years of policy debate and stakeholder engagement.

28. Prior to the implementation of the Act, Plaintiffs, like most of the school districts

in Colorado, had well-established preschool enrollment systems designed to engage families and

screen and place students in programs consistent with parent choice and each student’s specific

educational needs. These systems consider, among other things, state and local obligations to

students with disabilities receiving special education pursuant to the IDEA and the ECEA and were

funded through a combination of federal and state funds including the Colorado Preschool Program

(“CPP”), per-pupil funding for special education pursuant to the Colorado School Finance Act and

the IDEA, and CDE’s Early Childhood At-Risk Enhancement (“ECARE”) program.

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 29. Despite concerns regarding the State’s transition plan (or lack thereof) and timeline,

Plaintiffs, and the larger K–12 community, have shared the State’s commitment to universal

preschool and have made every effort to work collaboratively with Defendants to resolve critical

concerns regarding, among other things, the aggressive timeline for implementation, potential

violations of state and federal law regarding the rights of children with disabilities, equal access,

and the adequacy and transparency of funding. These concerns have not been adequately addressed

and are the basis for this action.

B. The Act and its mandates.

30. The Act authorized CDEC to administer the UPK system. C.R.S. § 26.5-1-104(1).

31. The Director of CDEC is appointed by the Governor, and the Director reports to

the Governor. C.R.S § 26.5-1-104(1). CDEC has no affiliation with CDE, and CDEC is not

accountable to CDE or the SBE. The Director has rule-making authority regarding the UPK

system. C.R.S § 26.5-1-105(1)(a).

32. The Act expands the scope of publicly funded delivery of preschool services based

on parent choice. C.R.S. § 26.5-1-102(1); C.R.S. § 26.5-4-204(2). It creates Local Coordinating

Organizations (“LCO”s), which are “entit[ies] selected by [CDEC] . . . to support access to and

equitable delivery of early childhood and family support programs and services in specified

communities throughout the state.” C.R.S § 26.5-2-102(5). The Act tasks LCOs with, among other

things: (1) coordinating program applications and enrollment processes in its region; and (2)

providing universal access “in alignment with family choice”. C.R.S § 26.5-2-104(2). LCOs

implement systems procured and developed by CDEC to coordinate enrollment and educational

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services for preschool students. On information and belief, LCOs have not received the training or

resources they need to fulfill their obligations under the Act and have fallen far short of the

expectations established by the Act.

33. For the 2023–24 school year and each year after, the Act requires that every child

in the State receive ten hours of preschool services per week at no charge subject to availability

and capacity of preschool providers. C.R.S § 26.5-4-204(3)(a)(I). This includes private providers,

as the Act allows them to receive public funds.

34. For students with disabilities, the UPK program is required to offer “preschool

services in accordance with the child’s individualized education program” (“IEP”). 1 C.R.S § 26.5-

4-204(3)(a)(II).

35. For low-income students, or other students who meet at least one qualifying factor,

the UPK program may provide additional preschool services for the number of hours established

by CDEC rules in the preceding school year. C.R.S § 26.5-4-204(3)(a)(V). CDEC is responsible

for distributing funds to providers under the Act. Amounts previously distributed to school districts

by CDE through CPP, E-Care, and the School Finance Act purportedly have been transferred from

CDE to CDEC, including $38.2 million in special education funding which was previously

distributed to school districts through the School Finance Act based on the number of preschool

students with disabilities enrolled in their programs (“SPED PPR”). However, the SPED PPR will

not be distributed to providers based on special education numbers; instead, on information and

belief, it will be included in the larger pot of funds distributed for general education UPK program

to providers.

1
See paragraphs 38 through 40 of the Complaint for the definition of an IEP.
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 36. Neither CDE nor CDEC have been able to confirm whether and how SPED PPR

will be used to benefit special education students and programs. Nor has either entity clarified if

and/or how private providers will be required to compensate public providers for the provision of

special education services. CDE and/or CDEC have suggested that an AU can enter into an

agreement with a private provider to obtain UPK funds for special education services, but an AU

has no authority to require that.

37. Moreover, CDE has reported that $37 million of prior year preschool funding will

be retained in the K–12 formula funding and will not be transferred to CDEC for the UPK program.

CDEC also has acknowledged that it and LCOs will consume some undisclosed amount of the

reduced transferred funding as administrative overhead.

38. The Act requires CDEC to consider “[t]he responsibilities of the state and

administrative units to meet the special education funding maintenance of effort [(“MOE”)]

requirements specified in IDEA” when setting provider funding formulas. § 26.5-4-208(1)(a)(II),

C.R.S. The IDEA is clear that federal dollars “must not be used to reduce the level of expenditures

for the education of children with disabilities made by the [AU] from local funds below the level

of those expenditures for the preceding fiscal year.” 34 C.F.R. § 300.203(b). In the event any AU

fails to meet these requirements, the IDEA holds CDE liable for returning funds to the United

States Department of Education in “an amount equal to the amount by which the [AU] failed to

maintain its level of expenditure” using non-Federal funds. 34 C.F.R. § 300.203(d).

C. Special education and school districts’ obligations under state and federal law.

39. The IDEA requires LEAs to provide a free appropriate public education (“FAPE”)

to children with disabilities who qualify for special education. 20 U.S.C. § 1401(9); Endrew F. v.

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Douglas Cnty. Sch. Dist. RE-1, 137 S.Ct. 988 (2017). It is the responsibility of the state education

agency (“SEA”) to ensure that LEAs are providing FAPE to students with disabilities. 20 U.S.C.

§ 1412(a)(11). CDE is the designated SEA under both the IDEA and the Act. 20 U.S.C. § 1401(32);

1 CCR 301-8 § 2220-R-2.48. Additionally, an AU is a LEA in Colorado, which can be a school

district standing alone or a BOCES. 1 CCR 301-8 § 2220-R-2.31.

40. FAPE means special education and related services that are delivered to qualified

students that meet the standards set by the SEA, and “are provided in conformity with a [IEP].” 20

U.S.C. § 1401(9). An IEP is “a written statement for a child with a disability that is developed,

reviewed and revised in accordance with [the IDEA].” 20 U.S.C. § 1401(14). An IEP is developed

to ensure that a child with a disability has the specialized instruction and related services necessary

to participate in a public program, and is not excluded from public education. See 20 U.S.C. §

1400(c)(2)(B); 20 U.S.C. § 1400(d)(1)(A).

41. The IEP is developed by an IEP Team, which is a group of knowledgeable

individuals “responsible for developing, reviewing, or revising an IEP for a child with a disability.”

20 U.S.C. § 1414(d)(1)(B). The IEP team includes the student’s parent or guardian.

42. A student’s IEP must include, among other things, a statement of the special

education and related services the student will receive, as well as an explanation of the extent, if

any, to which the child will not participate with nondisabled children in the regular class. 20 U.S.C.

§ 1414(d)(1)(A)(i). This provision references a student’s placement, and the LEA’s responsibility

to educate the child in the least restrictive environment (“LRE”). Importantly, to ensure all students

with disabilities can be provided FAPE in the LRE, each LEA must ensure that a “continuum of

alternative placements is available” within its jurisdiction. 20 U.S.C. § 1412(a)(5). The continuum

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of alternative placements includes instruction in regular classes, special classes, special schools,

home instruction, or instruction in hospitals and institutions. 20 U.S.C. § 1412(a)(5).

43. CDE maintains its own standards related to LRE for preschool. To ensure that

students with disabilities are educated in the LRE, CDE requires that when serving students with

disabilities, students with IEPs must comprise less than 50 percent of students in the classroom.

This recognizes that it is best practice for children with IEPs to be served in classrooms

representative of the community where they live. See

https://www.cde.state.co.us/cdesped/appropriateedenvironments.

44. Each AU in Colorado maintains different types of placements at different locations

within its jurisdiction. When a student requires a more intensive program, a student may need to

attend a school within the AU where resources have been allocated to meet the needs of students

with such needs. A student’s placement along the continuum is determined by members of the

child’s IEP team, and the IDEA requires that the placement be based on the child’s IEP and as

close as possible to the child’s home. 34 C.F.R. § 300.116(b). The IDEA regulations are explicit

that this process is required for all students who qualify for special education, “including a

preschool child with a disability.” 34 C.F.R. § 300.116.

45. After a placement decision is made, it is the AU’s responsibility to select the service

location—that is, the school in which a child will be served. 1 CCR 301-8 § 2220-R-4.03(8)(a);

Urban v. Jefferson Cty. Sch. Dist. R-1, 89 F.3d 720, 727 (10th Cir. 1996). An AU is given this

authority so that it can ensure the child attends a school where the resources exist to implement his

or her IEP. To ensure there was no confusion about an AU’s authority to select the appropriate

service location, the CDE codified such authority in the ECEA regulations during the summer of

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2022. See 1 CCR 301-8; 2220-R-4.03(8)(a). AUs must have this authority to ensure a child’s IEP

is appropriately implemented. CDEC’s procedures of selecting a “match” or “declining” a parent’s

application to a particular school within an AU that an AU has selected as an appropriate service

location immediately puts AUs and CDE at odds with the IDEA and the ECEA.

46. The Act requires that CDEC and CDE “collaborate . . . through a memorandum of

understanding . . . to ensure that all children with disabilities are served equitably in the Colorado

universal preschool program.” C.R.S. § 26.5-4-206(1).

47. CDEC and CDE entered into a memorandum of understanding (“MOU”) on

February 1, 2023 (See attached Ex. 1). The MOU states that “The CDE is the State’s Lead

Educational Agency under IDEA and ensures compliance with all requirements under IDEA and

the ECEA.” In its role, CDE has responsibility to “ensure that all AUs comply with all IDEA and

ECEA requirements. The CDE shall enforce all special education rules applicable to preschool as

promulgated by the State Board of Education, including, without limitation, rules related to Child

Find and other IDEA and ECEA obligations for all Universal Preschool Program participants.”

