Catholic preschools ask 10th Circuit to block Colorado rule banning LGBTQ discrimination in state-funded pre-K

DENVER (CN) — The Archdiocese of Denver and two Catholic preschools on Tuesday asked the 10th Circuit to overturn a lower court and block a rule that ties state funding to compliance with a rule that includes LGBTQ protections.

“If Colorado has made every preschool in Colorado free except for a handful of religious preschools, then they’ve raised the floor for everyone else,” Nicholas Reaves, an attorney with the D.C.-based nonprofit Becket Fund for Religious Liberty, argued in front of the panel.

U.S. Circuit Judge Gregory Phillips asked the attorney if Senior U.S. District Judge John Kane had misread the law when he found it was written in neutral terms and supported the state’s interest in protecting LGBTQ families from discrimination.

“Are you contending that Judge Kane misinterpreted the statute?” the Barack Obama appointee asked.

Reaves said yes, because the disputed provision contradicts the rest of the law. The judge pushed back.

“One reading would be to provide services regardless of the characteristic,” Phillips said. “And but for this, you could discriminate against these groups.”

Reaves argued that Colorado permits preferential enrollment in other cases, like soliciting students from low-income families or families who live in the surrounding neighborhood — which amounts to it allowing secular exceptions to the rule, but not religious ones.

Phillips asked Colorado attorney Helen Norton what would happen if state lost the appeal and the court struck all provider preferences, even those that allow schools to prioritize neighborhood children or siblings of students currently enrolled.

“Then we would be back at the results of the default algorithm that would either sort students randomly or on a first-come-first-serve basis,” Norton said.

Norton argued that allowing schools to give preferential treatment to students with specific characteristics allowed more schools to be eligible for preschool funding. Although Judge Kane struck a provision that had allowed religious schools to prioritize members of their congregation, Norton said the rule was Colorado’s attempt to include religious schools in the program, not drive them out.

Phillips asked if the random assignment system would solve all the issues in the case. Norton seemed doubtful.

“I think opposing counsel has a number of theories for why they should be able to discriminate, so I don’t think that would resolve all of their claims,” Norton said.

Norton said the case was bigger than preschool. “Plaintiff-appellees here ask this court to do what no other court has done, and create a First Amendment right to allow schools to expel students based on their parent’s protected status," Norton argued.

In order to receive funding from the state’s voter-approved universal preschool program, preschools must “provide eligible children an equal opportunity to enroll and receive services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability, as such characteristics and circumstances apply to the child or the child’s family.”

Preschool administrators St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood sued Colorado Department of Early Childhood director Lisa Roy in August 2023. The Jimmy Carter-appointed Judge Kane, though he sided with the state on the law’s constitutionality, fined Colorado $1 for allowing religious schools to discriminate against other religions.

In another case, Donald Trump appointed U.S. District Judge Daniel Domenico ruled the opposite way: In February, he stopped the state from pulling funding from a Christian school’s pre-K based on its views of gender and sexual orientation, finding the decision ran afoul of the anti-discrimination rule.

Outside the courtroom Tuesday, Reaves told Courthouse News her clients’ case was important to families who choose to send their children to Catholic school and currently have to pay thousands of dollars in tuition out of pocket.

Joe Biden-appointed U.S. Circuit Judges Veronica Rossman and Richard Federico rounded out the panel. The court did not indicate when or how it would decide the case.

During the preschool program’s first year, Colorado funded 15 hours of free education per week for 40,000 children attending 1,900 different preschools, including 900 students who attended 40 faith-based programs.

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