DISTRICT COURT, CITY AND COUNTY OF DENVER

DENVER, COLORADO
1437 Bannock Street, Room 256 DATE FILED: July 3, 2024 3:39 PM
Denver, CO 80202 CASE NUMBER: 2023CV32387

Plaintiff: Colo Assoc Of School Exec et al

 COURT USE ONLY 
v.
Case Number(s): 2023CV32387
Defendant: State Of Colo et al
Courtroom: 409

ORDER RE: MOTION TO DISMISS

PLAIN LANGUAGE RULING

It is clear to this Court that all involved in this dispute have a profound commitment to

quality education in the State of Colorado, even though they may differ in their expressions of that

commitment. Nothing in this order diminishes or critiques that commitment. Instead, this order

is a technical analysis of Colorado’s law on standing. The Colorado Supreme Court recently

clarified and solidified the test a trial court must use to evaluate a party’s standing. Simply put,

the Colorado Supreme Court instructs trial courts to examine whether a plaintiff has demonstrated

an injury in fact to a legally protected interest provided by a statute or the constitution. The Court

uses this framework to evaluate each of the plaintiffs in this case. In its evaluation, the Court now

finds that none of the plaintiffs in this dispute have demonstrated, as a matter of law, that they have

an injury in fact to a legally protected interest provided by a statute or the constitution. Because

the plaintiffs have failed to meet that threshold, this Court dismisses this action in full.
 FACTUAL BACKGROUND

In 2020, Colorado voters approved Proposition EE, which provided for taxes on nicotine

products. In relevant part, the revenue related to Proposition EE is to “enhance the voluntary

Colorado preschool program and make it widely available for free.” Proposition EE (2020). After

the approval of Proposition EE, the Colorado General Assembly passed the Colorado Universal

Preschool Program Act (the “Act”), C.R.S. § 26.5-4-201-211 et seq. The Act provides 10 hours

per week of preschool services for children in the year preceding eligibility for kindergarten,

preschool services for all 3- and 4-year old children with disabilities in accordance with their

individualized education programs (“IEPs”), preschool services for limited number of 3-year-old

children who are in low-income families or meet qualifying factors, preschool services for children

younger than 3 years of age in limited circumstances, and additional hours of preschool services

in the year preceding eligibility for kindergarten for children who are in low-income families or

meet qualifying factors.

The Colorado General Assembly also created the Colorado Department of Early Childhood

(“CDEC”). The General Assembly established the powers, functions, and responsibilities of

CDEC to oversee early childhood education, including the mandates of the Act. As part of the

creation of CDEC, effective July 1, 2023, the General Assembly transferred the authority to operate

a preschool program away from the Colorado Department of Education (“CDE”). The General

Assembly instructed CDEC to develop and implement a single, unified electronic application for

families to use in applying for all publicly funded early childhood programs and services CDEC

administers. The legislature mandated that this electronic application system was to be effective

and operational by July 1, 2023.

 STANDARD OF REVIEW

As a general and guiding principle of law, “[i]n order for a court to have jurisdiction over

a dispute, the plaintiff must have standing to bring the case.” Ainscough v. Owens, 90 P.3d 851,

855 (Colo. 2004). To establish standing, a plaintiff must demonstrate “injury in fact to a legally

protected interest as contemplated by statutory or constitutional provisions.” Wimberly v.

Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977). The first part of this inquiry, which

requires a finding of an injury in fact, limits courts to resolve actual controversies and to prevent

courts from invading the legislative and executive spheres. Hickenlooper v. Freedom from

Religion Found., Inc., 338 P.3d 1002, 1006 (Colo. 2014). The second requirement demands the

resolution of interests protected by statutory or constitutional provisions, which promotes judicial

self-restraint. Maurer v. Young Life, 779 P.2d 1317, 1323-24 (Colo. 1989); Colo. Gen. Assembly

v. Lamm, 700 P.2d 508, 516 (Colo. 1985). This element ensures that courts avoid an intrusion into

the resolution of disputes best left to other branches of government. Romer v. Board of County

Commissioners, 956 P.2d 566, 573 (Colo. 1998). Ultimately, “[c]laims for relief under the

constitution, the common law, a statute, or a rule or regulation satisfy the legally-protected-interest

requirement.” Hickenlooper, 338 P.3d at 1007. Often called the Wimberly test, this test is

Colorado’s current definitive test for standing and the Court will utilize this framework to evaluate

all claims.

