At a time when the U.S. Supreme Court has opened the door to greater public funding for private religious schools, a lower court ruling in Colorado could have big implications for the separation of church and state in education.
At the center of the case are two Catholic preschools in suburban Denver that want exemptions from state non-discrimination rules based on sexual orientation and gender identity. The parishes that run the preschools sued the state last year because they didn鈥檛 want to have to admit LGBTQ children or children from LGBTQ families if the preschools joined Colorado鈥檚 popular new state-funded preschool program.
A federal in the state鈥檚 favor in June. But the preschools are 鈥� and the case could wind up before the U.S. Supreme Court. The Colorado case is one of several unfolding across the country, including in and , that ask whether religious schools are bound by state non-discrimination rules if they join state-funded programs.
If the Catholic preschools win, it鈥檚 possible Colorado children could be shut out of some preschools because of their or their parents鈥� identities.
Brittany, the mother of a 7-year-old transgender girl, choked up as she talked about the lawsuit.
鈥淚t鈥檚 so upsetting that there鈥檚 so much hate for our kids,鈥� she said. 鈥淭hese kids are just kids. They don鈥檛 have a political agenda.鈥�
Brittany鈥檚 daughter Naomi is an art-loving, tree-climbing second grader who enjoys reading 鈥淐aptain Underpants鈥� books and playing pretend with her little sister, who is 4.
The Denver family, who asked that their last name not be used to protect their privacy, is the kind that could be affected by the outcome of Colorado鈥檚 Catholic preschools appeal. And if the case 鈥� or another one like it 鈥� ends up at the Supreme Court, the decision could have a nationwide impact.
Katie Eyer, a law professor at Rutgers University, said, 鈥淭here are so many of these cases that are currently working their way up through the courts,鈥� she said. 鈥淲hether this particular one lands on [the Supreme Court] docket remains to be seen, but it is certainly the type of case that they鈥檝e shown quite a lot of interest in in recent years.鈥�
As Colorado leaders prepared to roll out universal preschool in the fall of 2023, they invited public and private preschools across the state to join the program. Among them were St. Mary Catholic Virtue School in Littleton and Wellspring Catholic Academy of St. Bernadette in Lakewood, the two schools now at the center of the lawsuit.
The 鈥渕ixed delivery鈥� approach 鈥� meaning both public and private schools can participate 鈥� is common in states that fund large preschool programs. In Colorado, it helped ensure there were enough seats available for all of the families that wanted one. This year, about 41,000 4-year-olds are getting half- or full-day tuition-free preschool through the program.
Dozens of religious preschools have joined Colorado鈥檚 universal preschool program, including those with Methodist, Lutheran, Jewish, and Muslim underpinnings. One participating preschool is Catholic: St. Columba Catholic Montessori Preschool in Durango.
Experts say that families choose religious preschools for lots of reasons, ranging from a shared faith to factors such as a convenient location, open slots, and high ratings.
But the most of the 36 preschools it oversees sign off on the state鈥檚 non-discrimination agreement, a requirement to participate.
The big sticking point was the agreement鈥檚 protections for people based on sexual orientation and gender identity. Officials from some religious preschools, including from St. Mary, raised their concerns during regular meetings with state preschool leaders before the program launched.
That鈥檚 when state leaders mentioned an idea they鈥檇 come up with to allow religious preschools who joined universal preschool to reserve some or all of their seats for members of their congregations, according to testimony from the trial last January. But the archdiocese didn鈥檛 like that solution because it didn鈥檛 want to limit preschool enrollment to only parish members, an archdiocese official testified.
The Catholic preschools instead wanted the state to exempt them from the parts of the non-discrimination rule covering sexual orientation and gender identity. Other religious groups, including an Orthodox Jewish group and a conservative Lutheran group, also expressed interest in exemptions in . State officials refused to grant them, saying non-discrimination .
鈥淚n a sense, church leaders want to have their cake and eat it too,鈥� said Bob Shine, associate director of New Ways Ministry, a Catholic group based near Washington, D.C. that advocates for LGBTQ inclusion.
