The U.S. Court of Appeals for the Tenth Circuit ruled Sept. 30 against two Colorado Catholic parish preschools seeking to be included in the state’s universal preschool program without having to sign a nondiscrimination requirement that violates their sincerely held religious beliefs.
“The government is punishing families who choose to send their kids to Catholic schools,” The Becket Fund for Religious Liberty, which is serving as counsel for the plaintiffs, stated on its webpage about the case. “The State didn’t have to create a program that provides free preschool tuition to families at all private and public schools. But what the government cannot do is use this program to discriminate against families based on their choice of a religious school.”
“The Supreme Court has three times in the past six years affirmed that the government cannot exclude some people from public benefits because of their religious beliefs or exercise,” the organization continued. “Families should be free to choose to send their kids to a Catholic preschool without forfeiting a public benefit — especially one the government has described as ‘universal.’”
Colorado’s Department of Early Childhood established a universal preschool program (abbreviated UPK) in 2022, and all participating schools must sign a nondiscrimination agreement, according to the Sept. 30 ruling. According to Becket, the UPK provides all preschoolers with 15 hours of free education per week at a private or public school chosen by the parents. The UPK was implemented through the Early Childhood Act, passed by the Colorado General Assembly. The General Assembly tasked the department’s executive director with determining the “uniform quality standards for all preschools funded through UPK” and must include a nondiscrimination requirement, according to the ruling.
The requirement stipulates that participating schools must “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,” the ruling states.
The plaintiff parish preschools, St. Mary Catholic Parish’s and St. Bernadette Catholic Parish’s, contend that the nondiscrimination requirement conflicts with their sincerely held beliefs.
The plaintiff parish preschools “hold a sincere belief that Catholic teaching requires them to consider the sexual orientation and gender identity of a student and their parents before admitting them to a Catholic school,” the ruling states. “The Archdiocese does not recognize same-sex relationships or transgender status, and it states that enrolling a child of same-sex parents in a Catholic school is ‘likely to lead to intractable conflicts.’ The Parish Preschools do not categorically ban the children of same-sex parents, but Wellspring has declined to admit an elementary school student in the past for this reason.’”
Becket claims the department “categorically excluded all Archdiocesan Catholic preschools from participating” through the stipulated funding restrictions. The Sept. 30 court document states that in 2023, the archdiocese directed its preschools, with a few exceptions, to not register with UPK out of concern for the nondiscrimination requirement. Several archdiocesan preschools that work with low-income families and have Catholic Charities affiliations were permitted to register, however, with the archdiocese sending a letter to Colorado Gov. Jared Polis requesting religious exemptions for them from the nondiscrimination requirement.
Lisa Roy, the executive director of the department, replied that they could not be given exemptions because the requirement “is enshrined in state law,” according to the Sept. 30 ruling.
Following this, the parish preschools sued Roy and the director of the state’s Universal Preschool Program in their official capacities, seeking an injunction preventing the nondiscrimination requirement from being enforced on them and claiming that their First Amendment rights are being infringed upon.
The other plaintiffs in the lawsuit are the Archdiocese of Denver, and parents Lisa Sheley and Daniel Sheley, who hope to enroll their children in a UPK-participating preschool, according to the ruling.
Upholding a district court’s decision to side with the defendants, the appeals court stated that it has not found the department to have violated the parish preschools’ free exercise rights.
“What matters is not whether individuals are given specific options, but whether the challenged policy is applied equally to everyone and all schools,” the ruling stated. “In other words, could a state official approve the Parish Preschools’ requested religious exemption without violating state law? Here, the answer is no. No preschool participating in UPK is allowed to take sexual orientation or gender identity into account when making admissions decisions, for any reason.”
Concluding the 54-page ruling, the court stated that the state’s universal preschool program “went to great effort to be welcoming and inclusive of faith-based preschools’ participation,” and that the nondiscrimination mandate is “in harmony with the First Amendment and does not violate the Parish Preschools’ First Amendment rights.” NPR News reports that the case is ongoing and that it may be an issue that the U.S. Supreme Court eventually will have to weigh in on.
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