[00:00:00] Speaker 04: Good morning, everyone. [00:00:06] Speaker 04: We have a full day today. [00:00:09] Speaker 04: We have six cases for decision. [00:00:11] Speaker 04: Five will be orally argued. [00:00:12] Speaker 04: And our plan, which I think we'll stick to, but sometimes can change, is we would take a 10 or 12 or 13 minute break after the ad health case, so after the third argument. [00:00:26] Speaker 04: But stay nearby in the hallway just in case. [00:00:30] Speaker 04: And with that, I will call our first case, St. [00:00:33] Speaker 04: Mary's Catholic v. Roy. [00:00:35] Speaker 04: It is 24-12-67. [00:00:38] Speaker 04: Council, when you're ready, please proceed. [00:00:45] Speaker 01: Good morning, and may it please the Court. [00:00:47] Speaker 01: My name is Nicholas Reeves, representing Appellants. [00:00:51] Speaker 01: I will endeavor to reserve three minutes for rebuttal. [00:00:55] Speaker 01: Starting in 2023, Colorado's universal preschool funding program made it free for parents to send their four-year-olds to any of nearly 2,000 public or private preschools across the state. [00:01:10] Speaker 01: But defendants have barred the door to the archdiocese of Denver's preschools on account of their religious exercise. [00:01:16] Speaker 01: This has had real effects. [00:01:18] Speaker 01: One Catholic preschool is already closed. [00:01:21] Speaker 01: Enrollment is dropping across the archdiocese preschools. [00:01:24] Speaker 01: And plaintiffs Daniel and Lisa Shealy have been denied this universal benefit solely because they send their children to a Catholic preschool. [00:01:34] Speaker 01: The most straightforward way to resolve this case is under Carson v. Macon. [00:01:39] Speaker 01: Colorado has created a generally available benefit and denied Catholic preschools and families that benefit based on their religious exercise. [00:01:47] Speaker 02: But Carson deals with explicit rather than incidental religious burdens. [00:01:54] Speaker 02: So how does Carson and not Smith control this case? [00:01:57] Speaker 01: I think Carson controls because what the Supreme Court said there is, quote, regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools based on their religious exercise. [00:02:14] Speaker 01: So I think the key takeaway from Carson is not whether it's an explicit rule, but whether the school is excluded on account of their religious exercise. [00:02:26] Speaker 01: Maine actually made the same argument that Colorado is making here in Carson itself. [00:02:31] Speaker 01: And the First Circuit agreed with Maine, but the Supreme Court reversed and said there's no distinction whether it's a kind of categorical religious exclusion or not. [00:02:42] Speaker 01: And I think that makes sense because while Carson is rooted in the line of cases that precedes and continues after Smith, I actually think it makes sense under Smith's rubric as well. [00:02:55] Speaker 01: If Colorado has made virtually every preschool in the state free, except for a handful of religious preschools, they've in some ways raised the floor. [00:03:03] Speaker 01: And so now we are talking about [00:03:07] Speaker 01: You could call it discrimination or exclusion or a lack of neutrality towards religious schools in particular, because Colorado has, like I said, raised the floor for everybody else. [00:03:18] Speaker 01: But I would like to talk about our other arguments under Smith itself. [00:03:23] Speaker 01: And I think I would start with our claim under Tandon versus Newsom. [00:03:27] Speaker 01: So the rule coming out of Tandon is that if the government allows comparable secular exceptions from a law, it can't deny a religious accommodation unless it shows or has satisfied strict scrutiny. [00:03:43] Speaker 01: And Tandon itself tells us how to determine whether a secular exception is comparable. [00:03:48] Speaker 01: It says, quote, whether two activities are comparable for purposes of the free exercise clause must be judged against the asserted government interest that justifies the regulation at issue. [00:04:00] Speaker 01: Here, we're talking about one sentence in Colorado's statute, and that sentence tells us explicitly what the government's interest is and what the interest of the Colorado legislature was when they passed this. [00:04:14] Speaker 01: It says that preschools who participate in this program have to give equal access regardless of a list of protected characteristics. [00:04:24] Speaker 01: And so any exceptions that would allow unequal treatment on the basis of those protected characteristics would be comparable under Tandon. [00:04:34] Speaker 02: But what is the evidence that any of these preferences, which I understand function as exceptions to the algorithm, actually operate as exceptions to the mandate? [00:04:46] Speaker 01: Thank you for that question. [00:04:47] Speaker 01: I'd like to kind of disaggregate two different things. [00:04:49] Speaker 01: So there's evidence in the record that over a thousand preschools have an exception from the algorithm, like you were saying. [00:04:56] Speaker 01: I don't even take Colorado to be disputing that they're allowing preschools to participate in the UPK program, even if they give preference based on disability or income level, and even religion. [00:05:08] Speaker 01: None of