Supreme Court Leans Toward Catholic Preschools in Colorado Pre-K Funding Fight

The Supreme Court’s conservative majority signaled on Tuesday that it is likely to side with Catholic preschools in Denver that were left out of Colorado’s free universal preschool program because they would not agree to a state nondiscrimination requirement.

The case, St. Mary Catholic Parish v. Roy, was argued for just over two hours on Nov. 3, the same day as the midterm elections. A ruling is not expected for months, and the justices could either decide the constitutional question themselves or send the case back to the lower courts.

What the dispute is about

Colorado launched its universal preschool program in 2023. It offers families up to 15 hours of free preschool a week at participating schools, which can be public, private, secular or religious. Every participating provider must sign an agreement to give children an equal opportunity to enroll regardless of characteristics including race, religion, sexual orientation and gender identity.

The Archdiocese of Denver, which oversees 34 Catholic preschools, asked for an exemption because its schools enroll families who agree to support church teachings on marriage, family and sexuality. The state refused. The archdiocese, two parishes and a family then sued, arguing that the exclusion violates the First Amendment’s protection for the free exercise of religion. One of the two parish preschools has since closed.

Lower courts, including the federal appeals court for the 10th Circuit, sided with Colorado, finding the rule neutral and generally applicable. The Trump administration joined the archdiocese in urging the justices to overturn that ruling.

What each side argued

Lawyers for the preschools argued that Colorado lets many schools set their own admission priorities for secular reasons but refused to accommodate a religious one, and that this kind of exclusion should face the strictest level of constitutional review. They said admitting Catholic schools would add seats, not take any away from other families.

Colorado’s deputy solicitor general told the court the state welcomes religious preschools and only asks that they meet the same conditions as every other publicly funded provider. She said faith-based schools in the program remain free to teach their beliefs.

Why it matters

A win for the preschools would extend a series of recent Supreme Court decisions, including the 2022 Carson v. Makin ruling from Maine, that have opened more public funding programs to religious schools. Based on the questions from the bench, a majority appeared to agree that Colorado’s refusal to grant an exemption should be judged under a tougher standard than the one the lower courts used. How far the court goes, and what it means for nondiscrimination rules in other states, will not be known until the decision is released.

How we reported this

This report draws on the Supreme Court argument transcript and reporting from major news organizations, named below.

Sources: Supreme Court of the United States, AP, CBS News, SCOTUSblog, OSV News.