A Utah-based think tank is asking a federal appeals court to protect a Colorado Christian school’s ability to participate in the state’s “universal” preschool program without changing what it teaches on gender and sexuality.
On Monday, the Sutherland Institute filed an amicus brief in the 10th U.S. Circuit Court of Appeals in the Darren Patterson Christian Academy v. Roy case.
Catholic preschools in the Denver area have asked the U.S. Supreme Court to review a similar case.
The Becket Fund for Religious Liberty is supporting the Archdiocese of Denver, several parish preschools and a Catholic family who filed a petition asking the Supreme Court to review a separate 10th Circuit Court decision that upheld Colorado’s exclusion of Catholic preschools from the same program because of their faith-based admissions and conduct policies.
What the Colorado preschool program requires
Colorado’s Universal Preschool Program grew out of a 2020 voter-approved tax measure, Proposition EE, and subsequent legislation. The program provides 15 hours per week of free preschool to 4-year-olds at public, private or faith-based schools that choose to participate.
To receive state funds, preschools must sign an “equal opportunity” nondiscrimination agreement promising equal access regardless of characteristics including race, religion, disability, sexual orientation and gender identity.
State officials and advocates say that requirement is necessary to ensure publicly funded schools do not turn away LGBTQ+ children or children of LGBTQ+ parents and that all families have equal access to a public benefit.
In a public statement celebrating a recent 10th Circuit Court decision in a related case, Colorado officials from the Department of Early Childhood called the preschool program “a model example of maintaining neutral and generally applicable nondiscrimination laws while nonetheless trying to accommodate the exercise of religious beliefs.”
Some interfaith and civil liberties groups supporting the state’s position have argued that the equal-opportunity provision is designed to prevent discrimination against LGBTQ+ families and that applying those rules consistently is, as the Interfaith Alliance Foundation says, a “fundamental public interest.”
According to the law firm LCW, Darren Patterson Christian Academy, which operates Busy Bees Preschool in Buena Vista, initially signed on to the universal preschool program and was approved to participate. But after joining, school leaders said the state’s nondiscrimination rules could force them to change faith-based policies related to employee hiring, pronoun use, restrooms and dress codes.
The Darren Patterson case: Christian preschool and gender-identity rules
In 2023, the academy filed a lawsuit against Colorado officials, arguing that the state’s refusal to grant a religious exemption violated the free exercise clause of the First Amendment.
According to Courthouse News Service, in February 2025, a federal district court judge agreed in part, issuing an injunction barring the state from enforcing portions of the nondiscrimination requirement against the school while allowing it to stay in the program.
State officials appealed, and the 10th Circuit Court case — now drawing Sutherland’s support on behalf of the school — is pending.
In its amicus brief, Sutherland frames the dispute as a broader test of parental rights and religious liberty, leaning on Supreme Court precedents such as Pierce v. Society of Sisters, Espinoza v. Montana Department of Revenue and Carson v. Makin — cases that affirmed parents’ rights to direct the religious upbringing of their children and restricted states from excluding religious schools from generally available public benefit programs because of their religious character or exercise.
Sutherland Institute: Policy ‘puts an undue burden’ on religious schools
In a news release Tuesday, Sutherland Institute — a nonpartisan think tank based in Salt Lake City that often focuses on issues related to families and religious freedom — announced its brief and released a statement from its Constitutional Law and Religious Freedom Fellow, William C. Duncan.
“The Colorado Department of Early Childhood puts an undue burden on the constitutional rights of religious schools in Colorado, forcing them to abide by a moral code that they do not hold,” he said. “The department’s policy will implicate the free exercise of religion by these schools and their students.”
In its brief, Sutherland argues that Colorado’s Department of Early Childhood is not just burdening one academy but also the “religious exercise of families and other schools” that share traditional beliefs about gender and sexuality.
Citing data from the Learning Policy Institute, the brief notes that Colorado has 382 private schools, about 16% of all schools in the state, and that approximately 58% of those private schools are religious. It also highlights estimates from the Education Data Initiative that average private elementary school tuition in Colorado tops $12,000 a year — a barrier the universal preschool program is meant to soften for many families.
Catholic preschools ask Supreme Court for ‘same access’
While the Darren Patterson case is still on appeal, the Archdiocese of Denver and a group of Catholic parish preschools have already lost at the 10th Circuit Court in a parallel lawsuit and are now asking the U.S. Supreme Court to step in.
According to Becket, in St. Mary Catholic Parish v. Roy, the archdiocese, two parish preschools and a Catholic family challenged Colorado’s decision to exclude parish preschools from the universal preschool program because they ask families to support Catholic teaching and reserve the right to make admissions and conduct decisions consistent with church doctrine.
On Sept. 30, the 10th Circuit Court upheld the state’s policy, ruling that Colorado could require participating preschools to sign the nondiscrimination agreement, including its stance on sexual orientation and gender identity. The court called the preschool program “a model example” of a neutral, generally applicable nondiscrimination policy.
Last week, Becket, a religious liberty law firm, filed a petition asking the Supreme Court to review that ruling, arguing that it conflicts with previous rulings and effectively punishes Catholic schools and parents “for operating according to their religious beliefs.”
Scott Elmer, chief mission officer for the Archdiocese of Denver, said Catholic preschools and families are simply asking to participate on the same terms as others.
“Our preschools exist to help parents who want an education rooted in the Catholic faith for their children,” said Elmer. “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.”
Becket’s petition says Colorado’s rules have “had their predictable effect”: enrollment at Catholic preschools has declined and two schools, including one serving predominantly low-income and minority families, have closed since the program began.
Nick Reaves, senior counsel at Becket, said in the same release that the case is about preventing government from favoring some religious views over others.
“Colorado is picking winners and losers based on the content of their religious beliefs,” said Reaves. “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.”
Becket’s statement explains that “the Supreme Court is likely to decide in early 2026 whether to hear the Catholic preschools’ case.