Six Colorado school districts and two education organizations are suing Gov. Jared Polis, the Colorado State Board of Education and state education agencies and leaders as districts begin the first classes of preschool under Colorado’s newly expanded preschool program.
The lawsuit, filed in Denver District Court, alleges that a lack of access to enrollment information from the Colorado Department of Early Childhood, continued changes to funding and resulting complications around serving students with disabilities are compromising the plaintiffs’ ability to run preschool programs that meet the needs of families and comply with federal and state law.
Leaders from both the school districts and education organizations gathered for a media briefing Thursday morning, shortly before the lawsuit was filed. The plaintiffs include Brighton School District 27-J, Cherry Creek School District, Harrison School District 2, Mapleton Public Schools, Platte Valley School District and Westminster Public Schools. The Colorado Association of School Executives and the Consortium of Directors of Special Education are also listed as plaintiffs.
In addition to Polis and the Colorado State Board of Education, they are suing the Colorado Department of Education, Educational Commissioner Susana Córdova, the Colorado Department of Early Childhood and its executive director, Lisa Roy.
In a text message, Conor Cahill, a spokesman for Polis, wrote that the state will “vigorously defend this landmark program in court so that even more families can benefit from preschool.”
“While it’s unfortunate to see different groups of adults attempting to co-opt preschool for themselves, perhaps because they want to not allow gay parents to send their kids to preschool, or they want to favor school district programs over community-based early childhood centers, the voters were clear on their support for parent choice and a universal, mixed delivery system that is independently run, that doesn’t discriminate against anyone and offers free preschool to every child no matter who their parents are,” Cahill wrote.
The statement, he noted, is in response to both the lawsuit filed Thursday by CASE, the Consortium of Directors of Special Education and school districts and a separate lawsuit filed Wednesday by the Denver Archdiocese. Under universal preschool, schools must accept applicants no matter their sexual orientation, gender identity and religious affiliation, and the lawsuit from the Denver Archdiocese alleges that the mandate violates the schools’ First Amendment rights, 9News reported.
Cahill didn’t specifically address the claims made in the lawsuit filed Thursday about frequent funding changes or difficulties that districts have had in obtaining enrollment information.
CDEC spokesperson Ian McKenzie said the department cannot comment on a pending lawsuit.
In an emailed statement, CDE spokesperson Dana Smith noted that the department is reviewing the lawsuit after receiving a copy Thursday morning.
“It is important to us to emphasize that CDE fundamentally values serving all students, and we are absolutely committed to ensuring preschool students with disabilities receive all the services they are entitled to under federal law to prepare them for success in school,” Smith wrote.
District leaders who are part of the lawsuit described a dizzying set of challenges that they have long been concerned about, dating back to the first days the state began designing its new preschool program, known as universal preschool.
Now, with the program in full motion, and major questions remaining over enrollment and funding, districts are suing to get full access to CDEC’s enrollment system so they can have more control over how they fill their classrooms.
“The school year has started, and incredibly problematic events of (universal preschool) have been raised over and over again and have not been addressed,” said Bret Miles, executive director of CASE. “We’re truly disappointed to be forced to file this claim as we’ve shared with CDEC, the governor’s office and CDE for months, and they did not address our serious legal issues.”
Part of those legal issues concern the way that kids have landed in preschool classrooms across Colorado. That process has rolled out through a state enrollment system called BridgeCare that district leaders say has hampered their ability to assign kids to preschool programs best suited for them. As a result, districts have had to shuffle kids from programs the state connects them with to programs that can actually accommodate them, angering parents who leaders say are already frustrated by a preschool enrollment system they don’t understand.
In Brighton School District 27-J, early childhood coordinator Bethany Ager puts some of the blame on the algorithm at the center of BridgeCare, which determines where children are placed into preschool.
The enrollment system “can’t take into account 178 school districts, local control, board policies and how we serve our students with disabilities,” Ager said.
The algorithm doesn’t factor in specific details of programs, like where they are located in relation to a student or whether they can accommodate students with special needs, Ager said. The result: The district has to reroute kids and refer them back to CDEC.
“We can’t help them,” Ager said. “So they call us, and we say, ‘I’m sorry. We can’t help you. You have to call another phone number and be on hold for six hours.’”
In Platte Valley School District, Superintendent Jeremy Burmeister said he has seen “a wedge” driven between the school district and community because families can no longer turn directly to the district to register for preschool.
“You’re putting our faith into a system that utilizes an algorithm to help us determine the best placement for our child,” he said, “as opposed to putting faith in our families that they can conduct their research and reach out to the provider of their choice.”
In Westminster Public Schools, Thursday marked the first day of preschool, but some children didn’t wind up in a classroom like they and their parents anticipated, said Mat Aubuchon, executive director of learning services for the district.
Aubuchon told the story of one mother who showed up with a 4-year-old and a 3-year-old and who registered for school through the district, unaware of the state enrollment system. The district was able to get her 4-year-old into class by walking the mother through BridgeCare, but they had to send her 3-year-old back home.
