Amicus Curiae Brief — St. Mary Catholic Parish, Littleton, Colorado, et al., Petitioners v. Lisa Roy, in Her Official Capacity as Executive Director of the Colorado Department of Early Childhood, et al.
Supreme Court briefAug 24, 2026
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NO. 25-581
In the
Supreme Court of the United States
_______________________
ST. MARY CATHOLIC PARISH IN LITTLETON, et al.,
Petitioners,
v.
LISA ROY, in her official capacity as Executive Director
of the Colorado Department of Early Childhood, et al.,
Respondents.
________________
On Writ of Certiorari to the
U.S. Court of Appeals for the Tenth Circuit
________________
BRIEF OF DISABILITY RIGHTS EDUCATION
AND DEFENSE FUND AND 12 DISABILITY AND
CIVIL RIGHTS ORGANIZATIONS AS AMICI
CURIAE IN SUPPORT OF RESPONDENTS
________________
MATTHEW A. SIMONSEN
JINNY KIM
Counsel of Record
PETER TALKINGTON
GRATA LAW AND POLICY LLC DISABILITY RIGHTS
4845 Pearl E. Cir. Suite 101
EDUCATION & DEFENSE
Boulder, CO 80301
FUND
(303) 535-3533
3075 Adeline St.
matt@gratalegal.com
Suite 210
Berkeley, CA 94703
AMY FARR ROBERTSON
(510) 644-2555
FOX & ROBERTSON, P.C.
jkim@dredf.org
1550 Wewatta St. Suite 200 ptalkington@dredf.org
Denver, CO 80202
(303) 416-8673
arob@foxrob.com
Counsel for Amici Curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................ii
INTERESTS OF AMICI CURIAE .............................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT .......................................................... 2
ARGUMENT ................................................................ 6
The IEP preference advances, rather than
undermines, Colorado’s equal-access interest. ..... 6
A. The IDEA was passed to ensure children
with disabilities were afforded an equal
opportunity to receive an education. ................ 7
B. Schools have an affirmative statutory duty
to accommodate disabled students. ................ 11
C. The IEP preference codifies what the IDEA
requires and thereby ensures equal
opportunity for disabled students. ................. 14
1. The plain statutory text establishes
Colorado’s interest in affording equal
opportunity to disabled children. .............. 15
2. Accommodations and services are
necessary to ensure equal opportunity
regardless of disability. ............................. 18
D. Without the IEP preference, disabled
preschoolers would be denied equal
opportunity. ..................................................... 24
CONCLUSION .......................................................... 28
ii
TABLE OF AUTHORITIES
Cases
A.J.T. ex rel. A.T. v. Osseo Area Schs.,
605 U.S. 335 (2025) .................................... 1, 12, 19
A.L. ex rel. D.L. v. Walt Disney
Parks & Resorts US, Inc.,
900 F.3d 1270 (11th Cir. 2018) ............................ 18
Alexander v. Choate,
469 U.S. 287 (1985) .............................................. 18
Am. Nat’l Gen. Ins. Co. v. Rivera,
217 P.3d 1257 (Colo. App. 2007) .......................... 16
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) .............................................. 11
Bd. of Educ. v. Rowley,
458 U.S. 176 (1982) ............................... 8, 10-11, 22
Bd. of Educ. v. State,
191 N.E. 914 (Ohio. App. 1934) ............................. 9
Brown v. Bd. of Educ.,
347 U.S. 483 (1954) ................................................ 7
Cinnamon Hills Youth Crisis Ctr., Inc. v.
St. George City,
685 F.3d 917 (10th Cir. 2012) .............................. 19
D.A. v. Hous. Indep. Sch. Dist.,
629 F.3d 450 (5th Cir. 2010) ................................ 13
iii
Emp. Div., Dep’t of Hum. Res. v. Smith,
494 U.S. 872 (1990) ................................................ 4
Endrew F. v. Douglas Cnty. Sch. Dist. RE-1,
580 U.S. 386 (2017) ..................................... 8, 11-13
Fry v. Napoleon Cmty. Schs.,
580 U.S. 154 (2017) ........................................ 12, 23
Gen. Dynamics Land Sys. v. Cline,
540 U.S. 581 (2004) ........................................ 21, 23
Honig v. Doe,
484 U.S. 305 (1988) ........................................ 10, 13
Irving Indep. Sch. Dist. v. Tatro,
468 U.S. 883 (1984) .............................................. 19
King v. Burwell,
576 U.S. 473 (2015) .............................................. 16
Mahmoud v. Taylor,
606 U.S. 522 (2025) ................................................ 4
Mills v. Bd. of Educ. of D.C.,
348 F. Supp. 866 (D.D.C. 1972) ............................. 9
Morgan v. Ohio Dep’t of Rehab. & Corr.,
No. 25-3722, 2026 WL 1009160
(6th Cir. Apr. 14, 2026) ........................................ 20
Nieto v. Clark’s Mkt., Inc.,
488 P.3d 1140 (Colo. 2020)................................... 16
iv
P.A.R.C v. Pennsylvania,
343 F. Supp. 279 (E.D. Pa. 1972) ........................... 9
Perez v. Sturgis Pub. Sch.,
598 U.S. 142 (2023) .........................................10-11
Richard S. v. Wissahickon Sch. Dist.,
334 F. App’x 508 (3d Cir. 2009) ........................... 13
Riel v. Elec. Data Sys. Corp.,
99 F.3d 678 (5th Cir. 1996) .................................. 23
S.H. ex rel. Durrell v. Lower Merion Sch. Dist.,
729 F.3d 248 (3d Cir. 2013).................................. 19
State ex rel. Beattie v. Bd. of Educ.,
172 N.W. 153 (Wis. 1919)....................................... 9
Students for Fair Admissions, Inc. v.
