The U.S. Department of Justice says a Vermont student who attends a Catholic school was wrongly excluded from a state program, considering a recent U.S. Supreme Court decision that said that states cannot cut religious schools from programs that send public money to private education.

On Wednesday, the U.S. Department of Justice filed a brief in the case, saying that the federal appeals court should overturn the district court’s earlier denial of a preliminary injunction.

Last year, the group Alliance Defending Freedom filed a federal lawsuit against the Vermont Education Agency on behalf of some students from the Rice Memorial High School in South Burlington, saying they wished to take college classes under the Vermont Dual Enrollment Program, but were excluded because they attend a Catholic high school.

After U.S. District Court Judge Christina Reiss denied the students a preliminary injunction, they appealed to the 2nd Circuit.

“The Supreme Court’s repeated holdings … that religious entities and their adherents cannot be excluded from or disadvantaged under public programs and benefits based on their religious character, make clear that A.H. and Rice’s disqualification from the Dual Enrollment Program is impermissible under the Free Exercise Clause,” the DOJ wrote in its court filing on Wednesday.

In late June, the U.S. Supreme Court, by a 5-4 vote, upheld a Montana scholarship program that allows state tax credits for private schooling in which almost all the recipients attend religious schools.

In light of that decision, the federal appeals court in early August granted an injunction to stop Vermont from excluding the students from participating in the state program while an appeal is pending.

The Vermont Education Agency did not immediately return an email seeking comment. A spokesperson said earlier this month that the agency would comply with the court’s order and looked forward to the chance to present the merits of the state’s case later this fall.