those are disputed in the record below. [00:05:11] Speaker 01: And if you look at the trial testimony, defendant Odean, who testified in this case, made clear that they interpret the mandate to mean that they can preference families or groups because they've historically been discriminated against. [00:05:29] Speaker 01: That's, if anything, a very open-ended standard, not a rule. [00:05:34] Speaker 01: And so if Colorado is making a decision as to who they think has historically been discriminated against, [00:05:39] Speaker 01: and applying that to let preschools in and out, I think that's clear they have discretion. [00:05:46] Speaker 02: So are you suggesting that that's the sole discretion that Fulton contemplates? [00:05:52] Speaker 01: So, actually, I think the Fellowship of Christian Athletes decision speaks to this. [00:05:56] Speaker 01: I don't think Fulton is limited to situations where the government has complete or sole discretion. [00:06:03] Speaker 01: Even the language in Fulton itself said, you know, when the government can pick and choose or make individualized determinations. [00:06:10] Speaker 01: And then it said, in this case, it was sole discretion. [00:06:13] Speaker 01: So I don't think the rule coming out of Fulton is that you have to have complete or sole discretion. [00:06:18] Speaker 01: And as I was starting to say, the Fellowship of Christian Athletes en banc decision from the Ninth Circuit says exactly the same thing there. [00:06:26] Speaker 02: That was a heavily split decision though. [00:06:28] Speaker 02: So you're not asking us to necessarily follow that decision. [00:06:32] Speaker 02: We're not bound by that decision. [00:06:34] Speaker 01: You're not bound by that decision, but I think it's very [00:06:37] Speaker 01: very persuasive precedent on very similar facts. [00:06:41] Speaker 01: I believe it was either, you know, ultimately eight to one, and there were a couple concurrences as well, but it was an en banc decision from, I think it was 11 judges on the Ninth Circuit. [00:06:52] Speaker 01: So, you know, in addition to the Fellowship of Christian Athletes, I think the Sixth Circuit's decision in Monclova Christian also helps to explain how Tandon works in this case. [00:07:03] Speaker 01: What the Sixth Circuit said is you can't look myopically solely at the restriction that burdens religion. [00:07:10] Speaker 01: You have to look more broadly at the statute and even other exceptions that are elsewhere in the statute. [00:07:15] Speaker 01: In Monclova, there was a specific provision that regulated religious schools and there were separate provisions that regulated different types of entities like Walmart and stores and things like that. [00:07:30] Speaker 01: And what the court said is, even if there are different places in the same statutory scheme, those exceptions can still be comparable. [00:07:38] Speaker 01: Here, I think this is an even easier case because as I was saying, it's a single sentence in the Colorado statute and it treats all of them the same. [00:07:48] Speaker 01: And I think this is clear from the record below. [00:07:49] Speaker 01: During trial in this case, the defendants never distinguished between [00:07:56] Speaker 01: different characteristics and said some are more important than others. [00:07:59] Speaker 01: And in fact, in testimony in a parallel case called Darren Patterson Christian Academy, the same defendants who are here in this case explicitly testified that they had an identical interest in all of the different provisions and that no single protection was more important than any other. [00:08:21] Speaker 03: seems that your brief and some of the amicus briefs give a lot of weight to what Ms. [00:08:25] Speaker 03: Odean testified to regarding discretionary exemptions, particularly the one, as you mentioned, that seems to be premised upon race. [00:08:33] Speaker 03: And I just wonder, how do we interpret the weight to give that testimony when [00:08:38] Speaker 03: She was responding to, you know, very skillful questioning of counsel to hypotheticals. [00:08:45] Speaker 03: But then in redirect, not only walk that back, but across the board, it seemed to me the Colorado officials were, I think the district court said unwavering. [00:08:54] Speaker 03: and their assertion that there could not be any exemptions to the equal opportunity requirement. [00:08:59] Speaker 03: So even though she sort of off the cuff gave those hypothetical questions, that response, that there would be a process to go through and at the end of the day in consultation with counsel, they would never grant that actual exemption. [00:09:10] Speaker 03: So how much weight do we give that type of testimony in the record? [00:09:14] Speaker 01: Yeah, I think the testimony, if you read it all together as it seems like you have, actually tells a very straightforward story. [00:09:22] Speaker 01: What Ms. [00:09:23] Speaker 01: Odean testified to initially was that she was interpreting the mandate in a way that would allow Colorado to grant preferences for historically discriminated against groups. [00:09:34] Speaker 01: And she was just applying that rule to the hypotheticals [00:09:37] Speaker 01: that counsel for the plaintiffs put to her at the time. [00:09:40] Speaker 01: Her later testimony basically said, well, we've