A federal appeals court has ruled that a Colorado law that gives taxpayer funding to preschools as long as they don’t discriminate on the basis of race, religion or sexual orientation is legal.
Colorado passed a law establishing free preschools in 2022, and it took effect a year later. Under the law, young children can attend a half-day of preschool at no cost to their parents.
Religious preschools can take part in the program, known as UPK (“universal pre-kindergarten”), but they must follow the same rules imposed on all preschools and are not allowed to discriminate. The state has conditioned the aid on compliance with an “equal opportunity” requirement that eligible children be permitted to enroll in the program and receive services regardless of certain characteristics, including sexual orientation and gender identity.
The Roman Catholic Archdiocese of Denver sued, arguing that it should be allowed to take public funds and still refuse admission to children whose parents are gay and deny admission to children who are transgender.
The archdiocese was represented in court by the Becket Fund, a Christian Nationalist group that has worked in court for decades to weaken church-state separation. Becket attorneys argued that by enforcing non-discrimination rules, the state had placed a financial hardship on the archdiocese.
The 10th U.S. Circuit Court of Appeals rejected the argument, and in a ruling issued Sept. 30, upheld the state’s non-discrimination policy, reported Religion Clause blog.
“The Department did not exclude faith-based preschools from participating in [the program],” the court observed. “Indeed, they welcomed and actively solicited their participation. The only relevant limitation on any preschool’s participation is the nondiscrimination requirement, which applies to all preschools regardless of whether they are religious or secular. Thus, the inclusion of religious schools as welcome participants in Colorado’s UPK program distinguishes this case from Supreme Court decisions where the plaintiffs were excluded from participation based upon their religious exercise and status.”
The court noted that 40 religious preschools take part in the program and added that these schools “may use those funds to educate students on matters of faith. The restrictions imposed by the nondiscrimination requirement universally cover enrollment policies and conduct, but they are not a targeted burden on religious use.”
In October of 2024, Americans United’s legal team filed a friend-of-the-court brief in the case, arguing that Colorado’s equal-opportunity requirement is religion-neutral and generally applicable, and that religious freedom does not include the right to violate such anti-discrimination policies. (St. Mary Catholic Parish in Littleton v. Roy)