President & Fellows of Harv. Coll.,
600 U.S. 181 (2023) .............................................. 22
T.K. v. N.Y.C. Dep’t of Educ.,
810 F.3d 869 (2d Cir. 2016).................................. 12
U.S. Airways v. Barnett,
535 U.S. 391 (2002) ................................... 18, 21-22
Watson v. Cambridge,
32 N.E. 864 (Mass. 1893) ....................................... 9
Workman v. Frito-Lay, Inc.,
165 F.3d 460 (6th Cir. 1999) ................................ 20
v
Constitutional Provisions
DEL. CONST. art. X, § 1 ................................................ 8
N.M. CONST. art. XII § 5 .............................................. 8
U.S. CONST. art. I, § 8, cl. 1 ....................................... 11
Statutes
20 U.S.C. § 1400 ........................6, 10-11, 13, 18, 20-22
20 U.S.C. § 1401 ........................................................ 13
20 U.S.C. § 1411 ........................................................ 11
20 U.S.C. § 1412 .................................................. 14, 23
20 U.S.C. § 1414 ...................................................13-14
20 U.S.C. § 1431 .......................................................... 1
42 U.S.C. § 12102 ................................................ 12, 20
42 U.S.C. § 12132 ...................................................... 12
42 U.S.C. § 12182 ...................................................... 20
COLO. REV. STAT. § 22-20-103 .................................... 16
COLO. REV. STAT. § 26.5-4-202 ................................... 17
COLO. REV. STAT. § 26.5-4-203 ................................... 16
COLO. REV. STAT. § 26.5-4-204 ................................... 17
COLO. REV. STAT. § 26.5-4-205............................... 3, 18
COLO. REV. STAT. § 26.5-4-206 ................................... 17
vi
Education for All Handicapped Children Act,
Pub. L. No. 94-142, 89 Stat. 773 (1975)................. 7
NEV. REV. STAT. § 392.050 ........................................... 8
Pub. L. No. 99-457, 100 Stat. 1145 (1986) .................. 1
Pub. L. No. 101-476, 104 Stat. 1103 (1990) ................ 7
Pub. L. No. 108-446, 118 Stat. 2647 (2004) .............. 11
TEX. REV. CIV. STAT. art. 2893, § 3 (1936)................... 8
Regulations
8 COLO. CODE REGS. 1404-1 § 4.109 .......... 4, 17, 22, 28
28 C.F.R. § 35.130...................................................... 12
34 C.F.R. § 300.17...................................................... 21
34 C.F.R. § 300.34...................................................... 21
34 C.F.R. § 300.39...................................................... 21
34 C.F.R. § 300.42...................................................... 21
34 C.F.R. § 300.109.................................................... 14
34 C.F.R. § 300.114........................................ 14, 21, 23
34 C.F.R. § 300.115.................................................... 14
34 C.F.R. § 300.116.............................................. 14, 23
34 C.F.R. § 300.117.................................................... 14
34 C.F.R. § 300.118.................................................... 14
vii
34 C.F.R. § 300.119.................................................... 14
34 C.F.R. § 300.120.................................................... 14
34 C.F.R. § 300.320........................................ 14, 21, 23
34 C.F.R. § 300.321.................................................... 14
34 C.F.R. § 300.322.................................................... 14
34 C.F.R. § 300.323.................................................... 14
34 C.F.R. § 300.324.................................................... 14
Other Materials
121 Cong. Rec. 37417 (1975) ..................................... 10
COLO. DEP’T EARLY CHILDHOOD, COLO. UNIVERSAL
PRESCHOOL SCHOOL YEAR 2023-24 ANNUAL
REPORT (2025), https://tinyurl.com/3bh4apub ..... 24
COLO. DEP’T EARLY CHILDHOOD, COLO. UNIVERSAL
PRESCHOOL PROGRAM YEAR 2024-25 ANNUAL
REPORT (2026), https://tinyurl.com/53ae7bpt ...... 24
COLO. DEP’T OF EDUC., CDE STANDARDS FOR
PLACEMENT OF PRESCHOOLERS WITH IEPS IN
EDUCATIONAL PROGRAMS (2024),
https://tinyurl.com/t5d6hd8y ............................... 25
Complaint by Disability Law Colorado (n/k/a
Disability Justice) to U.S. Dep’t of Educ., Office
for Civil Rights, OCR Case No. 08-22-1563 (filed
Sept. 2, 2022), https://tinyurl.com/5dfsbz6w ....... 27
viii
Donald W. Keim, Legislative Notes: The Education
of All Handicapped Children Act of 1975,
10 U. MICH. J. L. REFORM 110 (1976) .................8-9
Erica Meltzer, Colorado school choice law
discriminates against students with
disabilities, complaint alleges, CHALKBEAT
COLO. (Sept. 14, 2022, 6:00 a.m. MDT),
https://tinyurl.com/3466ecj4 ...........................27-28
FREDERICK J. WEINTRAUB ET AL., STATE LAW AND
EDUCATION OF HANDICAPPED CHILDREN: ISSUES
AND RECOMMENDATIONS (1971) .............................. 7
Hearing on H.B. 22-1295 Before the H. Comm.
on Educ., 73d Gen. Assemb., 2d Reg. Sess.
(Colo. 2022) ......................................................26-27
Hearing on H.B. 22-1295 Before the S. Comm.
on Educ., 73d Gen. Assemb., 2d Reg. Sess.
(Colo. 2022) ........................................................... 26
NAT’L CTR. FOR EDUC. STAT., U.S. DEP’T OF EDUC.,
INST. FOR EDUC. SCIS., CONDITION OF EDUCATION:
STUDENTS WITH DISABILITIES (2024),
https://tinyurl.com/ye22kxud ........................... 1, 24
Sup. Ct. R. 37.6 ............................................................ 1
1
INTERESTS OF AMICI CURIAE1
Approximately one out of every seven children in
American public schools has a disability that qualifies
for individual educational services under the federal
Individuals with Disabilities Education Act (“IDEA”).
See NAT’L CTR. FOR EDUC. STAT., U.S. DEP’T OF EDUC.,
INST. FOR EDUC. SCIS., CONDITION OF EDUCATION:
STUDENTS WITH DISABILITIES (2024) [hereinafter NAT’L
CTR. FOR EDUC. STAT.], https://tinyurl.com/ye22kxud.