never actually confronted those situations before. [00:09:46] Speaker 01: I'd have to talk to other people on my team. [00:09:49] Speaker 01: And I wouldn't grant exceptions that violate my understanding of what the law requires. [00:09:55] Speaker 01: And I think if you read that all together, it's clear that she's saying we would allow preferences to support this interest, this interest in helping historically discriminated against groups. [00:10:07] Speaker 01: And she's saying if it doesn't support those historically discriminated against groups, then it would violate the law. [00:10:14] Speaker 01: So I actually don't think there's any contradiction between what she testified on cross-examination and then on redirect. [00:10:22] Speaker 04: Is that just a question of statutory interpretation that you disagree with Judge Cain and with Ms. [00:10:29] Speaker 04: O'Deen on, what that language means, regardless of? [00:10:34] Speaker 01: I do think this court can look at the statute and make its own assessment of what it means. [00:10:39] Speaker 01: I think it is to some extent a question of what the statute says, but I think looking at the express terms and [00:10:47] Speaker 01: looking at, like you said, the word regardless, there's no distinction made. [00:10:51] Speaker 01: And I don't think this court even has to just reinterpret the statute. [00:10:55] Speaker 01: It can look at what defendants said below. [00:10:57] Speaker 01: Now, before this court, they are saying that you should treat disability and income level differently. [00:11:03] Speaker 01: That was not their argument in the district court. [00:11:06] Speaker 01: Their argument was, as I was explaining a minute ago, that we're interpreting this to mean we can grant preferences [00:11:12] Speaker 01: to favor historically discriminated against groups, regardless of the characteristics. [00:11:16] Speaker 04: And are you contending that Judge Cain misinterpreted the statute? [00:11:22] Speaker 01: Yes, I think that's right, Your Honor. [00:11:24] Speaker 01: I don't think this court needs to rely solely on that or to reverse that particularly, especially when defendants have conceded kind of broader discretion. [00:11:33] Speaker 04: So how precisely did he misinterpret the statute? [00:11:37] Speaker 01: Well, Your Honor, I think this, I mean, the statutory text as I read it is actually very clear. [00:11:41] Speaker 01: You know, it says each preschool provider must provide children with an equal opportunity to enroll and receive services regardless of, and then it lists the protected characteristics. [00:11:53] Speaker 01: Under this court's decisions like Etherton versus Owens, this court has said that when you're interpreting Colorado law, [00:12:00] Speaker 01: you look primarily to the plain text and to the express language itself. [00:12:05] Speaker 01: What the district court seemed to think is that you could look at other provisions in the statute to essentially use those to contradict this express language. [00:12:15] Speaker 01: Nothing elsewhere in the statute contradicts this express language. [00:12:19] Speaker 04: But you need to explain to me the express language and why you think that's plain in your favor because [00:12:25] Speaker 04: One reading would be, receive services regardless of race, ethnicity, so forth, would mean you can't discriminate against someone because they have that characteristic. [00:12:36] Speaker 04: And otherwise, it's wide open. [00:12:40] Speaker 01: I see my time is running. [00:12:41] Speaker 01: answer a question and reserve some time for rebuttal? [00:12:44] Speaker 01: Please. [00:12:45] Speaker 01: Yes, Your Honor. [00:12:46] Speaker 01: So I think even if we were to say that maybe disability is different, the text itself doesn't say low income or something like that. [00:12:55] Speaker 01: It says income level. [00:12:56] Speaker 01: And I think that's clear that it's saying you can't distinguish based on income level. [00:13:01] Speaker 01: And I also think the examples that Colorado itself points to aren't actually comparable. [00:13:06] Speaker 01: They say, well, there are other statutes where we're talking solely about discrimination [00:13:11] Speaker 01: against someone because of their disability or favoring low-income individuals. [00:13:16] Speaker 01: But the statutes they point to are distinguishable on exactly that ground because they have specific one-way ratchet language that's absent here. [00:13:24] Speaker 01: There's nothing in the statutory provision about discrimination. [00:13:27] Speaker 01: There's nothing in the statutory provision about discrimination against a particular group. [00:13:32] Speaker 01: It says regardless of. [00:13:33] Speaker 01: And I think even beyond that, just taking a quick step back, the fact that Colorado testified, and I think this is very undisputed, that they would have to consider race and sexual orientation and gender identity on a case-by-case basis, that itself is another form of discretion. [00:13:54] Speaker 01: And they have not argued that those exceptions are one-way ratchets. [00:13:59] Speaker 01: Thank you, Your Honor. [00:14:04] Speaker 00: Good morning, your honors. [00:14:05] Speaker 00: May it please the court, Helen Norton for the state of Colorado, representing the