ANALYSIS

I. School District Plaintiffs

The Amended Complaint includes seven Colorado school district and/or board of

cooperative educational services (“BOCES”) plaintiffs: Brighton School District 27-1, Centennial

Board of Cooperative Educational Services, Cherry Creek School District No. 5, Harrison School
District 2, Mapleton Public Schools, Platte Valley School District, and Westminster Public Schools

(collectively the “School District Plaintiffs”). The School District Plaintiffs are political

subdivisions.

The test for standing for public subdivisions recently received significant attention from

the Colorado Supreme Court in State Board of Education v. Adams County School District 14, 537

P.3d 1 (Colo. 2023). Commonly called the Adams 14 decision, the Colorado Supreme Court

analyzed the history of Colorado political subdivision jurisprudence and concluded that the

Wimberly test was the definitive test for standing in Colorado – including for political subdivisions.

Adams 14, 537 P.3d at 13 (“We hold that subordinate state agencies, political subdivisions, and

officials raising claims challenging a government entity’s decision are not subject to any

specialized standing test in addition to the Wimberly test; instead, the court should conduct a

Wimberly analysis, and that should be the end of its standing inquiry.”) Based on the unambiguous

ruling from the Colorado Supreme Court, this Court will utilize the mandates of Wimberly and

Adams 14 in its analysis.

A. Statutory Claims

Plaintiffs allege statutory causes of action in Claims One, Two, Nine, and Ten. “A statute

may generally vest an agency—here, the school district—with a legally protected interest in one

of two ways: (1) by directly authorizing the school district to seek judicial review of an agency

action; or (2) by expressly incorporating the protections of the APA, which provide the right to

seek judicial review of agency decisions.” Adams 14, 537 P.3d at 14.

Claims One and Two involve the Individuals with Disabilities Education Act (“IDEA”) and

the Exceptional Children’s Educational Act (“ECEA”), while Claims Nine and Ten involve the

Act. It is apparent on the face of these three statutes that none of them grant the School District
Plaintiffs a right to judicial review of either CDE’s or CDEC’s actions. Importantly, however, is

that both IDEA and ECEA provide express remedies, including administrative remedies. In this

dispute, the School District Plaintiffs do not bring claims pursuant to those statutory express

remedies. Given that there are express statutory remedies provided in IDEA and ECEA, the Court

will not second guess a legislative body as to why those remedies were included and not the

remedies sought by the School District Plaintiffs. That is not the role of this Court. Regarding the

Act, there are no express statutory remedies provided and no language that allows the School

District Plaintiffs to seek judicial review of agency action. Simply put, and using the mandates

of Wimberly and Adams 14, there are no legally protected interests contemplated by these statutes

that authorize the statutory claims by the School District Plaintiffs.

Given the lack of express statutory remedies triggered by the applicable statutes, the Court

may also examine whether there is a private civil remedy that can be reasonably implied. Allstate

Ins. Co. v. Parfrey, 830 P.2d 905, 910 (Colo. 1992). This analysis is triggered when the statute “is

totally silent on the matter of remedy.” Id. Neither IDEA nor ECEA are totally silent on the matter

of remedy, which prohibits this Court’s analysis of an implied remedy. In fact, Plaintiffs concede

that IDEA and ECEA provide remedies for parents against school district. Again, the Court will

not second-guess a legislative body as to their reasoning about what remedies they did and did not

provide for in any statute. Regardless, it is without dispute that the remedies sought by the School

District Plaintiffs are not included in IDEA or ECEA, both of which include other remedies. The

Court finds that Plaintiffs’ arguments are not persuasive, and the Court will not extend Parfrey past

its existing limits with regard to IDEA or ECEA.