For forty years, Congress has recognized “an urgent
and substantial need” to identify and provide services
to disabled children before they reach school age. 20
U.S.C. § 1431(a) (added by Pub. L. No. 99-457, § 101,
100 Stat. 1145, 1145 (1986)). Though strides have
been made, families of young children with disabilities
continue to face significant barriers to equal access, as
compared to their nondisabled peers. See, e.g., A.J.T.
ex rel. A.T. v. Osseo Area Schs., 605 U.S. 335, 351
(2025) (acknowledging that “a great many children
with disabilities and their parents . . . face daunting
challenges on a daily basis”) (citation and internal
quotation marks omitted).
Amici are disability rights organizations that have
substantial expertise related to federal, state, and
1 Pursuant to Rule 37.6, Amici affirm that no counsel for a
party authored this brief in whole or in part and that no person
other than Amici or their counsel has contributed monetarily to
the preparation or submission of this brief.
2
local disability rights law, policy, and litigation: the
Disability Rights Education and Defense Fund;
AdvocacyDenver; the Arc of the United States; the
Autistic Self Advocacy Network, the Autistic Women
and Nonbinary Network; the Colorado CrossDisability Coalition; the Colorado Disability Bar
Association; CommunicationFIRST; the Council of
Parent Attorneys and Advocates; Deaf Equality;
Disability Justice (formerly Disability Law Colorado);
Disability Law United; and the National Association
of the Deaf.
As explained below, Petitioners’ free exercise
challenge to the generally applicable equalopportunity requirement of Colorado’s universal
preschool (“UPK”) program fundamentally misunderstands disability law. Accordingly, Amici write to
explain why Petitioners’ free exercise challenge—to
the extent it is premised on UPK’s protections for
disabled students—is at odds with reality and wellsettled tenets of disability law.
INTRODUCTION AND SUMMARY OF
ARGUMENT
In 2022, Colorado enacted its UPK program,
providing universal access to preschool for every fouryear-old in the state. The state-funded UPK program
uses a mixed-delivery system in which students may
enroll in a variety of participating public and private
preschools. As a condition of participation, Colorado
3
law requires all UPK schools to “provide eligible children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious
affiliation, sexual orientation, gender identity, lack of
housing, income level, or disability, as such characteristics and circumstances apply to the child or the
child’s family.” COLO. REV. STAT. § 26.5-4-205(2)(b).
Though all schools must comply with this equalopportunity provision, the UPK program is open to
both secular and religious schools; as of October 2023,
40 faith-based providers were participating in the
UPK program and 904 children had been matched
with such providers. Pet.App. 303a. Beyond basic
academic requirements, the UPK program does not
dictate what or how participating schools teach.
Religious schools are free to teach religious doctrine.
Despite this, Petitioner religious schools seek an
exception to the equal-opportunity provision
permitting them to exclude eligible children from
enrollment based on the sexual orientation or gender
identity of the children or their families. Petitioners
assert that being required to enroll these students
burdens the free exercise of their religion. In the
absence of the requested exception, Petitioner
religious schools refuse to agree to the equalopportunity provision and thus decline to participate
in the UPK program. That is, the UPK program has
not excluded Petitioners on the basis of religion;
4
Petitioners have opted out of the program because
they refuse to comply with a neutral and generally
applicable rule.
The UPK uses an algorithm to match students with
schools. Generally, families will select and rank five
preschools and the algorithm will match the student
with one of their selections. However, the State recognized that this system could be impractical in certain
situations. To address this, the implementing regulations include “Provider Matching Criteria” allowing
schools to employ certain algorithmic preferences in
the matching process, including an “IEP preference”
enabling them to “reserv[e] placements for a student(s) with an Individualized Education Program
(IEP) to ensure conformity with obligations incurred
pursuant to the Individuals with Disabilities Education Act [and analogous state law].” 8 COLO. CODE
REGS. 1404-1 § 4.109(A)(3).
The IEP preference lies at the heart of Petitioners’
free exercise challenge to the equal-opportunity
requirement. Petitioners attempt to leverage this
preference to avoid the long-accepted rule that “the
right of free exercise does not relieve an individual of
the obligation to comply with a ‘valid and neutral law
of general applicability . . . .’” Emp. Div., Dep’t of Hum.
Res. v. Smith, 494 U.S. 872, 879 (1990) (citation
omitted); accord Mahmoud v. Taylor, 606 U.S. 522,
564 (2025) (“[T]he government is generally free to
5
place incidental burdens on religious exercise so long
as it does so pursuant to a neutral policy that is
generally applicable.”). However, Petitioners’ efforts
to characterize the IEP preference as undermining the
general applicability of the equal-opportunity
provision rely on mischaracterizations of the IEP
preference, the statutes that it implements, and longaccepted principles of disability law.
In essence, Petitioners argue that state law
ensuring children with disabilities are included in the
UPK program as required by federal law justifies their
request to exclude LGBTQ children and families. They
do this by turning the effect of the law on its head,
equating their desire to exclude LGBTQ children with
an imagined exclusion of nondisabled children.
However, Petitioners misunderstand the purpose of
the IEP preference, which is designed to ensure that
disabled students receive the services required for
them to have the “equal opportunity to enroll”
promised by the equal-opportunity provision. The IEP
preference is not an exception to that provision, but a
requirement of its “equal opportunity” language.
Reality confirms that the IEP preference, in fact,
advances the government’s unwavering interest in
equal opportunity here. While this preference has
brought Colorado closer to its goal of providing equal
access, it has not, in fact, caused disproportionate
UPK enrollment of disabled preschoolers nor caused
6
any concrete harm to nondisabled peers. Conversely,
equal educational opportunity for disabled students
would be a mirage if Colorado were to conform the
UPK program to Petitioners’ myopic view of general
applicability, under which any unique treatment of
disabled children is categorically off limits (or else,
strict scrutiny applies).
Amici urge this Court to reject Petitioners’ free
exercise arguments premised on the IEP preference.
ARGUMENT
The IEP preference advances, rather than undermines, Colorado’s equal-access interest.
