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The families of 4-year-olds in Colorado’s state-funded preschool program can choose from dozens of religious preschools, alongside hundreds of other public and private options.
But participating preschools have to agree not to discriminate, including on the basis of sexual orientation or gender identity.
That was a problem for two Catholic preschools in the Denver suburbs. They said admitting gay or transgender children, or children with gay or transgender parents, would conflict with their Catholic beliefs on sex and gender. The parishes that ran the preschools sued, rather than agree to Colorado’s non-discrimination rules.
The dispute will soon be heard by the conservative-dominated U.S. Supreme Court, the latest in a series of cases challenging traditional understandings of church-state separation. Oral arguments in St. Mary Catholic Parish v. Roy are set for Nov. 3. The court’s decision could have implications well beyond Colorado.
Between publicly funded preschool programs and state voucher programs, more public money than ever before is flowing to private religious schools. This case asks whether states can put conditions on that public money to ensure all students have access or whether doing so infringes on the First Amendment rights of religious schools.
Some advocates worry a Supreme Court ruling in favor of the preschools could harm children from LGBTQ families and open the door to the legal exclusion of other vulnerable groups in the name of religious liberty.
“If the preschools prevail, the state is going to be forced to fund that type of discrimination,” said Patrick Cremin, a lawyer with the Education Law Center who co-signed an amicus brief in support of Colorado’s position.
Preston Green, a professor of educational leadership and law at the University of Connecticut who also signed the amicus brief, said he can imagine eventual challenges by religious schools that don’t believe in miscegenation or racial integration.
He believes the ultimate goal of what he describes as a decades-long project by think tanks and lawyers is not just public funding for religious institutions, “but to have funding without strings attached.”
Nick Reaves, an attorney from The Becket Fund for Religious Liberty, which is representing the Catholic preschools and other plaintiffs in the case, said harm to LGBTQ children or families is speculative.
“Colorado hasn’t pointed to actual families who oppose the teachings of the Catholic Church but want to send their kids to a Catholic preschool,” he said.
In contrast, he said Colorado’s policy has already put actual Catholic families in a bind: Pay tuition for a Catholic preschool that matches their values or save money by sending their kids to a state-funded preschool they don’t like as much.
Lisa Sheley, one of the parent plaintiffs in the case, testified during the lower court trial that her family would have saved about $4,700 a year if the preschool her then 4-year-old attended was part of Colorado’s state-funded program.
“Obviously with inflation, everything is extremely expensive, but even more so for a family of eight,” she said. “So, anything we could save would be extremely helpful.”
Case highlights tension between religious freedom, LGBTQ rights
Over the last decade, a trio of school-related Supreme Court decisions have paved the way for religious schools to gain greater access to public funding.
The most recent, Carson v. Makin, concerned a Maine program that for years paid for students to attend a secular private school if there wasn’t a nearby public school available. Then two families that wanted to send their children to religious schools sued and won.
In its landmark 2022 Carson decision, the high court ruled that religious schools can’t be excluded from publicly funded programs if secular private schools can participate. But the court didn’t clearly address a question central to the Colorado preschool lawsuit and another case involving K-12 schools in Maine: Can states require religious schools to agree to non-discrimination rules in order to participate?
As Colorado prepared to launch its universal preschool program four years ago, it invited religious preschools to join. Dozens did so and agreed to state rules barring discrimination based on eight characteristics, including sexual orientation and gender identity.
The Catholic preschools at the center of the case — St. Mary Catholic Virtue School in Littleton and Wellspring Catholic Academy in Lakewood — wanted to join but asked for an exemption from the sexual orientation and gender identity rules. The state refused and the Catholic parishes sued.
Two lower courts ruled against the preschools.
School choice advocates are closely watching the case. In an amicus brief in support of the preschools, EdChoice Legal Advocates said that Colorado showed “denominational favoritism” by letting in preschools whose beliefs align with their rules, but not the Catholic preschools. But more broadly, the group argued, school choice programs should counter the conformity imposed by government regulations.
“Education freedom requires education pluralism,” the attorneys wrote. “It does parents little good to have a choice among multiple versions of the same educational content for their children.”
Reaves said the Carson ruling doesn’t just apply when states explicitly bar religious groups, but also when it makes rules that religious groups can’t reasonably follow.
“I think what we’re seeing is that states are trying to find ways to keep the religious schools out without saying the word religion,” he said. “It’s not about the words you use. It’s whether you’re excluding religious schools on account of their religious exercise.”
But Brian Dittmeier, director of LGBTQI+ Equality at the National Women’s Law Center, noted that Colorado’s rules don’t limit what religious preschools can teach.
“This whole case is simply about admissions,” he said.
Dittmeier said parents often select religious preschools not to match their faith but because the schools are close to their home or job or meet other needs.
In some communities, LGBTQ families might not have many choices. The National Women’s Law Center’s amicus brief points to rural Wiggins on Colorado’s Eastern Plains that only has a few preschools. The director of a Baptist preschool there said “almost all of our enrolled families are not actually members of our church.”
Supreme Court precedent allows some regulation
In a 1990 ruling in an Oregon case called Employment Division v. Smith, the Supreme Court said laws may incidentally hinder religious practice as long as they apply to everyone and don’t target a specific religion or religious practice.
Colorado and its supporters say the Smith precedent should apply in the preschool case, because the state’s non-discrimination rules applied to all participating preschools and don’t single out faith-based schools.
But lawyers for the Catholic preschools argue Colorado’s non-discrimination rule does not meet the bar established in Smith — and that the 1990 decision needs another look.
The plaintiffs say that other preschools in the program are allowed to give preferences to certain students and exclude others. They point to Head Start preschools, which have strict income limits, and programs that specifically serve students with disabilities,
Preschools also are allowed to prioritize other categories of students, including siblings of current students or children of preschool employees.
Colorado leaders have responded in court briefs by saying the state’s non-discrimination rules mean preschools can’t deny admission to children because they’re disabled or from low-income families, but don’t “protect children without disabilities or children from high-income families.”
Derek Black, a law professor at the University of South Carolina who also signed an amicus brief filed in support of Colorado, said it’s routine to provide special services to students with special needs. The practice shouldn’t be viewed as discriminating against students who don’t fall into those groups,” he said.
“Our understanding for at least the last half century is that some kids, based upon low income status in particular, need help that no other kids need,” he said.
Ann Schimke is a senior reporter at Chalkbeat covering early childhood issues and early literacy. Contact Ann at aschimke@chalkbeat.org.