A federal judge ruled on Monday that the state must continue funding a Christian preschool in Chaffee County even though the academy’s policies may violate the non-discrimination requirements of Colorado’s universal pre-kindergarten program.

U.S. District Court Judge Daniel D. Domenico granted what he deemed a “narrow” permanent injunction in favor of Darren Patterson Christian Academy and its 30-to-50 student program.

In a Feb. 24 order, Domenico assumed the state could prove that some LGBTQ preschool students and families would face harm from the academy’s attitudes toward sexual orientation and gender identity. But he concluded the universal pre-K program’s non-discrimination mandate was not narrowly drawn to advance a compelling interest.

“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 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,” wrote Domenico, a first-term appointee of President Donald Trump.

The Colorado Department of Early Childhood and the Colorado Attorney General’s Office did not respond to a request for comment on the decision.

“The government cannot force religious schools to abandon their beliefs and exercise to participate in a public benefit program that everyone else can access,” said Jeremiah Galus, an attorney who represented the academy. Galus is senior counsel for the Alliance Defending Freedom, a group that has litigated on behalf of Christians challenging Colorado’s LGBTQ non-discrimination laws.

Approximately 40,000 children enrolled in the state’s pre-K program in its first year, spanning 2023-2024. The expanded access came after Colorado voters approved funding in 2020 for a “mixed-delivery” system of private and public providers, a step toward one of Gov. Jared Polis’ key campaign promises. Included in the program are roughly 43 faith-based preschool operators that enroll more than 900 children.

Among the requirements of the program, providers must ensure children “an equal opportunity to enroll and receive preschool services” regardless of sexual orientation, gender identity and other characteristics.

Darren Patterson Christian Academy’s 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.

The academy brought one of two federal lawsuits against the non-discrimination requirement. Last June, U.S. District Court Senior Judge John L. Kane concluded the LGBTQ non-discrimination requirement was neutral toward religion and did not require the kind of strict justification that ordinarily dooms laws and regulations.

“When the State is footing the bill, it has a compelling interest in deciding that children may not be denied this experience based on specified discriminatory factors,” Kane wrote in response to the constitutional arguments of two Catholic preschool providers.

Kane, a Jimmy Carter appointee, cautioned that Darren Patterson Christian Academy’s case “differed materially” from the challenge before him. Although Domenico referenced Kane’s decision, his order reached the opposite conclusion about the neutrality of the pre-K non-discrimination requirement.

Domenico wrote that the state does allow deviations from certain program requirements. He compared the academy’s exemption from the non-discrimination mandate to the department’s allowance for “congregations” to have placement preferences for members’ families.

If congregations with similar attitudes toward sexual orientation and gender identity can “effectively exempt themselves from these anti-discrimination rules,” Domenico reasoned, there was no reason not to exempt Darren Patterson Christian Academy. The state insisted to Domenico that congregations could not ignore the non-discrimination prohibition — and that it had repealed the congregation preference after Kane’s ruling.

Domenico ordered the state not to withhold funds or discipline Darren Patterson Christian Academy on the basis that its policies are discriminatory.

Domenico otherwise denied the portion of the academy’s request pertaining to potential interference with its hiring policies. He noted the state had eliminated the disputed language from the provider agreement and the issue was moot.

Darren Patterson Christian Academy had already received more than $30,000 in state pre-K funds as of October 2023, when Domenico preliminarily enjoined state enforcement against the school. At the time, Domenico waved off Colorado’s argument that it had 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,” he previously wrote.

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