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BURLINGTON — A federal appeals court ruled unanimously on Friday that a Vermont Catholic high school senior has the right to participate in the state-funded dual enrollment programs that allow students to take college classes for free.

The ruling involves Amy Hester of South Hero, a senior at Rice Memorial High School in South Burlington, and has statewide implications for those high school students similarly situated.

The program pays the tuition for high school juniors and seniors to take up to two courses at approved Vermont colleges.

The ruling impacts students living in a town without a public high school and instead may be attending an approved independent high school, according to Burlington attorney Thomas E. McCormick, part of the legal team for the plaintiffs.

James and Darlene Hester, along with the Roman Catholic Diocese of Burlington, had filed suit last year against Vermont Education Secretary Daniel French and then-Vermont State College Chancellor George “Jeb” Spaulding seeking approval for their daughter, Amy, to enroll in college level courses under the so-called Dual Enrollment Program (DEP).

Federal Judge Christina Reiss in Burlington rejected a request for a preliminary injunction last year and an immediate appeal was filed with the U.S. Court of Appeals for the Second Circuit in New York City. The case was argued on Oct. 13, and decided Friday.

“We conclude that Appellants have demonstrated a clear or substantial likelihood of success on the merits of their First Amendment claim, and that the remaining factors merit preliminary injunctive relief,” Circuit Court Judge John M. Walker Jr. wrote in the primary 33-page decision.

“Therefore, we reverse the judgment of the district court and grant the motion for a preliminary injunction... Secretary French is ordered to permit A.H. to participate in the DEP pending final adjudication of the merits of this case,” the ruling noted

Circuit Court Judge Steven Menashi wrote a 9-page concurring decision.

“In sum, A.H. has a clear likelihood of prevailing on her claim that her exclusion from the DEP violates her First Amendment right to the free exercise of religion,” wrote Menashi, a former deputy general counsel for postsecondary service at the U.S. Education Department.

The third judge on the panel heard the legal arguments, but died in December.

French did not respond to an email seeking comment Friday afternoon. The office of Vermont Attorney General T.J. Donovan represented the state in the arguments.

The lawsuit maintained the state unfairly had required that for students to participate in the college program they had to come from “publicly funded” high schools.

The Hesters argued that the program violated their rights under the Free Exercise Clause of the First Amendment dealing with freedom of religion.


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