Colorado's Universal Preschool 'Equal Opportunity' Clause Is a Modern Blaine Amendment That Unconstitutionally Excludes Catholic Schools
Source: "Supreme Court will hear Colorado Catholic preschool funding dispute | Fox News." November 1, 2026. www.foxnews.com
The Gist
The author argues that Colorado's free preschool program makes schools sign a nondiscrimination pledge that Catholic schools can't sign without violating their beliefs. That locks Catholic families out of funding that others get, much as 19th-century laws targeted Catholic schools. The author says the Supreme Court has already ruled against this kind of exclusion and should require Colorado to make room for Catholic preschools.
Conclusion
Colorado's universal preschool program, by requiring participating schools to accept an 'equal opportunity' clause covering sexual orientation and gender identity, unconstitutionally discriminates against Catholic preschools and families, and the Supreme Court should require Colorado to accommodate Catholic providers.
Premises
- Colorado's program requires participating schools to promise 'equal opportunity,' including on sexual orientation and gender identity, which Catholic schools cannot do without abandoning church teaching on marriage, sexuality and identity.
- The rule never names Catholics but is written so that Catholic schools cannot meet it, which mirrors the Blaine amendments, where 'sectarian' was an open-secret code for 'Catholic.'
- In Trinity Lutheran, Espinoza and Carson, the Supreme Court held that once a state offers a public benefit, it cannot disqualify schools for being religious or practicing their faith.
- Colorado makes exceptions for many other providers (serving only children with disabilities, low-income children, children of color, gender-nonconforming children or LGBTQ+ communities) and can grant case-by-case exceptions, yet offers no flexibility to Catholic schools.
- The exclusion causes measurable harm: about 1,500 children across 30 schools shut out, roughly 20% drop in Catholic preschool enrollment, two preschools closed, and Catholic families paying tuition while their taxes fund others' preschool.
- The relief sought is narrow, since Colorado already accommodates providers whose missions serve particular communities and could do the same for Catholic ones.
Assumptions
- A facially neutral rule that disproportionately burdens a religious group can be treated as religious discrimination when it is functionally equivalent to targeting that group.
- Colorado's non-discrimination requirement is not a compelling interest that justifies the burden on religious schools.
- Colorado's exceptions for other mission-based providers show the state can accommodate differing missions, so refusing a religious exemption is unequal treatment.
- Excluding a school over religious doctrine on marriage and sexuality is equivalent to excluding it for being religious.
- The cited enrollment drop and closures are caused by the policy rather than other factors.
- Historical anti-Catholic animus behind the Blaine amendments is relevant to judging the modern rule's constitutionality, even absent evidence of Colorado's discriminatory intent.