48. Also pursuant to the MOU, “CDEC shall cooperate with the CDE and AUs as

necessary to ensure proper implementation of any special education programs to children enrolled

in the UPK in compliance with state and federal law and relevant regulations.”

49. With respect to AUs, the MOU requires CDE to “establish relevant procedures,

monitor all special education and related services for children enrolled in UPK, and issue

corrective actions and other actions to ensure that any UPK Providers who provide special

education services to children in the UPK are accountable for and comply with all special

education laws, rules, and regulations.”

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 D. CDEC’s implementation of UPK has been unlawful, and CDE’s failure to enforce its
MOU and take action in its capacity as SEA has put AUs at odds with state and federal
law, and is denying equitable access to preschool services for Colorado children.

50. In implementing UPK statewide, CDEC has purchased an electronic system called

BridgeCare. BridgeCare is a system through which families must apply for UPK. School districts

and other identified preschool providers give CDEC information about their programs and the

capacity of each program. Such programs are then presented in BridgeCare for parents to identify

and consider. In their applications for their children, parents may select their choice of preschool

provider. Parents may make one selection or list a number of preschool providers at different

locations, ranking their choices.

51. BridgeCare utilizes an algorithm that considers different factors, and then

“matches” a child to a preschool facility. At the end of a particular “round,” preschool providers

are notified of matches. The providers can then “accept” the match or “decline” the match. If the

provider accepts the match, then the parent must also accept the match before the child can be

enrolled. If both parties accept the match, BridgeCare “enrolls” the student in the chosen school. 2

52. If either the parent or the provider do not accept the placement in a public school

and do not accept any alternative placement, then the student may continue to appear as matched

in subsequent rounds. If the parent declines a public school placement, the student disappears from

the system for school districts. This prevents a school district from holding a spot for the family if

the family preferred to stay on a wait list, and for students with IEPs, it prevents the school district

2
This does not, however, end the enrollment process. Parents must still fill out forms and provide necessary
information to school districts to officially enroll. Just because BridgeCare considers the child “enrolled”
does not mean the child is enrolled in a school.
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from contacting the family to discuss options to implement the child’s IEP in a location that can

meet the student’s needs.

53. School district preschool providers have not known which, or how many, students

have chosen a school district placement as one of its choices. School districts also have not known

which, if any, students who have applied are students with IEPs. Significantly, school districts

have been denied full access to BridgeCare to obtain this information, and CDEC has not shared

such information with school districts.

54. This is important, because school districts have been unable to meet their

obligations to students with disabilities pursuant to the IDEA without full access to BridgeCare or

the authority to place students in an appropriate service location independent of CDEC.

55. As it stands, CDEC matches UPK applicants with schools based on parent choice

and CDEC’s perception of space available in a given location. CDEC is permitted through

BridgeCare to select a service location for children with disabilities and override a school district’s

location determination.

56. As a result, children with disabilities have been placed in schools that cannot meet

their needs.

57. This usurps authority given to AUs by federal and state law and puts AUs in direct

conflict with the IDEA and ECEA.

58. As discussed above, there are several factors that go into selecting a service location

for a student with a disability. The most important step in that process is the IEP meeting, where

the student’s IEP team determines a child’s placement for purposes of special education. Neither

an AU, CDE, nor any other entity has the authority to override an IEP team’s placement

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determination without first going through the due process procedures outlined in IDEA. See 34

C.F.R. §§ 300.507–516. After the IEP team makes a placement determination, an AU must

consider the student’s home school, whether programmatic elements are available at that school

to meet a student’s needs, and whether the special education professionals have the capacity to

meet a child’s needs in a particular location. AUs consider all that information when selecting the

school that can and will ultimately implement a child’s IEP. CDEC’s procedures do not consider

these steps.

59. On July 28, 2023, CDEC recognized the importance of allowing AUs to override

placement decisions made by BridgeCare for students on IEPs and represented that it was giving

AUs such authority by allowing AUs to contact CDEC and identify which students need to be

moved. In practice, AUs have continued to experience system glitches, miscommunications, and

uncertainty that all of the necessary information exists to notify CDEC of changes that need to be

made. CDEC has indicated that it will honor AUs’ location determinations for students with IEPs,

but it has retained the power to override them and requires AUs to submit changes for approval

outside of BridgeCare through a Google Form. With school starting now, AUs and school districts

need authority to enroll their own students either directly in BridgeCare, or to enroll students

independently of BridgeCare while CDEC figures out how to effectively adjust its systems to allow

AUs to exercise their authority under federal and state law to make such determinations.

60. In addition to usurping the authority to place students in schools that can implement

an IEP, CDEC’s procedures also misrepresent what is available to students with disabilities in

different venues. For example, “parentally-placed private school children with disabilities” do not

have “an individual right to receive some or all of the special education and related services that

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the child would receive if enrolled in a public school.” 34 C.F.R. § 300.137(a). Children matched

to private providers in BridgeCare are considered “parentally-placed private school child[ren] with

a disabilit[ies]” under IDEA when both parties accept the match in BridgeCare. 34 C.F.R. §

300.130.

61. Typically such a unilateral placement does not create problems because, when

going through the IEP process with their regular school district, IDEA requires AUs to inform

parents of their procedural safeguards under IDEA, including the possibility of not having full

access to special education in a private setting. Thus, parents make an informed choice when they

choose to enroll in a private school.

62. CDEC’s procedures do not adequately inform parents that they could lose special

education services for their children going through this process. What is more, school districts

have no way of knowing if any of their students have accepted a match with a private provider

rather than a school district provider. This puts parents in the position to unknowingly enroll their

child in a place that cannot implement their IEP. In any event, any notification by CDEC cannot

quell the harm to AUs because it is the AUs’ legal obligation to inform parents of their procedural

safeguards under IDEA. This procedure effectively prevents school districts from informing

parents of their procedural safeguards in violation of the IDEA, and the Act cannot delegate this

authority to CDEC.

63. To remedy this, school districts and BOCES, through the Colorado Association of

School Executives, demanded that CDEC provide a list of students with disabilities who live

within the boundaries of each AU who chose a non-district school as their first choice. On July 28,

2023, CDEC attempted to create reports in BridgeCare providing at least some of the requested

18
information to school districts. Some school districts received no information, and some school

districts received limited information. Most school districts know that the information received is

inaccurate. Moreover, the reports generated were a “one-time” snapshot, and the information is

not fluid, updated live, or otherwise definitively available on an ongoing basis.

64. In addition, to ensure seats are available for students with disabilities, school

districts are having to reject non-disabled students.

65. Across Colorado, school districts are aware of children with disabilities in their

communities, and often know or reasonably anticipate that those students plan to enroll at a

particular school. Many families, particularly those of low income and families of students with

disabilities, are failing to register or are going straight to the school district to register. This is

problematic because the system requires families to go through BridgeCare first. As a result,

enrollment numbers look different within a school district’s system than what appears in

BridgeCare.

66. For example, a school district knows that it has a certain number of spots available

in a particular school. Based on knowledge of their community and past enrollment, the school

district can reasonably project that more students with disabilities will enroll before the school

year begins (even this close to school starting). However, BridgeCare will inform school districts

that there are several students matched to the same location. School districts are having to reject

students without IEPs matched to certain schools to ensure that there is space for students with

IEPs, to accommodate such students when they enroll.

67. This leaves schools with empty seats, even when schools have room to accept more

students and there are students waiting to be accepted into those spots. Because CDEC, through

19
BridgeCare, does not provide the necessary information about those students with IEPs waiting

for a spot, school districts are forced to reject applications and hold space for kids with IEPs who

may never enroll.

68. School districts would be able to support all families in the enrollment process if

information were available about who is waiting, and if school districts had the ability to enroll

students in the BridgeCare system. With full access to BridgeCare, school districts would know if

certain families had not applied, and they would be able to help waiting families find an appropriate

match. CDEC, however, has continued to deny full information and access to AUs.

E. Misinformation about which students qualify to be funded at what level is harming

students and AUs.

69. Problems are exacerbated because CDEC cannot tell school districts which students

qualify for funding for 30 hours per week, and which students qualify for 15 hours of funding per

week.

70. In or around December 2022, CDEC promised that all students would be funded up

to 15 hours per week. However, some students would qualify for 30 hours per week if they met a

“qualifying factor.” The Act defines “qualifying factor” as “a child or family circumstance, as

identified by department rule pursuant to section 26.5-4-204(4)(a)(II), that may negatively impact

a child’s cognitive, academic, social, physical, or behavioral health or development.” CDEC

defined those qualifying factors as: (1) families who are low income; (2) students with

individualized education programs; (3) homelessness; (4) students who are dual language learners;

or (5) students in foster/kinship care.

71. CDEC’s promises set expectations for families and school district providers. Upon

information and belief, parents enrolled students in the first several rounds of matching, expecting

20
they qualified for a 30-hour per week program. With the same expectation, school districts hired

staff necessary to offer 30-hour per week programs for students with a qualifying factor, and kids

began enrolling in such programs.

72. Through the summer of 2023, school districts sought clarification of which students

qualified for 30 hours of funding, and which students qualified for 15 hours. To date, CDEC has

not provided that information. Accordingly, school districts have had no idea how much funding

to expect for the coming school year, making budgeting impossible. School districts, particularly

small and rural school districts, have been unable to plan for how many staff members and teachers

will be required for each program. School districts will have to consider termination of staff if

CDEC fails to fund all students with a qualifying factor at 30 hours per week. Given the enrollment

uncertainty already discussed, school districts also have had to consider overstaffing their

preschool programs in advance so that they can accommodate reasonably anticipated high numbers

of late enrolling students on the first day of school. Many districts, fearing that they may not have

the personnel available to serve their kids, have relied on CDEC’s promises and have elected to

keep staffing levels the same as last year.

