Riverstone Academy, a public elementary school that opened last fall in Pueblo as a tuition-free option with Christian-based instruction, has filed a lawsuit against the state of Colorado over alleged religious discrimination.

The lawsuit, filed in U.S. District Court for the District of Colorado, claims that Colorado law violates the free exercise clause of the First Amendment in the U.S. Constitution by prohibiting any public funding toward religious schools.

“Colorado law treats religious schools differently just because they’re religious,” said plaintiff attorney Michael Francisco in a statement. “This is yet another example of Colorado trying to unconstitutionally punish and exclude people of faith just because it doesn’t like their beliefs.”

The plaintiffs also allege that state law and actions taken by the Colorado Department of Education (CDE) violate the Fourteenth Amendment rights of Riverstone’s students and families.

The K-5 school, along with its Monument-based contractor Education ReEnvisioned Board of Education Services (ERBOCES), is named as the plaintiff, and Colorado Commissioner of Education Susana Córdova and the Colorado Board of Education are named as defendants.

A CDE spokesperson told The Gazette via email that they are unable to discuss pending litigation.  

Riverstone opened this past fall as a public contract school to offer “strong academics with classical values, hands-on trade-based learning, and a Christian foundation to help students grow in both knowledge and character,” according to its website.

During a presentation at School District 49’s board of education meeting on Oct. 9, the BOCES’s executive director, Ken Witt, called the school “Colorado’s first public Christian school.”

According to a letter submitted to Witt and D-49 Superintendent Peter Hilts on Oct. 10, CDE became aware of the school and its openly Christian programming after it opened last fall. D-49 is the district designated by CDE as the fiscal agent through which some of the BOCES’ funding passes.

The letter went on to note that the Colorado constitution doesn’t permit sectarian tenets or doctrines to be taught in public schools, while the U.S. Constitution states, “Congress shall make no law respecting an establishment of religion.”

As such, any public school operating under these constitutions, which include ERBOCES schools, must be nonsectarian.

BOCES are state-authorized entities that provide funding for brick-and-mortar schools, online schools, special education services and homeschool enrichment programs for partnering school districts across Colorado.

The Riverstone’s memorandum of understanding to operate within Pueblo County D-70’s boundaries was approved with little public notice in June 2025 by the district’s board of education. The decision came at the recommendation of the district’s legal counsel, Brad Miller, according to an email acquired by The Gazette.

In the same message, Miller said he was asked by the nonprofit conservative Christian legal advocacy group, Alliance Defending Freedom, to initiate a legal case in Colorado similar to the U.S. Supreme Court case concerning publicly funded religious schools in Oklahoma that resulted in a deadlock vote.

Miller has also provided legal counsel to D-49’s board and Woodland Park RE-2’s board when Witt served as its superintendent in recent years.

Earlier this month, Gazette news partner KOAA reported that Riverstone had closed its building following threats from Pueblo County to shut down its utilities.

At the D-70 board of education’s regular meeting on Jan. 27, Pueblo County Commissioner Miles Lucero said that the building, located at 1950 Aspen Circle, was out of compliance with county zoning, building, fire and health department codes during the public comment period.

“I don’t know without a shadow of a doubt that there is or is not an unsafe condition over at that school,” he said. “But I do know that that organization has not gone through the proper steps to achieve compliance with any of the agencies responsible for the oversight and the safety of our kids.”

Riverstone did not immediately respond to a Gazette inquiry about the school’s current operating status or where enrolled students are attending classes.

The court complaint noted that 29 students were enrolled at the school this academic year and that CDE approved ERBOCES’ funding request that accounted for this headcount. It went on to say that the department notified ERBOCES that it would be subject to an audit of its pupil count for the upcoming school year and that, if it finds state law violations, it will claw back funding.  

On Feb. 2, ERBOCES submitted a letter to CDE asking it to clarify both its obligations under state law and whether its funding might get clawed back following the audit. The lawsuit alleges that CDE never responded, but The Gazette obtained a response dated Feb. 13, the day the suit was filed.

In this response, CDE district operations special advisor Jennifer Okes wrote that they were selected for the audit based on the criteria applied to all districts and clarified that the department doesn’t grant funding to individual schools.

“CDE distributes state share of total program to school districts and to the state charter school institute,” Okes wrote.

“With exceptions not relevant here (like funding for district charter schools), state law does not dictate how school districts allocate total program funds to the individual schools or programs within their districts or the BOCES with which they contract.”

Since the school announced its building vacation following ERBOCES’s letter to CDE, Okes concluded hers with a question regarding its current operating status and if it’s providing the scheduled instruction time for its students.

Leading up to the audit, Witt submitted a letter to CDE stating the same arguments made in the complaint.  

The complaint also argues that the Blaine Amendment in Colorado’s constitution, which states that no state entity shall “help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever,” was enacted out of “anti-religious bigotry.”

“The State’s interpretation and enforcement of its Blaine Amendment evinces (sic) this hostility to religion even today,” it read.

The suit is asking for a declaration that Riverstone’s funding will not get clawed back and a permanent injunction preventing future similar actions against the school.