鈥淭hey want public funding because in most cases the church cannot sustain a lot of its educational or charitable efforts now, so they need the government money, but they don鈥檛 want any of the conditions that come with [it].鈥�
In Denver, the archdiocese this month announced the of Wellspring and two other Catholic schools due to declining enrollment and financial problems. Last year, the archdiocese in Aurora.
While the Denver Archdiocese barred most of its preschools from signing the non-discrimination agreement and joining the state preschool program, there were exceptions. Five preschools under the Archdiocese umbrella signed the form and joined. All serve low-income families and are operated by Catholic Charities of Denver, the Archdiocese鈥� charitable arm.
Rick Biekers, executive director of early childhood education programs at Catholic Charities of Denver, said the five preschools use a secular curriculum and are open to all families in need.
鈥淲e absolutely serve anyone who comes to our doors,鈥� he said in an email.
Lawyers for the Catholic preschools said during the trial that the reason Catholic Charities preschools were allowed to participate in the state preschool program is because they have a different mission than the rest of the Archdiocese preschools. That is, to serve the poor.
In contrast, the other Archdiocese preschools are dedicated to 鈥渞aising the next generation in the faith,鈥� said Joseph Davis, one of the preschools鈥� lawyers from the Washington, D.C.-based Becket Fund for Religious Liberty, during the trial.
In June 2023, about two months before the Catholic preschools filed their lawsuit, an evangelical Christian school in the southern Colorado town of Buena Vista sued the state.
Busy Bees Preschool, part of Darren Patterson Christian Academy, had signed the state鈥檚 non-discrimination agreement and joined the universal preschool program. But school leaders, who are represented by the Alliance Defending Freedom based in Scottsdale, Arizona, said they feared the state rules on sexual orientation and gender identity would force the preschool to hire employees who don鈥檛 share its faith and change school policies related to restrooms, pronouns, and dress codes.
The lawsuit is similar to the Catholic preschool lawsuit, which also cited concerns about hiring LGBTQ employees. But unlike the Catholic preschools, Darren Patterson leaders say all children are welcome to enroll in Busy Bees, including those from LGBTQ and non-Christian families.
In October, Darren Patterson that blocks Colorado from punishing the school for policies that don鈥檛 align with state non-discrimination rules.
Federal District Court Judge Daniel Domenico, who was appointed by former President Donald Trump, wrote in his decision that those rules force the preschool 鈥渋nto the unconstitutional choice of abandoning religiously motivated practices or foregoing otherwise available public funding.鈥�
No trial date has been set.
In recent years, the U.S. Supreme Court has become more conservative and more sympathetic to religious liberty claims, often at the expense of arguments favoring a strict separation of church and state.
In a landmark 2022 Maine case called , the high court ruled that from publicly funded programs if secular private schools are allowed to participate. But the court didn鈥檛 clearly address whether states could require those religious schools to agree to non-discrimination rules in order to participate.
鈥淭hat then tees up this tension,鈥� said Robert Kim, executive director of the Education Law Center. 鈥淭he religious schools are arguing, 鈥� 鈥楬aving to abide by those non-discrimination policies violates our religious rights.鈥欌��
In the Colorado case, Senior U.S. District Judge John L. Kane, who was appointed by former President Jimmy Carter, disagreed with the Catholic preschools on that point in his ruling.
He wrote of Colorado鈥檚 non-discrimination rules: 鈥淭he purpose of the requirement is not to invade religious freedom but to further the implementation of a strongly embraced public value.鈥�
Scott Skinner-Thompson, associate professor of law at the University of Colorado Boulder, said of the opinion, 鈥淗e makes absolutely clear that it is constitutional and unproblematic for states and local governments to apply LGBTQ non-discrimination provisions to recipients of state funds.鈥�
Sarah Taitz, constitutional legal fellow at Americans United for Separation of Church and State, said court decisions often hinge on whether states apply the rules in a 鈥渘eutral and generally applicable鈥� way.
