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Federal judge fines Colorado $1 for discriminating against Catholic schools in universal preschool program

Two Catholic schools sued the state Department of Early Childhood last August claiming a new universal preschool program discriminated against religious organizations by preventing them from discriminating against LGBTQ enrollees.

DENVER (CN) — A federal judge on Tuesday fined the Colorado Department of Early Childhood $1 after finding its new universal preschool program allowed schools to discriminate on the basis of religion.

"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,” Senior U.S. District Judge John Kane wrote in a 101-page order.

In a narrow ruling, the Jimmy Carter appointee upheld the state’s ability to prevent faith-based schools from discriminating against students based on their sexual orientation or gender identity, while also finding that the preschool program wrongly allowed faith-based schools to discriminate against other faiths.

Voters approved a state-funded preschool program by ballot measure in 2020. State legislatures created the Department of Early Childhood the following year, along with rules for running the program.  

During its first year, the program 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.

In order to receive funding, however, the law requires preschools to "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.”

St. Mary Catholic Parish in Littleton and St. Bernadette Catholic Parish in Lakewood sued the Colorado Department of Early Childhood director Lisa Roy last August, claiming the preschool program's equity requirement violated their rights by preventing them from discriminating against students on the basis of their gender identity or sexual orientation.

Enrollment in one of the Archdiocese of Denver’s 36 Catholic preschools means signing a statement of community beliefs, which include the ideas that one’s sex at birth “is a gift that is given to us from the moment of creation,” and characterizes same-sex relationships as a distortion of reality, “by suggesting that mothers and fathers are interchangeable.”

The Office of Catholic Schools therefore instructs school leaders to enforce a dress code and pronouns based on students’ sex as assigned at birth and encourages schools to disenroll families who do not conform to the beliefs.

The archdiocese sent Democratic Colorado Governor Jared Polis a letter in February 2023, imploring him to exempt faith-based providers from the equality requirement. Polis, who is the nation’s first openly gay governor and a father of two, declined to do so.

Still, Kane found Colorado’s equality requirement to be written in neutral terms and that the state’s interest in protecting LGBTQ families from discrimination to be warranted.

"As for the other challenged aspects of the equal-opportunity requirement — those related to sexual orientation and gender identity, I conclude that they are neutral and generally applicable and that defendants must only show that they are rationally related to a legitimate government end,” Kane wrote.

In dismissing six of the Catholic schools’ seven claims, Kane narrowly found the state violated the plaintiffs' free-exercise rights by allowing faith-based schools to give preference to members of their own church, thereby discriminating against other faiths.

"Additionally, under these unique circumstances, the congregation preference singles out faith-based providers and requires them to navigate an untenable situation. 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,” Kane wrote. “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 a strict scrutiny review, Kane found Colorado did not meet its burden to support said religious discrimination.

Attorney Nick Reaves, who practices with the Becket Fund for Religious Liberty and represented the plaintiffs, applauded the ruling.

“Of course a Catholic school shouldn’t be punished for caring about its students’ religion,” Reaves said in a statement. “Colorado richly deserves this injunction, as it did the earlier one.”

Neither the Colorado Department for Early Childhood nor the attorney general’s office immediately responded to an inquiry for comment.

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Categories / Civil Rights, First Amendment, Religion

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