The IEP preference codifies what is already
required of the State under the IDEA and correlative
state law. The express purpose of the IDEA is to
“ensure that all children with disabilities have available to them a free appropriate public education that
emphasizes special education and related services
designed to meet their unique needs.” 20 U.S.C.
§ 1400(d)(1)(A). The IDEA is built on the principle that
students with disabilities should be educated alongside their peers and have access to the same academic
standards, accountability systems, and opportunities
for success. Colorado is ensuring that disabled children are granted equal opportunity and access to the
UPK program.
Far from undermining Colorado’s interest in
providing all children with an equal opportunity to
7
attend preschool, as Petitioners argue, the IEP preference ensures that goal can be achieved. Accordingly,
as the Tenth Circuit unanimously recognized, the IEP
preference does not “undermine[] the government’s
asserted interest in ensuring equal access to preschools.” Pet.App. 39a.
A. The IDEA was passed to ensure children
with disabilities were afforded an equal
opportunity to receive an education.
In 1954, this Court declared that “education is
perhaps the most important function of state and local
governments.” Brown v. Bd. of Educ., 347 U.S. 483,
493 (1954). “[W]here the state has undertaken to
provide it, [education] is a right which must be made
available to all on equal terms.” Id. Two decades later,
however, Congress found that such a right had yet to
be fully extended to children with disabilities. At the
time, “more than half of the handicapped children in
the United States [did] not receive appropriate educational services which would enable them to have full
equality of opportunity,” and “one million . . . [were]
excluded entirely from the public school system.”
Education for All Handicapped Children Act, Pub. L.
No. 94-142, § 3(a), 89 Stat. 773, 774 (1975);2 see also
The Education for All Handicapped Children Act was
eventually renamed the IDEA. Pub. L. No. 101-476, 104 Stat.
1103, 1103-51 (1990). For simplicity, Amici use “IDEA” to refer
2
8
Bd. of Educ. v. Rowley, 458 U.S. 176, 179 (1982)
(noting Congress’s finding that the majority of disabled children “were either totally excluded from
schools or sitting idly in regular classrooms awaiting
the time when they were old enough to ‘drop out’”)
(citation and alteration omitted).
The segregation and neglect of children with disabilities was the product of a long history of de jure
discrimination. See FREDERICK J. WEINTRAUB ET AL.,
STATE LAW AND EDUCATION OF HANDICAPPED
CHILDREN: ISSUES AND RECOMMENDATIONS 11-17
(1971). Texas, for instance, permitted the exclusion of
“blind, dumb, or feeble minded children.” TEX. REV.
CIV. STAT. art. 2893, § 3 (1936). Nevada still has a law
on the books that excludes children with disabilities
which render attendance “inadvisable.” NEV. REV.
STAT. § 392.050(2) (2025). Delaware’s constitution
declares that the state legislature “may require by law
that every child, not physically or mentally disabled,
shall attend the public school.” DEL. CONST. art. X, § 1.
Other state constitutions specify that education is
required only for children of “sufficient” physical and
mental ability. E.g., N.M. CONST. art. XII § 5. By 1971,
only seven states had enacted laws requiring
education for all disabled children. Donald W. Keim,
Legislative Notes: The Education of All Handicapped
to its predecessors as well. See, e.g., Endrew F. v. Douglas Cnty.
Sch. Dist. RE-1, 580 U.S. 386, 392 n.1 (2017).
9
Children Act of 1975, 10 U. MICH. J. L. REFORM 110,
119 (1976).
Children with disabilities fared no better in the
courts. In 1893, for example, a Massachusetts court
held that schools were not required to educate
children whose behavior was “by reason of imbecility.”
Watson v. Cambridge, 32 N.E. 864, 865 (Mass. 1893).
Nearly three decades later, the Wisconsin Supreme
Court held that “the right of a child of school age to
attend the public schools of this state cannot be
insisted upon” where “his physical condition and
ailment produces a depressing and nauseating effect
upon the teachers and school children.” State ex rel.
Beattie v. Bd. of Educ., 172 N.W. 153, 154 (Wis. 1919).
In 1934, an Ohio court emphatically stated, “[a]s a
matter of common sense it is apparent that a moron of
very low type, or an idiot or imbecile who is incapable
of absorbing knowledge or making progress in the
schools, ought to be excluded.” Bd. of Educ. v. State,
191 N.E. 914, 916 (Ohio. App. 1934).3
It was against this backdrop that Congress first
attempted to promote education of disabled children
by establishing a grant program “aimed primarily at
3 Eventually, in 1972, two courts held that disabled children
were guaranteed certain rights to education. P.A.R.C v.
Pennsylvania, 343 F. Supp. 279 (E.D. Pa. 1972); Mills v. Bd. of
Educ. of D.C., 348 F. Supp. 866 (D.D.C. 1972). These cases
influenced the IDEA’s structure.
10
stimulating the States to develop educational resources and to train personnel for educating the
handicapped,” yet neither law contained specific
guidelines on how the money should be used. Rowley,
458 U.S. at 180. Quickly recognized as ineffective,
Congress passed the IDEA in 1975, establishing the
nation’s modern special education scheme. Id.; see also
121 Cong. Rec. 37417 (1975) (statement of Sen.
Schweiker) (“It can no longer be the policy of the
Government to merely establish an unenforceable goal
requiring all children to be in school. [The bill] takes
positive necessary steps to insure that the rights of
children and their families are protected.”).
The IDEA was a robust and comprehensive civil
rights law which sought “to ensure children with
disabilities receive a free and appropriate public education.” Perez v. Sturgis Pub. Sch., 598 U.S. 142, 144
(2023). Specifically, “the [IDEA] confers upon disabled
students an enforceable substantive right to public
education in participating States.” Honig v. Doe, 484
U.S. 305, 310 (1988) (emphasis added). In reauthorizing the law in 2004, Congress reflected that prior to
the passage of the IDEA, children with disabilities
“did not receive appropriate educational services,”
they “were excluded entirely from the public school
system,” and “a lack of adequate resources within the
public school system forced families to find services
outside the public school system.” 20 U.S.C.
11
§ 1400(c)(2); Pub. L. No. 108-446, § 101, 118 Stat.
