Amicus Curiae Brief — St. Mary Catholic Parish, Littleton, Colorado, et al., Petitioners v. Lisa Roy, in Her Official Capacity as Executive Director of the Colorado Department of Early Childhood, et al.
Supreme Court briefJul 2, 2026
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No. 25-581
IN THE
Supreme Court of the United States
____________________
ST. MARY CATHOLIC PARISH,
LITTLETON COLORADO, ET AL.,
Petitioners,
v.
LISA ROY, IN HER OFFICIAL CAPACITY AS EXECUTIVE
DIRECTOR OF THE COLORADO DEPARTMENT OF EARLY
CHILDHOOD, ET AL.,
Respondents.
____________________________________
On Writ of Certiorari to the United States Court of
Appeals for the Tenth Circuit
___________________________________
BRIEF OF AMICI CURIAE EDCHOICE, INC., DEFENSE
OF FREEDOM INSTITUTE, WAGNER FAITH FREEDOM
CENTER, AND WISCONSIN INSTITUTE FOR LAW &
LIBERTY IN SUPPORT OF PETITIONERS
____________________________________
Thomas M. Fisher
Counsel of Record
Bryan G. Cleveland
Melinda R. Hudson
EdChoice Legal Advocates
111 Monument Circle, Suite 2650
Indianapolis, IN 46204
(317) 681-0745
tfisher@edchoice.org
Counsel for Amici Curiae
Additional counsel listed inside cover
Donald A. Daugherty, Jr.
DEFENSE OF FREEDOM
INSTITUTE
1455 Pennsylvania Avenue NW,
Suite 400
Washington, DC 20004
(414)559-6902
don.daugherty@dfipolicy.org
Counsel for Defense of Freedom
Institute
Richard M. Esenberg
Cory J. Brewer
WISCONSIN INSTITUTE FOR LAW
& LIBERTY
1241 N. Franklin Pl.
Milwaukee, WI 53202
(414)727-9455
rick@will-law.org
cbrewer@will-law.org
Counsel for Wisconsin Institute
for Law & Liberty
William Wagner
GREAT LAKES JUSTICE
CENTER
5600 West Mount Hope
Highway
Lansing, MI 48917
(517)643-1765
Prof.WWJD@gmail.com
Counsel for Wagner Faith &
Freedom Center
i
QUESTIONS PRESENTED BY THE PETITION
1. Whether proving a lack of general applicability
under Employment Division v. Smith requires showing unfettered discretion or categorical exemptions
for identical secular conduct.
2. Whether Carson v. Makin displaces the rule of
Employment Division v. Smith only when the government explicitly excludes religious people and institutions.
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................. iv
INTEREST OF AMICUS CURIAE ........................ 1
STATEMENT ............................................................ 4
SUMMARY OF THE ARGUMENT ....................... 6
ARGUMENT ........................................................... 10
I.
Colorado’s “Equal Opportunity” Universal
Pre-K Mandate Unconstitutionally
Discriminates Against Religious Exercise. .. 10
A. Carson, not Smith, applies. ....................... 10
1. For education-benefit programs, Carson
supplies a categorical rule against
exclusions rooted in religious
exercise. ..................................................... 10
2. The Tenth Circuit erred when it limited
Carson to exclusions that use magic
words to target religion. ........................ 14
B. Under Carson, Colorado’s “equal
opportunity” exclusion violates freeexercise rights of religious schools and
parents. .......................................................... 18
iii
II. Colorado’s “Equal Opportunity” Mandate Is
Not Generally Applicable and Fails Strict
Scrutiny. ........................................................ 20
A. The mandate is not generally
applicable. ..................................................... 21
1. Exceptions from the mandate trigger
strict scrutiny. ......................................... 21
2. The Tenth Circuit erred by considering
only whether the program permitted
exceptions from the mandate as to
sexual orientation and gender
identity…. ................................................. 25
B. Colorado’s broad interest in protecting
equal access to education does not
justify excluding religious education
providers. ....................................................... 27
III. True “Model” School Choice Programs Respect
Religious Pluralism. ...................................... 30
A. Other states’ education choice programs
allow all religious education options....... 30
B. Concrete religious pluralism produces
successful school choice pograms. ............ 33
CONCLUSION ....................................................... 35
iv
TABLE OF AUTHORITIES
Cases
303 Creative LLC v. Elenis,
600 U.S. 570 (2023) .............................................. 30
Am. Legion v. Am. Humanist Ass’n,
588 U.S. 29 (2019) ................................................ 11
Carson v. Makin,
596 U.S. 767 (2022) ............ 4, 7, 8, 9, 10, 12, 13, 14,
15, 16, 17, 18, 19, 20
Cath. Charities Bur., Inc. v. Wis. Lab. & Indus. Rev.
Comm’n,
605 U.S. 238 (2025) .............................................. 17
Cf. Students for Fair Admissions, Inc. v. President &
Fellows of Harvard College,
600 U.S. 181 (2023) .............................................. 24
Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah,
508 U.S. 520 (1993) .............................................. 19
Employment Div. v. Smith,
494 U.S. 872 (1990) ................. 10, 11, 12, 13, 17, 21
Espinoza v. Mont. Dep’t of Rev.,
591 U.S. 464 (2020) .........................3, 12, 15, 16, 19
Fulton v. City of Philadelphia,
593 U.S. 522 (2021) ..... 20, 21, 22, 23, 24, 25, 27, 28
v
Hosanna-Tabor Evangelical Lutheran Church and
Sch. v. EEOC,
565 U.S. 171 (2012) .............................................. 11
Mahmoud v. Taylor,
606 U.S. 522 (2025) .................................. 11, 13, 17
Masterpiece Cakeshop v. Colo. Civ. Rights Comm’n,
584 U.S. 617 (2018) .............................................. 10
Mitchell v. Helms,
530 U.S. 793 (2000) ................................................ 3
Morse v. Frederick,
551 U. S. 393 (2007) ............................................. 13
Mount Elliott Cemetery Ass’n v. City of Troy,
171 F.3d 398 (6th Cir. 1999) ................................ 11
Our Lady of Guadalupe Sch. v. Morrissey-Berru,
591 U.S. 732 (2020) ........................................ 11, 12
Tandon v. Newsom,
593 U.S. 61 (2021) ................................................ 11
Trinity Lutheran Church of Columbia, Inc. v. Comer,
582 U.S. 449 (2017) ........................................ 16, 19
Wisconsin v. Yoder,
406 U.S. 205 (1972) ........................................ 11, 13
vi
Statutes
Ala. Code § 16-6J-5 .................................................. 32
Ala. Code § 26-24-23 ................................................ 31
Ariz. Stat. § 15-2404 ................................................ 32
Colo. Rev. Stat. § 26.5-4-205 .......................4, 7, 22, 26
Colo. Rev. Stat. §§ 26.5-4-201 .................................... 4
Fla. Code § 1002.53 .................................................. 31
Fla. Code § 1002.55 .................................................. 31
Fla. Code §§ 1002.51 ................................................ 31
H.B. 200 § R00A03.05 (Md. 2023) ........................... 32
Ind. Code 12-17.2-7.2 ............................................... 31
Me. Rev. Stat. 5 § 4602 ............................................ 32
S.C. Code § 59-8-150 ................................................ 32
Tenn. Code § 49-6-2609............................................ 32
Tenn. Code § 49-6-3508............................................ 32
Tex. Code § 29.368 ................................................... 32
W.V. Code § 18-31-11 ............................................... 32
Wis. Stat. § 119.23 ................................................... 33
vii
Other Authorities
Annie Martin and Leslie Postal, ‘LGBTQ’ Awareness
Training Offered to Private Schools that Accept
State Scholarships, Orlando Sentinel (Oct. 7,
