Let the Little Children Come: Colorado's Preschool Bargain Meets the Court

Nov 2, 2026

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Washington, D.C.

A Tuesday for Two Kinds of Voting

On Tuesday most of America votes for its next Congress. In a marble building on First Street, nine justices will do something quieter. They will hear argument in St. Mary Catholic Parish v. Roy, a case about whether Colorado may keep Catholic preschools out of its free preschool program because the parishes will not sign a nondiscrimination pledge.

It sounds small. Four-year-olds and finger paint. But a country’s idea of liberty is usually tested at the smallest desks.

The Bargain

Colorado’s universal preschool program, funded after a 2020 ballot measure and set up by the legislature in 2022, promises up to 15 free hours a week to every child in the year before kindergarten. Families rank their preferred schools, and the state matches them. To take part, a school must agree to give equal enrollment opportunity regardless of sexual orientation, gender identity, religious affiliation and other traits.

The Archdiocese of Denver, which oversees more than 30 preschools, told its schools in 2023 not to enroll. Two parishes, St. Mary in Littleton and St. Bernadette, together with the archdiocese and parents Daniel and Lisa Sheley, sued. They lost at trial and lost at the Tenth Circuit, which held that the rule is neutral and generally applicable and that faith-based schools were free to join. The Supreme Court took the case in April.

What Each Side Says

Be fair to Colorado, because its worry is not wicked. No child should be turned away at a school door for who his parents are, and a state that spends public money may set terms. The department also says it has no power to grant religious exemptions, and that its preferences for low-income children and children with disabilities are tailored help, not loopholes.

The parishes answer that the program already bends. It lets schools prefer siblings, congregation members and particular communities, and it leaves room for discretion, while refusing to bend for a church. A rule full of exceptions, they argue, is not a rule that is generally applicable. The justices have already said they will not reconsider Employment Division v. Smith, the 1990 case behind the neutral-law rule, so the fight is over how far that rule reaches. The Trump administration is backing the parishes and has been granted time at the lectern.

Behind the doctrine are families. Becket, the religious-liberty firm representing the parishes, says Catholic parents are paying thousands of dollars out of pocket to send their children to parish preschools while families at other preschools get the same hours free. Nicholas Reaves of Becket will argue for the parents and preschools. The parents named in the suit, Daniel and Lisa Sheley, are not an abstraction: their children attend the parish preschools the program will not fund.

Oregon, 1922

History is the tonic here. In 1922 Oregon voters, with the Ku Klux Klan among the backers, passed a law requiring children to attend public schools. It was aimed at Catholic schools. In 1925 the Supreme Court struck it down in Pierce v. Society of Sisters, writing that “the child is not the mere creature of the State.”

A century ago Catholics asked the Court to let them exist. Today they ask to be let in. The Court has been moving the same direction for a decade. It ruled for a church in Trinity Lutheran (2017), for religious-school families in Espinoza (2020), and in Carson v. Makin (2022) it held that Maine could not exclude religious schools from a tuition program. Deseret News reports that Colorado may have a difficult time making its case before the current Court.

Whose Child Is It?

The conservative case is old-fashioned and simple. When Colorado voters chose a program in which the money follows the child, they made the parent the buyer and the school a seller. A school a family chooses is not the state’s mouthpiece. If the state can say “join us on our terms or go without,” then the freedom to choose a school is a freedom only for those whose schools agree with the government.

There is an older sentence for it. “Let the little children come to me and do not hinder them,” says Christ in Matthew 19:14, “for to such belongs the kingdom of heaven.” Colorado wants every child at the table, and that is a decent wish. A decent state should also want every kind of school at the table, including the ones that teach what the faith teaches. A pluralism that has room for everyone but the believers is not pluralism. It is a very tidy monopoly.

A ruling will probably come by June. Whatever the vote, the lesson on Tuesday is the one the Klan never learned: the state may fund the child, but it does not own him.

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