Federal judge rules Colorado’s Catholic preschools can consider religion for enrollment in state program, but can’t exclude LBGTQ families

Hart Van Denburg/CPR News
Education bric-a-brac in a preschool classroom in Aurora on August 15, 2023.

A federal judge ruled Thursday that Catholic preschools participating in the state’s universal preschool program can consider religion when enrolling families. The ruling, however, does not allow preschool providers to discriminate on the basis of other protected classes such as sexual orientation and gender identity, rejecting most of the claims made by two Catholic preschools that filed a lawsuit against the state last year.

Colorado’s universal preschool law allows schools to give preference to lower-income families and also allows religious preschools to give seat preference to members of their congregations, so it follows that they can also determine whether to accept families based on a child or family’s religion, according to the ruling.

In launching the universal preschool program, providers had to follow Colorado’s non-discrimination laws in order to receive funding and participate in the program. That means providers couldn’t enroll or deny families based on sexual orientation, religious affiliation or gender identity.

The Archdiocese of Denver and two of its parishes that run preschools — St. Mary in Littleton and St. Bernadette’s in Lakewood — filed a lawsuit against the state in federal district court last year. They claimed the non-discrimination condition violated their religious liberty by requiring them to hire LGBTQ+ educators or enroll LGBTQ+ families. They argued that that conflicted with their religious beliefs.

Colorado’s universal preschool program provides funding for 15 hours per week of free preschool to over 40,000 families. It includes school-based preschools, family home providers and private preschools including faith-based institutions. Last year, there were 39 faith-based providers.

However, the two Catholic preschools named in the lawsuit didn’t join the program, meaning those families with children enrolled in their preschools couldn’t obtain free preschool subsidized by the state. In the Archdiocese’s initial complaint, it claimed the state illegally denied its 26 preschools admission to the UPK program due to its religious beliefs against admitting LGBTQ+ people and families to their schools.

In a 101-page opinion, the court ruled that the state “provided no compelling interest” for excluding Catholic preschools from considering religious affiliation in enrollment. It ruled the state “created an unworkable scheme that breaches the appropriate limits on state power” and violates the free exercise clause of the First Amendment. 

“Defendants cannot have it both ways ... They cannot contend that the congregation preference does not apply to conduct that is necessarily religious, while also arguing that the preference ‘is available only to religious providers,’” wrote Judge John L. Kane.

Kane issued an injunction that allows the two Catholic parishes to participate in UPK without agreeing to the state’s nondiscrimination clause — on the basis of religion only.

But the ruling also means a religious preschool can’t shut out a child or family on the basis of sexual orientation, gender identity, race and ethnicity, and other protected characteristics such as income level and disability.

For example, a preschool couldn’t exclude a family from enrolling if a family member identifies as LGBTQ+, nor for reasons of gender identity.

Further, the state recently removed the nondiscrimination clause from the agreement providers must sign to participate in universal preschool, which was at the center of the dispute. State officials say they scrapped the clause and any reference to religion, sexual orientation or gender identity because it was duplicative of what’s already in Colorado’s UPK law.

Plaintiffs see the ruling as a victory.

“Of course, a Catholic school shouldn’t be punished for caring about its students’ religion,” said Nick Reaves, counsel at the Becket law firm, which represented the plaintiffs. “Colorado richly deserves this injunction.”

In a statement, the Colorado Department of Early Childhood said it cannot comment on active and pending litigation.

It’s unclear whether either side will appeal the decision to the U.S. Court of Appeals in Denver.