Catholic preschools to appeal ruling in Colorado universal preschool case

Bird's eye view of two preschool students playing.
Two Denver-area Catholic preschools will appeal a ruling in their lawsuit over Colorado's universal preschool program. (Jimena Peck for Chalkbeat)
Inside Colorado's free preschool initiative

Two Catholic preschools will appeal a June federal court ruling that would prevent them from barring children from LGBTQ families if they choose to participate in Colorado’s state-funded preschool program.

Lawyers for the preschools filed the notice of appeal in late June, about three weeks after Senior U.S. District Judge John L. Kane rejected most of the claims the preschools made when they sued the state of Colorado last August.

The appeal to the Denver-based 10th U.S. Circuit Court of Appeals means it will take longer to get a final answer to a key question: Can religious preschools exclude children from LGBTQ families when the state is footing the tuition bill?

Currently, the answer is no, but a higher court may rule differently.

The two preschools at the center of the case are run by St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood. Neither participated in the first year of Colorado’s universal preschool program last year because preschool leaders said they couldn’t sign off on the state’s non-discrimination rules, which prohibit discrimination based on religion, sexual orientation, and gender identity, among other characteristics. Lawyers for the preschools argued during a January trial that enrolling preschoolers from LGBTQ families would conflict with their religious beliefs.

Colorado’s $322 million universal preschool program, which is funded partly with a nicotine tax, provides 4-year-olds with 10 to 30 hours per week of tuition-free preschool. Families can pick classrooms in public schools, private child care centers, state-licensed homes, or faith-based programs. Of the 1,900 preschools that participated last school year, 40 were faith-based.

Although Kane ruled in the state’s favor on most of the claims, he agreed with the Catholic preschools on one: That religious preschools can reserve seats for students from their congregations. As part of his decision, he 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.

Becket, the law firm representing the Catholic preschools, focused narrowly on that injunction in its publicity about Kane’s ruling. Its June 4 press release on the decision was headlined, “Federal court blocks Colorado’s discrimination against Catholic preschools.”

But it wasn’t the win the preschools wanted.

Asked about the appeal, Nick Reaves, senior counsel at Becket, said in a statement, “While the district court correctly recognized that the state has no right to prevent Catholic schools from considering religious affiliation in their enrollment decisions, the court still did not permit them to participate in the [universal preschool] program while operating consistently with their Catholic mission.”

Ian McKenzie, a spokesperson for the Colorado Department of Early Childhood, said the state doesn’t comment on pending litigation.

Ann Schimke is a senior reporter at Chalkbeat, covering early childhood issues and early literacy. Contact Ann at aschimke@chalkbeat.org.


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