Denver Archdiocese Sues Colorado Over Preschool Program That Excludes Catholic Schools

And while the rules bar discrimination based on religion, officials gave exemptions to some faith-based providers — but not Catholic schools — that allow them to give preference for admission to their own congregants.

Catholic preschools in Denver are affected.
Catholic preschools in Denver are affected. (photo: Unsplash)

The state of Colorado’s program to fund universal preschool unconstitutionally excludes Catholic preschools that want to participate in the program, according to a lawsuit filed on behalf of two Denver-area parishes and the Archdiocese of Denver.

The lawsuit concerns Colorado’s universal preschool program, created in 2022, that offers eligible families at least 15 hours per week of free preschool for every participating child, according to the program website

The suit maintains that the state’s rules requiring participating schools “to accept any applicant without regard to a student or family’s religion, sexual orientation, or gender identity” violate the schools’ First Amendment rights.

“Colorado did not have to create a universal preschool funding program, but in doing so it cannot implement that program in a way that excludes certain religious groups and providers based on their sincerely held religious beliefs,” said the lawsuit, filed in U.S. District Court for the District of Colorado by attorneys with the Becket legal group.

The lawsuit’s plaintiffs are St. Mary Catholic parish in Littleton and St. Bernadette Catholic parish in Lakewood, both in the Denver metro area, as well as the Archdiocese of Denver.

The lawsuit objects that the program rules are unconstitutional and exclude Catholic schools but not the preschool programs of other private schools.

“Our preschool exists to help kids harness the skills they need to flourish and grow into individuals prepared to serve others in hope, joy, and love,” Tracy Seul, director of development and preschool at St. Mary Catholic School in Littleton said in an Aug. 16 statement.

She said the preschool is “called to offer this ministry to every parent who wants to provide their child with an authentic Catholic education.”

Colorado’s participation requirements, the lawsuit says, “would categorically exclude all Archdiocese of Denver Catholic preschools because of the Catholic Church’s sincere and long-held religious beliefs.” 

Catholic preschools seek to ensure that teachers uphold their religious mission. This means that staff must sign archdiocese-approved employment contracts annually that affirm their willingness to uphold Catholic teaching on issues including life, marriage and sexuality.

Families, too, must agree that they understand and accept the Catholic community’s view on matters like marriage, sexuality and gender. Further, following the Archdiocese of Denver’s instruction, the Catholic schools must consider whether a prospective student’s family identifies as LGBTQ or is in a same-sex relationship and whether a student self-identifies as LGBTQ.

“Abiding by Catholic teaching on these issues would violate the department’s ban on sexual orientation and gender identity ‘discrimination,’ though plaintiffs do not believe adhering to these beliefs constitutes discrimination,” the lawsuit said.

The lawsuit argues that state rules wrongly exclude Catholic schools from the program based on their religious beliefs, a violation of the Free Exercise Clause of the U.S. Constitution’s First Amendment. Its rules in effect bar the schools from prioritizing Catholic families.

The state rules allegedly unfairly benefit private schools that are nonreligious or religious in a way that can comply with the state rules, thus serving as a “religious gerrymander” or “denominational favoritism.” 

State officials declined to create an appropriate religious exemption for the Catholic schools, despite giving exemptions for other protected classes. Though the rules bar discrimination based on income level, officials granted an exemption to Head Start grantees, allowing them to give preference for admission to preschoolers from low-income families. 

And while the rules bar discrimination based on religion, officials gave exemptions to some faith-based providers — but not Catholic schools — that allow them to give preference for admission to their own congregants.

The lawsuit objected that the department “offers no exemption to faith-based providers without attached congregations, or to faith-based providers who seek to maintain the religious character of their schools in other ways.”

CNA sought comment from the Colorado Department of Early Childhood but did not receive a response by publication.

“Universal should mean universal,” objected Nick Reaves, counsel at the Becket legal group. “Colorado is slamming the door on hundreds of parents that need help sending their kids to preschool, all because the schools that are best for their kids reflect their beliefs.”

“We are asking the court to stop Colorado’s campaign against preschoolers and the schools that want to serve them,” Reaves added. “Families should be free to choose the private school that best meets their needs — whether it is secular or religious.”

The preschool programs at both St. Mary’s and St. Bernadette’s parishes serve many families with limited finances, Becket’s Wednesday statement said. About 85% of families who send their children to St. Bernadette’s preschool qualify for the free and reduced-price school meals program, while 20% of all families who send their kids to archdiocesan preschools qualify.

More than 25% of families at St. Mary’s preschool program receive scholarships or discounts on preschool costs.

The Denver Archdiocese has 36 preschools with more than 1,500 preschoolers each year. According to October 2022 state figures, there were 32,205 students in pre-kindergarten classes in Colorado public schools.

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