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Colorado put on trial for excluding Catholic preschools from universal preschool funding program

On Aug. 16, Becket filed a lawsuit against Colorado on behalf of two of the Archdiocese of Denver’s Catholic preschools for excluding religious preschools from participating in the state’s Universal Preschool Program. They went to trial this week. The full press release follows below:

A Catholic family and two Catholic preschools were in Denver federal court for a three-day trial this week challenging the State of Colorado’s decision to bar them from participating in the state’s Universal Preschool (UPK) Program because of their religious beliefs.

In St. Mary Catholic Parish v. Roy, Catholic families seeking the benefits promised by Colorado’s “universal” preschool funding program have asked a federal judge in Denver to require the state to include Catholic preschools among the list of private and public preschools eligible for UPK funding. While Colorado’s Department of Early Childhood currently allows over 2,000 other preschools (including many private and faith-based preschools) to participate in the UPK program, the Department has denied Catholic preschools a religious accommodation that would allow them to provide families enrolled in their preschools with 15 hours of free preschool education each week. With the help of Becket, parish preschools St. Mary’s and St. Bernadette’s have asked for an order telling Colorado that the First Amendment prohibits the state from excluding Catholic preschools from a generally available government benefit based on their sincere religious beliefs and religious exercise.

St. Mary’s and St. Bernadette’s are Catholic parishes in Colorado that operate high-quality, licensed preschool programs serving Denver-area families. For decades, these parish preschools have assisted parents with the religious and educational upbringing of their children. Many families the preschools serve are of limited means. A full 20% of families who send their children to preschools in the Archdiocese qualify for the free and reduced-price school meals program. At St. Bernadette’s, that number is over 50%. At St. Mary’s, over a quarter of families also receive scholarships or discounts on their preschool education.

“Universal should mean universal. Instead of keeping its promise of free preschool for all children, Colorado is turning its back on certain tax-paying families because of their religious beliefs,” said Nick Reaves, counsel at Becket. “Colorado cannot deny parents the opportunity to provide their children with a free, high-quality preschool education just because they’ve chosen a school that reflects their faith.”

In 2022, Colorado created its Universal Preschool Program to provide all children access to a free preschool education. After Colorado created the program, St. Mary’s and St. Bernadette’s were excited to participate and further assist parents in providing their children with an education that upholds their beliefs. However, the UPK program imposed certain requirements on preschools that barred St. Mary’s and St. Bernadette’s from participating. Specifically, the Department said these schools cannot participate because they prioritize Catholic families in admissions and require students and their families to support the school’s religious mission. At a three-day bench trial this week, the preschools argued that Colorado could not continue to exclude them while allowing over 2,000 other preschools to participate in the program. Notably, another Christian school recently won temporary protection from a different federal judge in a similar challenge to Colorado’s preschool funding program.

Despite excluding Catholic preschools, Dawn Odean, the Director of Colorado’s UPK program, testified during trial that her department would allow preschools to participate in UPK Colorado even if they limited enrollment in other ways that appeared to conflict with the state’s own law, such as operating programs only for LGBTQ children or families, only for children of veterans, or only for children of certain races. Ms. Odean also affirmed that over a thousand providers—around half the total in UPK—have claimed at least one exception from the program’s requirement that providers accept any preschool family matched with them. Colorado Governor Jared Polis has stated that preschools ought to “serve everybody” but has at the same time excluded kids at Catholic schools from the UPK program.

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“Governor Polis thinks UPK preschools should ‘serve everybody.’ That’s what we’re saying the Constitution requires the State of Colorado to do—serve kids at Catholic schools too,” said Reaves. “We’ve asked the Court to stop Colorado’s attack on these Catholic preschools and the many families they wish to serve. We are confident that Colorado won’t be able to leave religious preschools and the families they serve out in the cold because of their beliefs.”

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