2647, 2649 (2004). Congress found that “this chapter
has been successful in ensuring children with disabilities and the families of such children access to a free
appropriate public education and in improving educational results for children with disabilities.” 20 U.S.C.
§ 1400(c)(3).
At the same time, Congress found that the IDEA
“has been impeded by low expectations.” Id.
§ 1400(c)(4). To this day, the IDEA remains necessary
to ensure children with disabilities receive an education. See, e.g., Endrew F. v. Douglas Cnty. Sch. Dist.
RE-1, 580 U.S. 386, 395-97 (2017) (school district
failed to offer services that would allow student to
make meaningful progress); Perez, 598 U.S. at 145
(school district artificially inflated student’s grades
and routinely failed to provide deaf student with qualified aides).
B. Schools have an affirmative statutory
duty to accommodate disabled students.
The IDEA was enacted pursuant to the Spending
Clause. Arlington Cent. Sch. Dist. Bd. of Educ. v.
Murphy, 548 U.S. 291, 295 (2006) (citing U.S. CONST.
art. I, § 8, cl. 1). As it functions, the IDEA offers federal
financial assistance to states. Rowley, 458 U.S. at 18081; 20 U.S.C. § 1411. The assistance is optional, and
12
states are not required to accept it.4 However, “once a
State accepts the IDEA’s financial assistance, it must
provide special education and related services,
including instruction tailored to meet a child’s unique
needs and sufficient support services to permit the
child to benefit from that instruction.” A.J.T., 605 U.S.
at 340 (quoting Fry v. Napoleon Cmty. Schs., 580 U.S.
154, 158 (2017)) (emphasis added) (internal quotation
marks omitted). Thus, the IDEA creates an affirmative duty to accommodate children with disabilities.
Endrew F., 580 U.S. at 399 (IDEA imposes a
“substantive obligation” on states); Fry, 580 U.S. at
155 (“The IDEA guarantees individually tailored
educational services for children with disabilities.”);
T.K. v. N.Y.C. Dep’t of Educ., 810 F.3d 869, 875 (2d
Cir. 2016) (“States have an affirmative obligation to
4 Even if the State were to opt out of this financial assistance,
Title II of the Americans with Disabilities Act would still require
that students with disabilities be provided with equal access to
education, a requirement that the IEP preference seeks to
advance. That statute prohibits states from discriminating on the
basis of disability, 42 U.S.C. § 12132, which is defined as “a
physical or mental impairment that substantially limits one or
more major life activities,” id. § 12102(1)(A). Title II requires
states to “make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid
discrimination on the basis of disability.” 28 C.F.R.
§ 35.130(b)(7)(i). The IEP preference would be required to ensure
that the matching algorithm did not operate to deny disabled
students the services they need.
13
provide a basic floor of opportunity for all children
with disabilities.”); D.A. v. Hous. Indep. Sch. Dist., 629
F.3d 450, 453 (5th Cir. 2010) (“IDEA imposes an
affirmative obligation on states.”); Richard S. v.
Wissahickon Sch. Dist., 334 F. App’x 508, 510-11 (3d
Cir. 2009) (IDEA creates an “affirmative duty”).
“The primary vehicle for implementing these congressional goals is the ‘individualized educational
program’ (IEP).” Honig, 484 U.S. at 311. “To meet its
substantive obligation under the IDEA, a school must
offer an IEP reasonably calculated to enable a child to
make progress appropriate in light of the child’s
circumstances.” Endrew F., 580 U.S. at 399. An IEP
thus puts into practice the IDEA’s requirement that
children with disabilities be afforded a free
appropriate public education. An IEP sets out “the
special education and related services and supplementary aids and services, [and] program modifications” that a disabled student will receive. 20 U.S.C.
§ 1414(d)(1)(A)(i)(IV). A “special education” amounts
to “specially designed instruction, at no cost to parents,
to meet the unique needs of a child with a disability.”
Id. § 1401(29) (emphasis added). Once a state accepts
IDEA funding, it has an affirmative duty to offer
specially designed instruction and other services that
“ensure that all children with disabilities have available to them a free appropriate public education.” Id.
§ 1400(d)(1)(A).
14
Relevant here, an IEP team is convened between a
parent and their local education agency—in Colorado,
their local school district—to develop an IEP which
identifies, among other things, what services the local
agency will provide and where they will provide them,
known as a “placement.” Id. § 1414(d)(1)(A)-(B), (e); 34
C.F.R. §§ 300.320-300.324. In determining a child’s
placement, the local agency must ensure that the child
is educated in the “least restrictive environment,”
meaning that a child must, to the maximum extent
possible, be educated alongside their nondisabled
peers. 20 U.S.C. § 1412(a)(5); 34 C.F.R. § 300.114.
Additionally, unless the IEP requires otherwise, a
child must be educated in the school they would otherwise attend if they were not disabled, and the placement is as close as possible to the child’s home. 34
C.F.R. § 300.116(b), (c). Various other nuanced considerations may affect a child’s placement. See 20 U.S.C.
§ 1414(d)(1), (d)(3); 34 C.F.R. §§ 300.114-300.120.
Ultimately, a state must provide “full educational
opportunity to all children with disabilities.” 20 U.S.C.
§ 1412(a)(2); 34 C.F.R. § 300.109.
C. The IEP preference codifies what the
IDEA requires and thereby ensures equal
opportunity for disabled students.
In invoking the IEP preference, the essence of
Petitioners’ argument is that allowing schools to
consider disability denies equal opportunity to non-
15
disabled children. This is incorrect. First, “disability”
as used in the UPK statute means individuals who
have a disability; being nondisabled is not a protected
characteristic. Second, as Congress and this Court
have noted, preferential treatment may be required to
ensure that people with disabilities are afforded an
equal opportunity. The IDEA, as established by its
text and history, affords “special” rights and
accommodations to children with disabilities
unavailable to the nondisabled so that such children
may attain an equal opportunity. The IEP preference
merely ensures conformity with this federal
requirement and supports Colorado’s equalopportunity interest.
1. The plain statutory text establishes
Colorado’s interest in affording equal
opportunity to disabled children.