appellees. [00:14:11] Speaker 00: The plaintiffs here ask this court to do what no appellate court has ever done, create a First Amendment right for publicly funded schools to exclude and expel children because of those children's or their parents' protected class status. [00:14:27] Speaker 00: Such a right does not exist here for three reasons. [00:14:31] Speaker 00: First, the equal opportunity requirements treat religious and secular providers exactly the same and are thus neutral and generally applicable. [00:14:40] Speaker 00: Second, the equal opportunity requirements do not significantly burden plaintiffs' ability to communicate their views. [00:14:47] Speaker 00: And finally, for these reasons, rational basis review applies and the equal opportunity requirements can satisfy this and indeed any level of review. [00:14:56] Speaker 02: Council, how should we be thinking about the congregation preference? [00:14:58] Speaker 02: Is that out of the case? [00:15:00] Speaker 00: Is that out of the case? [00:15:02] Speaker 00: The congregation preference is out of the case. [00:15:04] Speaker 00: There's now no exception of any sort to the equal opportunity requirements. [00:15:09] Speaker 00: And this is one of many reasons why the equal opportunity requirements are neutral and generally applicable. [00:15:15] Speaker 00: Even when it was in the case before it was repealed, because the department came to understand it was an inadvertent exception to the religious affiliation provision, even when it was in the case, it did not trigger strict scrutiny, because Fulton holds that [00:15:29] Speaker 00: To show that a program is not generally applicable means showing that the government has prohibited religious conduct while permitting secular conduct that undercuts the government's asserted interests in similar ways. [00:15:42] Speaker 00: The purpose of this general applicability inquiry is to make sure that the government is not devaluing religion, to make sure that the government is not selectively burdening religion compared to secular providers. [00:15:53] Speaker 00: The congregation preference did no such thing. [00:15:56] Speaker 00: It favored religious providers over secular providers. [00:15:59] Speaker 00: It was the product of the department's good faith and enthusiastic effort to facilitate faith-based providers' inclusion into the programs. [00:16:07] Speaker 04: Does that matter, or is an exception an exception? [00:16:11] Speaker 00: Pardon me? [00:16:11] Speaker 04: Does that matter, or is an exception an exception? [00:16:14] Speaker 00: It does matter. [00:16:15] Speaker 00: The exceptions that matter, Fulton tell us, are those that prohibit religious conduct while permitting secular conduct that undermines the governments asserted in the same ways. [00:16:25] Speaker 00: to consider that the government's efforts to include faith-based providers should trigger suspicion under the Free Exercise Clause, turns the objectives of general applicability on its head, and would only discourage government from trying to accommodate and encourage religion in the first place. [00:16:43] Speaker 04: Are you saying that Judge Cain was mistaken in his ruling on the congregation exception? [00:16:48] Speaker 00: No, Your Honor, we are not. [00:16:51] Speaker 00: ruled that although the department's efforts in creating the congregation preference were good faith efforts, they introduced inadvertently for the first time an exception to the religious affiliation provision. [00:17:01] Speaker 00: Because by providing a preference that was available only to faith-based providers, because they were faith-based providers, it was just drawing a distinction on the basis of religious affiliation. [00:17:11] Speaker 00: The statute permits no exceptions. [00:17:13] Speaker 00: And for that reason, the department repealed the preference. [00:17:16] Speaker 02: Could the community preference that still exists [00:17:22] Speaker 02: serve as a functional equivalent to the congregation preference? [00:17:26] Speaker 00: No, Your Honor. [00:17:27] Speaker 00: The community preferences are available to faith-based providers, just as they are available to all providers, and they permit those providers to save seats for members of their communities so long as they do not define their communities on the basis of protected characteristics. [00:17:42] Speaker 02: So a school couldn't say, we preference members of our parish community, for example? [00:17:47] Speaker 00: No, Your Honor, as Judge Cain ruled to do so would be distinguishing on the basis of religious affiliation. [00:17:53] Speaker 00: What faith-based providers could do, like any other provider, is save seats for members of their neighborhood, could save seats for the children of their preschool's employees, could save seats for the siblings of current students, [00:18:08] Speaker 00: and all of the other preferences that are available to all providers, religious or secular. [00:18:12] Speaker 00: And what's common to all of these preferences is that they must not draw distinctions on the basis of protected characteristic. [00:18:21] Speaker 02: What do you say to the appellant's argument here that Carson is the case that should guide our inquiry? [00:18:28] Speaker 00: Carson is entirely distinguishable from this case. [00:18:31] Speaker 00: The state in Carson said literally, no schools that provide religious instruction [00:18:37] Speaker 00: need apply. [00:18:38] Speaker 00: And the other two cases in the Carson trilogy, the state said explicitly, no religious actors need apply. [00:18:45] Speaker 00: UPK does no such thing. [00:18:48] Speaker 00: It includes and welcomes faith-based providers. [00:18:50] Speaker 00: More than 40 faith-based providers currently participate, along with six Catholic Charities preschool providers. [00:18:59] Speaker 00: Moreover, UPK is also different from the other situations in which the Supreme Court has held that the government's action was not neutral. [00:19:06] Speaker 00: Unlike Lakumi, unlike the other cases in this string, there are no statements of religious animus by any decision maker in this case. [00:19:14] Speaker 00: Unlike Lakumi, where the ordinance was motivated by public outcry and fear of the Santeria Church moving into their community, the creation of the UPK program had nothing to do with any concerns about religious actors and instead about ensuring that all four-year-old Coloradans had access to free, publicly funded preschool. [00:19:34] Speaker 03: Council, what about the health and safety exemption, as I understand the argument in the district court's finding regarding [00:19:42] Speaker 03: that particular exemption, it was that by denying equal access, it was a threat to the health and safety of these children and their families. [00:19:52] Speaker 03: I think the argument is essentially their mental health for suffering from discrimination. [00:19:57] Speaker 03: But why couldn't we sort of deem that as an implicit animus towards Catholic doctrine as it relates to human sexuality and gender identity, that if you're calling [00:20:08] Speaker 03: you know, them exercising that doctrine, a threat to the health of children and their families. [00:20:14] Speaker 03: Is that implicit animus in any way? [00:20:15] Speaker 00: No, sir. [00:20:16] Speaker 00: No, Your Honor. [00:20:17] Speaker 00: Nothing in the UPK program, nothing in the department's implementation of the program, nothing in the expert testimony argued that religious beliefs or doctrine or curriculum or teachings of any sort is harmful. [00:20:29] Speaker 00: What the statute regulates and what the department implements is conduct [00:20:34] Speaker 00: that denies equal opportunity on the basis of protected characteristic. [00:20:38] Speaker 00: And conduct here means excluding or expelling children because of their protected class status or the protected class status of their parents. [00:20:48] Speaker 03: And Council, can I return to the discussion we had with Mr. Reeves about the testimony of Ms. [00:20:53] Speaker 03: Odean and this idea of some exemptions for individual preferences and how those could be sorted out. [00:21:00] Speaker 03: And the question I asked him, I would ask for you as well, which is how much weight do we give, not just to the record, but the district court's findings about [00:21:08] Speaker 03: whether or not there could be exemptions to the EEO mandate when faced with hypotheticals, Ms. [00:21:14] Speaker 03: Odean seemed to say that in fact that there may in fact be discretion for the department to grant those exemptions based upon different things such as historically discrimination to sort of remedy that. [00:21:26] Speaker 00: Yes, Your Honor, the department has no such discretion. [00:21:29] Speaker 00: Ms. [00:21:29] Speaker 00: O'Dean's testimony made clear that before that morning at trial, she had never considered, much less received a request for preferences of the type that were posed in the hypotheticals. [00:21:40] Speaker 00: Her testimony before, during, and after that colloquy made clear that the department will not approve any preference that draws distinctions that are prohibited by the equal opportunity requirements. [00:21:51] Speaker 00: Her testimony also made clear [00:21:53] Speaker 00: that she does not approve preferences on her own, she could not approve preferences on her own, and that any decision would be made by a consultation with senior leadership and counsel. [00:22:03] Speaker 00: The district court found her testimony credible on these fronts, found that her on-the-fly response to hypotheticals she had never considered had no relationship to how the department actually determines preferences, and the district court's determination are subject only to clear error review. [00:22:23] Speaker 00: Your Honor, I'd like to return to general applicability and address the preferences regarding disability and income. [00:22:30] Speaker 00: As Judge Phillips noticed, this is a question of statutory interpretation. [00:22:35] Speaker 00: What does it mean when the statute says that providers have to ensure equal opportunity regardless of disability and regardless of income status? [00:22:45] Speaker 00: Department interprets that to mean that the protected characteristic is having a disability, not not having a disability, [00:22:53] Speaker 00: and that the protected characteristic is being of a low-income status and not high-income status. [00:23:00] Speaker 00: So under this interpretation, for a Head Start provider to prioritize children from low-income families is not denying children equal opportunity on the basis of