Nondiscrimination laws and religious freedom have butted heads more than once in the last few decades. Now the Supreme Court will consider a case where tax dollars are also a major factor.
While churches and religious organizations can generally set their own rules about who they include or exclude, this gets iffy when the government is using public funds to support that action. In this specific case, the question is raised whether a Catholic preschool, accepting taxpayer money, can engage in discriminatory practices.
After a lower court ruled that a nondiscrimination rule is enforceable, SCOTUS will now have the final say.
The Religious Organizations Are Challenging A State Law
While the idea of universal pre-k has been debated at the national level for decades, Colorado has moved forward with a program within the state. The state’s Universal Preschool (UPK) program provides “up to 15 hours per week of tuition-free, high-quality preschool in their year before kindergarten,” and some families may be eligible for more, depending on qualifying factors.
At the other end, preschool providers must also qualify to participate in the program and receive state funds. These providers can be home-based, school district-based, or community-based, and can be religious or nonreligious. However, they must adhere to an agreement with the state, which includes maintaining licensure; guaranteeing families at least the minimum number of hours promised; complying with billing rules; and otherwise meeting standards set by the state.
One of those standards is nondiscrimination.
To be clear, complying with nondiscrimination standards is a requirement for participating in the state’s universal pre-k program and taking state funds as part of that participation, not merely for operating a childcare or pre-k facility.
So, What Happened?
The Archdiocese of Denver, along with two Catholic parishes, filed a lawsuit in August 2023, arguing that this amounts to religious discrimination because schools would not be able to reject an applicant based on a family member’s sexuality, gender identity, or other characteristic. The lawsuit stated:
“Specifically, the Department is purporting to require all preschool providers to accept any applicant without regard to a student or family’s religion, sexual orientation, or gender identity, and to prohibit schools from “discriminat[ing] against any person” on the same bases.”
It later states:
“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 filing further explains that if these schools do not participate in the state program, they lose students, whose families will instead enroll them in schools that qualify for state funds. In short, they say, a nondiscrimination clause means they have to choose between their religious standards and their bottom line.
How Did That Lawsuit Turn Out?
The United States District Court for the District of Colorado found that the nondiscrimination clause did not violate religious freedom. That court did rule that the state should not enforce another aspect of the clause, though: a preference for a specific religion. In short, a Catholic school should not be prevented from prioritizing applicants of the Catholic faith; a Baptist, Methodist, or Jewish school has the right to prioritize applicants whose families share their faith as well.
The Catholic schools appealed the denial (but not the exception) to the Court of Appeals for the Tenth District, where the ruling was upheld, according to Justia.
“The Tenth Circuit held that the nondiscrimination requirement is a neutral law of general applicability and does not target religious status or use. The court found no evidence of religious hostility or individualized exemptions that would undermine general applicability…Applying rational basis review, the court concluded that the requirement is rationally related to the legitimate government interest of ensuring equal access to preschool.”
They appealed again, and the Supreme Court has agreed to hear the case.
What Does This Mean For Parents?
SCOTUS has not yet set a date to begin oral arguments in the case, so there’s no immediate effect.
However, the decision could affect preschool application acceptance going forward. Families who think their child might be rejected by a religiously affiliated preschool, if the court rules that this is permissible, should take that into account when applying.
That might mean having a backup school in mind, or considering whether a school that would reject your child, if given permission to do so, is the right school for your family. Because the program in question is in Colorado, Colorado families are the most immediately affected, but a ruling could affect similar or future programs covering pre-k enrollment in other states.
The current presidential administration has filed documents with the Supreme Court supporting the Catholic schools and Archdiocese in their argument, and it remains to be seen whether that will influence the outcome.