2020), https://tinyurl.com/d3fmbnr5 .................... 31
Ben Scafidi, Colyn Ritter, The 2026 EdChoice
Friedman Index (Feb. 2026),
https://tinyurl.com/yh2fvzw6 ............................... 31
Coleman, J. S., & Hoffer, T., Public and Private High
Schools: The Impact of Communities (1987) ....... 35
EdChoice, The 123s of School Choice, 5 (2024) ....... 33
Julie Trivitt & Patrick Wolf, School Choice and the
Branding of Catholic Schools, Education Finance
and Policy (2011) .................................................. 34
M. Danish Shakeel, Patrick J. Wolf, et al., The
Public Purposes of Private Education: A Civic
Outcomes Meta-Analysis, 36 Ed. Psych. Rev. 40
(2024) .................................................................... 34
Macedo, S., Diversity and Distrust: Civic Education
in a Multicultural Democracy (2000) ................... 35
Marge Pitrof, Milwaukee Voucher Program Turns 25:
The History, WUWM (Nov. 17, 2014),
https://tinyurl.com/cbadsu5m .............................. 32
Martin F. Lueken, Fiscal Effects of School Choice
219–20 (Nov. 2021), https://tinyurl.com/23v9mtz5
............................................................................... 33
viii
Milton Friedman, Capitalism and Freedom 97 (1962)
................................................................................. 2
MPCP Facts and Figures for 2025–26, Wis. Dep’t of
Pub. Instruction, https://tinyurl.com/558d9wdk
(last accessed June 30, 2026) ............................... 33
Private School Directory, Fla. Dep’t of Educ.,
https://tinyurl.com/4aah7w49 (last accessed June
30, 2026)................................................................ 31
Prud’homme, J., The Potential of Catholic Schools:
Public Virtues Through Private Voucher, Journal
of Catholic Education, 25(1), (2022)..................... 35
Russ Kava, Wis. Legis. Fiscal Bur., Milwaukee
Parental Choice Program (Jan. 2003),
https://tinyurl.com/359dmmpf ............................. 32
What is Florida’s Voluntary Prekindergarten
Education Program (VPK), Fla. Dep’t of Educ.,
https://tinyurl.com/fmjmmfw3 (last accessed June
19, 2026)................................................................ 31
Rules
8 Colo. Code Reg. 1404-1 § 4.109 ......................... 5, 22
8 Colo. Code Reg. 1404-1 § 4.110 ............................... 4
Vt. Admin. Code § 7-1-3:2223.2 ............................... 32
1
INTEREST OF AMICUS CURIAE 1
EdChoice is a nonprofit, nonpartisan 501(c)(3) organization that serves as a national leader in education-choice research, fiscal analysis, policy development, training, outreach, and legal defense.
EdChoice’s mission is to advance education freedom
and choice for all as a pathway to successful lives and
a stronger society. EdChoice supports policies that afford families financial access to educational opportunities that best fit the needs of their children—
whether public school, private school, charter school,
home school, or any other learning environment.
The Defense of Freedom Institute for Policy Studies (“DFI”) is a national nonprofit organization dedicated to defending and advancing educational freedom and opportunities for every American family and
student and to protecting their civil and constitutional rights. DFI was founded by former senior leaders of the U.S. Department of Education who are experts in education law and policy. As part of its mission, DFI litigates extensively on behalf of students,
parents, faculty, and schools raising First Amendment challenges to governmental actions, including
in support of Free Exercise rights like those at issue
in this case.
Housed on the campus of Spring Arbor University,
the Wagner Center serves as a national academic
voice for freedom of thought, conscience, and religion.
1 No party or its counsel authored any of this brief, and no person
other than amici curiae, their members, or their counsel contributed monetarily to this brief.
2
Most importantly for this case, the Wagner Center
works to preserve religious freedom and the freedom
to educate, holding a significant interest in the
preservation of constitutional rights.
Wisconsin Institute for Law & Liberty (WILL) is a
public interest law and policy center dedicated to advancing the public interest in limited government,
free markets, individual liberty, and a robust civil society. A significant focus of this mission includes advocating for educational freedom in Wisconsin and
around the country.
Amici are interested in this case because they support education choice programs that allow families to
choose educational opportunities, including religious
education options, that best fit their children’s needs.
Education freedom requires education pluralism. Parents and their children benefit little from a choice
among multiple versions of the same educational content and environment. As EdChoice’s founder, Nobel
laureate economist Milton Friedman, observed, the
problem to be solved by education freedom is “an excess of conformity” and the solution “is to foster diversity” in education. Milton Friedman, Capitalism and
Freedom 97 (1962).
Colorado’s Universal Preschool Program has potential to provide education freedom to its families
with preschool-aged children. But the program fails
its promise—and violates the Constitution—when it
discriminates against Catholic schools. Through its
so-called “equal opportunity” mandate, the state dis-
3
favors Petitioners’ religious beliefs, homogenizes
school options, and rejects pluralism.
Colorado’s discrimination is unfortunately of a
piece with historical treatment of Catholic schools. As
the Court well knows, blatant religious bigotry during
the 19th century sought to force Catholic families into
Protestant public schools. Espinoza v. Mont. Dep’t of
Rev., 591 U.S. 464, 482 (2020) (“The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’; many of its state counterparts have a
similarly ‘shameful pedigree.’” (quoting Mitchell v.
Helms, 530 U.S. 793, 828–829 (2000))).
In response, Catholic parochial education expanded, nurturing the deep, rich American tradition
it provides today. Traditional Catholic schools are integral to school choice programs around the country,
generating experiential data supporting the premise
of Colorado’s “mixed delivery” program, i.e., that
meaningful school choice promotes successful education outcomes. Studies show that Catholic and other
religious schools outperform other schools in student
academic achievement, higher education attainment,
and tolerance and civic engagement.
Including Catholic education among choices available to families is critical to the success of school
choice programs. Excluding it in favor of abstract
anti-discrimination edicts (as the Tenth Circuit
blessed below) impinges religious liberty and undermines education freedom.
4
STATEMENT
Shortly after the Court’s decision in Carson v.
Makin, 596 U.S. 767 (2022), Colorado established its
“Universal Preschool Program” “[t]o provide children
in Colorado access to voluntary, high-quality, universal preschool services free of charge in the school year
before a child enrolls in kindergarten.” Pet.App.195a;
Colo. Rev. Stat. §§ 26.5-4-201 et seq. It covers the cost
of fifteen hours per week of preschool services for all
Colorado children. Pet.App.51a. The statute directs
the Department of Early Childhood to “establish by
rule the quality standards that each preschool provider must meet to receive funding through the [program].” Colo. Rev. Stat. § 26.5-4-205(1)(a). “The department may prohibit a preschool provider that fails
to meet one or more of the quality standards from participating in the preschool program.” Colo. Rev. Stat.
