“Indeed, exclusion of a preschool is inherently anti-universal, and denying participation based on one’s protected beliefs or speech is not equitable,” wrote U.S. District Court Judge Daniel Domenico when he enjoined the state government from withholding Universal Preschool program funding from or otherwise penalizing Darren Patterson Christian Academy.
The Buena Vista school was approved to participate in the state’s new preschool program which provides eligible Colorado preschoolers at least 15 hours of instruction a week at public and private schools. School leaders were concerned that their policies might conflict with the state’s discrimination law and asked the Department for Early Childhood Education for an exemption.
Darren Patterson Christian Academy enrolls students of any religious background but only hires Christians who are committed to the school’s mission. The school’s policies on pronouns, dress code, and bathroom use reflect the religious belief that god determines sex and it cannot be based on individual gender expression.
When denied the exemption, the school sought relief in civil court. The judge granted a temporary injunction because the plaintiff is at risk of being penalized for exercising First Amendment rights under the Constitution and the school is likely to succeed in its suit against the state.
The decision explains how multiple Supreme Court precedents affirm the right of faith-based institutions including schools to hire employees who share their religious convictions.
Discrimination laws cannot interfere with the selection of teachers and other school personnel who have a ministerial duty to inculcate the faith. Moreover, the First Amendment protects the right to associate for educational and religious ends and to thus not associate with those who do not share the same convictions.
The Constitution also protects religious practice within organizations. The government cannot discriminate against faith-based organizations that are otherwise eligible for state funding or demand that such organizations abandon their teachings and practices or risk losing funding.
Darren Patterson Christian Academy is also likely to prevail in its Free Speech claims against state requirements that personnel use individuals’ preferred pronouns rather than pronouns that correspond to biological sex. The Supreme Court’s recent 303 Creative v Elenis decision made it clear that the Constitution not only prevents the government from restricting free speech; it also prevents it from compelling speech. Also, lower courts have ruled individuals cannot be forced to use preferred pronouns or to otherwise disregard biological sex differences in favor of gender preferences. Lawmakers and government employees can use preferred pronouns but they cannot compel others to do so.
Thus Darren Patterson Christian School can choose to hire only those who share its religious convictions and can continue to maintain its policies regarding gender distinctions under the Free Exercise and Free Speech clauses of the First Amendment while participating in Colorado’s Universal Preschool program.
The state argued unsuccessfully that denying program participants First Amendment rights was necessary to maintain an equitable and universal preschool program. As the judge noted in his decision, shutting out the only preschool in Chaffee County and the children it serves from the government program is anything but equitable and universal.
Critics complain that they must subsidize faith-based schools with their tax dollars. They are all too happy to make religious taxpayers subsidize schools that are anything but neutral on controversial topics. That’s not fair. Those who laud equity and tolerance should desire peaceful coexistence.
It is time for the state to accept that there are diverse opinions regarding human sexuality. Since views on these issues are often grounded in ancient scriptures and deep religious convictions, they will not be supplanted.
There will always be people who believe that sexual activity belongs within marriage, marriage is the union of a man and woman, and sex is binary, determined at conception, and immutable. Their right to speak and act is protected by the Constitution no less and no more than it is for those who hold different views.
Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer.
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