A Christian school in Chaffee County argued to a federal judge on Thursday that it should be able to receive state money to participate in the new universal preschool program without having to abide by Colorado’s non-discrimination rules for providers.

The Darren Patterson Christian Academy, which enrolls students from pre-kindergarten through eighth grade, is seeking a court order that would block Colorado from enforcing the universal pre-K program’s prohibition on religious, sexual orientation or gender identity discrimination. The academy believes its policies limiting bathroom usage and personal pronouns to a person’s biological sex, instead of their gender identity, plainly violate the program’s terms.

However, U.S. District Court Judge Daniel D. Domenico expressed doubts that the academy has a viable case. Not only is it currently participating in the universal pre-K program, but the state has sent regular payments — $25,000 to date — without requiring the academy to change any of its policies.

“The law hasn’t been enforced against you. What’s the injury?” Domenico wondered.

Darren Patterson Christian Academy brought its lawsuit through the Alliance Defending Freedom, a legal group that represents Christians seeking to express their beliefs unconditionally, even if doing so limits LGBTQ protections.

Its lawyers recently prevailed before the U.S. Supreme Court in another case out of Colorado, in which the conservative majority agreed a Christian graphic designer could refuse to make websites for same-sex weddings. In that case, as with the academy’s, the state had taken no action to prompt the lawsuit, but the plaintiff feared future consequences.

At the outset of the hearing, Domenico noted each side had something to answer for. The academy needed to show the exercise of its religious beliefs was imperiled, which the judge questioned because of its unimpeded participation in the publicly-funded pre-K program. On the other hand, Domenico was curious what Colorado intended to do about the academy’s declaration that it would refuse to abide by the non-discrimination requirements.

The state “has no reason to investigate and believe they’re not in compliance,” said Assistant Attorney General Janna K. Fischer.

“Even though they’ve told you multiple times, ‘We discriminate in ways that are prohibited by the requirements?'” Domenico asked.

Broadly, the lawsuit raises the question of whether organizations that participate in publicly funded programs can fully maintain their religious beliefs, even if the effect is to discriminate against populations protected under Colorado law. An answer would only come, however, if the case survives beyond the initial stages.

In 2020, Colorado voters approved funding for a universal preschool program providing at least 15 hours of schooling each week, a step toward one of Gov. Jared Polis’ key campaign promises. Although enrollment issues and funding uncertainties have arisen with the rollout of the program, 61% of 4-year-olds in Colorado are participating this year through 1,905 providers. That number includes 40 faith-based preschool operators who enroll a total of 904 children.

Darren Patterson Christian Academy registered its preschool through the program in January. Its lawsuit explained that employees must be “born again Christians.” It teaches there are “two unique, immutable sexes,” that “sexual activity outside of Biblical marriage” is wrong, and marriage is a “sexually exclusive” union between a man and a woman. The academy requires people to use bathrooms and pronouns that correspond with sex assigned at birth, not gender identity.

Four months after signing the provider contract with the state, which contained non-discrimination language, Joshua Drexler, the leader of the school, requested a religious exemption from the non-discrimination rules. Lisa Roy, the director of the Colorado Department of Early Childhood, responded that any exemption would need to come from the legislature, as she had no authority to grant one.

The academy then filed suit alleging the state is discriminating on the basis of religion, and requested that a judge block enforcement of the non-discrimination rules against religious preschools. The school argued institutions run by houses of worship can operate more permissively according to their beliefs, but Darren Patterson Christian Academy cannot.

The state countered that the academy already has children enrolled through the program, has received tens of thousands of dollars in tuition reimbursements from the government and has received no directive to change its policies. Moreover, the academy had signed the provider contract months before raising concerns.

Domenico appeared sympathetic to the idea that no harm to the academy’s religious exercise is imminent.

“That’s the quirk of this case,” he told the school’s lawyers. “Your client is part of the program. Your client is getting the money. It’s teaching these students and it’s still imposing those policies just as it was before.”

“The non-discrimination requirements still apply in full force and the state still refuses to disavow enforcement against the school,” responded attorney Jeremiah Galus.

“Isn’t sending your client a bunch of checks a disavowal of enforcement?” pressed Domenico.

Despite his skepticism of the academy, Domenico puzzled over the state’s non-committal answer about whether it would take action upon hearing the school’s stated intent to violate the non-discrimination terms of its contract.

“What if someone here doesn’t like what they’re doing, walks out, sends a letter or an email to your clients saying, ‘Why are you not enforcing the law?'” Domenico asked. “‘These people walked into federal court and declared on the record, “We’re in violation of these provisions. We discriminate on the basis of religion and we ignore people’s pronoun choices and require people to use the bathrooms according to their birth gender.” Why are you not doing anything about it?'”

“Hypothetically, in theory, there could be a complaint that could trigger this,” conceded Fischer.

Domenico will issue a ruling in the coming days. Although he did not believe he had to recuse from the case, Domenico, a Donald Trump appointee, disclosed to the parties he had sent his own children to a school with “somewhat similar rules” to the ones in place at Darren Patterson Christian Academy. On the other hand, when Domenico was Colorado’s solicitor general more than a decade ago, he defended the state’s exclusion of Colorado Christian University from a publicly funded scholarship program.

Separately, the state’s pre-K program is also facing lawsuits from the Catholic Church and from local school districts, the latter being unrelated to the non-discrimination rules.

The case is Darren Patterson Christian Academy v. Roy et al.