§ 26.5-4-205(1)(b)(I).
Colorado purports that this program allows a
“[m]ixed delivery system.” Pet.App.193a. But under
the “quality standards” statute and rules, “[e]ligible
preschool providers must ensure that children receive
an equal opportunity to enroll and receive universal
preschool services regardless of race, ethnicity, religious affiliation, sexual orientation, gender identity,
lack of housing, income level, or disability, as such
characteristics and circumstances apply to the child
or the child’s family[.]” 8 Colo. Code Reg. 1404-1
§ 4.110(B); Colo. Rev. Stat. § 26.5-4-205(2)(b).
Although the mandate requires all participating
preschools to give all families an “equal opportunity”
5
to receive services regardless of the enumerated characteristics, the Department’s rules allow exceptions
from the mandate. The Department allows Head
Start providers to prefer applicants based on their
family’s income level. Pet.App.35a–36a (citing 8 Colo.
Code Reg. 1404-1 § 4.109(A)(3)). And it allows preschool providers to reserve placements for children
who have a disability. Id. (citing 8 Colo. Code Reg.
1404-1 § 4.109(A)(4)). And under a regulatory
“catchall” exemption, preschools can “grant preference to an eligible child” based on “the child and/or
family being a part of a specific community.”
Pet.App.9a; 8 Colo. Code Reg. 1404-1 § 4.109(A)(10).
This “catchall” exemption, the Department’s representative explained, could allow schools to restrict admission to prefer “gender-nonconforming children”
and “the LGBTQ community.” Pet.App.353a–355a.
Petitioners the Archdiocese of Denver—which
oversees thirty-four Catholic preschools in Colorado—
St. Mary Catholic Parish in Littleton, and St. Bernadette Catholic Parish in Lakewood provide preschool
services with a mission of partnering with families “to
bring [their] child to encounter Jesus Christ and the
truths of [the] Catholic faith through their intellectual, spiritual, moral, and human formation.”
Pet.App.235a; Pet.App.10a–11a. In providing preschool services, these schools “adhere[] to Catholic
faith, morals, [and] the building up of Catholic culture
within the school.” Pet.App.11a. Teachers, staff, and
parents of children attending the schools must sign a
“Statement of Community Beliefs” affirming that
they will live in accordance with the Catholic
Church’s teachings. Id. Relevant here, Petitioners be-
6
lieve in the Catholic Church’s teachings regarding human sexuality and gender identity, and it is “vital” to
their mission that families at their schools do not actively oppose those teachings. Pet.App.235a;
Pet.App.240a.
Petitioners Daniel and Lisa Sheley are parishioners at St. Mary Catholic Parish in Littleton, and two
of their children currently attend St. Mary’s preschool. Pet.8. They wish to participate in the program.
Pet.App.10a–11a.
Petitioners perceive their admissions policies,
which follow their sincere religious beliefs about human sexuality and gender identity, to conflict with
Colorado’s “quality standards,” namely the “equal opportunity” mandate. Accordingly, in a letter to the
Governor, they sought religious accommodations from
the mandate so that they could participate in the program yet also admit only families who agree with the
Catholic Church’s teachings on gender and sexuality.
Pet.App.11a–13a; Pet.App.283a. The Department
sent a reply that it would not exempt Petitioners from
the mandate and that “no provider may discriminate
against children or families in violation of state statute.” Pet.App.12a–13a; Pet.App.289a–290a. Petitioners are therefore unable to participate in the program
unless they compromise their religious beliefs.
SUMMARY OF THE ARGUMENT
Colorado’s “Universal Preschool Program” offers
public support for parents to send their children to
preschool. Pet.App.188a; Pet.App.193a. But the pro-
7
gram is universal in name only. Although it purports
to foster a “[m]ixed delivery system” providing parents a diverse array of education options for their children, Pet.App.193a, it excludes religious providers
through its confrontational “equal opportunity” mandate at odds with Catholic (and other religious) beliefs
regarding human sexuality and gender. As a condition of participating in the program, all providers
must sign a Program Service Agreement, under which
they must agree to adhere to all “quality standards,”
including a requirement to “provide eligible children
an equal opportunity to enroll and receive preschool
services regardless of … sexual orientation [or] gender identity, … as such characteristics and circumstances apply to the child or the child’s family.”
Pet.App.6a–7a (quoting Colo. Rev. Stat. § 26.5-4205(2)(b)).
Petitioners sought a religious accommodation
from that “equal opportunity” mandate regarding
their admissions policies, which follow their sincere
religious beliefs about human sexuality and gender
identity. Pet.App.11a–13a. Colorado refused to provide an accommodation that would allow Petitioners
to participate in the program without violating their
religious practices. Id.; Pet.App.289a–290a. That exclusion violates the free-exercise rights of many religious providers and families that would use public
benefits for religious education.
Colorado’s constitutional violation is clear under
Carson v. Makin, 596 U.S. 767 (2022), which sets out
the categorical constitutional rule that states cannot
exclude religious institutions from private education
8
choice programs because of their religious exercise.
That precedent squarely applies here: Colorado’s exclusion of religious institutions because of their faithbased policies about human sexuality and gender violates the Free Exercise Clause. Carson must apply,
lest its holding give way every time a state seeks to
impose its own worldview on religious schools, putting them to the choice of either altering the religious
content of their educational mission or else losing out
on a government benefit.
The Tenth Circuit, however, said that Carson applies only where laws “target[] ‘religious status’ and
‘religious use’ on the explicit basis that they were religious and not secular.” Pet.App.21a. According to
the court, “[t]he restrictions imposed by the nondiscrimination requirement universally cover enrollment policies and conduct, but they are not a targeted
burden on religious use” because “preschools funded
through UPK may use those funds to educate students on matters of faith.” Pet.App.22a. And the program is distinguishable from Carson, the court said,
because some religious schools participate in Colorado’s program. Pet.App.21a.
That holding misses the whole point of Carson.
The Free Exercise Clause prohibits discrimination
based on “religious use,” 596 U.S. at 786–87, which
includes Petitioners’ faith-based admissions policies.
Carson emphasized that the Clause does not distinguish between prohibitions based on religious “status” or religious “use,” id., and it certainly does not
condone distinguishing among different religious
uses. See id. at 787–88 (“Any attempt to give effect to
9
such a distinction by scrutinizing whether and how a
religious school pursues its educational mission
would also raise serious concerns about state entanglement with religion and denominational favoritism.”). Excluding disfavored religious practices from
school choice programs fails under the Free Exercise
Clause just like excluding disfavored religious curriculum failed in Carson.
Even ignoring Carson, Colorado’s program still
creates free-exercise problems because it permits secular exceptions to its “equal opportunity” mandate—
exceptions for schools favoring disadvantaged socioeconomic classes, individuals with disabilities, and even
minority races—but not religious exercise exceptions.
Colorado’s system of exceptions and discretion undermine any claim that the rule is “generally applicable,”
and Colorado’s refusal to grant Petitioners a religious
exception fails under strict scrutiny.
