Colorado’s universal pre-k program is the subject of two lawsuits by Christian schools. Both argue that the state’s nondiscrimination requirements, particularly in regards to LGBTQ individuals, to receive universal pre-k funds are a form of religious discrimination. In June, Darren Patterson Christian Academy (DPCA), a private Christian school in Buena Vista, filed a lawsuit against the Colorado Department of Early Childhood and Colorado’s Universal Preschool Program. Last week, the Archdiocese of Denver and St. Mary and St. Bernadette Catholic Parishes filed a similar lawsuit.
Both lawsuits were filed by high-profile legal firms with ties to the religious right. DPCA is being represented by attorneys from the Alliance Defending Freedom, the conservative Christian legal advocacy group that has represented Lorie Smith of 303 Creative and Jack Phillips of Masterpiece Cakeshop, among other cases involving LGBTQ nondiscrimination. The group is considered an anti-LGBT hate group by the Southern Poverty Law Center due to numerous statements and legal arguments, including support of recriminalizing sexual acts between consenting LGBTQ adults and linking LGBT people with pedophilia.
The Archdiocese of Denver and the Catholic Parishes are represented by Becket Law, a nonprofit legal and educational institute that focuses on cases involving issues relating to religious liberty. Becket Law is also representing Bella Health and Wellness in their lawsuit challenging Colorado’s SB23-190, which would ban the use of “abortion pill reversal.” Becket Law was also counsel for the Green family in the 2014 Burwell v. Hobby Lobby Supreme Court case, which ruled that certain employers can block their employees’ access to birth control, an exemption from the coverage guarantee under the Affordable Care Act.
“Colorado has created the universal preschool program, and it doesn’t exclude anybody in terms of kids who are able to benefit from it,” said Becket Law’s Nick Reaves during an Aug. 16 appearance on the Dan Caplis show. “All kids who are four years old should be able to get benefits — it does sound like Colorado is having some problems rolling it out, but that’s neither here nor there — so no one is being excluded from Colorado’s universal preschool program. This case is really about religious discrimination. What Colorado has said is, ‘We will fund all these different religious schools, but we won’t fund these Catholic schools because of their beliefs.’ It’s excluding religious schools.”
The complaints in both filings note the exact amount of funding that is at stake. DPCA’s lawsuit notes, “Under current Department rates, preschools in Chaffee County — including Darren Patterson Christian Academy — would receive $6,018.24 per child attending a half-day (15 hours per week) and $10,700.78 per child attending a full day (30 hours per week) for the 2023-24 school year.”
The Becket filing cites similar figures. “For the 2023-24 school year, St. Mary’s preschool would receive $5,926.69 per child attending half-days (15 hours per week) and $10,544.48 per child attending full days (30 hours per week),” the complaint notes. “For the 2023-24 school year, St. Bernadette’s preschool would receive $5,890.53 per child attending half-days (15 hours per week) and $10,513.26 per child attending full days (30 hours per week).”
Reaves argues that Colorado cannot deny public funding to religious schools due to nondiscrimination requirements. “There is a whole line of Supreme Court cases that say the opposite,” he said. “If Colorado is going to create this program to provide funding generally to all kinds of schools, it can’t exclude certain schools based on their religious beliefs. That’s religious discrimination.”
Becket’s filing asks the court to “declare that the religious affiliation, sexual orientation, and gender identity nondiscrimination requirements of Colo. Rev. Stat. § 26.5-4-205(2)(b) violate the First Amendment to the United States Constitution as applied to Plaintiffs’ religious exercise.”
The efforts of private, religious schools to receive taxpayer funds are not new. Since the 90s, the practice of offering tuition subsidies, commonly called “vouchers,” has been a topic of contention for education policy-makers. The ACLU argues that vouchers are simply a way to funnel public funds to private schools.
“Voucher schemes shift millions of taxpayer dollars from public schools — which are open to all, regardless of faith — to private schools, the vast majority of which are religious,” the ACLU notes. “In turn, taxpayer funds directly support religious instruction — and not just in theology class, but in biology class, history class, and even math class. What’s more, these schools are often not required to comply with many academic standards and can discriminate, for example by excluding students on the basis of religion, sexual orientation, or disability.”
The Douglas County School District attempted to implement a voucher program in 2011, which led the Colorado Supreme Court to rule in 2015 that the program violated the state constitution. The U.S. Supreme Court ordered the Colorado Supreme Court to revisit the case, but in 2017 the Douglas County School Board voted unanimously to terminate the program.
Universal pre-k and vouchers aren’t the only ways that private religious institutions can receive public education dollars. This year, Forging Pueblo, the Christian dominionist group that tried to stop a Pueblo abortion clinic and whose board includes Tamra Axworthy, executive director of Pueblo’s A Caring Pregnancy Center, an anti-abortion crisis pregnancy center, and Rep. Stephanie Luck (R-Penrose), is launching Veritas Academy, a private K-5 school, in Pueblo West.
Forging Pueblo’s website notes, “All teachers with Forging Education are vetted Bible-believing Christians who hold to a Biblical worldview and have a desire for students to grow academically and spiritually in a safe environment. Forging Education has built a partnership with an organization in Colorado to provide affordable education to students and families at a cost of only $2,000/year (or $200/month).”
The Veritas Academy website also notes, “You are indicating your interest in submitting an application for part-time or full-time enrollment with Veritas Academy, which works in partnership with [Family Worship Center Academy]. By clicking the ‘Submit for HSE Program’ you acknowledge that your student is not eligible for public home-school enrichment funding from other programs and give permission for necessary information to be shared with ERBOCES Colorado. The morning block from 9am-11:30am (K-3) and 9am-12pm (4-5) are the publicly funded portions of the program through FWCA and ERBOCES. By clicking the “Enroll in Full Time Private Program” You commit to pay the required tuition for your student to attend the Veritas Academy. The hybrid nature of these program allows the tuition for full time students to be kept to a minimum, averaging 1/3rd of the average private schools.”
HSE stands for home-school enrichment.
Boards of Cooperative Educational Services (BOCES) were created by the Colorado legislature in 1965 to improve and expand educational services of public schools. The BOCES bill enables two or more school districts to cooperate in providing services. The goal was to better deliver services to smaller school districts, but in 1967 the legislature amended the law to authorize local school boards in a BOCES to locate facilities at “any appropriate location, whether within or without a school district providing money for the facilities.”
Education Reenvisioned Boces (ERBOCES) used the law to not just provide services but authorize new schools. Currently, ERBOCES contains 5 schools and 5,123 students in School District 49, Creede Consolidated School District 1, Durango School District 9-R, and Pikes Peak Community College. In 2020 Colorado Springs District 11 (along with, among other partners, the Colorado Association of School Executives (CASE)) sued ERBOCES for authorizing Orton Academy inside its boundaries. The Court of Appeals ruled that BOCES cannot locate schools in nonmember school districts without those districts’ permission.
The executive director of ERBOCES is Ken Witt, the current superintendent of the embattled Woodland Park School District.