Regarding the Act, however, the Court does find that the Act is silent on express remedies

and a Parfrey analysis is appropriate. To test the School District Plaintiffs’ standing, this Court
examines if there is an implied cause of action in the Act. City of Arvada ex rel. Arvada Police

Dep’t v. Denver Health & Hosp. Auth., 403 P.3d 609, 614 (Colo. 2017). The Court analyzes three

factors: (1) “whether the plaintiff is within the class of persons intended to be benefitted by the

legislative enactment”; (2) “whether the legislature intended to create, albeit implicitly, a private

right of action”; and (3) “whether an implied civil remedy would be consistent with the purposes

of the legislative scheme.” Id. (quoting Allstate Ins. Co. v. Parfrey, 830 P.2d 905, 911 (Colo.

1992)).

The first step of this analytical framework requires this Court to determine if the School

District Plaintiffs are within the class of person intended to benefit from the Act. In its review of

the Act the Court finds that the School District Plaintiffs are not within the class of persons

intended to benefit from the Act. The Act is expressly designed to provide universal preschool for

Colorado’s children. C.R.S. § 26.5-4-202. While the Court acknowledges that the School District

Plaintiffs are impacted by the Act and have some involvement in the ultimate implementation of

the Act, the Court does not find that the School District Plaintiffs are intended to benefit from the

Act as required in Parfrey and City of Arvada. In addition, the Court is unpersuaded by the

argument that the School District Plaintiffs receive money to effectuate the Act, which is a benefit.

The Court finds that a political subdivision receiving governmental funding for a state-mandated

and created statutory program is not a benefit.

The School District Plaintiffs are similarly unable to satisfy the second and third City of

Arvada factors. In review of the Act, the Court does not identify any indication that the General

Assembly intended to give Colorado school districts or BOCES any type of remedy, explicitly or

implicitly. The purpose of the Act is to provide at least ten hours of preschool to every eligible

child in Colorado and to effectuate the mechanisms to achieve that goal. Within the Act, the Court
cannot isolate a legally protected interest, even an implied one, sufficient to grant the School

District Plaintiffs standing in this dispute for the alleged claims. Relatedly, the Court is unable to

find support in the Act that an implied civil remedy would be consistent with the purposes of the

Act. While the Court acknowledges that the School District Plaintiffs are deeply committed to the

quality education of Colorado’s children, the Court cannot find that a civil remedy to the School

District Plaintiffs is consistent with the Act’s framework and purposes. As such, the Court finds

that the School District Plaintiffs do not have standing to bring their statutory causes of action in

Claims One, Two, Nine, and Ten against Defendants.

B. Constitutional Claims

School District Plaintiffs allege constitutional claims in Claims Three, Five, Six, and

Seven. The School District Plaintiffs allege that before the implementation of the Act, they already

had well-established preschool enrollment systems. The School District Plaintiffs contend that the

implementation of a uniform and centralized registration system, BridgeCare, which was a

requirement under the Act, usurps local decisions about enrollment, placement, staffing, and

funding. The School District Plaintiffs further allege a violation of the Equal Protection Clause

and that the Act provides private preschool providers with unconstitutional special privileges.

As a threshold matter, political subdivisions do not have any rights under the federal

constitution. Adams 14, 537 P.3d at 15; Williams v. Mayor & City Council of Baltimore, 289 U.S.

36, 40 (1933). Furthermore, the School District Plaintiffs are not “persons” under the equal

protection clause of the United States Constitution. Dist. 50 Metro. Recreation Dist. v. Furbush,

441 P.2d 645, 646 (Colo. 1968); Lujan v. Colo. State Bd. of Educ., 649 P.2d 1005, 1020 (Colo.

1982). As such, the School District Plaintiffs lack standing, as political subdivisions, to bring

constitutional claims. This Court will analyze these claims under the Colorado Constitution.
 In Claim Three, the School District Plaintiffs allege an unconstitutional divestment and

delegation. The Colorado Constitution states that “[t]he general supervision of the public schools

of the state shall be vested in a board of education.” Colo. Const. art. IX, sec. 1. The School

District Plaintiffs allege that this section has been violated by the creation of CDEC. Specifically,

Plaintiffs allege that the Colorado Constitution does not allow for CDEC to supervise or control

public preschool instruction. In Claim Five, the School District Plaintiffs allege that Defendants

have violated the local control provision of the Colorado Constitution, article IX, section 15. This

section provides that school district boards of education “shall have control of instruction in the

public schools of their respective districts.” Pursuant to Adams 14, “[t]his provision must be read

in conjunction with article IX, section 1.” Adams 14, 537 P.3d at 13 (citing Bd. of Educ. of Sch.