Finally, the Tenth Circuit props up Colorado’s program as a “model,” but in reality, Colorado is picking
denominational favorites in the name of furthering
“equal opportunity.” The truth is that school choice
programs are successful when parents have meaningful choices that include Catholic and other religious
education. Other states—not Colorado—have modeled how to achieve that success. Religious schools,
and Catholic schools in particular, have been critical
to the success of education freedom for decades. Excluding them based on their religious exercise not
only offends the Constitution but also deprives the education marketplace of choices parents need for their
children to succeed.
10
ARGUMENT
I. Colorado’s “Equal Opportunity” Universal
Pre-K Mandate Unconstitutionally Discriminates Against Religious Exercise.
Carson v. Makin identifies a categorical constitutional rule for states providing education benefits:
They may not exclude religious schools because of
their religious exercise—whether the exclusion is
based on their religious “status” or their religious
“use” of the state funds—without triggering strict
scrutiny. 596 U.S. 767, 778–81 (2022). Right after
Carson, Colorado codified its Universal Preschool Program along with its militant “equal opportunity” mandate that conflicts with Petitioners’ religious beliefs.
Colorado’s exclusion of Petitioners from its program
falls directly under Carson’s rule because the reason
for Petitioners’ exclusion is that their faith-based policies relating to human sexuality and gender identity
conflict with Colorado’s “equal opportunity” mandate.
A. Carson, not Smith, applies.
1. For education-benefit programs, Carson supplies a categorical rule against
exclusions rooted in religious exercise.
Some constitutional-rights cases require individualized analysis under general frameworks. See, e.g.,
Masterpiece Cakeshop v. Colo. Civ, Rts. Comm’n, 584
U.S. 617, 625 (2018) (holding that government officials’ animus toward religion violated the baker’s
rights). Others develop into categories from which
widely applicable doctrinal rules emerge. See, e.g.,
11
Am. Legion v. Am. Humanist Ass’n, 588 U.S. 29, 60–
63 (2019) (describing the approach to cases involving
prayer before legislative session under the Establishment Clause).
That distinction is important here, as free-exercise
doctrine has developed under different branches. The
standard from Employment Division, Department of
Human Resources of Oregon v. Smith, 494 U.S. 872
(1990), applies in a broad array of cases where a more
specific rule either is unavailable or has not yet
emerged. It works, for example, to evaluate the application of COVID restrictions on gatherings by religious groups and to assess zoning laws. Tandon v.
Newsom, 593 U.S. 61 (2021) (per curiam); Mount Elliott Cemetery Ass’n v. City of Troy, 171 F.3d 398 (6th
Cir. 1999).
Yet Smith does not fit where another, more directly applicable rule applies. For example, when a
case involves government-compelled education that
conflicts with parents’ religious upbringing of their
children, the Court applies Wisconsin v. Yoder, 406
U.S. 205 (1972). See, e.g., Mahmoud v. Taylor, 606
U.S. 522, 550–64 (2025) (“When the burden imposed
is of the same character as that imposed in Yoder, we
need not ask whether the law at issue is neutral or
generally applicable before proceeding to strict scrutiny.”). Or when a case involves an employment dispute between a religious employer and minister, the
Court applies Hosanna-Tabor Evangelical Lutheran
Church and School v. EEOC, 565 U.S. 171 (2012). See,
e.g., Our Lady of Guadalupe Sch. v. Morrissey-Berru,
591 U.S. 732, 751–58, 762 (2020) (“When a school with
12
a religious mission entrusts a teacher with the responsibility of educating and forming students in the
faith, judicial intervention into disputes between the
school and the teacher threatens the school’s independence in a way that the First Amendment does not
allow.”). In such cases, courts need not consider anew
how the state action fares under Smith’s standard for
religion-neutral, generally applicable laws.
In that vein, Carson has announced such a category-specific rule that applies where a state excludes
religious schools from an education-benefit program
because of the school’s religious uses of those benefits.
After Espinoza v. Montana Department of Revenue established that education-choice programs cannot exclude schools based on their “status” as religious, 591
U.S. 464, 475–78 (2020), Carson held that educationchoice programs likewise cannot exclude schools
based on their intended religious “uses” of program
funds. 596 U.S. at 786–87. “Regardless of how the
benefit and restriction are described,” Maine’s restriction on its tuition assistance program violated
the Free Exercise Clause because it “exclude[d] otherwise eligible schools on the basis of their religious exercise.” Id. at 789.
The categorical approach to free-exercise claims in
education-benefits cases makes sense because
“[e]ducating young people in their faith, inculcating
its teachings, and training them to live their faith are
responsibilities that lie at the very core of the mission
of a private religious school.” Carson, 596 U.S. at 787
(quoting Our Lady of Guadalupe Sch., 591 U.S. at
769). Carson rejected the contention that states could
13
withhold benefits from religious schools that refused
to alter their religious character and instruction to
comply with the states’ preferences. Id. Where the
clash of worldviews arises as to education benefits,
free-exercise rights prevail.
Free-exercise claims also have unique force in education-benefits cases because instruction in a
worldview cannot be neutral, making Smith irrelevant to that context. Compelling schools to adopt
“worldly influences in terms of attitudes, goals, and
values” will necessarily “substantially interfer[e] with
the religious development” of the children at the
school. Mahmoud, 606 U.S at 549 (quoting Yoder, 406
U.S. at 218). That is why this Court has recognized
that directing the religious upbringing of children “is
not merely a right to teach religion in the confines of
one’s home.” Id. at 547. Instead, the religious upbringing of children is at issue in all education programs
because, “[d]ue to financial and other constraints,”
many parents ‘have no choice’ but to use the education-benefits programs from the state. Id. (quoting
Morse v. Frederick, 551 U. S. 393, 424 (2007)). That
unique risk is why Carson applies a categorical rule
against excluding religious uses of education benefits.
Nothing about Colorado’s sexual orientation and
gender identity “equal opportunity” mandate takes it
outside of Carson’s rule. To be clear, St. Mary’s does
not exclude LGBTQ families as such; rather, it requires admitted students and families to adhere to its
religious practices, including those concerning human
sexuality and gender identity. Religious exercise in
the delivery of education is the core issue; the impact
14
on admissions is incidental. So, while many recent
cases have presented a conflict between traditional
religious beliefs and practices concerning human sexuality and gender identity and LGBTQ antidiscrimination laws, the rule applicable to education-benefits
cases is still the best fit. Under Carson, states may
not exclude religious schools from private choice programs because of their religious uses, including their
policies as to sexual orientation and gender identity
grounded in sincere theological belief.
An alternative rule would be easily circumvented,
as states could evade the Free Exercise Clause by constructing neutral-sounding rules requiring adherence
to the states’ worldview on any matter, no matter how
antithetical to religious schools’ foundational beliefs.
If Carson is to have any meaning, its categorical rule
must apply here just as much as it applied in Carson.
2. The Tenth Circuit erred when it limited
Carson to exclusions that use magic
words to target religion.