Petitioners contend that the UPK statute’s equalopportunity provision is not generally applicable
because it allows the State “to deny families equal
access for secular reasons.” Pets.’ Br. 40. Specifically,
Petitioners take issue with the IEP preference which,
they argue, discriminates against nondisabled students. Petitioners make much of the “plain text” of the
equal-opportunity provision to argue that it “proscribes all unequal access based on any protected
characteristic,” and that the IEP preference “undermine[s] this equal access interest.” Id. at 37-39, 41.
16
To the contrary, the plain text of the provision
requires “equal opportunity,” a goal that cannot be
achieved without the IDEA, as implemented by the
IEP preference. This is reinforced by the text of the
UPK statute as a whole. As this Court has instructed,
““we must read the words [of a statutory provision] ‘in
their context and with a view to their place in the
overall statutory scheme.’ Our duty, after all, is ‘to
construe statutes, not isolated provisions.’” King v.
Burwell, 576 U.S. 473, 486 (2015) (citations omitted);
accord Nieto v. Clark’s Mkt., Inc., 488 P.3d 1140, 1143
(Colo. 2020). The whole text of the UPK statute
demonstrates that the State’s interest regarding
students with disabilities is to ensure equal opportunity, including provision of required services.
Most importantly, the definitions provision of the
UPK statute defines “children with disabilities” in
terms of specific conditions, not as a generic term
encompassing both disabled and nondisabled children.
COLO. REV. STAT. § 26.5-4-203(3) (incorporating by
reference COLO. REV. STAT. § 22-20-103). The equalopportunity provision’s requirement of “equal
opportunity . . . regardless of . . . disability” must be
interpreted to harmonize the use of “disability” with
the definition in the same statute. See, e.g., Am. Nat’l
Gen. Ins. Co. v. Rivera, 217 P.3d 1257, 1260-61 (Colo.
App. 2007) (applying statutory definition throughout
statutory scheme).
17
In addition, the UPK statute expressly “recognizes
the requirement of the federal [IDEA] to provide educational services to every three- or four-year-old child
with a disability, in accordance with the child’s
individualized education program.” COLO. REV. STAT.
§ 26.5-4-202(4). One of the four stated purposes of the
law is “[t]o provide access to preschool services for
children who are three years of age, or in limited
circumstances younger than three years of age, and
are children with disabilities.” Id. § 26.5-4-204(1)(c);
see also id. § 26.5-4-204(3)(a)(II) (“Pursuant to IDEA
and [state equivalent], 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 individualized education program.”); id. § 26.54-204(4) (children with disabilities exempted from
various requirements pursuant to the IDEA and their
IEP). Indeed, the law has an entire section detailing
special education requirements. Id. § 26.5-4-206. The
IEP preference itself states that its purpose is “to
ensure conformity with obligations incurred pursuant
to the Individuals with Disabilities Education Act.” 8
COLO. CODE REGS. 1404-1 § 4.109(A)(3) (emphasis
added). Reading the plain text of the UPK statute, it
is clear that Colorado intended to ensure that children
with disabilities were afforded an equal opportunity to
access and benefit from the UPK program as required
by the IDEA. Implementing a federal law that ensures
18
disabled children have equal access does not
undermine Colorado’s equal-access interest.
2. Accommodations and services are
necessary to ensure equal opportunity
regardless of disability.
Narrowing the focus from the UPK statute as a
whole to the equal-opportunity provision, Petitioners’
argument still fails. Again, the plain text of the
provision requires “equal opportunity.” COLO. REV.
STAT. § 26.5-4-205(2)(b). This term requires that
disabled students be afforded accommodations and
services—including, if necessary, “preferences”—in
order to obtain the same opportunities as their nondisabled peers. See U.S. Airways v. Barnett, 535 U.S.
391, 397 (2002) (recognizing “preferences will sometimes prove necessary to achieve the [ADA]’s basic
equal opportunity goal”); Alexander v. Choate, 469
U.S. 287, 301 (1985) (“[A]n otherwise qualified
handicapped individual must be provided with
meaningful access to the benefit,” and “to assure
[such] access, reasonable accommodations in the . . .
program or benefit may have to be made.”); A.L. ex rel.
D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d
1270, 1295 (11th Cir. 2018) (holding the ADA and
Section 504 of the Rehabilitation Act require
“meaningful access or an equal opportunity to gain the
same benefit as [a disabled individual’s] nondisabled
peers”); 20 U.S.C. § 1400(c)(1) (“Improving educ-
19
ational results for children with disabilities is an
essential element of our national policy of ensuring
equality of opportunity . . . .”); Cinnamon Hills Youth
Crisis Ctr., Inc. v. St. George City, 685 F.3d 917, 923
(10th Cir. 2012) (Gorsuch, J.) (“Of course, in some
sense all reasonable accommodations treat the
disabled not just equally but preferentially. . . . [I]t is
sometimes necessary to dispense with formal equality
of treatment in order to advance a more substantial
equality of opportunity.”).
Petitioners suggest that Colorado discriminates
against nondisabled children by permitting preschools
to consider disability by reserving spaces for children
with IEPs in conformance with the IDEA. But Petitioners cite no authority contradicting the wellestablished understanding that nondisabled people
are not protected by statutes prohibiting discrimination on the basis of disability. See Irving Indep. Sch.
Dist. v. Tatro, 468 U.S. 883, 894 (1984) (“In the
absence of a handicap that requires special education,
the need for what otherwise might qualify as a related
service does not create an obligation under the
[IDEA].”); A.J.T., 605 U.S. at 339 (describing ADA and
Section 504 as “generally applicable antidiscrimination laws” which afford “protections for children with
disabilities”) (emphasis added); S.H. ex rel. Durrell v.
Lower Merion Sch. Dist., 729 F.3d 248, 258 (3d Cir.
2013) (“[U]nder the Act’s plain language, it is clear
20
that the IDEA creates a cause of action only for
individuals with disabilities.”); Morgan v. Ohio Dep’t
of Rehab. & Corr., No. 25-3722, 2026 WL 1009160, at
*3 (6th Cir. Apr. 14, 2026) (“[T]he fact that an
employee does not have a disability obviates an
employer’s obligation to provide an accommodation.”)