Dist. No. 1 in City & Cnty of Denver v. Booth, 984 P.2d 639, 646 (Colo. 1999)). This provision

vests “general supervision of the public schools of the state” in the State Board of Education. Colo.

Const. art. IX, §1(1). Ultimately, a court must balance “the local board’s interest in exercising

control over instruction with the State Board’s interest in asserting its general supervisory

authority.” Booth, 984 P.2d at 646. Claim Six alleges a violation of the equal protection clause.

Plaintiffs generally allege that the system, as implemented pursuant to the Act, imposes barriers to

access and that the allocation of funding is disparate without any reasonable, substantial, or

compelling justification. Finally, Claim Seven alleges that Defendants have violated article II,

section 11 of the Colorado Constitution, which provides that “[n]o . . . law . . . making any

irrevocable grant of special privileges, franchises or immunities, shall be passed by the general

assembly.” Plaintiffs allege that the Act, as implemented by CDEC and/or CDE, grants private

preschool providers special privileges, franchises, or immunities as compared with other

educational providers.
 With regards to Claims Three and Five, School District Plaintiffs invoked the local control

clause in article IX, section 15 of Colorado’s Constitution. This clause provides that local school

boards retain substantial discretion over the “character of instruction” that the district’s students

receive. This gives local school districts some latitude over duties like teacher employment and

the ability to allocate locally raised tax revenues. Booth, 984 P.2d at 648-49. Based on applicable

law described above, the Court must first determine if the challenged actions cause injury in fact

to Plaintiffs’ control of instruction in its schools. While the local control clause may create a cause

of action, the School District Plaintiffs have not pleaded injuries to any interest that is, as a matter

of law, protected by this clause. Based on the arguments presented in briefing and at the hearing,

the Court finds that the State of Colorado’s implementation of universal preschool program does

not invade local control. Ultimately, even with the creation of CDEC and the use of BridgeCare,

school districts are still responsible for the classroom instruction of its students, including those

enrolled in universal preschool. Indeed, regulating admissions and handling universal enrollment

criteria has historically been controlled by the State of Colorado, including by the General

Assembly and the State Board of Education. See C.R.S. §§ 22-33-101-112. It appears clear to this

Court that the School District Plaintiffs have experienced the ordinary nuances and headaches

associated with the transition from one regulatory system to another. These growing pains,

however, are not a legally protected injury in fact and do not impede the School District Plaintiffs’

exercise in control over instruction as protected by the Colorado constitution.

Relatedly, the School District Plaintiffs allege they are injured because they should not be

forced to utilize BridgeCare or abide by the supervision of CDEC. The issues raised by the School

District Plaintiffs involve the type of activities commonly exercised by the state. Indeed, the local-

control clause does not limit Colorado’s ability to use or condition the use of state funds. In this
case, Colorado voters approved Proposition EE, which ultimately relates to the spending of tax

revenue. It is a long-held component of Colorado law that the establishment and financial

maintenance of Colorado’s public schools is a state function. Wilmore v. Annear, 65 P.2d 1433,

1436-37 (Colo. 1937). Because of Colorado’s established law and because of the nature of the

School District Plaintiffs’ claims, there is no injury to the School District Plaintiff’s local control

over the instruction within their schools.

Furthermore, the School District Plaintiffs lack standing to challenge the existence of the

CDEC because no injury to a legally protected interest is alleged. Plaintiffs allege a divestment of

state and local authority. The School District Plaintiffs do not have standing to allege a state

divestment. The School District Plaintiffs never possessed the powers held by the State Board of

Education. Therefore, the School District Plaintiffs cannot successfully allege that a power they

never possessed was taken away from them. They simply have no injury. Furthermore, and even

if the School District Plaintiffs could show a divestment of state powers held by the State Board

of Education, the Colorado Constitution provides that the State Board of Education has “general

supervision” of the public schools of the state. Colo. Const. Art. IX, Sec. 1. There is no

constitutional language that the State Board of Education has exclusive supervision over

Colorado’s public schools. The Court cannot find any prohibition, constitutional or statutory, that

provides that the State Board of Education is the sole and exclusive supervisor of public education.

