Colorado Catholic parents and preschools ask Supreme Court for equal treatment

State bars Catholic preschools & families from its “universal” preschool program

(Denver Catholic file photo)

Catholic preschools in the Archdiocese of Denver have been seeking equal treatment for more than two years, in the face of Colorado's exclusion of religious schools from their "Universal" Preschool Program (UPK). The fight began in August 2023, when a team of lawyers from Becket filed a lawsuit against Colorado on behalf of two of the Archdiocese of Denver's Catholic preschools. After a trial in January 2024, a federal court ultimately supported the state's decision to exclude religious preschools from the program. Following this ruling, the Catholic preschools appealed to the United States Court of Appeals for the Tenth Circuit, which also sided with Colorado, allowing the state to continue excluding these Catholic preschools. Now, the team at Becket has announced that these Archdiocesan Catholic preschools, together with the Archdiocese of Denver and a Colorado Catholic family, are asking the United States Supreme Court for equal treatment under the law. Becket's press release follows, printed in full:

The Archdiocese of Denver, a group of Catholic preschools and a Catholic family in Colorado asked the Supreme Court yesterday to stop the state government from excluding them from Colorado’s new “universal” preschool (UPK) program because of their faith. In St. Mary Catholic Parish v. Roy, the U.S. Court of Appeals for the Tenth Circuit recently upheld the state’s exclusion, punishing faith-based schools and the families they serve for operating according to their religious beliefs. The court even praised Colorado’s discriminatory regime as a “model” and an “example” for other states to follow. With Becket’s help, Catholic parents and preschools are asking the Supreme Court to ensure that Colorado makes good on its promise of universal preschool. 

Families who send their kids to Catholic preschools in the Archdiocese of Denver expect them to receive a high-quality education and to be part of a faith-centered Catholic community. That’s exactly what these preschools offer, supporting parents with the religious and educational upbringing of their children by providing excellent intellectual, moral and spiritual formation. When Colorado launched its UPK program—offering families 15 hours of free preschool per week at the private or public schools of their choice—families sending their kids to Catholic schools across Colorado were eager to participate. But state officials imposed restrictions that excluded all parish preschools because they ask families who enroll to be supportive of their Catholic faith. 

“Our preschools exist to help parents who want an education rooted in the Catholic faith for their children,” said Scott Elmer, Chief Mission Officer for the Archdiocese of Denver. “All we ask is for the ability to offer families who choose a Catholic education the same access to free preschool services that’s available at thousands of other preschools across Colorado.” 

Colorado families, like plaintiffs Dan and Lisa Sheley, who want a Catholic education for their kids are now forced to pay thousands of dollars out of pocket each year while those attending over 2,000 other preschools — public or private — get 15 hours of preschool per week paid for the by the state. 

The state’s discriminatory rules have had their predictable effect: Since UPK began, enrollment at Catholic preschools has swiftly declined, while two Catholic preschools have shuttered their doors, including one that predominantly served low-income and minority families. The Archdiocese and its parish preschools, along with a Catholic family, have been fighting the exclusion in federal court for more than two years. The Tenth Circuit recently sided with the state, upholding its ban on schools with faith-based admissions policies, even while Colorado admits that it looks the other way when nonreligious schools have admissions policies that violate state law. The Tenth Circuit’s ruling defies the Supreme Court’s recent decisions in Carson, Espinoza and Trinity Lutheran, which held that states cannot exclude religious schools from public benefits because of their religious exercise. Becket is asking the Court to stop Colorado’s attempt to dodge this bedrock precedent and instead ensure that universal preschool in Colorado truly is universal. 

“Colorado is picking winners and losers based on the content of their religious beliefs,” said Nick Reaves, senior counsel at Becket. “That sort of religious discrimination flies in the face of our nation’s traditions and decades of Supreme Court rulings. We’re asking the Court to step in and make sure ‘universal’ preschool really is universal.”  

The Court is likely to consider taking the case in early 2026.