The Tenth Circuit erred by limiting Carson to barriers that impose a “targeted burden” on the “explicit
basis” that the schools’ “status” or “use” is “religious
and not secular.” Pet.App.21a–22a. Yet Colorado’s infringement on religious exercise is a “burden on religious use” because Petitioners are losing the otherwise-available education benefit due to the conflict between their faith-based admissions policy and Colorado’s “equal opportunity” mandate. And participation by some religious providers does not render the
equal opportunity mandate an “incidental” burden on
15
religion. Under Carson and related precedents, exclusion of providers with religious objections to Colorado’s preferred view of sexual orientation and gender
identity violates the Free Exercise Clause.
1. First, the Tenth Circuit misstated the rule under Carson. In the Tenth Circuit’s view, Carson applies only where laws “target[] ‘religious status’ and
‘religious use’ on the explicit basis that they [a]re religious and not secular.” Pet.App.21a (citation omitted); see also Pet.App.22a (“when a particular religious practice is alleged to be infringed incidentally,
rather than religious status or use being specifically
targeted, the Supreme Court requires that the law at
issue be neutral and generally applicable.”). But by
requiring such “magic words” before applying the doctrine, the court made the same mistake as Maine
made in Carson. 596 U.S. at 784–85.
In Carson, Maine argued that its exclusion of religious schools from the town-tuitioning program was
permissible because “the public benefit Maine is offering is a free public education,” not “tuition assistance
payments to be used at approved private schools.” 596
U.S. at 782. The Court rejected that argument, explaining that a state cannot avoid the First Amendment “simply by redefining” the program. Id. at 785.
The Court’s “holding in Espinoza turned on the substance of free exercise protections” and “applies fully
whether the prohibited discrimination is in an express provision … or in a party’s reconceptualization
of the public benefit.” Id. A state’s exclusion of a
school from a public benefit “on the basis of [its] religious exercise” requires strict scrutiny. Id. at 789.
16
The constitutional violation under Carson does not
arise merely from “target[ing]” on the “explicit basis”
of religion. Pet.App.21a. Rather, the violation comes
from “‘penaliz[ing] the free exercise’” of religion by excluding private actors who would otherwise participate in a public-benefits program because of their religious exercise. Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 462 (2017) (citation
omitted).
In this case, the only basis for Colorado’s exclusion
of Petitioners from its program is Petitioners’ religious exercise—specifically, their faith-based admissions policy rooted in their religious beliefs about human sexuality and gender. See Pet.App.10a–13a. No
material distinction exists between the exclusion of
religious schools based on their enforcement of religious policies and the exclusion in Carson “‘based on
the religious use that they would make of [state funding] in instructing children.’” 596 U.S. at 787 (citation
omitted). The Tenth Circuit erred by declining to apply Carson simply because the words of the exclusionary policy did not include the word “religious.”
2. Second, the Tenth Circuit also attempted to
distinguish Carson, Espinoza, and Trinity Lutheran
on the theory that Colorado “did not exclude faithbased preschools” because it “welcomed” the ones
whose beliefs were consistent with the “equal opportunity” mandate. Pet.App.21a. That ground for distinction is unfounded.
In the Tenth Circuit’s estimation, Colorado “has
not been ‘intolerant of religious beliefs’” because
“[m]any faith-based preschools—including Catholic
17
preschools under the Catholic Charities of the Archdiocese of Denver—currently participate in UPK.”
Pet.App.28a. But such “denominational favoritism”
itself is a violation of Petitioners’ free-exercise rights.
Carson, 596 U.S. at 787; see also Cath. Charities Bur.,
Inc. v. Wis. Lab. & Indus. Rev. Comm’n, 605 U.S. 238,
248–49 (2025). And under Carson, it is not a reason to
apply Smith instead.
Just because some religious providers are participating in the program does not mean that the “equal
opportunity” mandate only “incidentally” burdens Petitioners’ religious exercise, Pet.App.22a. Indeed, just
as the Court in Carson cautioned against trying to
distinguish between religious “status” and “use” restrictions, the same risk attends to the Tenth Circuit’s
attempt to distinguish between explicit and practical
“religious use” restrictions: “Any attempt to give effect
to such a distinction by scrutinizing whether and how
a religious school pursues its educational mission
would also raise serious concerns about state entanglement with religion and denominational favoritism.” Carson, 596 U.S. at 787. Colorado does not mitigate the free-exercise violation by bragging that its
policy prefers some religious providers over others.
Indeed, Colorado and the Tenth Circuit appear to
assume that picking acceptable worldviews has no effect on religious use. That assumption is false because
education affects religion whenever it tells what “attitudes, goals, and values” are acceptable. Mahmoud,
606 U.S at 552. When Colorado demands its views on
sexuality, some religions will agree while others will
not. If picking between religious values were not dis-
18
crimination, then every state could suppress free exercise under the reasoning that some religions agree
with the state’s values. That is why Carson categorically forbids discrimination against religious use
when enforcing the Free Exercise Clause.
The Tenth Circuit erred by failing to apply Carson
to Colorado’s exclusion of Petitioners from its program. Correctly applying that case, the constitutional
violation is clear. Colorado’s application of its “equal
opportunity” mandate excludes the Petitioners from
the program based on their religious exercise in violation of the Free Exercise Clause.
B. Under Carson, Colorado’s “equal opportunity” exclusion violates free-exercise
rights of religious schools and parents.
Underlying Carson is the fundamental principle
that religious schools must be allowed to operate and
instruct their students in line with their faith. 596
U.S. at 787. Religious schools, including the Petitioner Catholic institutions here, have the right to
participate in education choice programs while remaining firm in pursuit of their educational mission
in accord with their religious beliefs, including by requiring students and their families to agree to adhere
to the school’s views on human sexuality and gender
identity. And parents, including Petitioners Daniel
and Lisa Sheley, have the right to educate their children through such religious inculcation.
The Court has “repeatedly held that a State violates the Free Exercise Clause when it excludes reli-
19
gious observers from otherwise available public benefits.” Carson, 596 U.S. at 778; see also Trinity Lutheran, 582 U.S. at 462 (striking down program’s religious exclusion that “‘effectively penalizes the free exercise’” of religion (citation omitted)). So, when a State
puts religious schools to the choice of participating in
private choice programs or keeping their religious values, their policies “must be subjected to the ‘most rigorous’ scrutiny.” Trinity Lutheran, 582 U.S. at 466
(quoting Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 546 (1993)). Forcing religious
schools to agree to broad “antidiscrimination” mandates as a condition of participating in school choice
programs does exactly that: Schools like Petitioners
may adhere to religious values or participate in a government program, not both.
Carson was unequivocal that a state’s administration of a school choice benefit that “offer[s] tuition assistance that parents may direct to the public or private schools of their choice … is subject to the free exercise principles governing any such public benefit
program—including the prohibition on denying the
benefit based on a recipient’s religious exercise.” 596
U.S. at 785 (emphasis in original). Furthermore, as in
Espinoza, Colorado’s refusal to include the Petitioner
education providers also affects the religious practices
and education of families who must choose between
education integral to their religious exercise and participation in a government-benefits program. 591 U.S.
at 476 (explaining that the challenged exclusion “also
bars parents who wish to send their children to a religious school from those same benefits, again solely
because of the religious character of the school”).