Plaintiffs generally, including the School District Plaintiffs, have not demonstrated a legal

prohibition to the General Assembly’s creation of CDEC. As such, all Plaintiffs, including the

School District Plaintiffs, have failed to demonstrate an injury related to the General Assembly’s

creation of CDEC and CDEC’s supervision of Colorado preschool. For the above reasons, the
Court finds that the School District Plaintiffs are unable to demonstrate standing sufficient to

satisfy the legal requirements for Claims Three and Five.

Next, the School District Plaintiffs bring Claim Six pursuant the Equal Protection Clause

of the United States Constitution and the corresponding protections found in the Colorado

Constitution’s Due Process Clause. In essence, Plaintiffs allege that the universal preschool

system imposes substantial barriers to access and allocates funding disparately without reasonable,

substantial, or compelling justification.

As a threshold matter, school districts are not “persons” protected by the Fourteenth

Amendment to the United States Constitution or the Colorado Constitution. Adams 14, 537 P.3d

at 15 (“Political subdivisions do not have any rights under the federal constitution”); Dist. 50

Metro. Recreation Dist. v. Furbush, 441 P.2d 645, 646 (Colo. 1968) (“…equal protection clause

was not designed to protect state instrumentalities from state action.”). Because of well-

established and accepted Colorado law, the School District Plaintiffs lack standing to bring this

Equal Protection claim. Colorado law has long cautioned Courts to not “unnecessarily intrude into

matters which are more properly committed to resolution in another branch of government.”

Romer v. Board of Cty. Comm’rs, 956 P.2d 566, 573 (Colo. 1998). The claims made by the School

District Plaintiffs are better resolved within the executive branch. This Court, without the showing

that such intervention is necessary, will allow the executive branch to resolve these issues

internally.

The School District Plaintiffs also contend that the Amended Complaint contains

allegations sufficient to trigger third-party standing for Claim Six. The Court finds that they are

unable to satisfy the requirements of third-party standing. Following the mandates of Adams 14,

“[a]ny party seeking to assert claims on behalf of a third party must first demonstrate that they
themselves have suffered an injury in fact caused by the application of the statute that they seek to

challenge.” Adams 14, 537 P.3d at 15-16 (citing Augustin v. Barnes, 626 P.2d 625, 628 (Colo.

1981). As such, to properly assert third-party standing, the School District Plaintiffs themselves

must have suffered an injury in fact. Because political subdivisions lack rights under the

Constitution, they cannot have suffered an injury in fact based on an alleged Constitutional

violation. Because the School District Plaintiffs themselves have not suffered an injury in fact,

there can be no third-party standing. As such, the School District Plaintiffs lack standing to bring

Claim Six.

Finally, in Claim Seven the School District Plaintiffs allege violations of the “special

privileges” clause in article II, section 11 of the Colorado Constitution. This clause “has generally

been invoked by parties asserting that particular legislation grants entities perpetual and exclusive

authority to receive compensation from public funds for the provision of services or supplies.”

Est. of Stevenson v. Hollywood Bar & Café, Inc., 832 P.2d 718, 722 (Colo. 1992). “No alleged

grant or franchise has been held to violate Article II, section 11, perhaps because to come within

the constitutional prohibition, the ‘irrevocable grant’ must be contained in the ‘law.’”. City & Cnty.

of Denver v. Qwest Corp., 18 P.3d 748, 759 (Colo. 2001).

Plaintiffs argue that private schools are given favoritism because, unlike public schools,

they are not obligated to identify and evaluate students with disabilities. The difference in the

obligations between public and private schools is simply a function of the fact that public schools

are an extension of the state, whereas private schools are not. Public schools will always have

legal obligations from which private schools are exempt. This fact does not require the state to

withhold funding from private schools. The difference in legal obligations between private and

public schools does not create an irrevocable special privilege. Furthermore, this Court cannot
identify any language in the Act that grants an irrevocable special privilege to private schools.

