Professors Catherine Smith and Suzette Malveaux Submit Tenth Circuit Amicus Brief 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
December 4, 2024

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. Court of Appeals for the Tenth Circuit. 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.

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. In St. Mary Catholic Parish v. Roy, plaintiffs, including two Catholic preschools and the Archdiocese of Denver, sued Colorado. They contend that the requirement infringes on their First Amendment rights and 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 case is now on appeal to the U.S. Court of Appeals for the Tenth Circuit.

The professors’ amicus brief emphasizes the adverse effects of LGBTQ discrimination on young children. “Colorado has bucked federal anti-discrimination law’s historically adult-focused lens to become a national leader in prioritizing and protecting young people ⎯ including children experiencing LGBT[Q] discrimination,” they assert. “Pursuant to these child-forward initiatives, Colorado has compelling interests in ensuring children’s unencumbered access to equal educational opportunities and in protecting them from discriminatory harms.”

Smith and Malveaux are joined on the brief by attorney Lauren Fontana (University of Colorado Anschutz Medical Campus), and professors Tanya Washington (Georgia State College of Law), Robin Sterling (Northwestern School of Law), Jeremiah Chin (University of Washington School of Law), and Sara Hildebrand (University of Iowa College of Law).

The amicus brief is available online at SSRN.

If you know any W&L faculty who would be great profile subjects, tell us about them! Nominate them for a web profile.