(citing Workman v. Frito-Lay, Inc., 165 F.3d 460, 467
(6th Cir. 1999)).5 Therefore, where the law guarantees
equal access for disabled students, it is not conversely
denying equal access to any other protected class.
The reasoning behind this principle should be
obvious. In enacting the IDEA, Congress found it was
students with disabilities, not students without disabilities, that suffered a systemic disadvantage in education. The IDEA sets out a number of mechanisms
ensuring that children with disabilities may obtain an
educational opportunity on par with that of their nondisabled peers. Such mechanisms include specially
designed instruction, related services, supplementary
supports, and reasonable modifications. 20 U.S.C.
5 In limited circumstances, certain nondisabled individuals
may be protected from discrimination. See, e.g., 42 U.S.C.
§ 12102(1)(C) (“regarded as” claims); id. § 12182(b)(1)(E) (associational discrimination). These provisions do not protect nondisabled people based on their lack of disability; rather, they prohibit,
respectively, (1) discriminating against a nondisabled person because the discriminator thinks they are disabled; and (2) discriminating against a nondisabled person because they are associated
with a disabled person.
21
§ 1400(d)(1); 34 C.F.R. §§ 300.17, 300.34, 300.39,
300.42, 300.114, 300.320. Therefore, the IDEA requires that disabled students be granted modifications
to policies and practices when necessary to bridge the
gap and afford disabled students a free appropriate
public education. Otherwise, Congress and the courts
have recognized, children with disabilities would
suffer segregation, neglect, and discrimination.
This Court addressed this very argument in U.S.
Airways v. Barnett. In that case, U.S. Airways argued
that the ADA does not require employers to grant
“preferential” treatment to disabled employees in the
form of reasonable accommodations. 535 U.S. at 397.
This Court soundly rejected this position, holding that
“[t]he Act requires preferences in the form of ‘reasonable accommodations’ that are needed for those with
disabilities to obtain the same workplace opportunities that those without disabilities automatically
enjoy.” Id. (emphasis added). Otherwise, the ADA
“could not accomplish its intended objective.” Id.
In passing the IDEA, Congress explicitly found
that disabled students were suffering at the expense
of their nondisabled peers, and that this problem
required a federal statute to place disabled students
in parity with nondisabled students. Cf. Gen.
Dynamics Land Sys. v. Cline, 540 U.S. 581, 591 (2004)
(explaining why Age Discrimination in Employment
Act does not protect younger workers); 20 U.S.C.
22
§ 1400(c)(2); Rowley, 458 U.S. at 179-80. To comply
with the IDEA, the UPK statute’s equal-opportunity
provision—per Barnett—“requires preferences . . .
that are needed for those with disabilities to obtain the
same [educational] opportunities that those without
disabilities automatically enjoy.” 535 U.S. at 397.
Otherwise, neither the IDEA nor the UPK statute
could “accomplish its intended objective.” Id. In fact,
this rationale is written into the IEP preference itself.
8 COLO. CODE REGS. 1404-1 § 4.109(A)(3) (preference
permitted “to ensure conformity with obligations
incurred pursuant to the Individuals with Disabilities
Education Act”) (emphasis added).
Petitioners reject these holdings, arguing that
crafting a preference that matches disabled students
with required services, on the one hand, and denying
equal access to LGBTQ families, on the other,
similarly undermine Colorado’s interest in affording
equal access to all children. Petitioners argue that,
under the rationale of the IEP preference, Colorado
could even fund UPK schools serving only “white” or
“Irish families.” Pets.’ Br. 43. But this inapt analogy
ignores the unique meaning of “disability,” which is
distinct from other protected classes.
For example, “race,” as a protected class, applies to
all races. See, e.g., Students for Fair Admissions, Inc.
v. President & Fellows of Harv. Coll., 600 U.S. 181,
206-07, 229-30 (2023). Therefore, a school would not
23
be permitted to consider race and thus only enroll
white families, as that would deny equal access to the
other races that fall under the protected class.
“Disability,” as explained above, does not include nondisabled people. Thus, in considering disability and
providing legally required services and placements to
disabled students, a school is not denying equal access
to any other protected class. See also Riel v. Elec. Data
Sys. Corp., 99 F.3d 678, 681 (5th Cir. 1996) (distinguishing “disability” from “race”); Cline, 540 U.S. at
597-98 (distinguishing “age” from “race” and “sex”).
Petitioners’ argument ultimately rests on the unfounded premise that the IEP preference undermines
Colorado’s equal access interest, as well as a faulty
comparison of the IEP matching preference to Petitioners’ desired anti-LGBTQ exclusion. But the difference between the two is clear: the former does not deny
equal access to a protected class, while the latter does.
Indeed, the IEP preference simply codifies what the
IDEA already requires: to “ensure[] that children with
disabilities receive needed special education services.”
Fry, 580 U.S. at 157. The IDEA contemplates where a
child must receive services, 20 U.S.C. § 1412(a)(5); 34
C.F.R. §§ 300.114, 300.116, 300.320, and the IEP preference simply ensures that the UPK program’s algorithm will not deprive a disabled child of that legally
mandated placement. Thus, the IEP preference is
24
instrumental in fulfilling the UPK program’s promise
of equal opportunity.
D. Without the IEP preference, disabled
preschoolers would be denied equal
opportunity.
Petitioners’ theoretical claims about the IEP
preference are at odds with reality.
Even with the IEP preference, children with disabilities have not disproportionately enrolled in the
UPK program nor displaced their nondisabled peers.
While 15 percent of public-school students nationwide
are served under the IDEA, see NAT’L CTR. FOR EDUC.
