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Preschoolers with LGBTQ parents or who identify as LGBTQ can’t be shut out of religious preschools that are part of Colorado’s state-funded preschool program, a federal appeals court ruled Tuesday.
The decision, which upholds a key part of a lower court decision, represents a major win for the state and a defeat for the two Denver-area Catholic preschools at the center of the case.
Tuesday’s decision provides the latest answer to a question being asked in several cases percolating in state and federal courts: Can private religious schools that accept public education dollars refuse to enroll certain kids based on religious principles?
Along with the 10th Circuit Court of Appeals, a Maine federal district court and a Utah state court are among those who have said no.
It’s possible the U.S. Supreme Court could eventually weigh in, though it’s not clear which case will advance to the high court.
In its 54-page ruling, the 10th Circuit Court of Appeals wrote that it found no proof that the Colorado Department of Early Childhood took actions that “evidence religious hostility” as the two Catholic preschools claimed.
The state’s universal preschool program “went to great effort to be welcoming and inclusive of faith-based preschools’ participation,” the decision said.
The three-judge panel also found that the early childhood department, which runs the preschool program, had applied the state’s nondiscrimination policy in a neutral way to both religious and non-religious preschools.
The policy bars preschools in the universal preschool program from discriminating based on a variety of factors, including sexual orientation and gender identity. State officials cited the policy in denying the Catholic preschools a waiver that would have allowed them to keep LGBTQ children or children from LGBTQ families from enrolling if the preschools had joined the state-funded preschool program.
In a statement Tuesday, Gov. Jared Polis said, “We are building a Colorado for all, where every student is free from discrimination and this voter-approved initiative continues to enroll approximately 70% of all eligible four-year-olds each school year and many faith based and secular providers are operating terrific preschools that serve parents and children well.”
Tuesday’s ruling essentially upholds the status quo in the universal preschool program, meaning that participating preschools can’t shut out LGBTQ children or children with LGBTQ parents.
The three appeals court judges who ruled Tuesday were Gregory Phillips, Veronica Rossman, and Richard Federico. Phillips was appointed by President Barack Obama, and Rossman and Federico were appointed by President Joe Biden.
Nick Reaves, senior counsel at The Becket Fund for Religious Liberty, which is representing the Catholic preschools in the case, sent Chalkbeat a short statement about the ruling.
“Colorado is punishing religious schools and the families they serve for following their faith. The Tenth Circuit’s decision allows the state’s anti-religious gamesmanship to continue. We will keep fighting to ensure that every preschooler in Colorado can access quality, affordable education.”
Conflict arose as state preschool program rolled out
The Colorado case began in 2023 as the state was launching its new universal preschool program, which provides tuition-free preschool to 4-year-olds statewide. The $349 million program serves more than 40,000 children and allows families to choose from public, private, or religious preschools.
Of more than 2,000 preschools participating in the program this year, about 40 are religious.
St. Mary Catholic Virtue School in Littleton and Wellspring Catholic Academy in Lakewood wanted to join the program when it started, but didn’t want to admit LGBTQ children or children from LGBTQ families.
They asked for an exemption from state rules banning discrimination based on sexual orientation and gender identity, but the Colorado Department of Early Childhood refused. The two preschools never joined the program, and in August 2023, the parishes that ran the preschools sued the state. (Wellspring Catholic Academy closed in December 2024.)
In June 2024, a federal district court judge appointed by President Jimmy Carter largely ruled in the state’s favor.
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.”
The parishes quickly appealed.
Unfolding alongside the Catholic preschool case is a separate lawsuit over universal preschool brought by an evangelical Christian preschool in southern Colorado. Unlike the Catholic preschools, that school, Darren Patterson Christian Academy, joined the universal preschool program when it launched.
While officials there never sought to keep LGBTQ children or families out, their lawsuit said state non-discrimination rules could force the preschool to hire employees who don’t share its faith or to change school policies related to restrooms, pronouns, and dress codes.
In February, a federal judge appointed by Donald Trump ruled in favor of Darren Patterson Christian Academy.
The state appealed the ruling in May. The case is ongoing.
Ann Schimke is a senior reporter at Chalkbeat, covering early childhood issues and early literacy. Contact Ann at aschimke@chalkbeat.org.
