A federal judge has blocked the state from “expelling, punishing, withholding funds from, or otherwise disciplining” a Christian preschool in Chaffee County, even though its policies appear to violate the non-discrimination requirements of Colorado’s universal pre-K program.

U.S. District Court Judge Daniel D. Domenico last week granted Darren Patterson Christian Academy a preliminary injunction based on a fear of future consequences, rather than any current threat. The school is actively participating in the pre-K program, the state has given it more than $30,000 and there have been no complaints that Darren Patterson Christian Academy is discriminating against staff or students.

Nonetheless, Domenico slammed the state for failing to say outright whether the school’s policies on hiring, bathroom usage and personal pronouns are violations of the pre-K program’s non-discrimination rules. He also observed Gov. Jared Polis had made comments outside of court suggesting the state would move to ensure preschool providers do not discriminate.

“The ultimate question here is whether Plaintiff faces a credible threat of enforcement,” Domenico wrote in an Oct. 20 order, finding the answer is “yes.” 

“It can continue implementing its policies, as it has, but with the specter of enforcement, perhaps even immediate termination of the agreement, looming each day,” he added.

It was Domenico’s second high-profile ruling in 24 hours in a religious exercise case. The following day, Domenico, a Donald Trump appointee, would grant an injunction to a Catholic health clinic barring the state from enforcing a new law against “abortion reversal” treatment.

The order also came less than four months after the U.S. Supreme Court, in another case arising from Colorado, held that free speech rights trump state anti-discrimination laws in some contexts. Domenico cited the case, 303 Creative v. Elenis, nine times in his decision.

“What we are seeing is a predictable, but depressing, use of the ‘law’ to protect and encourage bigotry aimed at the LGBT+ community,” said John M. McHugh, an attorney who litigates LGBTQ rights cases. “The idea that the state must fund such bigotry would shock the framers of the Fourteenth Amendment and it should shock every citizen of this state and country.”

However, Domenico noted the state bypassed the constitutional arguments from Darren Patterson Christian Academy – insisting that the school, as an ongoing participant in the pre-K program, did not have standing to sue.

In 2020, Colorado voters approved funding for a universal preschool program providing at least 15 hours of schooling each week, a step toward one of Polis’ key campaign promises. Although enrollment issues and funding uncertainties have arisen with the rollout of the program, 61% of 4-year-olds in Colorado are participating this year through 1,905 providers. That number includes 40 faith-based preschool operators who enroll a total of 904 children.

Darren Patterson Christian Academy registered its preschool through the program in January. Its lawsuit explained that employees must be “born again Christians.” It teaches there are “two unique, immutable sexes,” that “sexual activity outside of Biblical marriage” is wrong, and marriage is a “sexually exclusive” union between a man and a woman. The academy requires people to use bathrooms and pronouns that correspond with sex assigned at birth, not gender identity.

Although it signed a contract containing the non-discrimination provisions, the school sued the state months later on the grounds that the program violated its First Amendment right to religious exercise.

At a hearing before Domenico earlier this month, the state argued the academy had not suffered any injury, given that it was actively receiving public money to participate in the pre-K program.

The state “has no reason to investigate and believe they’re not in compliance,” said Assistant Attorney General Janna K. Fischer.

“Even though they’ve told you multiple times, ‘We discriminate in ways that are prohibited by the requirements?'” Domenico asked.

Domenico was ultimately unconvinced Darren Patterson Christian Academy was in no danger of state enforcement. He pointed out the government never explicitly said whether the school is in violation of the non-discrimination provisions.

“Perhaps even more telling is the fact that, hours after the hearing,” Domenico wrote, “the governor’s office issued a comment directly in response to this case.”

The statement from Polis’ office said that voters clearly enacted a preschool program “that doesn’t discriminate against everyone,” and the state “will vigorously defend this landmark program.”

Based on multiple pro-religion decisions from the Supreme Court in recent years, including a ruling that addressed public funding for religious schools, Domenico determined Colorado’s non-discrimination rules force Darren Patterson Christian Academy to violate its beliefs or else risk consequences. He waved off Colorado’s argument that it has a compelling interest in eliminating discrimination in educational programs.

“Even assuming that this is true, such an interest is not ‘of the highest order’ such that the anti-discrimination rules can survive,” Domenico wrote.

Although he did not evaluate the preschool’s practice of requiring people to use bathrooms corresponding to their biological sex, Domenico found Darren Patterson Christian Academy is likely to succeed on its claims relating to the use of personal pronouns. He likened the case to a ruling from 2021 out of Ohio, where a federal appeals court sided with a professor who was disciplined for not using the proper pronouns of a transgender student.

Finally, Domenico was unmoved by Colorado’s argument that its preschool program is meant to be “equitable” and “universal” for children.

“Indeed, exclusion of a preschool is inherently anti-universal, and denying participation based on one’s protected beliefs or speech is not equitable,” he concluded.

Jeremiah Galus, an attorney with the Alliance Defending Freedom who represents Darren Patterson Christian Academy, praised the ruling.

“The government cannot force religious schools to abandon their beliefs and exercise to participate in a public benefit program that everyone else can access,” he said in a statement.

The case is Darren Patterson Christian Academy v. Roy et al.