Thus, the School District Plaintiffs have failed to allege an irrevocable grant from which they have

been excluded. Because the School District Plaintiffs fail to make such an allegation, or

demonstrate such an injury, the School District Plaintiffs have not alleged a sufficient injury in

fact. As such, the School District Plaintiffs lack standing to bring Claim Seven.

For the reasons stated above, the School District Plaintiffs do not have standing to bring

any of their constitutional claims in Claims Three, Five, Six, and Seven.

C. Contractual Claims

Plaintiffs also allege claims that purportedly sound in contract law: Claim Four for breach

of contract and Claim Eight for promissory estoppel. Both claims relate to an alleged breached

agreement. The School District Plaintiffs allege that they are third-party beneficiaries of the

relevant agreement.

“A person not a party to an express contract may bring an action on the contract if the

parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a

direct and not merely an incidental benefit of the contract.” Parrish Chiropractic v. Progressive

Cas. Ins. Co., 874 P.2d 1049, 1056 (Colo. 1994). “While the intent to benefit the non-party need

not be expressly recited in the contract, the intent must be apparent from the terms of the

agreement, the surrounding circumstances, or both.” Id.

In this instance, the School District Plaintiffs lack standing because they are neither parties

to the agreement/contractual relationship nor are they third-party beneficiaries of the agreement or

the relationship between the parties. At best, the School District Plaintiffs receive an incidental

benefit from the subject agreements and relationships between the parties. The Court cannot

identify language that makes the third-party beneficiary status apparent. In addition, the Court
cannot identify any surrounding circumstances that indicate such. As such, the Court finds that

the School District Plaintiffs lack standing to bring Claims Four and Eight.

II. Organizational Plaintiffs

The Amended Complaint includes two organizational plaintiffs: Colorado Association of

School Executives and the Consortium of Directors of Special Education (collectively the

“Organizational Plaintiffs”). Based on the Amended Complaint and the briefing on the Motion,

there are three areas in which the Organizational Plaintiffs allege standing: (1) associational

standing based on the members’ interests as public administrators; (2) associational standing based

on members’ interests as taxpayers; and (3) legal entity standing.

The first two areas of claimed standing involve associational standing. This requires that

the Organizational Plaintiffs demonstrate the following: (1) their members individually would

have standing; (2) the associations seek to protect interests germane to their associational purposes;

and (3) neither the claim asserted, nor the relief requested, requires the participation of individual

members of the lawsuit. Colo. Union of Taxpayers Found. v. City of Aspen, 418 P.3d 506, 510

(Colo. 2018).

The Organizational Plaintiffs fail on this first prong. Here, the Organizational Plaintiffs do

not demonstrate that their individual members would have standing as individuals, either as public

administrators or taxpayers. The Organizational Plaintiffs have not demonstrated that, as

educational leaders and administrators, they are now prohibited from doing their job and that this

prohibition provides standing to sue. In addition, while this Court celebrates the work the members

of the organizations have done to ensure Colorado’s children receive a quality education, that

work, in and of itself, does not create standing.

 The individual members similarly do not have standing based on their status as taxpayers.

To obtain taxpayer standing, there must be a clear nexus between the status of the plaintiff as a

taxpayer, and the challenged government action. Hickenlooper v. Freedom from Religion Found.,

Inc. 338 P.3d 1002, 1008 (Colo. 2014). Injuries that are “overly indirect and incidental to the

challenged government action will not convey taxpayer standing.” Id. (citing Barber v. Ritter, 196

P.3d 238). Additionally, “the interest of the taxpayer who challenges the constitutionality of

government action is her ‘economic interest in having h[er] tax dollars spent in a constitutional

manner.’” Reeves-Toney v. School District No. 1 in City & Cty. of Denver, 442 P.3d 81, 86 (Colo.

2019) (quoting Conrad v. City & Cty. of Denver, 656 P.2d 662, 668 (Colo. 1982)).

The Organizational Plaintiffs have not demonstrated a clear nexus between their status as

taxpayers and the actions alleged in the complaint. Furthermore, the Organizational Plaintiffs have

neither pleaded nor demonstrated any organizational purpose that directly connects their

organizational mission taxpaying. Indeed, it appears abundantly clear that the organizational

missions of the Organizational Plaintiffs are directly related to the provision of educational

services and the support of those who provide such services, not taxation and governmental

spending. Furthermore, the Organizational Plaintiffs do not allege that the actual expenditure of

taxpayer funds to provide free preschool to Colorado’s children is unconstitutional. In the absence

of such evidence, the Court find that the Organizational Plaintiffs lack standing pursuant to the

first and second prongs.

