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By Melanie Asmar, Chalkbeat
Lawyers for the state of Colorado and for a pair of Catholic parishes each made their case Tuesday before a federal appeals court in an ongoing lawsuit over whether Catholic preschools must abide by state non-discrimination rules in order to receive state funding.
The case is arguably the most high-stakes of the lawsuits that have been filed against Colorado’s universal preschool program, which launched in August 2023. If the Catholic parishes win the appeal, it’s possible Colorado children could be shut out of some publicly funded preschools because they or their parents identify as LGBTQ.
Nick Reaves, an attorney representing the Catholic parishes, argued that Colorado has “barred the door to the Archdiocese” participating in the state program, which provides 10 to 30 hours per week of free preschool to the state’s 4-year-olds.
The Catholic parishes have said they can’t participate because the state’s non-discrimination rules could force them to enroll preschoolers from LGBTQ families in conflict with their beliefs and in violation of their First Amendment right to free exercise of religion.
“If Colorado has made virtually every preschool in the state free except a handful of religious preschools,” Reaves told a three-judge panel in Denver on Tuesday, “we are talking about discrimination or a lack of neutrality toward religious preschools.”
But Colorado Deputy Solicitor General Helen Norton argued that the state’s non-discrimination rules apply to all preschools in the state-funded program — religious and secular — and therefore, the rules don’t discriminate against religious preschool providers.
The Catholic parishes, she said in court Tuesday, “ask this court to do what no appellate court has ever done: Create a First Amendment right for publicly funded schools to exclude or expel children because of the children’s or parents’ protected status.”
The three judges who heard the case in the 10th Circuit Court of Appeals — Judge Gregory Phillips, Judge Veronica Rossman, and Judge Richard Federico — didn’t immediately rule.
Colorado’s universal preschool program is serving nearly 70% of the state’s 4-year-olds in about 2,000 participating preschools this year. That includes 40 religious preschools, five of which are operated by Catholic Charities of Denver, the charitable arm of the Archdiocese of Denver.
Lawyers for the two Catholic parishes at the center of the lawsuit have said that the Catholic Charities preschools were allowed to participate because they have a different mission than the rest of the Archdiocese preschools, which is to serve the poor.
The lawsuit began in August 2023, when St. Mary in Littleton and St. Bernadette in Lakewood sued the state. They argued that rules barring discrimination based on sexual orientation and gender identity prevented their preschools from joining the new universal preschool program.
U.S. District Court Judge John L. Kane largely ruled against the Catholic parishes in June 2024. He wrote of Colorado’s non-discrimination rules: “The purpose of the requirement is not to invade religious freedom but to further the implementation of a strongly embraced public value.”
Lawyers for the preschools promptly appealed.
In court Tuesday, Reaves said Catholic preschools are being harmed by the status quo. Enrollment is dropping, he said, and one preschool has closed. He didn’t name which one, but Wellspring Catholic Academy, the preschool associated with St. Bernadette, closed in December.
Reaves argued that Colorado’s universal preschool program allows enrollment exceptions based on other protected characteristics, such as income, by allowing the participation of Head Start preschools that exclusively serve low-income families.
“We’re not asking Colorado to kick out the Head Start programs,” Reaves said. “All we’re saying is if you give those preferences, you have to consider religion.”
But Norton disagreed with Reaves’ characterization. To interpret the participation of preschool programs that save seats for children from low-income families as deviating from the non-discrimination rules would be turning the meaning of those rules on its head, she said. The only preferences the universal preschool program currently allows are based on factors such as whether a preschooler is the child of a teacher or the sibling of a current student.
Judge Phillips asked Norton what would happen if the court ruled against the state and struck down all of those preferences. In that case, Norton said, 4-year-olds applying to the program would be matched with preschools based on the program’s “default algorithm,” which she said would match students randomly or on a “first come, first served” basis.
Chalkbeat senior reporter Ann Schimke contributed to this report.
Melanie Asmar is the bureau chief for Chalkbeat Colorado. Contact Melanie at [email protected].
