Judge rules Colorado’s preschool program violated schools’ First Amendment religion rights

A view of the Alfred A. Arraj U.S. Courthouse in downtown Denver on May 30, 2023. (Quentin Young/Colorado Newsline)

A federal judge ruled that Colorado’s universal preschool program violated two Catholic preschools’ First Amendment rights when they were denied entry into the program. 

The Archdiocese of Denver and two Catholic preschools alleged in a lawsuit that they were unable to participate in Colorado’s universal preschool program, known as UPK Colorado, because the state will not allow the religious educational institutions to exclude LGBTQ children and parents. 

The St. Mary Catholic Parish in Littleton and the St. Bernadette Catholic Parish in Lakewood both operate preschool programs that were not part of UPK since the state requires providers to accept applicants without regard to the family’s religion, sexual orientation or gender identity. 

The schools applied for public funding through the universal preschool program and were denied when they requested religious exemptions from the statutory equal-opportunity requirement. They claimed their rights under the free exercise clause of the First Amendment were violated by their exclusion. 

U.S. District Court of Colorado Judge John Kane said in his decision released Tuesday that the Colorado Department of Early Childhood excluded the two parishes from receiving a “generally available public benefit” by declining a religious exemption to the non-discriminatory enrollment requirement. However, Kane also concluded the UPK requirement that prohibits discrimination against LGBTQ families is valid. 

“The Department has allowed faith-based providers to deny children and families equal opportunity based on their religious affiliation, or lack thereof, and has cited no compelling interest for permitting that discrimination while denying Plaintiffs’ request for a related exemption,” Kane wrote in his decision. 

The parishes require that parents who send children to their preschools accept Catholic beliefs on issues like life, marriage and human sexuality. That means they consider whether parents or a potential enrollee are in a same-sex relationship or transgender, and they prioritize admission for Catholic families. UPK rules, however, require participating preschools to enroll students and families no matter their sexual orientation and gender identity.

The program requirement says that schools must provide all children equal opportunity for enrollment “regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.” 

While Kane concluded that most of the plaintiff schools’ claims “fall short,” their claim related to religious exclusions is where the inclusivity requirement “breaches the appropriate limits on state power.” He also concluded that the ability for religious providers to prioritize members of their own congregation constitutes religious discrimination, and if the state allows this, it must also allow the St. Mary Catholic Preschool and the St. Bernadette Catholic Preschool to enroll in the program. 

“Defendants have failed to establish a compelling interest justifying their denial of an exemption from the religious-affiliation aspect of the equal-opportunity requirement for Plaintiff Preschools,” Kane wrote. “Defendants enable faith-based providers to effectively discriminate on the basis of religious affiliation in their admission of preschoolers but, at the same time, deny Plaintiff Preschools an explicit exemption from the related aspect of the equal-opportunity requirement.”

Because of plaintiff schools’ “partial success” on that claim, Kane granted permanent injunctive relief to the schools. This means that because the state has allowed religious schools to prioritize students within their congregation, they must also grant a religious exemption to the two plaintiff preschools. 

“Of course a Catholic school shouldn’t be punished for caring about its students’ religion,” said Nick Reaves, an attorney with Becket Fund for Religious Liberty, a nonprofit public interest law firm defending the plaintiffs in the case. “Colorado richly deserves this injunction, as it did the earlier one.” 

The lawsuit was filed against Lisa Roy, the executive director of the Colorado Department of Early Childhood, and Dawn Odean, the director of Colorado’s Universal Preschool Program, in August 2023 in the U.S. District Court of Colorado. Early last year, Roy declined to give any exemptions to the non-discriminatory enrollment requirement to a statewide coalition of religious preschool providers, which included the archdiocese.

Kane said in his 101-page decision that the goal of the equal-opportunity requirement is not to restrict practices based on religious beliefs, and that faith-based providers were intended to be included in the program. Other preschools, including Catholic Charities preschools run by the archdiocese, are included in the program. 

A spokesperson for CDEC said the department cannot comment on active or pending litigation.

Either party can appeal Kane’s decision to the U.S. Court of Appeals.

Universal preschool providers are reimbursed by the state for at least 15 hours of preschool per eligible child they enrolled during the 2023-24 school year. 

The initial lawsuit as well as the judge’s decision make several references to the 303 Creative v. Elenis case, in which the U.S. Supreme Court held that a Colorado website designer could discriminate against LGBTQ couples, as well as the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, which involved a cake shop owner who denied a same-sex couple a wedding cake based on religious beliefs. Kane said plaintiffs made regular reference to those cases despite factual differences. 

The universal preschool program is subject to another lawsuit involving a school already enrolled in the program whose policies conflict with UPK requirements as well as the state’s anti-discrimination law. A judge granted a preliminary injunction in that case, meaning the school can remain in the program and receive funding from the state while the lawsuit goes through the legal system.

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