As to the third prong of associational standing, which requires an analysis of the

Organizational Plaintiffs’ individual members’ participation, standing remains elusive. The Court

notes that the Organizational Plaintiffs, even as legal entities, are not uninterested in the operation

of universal preschool in Colorado. They clearly have an interest. As legal entities, they may have
even expended their resources to impact the way universal preschool is run in Colorado – including

lobbying and administrative efforts. While all those tasks are admirable, they do not create a

cognizable injury in fact and do not represent a protectable interest. Indeed, many in Colorado

have an interest in the administration of universal preschool. That does not mean every interested

person or legal entity has standing. Indeed, that would create much difficulty about Colorado’s

long-standing prohibition on “general public interest standing.” Anderson v. Suthers, 338 P.3d

384, 388 (Colo. App. 2013). For this Court to hold otherwise would transform the very nature of

Colorado’s courts. This Court is unwilling to do so. While this Court may not be the proper forum

for the Organizational Plaintiffs to challenge Defendants’ actions, there are many other avenues,

including administrative and legislative, for the Organizational Plaintiffs to follow.

For the foregoing reasons, the Organizational Plaintiffs do not have standing to bring any

of their claims.

III. Individual Plaintiffs

Finally, the Amended Complaint contains the following individuals: J.S. and A.S. as

individuals and as parents and natural guardians of P.S. and B.M. as an individual and as parent

and natural guardian of A.M. (collectively the “Individual Plaintiffs”). The Individual Plaintiffs

must meet the same threshold for standing as the above-described plaintiffs.

A. Statutory Claims

The Individual Plaintiffs allege statutory causes of action in Claims One, Two, Nine, and

Ten. As stated above, and in the abundance of caution, “[t]o establish standing under Wimberly, a

plaintiff must show ‘injury in fact to a legally protected interest as contemplated by statutory or

constitutional provisions.’” Adams 14, 537 P.3d at 7 (citing Wimberly, 570 P.2d at 539). As stated

above, both IDEA and ECEA provide express remedies. The Individual Plaintiffs do not make
allegations in the Amended Complaint related to IDEA’s or ECEA’s express remedies. That does

not mean that the Individual Plaintiffs are without a remedy. For example, if the Individual

Plaintiffs assert that their child has been denied a FAPE or placed in an improper setting, there are

express administrative remedies and statutory appeals that the Individual Plaintiffs can utilize.

That is not, however, the situation framed by the Individual Plaintiffs in the Amended Complaint.

Because these statutes provide an express remedy for the Individual Plaintiffs and because the

Individual Plaintiffs do not avail themselves to these express remedies in this dispute, the

Individual Plaintiffs lack standing to bring the pleaded claims pursuant to IDEA and ECEA. As

discussed above, this Court will not imply any additional remedies into these statutes.

As for the Act, there are no express remedies available within the Act. To test the Individual

Plaintiffs’ standing, this Court must examine if there is an implied cause of action in the Act. City

of Arvada, 403 P.3d at 614. The Court will examine three factors: (1) “whether the plaintiff is

within the class of persons intended to be benefitted by the legislative enactment”; (2) “whether

the legislature intended to create, albeit implicitly, a private right of action”; and (3) “whether an

implied civil remedy would be consistent with the purposes of the legislative scheme.” Id. at 614-

615 (quoting Allstate Ins. Co. v. Parfrey, 830 P.2d 905, 911 (Colo. 1992)).

As to the first factor, the Court finds that the Individual Plaintiffs are clearly within the

class of persons intended to benefit from the Act. The Act unambiguously benefits the children

and their families. The Individual Plaintiffs, however, are unable to satisfy the second factor.