In his 101-page opinion, Kane concluded the state met that threshold.
Kane did give the Catholic preschools a narrow win in the case 鈥� exempting them from rules banning discrimination based on religion. He did that because of Colorado鈥檚 decision to let religious preschools prioritize children from their own congregations. He said the state can鈥檛 have it both ways 鈥� allowing the congregation preference, which is based on religion, while telling participating preschools they can鈥檛 discriminate based on religion.
Brittany, Naomi鈥檚 mother, said she and other parents she鈥檚 talked to were relieved by Kane鈥檚 decision upholding protections based on sexual orientation and gender identity.
鈥淲e were really happy that the ultimate ruling that came out was that you can鈥檛 discriminate against our community,鈥� said Brittany, who runs a monthly park play group for transgender children and started the Denver chapter of the national group TransParent.
鈥淭hat just felt really, really nice to hear, even though we kind of think it shouldn鈥檛 have been an argument to begin with,鈥� she said.
Brittany said her family was lucky because when Naomi came out as transgender at age 4, the teachers at her private preschool were supportive. They even helped with her daughter鈥檚 social transition at school, including the switch in pronouns and her name change. The family has found the same openness at their public elementary school in Denver, where Naomi is in second grade and their 4-year-old attends preschool through Colorado鈥檚 universal preschool program.
In both kindergarten and first grade, Naomi told her entire class 鈥� with teachers facilitating the conversation 鈥� that she was transgender and answered questions from classmates.
鈥淪he came home happy and excited and said, 鈥淢om, I told my whole class that I was trans and they鈥檙e all still my friends,鈥� she said.
When sharing about her daughter鈥檚 gender identity, Brittany said, 鈥淚t鈥檚 never the kids that we worry about.鈥�
Brittany said her in-laws are practicing Catholics and when she and her husband broke the news about Naomi鈥檚 gender identity, they felt a twinge of uncertainty.
鈥淪pecifically because of their faith, we weren鈥檛 sure what their reaction was going to be,鈥� she said. 鈥淭hey just told us that they love her no matter what and have been champions for her and other kids like her.鈥�
The Catholic preschools in the Colorado case describe their refusal to enroll children from LGBTQ families as a way to avoid confusing children who might hear one thing from their parents and another from their preschool teachers.
An Archdiocese education official addressed a slice of those potential conflicts at the trial 鈥� noting that teachers at the Catholic preschools wouldn鈥檛 use a transgender child鈥檚 preferred pronouns, or let them wear uniforms or use bathrooms not associated with their gender at birth.
But it鈥檚 unclear what other conflicts might arise, for example, if a preschooler鈥檚 parents are gay. During the trial, Avery Coats, co-principal at one of the Catholic schools, described the preschool鈥檚 instruction related to gender and sexual orientation as age-appropriate.
鈥淲e do this in vocabulary like mommy and daddy and marriage and family,鈥� she said.
Coats referred an interview request from Chalkbeat to Kelly Clark, director of communications for the Archdiocese of Denver. Clark did not respond to repeated email requests from Chalkbeat asking about such conflicts.
Nick Reaves, an attorney from Becket, sent an emailed statement on behalf of the Archdiocese, saying in part, that Colorado has excluded Archdiocese preschools and the families they serve from the universal preschool program 鈥渟imply for staying true to their faith.鈥�
Amanda Henderson, director of the Institute for Religion, Politics & Culture at Iliff School of Theology in Denver, said the possibility that children from LGBTQ families will encounter contradictory perspectives at school isn鈥檛 a new dilemma.
鈥淟et families navigate that on their own,鈥� she said. 鈥淟GBTQ families have been navigating a culture that was counter to their family for a long, long time.鈥�
Ish Ruiz, assistant professor of theology at Pacific School of Religion, said keeping children from LGBTQ families out of Catholic preschools won鈥檛 prevent other students from asking about or sharing what they see in their daily lives.