20
The impact on families is especially important because families—not churches, and certainly not the
state—have the a priori duty and right to educate
their children. See id. at 486 (“Drawing on ‘enduring
American tradition,’ we have long recognized the
rights of parents to direct ‘the religious upbringing’ of
their children.” (citation omitted)). Naturally, “[m]any
parents exercise that right by sending their children
to religious schools, a choice protected by the Constitution.” Id. Religious schools are especially important
when public schools “inculcate a worldview that is antithetical to what [parents] teach at home.” Id. at 508
(Alito, J., concurring). In such cases, government-supported choice programs “provide[] necessary aid for
parents who pay taxes to support the public schools
but who disagree with the teaching there.” Id. (Alito,
J., concurring).
Colorado’s exclusion of Petitioner education providers because the providers’ religious policies conflict
with Colorado’s “equal opportunity” mandate cannot
stand under Carson.
II. Colorado’s “Equal Opportunity” Mandate Is
Not Generally Applicable and Fails Strict
Scrutiny.
Colorado’s “equal opportunity” mandate also fails
under the Free Exercise Clause because it permits
some non-religious accommodations but not Petitioners’ religious exercise. As in Fulton v. City of Philadelphia, 593 U.S. 522 (2021), where the government refused to accommodate religious beliefs about human
sexuality in the name of preventing LGBTQ discrimination while permitting other non-religious accommo-
21
dations, Colorado’s “equal opportunity” mandate is
not generally applicable and fails strict scrutiny.
A. The mandate is not generally applicable.
Colorado affords regulatory exceptions from its
“equal opportunity” mandate and grants discretion to
the Department, which renders the mandate not generally applicable under Fulton. The Tenth Circuit
erred by focusing only on whether Colorado affords
non-religious accommodations to the sexual orientation and gender identity mandate specifically.
1. Exceptions from the mandate trigger
strict scrutiny.
In Fulton, where the Court awarded Catholic Social Services accommodation from a rule requiring
foster-placement agencies to accept same-sex couples
as prospective foster parents, the Court held that a
system of exceptions from a no-discrimination rule
makes it not generally applicable under Employment
Division, Department of Human Resources of Oregon
v. Smith, 494 U.S. 872 (1990). When officials decide
“which reasons for not complying with the policy are
worthy of solicitude,” those exceptions trigger strict
scrutiny of the policy as applied to religious exercise.
Fulton, 593 U.S. at 533, 537.
That is exactly the case here. The “equal opportunity” mandate forbids preschool providers from discrimination in enrollment because of “race, ethnicity,
religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability as such
characteristics and circumstances apply to the child
22
or the child’s family,” Pet.App.6a–7a (quoting Colo.
Rev. Stat. § 26.5-4-205(2)(b)). But the Department’s
regulatory exemptions afford “worthy” exceptions to
that mandate, while excluding religious ones. In particular, Colorado allows Head Start providers to prefer applicants based on their family’s income level.
Pet.App.35a–36a (citing 8 Colo. Code Reg. 1404-1
§ 4.109(A)(4)), and it welcomes preschool providers
devoted only to children who have a disability. Id. (citing 8 Colo. Code Reg. 1404-1 § 4.109(A)(3)).
Petitioners’ requests for accommodation so that
they may teach only those who accept their sincere
religious beliefs on sexual orientation and gender
identity are materially indistinguishable. Each of
these types of schools seemingly runs afoul of the
“equal opportunity” mandate. Yet some programs—
i.e., those preferred by Colorado—can expect accommodation, while Petitioners cannot. Thus, Colorado
picks which factors warrant exception, and the whole
scheme thereby fails the test for general applicability.
Fulton, 593 U.S. at 534–38.
Compounding the problem, the Department also
exercises discretion under its regulatory “catchall” exemption for preschools to “grant preference to an eligible child” based on “the child and/or family being a
part of a specific community.” Pet.App.9a; 8 Colo.
Code Reg. 1404-1 § 4.109(A)(9). Although the Department opined in its letter rejecting Petitioners’ accommodation request that “no provider may discriminate
against children or families in violation of state statute,” Pet.App.289a–290a; Pet.App.12a–13a, the Department’s authority under this “catchall” exemption
23
tells a different story. As the Department’s representative explained, the catch-all exception could allow schools to restrict their admission to prefer “gender-nonconforming children” and “the LGBTQ community.” Pet.App.353a–355a.
So, in short, Colorado’s Universal Preschool Program creates a system where bureaucrats may bless
participation by schools that practice discrimination
in admissions in agreement with the prevailing ethos
on gender and sexuality, but not schools that limit admission to families holding contrary views based on
sincere religious commitments. That system is the
very definition of one where “the government . . . decide[s] which reasons for not complying with the policy are worthy of solicitude,” Fulton, 593 U.S. at 537.
The “equal opportunity” mandate, therefore, is not
generally applicable.
The Tenth Circuit concluded otherwise because, in
its view, an exception that prefers rather than punishes certain characteristics does not count in the general-applicability analysis. Pet.App.36a–37a. The disability and income-level preferences, it said, “are not
exceptions to the nondiscrimination requirement” because they “do not speak in general terms about ignoring disability status or income level” but rather
“specifically concern children who have a disability or
are low-income” in order “to help preschools comply
with federal laws that specifically protect disabled
and low-income children.” Pet.App.37a–38a.
How categorical allowances for schools focusing on
low-income and disabled children “do not speak in
24
general terms about ignoring disability status or income level,” the court did not explain. But the broad
import of the decision below is clear enough: According to the Tenth Circuit, benign discrimination—or
discrimination that favors people that the government prefers—is not discrimination at all. But a purported distinction between discrimination that prefers
(benign), and discrimination that punishes (malignant), is mere wordplay, as discrimination necessarily favors some groups and disfavors others. Cf.
Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 208–09 (2023)
(“‘[P]referring members of any one group for no reason
other than race or ethnic origin’ … [i]s ‘discrimination
for its own sake,’ which ‘the Constitution forbids’” (citation omitted)). Fulton affords no basis for tolerating
sophistry with respect to religious exercise that the
Court rejected with respect to racial preferences.
The Tenth Circuit also cleared the Department’s
discretion to permit exemptions, concluding that “[i]n
practice,” “[n]one of the[] approved preferences concern sexual orientation or gender identity or otherwise implicate the nondiscrimination provision in admissions.” Pet.App.32a. But Fulton established that
“[t]he creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given.” 593
U.S. at 537 (emphasis added). It did not matter that
“the Commissioner has never granted one” because
the mere existence of a discretionary exception “‘invite[s]’” the government to choose among requested
accommodations. Id. (citation omitted).
25
To underscore the point, while the Department
represented in response to Petitioners’ request for accommodation that “no provider may discriminate
against children or families in violation of state statute,” Pet.App.289a–290a; see Pet.App.12a–13a, it revealed in its testimony that it would, in fact, entertain
exceptions from the “equal opportunity” mandate for
schools organized around LGBTQ preferences.
Pet.App.353a–355a. Such policy elasticity, responsive
to the government’s preferences of the moment, defeats any argument of general applicability.
2. The Tenth Circuit erred by considering only whether the program permitted exceptions from the mandate as to
sexual orientation and gender identity.
