A win for religious freedom in Colorado

For the second time in less than a year, another federal trial court judge in Colorado upheld religious freedom in education.

On February 24, 2025, in Darren Patterson Christian Academy v. Roy, Judge Daniel D. Domenico permanently enjoined state officials from denying the preschool the chance to participate in the state’s Universal Pre-School Program (or Universal Pre-K), known as the UPK.

Litigation arose when Colorado officials excluded the Academy from the UPK due to its hiring practices for individuals who are LGBT+ and subjecting students to rules determined by biological sex rather than gender identities.

Darren Patterson Christian Academy v. Roy

In 2020, Colorado voters approved a referendum to fund preschools. Two years later, in 2022, its legislature codified this initiative as its UPK. The UPK relies on public and private funds to provide fifteen hours of free preschool per week for qualified children regardless of their races, ethnicities, religious affiliations, sexual orientations, gender identities, lack of housing, income levels, or disabilities of those of their families. As the trial court noted in the earlier case, the UPK covers almost 40,000 children, or about 60 percent of Colorado’s eligible four-year-olds, including forty-faith-based preschools educating more than 900 children.

In order to take part in the UPK, officials in participating schools must agree to not discriminate based on religion, gender, sexual orientation, or gender identity. Still, officials at the Darren Patterson Christian Academy, which has served “families for over 40 years” refused to hire individuals who do not share its faith while requiring employees and students to abide by rules identified in the introduction.

The two Colorado administrators responsible for overseeing the UPK, although conceding that the requests from Darren Petersen were motivated by bona fide religious beliefs, denied school officials’ attempt to be exempt from its “quality standards provision,” even though they granted similar unspecified requests to other programs. Darren Peterson officials “stated that the program agreement’s non-discrimination clause violated its religious beliefs, including its ‘policies on bathroom and locker room usage, pronoun usage, and dress codes.’”

Darren Peterson officials filed suit in June 2023, represented by Alliance Defending Freedom.

After a federal trial court preliminarily forbade state officials from enforcing the disputed provisions in the state’s anti-discrimination law in October 2023, the judge recently permanently enjoined the enforcement of the statute in a brief fifteen-page order.

Judge Domenico, in his rationale, pointed out that the “‘quality standards’ provision at issue here contemplates exemptions for religious or secular ‘congregations’ but does not permit exemptions for the religious reasons that [Darren Patterson] sought here.” He reasoned that state officials “offered no convincing explanation for ‘why its interest[s are] served by granting exemptions’ for some reasons ‘but not others.’”

As noted, Judge Domenico permanently enjoined state officials “from expelling, punishing, withholding funds from, or otherwise disciplining [Darren Patterson] under the Universal Preschool Program on the basis that Plaintiff’s policies, … violate the program’s statutory or contractual antidiscrimination provisions….”

In sum, Darren Patterson officials can continue to receive public funding and operate the preschool in a manner consistent with their faiths.

The right to the free exercise of religion

This case in Colorado is another example of a conflict over whose values will prevail.

On the one hand, state officials demonstrated their hostility to religious freedom by seeking to compel ideological conformity in attempting to mandate how faith-based institutions can operate. In so doing, these officials blatantly ignored the protections in the First, applied through the Fourteenth, Amendment that the government “shall … make no law prohibiting the free exercise” of religion.

On the other hand, officials from Darren Patterson, as in the earlier 2024 case from Colorado, sought to protect their fundamental constitutional right to the free exercise of religion to operate the preschool in a manner consistent with their deeply held, and shared, founding beliefs.

Judge Domenico presciently observed the significance of the First Amendment in pointing out that, at its heart, this case involved the right to the free exercise of religion without governmental intervention. To this end Domenico commented:

I do not doubt the harm that discrimination may cause to the precocious preschoolers who understand the concept, or that religious parents with gay or transgender children may suffer if the plaintiff is permitted to exclude them from its preschool. But the state’s effort to prevent that harm does not permit it to abridge plaintiff’s First Amendment rights.

A matter that the court did not address but should be kept in mind is that the far-reaching Title VII of the Civil Rights Act of 1964 affords faith-based employers the right to set hiring standards in accord with their religious beliefs. Even in a case under state law, it is unclear why state officials would not follow the lead of a significant federal statute by allowing good faith exceptions to the “quality standards” provision applicable to the UPK program. Under Title VII, being a member of an institution’s religion and, at least outwardly, and hopefully inwardly, living according to its teachings are standards referred to as bona fide occupational qualifications or BFOQs. Title VII explains that BFOQs are “reasonably necessary to the normal operation of that particular business or enterprise”—in this case, a faith-based preschool where educators teach children the fundamentals of their faiths.

No one, of course, should be subject to discrimination based on personal characteristics, a protection that is supposed to extend both ways. However, to the extent that Colorado law granted exceptions to other programs, even in acknowledging that school officials based their request on their bona fide religious beliefs, state officials were unwilling to accommodate their faith-based needs.

The actions of Colorado officials who attempted to deny Darren Patterson the ability to participate in the UPK violated the Supreme Court’s powerful words as it emphasized that “the exclusion of [this school] from a public benefit for which it is otherwise qualified, solely because it is [religiously affiliated], is odious to our Constitution all the same, and cannot stand.”