their income status. [00:23:12] Speaker 00: This interpretation is consistent with the statutory text, which both expressly identifies its primary objectives to include [00:23:20] Speaker 00: ensuring and expanding access to publicly funded preschool for children with disabilities and children from low income families. [00:23:29] Speaker 00: The statutory text also expressly requires the inclusion of Head Start providers in the program and expressly requires the inclusion of providers who serve children with disabilities in the program. [00:23:41] Speaker 00: This interpretation is also consistent with longstanding interpretation under other statutes like the Americans with Disabilities Act and so forth. [00:23:50] Speaker 00: Plaintiffs want this court to understand this statute to prohibit the participation of Head Start providers and to prohibit the participation of providers that serve children with disabilities. [00:24:00] Speaker 00: When to do so would turn the statutory text and its objectives on their head. [00:24:09] Speaker 04: Well, what about that income level? [00:24:11] Speaker 04: You're suggesting that it would discriminate if it's a low income level. [00:24:15] Speaker 04: Why wouldn't it be discrimination to say, sorry, your parents make too much money, so you can come to our school? [00:24:24] Speaker 00: Yes, Your Honor. [00:24:24] Speaker 00: The department interprets the statutory language requiring equal opportunity regardless of income status. [00:24:31] Speaker 00: The protected characteristic under the department's interpretation is low income status. [00:24:36] Speaker 00: And again, consistent with the repeated statutory identification of its primary objectives, [00:24:41] Speaker 00: to expand and ensure access to children from low-income families in the program and the statute's direct requirement that Head Start providers who prioritize low-income children should be included in the program. [00:24:56] Speaker 00: To interpret the statute otherwise would mean the denial to the exclusion of Head Start from the program because they serve deliberately children from low-income families. [00:25:05] Speaker 04: If Colorado were to lose this appeal and then struck its individual provider preferences, where would we be? [00:25:16] Speaker 00: You're talking about the preferences that are available to children, the siblings of children, the preferences that are available? [00:25:23] Speaker 04: All of them listed in Judge Cain's order. [00:25:26] Speaker 00: Yes. [00:25:26] Speaker 00: Well, then we would be back at the results of the default algorithm, which would match families with providers based either on a random basis [00:25:35] Speaker 00: or on a first come, first serve basis. [00:25:37] Speaker 00: And the preferences were designed to overcome those unintended consequences of the algorithm, to make sure that, for example, school districts could serve only children and families that lived within the school district's boundaries, to ensure that preschools could save seats for the children of their preschool employees, their preschool teachers, to ensure continuity of care, to ensure that preschools, if they so choose, could save seats for members of their neighborhood [00:26:05] Speaker 00: or that a community college that had its own preschool could save seats for the children of its teachers and its students. [00:26:11] Speaker 04: So it would just be wide open, first come, first serve? [00:26:15] Speaker 00: Or random. [00:26:18] Speaker 04: And if that were the system, then would the issues in this case simply vanish? [00:26:27] Speaker 00: I think that the opposing council has a number of theories for why. [00:26:32] Speaker 00: They believe that the First Amendment creates a right for publicly funded preschools to deny equal opportunity on the basis of protected class status. [00:26:39] Speaker 00: So I don't think it would end. [00:26:41] Speaker 00: It would resolve all of their claims. [00:26:45] Speaker 00: Speaking of their other claims, I want to briefly address their expressive association claim. [00:26:51] Speaker 00: Expressive association claim. [00:26:53] Speaker 02: Before you do, I wanted you to address, please, the temporary waiver provision. [00:26:58] Speaker 02: I'm struggling a little bit with understanding [00:27:01] Speaker 02: I guess a couple of aspects of this. [00:27:04] Speaker 02: One is the health and safety standard, understanding of the mandate itself. [00:27:16] Speaker 02: If the mandate qualifies as a [00:27:18] Speaker 02: a health and safety standard in Colorado's view because it is focused on promoting or ameliorating students' long-term health and safety. [00:27:28] Speaker 02: What standard doesn't qualify as a health and safety standard? [00:27:31] Speaker 02: And how does that inform our understanding of the temporary waiver provision? [00:27:35] Speaker 00: Yes, there are many standards that are quality standards but are not health and safety standards. [00:27:40] Speaker 00: To offer a couple examples, the standard that requires preschools to provide 16 hours of paid leave a year for their teachers to engage in professional development. [00:27:51] Speaker 00: The standard that requires a certain number of minimum contact hours between professional educators and students over the course of the