“We had to turn the 3-year-old away because we couldn’t verify that the system had placed that child where they’re supposed to be,” he said. “And we see examples of that over and over again.”
Harrison School District 2 Superintendent Wendy Birhanzel is equally fed up with the state enrollment system, largely because of how inaccessible it is to the variety of students in her Colorado Springs district, where families speak 51 languages. The BridgeCare system displays information in only three languages and communicates information directly to families only in English, Birhanzel said.
“If our parents can figure out how to get on to even register, they can’t figure out what the information is coming back,” she said. “And so when we talk about access, when we talk about equity, it is not built for our diverse state of Colorado and our needs of our families.”
Harrison School District 2 serves many families living in poverty who don’t have alternative options for preschool like affluent families, Birhanzel added.
“My families in my district don’t have options,” she said. “So if I can’t provide it in my district, they’re not getting education. And right now, the state’s created a system where my families are behind the ball and we’re creating an educational gap at 3 years old. That is immoral and wrong. We are taking away from the kids who need it the most for some political avenue. We have to take care of all our kids, and we are failing our most at-risk students.”
Building preschool programs on empty promises
Districts also share stressors over state funding for universal preschool, around which rules have repeatedly changed, including within the last month leading up to the start of the program.
Among the most consequential changes, the state — realizing its $322 million budget was tight — restricted the number of students who qualify for full-day preschool or 30 hours of preschool a week, Chalkbeat Colorado reported the first week of August. Originally, the state planned to provide 30 hours of free preschool to kids affected by any one of a handful of life circumstances: living in low-income households, learning with a disability, learning English, living in foster care or living without a home. Now, only students who live in poverty and face at least one of the other four life circumstances quality for 30 hours each week.
Districts still don’t have clear answers about how much funding they’ll receive for each child enrolled in their classrooms, Miles said.
“The Colorado Department of Early Childhood cannot tell districts which students qualify for which hours, who qualifies for 15 and who qualifies for 30,” he said. “The school year is already underway, and yet we still don’t know how much funding we will receive for each program. This makes budgeting from the districts’ side impossible and puts districts in the position of either having to lay off staff or cut funding and certainly not meet the promises of CDEC that were done publicly.”
Scott Smith, chief financial and operating officer for Cherry Creek School District, said that he and colleagues a year and a half ago started becoming more vocal about concerns that Colorado didn’t have enough funding to pull off what the state was promising through universal preschool.
“We were continually disregarded in that concern,” Smith said. “In fact, I mentioned on a call to some members of the governor’s team that this will be the largest unfunded mandate that public school districts have ever had, and I was nearly laughed out of the room.”
He accused CDEC of exaggerating the size of the new program’s budget.
“Throughout this process, we’ve been shown numbers from the Department of Early Childhood that were factually inaccurate and were used to portray a sense of fiscal solvency that didn’t exist in this program,” Smith said. “And so we have been beating this drum for a year and a half about finance, and unfortunately you’re seeing some of our colleagues around the room who have built programs based on the promises that were made. And that funding isn’t there and wasn’t there.”
Additionally, districts’ worries about implementing universal preschool spill over into whether they will be able to comply with state and federal rules around educating students with disabilities.
School district preschool programs don’t know how many students have selected their program, Miles said, noting that the state has handed over “static lists that represent one moment in time,” many of which are inaccurate.
School districts also don’t know how many kids have applied and how many students that applied have a disability requiring they receive extra support and resources, Miles added.
“Because of this, we are seeing students with disabilities placed in programs that can’t meet their needs,” Miles said, noting that means that schools are thrown into “legal jeopardy” because they can’t meet obligations to serve students with special needs under state and federal laws.
While most plaintiffs in the lawsuit said they have largely been cast aside from conversations about universal preschool, a representative from the Consortium of Directors of Special Education said the group was invited three years ago to offer input.
But the people designing the new preschool program ultimately ignored the recommendations they put forth and the information they shared about state and federal protections in place for children with disabilities, according to Lucinda Hundley, retired executive director of the consortium and a special assistant helping the group address challenges related to universal preschool.
“This is forcing school districts to violate those rights and not provide those rights to children with disabilities and their parents, which is not a position any of us want to be in either morally, probably most especially morally, but also legally,” Hundley said.
Miles links a lot of the serious wrinkles with the new preschool program back to the very beginning of its development, when he was part of a chorus of educators and advocates warning the state that its timeline to introduce universal preschool was simply “too aggressive.” Miles said they asked for a longer window to introduce universal preschool, wary that the state would otherwise lack enough time to address questions around legalities, logistics, facilities and equipment.
“What happened is we got up to the inevitable timeline of (the) first day of school, and we have frustrated families, kids missing from classrooms, districts with potential liability for not serving the kids that need to be served,” he said. “And it can largely be traced back to an aggressive timeline that didn’t need to be so.”