73. CDEC has represented that, for the 2023–24 school year, it will exercise a hold

harmless provision in the Act that will ensure school districts are funded at the same levels as the

2022–23 school year. Nonetheless, CDEC has been unable or unwilling to clarify for school

districts and BOCES what that funding level is for each entity under the Act’s hold harmless

provision, how hold harmless calculations are being (or will be) made, or whether those

appropriations are even available to distribute. Upon information and belief, CDEC is interpreting

the hold harmless provision to only apply if overall 2023–24 funding for a district is less than its

21
2022–2023 funding, even if that district is not seeing its preschool seats fully funded. For example,

it appears that the hold harmless provision will not replace any funding reduced because of

CDEC’s reversal regarding the number of qualifying factors necessary for 30 hours per week of

programming.

74. On August 15, 2023, CDEC and CDE informed school districts that hold harmless

funds pursuant to the Act will be distributed in June 2024, after the academic year when there are

no more expenditures. To comply with IDEA’s MOE requirement, LEAs must ensure that they do

not “reduce the level of expenditures for the education of students with disabilities . . . below the

level of those expenditures from the same source for the preceding fiscal year” in any of four

categories of funding. 34 C.F.R. § 300.203(b)(2). Distributing hold harmless funds in June 2024

fails to meet MOE requirements because LEAs cannot spend such funds on the children with

disabilities after the 2023–24 school year.

75. Additionally, according to the hold harmless provision, funding for three-year-old

students will be limited to the amount received through the Colorado Preschool Program in the

2022–23 school year. § 26.5-4-208, C.R.S. According to information provided by CDE, numerous

small rural districts will never receive funding for three-year-old students based on this

requirement. CDEC has repeatedly stated its intent to provide funding for these small rural districts

but has yet to provide any specifics or guarantees in this regard, which has caused districts to turn

away three-year-old students.

76. The three-year-old hold harmless provision causes serious difficulties for those

school districts because the IDEA requires school districts to serve students with disabilities

beginning at age three. Moreover, to serve those three-year-old students with disabilities in the

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LRE requires school districts to accept three-year-old students without disabilities. This arbitrarily

puts these small rural school districts in the position to run a three-year-old preschool classroom

with no funding.

77. WPS received an initial payment of approximately $200,000,000, which does not

approach the total necessary, and WPS does not know how that sum was reached or what additional

funds can be expected. HSD has not received any payments from CDEC as of August 15, 2023.

78. After school districts had made staffing decisions and adopted CDEC’s promises

to parents and students about the number of hours of instruction available and the funding available

through the Act, CDEC changed course and announced that only low-income students who also

have a second qualifying factor will be funded for 30 hours.

79. This eleventh-hour reversal leaves school districts with three choices. First: shorten

a student’s day to ensure services are commensurate with funding levels. This is obviously

problematic because it breaks promises to families expecting 30 hours per week and may require

staff reductions. It is likely that many of those families need preschool and care for their child for

30 hours. What is more, school districts bear the brunt of community frustration because it appears

to the community that the school district is the one choosing not to serve the student. The second

option is to charge the parents for the additional hours per week. Again, the problems are obvious.

Parents have made decisions based on previous representations. Under these circumstances,

parents will now owe money they may not be able to afford. This will be particularly true for low-

income families who do not have a second qualifying factor. Finally, school districts may find

other means of delivering the full instructional hours promised to kids. This will mean taking funds

23
from other necessary programs, including reducing the amount of money being spent to serve

students with disabilities pursuant to the IDEA.

80. Each of these options impacts students and families with qualifying factors more

than others, and those are the families most in need of the resources promised by this program. In

order to maintain commitments to their families and students and to ensure the most equitable

outcomes possible, most school districts want to find a way to honor prior commitments.

81. Moreover, CDEC is reappropriating SPED PPR earmarked in previous years for

special education, to now be used for general education purposes. CDEC has provided no

information about how such funds are allocated and no justification for using special education

dollars for general education purposes, including those dollars going to private providers. CDE

and CDEC also have failed to pledge—unequivocally and with supporting documentation—that

public school preschool funding for special education students will not decrease from 2022–23

levels. CDE and CDEC also have failed to provide any assurances or pathways through which

AUs will recover the costs of providing special education services to students with disabilities

enrolled in private providers’ programs. Since school districts are legally restricted in their ability

to raise additional revenue, the loss of state special education funding cannot be readily backfilled

with local funds.

F. The Plaintiffs in this case have suffered harm as a result of the Defendants’ failures
to perform their duties required by law.

i. Westminster Public Schools

82. WPS serves a highly diverse student population. A majority of its families are

considered low income, and English is not the first language for a high percentage of its students.

24
Both conditions are qualifying factors under the Act. In addition, WPS is a racially diverse school

district, with a majority-minority student population.

83. For all the reasons discussed above, WPS is prevented from helping its families

who are just trying to get their kids in school.

84. Rather than register through BridgeCare, most WPS families come to WPS directly

for help with registering their kids for school. BridgeCare does not allow WPS to complete

registration for its own students, and WPS does not have the necessary access to BridgeCare to

help their families all the way through the enrollment process. In order to help families navigate

BridgeCare and enroll in a WPS school, WPS needs to able to see what, if anything, families have

done in BridgeCare before coming in for help. WPS can only try to obtain that information by

contacting its LCO. In several instances, WPS families have informed WPS staff that they chose

a WPS school in BridgeCare, but CDEC did not match them to WPS.

85. To help families enroll in WPS schools, WPS has tried two routes. First, it has

referred parents to the UPK help desk, per CDEC’s direction. Families have reported that they wait

on hold for hours trying to get help from the UPK help desk. To avoid that barrier, the second path

is for WPS personnel to work directly with families. WPS must gather necessary information from

the parents and take that information directly to the LCO. With the help of the school district and

the LCO, families can input (or in many cases re-input) information into BridgeCare and mark a

WPS school as their first choice. This, however, does not end the process and certainly does not

ensure successful enrollment in a WPS school. Before enrollment is final, the parents must wait

until the end of the next round to see if BridgeCare’s algorithm matches the student with WPS.

This can take weeks to complete. Moreover, because WPS is unable to access necessary

25
information in BridgeCare, WPS may never see the student appear as a match if BridgeCare’s

algorithm matches the student with another preschool.

86. In addition to the foregoing, to date, WPS has several students matched to a WPS

program but is unable to accept those students because they have to keep seats available for

students with IEPs.

87. For example, at Gregory Hill Early Learning Center, a WPS school, WPS is aware

of 16 students with IEPs who should have applied to enroll at Gregory Hill, or who have informed

WPS that they have applied to enroll at Gregory Hill. None of those 16 students have appeared in

BridgeCare. WPS is certain that these 16 students are waiting for admission because Gregory Hill

houses WPS’s child find services. 3 WPS knows these students have IEPs because the school

district has evaluated those students and drafted IEPs for those students. Moreover, WPS has

reached out to those families, and WPS has been informed that the families plan to enroll.

88. In addition, WPS knows from historical enrollment numbers that it can reasonably

expect more students with IEPs to enroll. As a result of these uncertainties, WPS must reject

students without IEPs to ensure it can meet its obligations under IDEA.

89. All of this creates unnecessary uncertainty for parents and students. The first day

of school in WPS was Tuesday, August 15, 2023. Upon information and belief, parents with kids

still waiting for a match are reasonably nervous and may seek other options for schooling if WPS

is unable to accept their child at the start of the school year. Parents are having to reject their top

3
“Child find” is a term of art in the IDEA that refers to a LEA’s obligation to identify, locate, and evaluate
students who may qualify for special education. WPS’s child find department works with families to
evaluate students before they turn three, or evaluate preschool students who, after attending school, the
school district suspects may need special education.
26
choices in exchange for the certainty of being enrolled. When parents accept an alternative it often

means a longer drive to school or sending their kids to different schools than siblings, causing

obvious hardship. Moreover, when parents reject a match, they are no longer in the system. In

years past when WPS was able to manage its own preschool enrollment, WPS could assist families

even when schools were full. WPS was able to offer a spot in a school with space but keep students

on a wait list at the preferred location and give parents the option to move when a spot opened.

This is impossible under CDEC’s regime.

90. The circumstances described herein are also leading to under-enrollment for WPS.

As the school district rejects students to ensure space for known students with IEPs, there is no

guarantee that those empty spots will be filled. This harms WPS because CDEC has reneged on a

promise to fund seats that school districts keep available for students with IEPs even if those spots

go unfilled.

91. At this time last school year, WPS had 328 four-year-old students enrolled in full-

day programs. The District funded those spots using CPP funds and ECARE funds (CDE programs

and funding mechanism). By stacking those funds, each student was funded to the same level as a

third-grade student in the District, which created opportunities for kids and ensured that schools

were fully staffed. ECARE and CPP no longer exist as a result of UPK and the Act.

92. Currently, WPS has 318 four-year-old students enrolled in BridgeCare. Under the

original criteria published by CDEC and promised to school districts, 254 of the 318 students

would have qualified for funding at 30 hours per week. Each of those students is enrolled in a WPS

school and is expected to arrive for a 30-hour preschool week at the start of the upcoming 2023–

27
24 school year. After CDEC reneged on its promise of funding all students with a qualifying factor

at 30 hours per week, only 80 students of the original 254 qualify for 30 hours per week of funding.

