Stay up-to-date on the latest news in early childhood education and development across the U.S. Sign up for Chalkbeat’s free monthly newsletter The Starting Line.
Religious preschools that participate in Colorado’s state-funded preschool program are allowed to reserve seats for members of their congregations. But that may soon change.
State officials have proposed a repeal of the so-called “congregation preference” after a recent federal court decision that highlighted problems with that rule. The judge in that case, which was brought by two Denver-area Catholic parishes that run preschools, said the preference could be used to deny children equal access to preschool based on their religion — a scenario barred by state non-discrimination rules.
The repeal, which a state advisory council approved Thursday with little discussion, is the latest development in the state’s fraught effort to include religious preschools in the popular free preschool program without compromising Colorado’s non-discrimination protections for LGBTQ children and families. The rule change could become legal fodder as the Catholic parishes move forward with an appeal of the judge’s June decision. It’s a case some experts believe could wind up before the U.S. Supreme Court.
The universal preschool program launched in August 2023 and provides tuition-free preschool to nearly two-thirds of the state’s 4-year-olds.
Lisa Roy, executive director of the Colorado Department of Early Childhood, will likely approve the rule change in November and it will take effect in January, just before families start signing up for universal preschool for the 2025-26 school year. The new rule will not affect children attending preschool through the state program this year.
Of about 2,000 preschools participating in the state program, more than 40 are religious programs. A spokesperson for the early childhood department said she couldn’t provide numbers showing how often the congregation preference has been used by religious preschools.
Ironically, it was state officials who originally proposed granting the congregation preference, back when they were planning Colorado’s new universal preschool program. They thought it would help address concerns from some religious preschools who wanted to join the preschool program, but didn’t want to accept LGBTQ students or students from LGBTQ families.
The problem, at least for the Catholic preschools at the center of the lawsuit, was that the congregation preference didn’t satisfy them. The preschools wanted exemptions from non-discrimination rules that covered sexual orientation and gender identity. The state refused to grant that request and the preschools never joined the program.
In August 2023, the two parishes that run the preschools, St. Mary in Littleton and St. Bernadette in Lakewood, sued the state. Nine months later, the federal judge, John L. Kane, largely ruled against them, saying if the Catholic preschools joined the state preschool program, they couldn’t turn away LGBTQ children or families.
But Kane ruled narrowly for the parishes on the question of the congregation preference. He said the state couldn’t “have it both ways” by granting the preference only to religious preschools while saying the preference wasn’t tied to religion. State officials said the congregation preference was meant to let religious preschools serve children they had existing relationships with in their congregations, but wasn’t specifically about religion.
The state’s answer to Kane’s critique was eliminating the congregation preference.
An attorney representing the Catholic parishes in the lawsuit called the proposed rule change disappointing, saying the state previously held out the congregation preference as a critical feature that would allow many religious preschools to join the universal preschool program.
“But it also only further confirms what we already knew — unfortunately, the State seems to think it’s more important to try to make sure Catholic preschools can’t participate than it is to make sure that every Colorado family has access to the school that best meets their needs,” Nick Reaves, an attorney from Becket Fund for Religious Liberty, said in a statement.
“We’re confident the courts will recognize this targeted action for what it is and uphold the right of Catholic schools and families to participate in [universal preschool] consistent with their beliefs.”
No trial date has been set in the appeal.
Ann Schimke is a senior reporter at Chalkbeat, covering early childhood issues and early literacy. Contact Ann at aschimke@chalkbeat.org.