Fulton emphasized that “[a] law also lacks general
applicability if it prohibits religious conduct while
permitting secular conduct that undermines the government’s asserted interests in a similar way.” 593
U.S. at 534. The Tenth Circuit erroneously narrowed
the comparability scope to consider only exceptions to
the sexual orientation and gender identity portions of
the mandate. Pet.App.35a–42a.
Despite acknowledging that “[e]ach of the eight
equal-opportunity requirements seeks to remove barriers to access experienced by children with different
protected characteristics,” Pet.App.38a, the Tenth
Circuit declared that it “must examine the way each
part of the nondiscrimination requirement is intended to promote equal access” because, in the
court’s estimation, “‘all discrimination is not the
26
same.’” Pet.App.39a (citation omitted). And it concluded that “[a]llowing some schools to ignore the
nondiscrimination requirement with respect to sexual
orientation and gender identity would undermine the
government’s interest in erasing barriers to equal access caused by social stigma in a way that the IEP and
Head Start preferences simply do not.” Id.
But that distinction ignores Colorado’s entire rationale for the “equal opportunity” mandate. Colorado
“believes the statutory equal-opportunity requirement implicates the health and safety of preschool
children.” Pet.App.61a. Its exceptions for admissions
policies focused on wealth and disability therefore
equally implicate the “health and safety” standard it
uses to justify refusing Petitioners’ requested accommodation regarding sexual orientation and gender
identity. The “general applicability” of the whole mandate—as to “race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability,” Colo. Rev. Stat. § 26.5-4205(2)(b)—rises or falls as a unit. In other words, either those equal-opportunity demands are necessary
for advancing health and safety or they are not.
Because Colorado readily jettisons its interest in
the equal-opportunity mandate to accommodate
schools who find the mandate inconvenient for other
reasons, it cannot deny a request for religious accommodation from the mandate as to sexual orientation
and gender identity without being subject to strict
scrutiny.
27
B. Colorado’s broad interest in protecting
equal access to education does not justify
excluding religious education providers.
Colorado justifies its “equal opportunity” mandate
by reference to its interest in “protecting equal access
to preschool education for Colorado children.”
Pet.App.47a; Pet.App.140a (stating that Colorado’s
proffered interests are “ensuring eligible children and
their families do not face discriminatory barriers” and
“protecting children from discrimination”). The Tenth
Circuit accepted this broad articulation of the state’s
interest. Pet.App.47a (concluding that the government’s stated interest was “extraordinarily weighty”).
But under Fulton, “[t]he question … is not whether
the [state] has a compelling interest in enforcing its
non-discrimination policies generally, but whether it
has such an interest in denying an exception to [Petitioners.]” 593 U.S. at 541. Colorado has failed to satisfy that standard.
In Fulton, the Court ruled that Catholic Social
Services was entitled to a religious accommodation
from a rule requiring it to certify same-sex couples as
foster parents because the government’s interest “in
the equal treatment of prospective foster parents and
foster children” “cannot justify denying CSS an exception for its religious exercise” where the government
had “no compelling reason why it has a particular interest in denying an exception to CSS while making
them available to others.” 593 U.S. at 542. Colorado
has not even tried to meet that standard, instead relying on the same broad interest in ensuring “equal
access” for all that was insufficient in Fulton.
28
Just like in Fulton, “[t]he creation of a system of
exceptions” from the mandate “undermines the
[state’s] contention that its non-discrimination policies can brook no departures.” 593 U.S. at 542. Because Colorado’s stated interest in “protecting equal
access” does not justify its refusal to accommodate
Catholic schools’ religious objection to the “equal opportunity” mandate while permitting other exceptions, Colorado fails strict scrutiny.
Not only does Colorado’s “equal access” rationale
fail to justify denial of a religious accommodation, but
when applied to Catholic schools, its “equal opportunity” mandate undermines the cause of access to
students of all beliefs. The only way the mandate
could create more opportunities for children from
LGBTQ families is if Catholic schools would bite the
bullet and tolerate disobedience as the price of participation. But no evidence supports an outcome where
the no-accommodation policy provides children from
LGBTQ families state-funded entrée to Catholic
schools. To the contrary, the Archdiocese issued a letter directing all parishes and their preschool programs not to enter into any agreements with the state
for the Universal Preschool Program because, without
a religious exemption, doing so would be “contrary to
[their] beliefs on the human person, which would ultimately compromise the integrity of [their] Catholic
schools’ mission.” Pet.App.280a–82a.
Critically, the only limit on the program’s capacity
for students is the number of willing providers with
open seats, so Colorado’s refusal to accommodate religious providers is more likely to reduce the overall
29
number of education providers—to the detriment of
all Colorado families, including LGBTQ families.
With fewer providers, children from families that
would have used state assistance to attend a Catholic
preschool if one had been available will compete with
families attending other schools. A policy that reduces
the number of available seats leaves the Department
in the position of excluding Catholic providers not for
the sake of providing greater “non-discriminatory access” to children of LGBTQ families, but only for the
sake of excluding Catholic doctrine.
That is why Colorado’s “antidiscrimination” objection to Catholic schools is merely another way of saying that the state disagrees with Catholic doctrine
concerning human sexuality and gender. As the
Tenth Circuit observed, “the Department has made
every effort to encourage faith-based preschools to
participate in UPK short of granting them an unlawful exemption from the nondiscrimination requirement.” App.42a. In other words, the Department welcomed only those schools that would find the Department’s worldview no burden to their religious beliefs.
And that is no surprise given that Colorado has characterized Petitioners’ sincere religious-accommodation request as “seeking permission to discriminate.”
Resp. C.A. Br. 8. Even more revealing, the district
court upheld the equal opportunity mandate as protection of “the health and safety of preschoolers.”
Pet.App.119a.
In other words, according to the decisions below,
the state can refuse to tolerate Catholic doctrine on
human sexuality and gender identity because it is
30
“unsafe.” That is as direct an acknowledgement of religious discrimination as one is likely to find, and a
state has no legitimate, much less compelling, interest in “eliminat[ing] ideas that differ from its own.”
303 Creative LLC v. Elenis, 600 U.S. 570, 598 (2023).
III. True “Model” School Choice Programs
Respect Religious Pluralism.
The Tenth Circuit lauded Colorado’s program as a
“model” because “forty faith-based preschools” participate. Pet.App.42a. But the court also acknowledged
that the program excluded other religious education
providers—the Petitioners—based on their sincere religious exercise. See Pet.App.11a–14a. School choice
programs that allow parents the choice from all education options—including all religious education options—are successful. Catholic schools in particular
make important contributions to students, families,
and communities.
A. Other states’ education choice programs
allow all religious education options.
Precisely to identify model education choice programs, EdChoice developed the Friedman Index
(named for Nobel laureate Milton Friedman), a comprehensive measure of the availability of private K–
12 educational choice across the United States. Ben
Scafidi, Colyn Ritter, The 2026 EdChoice Friedman
Index (Feb. 2026), https://tinyurl.com/yh2fvzw6. The
Friedman Index shows that true education freedom
requires not only universal student eligibility and
funding but also a setting that welcomes all educa-
31
tion-provider options. As the Friedman Index demonstrates, school choice programs are successful when
parents have meaningful choices, not when states impose abstract nondiscrimination mandates. Id. That
principle extends to preschool programs, as well.