93. WPS plans to honor its commitment to provide 30 hours per week of preschool

instruction to those families and students who originally qualified. With this policy determination,

WPS’s preliminary projections show a budget shortfall of approximately $2,000,000.00. To WPS,

doing anything other than honoring those commitments and dealing with the budget shortfall is

unthinkable. WPS’s constituents have been promised tuition-free preschool for 30 hours per week,

and at least 254 families have demonstrated a need for such services according to CDEC’s own

standards. Accordingly, WPS plans to find a way to fund its preschool programming at the levels

necessary to ensure each child is provided the education to which they are entitled. This likely

means taking funds from other school district programs, impacting the students and employees in

such departments.

ii. Cherry Creek School District

94. CCSD is a large school district located in Arapahoe County, Colorado. CCSD

serves a diverse student population across its jurisdiction including racially diverse communities,

low-income families, and students whose first language is not English.

95. CCSD anticipated many of the problems highlighted in the complaint. First,

anticipating that CDEC would not fund UPK to the extent promised, and to ensure that its special

education program is consistent with its general education program, CCSD elected to provide the

UPK part-time offering of a 10-hour per week preschool program. CDEC, on its own, informed

families with certain risk factors, including, but not limited to, children with IEPs, that they

qualified for additional funding options including fifteen (15), twenty (20), or thirty (30) hours per

28
week, and implied that such programs were available in CCSD. CDEC’s representations created

animosity towards CCSD, and CCSD staff have had to endure several calls and confrontations by

angry and distraught parents who have been promised something that is unavailable. In addition,

based on information obtained by CDEC, many families of children with IEPs erroneously

believed that additional hours of preschool per week were mandated by the student’s IEP, when,

in fact, an IEP is written to ensure that a child with a disability has access to a public program

offered to all children.

96. Though CCSD has been able to mitigate some of the harm by anticipating

problems, CCSD and the families it serves have been harmed by the implementation of UPK.

97. After providing CCSD with assurances that all of its schools would be visible on

BridgeCare for parents regardless of licensing status, CDEC changed course. When CDEC opened

BridgeCare for parents to apply for UPK in January 2023, it informed CCSD that approximately

half of its sites were not licensed and thus could not be visible for families on BridgeCare. As a

result, CCSD families did not have the option to choose CCSD until May 1, 2023.

98. While CCSD and CDEC resolved the licensing issues, families were applying in

BridgeCare for UPK slots with private providers. This ultimately compounded enrollment

difficulties. Concerned that CCSD may not have available preschools, many CCSD families

applied for and accepted matches in private preschools even when they preferred a CCSD school.

Once CCSD became a choice, families wanted out of their old matches to enroll in CCSD.

99. For those families, they had to go through the LCO to unenroll and change their

application. For many families this was incredibly burdensome and some never completed the

process. The LCO, Arapahoe County Early Childhood Council, is understaffed and has had

29
difficulties from the beginning keeping up with the workload that comes with helping families and

providers manage enrollments.

100. CCSD has experienced similar problems as other school districts related to special

education, but on a large scale. For example, CCSD does not have access to student data through

BridgeCare and is unable to see if any of its students with IEPs have enrolled in non-CCSD

schools. On information and belief, CCSD students with IEPs chose non-CCSD schools because

no students could choose a CCSD school as a UPK placement option until May 1, 2023. This

information is critical because CCSD has a legal obligation to notify families of their procedural

safeguards under IDEA and ensure that those families are offered special education for their

children in a CCSD program. CDEC was supposed to provide such information to school districts

on July 28, 2023. To date, CCSD has not received it. CDEC’s lack of transparency wholly prevents

CCSD from meeting its legal obligations under IDEA.

101. In addition to the foregoing, CCSD has experienced the same difficulties with

inconsistent and inaccurate information from CDEC through BridgeCare about enrollment,

including how confusing the system is for families.

102. For example, CCSD has a large number of students matched to its preschool

program, including a large number of students who are not CCSD residents. CCSD has rejected

those students to keep seats for resident students, and for students with IEPs. However, many

families believe that once they are matched, they are enrolled. CCSD knows this to be true because

of conversations with constituents. CCSD expects to have to turn away several families on the first

day of school at each preschool site who think they are enrolled because of BridgeCare. Moreover,

because CCSD, like other school districts, is not provided complete information about the students

30
who have been matched to their programs, including contact information, it is unable to contact

matched families who will not be enrolled.

103. CCSD also worries that many families have not applied for preschool through

BridgeCare because of language barriers. Applications in BridgeCare are only available in English,

Spanish, and Arabic, though to access the system in Spanish and Arabic requires some technical

savvy. There are over 150 languages spoken in Arapahoe County, meaning many families may not

know or have the technical and language skills to access the BridgeCare system.

iii. Platte Valley School District

104. PVSD is a small, rural school district in Weld County, Colorado. PVSD has one

preschool program. The difficulties experienced by PVSD are consistent with those across the

state, and PVSD and its students and families are harmed by CDEC’s miscommunications and the

lack of access and autonomy in BridgeCare.

105. PVSD has received incorrect information in BridgeCare for many months, and

those problems have gone uncorrected and are creating current harm and likely to cause far more

harm when school starts.

106. For example, CDEC has rejected students for placement in PVSD’s program where

the school district knows it has available space. Students have been declined for spots in PVSD’s

preschool when parents have expressly told PVSD personnel that PVSD is their first choice.

Moreover, in the last week, PVSD administrators accessed the BridgeCare system and noticed that

every half-day slot in their system had been removed. No explanation has been provided.

107. PVSD has capacity for approximately 110 students in its preschool program. At

this time there are approximately 80 students enrolled. By CDEC’s current standards, PVSD

31
believes that approximately 50 percent of its students qualify for 30 hours per week. However,

PVSD does not have access to BridgeCare to know which students qualify for 30 hours per week,

creating an impossible situation to manage schedules and enrollment. Upon information and belief,

CDEC is informing parents about whether they qualify for 30 hours per week of funding on a

monthly basis, but that information is not being shared with school districts.

108. Approximately 50 percent of students enrolled at a PVSD preschool started the

application process with PVSD rather than BridgeCare. Families arrived at the District office and

did not know they needed to enroll through BridgeCare. This has required school district personnel

to help the families register in BridgeCare and select PVSD as their top choice. There is then a

waiting period for CDEC to match the student to PVSD. If CDEC matches the student with PVSD,

then PVSD has had to contact the family again to fill out necessary paperwork to attempt to enroll

them.

109. Some students have not been matched with PVSD even though it has been directly

communicated with PVSD that the parents want the student to attend there. This has led to

“mismatched” lists. PVSD knows there are more students enrolled or trying to enroll than shows

up on their rosters in BridgeCare. They then have to contact their LCO, the United Way, to find

out if the student is even in the system. Every time this occurs, PVSD estimates that it has taken

approximately three to four hours of a staff member’s time to ensure one student is enrolled. The

frequency of these events escalated dramatically leading to the first day of school.

110. The first day of school in PVSD was August 15, 2023.

111. As discussed above, to try to help school districts manage these problems, CDEC

promised that by July 28, 2023, it would provide a list of students who had chosen PVSD as their

32
first choice. PVSD did not receive this information. PVSD needs this information so it can check

to ensure that families had the opportunity to register, and if not, it can contact them to see if they

need help. Without this information, there are certainly students who will not be able to enroll on

the first day of school, and students may have to be turned away until they can be registered. This

problem is amplified if any such student is a student with an IEP because PVSD will have failed

to implement a child’s IEP because that student is not enrolled.

112. Indeed, PVSD has several families who were rejected by BridgeCare just days

before school started with no explanation, and where PVSD had space. PVSD decided to enroll all

students who arrived at school seeking preschool services outside of BridgeCare and hope that

CDEC remedies the situation as the school year progresses. This includes funding the students

PVSD enrolls outside of BridgeCare.

113. PVSD is a member of the Centennial BOCES (“CBOCES”). The CBOCES is the

AU that manages and provides the special education services for students in PVSD and its other

member districts.

114. As discussed above, in addition to providing a list of students who chose the school

district as their first choice, CDEC also promised to provide a list of students residing in the AU

that had chosen a non-school district school as their first choice. This is to ensure each AU has the

ability to contact families and notify them of their rights under IDEA. The CBOCES did receive a

list on July 28, 2023. In the first list, CDEC identified 88 students that were identified as having

an IEP who had applied for preschool within the AU. The CBOCES reviewed the list and learned

only 9 students out of the 88 listed actually had IEPs. One of the 9 students identified is a PVSD

student. The District lists the student as “enrolled.” However, CDEC through BridgeCare has

33
declined the student’s enrollment. CDEC told the CBOCES that these families will have to go

back in and accept the placement. While this seems a simple task, many families report having

forgotten their password or are unable to accept the placement within the timelines allotted by the

BridgeCare system.

115. The CBOCES also reports that it is aware of 14 students who should be enrolled in

a PVSD school with an active IEP based on the District’s and BOCES’s information. BridgeCare

shows that only 7 are enrolled.

iv. Brighton School District 27-J

116. 27J Schools is a school district located across multiple municipalities in Adams and

Arapahoe Counties.

117. In past school years, 27J Schools has run a half-day preschool program. When

CDEC began implementing UPK, 27J Schools believed that CDEC would struggle to fund schools

at the levels promised for 30-hour-per-week preschool. This school year, because of uncertainties

related to funding, and to continue effective and predictable administrative practices, 27J Schools

elected to continue its policy of implementing a half-day preschool program.

118. 27J Schools’ preschool programs include a morning session and an afternoon

session at each of its sites.

