Colorado argues in court for dismissal of universal preschool lawsuit

The front columns and tower of the Denver City and County building against a cloudy sky.
In a courtroom at the Denver City and County Building, a lawyer for the state argued for the dismissal of universal preschool lawsuit brought by six school districts. (Douglas Sacha / Getty Images)
Inside Colorado's free preschool initiative

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A lawyer for the state of Colorado argued in court Tuesday that a lawsuit filed by six school districts and other education groups over the state’s new universal preschool program should be dismissed because the plaintiffs don’t have legal grounds to sue.

The six districts, which allege in their lawsuit that the state’s new program broke funding promises and harmed preschoolers with disabilities, argued that they do have grounds to sue.

The lawsuit is one of three the state is facing over its new $322 million universal preschool program, which launched in August and offers free preschool to 4-year-olds statewide. A dismissal in the school district case would be a win for Gov. Jared Polis, who’s championed universal preschool since he hit the campaign trail in 2018.

The other two lawsuits were brought against the state last year by faith-based preschools and have not yet been decided. In one of them, a Christian preschool in Chaffee County alleged that a non-discrimination agreement that the state requires preschool providers to accept would prevent it from operating in accordance with its religious beliefs. Two Catholic parishes that operate preschools filed a similar suit.

This year, about 39,000 4-year-olds receive 10 to 30 hours of tuition-free preschool through the universal preschool program — representing 62% of children in that age group in the state. Enrollment is expected to hit 65% next year.

While much of Tuesday morning’s hearing was technical, filled with legal language about how previous court decisions, the state constitution, and federal and state laws apply to the complex case, lawyers for both sides had very different takes on how the new universal preschool is going.

Joe Peters, a lawyer for the state, described the new preschool program as an “extraordinary success” that serves far more Colorado preschoolers than the old state-funded preschool program did.

He said school districts are upset about changes that have come with the new program, including how the state distributes funding and how families apply to and get matched with preschools. He said state officials have already remedied some of the early problems that emerged and are willing to work with school districts to smooth out other issues.

Jonathan Fero, a lawyer for the districts, said, “This isn’t just folks who are upset about change.”

He described the preschool program as failing to serve preschool children and their families, particularly students with disabilities. He also said the program has exposed school districts to legal liability related to special education laws and diverted funding previously earmarked for students with disabilities to private preschools that don’t serve such students.

One of the plaintiff’s key arguments is that the state’s centralized universal preschool application system, which is used to match students with preschools, has created confusion for families and made it harder for school districts to properly place preschoolers with disabilities.

The plaintiffs in the case include the Colorado Association of School Executives, the Consortium of Directors of Special Education, Centennial Board of Cooperative Educational Services, two families, and the six school districts: Brighton-based 27J, Cherry Creek, Harrison, Mapleton, Platte Valley, and Westminster.

The defendants include Gov. Jared Polis, the Colorado Department of Early Childhood, and the Colorado Department of Education.

A ruling on the state’s dismissal motion could come in the next few weeks.

Denver district Judge Jon Jay Olafson, told the courtroom after the briefing, “I do want to move on this. I don’t want to take too long.”

Ann Schimke is a senior reporter at Chalkbeat, covering early childhood issues and early literacy. Contact Ann at

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