鈥淭hat 4-year-old will show up to the classroom 鈥� saying, 鈥楳y friend Tommy who doesn鈥檛 go to this school has two mommies or two daddies,鈥� or 鈥業 have an uncle who鈥檚 married to his husband,鈥欌�� he said. 鈥淵ou cannot sanitize the school from reality.鈥�
Despite of Denver that calls for the exclusion of LGBTQ students and families from some schools, not all Catholics agree with the stance.
鈥淭he church is not a monolith,鈥� said Ruiz. 鈥淭he church, in and of itself, has a lot of internal disagreement on the matter.鈥�
Henderson said diverse opinions within the church create a thorny job for the courts.
鈥淚t becomes really difficult when a specific court is defining 鈥� what a religious belief is or whose religious belief is prioritized over others,鈥� she said.
Beth Mueller Stewart and her husband Dan Stewart are practicing Catholics who disagree so strongly with the Catholic preschools鈥� argument, they urged the Archdiocese to drop the lawsuit.
In a May letter to Aquila and other church officials, published on the , the couple described the 鈥渢ough position鈥� they were in.
鈥淭he lawsuit forced us to ask: 鈥楧o we keep our child at Wellspring Catholic Academy and seemingly support the lawsuit, forsaking our values and our consciences? Or do we forgo Catholic education at Wellspring to stand in solidarity and love with our own LGBTQ loved ones?鈥欌��
Ultimately, they withdrew their child from the school.
Meanwhile a Catholic family with a preschooler at St. Mary Catholic Virtue School, joined the two Catholic parishes in suing the state over the non-discrimination agreement. The mother, Lisa Sheley, is a front office coordinator at St. Mary school, and testified at the January trial.
She said she and her husband Dan feel it鈥檚 important to give their six children a Catholic education. If St. Mary had participated in Colorado鈥檚 universal preschool program, her family would have saved nearly $5,000, she said.
鈥淥bviously with inflation, everything is extremely expensive, but even more so for a family of eight,鈥� she said. 鈥淪o, anything we could save would be extremely helpful.鈥�
Lisa Sheley could not be reached for comment, including through her lawyers.
In the near-term, the outcome of the Catholic preschools case 鈥� or the cases unfolding in Maine and Vermont 鈥� won鈥檛 affect Colorado鈥檚 public K-12 education system.
That鈥檚 the question at the heart of another lawsuit over Colorado鈥檚 preschool program, as well as lawsuits in Maine and Vermont. In those two states, religious schools want exemptions from rules about sexual orientation and gender identity so they can participate in state programs that cover private school tuition for students who live far from public schools.
But there could be spillover eventually, experts say. Considering Colorado鈥檚 charter-friendly environment, an unprecedented effort in Oklahoma to create a charter school run by the Catholic church shows one way that might happen. Charter schools are free publicly funded, privately managed schools.
While the Oklahoma Supreme Court in June ruled the , the Archdiocese of Oklahoma City has .
鈥淟urking in that case is this notion that a religious entity could not only seek to participate in public programs, but actually become a public school,鈥� said Kim, of the Education Law Center,
The idea of normalizing public funding for private religious education is concerning, he said 鈥渆specially if in that process, there鈥檚 an erosion or evisceration of non-discrimination principles.鈥�
Already many states have voucher programs that provide students funding for private school tuition, including at religious schools with anti-LGBTQ policies. Colorado has no voucher program, though some experts worry that Amendment 80, , is a step in that direction.
Despite years of questions about potentially discriminatory practices at voucher-accepting schools, Taitz said the legal questions are a bit different than Colorado鈥檚 Catholic preschool case. That鈥檚 because in voucher programs, schools don鈥檛 get funding directly from the state. Instead, families are the go-between.
鈥淏ut in terms of some of the principles at stake about discrimination and separation of church and state, vouchers pose a similar, really major problem,鈥� she said.
Ann Schimke is a reporter at Chalkbeat Colorado. Her work frequently appears on-air at KUNC 91.5 FM and online at KUNC.org. Contact Ann at aschimke@chalkbeat.org.