119. Because BridgeCare’s algorithm prioritizes parent choice, BridgeCare continues to

allow parents to select morning sessions even when a school is at capacity, and afternoon slots

remain open. If not corrected, this would create untenable and undesirable student-to-teacher

ratios. In addition, however, it creates diversity challenges as some sessions are overweighted with

students with disabilities, particularly in the under-enrolled afternoon sessions. Accordingly, 27J

34
Schools has had to work with families to appropriately place each student (with or without

disabilities). First, this has caused conflict with families as those families have had to change their

time of day when they have been promised another spot by CDEC. Moreover, even where 27J

Schools has unilaterally decided to change a child’s placement within its own system, it is a

massive administrative burden to make the necessary change in BridgeCare.

120. Parents are unable to change their student’s application unless the family or the

school district reject the student’s match. Moreover, and as has been discussed at length herein,

27J Schools is unable to change the Student’s placement in BridgeCare or change student

information in BridgeCare, meaning that 27J Schools is unable to help within the system. 27J

Schools is having to direct families to its LCO or CDEC to make the change. However, 27J

Schools’ LCO has several students in its queue across multiple school districts and private

providers for whom information must be changed. In spite of considerable effort, the LCO is slow

to assist schools and families with necessary changes just because of the volume. Moreover, when

going to CDEC, families report holding for hours. As discussed above, CDEC has offered a

“Google Form” where school districts can request that CDEC make changes in the system to a

student’s placement. However, there is no guarantee of any change using this system, and the

school district has no control over the final outcome.

121. In addition to the foregoing, the system puts 27J Schools at odds with its community

and harms families by putting them in the position to either receive special education services or

receive a 30-hour-per-week program. As discussed above, CDEC made promises to families with

qualifying factors that they would be funded for a 30-hour-per-week-program. However, because

27J Schools only has a 12-hour per-week program, families are unable to do both special education

35
and 30 hours per week of preschool. Families are forced into a choice of private school for 30

hours of funding but receive no special education, or forego 17 hours per week of funding but

enjoy the benefit of special education. In most instances, families are not even aware that they are

making this choice.

122. In most cases, when families choose a 30-hour-per-week program in a private

school, 27J Schools is not aware that parents made that choice. When 27J Schools is unaware of

these students, it is unable to inform the parents that special education is unavailable at the location

they chose, nor is the school district able to provide the parents notice of their procedural

safeguards under IDEA. This immediately puts the school district at odds with the IDEA.

123. 27J Schools has experienced the same problems with UPK as other school districts

across Colorado. For example, 27J Schools does not have authority in BridgeCare to place students

with disabilities in a service location consistent with the student’s IEP. The school district is having

to decline students without disabilities to hold spots for students with disabilities to meet CDE’s

LRE requirements. The school district does not have the ability to create waitlists for their own

schools so that resident families have a place in line when families want their children to attend a

27J Schools school but a service location is full. Rather, once a student is matched with another

place, the student disappears in BridgeCare, and the school district is unable to keep a spot in line

for that student or know that student is still interested in a 27J Schools school.

124. In addition, because families are unfamiliar with legal terms of art, the school

district has found that many families are self-reporting in BridgeCare that their children have IEPs

when the child does not. This creates several problems. First, if a student is accepted and enrolled,

that takes a roster spot that is being held for a student with an IEP. If that space is necessary to

36
ensure the District meets its obligations to students with IEPs under IDEA, that student has to be

unenrolled and go back through the matching process in BridgeCare. This creates uncertainty for

the family and creates animosity towards the school district. Historically, 27J Schools has avoided

problems just like this by communicating directly with its families. Every year it held

informational sessions to teach families about the enrollment process, special education, and other

services available in public school. It then helps families enroll on the spot. Families were

empowered to fill out applications and had access to people in the school district who could help

them. That process is now completely undermined.

125. Like other school districts, 27J Schools’ preschool program is underfunded at this

point in time as a result of broken promises by CDEC and under-enrollment when demand exists

for full enrollment. Because of incorrect or incomplete information from CDEC, 27J Schools

continues to have to decline matches for open seats to maintain LRE in their preschools. At this

time, 27J Schools has 699 students fully enrolled in preschool programs. That is down from 805

this time last school year. Currently, 27J Schools has 241 students with IEPs enrolled in

BridgeCare, but 147 pending in its child find process. 27J Schools has capacity for 364 students

on IEPs. If each student qualifies for special education, 27J Schools will be over capacity.

Contemporaneously, it is declining matches for students without IEPs to hold these spots in the

event students qualify.

126. 27J Schools will be underfunded under the current circumstances because it is

holding seats open for students with disabilities that may never be filled. CDEC originally

promised to fund such spots but has reneged on that promise. To date, 27J Schools has received

37
$60,000.00 less in funding for its preschool program than it did this time in the 2022–2023 school

year, and expects this trend to continue based on enrollment status of its students.

127. Finally, the UPK system is placing significant strain on 27J Schools’ child find

processes. Currently, CDEC has only committed to funding the number of three-year-old students

enrolled in each school district equal to the number of three-year-old students funded through CPP

in the 2022–2023 school year. 27J Schools has hit that limit for three-year-old students and will

not be funded for any additional three-year-olds enrolled. In each round of matching, however, 27J

Schools has identified students who currently do not have an IEP but are being evaluated for

special education eligibility through the school district’s child find process. With no additional

spots for three-year-old students, 27J Schools is forced to decline the match or enroll the student

without funding from CDEC. However, if any of those students qualify for an IEP (which many

inevitably will), IDEA requires 27J Schools to enroll that student and provide special education.

To do that, it takes weeks to reopen the student’s application in BridgeCare, and get the student

matched and enrolled in a 27J Schools site. Before UPK, this reclassification and enrollment

process could be done in less than one minute with no interruption to the student’s schooling.

v. Harrison School District 2

128. HSD is a school district in Colorado Springs, Colorado. HSD serves a diverse

population. A majority of its families are considered low income, and a high percentage of its

students speak English as a second language. Both conditions are qualifying factors under the Act.

In addition, HSD is a racially diverse school district.

129. At 5:31 p.m. on Friday July 28, 2023, HSD’s Director of Special Education

received the same email from CDEC that all directors of special education received across

38
Colorado. The email provided instructions on how to become a user in BridgeCare, which could

provide access to “reports of students with IEPs within [the] AU boundar[y] that you may

download at any time to have real time data that will support the IEP placement process.”

130. The director worked to create a log-in so that she could access the reports and

ensure her students were appropriately placed according to their IEPs. The list was blank.

Additionally, the second report, which was supposed to provide information about all HSD

students who listed an HSD school as their first choice only showed three-year-old students, not

four-year-olds. On Monday, July 31, 2023 (the business day after receiving information from

CDEC), HSD emailed CDEC about the problems at 8:25 a.m. HSD did not receive a response on

July 31.

131. HSD followed up at 6:04 a.m. on Tuesday, August 1, 2023. CDEC’s UPK

Specialist responded at 7:43 a.m. and stated that she ran the same reports and saw 13 children, and

all were four-year-olds. HSD tried again, and at 8:23 a.m., informed CDEC that it saw two reports.

The first was a “First Choice Selections” list that had two students on it. The list was different than

the previous day. The second list was a “Children with IEP” report which had zero students on it.

HSD also noted that there had previously been a list of three-year-old students that was now

missing. At 8:28 a.m., CDEC recognized that it had checked the wrong school district. When

CDEC finally checked HSD, stating that it also saw the report labeled “Children with IEP” and

that it did “not see any students in there either. Let me know if you have any other question,[sic]”.

132. HSD followed up immediately stating that it knew the list was inaccurate because

there should be students on the list, and inquired about why the list might be blank. CDEC stated,

“I am guessing that there are not IEP children unplaced, but I will get an answer for you and get

39
back to you.” At 9:06 a.m., CDEC responded that the list was likely blank because “families did

not indicate that the child has an IEP, therefore they won’t be on the report. You can do some

family outreach to ensure families have applied in UPK.”

133. Contemporaneously, HSD asked, “I also thought I should have access to a list that

shows me where all the students with IEPs have been placed so that I can verify the matches as

appropriate.” CDEC responded that it would inquire.

134. At the time, HSD knew the list was incomplete and/or inaccurate because there

were 124 four-year-old students with IEPs enrolled in HSD schools through BridgeCare. HSD

informed CDEC of this at 10:31 a.m. on August 1, 2023. That afternoon, CDEC indicated that

HSD’s concern would be elevated to the appropriate person and that it would update her when she

heard back. CDEC responded on Friday, August, 4, 2023. Rather than providing the requested

information, CDEC uploaded 15 different lists, one for each preschool site. HSD took the time to

work through each list, comparing CDEC’s names to student’s actually enrolled. There were

discrepancies, so HSD created new lists for each site, listing the students who were on CDEC’s

list but were not on HSD’s “enrolled” list. Approximately half of the students on CDEC’s list were

not students with IEPs, and some of the students were not enrolled with HSD.

135. In addition to the foregoing, on August 7, 2023, HSD received information from

CDEC that the director of special education needed to take action in BridgeCare because their

records indicated that the director had never logged in. This, of course, is completely false, as the

director had spent hours over several months troubleshooting in BridgeCare.

136. Such inaccuracies and lack of timely follow-up create problems in that HSD cannot

manage enrollment and students are being inaccurately placed.

40
 137. In addition to the foregoing, HSD has been harmed by the implementation of UPK.

138. A significant percentage of HSD’s constituent families meet CDEC’s criteria for

“low income.” Moreover, a significant majority of HSD’s students meet the criteria for at least one

qualifying factor. For example, there is a large non-English speaking population in HSD.

