Op-ed: A child’s access to preschool shouldn’t depend on who their parents love

In the 1950s, the Supreme Court confronted a fundamental question about educational equality with Brown v. Board of Education: Was it enough for Black children to have access to a public school, even if that access was limited to segregated schools that “allowed” Black students? Or did they have a right to attend public schools on equal terms with everyone else?

Ultimately, the Court rejected racial segregation, recognizing that educational opportunity could not be equal when children are forced to attend separate schools based on race. As Chief Justice Earl Warren wrote in his opinion, “Where a State has undertaken to provide an opportunity for an education in its public schools, such an opportunity is a right which must be made available to all on equal terms.”

But why does equal access on equal terms matter? Why did it matter when Black children had other schools they could attend, and why would they want to attend schools that wished to reject them anyway? According to the Supreme Court, even if two schools were comparable, state-sponsored segregation sent a message to Black children that they were inferior.

This message harmed children’s development in ways that, as Chief Justice Earl Warren wrote, were likely “never to be undone.” Black families challenged a system that made race the basis for deciding where their children could go, even when other schools were available, because the harm was the message sent by the government’s endorsement of discrimination.

Brown did not resolve every question about educational equality, but it gives us a strong framework for understanding why equal access to public programs matters.

The case before the Court now, St. Mary Catholic Parish v. Roy, is about a different question: whether Colorado can require religious providers participating in its publicly funded universal preschool program to comply with nondiscrimination rules. Colorado’s program provides public funding to public and private preschools, including religious preschools, for universal preschool — so long as providers sign a nondiscrimination agreement that mandates equal enrollment for all families.

St. Mary Catholic Parish wants to receive taxpayer funds to participate in this program while refusing to comply with this rule. Essentially, they want to turn away children whose parents identify as LGBTQ+.

Once again before the Court is a question: Will a family be given access to an otherwise universal public service — or are they allowed to be treated like outliers and turned away based on whether an institution approves of them? A four-year-old should not have to wonder whether their family composition makes them less welcome at school.

Parents should not have to weigh an educational opportunity against the risk that their family will face rejection. And when the government creates a program intended to serve families broadly, it has a responsibility to make that opportunity equally accessible. St. Mary, in this case, argues that the government must fund discriminatory policies.

That would make the state a participant in the stigmatization of LGBTQ+ families, the very harm the state was trying to protect them from by including an equal opportunity requirement.

In Brown v. Board of Education, the Supreme Court recognized the harmful effects that the stigma of state-sponsored discrimination inflicted on those who are excluded. While the cases are distinct, the principle is important. Equal access is not just a question of whether an opportunity is technically available. It is also a question of what the rules tell children and families about whether they belong.

Nikhil Vashee is the senior director of education law and policy at Family Equality, a national nonprofit that protects and advances freedoms for LGBTQ+ families.

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