Florida, a pioneer and leader in school choice, provides universal, state-funded preschool through its
Voluntary Prekindergarten Program. Fla. Code
§§ 1002.51 et seq. The program serves all families, regardless of income and imposes no “antidiscrimination” mandates as to human sexuality and gender
identity. See Fla. Code § 1002.55; Fla. Code § 1002.53.
More than 3.1 million children have benefitted from
Florida’s program since it began in 2005. What is Florida’s Voluntary Prekindergarten Education Program
(VPK),
Fla.
Dep’t
of
Educ.,
https://tinyurl.com/fmjmmfw3 (last accessed July 1, 2026).
Many religious education providers, including Catholic providers, participate in the Voluntary Preschool
Program as well as in Florida’s other highly successful K–12 education choice programs. See Private
School Directory, Fla. Dep’t of Educ., https://tinyurl.com/4aah7w49 (last accessed July 1, 2026). And
private schools that cater to LGBTQ students also
participate in Florida’s education choice programs.
See, e.g., Annie Martin and Leslie Postal, ‘LGBTQ’
Awareness Training Offered to Private Schools that
Accept State Scholarships, Orlando Sentinel (Oct. 7,
2020), https://tinyurl.com/d3fmbnr5. Other states
likewise provide state funding for families to pay for
private religious preschool without antidiscrimination provisions. See, e.g., Ala. Code § 26-24-23 et seq.;
Ind. Code § 12-17.2-7.2 et seq.
32
Still more states provide state funding for parents’
private K–12 education choices without imposing “antidiscrimination” mandates. Of the 35 states with K–
12 education choice programs that the Friedman Index identifies, Friedman Index at 6–7, the only states
with restrictions like Colorado’s are Maine, Maryland, and Vermont. Me. Rev. Stat. 5 § 4602; H.B. 200
§ R00A03.05 (Md. 2023); Vt. Admin. Code § 7-13:2223.2. Indeed, many states expressly say that a
participating private school “shall not be required to
alter its creed, practices, admissions policy or curriculum in order to accept students whose parents pay
tuition or fees from” an education choice program.
Ariz. Stat. § 15-2404(C); see also, e.g., Ala. Code § 166J-5(f); S.C. Code § 59-8-150(F); Tenn. Code § 49-62609(c); Tenn. Code § 49-6-3508(c); Tex. Educ. Code
§ 29.368(b); W.Va. Code § 18-31-11(d).
Education-choice programs also thrive in Wisconsin—home of the oldest and one of the largest school
voucher programs in the country—because parents
may choose religious education unfettered by antidiscrimination mandates like Colorado’s. See Marge
Pitrof, Milwaukee Voucher Program Turns 25: The
History, WUWM (Nov. 17, 2014), https://tinyurl.com/cbadsu5m; Wis. Stat. § 119.23. After the
legislature expanded it to include religious schools,
the number of participating schools sharply increased
between 1995 and 1998, according to data from the
Wisconsin Legislative Fiscal Bureau. Russ Kava, Wis.
Legis. Fiscal Bur., Milwaukee Parental Choice Program (Jan. 2003), https://tinyurl.com/359dmmpf.
https://bit.ly/3QBhvdw. A program that served only
300 students in its first year—and was serving over
33
1,200 students in its sixth year after including religious schools—has now grown to provide education
choice to nearly 30,000 students. Martin F. Lueken,
Fiscal Effects of School Choice 219–20 (Nov. 2021),
https://tinyurl.com/23v9mtz5; MPCP Facts and Figures for 2025–26, Wis. Dep’t of Pub. Instruction,
https://tinyurl.com/558d9wdk (last accessed July 1,
2026). And despite years of political change in a purple state, school choice programs have remained
something that a vast majority of Wisconsin legislators and voters agree on.
Programs that welcome all providers (including
religious ones) and provide a robust education market
are the true models.
B. Concrete religious pluralism produces
successful school choice programs.
When parents have the resources to choose the
best education providers for their kids, education outcomes improve. Studies of choice programs throughout the country overwhelmingly show that choice
leads to measurable educational benefits for many
students, is neutral for others, and harms none. The
2024 edition of EdChoice’s research compendium reports that “[t]he number of studies that find null or
positive effects from school choice significantly outweigh that of studies that find negative effects.”
EdChoice, The 123s of School Choice 5 (2024).
Those results presuppose meaningful choices, i.e.,
choices among providers of educational content not
available in traditional public schools—especially
Catholic schools. For starters, Catholic schools have
34
for decades pursued a social-justice mission to educate disadvantaged urban students, regardless of
whether they are Catholic. To that end, “many Catholic schools have been eager participants in targeted
school voucher programs when they have been
launched.” Julie Trivitt & Patrick Wolf, School Choice
and the Branding of Catholic Schools, Educ. Fin. &
Pol’y 6(2), 207 (2011).
Catholic school participation has made a critical
difference in the success of voucher programs. As one
study concluded, “[t]here is little doubt that [Catholic
schools] are a pivotal element of the supply side of
voucher-fueled education markets.” Id. Indeed, that
same study (which surveyed participants in a Washington, D.C. pilot voucher program) found that Catholic schools offer so many desirable characteristics—
including academic rigor, discipline, and non-proselytizing religious instruction—that “Catholic schools .
. . draw large numbers of voucher students from nonCatholic families.” Id. at 231.
Catholic schools also provide a critical education
option for all parents because they inculcate political
tolerance and civic engagement. A recent statistical
meta-analysis examining the association between private schools and four civic outcomes (political tolerance, political participation, civic knowledge and
skills, and voluntarism and social capital) showed
that private schools boost civic outcomes for students
over comparably situated public school students. See
M. Danish Shakeel, Patrick J. Wolf, et al., The Public
Purposes of Private Education: A Civic Outcomes
Meta-Analysis, 36 Ed. Psych. Rev. 40 (2024).
35
Critically, religious private schools were particularly more likely to be associated with better civic outcomes. See id. at 23. And some studies included in the
meta-analysis even showed a “Catholic school civic
advantage.” Id. at 33 (citing Coleman, J. S., & Hoffer,
T., Public and Private High Schools: The Impact of
Communities (1987); Macedo, S., Diversity and Distrust: Civic Education in a Multicultural Democracy
(2000); and Prud’homme, J., The Potential of Catholic
Schools: Public Virtues Through Private Voucher, J.
Cath. Educ., 25(1), 109–132 (2022)).
Thus, meaningful education pluralism—which includes traditional Catholic providers like Petitioners—improves student test scores, attainment, and
socialization alike. Such concrete results offer more
students far more opportunity and better odds than
Colorado’s abstract “equal opportunity” mandate—
the only real promise of which is exclusion of the most
successful genre of private schools in the educationfreedom era.
CONCLUSION
The Court should reverse the Tenth Circuit.
36
Respectfully submitted,
Thomas M. Fisher
Counsel of Record
Bryan G. Cleveland
Melinda R. Hudson
EDCHOICE LEGAL ADVOCATES
111 Monument Circle, Suite 2650
Indianapolis, IN 46204
(317) 978-9472
tfisher@edchoice.org
Counsel for Amici Curiae
July 2, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.