Judge issues ruling in Catholic lawsuit over Colorado universal preschool program

Rows of colorful cups that hold crayons.
Colorado’s $322 million universal preschool program, launched last August, provided 10 to 30 hours per week of free preschool to 40,000 4-year-olds this past school year. (Jimena Peck for Chalkbeat)

A federal judge Tuesday rejected most of the claims made by two Colorado Catholic preschools that sued the state of Colorado over its universal preschool program.

However, it’s not clear what impact the ruling will have given that the state recently removed a nondiscrimination clause that was at the heart of the lawsuit from the agreement that universal preschool providers must sign to participate this upcoming school year.

Two Catholic parishes that run preschools — St. Mary’s in Littleton and St. Bernadette’s in Lakewood — argued that the nondiscrimination clause prevented their participation in the universal preschool program because signing it would conflict with their beliefs.

The clause said that preschool providers could not discriminate “against any person” on the basis of sexual orientation or gender identity, among other reasons. The Catholic parishes argued that enrolling preschoolers from LGBTQ families would conflict with their religious beliefs.

Colorado’s $322 million universal preschool program, launched last August, provided 10 to 30 hours per week of free preschool to 40,000 4-year-olds this past school year. Families could pick preschool classrooms in public schools, private child care centers, state-licensed homes, or faith-based programs. Of the 1,900 providers who participated, 40 were faith-based.

Because the two Catholic parishes refused to sign the state agreement, the 4-year-olds who attended the parishes’ preschools did not receive any free hours. The parishes argued at trial in January that the nondiscrimination clause “effectively imposed a special tax on religious preschools, whereby families who send their children to Catholic preschools continue to pay full freight,” according to the ruling.

But Senior U.S. District Judge John L. Kane disagreed with the Catholic parishes’ legal arguments. “Nothing in the text” of the nondiscrimination clause “indicates that religious discrimination is its object,” Kane wrote in the 101-page ruling.

However, Kane did side with the Catholic parishes on another, more narrow aspect of the nondiscrimination clause. Explaining it requires some backstory.

When the state was developing the universal preschool program, it formed several working groups to provide feedback. One working group was made up of faith-based preschool providers, who “raised concerns about the inclusion of sexual orientation” in the nondiscrimination clause, according to Kane’s ruling.

Because of those concerns, the state created a so-called “congregation preference” within the universal preschool program. It allows faith-based preschool providers to reserve all or some of their preschool seats for members of their congregation, which is broadly defined.

At trial, Dawn Odean, the director of Colorado’s universal preschool program, testified that the congregation preference “would allow a Catholic provider to reserve seats for ‘Catholics’ and allow a Lutheran provider to reserve seats for ‘Lutherans,’ and the Catholic provider ‘wouldn’t have to provide an opportunity to enroll Lutherans,’” according to Kane’s ruling.

In his ruling, Kane found the congregation preference problematic. He wrote that the state, which was the defendant in this case, “cannot have it both ways.”

“In their attempts to include and accommodate faith-based providers, Defendants have created an unworkable scheme that breaches the appropriate limits on state power,” he wrote.

Through the congregation preference, he wrote, the state “enable(s) faith-based providers to effectively discriminate on the basis of religious affiliation” but at the same time denied the two Catholic parishes an exemption from the nondiscrimination clause.

Because of that, Kane issued an injunction allowing the two Catholic parishes to participate in the universal preschool program without having to agree to the part of the nondiscrimination clause about religion. Kane’s ruling would have still required them to agree to the parts of the clause prohibiting discrimination based on sexual orientation and gender identity.

But before Kane even issued his ruling, the state decided to remove the nondiscrimination clause altogether from the universal preschool provider agreement for next school year, 2024-25. The new agreement does not mention religion, sexual orientation, or gender identity at all. It simply says that preschool providers must comply with a state law that says state-funded programs cannot be denied to people based on their immigration status.

Lawyers for the Catholic parishes declared victory in a press release but also mentioned the possibility that Kane’s decision “may be appealed by any party.”

“Of course a Catholic school shouldn’t be punished for caring about its students’ religion,” Nick Reaves, counsel at Becket, a nonprofit law firm that specializes in religious clients, said in the press release. He said Colorado “richly deserves this injunction.”

A spokesperson for the Colorado Department of Early Childhood, which administers the universal preschool program and whose employees were named as defendants in the lawsuit, said the department “can’t comment on active or pending litigation.”

This lawsuit is one of several filed against the state over the new universal preschool program. One lawsuit filed by a Christian preschool in Chaffee County argues that the nondiscrimination provision could impede hiring. Another filed by several school districts deals with services and funding for preschoolers with disabilities and other high-needs students.

Melanie Asmar is the bureau chief for Chalkbeat Colorado. Contact Melanie at masmar@chalkbeat.org.

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