139. Accordingly, a significant percentage of students who initially applied for UPK

through BridgeCare qualified for 30 hours of funding. Those students were accepted at that level.

Now, CDEC, at the eleventh hour, has informed parents and school districts that most of those

students will not qualify for 30 hours of funding. Because HSD serves such a large population of

low-income families, it does not charge its families for anything. Moreover, it will not tell families

who have already been promised 30 hours per week of free preschool that they no longer may

receive that level of service. Accordingly, HSD is trying to determine how to make up for the

inevitable shortfall created by CDEC. The shortfall is expected to be several million dollars. Such

a sum cannot be estimated at this time because CDEC still has not informed HSD which students

it considers to qualify for 30 hours per week. Moreover, while other school districts have received

an initial payment from CDEC, HSD has not.

140. School started in HSD on August 8, 2023.

141. In addition to the funding shortfall, HSD knows that the community is being

underserved, and it is expected that fewer students will enroll in preschool than previous years.

This is devastating, given that UPK was presented by the state as an expansion of the number of

students served.

142. HSD has experienced the same logistical problems as other school districts. For

example, HSD gets conflicting application information from CDEC through BridgeCare. HSD

41
goes weeks without knowing who has enrolled. Then, finally, information comes in large batches

and must be screened. Usually, the information is incorrect.

143. As discussed above, HSD serves a high population of low-income families, many

of whom have parents working multiple jobs and work long hours. Additionally, HSD serves a

large population of non-English-speaking families, and the applications for UPK are only available

in English, Spanish, and Arabic. However, without technical skills, all non-English applications

are difficult and burdensome to navigate. Moreover, even if a family can complete an application,

they receive communications from CDEC in English. HSD knows that many of these families do

not have the time to work through a messy bureaucracy, and some simply do not have the skills to

jump through CDEC’s series of hoops. Historically, HSD knows that with many families, they get

one chance to enroll a child in preschool. The week before school starts is when most families

come to register. In years past, HSD personnel have been able to work with families one-on-one

and efficiently enroll them in real time. That is no longer possible with BridgeCare.

144. Currently, even when HSD personnel are available to assist families in filling out

UPK applications in BridgeCare, they cannot get immediate answers or guarantee enrollment. In

order to complete enrollment, parents have to be proactive in checking enrollment status, accepting

matches, and following up with HSD to ensure that a placement is made official. Experience says

most families are not completing this process, and some do not have the capability because they

will not be communicated with in a language that they understand. In order to serve these families

equitably, HSD must be able to register families in BridgeCare.

vi. Mapleton Public Schools

42
 145. Mapleton is a small school district located in original Thornton and unincorporated

Adams County, Colorado. Mapleton serves approximately 7,000 students. A significant majority

of Mapleton’s population speaks a language other than English, and a majority of its students are

of Hispanic or Latinx descent.

146. Mapleton has experienced the same difficulties with the implementation of UPK as

other school districts in Colorado, including, but not limited to, misinformation about students,

and inaccurate enrollment information leading to circumstances in which students are not

appropriately enrolled in a preschool program. Understanding its population, Mapleton planned,

based on CDEC’s representations, that a large number of its families would qualify for a 30-hour

per week program under the second qualifying factor of either a dual language learner or having

an IEP. The application for UPK in BridgeCare is worded in a way that confuses families, and

many Mapleton families who should have identified themselves did not. This has created

enrollment and funding problems for the school district. For families, at best, it has impacted the

amount of preschool services their child should receive. At worst, the bureaucracy is turning

families away completely. Mapleton is aware of several families who are choosing to drop out of

the system altogether.

147. Like others, CDEC and CDE’s implementation of UPK has also put Mapleton in

the position to violate IDEA because information about students with disabilities is unavailable or

inaccurate. Moreover, BridgeCare has placed students with IEPs in service locations inconsistent

with their IEP.

148. Mapleton preschoolers start on Monday, August 21, 2023.

FIRST CLAIM FOR RELIEF

VIOLATION OF IDEA AND ECEA (AGAINST ALL DEFENDANTS)

43
 149. Plaintiffs herein incorporate by reference the allegations in the above paragraphs 1

– 148.

150. The district court has the “power to declare rights, status, and other legal relations.”

C.R.C.P. 57(a); C.R.S. § 13-51-105.

151. The intent of declaratory relief “is to settle and to afford relief from uncertainty and

insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed

and administered.” C.R.S. § 13-51-102.

152. Courts may exercise discretion to “declare rights, status, and other legal relations”

where the “declaratory judgment would ‘terminate the uncertainty or controversy.’” C.R.S. § 13-

51-110; Zab, Inc. v. Berenergy Corp., 136 P.3d 252, 255 (Colo. 2006).

153. The Act explicitly recognizes the requirements of the IDEA and providing

educational services to three- and four-year-old children with IEPs. C.R.S. § 26.5-4-202(4). The

General Assembly declared that serving such children in accordance with their IEPs “is an

important element of expanding the availability of UPK.” Id.

154. The Act requires that “every child who is three or four years of age and is a child

with disabilities must be offered preschool services in accordance with the child’s [IEP]” pursuant

to IDEA. C.R.S. § 26.5-4-204(3)(a)(II).

155. The IDEA and the ECEA empower AUs to make placement decisions and select

service locations so that they can ensure children with disabilities attend schools where the

resources exist to implement IEPs. After the IEP team makes a placement determination, an AU

must consider the student’s home school, whether programmatic elements are available at that

44
school to meet a student’s needs, and whether the special education professionals have the capacity

to meet a child’s needs in a particular location.

156. Federal funding must not be used to reduce the level of expenditures for the

education of children with disabilities made by the AU from local funds below the level of those

expenditures for the preceding fiscal year. 34 C.F.R. § 300.203(b).

157. Plaintiffs and other AUs in Colorado are required by the IDEA to provide

qualifying children with disabilities FAPE in the LRE. CDE’s LRE guidelines require students

with disabilities to be served in classes that have a balance of children with and without disabilities.

To meet these obligations, ECEA gives AUs legal authority to choose an appropriate service

location that can meet the placement and LRE requirements of a child’s IEP. Moreover, when

parents of children with IEPs choose a non-school district placement, AUs have the responsibility

of notifying parents of their procedural safeguards under IDEA to ensure parents are aware of the

potential consequences of seeking educational services in an alternative location.

158. AUs must prioritize a parent’s choice for students with disabilities receiving special

education under ECEA regulations. Parents may prefer a school (public or private) that AUs

believe cannot offer FAPE. An IEP team’s placement decision cannot be overridden absent the

due process procedures outlined in IDEA. Such procedures ensure parents are adequately informed

of their rights before making such a consequential decision.

159. CDEC’s “matching” procedures through the electronic BridgeCare system

effectively remove AUs from the enrollment process by matching UPK applicants with schools

based on parent choice and CDEC’s perception of space availability in a given location. Upon

information and belief, CDEC’s matching system gives parents the wrong impressions that they

45
have control over selecting the service location and that all preschool options can meet their

children’s needs. Thus, students with disabilities are being matched to providers that cannot

implement their IEPs, and parents are not adequately notified of their procedural rights under

IDEA when they make their choices. Additionally, when applying through BridgeCare, families

do not know how to indicate that their child might need special education, and even if they do,

AUs are not aware of such students until they are placed on a roster. This leads to lag time in

evaluating a student for special education eligibility and developing an IEP. Thus, even where a

student enrolls on their third birthday, that student will not have special education services until

an evaluation can be completed.

160. CDEC requires AUs to use the BridgeCare system but has denied AUs control in

that system over placement decisions and selection of service locations. Although CDEC has

indicated that it will honor AUs’ location determinations, it has retained the power to override

them and requires AUs to submit changes for approval through a Google Form. This process

creates unnecessary administrative burdens where efficiency should be prioritized to prevent delay

in providing educational services to student with disabilities, and increases the risk of

administrative error in data entry with so many parties involved.

161. For months, AUs and the Consortium, through CASE, have repeatedly requested

from CDE and CDEC a list of students whose parents have requested a district provider as their

first choice and a list of students with disabilities who have chosen a non-district school as their

first choice. Lists were only recently provided on July 28, 2023, and upon information and belief,

the information is incomplete and/or inaccurate.

46
 162. CDEC’s matching system, with its lack of information sharing and control, has

prevented AUs from properly planning for the 2023–24 school year to meet their obligations under

the IDEA and the ECEA. Furthermore, AUs have had to decline students in order to hold spots

open to ensure sufficient space is available to comply with CDE’s LRE guidelines. Some of those

students may qualify for special education services after evaluation, but the BridgeCare system

does not allow AUs to reactivate them, and AUs still lack information sufficient to identify such

students, let alone adequately serve them.

163. Though not parties to the MOU, Plaintiffs WPS, PVSD, HSD, 27J Schools,

Mapleton, and CCSD are third-party beneficiaries with a right to enforce its terms. E.B. Roberts

Constr. Co. v. Concrete Contractors, Inc., 704 P.2d 859, 865 (Colo. 1985). The MOU defines the

roles and responsibilities of AUs, and recognizes CDE’s authority to oversee the implementation

of provisions of special education pursuant to the IDEA. The MOU also requires CDEC to

cooperate with CDE and AUs “as necessary to ensure proper implementation of any special

education programs to children . . . in compliance with state and federal law.”

164. In spite of numerous overtures, CDEC has not given AUs the authority to make the

necessary changes to a child’s school in BridgeCare to ensure that special education programs are

implemented according to the IDEA. Moreover, CDE has not exercised its authority pursuant to

the MOU to require CDEC to give AUs the necessary authority to implement such programs.

