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Religious preschools in Colorado that participate in the state-funded preschool program currently have the option to reserve seats for children from their congregations. However, this policy may soon change.
State officials are proposing to repeal the “congregation preference” rule after a recent federal court decision raised concerns about its fairness. In the case, brought by two Catholic parishes in the Denver area that operate preschools, the judge ruled that the preference could limit preschool access for children based on their religion, which violates state non-discrimination laws.
The state advisory council approved the repeal on Thursday with minimal discussion. This move is part of Colorado’s ongoing efforts to include religious preschools in its free preschool program while ensuring non-discrimination protections for LGBTQ children and families. The change in policy could also become part of the legal battle as the Catholic parishes plan to appeal the judge’s ruling from June. Some experts believe this case may eventually reach the U.S. Supreme Court.
The universal preschool program, which launched in August 2023, provides tuition-free preschool to nearly two-thirds of Colorado’s 4-year-olds.
Lisa Roy, the executive director of the Colorado Department of Early Childhood, is expected to approve the rule change in November, with the new policy set to take effect in January. This timing coincides with the start of the enrollment period for the 2025-26 school year. The change will not impact children attending preschool through the state program this year.
Among the approximately 2,000 preschools participating in the state program, more than 40 are religious institutions. However, a spokesperson for the early childhood department could not provide data on how frequently the congregation preference has been utilized.
Ironically, the state initially proposed the congregation preference to help religious preschools that wanted to join the new universal preschool program but were hesitant to accept LGBTQ students or families. However, the Catholic preschools at the center of the lawsuit felt that this preference did not adequately address their needs. They sought exemptions from non-discrimination rules related to sexual orientation and gender identity, but the state denied their request, leading the preschools to opt out of the program.
In August 2023, the two parishes—St. Mary in Littleton and St. Bernadette in Lakewood—filed a lawsuit against the state. Nine months later, federal judge John L. Kane largely ruled against the parishes, stating that if they participated in the state preschool program, they could not refuse enrollment to LGBTQ children or families. However, he did rule in favor of the parishes regarding the congregation preference, saying the state could not allow this preference for religious preschools while claiming it was not tied to religion. State officials stated that the preference was designed to help religious preschools serve children they already knew from their congregations, not to discriminate.
In response to Kane’s ruling, the state decided to eliminate the congregation preference altogether.
Nick Reaves, an attorney representing the Catholic parishes, expressed disappointment with the proposed rule change. He noted that the state had previously emphasized the congregation preference as essential for many religious preschools to join the universal preschool program.
“This further confirms what we already knew — the state appears more focused on excluding Catholic preschools than ensuring all Colorado families can access the schools that best meet their needs,” Reaves stated on behalf of the Becket Fund for Religious Liberty.
“We are confident that the courts will recognize this targeted action for what it is and uphold the rights of Catholic schools and families to participate in universal preschool in accordance with their beliefs.”
No trial date has been set for the appeal at this time.
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