Schools involved in Colorado's universal preschool program can discriminate on the basis of religion, a federal judge ruled Tuesday. However, the judge stopped short of granting schools enrolled in the program the power to discriminate against other protected characteristics, including gender identity and sexual orientation, because of their religious beliefs.
As long as the state allows any faith-based schools enrolled in the program to grant preference to members of their congregation, the Colorado Department of Education program must also allow them to determine admission based on the students' and families' religion, according to a ruling in a lawsuit brought by St. Mary Catholic Parish in Littleton, St. Bernadette Catholic Parish in Lakewood and two parents of a preschool-aged child.
"Under these unique circumstances, the congregation preference singles out faith-based providers and requires them to navigate an untenable situation," U.S. District Judge John Kane wrote in his 101-page ruling. "The congregation preference invites them to reserve seats for members of their 'congregation' such that they are, in effect, denying equal access on the basis of religious affiliation. Faith-based providers cannot tread carefully enough to both take advantage of that preference and also be confident that they will not be investigated for discriminating on the basis of religious affiliation."
Under Kane's ruling, a Catholic preschool could decide to only enroll Catholic students, which was the goal of St. Mary and St. Bernadette.
Denying these two programs the opportunity to do so while allowing other faith-based preschools to maintain a congregation preference — thereby discriminating against other non-congregation religions — violates faith-based schools' free exercise rights, Kane wrote.
"The Department has allowed faith-based providers to deny children and families equal opportunity based on their religious affiliation, or lack thereof, and has cited no compelling interest for permitting that discrimination while denying Plaintiffs' request for a related exemption," Kane wrote.
In a narrow decision, Kane struck down six of the plaintiffs' seven claims, but ruled that the state violated the faith-based preschools' free-exercise rights by allowing schools to give preference to members of their own church.
The two Catholic parishes that filed the lawsuit against the state last August claimed that requiring the preschools to provide equal enrollment opportunity, regardless of how students' and families' identities conflict with the institutions' religious beliefs, violated their free speech rights — a claim Kane dismissed as "entirely without merit" in his Tuesday decision.
The state's universal preschool program is intended to provide every child 15 hours per week of state-funded preschool in the year before they are eligible for kindergarten.
To qualify, preschools cannot discriminate against eligible children or their families based on race, ethnicity, religion, sexual orientation, gender identity, lack of housing, income level or disability, according to the law approved by voters during a 2020 ballot measure.
In his ruling, Kane upheld the state's ability to prevent religious schools from excluding LGBTQ parents, staff and students.
The lawsuit names Lisa Roy, executive director of the Colorado Department of Early Childhood, and Dawn Odean, director of Colorado's Universal Preschool Program, as defendants, according to court records.
Program funding wasn't denied to all faith-based schools — just those that failed to meet the state's non-discrimination requirements — meaning the requirement was neutral and generally applicable, Kane wrote.
For violating the schools' free exercise rights, Kane fined the state $1 in nominal damages.
"Of course a Catholic school shouldn't be punished for caring about its students' religion," said Nick Reaves, counsel at Becket Fund for Religious Liberty, which represented St. Mary and St. Bernadette Catholic parishes. "Colorado richly deserves this injunction, as it did the earlier one."
U.S. District Court Judge Daniel Domenico in October granted a preliminary injunction barring the state from withholding universal preschool funds from or otherwise punishing Darren Patterson Christian Academy in Buena Vista, which requires staff and students to follow policies that are based on biological sex rather than gender identity. That lawsuit, which also names Roy and Odean in their official capacities as defendants, is ongoing.
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