The U.S. Department of Justice has sided with a Vermont Catholic high school student who has said a state program wrongly excluded her participation in a college credit coursework program because she attends a religious private school.

The Vermont Education Agency’s Dual Enrollment 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. However, students at private religious high schools are excluded.

Challenging this rule are two students known only as A.M. and A.H.. They are enrolled at Rice Memorial High School, a Catholic school run by the Diocese of Burlington. The students, their parents, and the diocese are plaintiffs in the case, A.M. v. French.

In its brief, the civil rights division of the Department of Justice said A.H. has shown a “clear likelihood of success” in claiming 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.”

The brief argued that the student’s parents faced a choice between “having their daughter attend a Catholic high school (i.e., Rice), consistent with their Catholic religious beliefs, and forgoing the benefits of the Dual Enrollment Program” or “transferring to a secular private or public school or commencing home study to obtain the benefits of the Dual Enrollment Program.”

“(R)eligious entities and their adherents cannot be excluded from or disadvantaged under public programs and benefits based on their religious character,” said the friend-of-the-court brief, filed Aug. 19 with the U.S. Court of Appeals for the 2nd Circuit.

The Department of Justice brief in the Vermont case noted that the state 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 are allowed to take part in the dual enrollment program and so receive state funding.

“The free exercise clause of the First Amendment protects against religious discrimination by the federal government, and the Fourteenth Amendment applies this guarantee to the states,” the brief continued. “As a general rule, the free exercise clause prohibits laws that disqualify religious entities, because of their religious character, from generally available public benefits.”

The free exercise clause, the brief continued, “denies the government the power to withhold generally available public benefits on the basis of the recipient’s religious character.” The student and her high school’s exclusion from the program “stemmed directly from the denial of public funding for A.H.’s high school tuition... based solely on her school’s religious character.”

The brief was welcomed by John Bursch, senior counsel and vice president of appellate advocacy at the Alliance Defending Freedom. The religious freedom legal group is representing the plaintiffs.

Bursch commented Aug. 19: “no state can discriminate against students based on which kind of school they attend. It makes no sense for Vermont to say it will pay for a student from a public or secular private school to take a college course at a public university, for example, but then say that a student from a faith-based private school can’t receive the same funding to attend that same class.”

“The Constitution protects religious Americans against unequal treatment and prohibits laws that target Americans based solely on their religious status,” he said.

U.S. District Court Judge Christina Reis had denied a previous request for a preliminary injunction. However, the appellate court 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.

State officials have said they will comply with the court order, and will present the state’s case later this fall, the Associated Press reports.

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.

The 2017 U.S. Supreme Court decision in Trinity Lutheran Church v. Comer is also relevant, Busch said. In that case, the court ruled that a state cannot deny public benefits to religious entities simply because they are religious.

The Department of Justice had filed a statement of interest in the Vermont case in May, arguing that the plaintiffs’ legal claims were plausible.

Eligibility for the Vermont program mirrors the criteria for a separate Town Tuitioning Program. This program does not include private religious schools due to a 1999 Vermont Supreme Court decision which held that the use of public funds to pay tuition at private religious schools was a violation of the state constitution.

Plaintiffs in the lawsuit said the dual enrollment program is different, since the state is paying for college courses, not tuition for a religious high school.