years. [00:27:59] Speaker 00: These are examples of quality standards that are deeply important to quality preschool but that are not health and safety standards. [00:28:05] Speaker 02: And that's what's contemplated by the temporary waiver provision? [00:28:11] Speaker 00: Yes, Your Honor. [00:28:11] Speaker 00: The purpose of that provision is to provide extra time to come into compliance for small child care providers or in-home providers who are new to preschool education. [00:28:21] Speaker 00: and need time to come into the quality standards that help them provide high quality preschool, and they've never before provided that. [00:28:29] Speaker 00: But that provision makes clear that under no circumstances may time be given to a provider to come into compliance with the health and safety standards. [00:28:38] Speaker 00: and the equal opportunity standards are among the health and safety standards as they have been part and parcel of the program's commitment to safe and healthy learning environments from the program's inception. [00:28:50] Speaker 00: I see that my time is up. [00:28:52] Speaker 04: If you want two minutes for the association claim, you can take it and then we'll tag that on as far as rebuttal time so it's equal. [00:28:59] Speaker 00: Thank you, Your Honor. [00:29:00] Speaker 00: The expressive association claim requires the plaintiffs to show that the equal opportunity requirements significantly burden their expression, but they can show no such thing. [00:29:10] Speaker 00: First, the presence of four-year-olds at a school does not significantly interfere with the school's ability to communicate their views, and of course they have them. [00:29:19] Speaker 00: on marriage, sexuality, gender, and more. [00:29:23] Speaker 00: Four-year-olds, unlike the volunteer adult Scoutmasters at issue in Dale, who were those Scoutmasters were expressly charged with communicating and inculcating the Scouts values to their members and to the public. [00:29:37] Speaker 00: Four-year-olds, do you know such thing? [00:29:39] Speaker 00: And the Supreme Court has held exactly that in at least two other cases. [00:29:43] Speaker 02: Why does Dale matter? [00:29:44] Speaker 02: I'm trying to understand why Dale is relevant to how we would assess this claim. [00:29:51] Speaker 02: And I'm thinking about Agency for International Development where [00:29:55] Speaker 02: Dale seems irrelevant if the mandate is a permissible condition on funding. [00:29:59] Speaker 02: Is that not the correct way to look at it? [00:30:04] Speaker 00: Those are two different threads. [00:30:05] Speaker 00: So Dale deals with an expressive association challenge to an equal opportunity requirement. [00:30:10] Speaker 00: And in fact, it's the only in a series of five cases where the court upheld expressive association challenges to equal opportunity. [00:30:17] Speaker 00: Those were denied in Runyon, in J.C.' [00:30:19] Speaker 00: 's, in Duarte, and Rumsfeld. [00:30:21] Speaker 00: Alliance for an Open Society dealt instead with an unconstitutional conditions claim, a claim not present in this particular case. [00:30:29] Speaker 00: And the court has made clear that the government has the power to choose what activities it will fund and what activities it will not fund. [00:30:36] Speaker 00: What the government cannot do is to apply its conditions [00:30:40] Speaker 00: on a recipient's activities that are not publicly funded. [00:30:44] Speaker 00: And that's what Alliance for Open Society held, that the government could condition expenditures of federal funding for HIV prevention services on the condition that the recipient not use that money to promote or support prostitution, but that the First Amendment did not permit the government to impose any conditions on that recipient's speech or conduct that was not publicly funded. [00:31:05] Speaker 00: Here, UPK applies only [00:31:08] Speaker 00: to participating providers' publicly funded preschool activities. [00:31:13] Speaker 00: So for example, it would not apply to plaintiffs' K through 8 schools. [00:31:18] Speaker 00: It would not apply if the plaintiffs had homeless shelters or soup kitchens. [00:31:22] Speaker 00: It applies only to publicly funded preschools. [00:31:25] Speaker 00: And for this reason, too, a condition on public funding, as the court held in Christian Legal Services v. Martinez, does not significantly burden an expressive association's ability [00:31:35] Speaker 00: to communicate its use. [00:31:36] Speaker 02: So you see the Alliance for Open Society framework as a separate independent path to endorsing your position in this case? [00:31:46] Speaker 00: If the plaintiffs had raised an unconstitutional conditions claim, Alliance for Open Society explains why that claim should be rejected. [00:31:56] Speaker 04: Thank you, counsel. [00:32:01] Speaker 04: Mr. Reeves. [00:32:02] Speaker 04: And let's add 3.30 if we can. [00:32:07] Speaker 04: Before you start, let's get the clock straight. [00:32:10] Speaker 04: I want to be fair on the time. [00:32:13] Speaker 04: And accordingly, I'll hold you to it. [00:32:18] Speaker 04: You have the same amount of time, four minutes, four seconds for a battle. [00:32:21] Speaker 04: Please proceed. [00:32:22] Speaker 01: Thank you, Your Honor. [00:32:23] Speaker 01: Just a few