Supreme Court weighs whether states can keep faith-based preschools out of universal pre-K

The U.S. Supreme Court heard arguments Nov. 3 in a case that could decide how far states can go in setting conditions for religious schools that take part in publicly funded programs. Based on the justices’ questions, a majority appeared open to siding with a group of Catholic preschools in Colorado.

The case, St. Mary Catholic Parish v. Roy, No. 25-581, centers on Colorado’s universal preschool program. The court has posted the audio and full transcript of the two-hour argument.

What the dispute is about

Colorado voters created the program through a 2020 ballot measure, and it launched in 2023. It pays for up to 15 hours a week of free preschool for eligible children at participating public, private and faith-based providers. That benefit is worth more than $6,000 a year per child, according to Becket, the religious liberty law firm representing the challengers, and CBS News.

Every participating preschool must agree to give eligible children an equal opportunity to enroll regardless of characteristics including religious affiliation, sexual orientation and gender identity. The Archdiocese of Denver’s preschools ask families to support the church’s teachings, including on marriage and family. Colorado refused to grant an exemption, so the archdiocese’s preschools do not participate.

The archdiocese, two parishes and Catholic parents sued in 2023. A federal district court and the 10th U.S. Circuit Court of Appeals both ruled for the state.

Becket says enrollment at archdiocesan preschools has fallen 20% since the program began and that two schools have closed. Those figures come from the challengers and have not been independently confirmed by Education Press.

What the justices asked

The core legal question is whether the court’s 2022 decision in Carson v. Makin, which struck down a Maine rule that barred religious schools from a tuition program, also covers a rule that does not mention religion but that religious schools say they cannot follow.

Nicholas Reaves of Becket told the court that letting Catholic schools in “will create more seats for everyone.” Colorado Deputy Solicitor General Helen Norton said the state “welcomes religious preschools” and asks only that they follow the same conditions as every other provider, SCOTUSblog reported. The Trump administration argued in support of the preschools.

Several justices appointed by Republican presidents pressed Colorado. Justice Amy Coney Barrett asked why the state could impose a condition it knew religious schools could not accept. Justice Brett Kavanaugh noted that more than 2,000 preschools take part and asked why the state would not look for a “win/win.”

Justices Elena Kagan and Ketanji Brown Jackson questioned whether Carson applies at all, describing this as a state enforcing its own nondiscrimination rules. Justice Sonia Sotomayor raised concerns about how far a ruling for the schools might reach.

Why school leaders should watch

The ruling matters well beyond Colorado. Other states also run pre-K and private school choice programs that include religious schools, and some attach conditions on admissions, testing or nondiscrimination. A broad decision for the preschools could limit which conditions states can enforce on faith-based schools that accept public money. A narrow decision, or one that sends the case back to lower courts, could leave those questions open.

For Christian and Catholic school leaders, the case is worth tracking before signing any new state program agreement. For families, nothing changes yet. Colorado’s program rules stay in place while the court decides.

A decision is expected by the end of the court’s term, typically in June.