165. CDEC’s refusal or inability to provide school districts with accurate information

about which children have chosen a school district placement prevents school districts from

fulfilling their legal obligations to maintain LRE standards set by CDE, which is in direct conflict

with the purposes and requirements of the Act.

47
 166. CDEC’s refusal or inability to provide school districts with accurate information

about which students with IEPs have chosen a non-school district school prevents school districts

and AUs from notifying families of their procedural safeguards under the IDEA, and is in direct

conflict with the purposes and requirements of the Act.

167. Upon information and belief, CDEC and CDE have failed to appropriately and fully

consider the responsibilities of the state and AUs to meet the special education funding

maintenance of effort requirements specified in the IDEA when setting provider funding formulas,

resulting in a supplant situation that limits funds available for AUs to serve special education

students and enables the federal government to seek an equivalent return of federal funding.

SECOND CLAIM FOR RELIEF

MANDAMUS TO COMPEL CDE AND CDEC TO ACT IN CONFORMITY
WITH IDEA AND ECEA (AGAINST ALL DEFENDANTS)

168. Plaintiffs herein incorporate by reference the allegations in the above paragraphs 1

– 167.

169. Plaintiffs may seek a writ of mandamus to compel a governmental body, its board,

or officers “to perform an act which the law specially enjoins as a duty resulting from an office,

trust, or station.” C.R.C.P. 106(a)(2).

170. The Act requires that “every child who is three or four years of age and is a child

with [a disability] must be offered preschool services in accordance the child’s [IEP]” pursuant to

the IDEA and the ECEA. C.R.S. § 26.5-4-204(3)(a)(II).

171. The Act requires that CDE and CDEC enter into a MOU “to ensure all children

with disabilities are served equitably in [UPK]” and that children with disabilities receive access

to classrooms consistent with their IEPs, “and ensure that preschool providers operate in

48
accordance with federal and state law concerning education for preschool-age children with

disabilities.” C.R.S. § 26.5-4-206(1).

172. Pursuant to the Act, CDE and CDEC entered into a MOU on February 1, 2023. The

MOU states that CDE is the SEA pursuant to the IDEA and has responsibility to ensure compliance

with the IDEA and the ECEA. The MOU requires CDE to enforce all special education rules and

ensure that AUs comply with the IDEA and the ECEA. The MOU requires CDEC to “cooperate

with the CDE and AUs as necessary to ensure proper implementation of any special education

programs to children enrolled in the [UPK] in compliance with federal law and relevant

regulations.” The MOU also states that CDE shall monitor special education and related services

delivered by AUs to children enrolled in UPK and ensure AUs comply with all special education

laws, rules, and regulations.

173. Here, CDEC has established rules and procedures that put Plaintiffs directly at odds

with the IDEA and the ECEA, and CDE has not exercised its authority as the SEA and has not

exercised its authority pursuant to the MOU to remedy these problems, and ensure, under the Act,

that students are offered preschool services in accordance with their IEP, or that AUs are in

position to comply with the IDEA and the ECEA.

174. CDEC’s matching procedures through BridgeCare usurp the “placement” authority

of a child’s IEP team. Moreover, once a child’s IEP team places a student in a particular program

or LRE, it is the AU’s legal responsibility and authority to identify a service location that can

properly implement the placement determination in a child’s IEP.

175. Without the authority to determine an appropriate service location, AUs are at risk

of violating the IDEA and the ECEA by failing to appropriately implement a child’s IEP where

49
CDEC “matches” a child with a school that is inconsistent with the IEP. Neither CDEC nor LCOs

have the authority to review a child’s IEP, and they have no legal authority to determine a child’s

service location under the IDEA or the ECEA. Moreover, where children with IEPs are “matched”

and enroll in a private school where special education is not available, children will not receive

services pursuant to their IEPs. This creates potential liability for AUs because AUs are required

to inform parents of their procedural safeguards under IDEA. Where AUs do not know which of

their students are “matched” where, they are unable to notify families of children with disabilities

about their procedural safeguards.

176. A writ of mandamus “may be used to compel performance by public official of a

plain legal duty devolving upon them by virtue of their office or which the law enjoins as a duty

resulting from the office.” Bd. of Cnty. Com’rs of Cnty. of Archuleta v. Cnty. Road Users Assoc.,

11 P.3d 432, 437 (Colo. 2000). Mandamus is appropriate when: (1) the plaintiff must have a clear

right to the relief sought; (2) the defendant must have a clear duty to perform the act requested;

and (3) there must be no other available remedy. Id. “Mandamus is an appropriate remedy when

an agency ignores or violates statutory restrictions on its authority.” McIntosh v. Bd. of Educ. of

Sch. Dist. No. 1, City & Cty. of Denver, 999 P.2d 224, 226 (Colo. App. 2000).

177. Plaintiffs have a legal obligation to provide FAPE to students with disabilities, and

they are given duties under IDEA and ECEA to ensure that they provide such services to children

with IEPs. That includes making determinations about a service location a student should attend

to implement the child’s IEP, and having the ability to notify families of choices they make when

they choose a non-public option. CDE and CDEC have clear duties under the Act to ensure that

children with disabilities receive an education pursuant to the IDEA and the ECEA.

50
 178. Upon information and belief, CDEC has failed to appropriately and fully consider

the responsibilities of the state and AUs to meet the special education funding maintenance of

effort requirements specified in the IDEA when setting provider funding formulas, resulting in a

supplant situation that limits funds available for AUs to serve special education students and

enables the federal government to seek an equivalent return of federal funding.

179. Plaintiffs have sought to remedy these problems for months, and have not been

given the information or control necessary to carry out their obligations under the IDEA and the

ECEA because CDEC and CDE have failed in their duties under the Act, the IDEA and the ECEA.

THIRD CLAIM FOR RELIEF

UNCONSTITUTIONAL DIVESTMENT AND DELEGATION
(AGAINST DEFENDANTS POLIS, SBE, CDE, CORDOVA, CDEC, AND ROY)

180. Plaintiffs herein incorporate by reference the allegations in the above paragraphs 1

– 179.

181. The Colorado Constitution strikes a unique balance between state and local

concerns over public education. “The general supervision of the public schools of the state shall

be vested in a [state] board of education,” Colo. Const. Art. IX, Sec. 1, while local school districts

have “control of instruction” in their schools, Id., Sec. 15.

182. There is no place in the constitutional separation of education powers for CDEC to

exercise general supervision of or control over public preschool instruction, including eligibility

for enrollment and placement decisions, answerable solely to the Governor. While the General

Assembly must consider how to implement the balance between the SBE and local school districts

in the first instance, Bd. of Educ. of Sch. Dist. No. 1 in City & Cnty. of Denver v. Booth, 984 P.2d

639, 650 (Colo. 1999), CDEC may not act as if it has been delegated authority to determine the

51
specific balance between the SBE’s and local school districts’ concerns over public preschool

education, and it may not act in a manner that divests the SBE’s and local school districts’

educational authorities, outside the framework for public education established in the Colorado

Constitution.

183. The fact that CDE had to enter into a MOU with CDEC—along with its terms—

conclusively demonstrates that the SBE has no legal supervision of the state’s public preschools.

School districts, similarly, have been denied meaningful local control over the enrollment, staffing,

and funding for their preschool programs.

184. Accordingly, the implementation of the Act is unconstitutional.

FOURTH CLAIM FOR RELIEF

BREACH OF MOU (AGAINST DEFENDANTS POLIS, SBE, CDE, CORDOVA,
CDEC, AND ROY)

185. Plaintiffs herein incorporate by reference the allegations in the above paragraphs 1

– 184.

186. School districts and BOCES, in their capacity as LEAs and AUs, are third-party

beneficiaries of the MOU with a right to enforce its terms. E.B. Roberts Constr. Co., 704 P.2d at

865.

187. CDEC and CDE have failed to fully collaborate to ensure that preschool services

to children with disabilities comply with the IDEA and the ECEA. CDE has failed to coordinate

with AUs to establish relevant procedures to ensure that students with IEPs in the UPK system

receive the special education and related services to which they are entitled. CDE has failed to

coordinate with AUs and establish relevant procedures to ensure the SEA and AUs are able to

meet their child find obligations under IDEA. In addition, CDEC has failed to cooperate with CDE

52
and AUs as necessary to ensure proper implementation of any special education programs to

children enrolled in UPK in compliance with state and federal law and relevant regulations.

188. Plaintiffs have been and will continue to be damaged by CDEC and/or CDE’s

breach of the MOU.

FIFTH CLAIM FOR RELIEF

VIOLATION OF LOCAL CONTROL (AGAINST ALL DEFENDANTS)

189. Plaintiffs herein incorporate by reference the allegations in the above paragraphs 1

– 188.

190. Control of instruction, as guaranteed by Article IX, Section 15, of the Colorado

Constitution, includes the ability to make placement decisions and select service locations for all

students, including those with disabilities. It also includes the application of general education

policy to the guidance and management of instruction in preschool programs. It is well established

that “school districts must retain control over any instruction paid for with locally-raised funds.”

Owens v. Colo. Congress of Parents, Teachers & Students, 92 P.3d 933, 935, 939 (Colo. 2004).

191. CDEC’s implementation of the Act, including the BridgeCare matching system,

with its lack of information sharing, access, and control, has denied school districts the ability to

effectively serve all interested and qualified students and families within their boundaries,

including decisions regarding enrollment, placement, staffing, and funding.

192. Upon information and belief, CDE’s and CDEC’s administration of UPK system

funding, including through late distribution of hold harmless funding and the application of MOE

requirements, either is resulting or will result in the transfer and/or reappropriation of local funds

to programming over which school districts have no meaningful control.