quick points. [00:32:25] Speaker 01: I'd like to start with a congregation exception. [00:32:28] Speaker 01: You heard defendants come up here and say that preschools are not allowed to use that exception anymore. [00:32:33] Speaker 01: But if you look at footnote three in our supplemental brief, to this day, there are preschools on Colorado's website that have disclaimers saying we only admit families who are part of our congregation. [00:32:47] Speaker 01: So even if they've gotten rid of a separate congregation exception, that exception has been folded into the broader kind of community preferences or we call it the catch-all exception that Colorado created during trial in this case. [00:33:01] Speaker 01: And in addition to that, I did want to talk about religious discrimination. [00:33:07] Speaker 01: and why favoring some religious groups over others is still problematic under Smith. [00:33:13] Speaker 01: This court's decision in Doe's 1 through 11 and this court's older decision in Colorado Christian University both talk about inter-denominational discrimination. [00:33:23] Speaker 01: And in those cases, what they say is discriminating in favor of some religious groups over others triggers strict scrutiny under Smith in the same way that favoring secular groups over religious groups does as well. [00:33:36] Speaker 01: Second, I'd like to talk about comparability very briefly. [00:33:41] Speaker 01: You heard defendants talking about how exceptions based on religion are different from other exceptions. [00:33:47] Speaker 01: The government has never articulated different interests it has in these different protected characteristics. [00:33:54] Speaker 01: If you look at their briefing, all they say is that there are different barriers to access. [00:33:59] Speaker 01: So someone who has a disability [00:34:01] Speaker 01: might have a different barrier to access than someone who is low income, for example, but the government interest in equal access is the same across all eight protected characteristics. [00:34:13] Speaker 01: In addition, your honor, if you look at their briefing before this court and in oral argument today, they've never actually walked back from the idea that you can give favoritism to historically discriminated against groups. [00:34:25] Speaker 01: All they've said is that's how they interpret the statute. [00:34:29] Speaker 01: If Colorado has the discretion to flexibly interpret this statutory mandate, which on its expressed terms is very clear in what it requires, if they can flexibly interpret that, that is itself a form of discretion that would violate Fulton. [00:34:44] Speaker 02: Where do you see that interpretive discretion and flexibility in the statutory text? [00:34:51] Speaker 01: I don't think it's in the statutory text, Your Honor. [00:34:54] Speaker 01: I think what Colorado is doing is they're taking a clear statutory mandate that says you have to provide equal opportunity regardless of any of these protected characteristics. [00:35:04] Speaker 01: And they're picking and choosing which ones they want to flexibly interpret and say, well, these two are one-way ratchets. [00:35:10] Speaker 01: We can favor some religious groups over others. [00:35:13] Speaker 01: We can interpret the statute in a way that allows us to favor historically discriminated against groups. [00:35:19] Speaker 01: So they're taking a clear statutory requirement and imposing their own flexibility on it. [00:35:24] Speaker 01: Because at trial, they testified it would be really hard to actually apply this equally to everybody because there are preschools that they want to let into the system. [00:35:32] Speaker 01: but they're basically using a religious gerrymander to keep the archdiocese preschools out. [00:35:38] Speaker 01: And I think on that point, Your Honor, [00:35:41] Speaker 01: Allowing religious preschools to participate would not, or I guess to frame it the other way, we're not asking Colorado to kick out the Head Start programs or kick out any preschools that give preference to disability. [00:35:57] Speaker 01: All we're saying is that if you give those preferences, you also have to consider religion. [00:36:02] Speaker 01: Religion is important as well. [00:36:04] Speaker 01: The First Amendment tells us that. [00:36:05] Speaker 01: So if you're giving preferences based on disability, you can't say, well, no preferences for religious groups. [00:36:11] Speaker 01: And finally, for the neutrality point, I would just point this court to the Sixth Circuit's decision in Merriweather. [00:36:18] Speaker 01: In that case, what the court said is that [00:36:21] Speaker 01: The way in which the government applies the law or interprets the law can be evidence of lack of neutrality. [00:36:35] Speaker 01: Here, Colorado has changed its regulations at least four times during the pendency of this case. [00:36:41] Speaker 01: And I would just submit that that's another example of lack of neutrality. [00:36:44] Speaker 01: Thank you, Your Honor. [00:36:44] Speaker 04: All right. [00:36:45] Speaker 04: Thank you, counsel. [00:36:47] Speaker 04: The case is submitted. [00:36:48] Speaker 04: Counselor excused. [00:36:49] Speaker 04: It got us a little bit over time, but an important case and we wanted to hear your arguments. [00:36:54] Speaker 04: Thank you.