A federal court of appeals has sided with a Catholic high school student who challenged a State of Vermont policy that excludes students at private religious secondary schools from a no-cost college credit program.

“Today’s decision levels the playing field by ensuring that Vermont parents and students who have chosen a faith-based education can enjoy the same publicly available opportunities as their neighbors,” Jake Warner, legal counsel with Alliance Defending Freedom, said Jan. 19.

Amy Hester, a senior at Rice Memorial High School in South Burlington, is a plaintiff in the case with her parents and the Catholic Diocese of Burlington, which runs the school.

As a student at a private religious high school, Hester was excluded from the Vermont Education Agency’s Dual Enrollment Program. The program allows high school students to take college courses with tuition paid by the state. Students from public schools are eligible, as are students from secular private schools and homeschooled students.

The State of Vermont pays tuition for dual enrollment credit directly to the post-secondary institution, and makes no payments to high schools at all. Religiously affiliated colleges that offer religious coursework can take part in the dual enrollment program and so receive state funding.

While a lower court rejected a request for a preliminary injunction against the policy, Hester has “a clear or substantial likelihood of success on the merits of their First Amendment claim,” Judge John M. Walker Jr. of the 2nd Circuit Court of Appeals said Jan. 17, as reported by the Vermont newspaper the Battleboro Reformer.

Judge Steven Menashi, in a concurring decision, said Hester had a clear likelihood of successfully arguing that her exclusion from the dual enrollment program “violates her First Amendment right to the free exercise of religion.”

The court ordered the Vermont Secretary of Education to allow Hester to participate in the program. It granted a preliminary injunction pending the final resolution of the case.

Plaintiffs’ attorneys, including those from the Alliance Defending Freedom religious freedom legal group, welcomed the decision.

“Vermont officials can’t treat people of faith as second-class citizens by excluding them from generally available public benefits,” Warner said. “When the government allows same-district students from public schools, secular private schools, and homeschools to participate in its dual enrollment program but excludes only students from religious private schools, it discriminates against religious students.”

Thomas E. McCormick, another attorney for the plaintiffs, told the Battleboro Reformer that the ruling would impact students who live in a town without a public high school and instead attend an approved independent high school.

The civil rights division of the U.S. Department of Justice had filed a brief supporting the student’s claim that the rule violates the free exercise clause of the U.S. Constitution. The dual enrollment program is open to “similarly situated schools and students attending such schools.”

“(R)eligious entities and their adherents cannot be excluded from or disadvantaged under public programs and benefits based on their religious character,” the brief said.

The appellate court had granted a preliminary injunction for the plaintiffs on Aug. 5, citing a recent Supreme Court decision that could further change the legal thinking about funding for religious private schools.

In June 2020, the Supreme Court ruled in a 5-4 decision that the Montana state constitution’s ban on public funding of religious institutions violated the First Amendment and constituted “discrimination against religious schools and the families whose children attend them.” The case concerned a 2015 state scholarship program funded by tax credits that state officials had said could not be used by students at religious schools.

—Catholic News Agency