53
 193. Accordingly, the implementation of the Act is unconstitutional in violation of the

Local Control Clause.

SIXTH CLAIM FOR RELIEF

VIOLATION OF EQUAL PROTECTION
(AGAINST ALL DEFENDANTS)

194. Plaintiffs herein incorporate by reference the allegations in the above paragraphs 1

– 193.

195. Low income, minority, and non-English speaking families need free preschool the

most. Yet, as implemented, the UPK system imposes substantial barriers to access without

reasonable, substantial, or compelling justification. Just to apply and enroll effectively requires

families to have English proficiency, reliable internet and computing access, technological

training, and free time.

196. Such families typically have not enrolled early, instead seeking enrollment close to

or on the first day of school. In prior years, school districts were able to work with late-enrolling

families in real time and help them find a place for their child. For students with disabilities, this

process was streamlined by IEP meetings followed by prompt location determinations. Families

had immediate certainty that their children would be served in a location equipped to meet their

needs.

197. For this school year, when families appear on the first day, school districts are

required to direct families interested in preschool to BridgeCare. Upon information and belief, not

all families have followed up with every step of the application and enrollment process, and many

families have reported an ongoing inability to navigate CDEC’s requirements. Even if these

families choose to apply through BridgeCare, there surely will be a delay in their educational

54
services because to date, CDEC has taken weeks or even months to place a child through

BridgeCare. Not only is CDEC’s process slower, it causes anxiety because an answer is not

immediate, and there is no way to project how long a family may have to wait to get an accurate

answer about where their child can go to school. Upon information and belief, affected families

also are missing out on dwindling preschool seats, and those who wait until the first day of school

to seek enrollment face the prospect of having their children excluded from preschool. At best,

their access to preschool services are delayed.

198. State law imposes unfunded mandates on school districts and AUs, while also

severely restricting revenue. A perennially underfunded public school finance system has left

school districts and AUs grossly lacking in resources. School districts face the Hobson’s choice of

either back-filling underfunded preschool services with locally raised funds at the expense of other

students, including special education students, and competing budgetary needs. The financial

impacts of how the state plans to fund UPK in 2023–24 and beyond force resource allocation

decisions that deny equitable access for all students, but particularly those who face economic

challenges, belong to historically-disadvantaged groups including students with disabilities, and/or

bring language barriers with them to school.

199. Plaintiffs, and the disparately impacted families they serve, have been and will

continue to be damaged by the Act’s implementation in violation of equal protection of the laws.

SEVENTH CLAIM FOR RELIEF

GRANT OF SPECIAL PRIVILEGES, FRANCHISES, OR IMMUNITIES
(AGAINST ALL DEFENDANTS)

200. Plaintiffs herein incorporate by reference the allegations in the above paragraphs. 1

– 199.

55
 201. Article II, section 11, of the Colorado Constitution provides in part, that “[n]o . . .

law . . . making any irrevocable grant of special privileges, franchises or immunities, shall be

passed by the general assembly.”

202. The UPK system, as implemented by CDEC and/or CDE, grants private preschool

providers special privileges, franchises, or immunities, in comparison with AUs. Only AUs are

obligated to provide special education services, and only AUs have child find obligations under

the IDEA and the ECEA. Moreover, there are circumstances under which AUs must provide some

related services or instruction to students with disabilities who attend private schools by choice.

AUs are still under the same obligations to identify, evaluate, and under some circumstances serve

students with disabilities in private schools. In addition, AUs have had to decline students in order

to hold spots open to ensure sufficient space is available to comply with CDE’s LRE guidelines.

203. Non-public preschool providers do not have the same obligations under the IDEA

and the ECEA, and the Act makes this “special privilege” irrevocable, stating that “pursuant to

IDEA and ECEA, every child who is three or four years of age and is a child with disabilities must

be offered preschool services.” The IDEA expressly requires LEAs (i.e. school districts and

BOCES) to locate, identify, and evaluate students for special education eligibility, and then offer

FAPE through an IEP to those students who qualify. CDE and CDEC provide non-public preschool

providers the same resources with fewer legal obligations, resulting in an unconstitutional special

privilege.

204. Plaintiffs have been and will continue to be damaged by the Act’s unconstitutional

implementation.

EIGHTH CLAIM FOR RELIEF

PROMISSORY ESTOPPEL (AGAINST DEFENDANTS, POLIS, DCEC, AND ROY)

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 205. Plaintiffs herein incorporate by reference the allegations in the above paragraphs

1 – 204.

206. “Promissory estoppel is a quasi-contractual cause of action that, under certain

circumstances, provides a remedy for a party who relied on a promise made by another party, even

though the promise was not contained in an enforceable contract.” Pinnacol Assurance v. Hoff,

375 P.3d 1214, 1220–21 (Colo. 2016) (citing case).

207. CDEC made a promise: to wit, that students with one qualifying factor would be

funded for 30 hours per week of preschool programming. CDEC also promised that school districts

would not receive less funding in the 2023–24 school year for the UPK program than they did in

the previous year under the previous preschool regime.

208. Upon information and belief, CDEC expected that school districts, including

Plaintiffs, would make financial commitments, communicate with families, and otherwise plan

their UPK enrollment based on CDEC’s funding promises.

209. Plaintiffs and other school districts reasonably and detrimentally relied on CDEC’s

funding promises by planning preschool programs for 30 hours per week. Plaintiffs and other

school districts also committed to families that they would provide and have full resources for 30-

hour-per-week-programs for students who qualified. Plaintiffs and other school districts have

already incurred financial losses as a result of relying on CDEC’s funding promises.

210. CDEC’s funding promises must be enforced to prevent injustice to school districts,

including Plaintiffs, and families with students who have one qualifying factor.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

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 1. Declare that CDEC’s implementation of the UPK system prevents AUs from

complying with the IDEA, the ECEA, and regulations thereto.

2. Declare that CDE has failed to fulfill its obligations as the SEA regarding

implementation of the UPK system.

3. Declare that CDEC and/or CDE have violated the MOU.

4. Declare that the implementation of the UPK system divests and/or delegates

authority in violation of the Education Clause, the Local Control Clause, and/or the Separation of

Powers in the Colorado Constitution.

5. Declare that the Act, as implemented, unconstitutionally deprives local school

districts control over all preschool instruction within their geographic boundaries.

6. Declare that CDEC’s implementation of the UPK system, CDE’s failure to fulfill

its obligations as the SEA, and/or CDEC and/or CDE’s violation of the MOU deny equal

protection of the laws.

7. Declare that implementation of the UPK system results in unconstitutional grants

of special privileges, franchises, or immunities.

8. Order that CDEC provide school districts immediate access to complete, accurate,

and real-time information for all students in a school district’s jurisdiction, including control over

their preschool rosters.

9. Order that CDEC grant AUs immediate access to and control over placements and

service locations for students with disabilities that reside within their boundaries in the BridgeCare

system.

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 10. Order that CDEC return the SPED PPR funds to CDE immediately for distribution

to school districts for the 2023–24 school year.

11. Order that CDEC fund full-day preschool for all 4-year-old students with one

qualifying factor for the 2023–24 school year.

12. Order that CDEC determine an equitable funding mechanism for 3-year-old

students.

13. Order that CDE oversee CDEC’s implementation of the UPK system to the full

degree necessary to ensure, as the SEA, that AUs have the powers given by the IDEA and the

ECEA to fulfill obligations of providing FAPE to students with IEPs.

14. Order that CDEC cooperate fully with CDE and all AUs as necessary to ensure

proper implementation of any special education programs to children enrolled in UPK in

compliance with state and federal law and relevant regulations.

15. Order that CDEC revise provider funding formulas to appropriately and fully

consider the responsibilities of the state and administrative units to meet the special education

funding maintenance of effort requirements specified in the IDEA.

16. Enjoin CDEC from withholding funding to school districts for students who enroll

directly in a district preschool program.

17. Enjoin CDE and CDEC from using federal special education funding to reduce the

state’s level of expenditures for the education of children with disabilities below the level for the

preceding fiscal year.

18. Order that CDEC fund 30 hours per week of preschool programming for students

with one qualifying factor.

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 19. Order that CDEC reimburse Plaintiffs for their financial losses in relying on

CDEC’s funding promises.

20. Retain continuing jurisdiction over this matter until such time as the Court has

determined that Defendants have in fact fully and properly fulfilled its orders.

21. Award Plaintiffs their costs of this action, including reasonable attorney fees and

costs to the full extent permitted by law.

22. Grant such other and further relief as the Court may deem just and proper.

RESPECTFULLY SUBMITTED this 17th day of August, 2023.

SEMPLE, FARRINGTON, EVERALL & CASE,

P.C.
By: /s Jonathan P. Fero
Jonathan P. Fero, No. 35754
Robert P. Montgomery, No. 49520
1120 Lincoln Street, Suite 1308
Denver, CO 80203
(303)595-0941
jfero@semplelaw.com
rmontgomery@semplelaw.com
ATTORNEYS FOR PLAINTIFFS
Addresses of Plaintiffs:
Colorado Association of School Executives
7350 Broadway
Denver, CO 80221

Consortium of Directors of Special Education

7350 Broadway
Denver, CO 8022

Brighton School District 27-J

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18551 E. 160th Ave
Brighton, CO 80601

Cherry Creek School District No. 5

4700 South Yosemite Street
Greenwood Village, CO 80111

Harrison School District 2

1060 Harrison Road
Colorado Springs, CO 80905

Mapleton Public Schools

7350 Broadway
Denver, CO 80221

Platte Valley Public Schools

501 Clark Street
P.O. Box 485
Kersey, CO 80644

Westminster Public Schools

6933 Raleigh Street
Westminster, CO 80030

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