Colorado Cannot Stop Christian School From Participating In Universal Preschool Program Over Religious Policies

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Nov 30, 2023

In 2020, Colorado voters approved proposition EE, establishing a dedicated source of funding for statewide preschool.  Under the program, eligible preschool providers receive tuition reimbursement from the state for certain students.  Eligible preschool providers must at minimum, provide children an equal opportunity to enroll and receive preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability.  Providers must sign a Program Service Agreement, which requires, among other things, that preschools do not discriminate on protected classifications.  The Agreement also requires providers to strictly comply with all applicable federal and state laws, rules, and regulations.

Darren Patterson Christian Academy is a private, Christian school.  In accordance with its Christian focus, the School only hires employees who share its faith—all employees must be “born-again Christian” and adhere to certain lifestyle requirements, including abstinence from sexual activity outside of the context of marriage between a man and a woman.

The School also believes that there are two immutable sexes, male and female, and aligns its policies accordingly, including mandating separated bathrooms and dress codes based on boys’ and girls’ biological differences. The School also forbids using pronouns that do not correspond to a student’s or employee’s biological sex.

In January 2023, the School agreed to participate in the universal preschool program and signed the Program Service Agreement.  The Department approved the School to participate.  In May, the School sought an exemption from the Executive Director of the Department, stating that the non-discrimination clause violated its religious beliefs, including its policies on bathroom and locker room usage, pronoun usage, and dress codes.  The School also expressed concerns that they may be prohibited from hiring co-religionists.  The Executive Director said she lacked authority to create exemptions for faith-based providers and that the non-discrimination clause is mandated in state statute, but noted that providers could reserve seats for congregants.

After receiving this response, the School sued two state executives charged with overseeing the universal preschool program, bringing claims under the First Amendment’s religion clauses, the freedom of association clause, and the free speech clause.  The School also filed a motion for a preliminary injunction to allow it to continue participating in the program while abiding by its internal policies regarding hiring and student conduct.

To succeed on a preliminary injunction, the moving party must show: (1) that they are substantially likely to succeed on the merits of their claim; (2) that they will suffer irreparable injury if the court denies the injunction; (3) that the “threatened injury” without the injunction outweighs the opposing party’s injury under the injunction; and (4) the injunction is not adverse to the public interest.

The School argued that the program’s non-discrimination rules violates its constitutional rights to hire ministers who share its faith and co-religionists, and otherwise violates its First Amendment religious and speech rights to enact policies driven by its faith, including its policies regarding bathroom usage, dress codes, and pronoun usage.

Under the first prong, the Court found that the School showed a likelihood of success on the merits.

The Court found that the Department’s non-discrimination policy likely violated the School’s rights by interfering with the School’s selection of key employees in accordance with its religious convictions under the ministerial exception, which protects churches and other religious institutions to decide matters of faith without government intrusion.  Here, the teachers are likely considered ministers and subject to the ministerial exception, because the teachers are committed to mentoring and disciplining students in the Christian faith.  Furthermore, the teachers are expected to integrate Biblical principles into their curriculum and co-curriculum.  The School explicitly bases its hiring decisions on religious criteria and the Court determined that the School could not abandon those criteria without abandoning their religious beliefs.

The Court also found that the School likely had a plausible freedom of association claim—the School has the freedom to not associate with those who would compromise their expression of beliefs.  The Court found that the non-discrimination hiring policy would require the School to hire those who disagree with its religious expression and evangelistic mission.

The Court found that the Department’s rules forced the School to choose between adhering to religious beliefs and risk exclusion from the program or complying with the Department’s rules and abandon their beliefs.  The School sought to hire co-religionists and to continue internal policies related to gender distinctions, as rooted in their religious beliefs.  These policies violate the Department’s non-discrimination standards, but at the same time, infringe on the School’s rights to participate in a government benefit program without disavowing its religious character.

Finally, the Court found that the Department allowed categorical exemptions from its admission policies for preschools operated by houses of worship that seek to reserve seats for members of the School’s congregation.  The Court found that the statute explicitly allows the Department to grant exemptions from the non-discrimination standards if doing so is necessary to ensure the availability of a preschool program in the community.  Here, the Department provided exemptions to other programs, or expressed a willingness to do so, but denied an exemption for the School.

In light of the Court’s findings in all of these positions, the State would need to show that their interests were of the highest, most compelling order and that the law was created in the most narrowly tailored way to pursue those interests.  The Court found that the State did not meet this high burden and that the School would succeed on the merits of the claim.

Under the second prong, the Court found that the School would suffer irreparable harm due to their loss of their First Amendment freedoms.  Under the third and fourth prongs, the Court found that where a law is likely unconstitutional, the interests of the government do not outweigh the other party’s rights to have its constitutional rights protected.

The Court granted the School’s preliminary injunction, meaning the state of Colorado cannot expel, punish, withhold funds from, or otherwise discipline the School under the universal pre-school program on the basis of the School’s policies.

Darren Patterson Christian Acad. v. Roy (D.Colo. Oct. 20, 2023) 2023 U.S.Dist.LEXIS 198528.

Note: This case provides an overview of the competing interests that can arise between state non-discrimination requirements and organizations’ religious tenets.  

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