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A southern Colorado elementary school that backers have called “Colorado’s first public Christian school” has sued state officials over the state’s ban on religious public schools, alleging religious discrimination.
Riverstone Academy, along with its authorizer, Education reEnvisioned Board of Cooperative Educational Services, or ERBOCES, filed a lawsuit last week in federal district court against 10 state education leaders.
Although Riverstone is currently receiving state education funding, the money could eventually be clawed back by the state, which would be “the end of the school as it currently exists” and create financial and accounting difficulties for ERBOCES, the lawsuit says.
Riverstone, which advertises itself as offering a “Christian foundation,” opened quietly in Pueblo County last August with about 30 students in kindergarten through fifth grade. Emails obtained by Chalkbeat indicate the school was created at the behest of a conservative law firm in order to spark a religious liberty lawsuit that could go all the way to the U.S. Supreme Court.
The lawsuit filed Feb. 13 appears to be the start of that legal effort.
According to the lawsuit, Riverstone and ERBOCES want a court order to prevent Colorado officials from clawing back the school’s funding and a declaration that certain provisions in the Colorado Constitution violate the U.S. Constitution.
The lawsuit comes even as Riverstone’s location remains a mystery. School officials closed the school’s building — a former office in an industrial area — in late January after orders from local officials who cited numerous health and safety violations. Riverstone officials have provided a screenshot of a text to Chalkbeat indicating Riverstone has a temporary location, but they have so far refused to say where it is.
The defendants in the Riverstone case include Colorado Education Commissioner Susana Córdova and the nine members of the Colorado State Board of Education.
A spokesperson for the Colorado Department of Education said by email Tuesday, “While we are working closely with our legal counsel, we are not able to discuss pending litigation.”
Riverstone Academy and ERBOCES are represented by four law firms but not Alliance Defending Freedom, the firm that sought a “test case,” according to the emails obtained by Chalkbeat. The firms include First & Fourteenth, First LIberty Institute, Dechert, and Miller Farmer Carlson Law, which is headed by Brad Miller.
Miller is an education attorney who represents several conservative-leaning Colorado districts and who wrote the email indicating that Riverstone’s creation was for the purpose of instigating a court case.
The state letter at the center of the lawsuit
After Riverstone hit the headlines in October, the Colorado Department of Education sent a letter to Ken Witt, the head of ERBOCES, suggesting that Riverstone may not be eligible for public funding.
The letter said public schools are generally required to be nonsectarian, which means secular, and cited the Colorado and U.S. Constitutions.
“ERBOCES is a public entity bound by the federal and state constitutions,” the letter said. “Thus, any school that ERBOCES operates must be nonsectarian in nature.”
Despite what the letter said, the department is funding Riverstone for now. Department officials have said they won’t make a final decision on whether to claw back money until an audit of ERBOCES is complete, probably in early 2027. ERBOCES is one of 68 school districts and BOCES undergoing audits this year, according to a list released by the Education Department in January.
The lawsuit repeatedly cites the October letter from the Education Department as well as the audit as evidence that Riverstone and ERBOCES are being unfairly treated.
It acknowledges that the letter “correctly summarized Colorado law,” but says the law violates the U.S. Constitution’s free exercise provision in the First Amendment by prohibiting ERBOCES from contracting with religious schools. Specifically, it cites a provision in the state constitution that bars public money for religious purposes.
Often called a “Blaine Amendment,” such provisions exist in many state constitutions and are named for the 19th century congressman who promoted the concept.
The provision in Colorado’s constitution was “adopted out of overt hostility to particular religious denominations,” the lawsuit states. “State laws that demonstrate hostility to religion violate the Free Exercise Clause.”
The lawsuit also cites the 14th Amendment’s guarantee of equal protection and the First Amendment’s guarantee against government preference for a particular religion, known as the establishment clause.
ERBOCES authorized Riverstone last summer. A nonprofit called Forging Education runs the school. Quin Friberg, a local pastor who leads both Riverstone and Forging Education, has described Riverstone as a public school on the school’s website but as a private school on its insurance policy and other documents.
In response to repeated public records requests by Chalkbeat for documents related to Riverstone, he recently told an attorney working on behalf of Chalkbeat that Forging Education is not a public entity and therefore not subject to the Colorado Open Records Act.
Ann Schimke is a senior reporter at Chalkbeat, covering early childhood issues and early literacy. Contact Ann at aschimke@chalkbeat.org.
