Colorado panel examines whether universal pre-K’s nondiscrimination rules bar religious preschools from excluding LGBTQ families
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Summary
Academics and a constitutional lawyer debated Colorado’s universal pre-K nondiscrimination requirements, recent court rulings and the possible consequences if religious schools can decline public funds to exclude LGBTQ families. Panelists emphasized effects on preschool children and flagged a possible Supreme Court review.
A League of Women Voters–hosted panel on Thursday explored whether religious preschools that decline to admit LGBTQ children can still participate in Colorado’s universal pre-K program and accept state funds.
Moderator Kathy laid out the central question: “Several Catholic preschools in the area don't want to accept LGBTQ students or families, but they want the money,” and noted the dispute has already produced a Tenth Circuit ruling in favor of the state and a petition for certiorari to the U.S. Supreme Court.
Why it matters: The panel brought together scholars in education and religion and a constitutional-law expert to explain the competing legal doctrines and the classroom effects that may follow. Jean Kirschner, an associate professor at the University of Northern Colorado, argued the debate should center on children’s development and inclusion, saying classrooms must “embrace and cherish” all families and that “there’s 5,000,000 children who are being raised by LGBTQ families.” She warned that excluding those families from classroom materials, staff representation or everyday acknowledgment harms both excluded children and those who never see themselves reflected in the curriculum.
Legal backdrop: Scott Skinner, an attorney and affiliate faculty member in LGBTQ studies at the University of Colorado Law School, walked through the recent doctrinal terrain the courts use to evaluate free-exercise claims. He said the Tenth Circuit found the UPK nondiscrimination requirement is a neutral, generally applicable law and therefore subject to rational-basis review, citing the line of cases that includes Employment Division v. Smith. Skinner summarized related Supreme Court precedents the parties invoke — he referenced Carson v. Makin, Trinity Lutheran v. Comer and Espinosa v. Montana Department of Revenue — and said the Tenth Circuit treated Colorado’s goal of creating “welcoming environments for LGBTQ families” as a legitimate government interest.
Competing rulings and uncertainty: Panelists noted divergent district-court outcomes — the panel discussed a Denver decision in the Busy Bees/Buena Vista matter — and cautioned recent shifts in the Supreme Court’s composition have broadened some free-exercise protections. Deborah Whitehead, a religious-studies scholar at the University of Colorado, warned that expanding the category of protected religious practice to include wide-ranging social or political beliefs risks compressing the line between belief and practice, with possible consequences for nondiscrimination law.
Practical effects in classrooms: Panelists distinguished accommodations (for example, ramps or individualized education plan supports) from policies that exclude families. They highlighted that Colorado teacher-quality standards require inclusive practices and representative classroom materials, and they debated whether a preschool could admit a child from an LGBTQ family while retaining a discriminatory curriculum — concluding that the latter would still harm children by denying them representation and safe learning environments.
What’s next: Saint Mary’s (the Catholic preschool plaintiff discussed) has filed a petition for certiorari. Scott Skinner said he would be surprised if the Supreme Court took this particular case but cautioned that long-term doctrinal trends and other recent rulings could make public funding of religious education more legally permissible in some circumstances. The panel offered links to the lower-court opinion and urged audience members to read the record for themselves.
No formal action or vote followed the discussion; panelists closed by inviting donations to the League of Women Voters Colorado and sharing resources for further reading.
