Professors Catherine Smith and Suzette Malveaux Submit Amicus Brief in U.S. Supreme Court Case The brief argues that Colorado has a compelling interest in protecting children from discriminatory harms and providing equal access to educational opportunities.

By Law Communications
September 7, 2026

Washington and Lee law professors Catherine Smith and Suzette Malveaux are among the authors of an amicus brief in a case headed to the U.S. Supreme Court. The brief, “Scholars for the Advancement of Children’s Constitutional Rights,” argues in support of Colorado in a case concerning the state’s newly enacted Universal Pre-Kindergarten (“UPK”) program. The case, St. Mary Catholic Parish v. Roy, will be argued at the Court in November.

Preschools participating in the publicly-funded UPK program must comply with a LGBTQ non-discrimination requirement to ensure that every child in Colorado has an equal opportunity to access a quality preschool education. The plaintiffs in the case, including two Catholic preschools and the Archdiocese of Denver, sued Colorado contending that the requirement infringes on their First Amendment rights. They seek an exemption that would allow them to exclude children or their parents based on sexual orientation or gender identity. A federal district court upheld the non-discrimination requirement, rejecting the Catholic preschools’ contention that their constitutional rights were violated. The U.S. Court of Appeals for the Tenth Circuit also ruled against the plaintiffs.

The professors’ amicus brief emphasizes the adverse effects of LGBTQ discrimination on young children. “This case is not just about the prerogatives of institutions seeking a religious exemption from the State’s non-discrimination requirement. This case is about the serious, lifelong, and cumulative injuries that children in the LGBT community would suffer if Colorado were forced to abandon its equal access mandate and subsidize the discriminatory religious exemption St. Mary Catholic Parish seeks.”

Smith and Malveaux are joined on the brief by professors Tanya Washington (Georgia State College of Law), Robin Sterling (Northwestern School of Law), Jeremiah Chin (University of Washington School of Law), Sara Hildebrand (University of Iowa College of Law), and Abigail Fleming (University of Miami School of Law).

The amicus brief is available through the W&L Scholarly Commons.

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