There is no question the General Assembly can, and has, drafted statutes that provide for an express

and/or implied civil right of action. In review of the voluminous Act, the Court cannot find any

indication that the General Assembly intended to give either parents or students any statutory

remedy—including remedies as alleged in this dispute. The purpose of the Act is to provide at
least ten hours of preschool to every eligible child in Colorado. The Act’s intent is also the

establishment of mechanisms in which that mandate can be effectuated. The Court cannot find in

the Act a legally protected interest, even an implied one, sufficient to grant the Individual Plaintiffs

standing. As such, the Court finds that the Individual Plaintiffs do not have standing to bring

their statutory causes of action in Claims One, Two, Nine, and Ten.

B. Constitutional Claims

Much like the analysis for the School District Plaintiffs, the Individual Plaintiffs have not

properly pleaded an injury to a protected interest regarding Claims Three and Five. Indeed, the

Individual Plaintiffs are even more removed from this clause than the School District Plaintiffs.

More relevant to the Individual Plaintiffs, however, is an allegation of unconstitutional use of

taxpayer money. This is not alleged by the Individual Plaintiffs. Ultimately, the Court finds that

the Individual Plaintiffs have failed to meet the standard for standing for Claims Three and Five.

Regarding Claim Six, the Individual Plaintiffs arguably have greater standing than the

Organizational and School District Plaintiffs. As individuals, they can seek redress from violations

of the Equal Protection Clause. The subject constitutional clause, however, does require

intentional discrimination. “[P]ersons asserting equal protection deprivations of this type must

establish intentional discriminatory enforcement of regulations against them; the fact that some

other individuals escape prosecution under an ordinance is insufficient to establish intentional

selective enforcement of the ordinance.” Zavala v. City & Cnty. of Denver, 759 P.2d 664, 669

(Colo. 1988).

In review of the Amended Complaint, there are no averments from the Individual Plaintiffs

that indicate Defendants’ intentional discrimination. This defect alone is sufficient to show that

the Individual Defendants have not suffered a qualifying injury in fact. Plaintiffs, generally, also
argue that “an invidious discriminatory purpose may often be inferred from the totality of the

relevant facts, including the fact, if it is true, that the law bears more heavily on one [group] than

another.” Washington v. Davis, 426 U.S. 229, 242 (1976). Given the facts pleaded, the arguments

contained in the briefing, and the arguments of counsel at the hearing on the Motion, the Court, in

reviewing the totality of the circumstances, does not find an invidious discriminatory purpose in

the Act. Furthermore, given a review of the above, the Court also cannot find that the Act bears

more heavily on any of the Plaintiffs than others. The Court finds that the Individual Plaintiffs

lack standing to bring Claim Six.

Finally, regarding Claim Seven, the Individual Plaintiffs, much like the School District

Plaintiffs, have not alleged and demonstrated an irrevocable grant of special privileges from which

they have been excluded. With this defect, the Individual Plaintiffs fail to demonstrate any injury

in fact. Plaintiffs generally argue that private schools are given favoritism, which Plaintiffs argue

is a special privilege, franchise, or immunity, which provides standing. This Court disagrees. As

such, Individual Plaintiffs do not have standing to bring Claim Seven.

C. Contract Claims

For the same reasons as provided above for the School District Plaintiffs, the Individual

Plaintiffs’ claims pursuant to the alleged contract, or contract-related rights, fail. The Individual

Defendants are not third-party beneficiaries of the subject agreement. They are not third-party

beneficiaries of any alleged agreement. While they may be incidentally related to the contractual

or contract-related rights, that is not enough to provide the Individual Plaintiffs standing.

Therefore, the Individual Plaintiffs lack standing to bring Claims Four and Eight.
 CONCLUSION

For the foregoing reasons, and based on the framework provided by Wimberly, all Plaintiffs

lack standing on all claims. Plaintiffs collectively have failed to allege an injury in fact to a legally

protected interest as contemplated by statutory or constitutional provisions. Defendants’ Motion,

therefore, is GRANTED. Since this Court grants Defendants Motion on all claims related to

standing, this Court does not have subject matter jurisdiction over this dispute. Because this Court

does not have subject matter jurisdiction due to all Plaintiffs’ lack of standing, this Court need not

analyze the claims related to Defendants’ Motion pursuant to Rule 12(b)(5).

DATED: July 3, 2024.

BY THE COURT:

Jon J. Olafson
District Court Judge