The state is asking a federal appeals court to overturn a ruling that allowed a Christian preschool to participate in Colorado’s universal preschool program without following the state’s anti-discrimination laws.
Under a district court ruling in February, a judge said the Chaffee County preschool has the right to reject children and families based on gender identity or maintain hiring practices in line with its religious beliefs while still receiving tax dollars.
In a 102-page brief filed last week, the Colorado Department of Early Education argues that the district court's decision should be reversed because it was based on a flawed legal analysis.
The case centers on a key question: Can a religious school that accepts taxpayer money for its students be required to follow state rules that go against its religious beliefs? The outcome of the case could have implications for other religious organizations and government-funded programs.
The lower court’s decision
That ruling allowed the Darren Patterson Christian Academy, which runs Busy Bees Preschool in Buena Vista, to continue to participate in Colorado’s Universal Preschool Program. The school is one of only a few Christian schools in South Central Colorado.
The ruling was the second in Colorado on the issue of religious preschools participating in the state’s universal preschool program and whether they are allowed to exclude either LGBTQ+ families or staff when the schools are taxpayer-funded.
In another similar case, two Catholic parishes have appealed a district court’s decision so they can participate in UPK without following the state’s anti-discrimination rules related to sexual orientation and gender identity.
The UPK program guarantees every 4-year-old in the state at least 15 hours per week of free preschool. To join, a school has to agree to the program's rules, which include an anti-discrimination policy. Schools can't deny admission to a child based on their race, ethnicity, religion, sexual orientation or gender identity.
But the Darren Patterson Christian Academy argued that it shouldn't have to hire LGBTQ+ employees or individuals who don't share its Christian faith. It also wanted to keep its policies on things like restroom usage and pronouns that are based on its religious beliefs about sexuality and gender.
It sued in 2023, arguing it only wanted to hire employees who share its religious beliefs about sexuality and gender, “including those that relate to restroom usage, pronouns, dress codes, and student housing during school expeditions and field trips,” according to the lawsuit.
The case went to district court, which sided with the school. The court's reasoning was that the state's rules were not "neutral" or "generally applicable" because they included a temporary waiver and a preference for faith-based schools to reserve space for their own members. Because of this, the court said, the state had to meet a much tougher legal standard, known as "strict scrutiny." Under that standard, the court ruled that the state couldn’t demonstrate a “compelling reason” for its rules, which meant the state’s requirements placed an unconstitutional burden on the school’s religious freedom.
The state’s appeal
The state is now appealing that decision, arguing that the First Amendment doesn’t prevent Colorado from ensuring every 4-year-old can attend preschool free from discrimination. It argues the UPK's anti-discrimination rules are "neutral and generally applicable," meaning they apply to all schools equally, regardless of their religious affiliation. The purpose of the rules is to ensure that all children have equal access to publicly funded preschool. The state argues that the district court should have used a less demanding legal standard, not strict scrutiny, which is only necessary when a law targets or singles out a religious practice.
It also argues that many facts remain in dispute — such as whether the school actually has policies that require it to not enroll preschoolers based on gender identity — and the preschool has not shown it has been harmed. It notes the school has never had a transgender preschooler, no family has asked for an accommodation that conflicted with the school’s beliefs, bathrooms are open to any child and the school’s dress code does not differentiate by gender.
“DPCA (Denver Patterson Christian Academy) alleges that it may be excluded from the UPK program for enforcing policies that discriminate based on gender identity, but the evidence confirmed that no family has ever requested an exception from DPCA’s alleged policies, and no evidence suggested that a family ever will,” according to the appeal.
The state also asserts that the district court’s reasoning was based on a misunderstanding of the program’s provisions and that the waiver and preference provisions did not target religion. Instead, it argues, they were part of broad administrative rules meant to manage the program.
The "congregation preference" rule, which allowed faith-based schools to reserve spots for their members, has since been removed. The state's brief argues that even when it was in place, it actually favored religious providers not discriminated against them. The appeal argues that because the preference no longer exists, there’s no basis for finding that UPK’s equal opportunity rules don’t apply to everyone.
UPK’s “temporary waiver” provision allowed new providers extra time to meet certain quality standards. The brief argues that it wasn’t intended to let schools get out of complying with health and safety rules, of which the anti-discrimination policy is a part.
The state emphasized that it has a compelling interest in making sure all preschoolers have equal opportunity to attend publicly funded programs free from discrimination. The state’s brief cites research on the harm gender-diverse children face when they suffer discrimination or face rejection.
The state noted that 41 faith-based preschools already participate in UPK without issue, serving more than 1,000 children in its first year. Overall, the state has served over 43,000 students.
“Nothing in UPK’s enactment or implementation indicates hostility to religious providers: to the contrary, it actively includes them,” the appeal reads.
Darren Patterson Christian Academy continues to receive public funding while the litigation moves forward.
