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Judge: Colorado must support religious preschool

Court affirms Christian school’s right to participate in a universal pre-K program

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Judge: Colorado must support religious preschool

A Colorado judge issued a preliminary ruling on Oct. 20, allowing a religious preschool to remain in the state’s new universal preschool program.

Darren Patterson Christian Academy in Buena Vista, Colo., filed a lawsuit in June, arguing that the program’s nondiscrimination requirements barred the school from participating as long as the school continued to require its employees to adhere to its religious beliefs or refused to change its restroom or pronoun-use policies.

Judge Daniel Domenico, a 2019 President Trump appointee to the Colorado district court, granted the school’s request for the preliminary ruling after concluding the school is likely to succeed in its lawsuit. The academy can participate in the state’s universal preschool program without compromising its beliefs while the lawsuit proceeds, the court held. Judge Domenico wrote that the “exclusion of a preschool is inherently anti-universal, and denying participation based on one’s protected beliefs or speech is not equitable.”

Colorado enacted its universal preschool program in 2022. The law required the state to provide families with access to preschools free of charge for their 4-year-olds, starting with the 2023-24 school year. The program, developed by the Colorado Department of Early Childhood, asks parents to list which participating preschools in the area they prefer for their children. It then matches each child to a school on the parents’ lists. Each child is eligible for at least 15 hours per week of state-funded tuition under CDEC regulations. The state makes monthly payments directly to the participating schools for each enrolled child.

The problem that religious preschools face, according to two lawsuits filed by Darren Patterson Christian Academy and other schools, is that the state prohibits discrimination against any person on the basis of religion, sexual orientation, or gender identity. State regulations also list “deliberately misusing an individual’s preferred name, form of address, or gender-related pronoun” as “prohibited conduct.” When combined, the state’s nondiscrimination provisions prohibit school policies that consider religion, sexual orientation, or gender identity when they employ staff or operate their schools.

A statewide coalition of religious private schools wrote to Gov. Jared Polis earlier this year, arguing that religious preschools cannot participate in the universal preschool program without compromising their religious beliefs. They asked him to intervene and provide an exemption from requirements infringing upon their religious liberties so that all religious preschools could participate in the program.

The state, however, implemented the program without offering an exemption. According to the lawsuits, CDEC Executive Director Lisa Roy stated that she could not create an exemption for religious providers.

In its lawsuit, Darren Patterson Christian Academy states that the school’s aim is also evangelistic. All children are welcome at the school, regardless of religious background or beliefs, but only if their families agree to support and comply with the religious policies of the school. Academy employees must also be “born-again Christians” and teach and model the gospel of Jesus Christ in all school activities.

After it registered with the state as a preschool provider, the academy learned about the state’s nondiscrimination requirements. That meant the school would no longer be able to employ only Christians who share its faith and goals, and it would have to change its policies for student dress codes or use of restrooms, pronouns, or locker rooms.

The academy, represented by Alliance Defending Freedom, asked the federal district court for the exemption originally sought directly from the state. It also asked the court for a preliminary ruling to let it remain in the preschool program, which Domenico granted, until the court ultimately decides the lawsuit.

The Becket Fund for Religious Liberty filed a similar lawsuit in August for a group of Denver-area plaintiffs: the St. Mary Catholic Parish, the St. Bernadette Catholic Parish, the Archdiocese of Denver, and two parents, Daniel and Lisa Sheley. The Sheleys have a child who attends St. Mary’s preschool.

The lawsuit contends that the state’s “nondiscrimination” requirements actually discriminate against religious families and schools because of their beliefs and practices on marriage, sexual orientation, and gender identity.

The state’s requirements directly contradict those Catholic teachings. Because Catholic schools cannot agree to compromise their religious beliefs, their access to the state’s universal educational benefits is categorically blocked.

The lawsuit also asserts the state’s policy creates significant inequities. The Archdiocese of Denver provides education for over 1,500 preschoolers each year in 36 preschools, according to the lawsuit. Excluding all Catholic preschools from the program means parents of those students cannot access the state’s educational benefits either, and many of them need financial assistance. Twenty percent of the families who send their children to archdiocesan schools qualify for Colorado’s free and reduced-price school lunch program. At St. Bernadette’s alone, 85 percent of children are on free or reduced lunch plans based on family income.

Parents like the Sheleys lose a significant financial benefit that parents of children in participating schools receive from the universal preschool program. Funds paid by the state amount to roughly $600 per month per child. The Sheleys must pay the full cost of Catholic preschool for their child at St. Mary’s preschool only because the school is ineligible for state tuition reimbursement.

The court has scheduled a three-day trial for this lawsuit starting on Dec. 19. District Judge John Kane, who was appointed to the bench by former President Jimmy Carter in 1977, is assigned to hear the matter.

Nick Reaves, legal counsel at Becket, said the Archdiocese wants a ruling that allows families to choose a school that best fits their children’s needs. “Universal should mean universal,” he said in a news release.

Adele Fulton

Adele is a graduate of the World Journalism Institute, Vermont Law School, and Westmont College. She is an attorney in New Hampshire and lives in New England with her husband.


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