DENVER — Religious preschools in Colorado that participate in the state’s funded preschool program may soon lose the ability to reserve spots for children from their congregations. State officials are considering repealing the “congregation preference” rule following a federal court decision that raised concerns about its fairness.
A recent ruling by a federal judge, prompted by a lawsuit from two Catholic parishes in the Denver area, stated that the congregation preference could unfairly limit preschool access based on a child’s religion. This situation is against Colorado’s non-discrimination laws.
The state advisory council approved the repeal of this rule on Thursday with minimal discussion. This move is part of Colorado’s ongoing efforts to include religious preschools in its popular free preschool program while ensuring that protections for LGBTQ children and families remain intact. As the Catholic parishes appeal the judge’s ruling from June, this new development may lead to further legal challenges, potentially reaching the U.S. Supreme Court.
Launched in August 2023, Colorado’s universal preschool program provides tuition-free preschool for nearly two-thirds of the state’s 4-year-olds. Lisa Roy, the executive director of the Colorado Department of Early Childhood, is expected to approve the repeal in November, with the change taking effect in January, just before families begin registering for preschool for the 2025-26 school year. This new rule will not impact children enrolled in the state program for the current year.
Among the approximately 2,000 preschools in the state program, over 40 are religious institutions. However, the early childhood department could not provide specific data on how frequently the congregation preference has been utilized.
Ironically, the state initially proposed the congregation preference to help address concerns from religious preschools reluctant to accept LGBTQ students and families when the universal preschool program was being developed. The Catholic preschools involved in the lawsuit, however, found the preference insufficient. They sought exemptions from non-discrimination rules regarding sexual orientation and gender identity, which the state declined. As a result, the preschools did not participate in the program.
In August 2023, St. Mary Parish in Littleton and St. Bernadette Parish in Lakewood filed a lawsuit against the state. Nine months later, Judge John L. Kane ruled largely against the parishes, stating that if the Catholic preschools were to join the state program, they could not refuse LGBTQ families or children.
However, Kane did side with the parishes on the issue of congregation preference. He argued that the state could not grant this preference to religious preschools while claiming it was not tied to religion. State officials had said the preference was intended to allow religious schools to serve children with whom they had existing relationships, not as a religious criterion.
In response to Kane’s ruling, the state decided to eliminate the congregation preference altogether.
Nick Reaves, an attorney for the Catholic parishes, expressed disappointment over the proposed change. He noted that the state had previously emphasized the congregation preference as a vital element to encourage religious preschools to participate in the universal preschool program.
“This confirms what we already suspected — the state prioritizes preventing Catholic preschools from participating rather than ensuring all Colorado families can access the schools that best meet their needs,” Reaves said in a statement from the Becket Fund for Religious Liberty.
He expressed confidence that the courts would recognize the state’s actions as targeted and uphold the rights of Catholic schools and families to join the universal preschool program in line with their beliefs.
As of now, no trial date has been set for the appeal.
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