Christian School Challenges Colorado on Exclusionary State-Wide School Funding


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Darren Patterson Christian Academy (DPCA) in Buena Vista, Colorado formally filed a challenge on July 10, 2023 against two non-discrimination provisions in Colorado’s universal preschool funding program. The school is being represented by Alliance Defending Freedom (ADF), and the case will be heard at the United States District Court for the District of Colorado.

DPCA accepts students regardless of whether they are Christian or not. However, the school has a more rigorous evaluation process for incoming faculty and staff; all employees must be born-again Christians and abide by a traditional view of sexual ethics, among other beliefs. Colorado’s universal preschool program provides all 4-year-olds at least 15 hours per week of state-funded preschool opportunities for each school year. The state’s funding comes out to be around $6,000 per pre-school student each academic year.

Given the state’s aid in funding Pre-K education, DPCA applied to be an eligible school for the program. They did, however, seek a religious exemption from the program’s Quality Assurance Provision and Blanket Provision. These provisions bar all participating schools from discriminating on the basis of religion, sexual orientation, or gender identity.

The state denied DPCA’s religious appeal. Now, the school must choose between participating in the program and compromising their religious conviction to exclusively employ Christian teachers, or abide by their religious beliefs and forgo the state’s funding program, which would hurt the school economically. As Colorado has forced the school’s hand, DPCA brought a formal motion for a preliminary injunction against the state.

DPCA raised a host of objections against the state’s non-discrimination rules. First, the plaintiff argues that the state’s rules restrict their religious autonomy and expressive association as a Christian school. In Watson v. Jones, the Supreme Court ruled that religious organizations have a First Amendment right to express and disseminate their religious doctrines, as well as to establish rules that require its members (in this case, DPCA’s faculty and staff) to conform to the standard of morals the organization sees fit. 80 years after Watson, the Court ruled in Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church that the First Amendment confers independence to religious organizations to decide for themselves matters of internal governance in the organization. Lastly, in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, the Court established the “Ministerial Exception” to non-discrimination laws, which grants religious organizations the freedom to hire or fire “ministers” without government intervention. DPCA argues that its teachers function as “ministers” for they are required to teach the Bible and Christian ethics to their students. By extension, the school should fall under the Ministerial Exception.

The school also contends that the state’s rules restrict expressive association. By subjecting the school to non-discrimination policies that may hurt its mission, the state presses against the First Amendment right “to associate with others in pursuit of…educational and religious ends” (see Boy Scouts of America v. Dale). The Supreme Court in Dale clarified that the right to expressive association is both positive and negative. In other words, that right also includes the ability not to associate with individuals that may impair the organization’s ability to express its beliefs. The plaintiff thus argues that the non-discrimination rules hurt its ability to express its beliefs through carrying out its religious and educational mission.

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Lastly, DPCA argues that the state is in violation of the Free Exercise Clause. The Supreme Court has repeatedly held, from Sherbert v. Verner in 1963 to Carson v. Makin in 2022, that the government cannot exclude religious observers from other available public benefits. Further, the Free Exercise Clause protects against both outright prohibitions on exercising religion, but also against subtle and indirect coercion and penalties. By refusing DPCA a religious exemption, the state applied pressure against the school to conform to the non-discrimination policies and by extension, to compromise their religious convictions.

Because the state has established a secular exemption to the non-discrimination rules, but has refused to grant a religious exemption to DPCA, the school argues that the state’s rules are not generally applicable, pursuant to the High Court’s ruling in Fulton v. City of Philadelphia. If the government’s statute is not generally applicable, it must be subject to strict scrutiny, the highest standard of judicial review. Such a standard requires the government to show that the law in question promotes a compelling state interest with a narrowly tailored means that is the least restrictive method to accomplishing the state’s end.

DCPA argues that the state lacks a compelling interest in refusing the school specifically a religious exemption and forcing it to choose between its religious integrity or its participation in the funding program. The state cannot rely on a broadly formulated interest in enforcing its policies generally, but must instead show a compelling interest in denying a religious exemption to DPCA specifically. For the above reasons, DCPA urges the U.S. District Court to grant the preliminary injunction against Colorado’s Department of Early Childhood.

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