STAT., supra at 1, UPK enrollment of disabled children
has hovered around 13.5 percent of four-year-old
enrollment each year since the program’s inception,
e.g., COLO. DEP’T EARLY CHILDHOOD, COLO. UNIVERSAL
PRESCHOOL SCHOOL YEAR 2023-24 ANNUAL REPORT 10
fig.5 (2025) (“child[ren] with IEP[s]” comprised
“13.5%” of all four-year-olds served in inaugural year
of UPK), https://tinyurl.com/3bh4apub; COLO. DEP’T
EARLY CHILDHOOD, COLO. UNIVERSAL PRESCHOOL
PROGRAM YEAR 2024-25 ANNUAL REPORT 13 fig.5
(2026) (“child[ren] with IEP[s]” comprised “13.5%” of
“all four-year-olds served” in second year of UPK),
https://tinyurl.com/53ae7bpt.
The IEP preference has not harmed nondisabled
children’s opportunities either. Amici are unaware of
any UPK-participating preschools that exclusively or
25
even primarily serve children with disabilities.
Despite claiming that these schools exist, Petitioners
provide no examples. See Pets.’ Br. 10, 38. So,
although Colorado allows UPK providers to reserve
seats to ensure IEP-compliant placements for disabled
children, no identified UPK provider has closed its
doors to nondisabled children. In fact, keeping the full
slate of UPK providers open to the 86.5 percent
majority of nondisabled UPK enrollees aligns with the
IDEA’s integrated-education requirement, as well as
applicable Colorado Department of Education
standards requiring that “[c]lassrooms serving
children with IEPs always have fewer than 50% of
students with IEPs” and are otherwise comprised “of
age-appropriate non-disabled peers,” COLO. DEP’T OF
EDUC., CDE STANDARDS FOR PLACEMENT OF
PRESCHOOLERS WITH IEPS IN EDUCATIONAL PROGRAMS
2 (2024), https://tinyurl.com/t5d6hd8y.
Further, as the Colorado legislature understood
when enacting the UPK statute in 2022, families with
disabled children often have unique placement needs
and, notwithstanding antidiscrimination protections,
may still have fewer viable choices in an open market.
Before UPK, due to “significantly limited” options for
her preschooler with a rare developmental disability,
one parent’s “only option was to drive across town to
one of the very few programs [she] could find in
Denver,” to a school so far away that often “the best
26
use of time [was] just to stay in the parking lot” while
her daughter “attended preschool for two-and-a-half
hours, four days a week.” Hearing on H.B. 22-1295
Before the H. Comm. on Educ., 73d Gen. Assemb., 2d
Reg. Sess. (Colo. 2022) (statement of Corinne
DePersis). Summit County Commissioner Elisabeth
Lawrence similarly described the challenges she faced
earlier in life as “a young, low-income, single mother
with a [disabled] infant”; while early intervention
services were crucial and “saved [her] family,” it “was
only through grit and determination that [she] finally
found a spot for [her] daughter.” Hearing on H.B. 221295 Before the S. Comm. on Educ., 73d Gen. Assemb.,
2d Reg. Sess. (Colo. 2022) (statement of Elisabeth
Lawrence, Summit County Board of Commissioners,
and Colorado Counties, Inc.) (“I can’t imagine for other
families . . . the struggles to find adequate quality
care.”).
As the legislature also understood, a generic
prohibition of disability discrimination alone could not
secure equal UPK access for disabled preschoolers.
Petitioners do not address the complexity of this
formidable issue, which spurred “many thoughtful
discussions about how to ensure ongoing compliance
with federal requirements” for “identifying and
serving preschool children with disabilities” within
the UPK program. Hearing on H.B. 22-1295 Before the
H. Comm. on Educ., 73d Gen. Assemb., 2d Reg. Sess.
27
(Colo. 2022) (statement of Lucinda Hundley, Exec.
Dir., Consortium of Directors of Special Education);
accord id. (statement of George Welsh, Opportunity
Coalition, and frmr. Superintendent, Cañon City
Public Schools) (“We also had monthly town halls . . .
[and] ongoing conversation with special education
directors.”).
These real-world concerns were also front of mind
when the UPK regulations containing the IEP preference were drafted and eventually adopted in 2024. By
late 2022, Colorado’s top education agencies were
aware that disabled students were being systemically
underserved in a similar school-choice matching
process, owing, in part, to inadequate state-level
safeguards for ensuring IEP-compliant placements.
Indeed, a 130-page federal administrative complaint
submitted by Amicus Disability Justice (then
Disability
Law
Colorado)
comprehensively
demonstrated with empirical data and anecdotal
support that, without stronger protections for IEPrequired seats, “students with disabilities are
disproportionately denied enrollment at public schools
of their choice when compared to similarly situated
students without disabilities . . . .” Complaint by
Disability Law Colorado (n/k/a Disability Justice) to
U.S. Dep’t of Educ., Office for Civil Rights, at 5, OCR
Case No. 08-22-1563 (filed Sept. 2, 2022),
https://tinyurl.com/5dfsbz6w; see also Erica Meltzer,
28
Colorado school choice law discriminates against
students with disabilities, complaint alleges,
CHALKBEAT COLO. (Sept. 14, 2022, 6:00 a.m. MDT),
https://tinyurl.com/3466ecj4. Against that backdrop,
the IEP preference was born.
CONCLUSION
The IEP preference does not undermine Colorado’s
equal-opportunity interest. Rather, it implements
what the IDEA already requires. If a child were denied
enrollment in the school designated as their
placement, the State (and local educational agency)
would be in violation of the IDEA. As such, the IEP
preference allows Colorado to provide “full educational
opportunity” by permitting schools to reserve spots for
children with IEPs “to ensure conformity with obligations incurred pursuant to the [IDEA].” 8 COLO. CODE
REGS. 1404-1 § 4.109(A)(3).
Amici urge the Court to reject Petitioners’
arguments and uphold the rights of disabled students.
29
Respectfully submitted,
MATTHEW A. SIMONSEN
Counsel of Record
GRATA LAW AND POLICY LLC
4845 Pearl E. Cir. Suite 101
Boulder, CO 80301
(303) 535-3533
matt@gratalegal.com
JINNY KIM
PETER TALKINGTON
DISABILITY RIGHTS
EDUCATION & DEFENSE
FUND
AMY FARR ROBERTSON
FOX & ROBERTSON, P.C.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.