Universal Pre-K Should Mean Universal, Even for Religious Preschools

Colorado promises families a year of free preschool. The state calls the program “universal.” But for families who want their children to learn in a religious classroom, Colorado has a catch: The school must set aside its religious beliefs and practices to take part.

On Nov. 3, the U.S. Supreme Court hears oral argument in St. Mary Catholic Parish v. Roy, which challenges that catch. Our friends at Becket Fund for Religious Liberty are representing a family, two parishes, and the archdiocese. It is the fourth Colorado merits case in less than a decade to bring the First Amendment freedoms of people of faith before the Supreme Court. This time, the question is whether Colorado can design a public benefit program so that religious schools and families can take part only if they change how they practice their faith.

A “universal” program with a big exclusion

Colorado’s universal preschool program, launched in 2023, provides eligible families about $6,300 for 15 hours of preschool a week at public, private, or faith-based preschools.

Dan and Lisa Sheley, Catholic parents of seven, wanted to use the benefit at the preschool run by their parish, St. Mary in Littleton. But the Archdiocese of Denver’s schools ask every family who enrolls to have a “positive and supportive attitude” toward the Catholic Church’s teachings, including its teachings on sex and gender. Colorado said that commitment violates the program’s equal opportunity mandate, which, as the state applies it, leaves no room for a Catholic school to ask families to support its teachings.

This meant that families of more than 1,500 children attending more than 30 Catholic preschools couldn’t use the funding at their children’s schools. Since then, preschool enrollment across the archdiocese has fallen by roughly 20 percent, and two Catholic schools have closed.

Meanwhile, Colorado lets some preschools enroll only low-income families or children with disabilities, even though state law bars discriminating based on income level or disability. It makes room for those limits, but not for a Catholic school’s religious commitments.

The U.S. Court of Appeals for the 10th Circuit sided with Colorado in September 2025. The case has since been appealed to the U.S. Supreme Court.

What’s at stake

The Supreme Court will answer two questions. First, can Colorado claim its rule applies to everyone equally when it makes exceptions for some secular preschools but not for religious ones? Second, can a state get around the Court’s recent rulings simply by writing its rules in neutral-sounding language?

Three times in the last decade, in Trinity Lutheran, Espinoza, and Carson, the Court has held that states cannot cut religious schools out of public benefit programs because of their religious character or conduct. In Carson, the Court also made clear that what matters is what a law actually does, not just how it’s worded. Colorado frames its rule as an equal opportunity mandate. But in practice, it shuts out religious preschools that hold to their teachings. If a state can get around those rulings by labeling an exclusion a nondiscrimination rule, it could treat religious schools worse than secular ones, and those protections would mean very little.

Another school in the same position

Alliance Defending Freedom filed two friend-of-the-court briefs supporting Becket’s clients on behalf of Darren Patterson Christian Academy, a school that ADF represents in its own challenge to the same Colorado program. In Chaffee County, Darren Patterson is the only Christian school offering instruction from preschool through middle school.

Darren Patterson’s case shows this dispute isn’t really about who gets in the door. The school welcomes students and families of all faiths and backgrounds, including those who identify as LGBT, and it already meets the enrollment requirement the 10th Circuit upheld. Yet Colorado has fought to exclude the school because of policies grounded in its beliefs about sex and gender, including policies on pronouns, dress codes, and bathrooms.

Those policies matter most to the families who choose the school. Parents enroll their children at Darren Patterson because it reinforces what they teach at home. Under Colorado’s rules, those parents must either give up the funding or accept a school that doesn’t share their beliefs.

The school asked for a religious exemption in May 2023. Colorado denied it, and ADF filed a lawsuit the next month. In February 2025, a federal district court barred Colorado from excluding the school, noting that the department had “provided exemptions to others—or expressed a willingness to do so—while denying an exemption” for Darren Patterson. Colorado appealed, and the 10th Circuit has paused that appeal until the Supreme Court decides St. Mary.

Not the state’s call

Colorado’s three recent Supreme Court losses to ADF clients are well documented. In each, the state tried to decide which beliefs and viewpoints were acceptable and which weren’t—and the Supreme Court rejected it. St. Mary fits the same pattern: Colorado officials are forcing religious schools to choose between participating in a public benefit program or their religiously-based policies. And the pattern goes back further than those three cases.

In 2008, the 10th Circuit struck down Colorado’s exclusion of certain religious colleges from a state scholarship program, an exclusion based on officials’ judgment that the schools were too religious, or “pervasively sectarian.” The court made clear that it isn’t the state’s role to decide how religious is too religious.

In 2024, the same court held that the University of Colorado’s medical campus likely violated the Constitution by granting religious exemptions from its COVID-19 vaccine mandate to members of some faiths but not others, based on differences in their doctrines. The university later agreed to pay more than $10.3 million to settle that case.

The setting changes, but the problem is the same: Colorado treating people of faith worse because of how they live out their beliefs.

The Catholic families and preschools in St. Mary, like Darren Patterson Christian Academy, aren’t asking for special treatment. They’re asking to take part in a program open to everyone else, on the same terms, without giving up their faith. The Supreme Court should hold Colorado to its own promise: universal should mean universal.