Preschoolers with LGBTQ parents or who identify as LGBTQ can\u2019t be shut out of religious preschools that are part of Colorado\u2019s state-funded preschool program, a federal appeals court ruled Tuesday.<\/p>\n
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.<\/p>\n
Tuesday\u2019s 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?<\/p>\n
Along with the 10th U.S. Circuit Court of Appeals, a Maine federal district court<\/a> and a Utah state court<\/a> are among those who have said no.<\/p>\n It\u2019s possible the U.S. Supreme Court could eventually weigh in, though it\u2019s not clear which case will advance to the high court.<\/p>\n 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 \u201cevidence religious hostility\u201d as the two Catholic preschools claimed.<\/p>\n The state\u2019s universal preschool program \u201cwent to great effort to be welcoming and inclusive of faith-based preschools\u2019 participation,\u201d the decision said.<\/p>\n The three-judge panel also found that the early childhood department, which runs the preschool program, had applied the state\u2019s nondiscrimination policy in a neutral way to both religious and non-religious preschools.<\/p>\n 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.<\/p>\n In a statement Tuesday, Gov. Jared Polis said, \u201cWe 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.\u201d<\/p>\n Tuesday\u2019s ruling essentially upholds the status quo in the universal preschool program, meaning that participating preschools can\u2019t shut out LGBTQ children or children with LGBTQ parents.<\/p>\n 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.<\/p>\n 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.<\/p>\n \u201cColorado is punishing religious schools and the families they serve for following their faith. The Tenth Circuit\u2019s decision allows the state\u2019s anti-religious gamesmanship to continue. We will keep fighting to ensure that every preschooler in Colorado can access quality, affordable education.\u201d<\/p>\n 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<\/a> serves more than 40,000 children and allows families to choose from public, private, or religious preschools.<\/p>\n Of more than 2,000 preschools participating in the program this year, about 40 are religious.<\/p>\n St. Mary Catholic Virtue School in Littleton and Wellspring Catholic Academy in Lakewood wanted to join the program when it started, but didn\u2019t want to admit LGBTQ children or children from LGBTQ families.<\/p>\n 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.)<\/p>\n In June 2024, a federal district court judge appointed by President Jimmy Carter largely ruled in the state\u2019s favor.<\/p>\n He wrote of Colorado\u2019s non-discrimination rules: \u201cThe purpose of the requirement is not to invade religious freedom but to further the implementation of a strongly embraced public value.\u201d<\/p>\nConflict arose as state preschool program rolled out<\/h4>\n