NESTLED IN THE MOUNTAINS of lush Vermont is a tiny town called Chittenden (pop. 1,102) that may soon become embroiled in a constitutional controversy. Like many small Vermont towns, Chittenden has no high school. Instead, its high school students are "tuitioned" by the town to the school of their parents' choice.

That's right -- Vermont has school choice; has had it, in fact, since 1869. Under this system, parents in tuitioning towns have sent their children to a variety of state-accredited public and private schools, including some religiously affiliated ones and some out-of-state, for many years. Towns pay tuition for each of their students, up to the average cost of schooling in the state.

Until 1961, parents' options included Catholic schools. Then the Vermont Supreme Court held this practice unconstitutional, a violation of the First Amendment's establishment clause, which prohibits the establishment of religion. Nonetheless, tuitioning to other private schools, some with denominational affiliations -- Quaker and Episcopalian, for example -- continued. And in 1994, the Vermont Supreme Court ruled again, this time that it was indeed constitutional for the town of Manchester to reimburse a parent for tuition at St. Andrew's School, an Episcopalian institution in Delaware. But while the justices unanimously upheld the reimbursement, they cautioned against reading too much into their judgment because of the paucity of precedent. Perhaps another case, another day, another set of circumstances would fully decide the issue.

Now "another day" is here. The Chittenden School Board, which is tuitioning some 70 students to high schools this year, voted unanimously to approve tuitioning of students to a nearby Catholic high school, Mount Saint Joseph Academy. About 17 students have chosen MSJ.

Tuition at Mount Saint Joseph is around half what it costs to tuition kids to public schools. Chittenden, thus, will save money on its MSJ students -- money that can then cover other public-education expenses. Such savings are a boon to a school board struggling to come up with a budget that can win public support, in a state where school budgets are put to a vote of the people.

Now the board and the town are caught in a constitutional quandary. No sooner was their decision announced than the Vermont branch of the American Civil Liberties Union and the state itself leapt to bar the schoolhouse door. The ACLU publicly recruited possible plaintiffs to sue the town and stop the tuitioning to MSJ. The state used a much bigger club: On the ground that Chittenden "unreasonably refuses to comply with the law," it is threatening to withhold $ 170,000 in state education funds if the town proceeds. Chittenden, of course, argues that its position is more than reasonable. Not only did the Vermont Supreme Court's 1994 ruling seem to open the way for tuitioning to religious schools, but the school board sought and received a legal opinion that verified its own interpretation.

Chittenden's case will go to court soon. School-choice public-interest lawyers filed an injunction to block the state's withholding of funds. If they are successful, the constitutional issue will truly be put to the test, as the case wends its way through Vermont's legal system and eventually, perhaps, to the highest court in the land.

If the injunction fails, however, Chittenden will face a tough decision: whether to proceed with a policy that will cost it its state funds for education, bring on a suit from the ACLU, and entail heavy legal expenses, for what remains an uncertain outcome in the courts.

School-choice advocates would love to see the constitutional issues tested. In Vermont, the public reimbursement of private schools is no newfangled voucher program. It is not an experiment in educational freedom or a campaign ploy. It is a functioning system with a long history of success. It is a neutral system, in which the state plays no role except to divvy up the money: It is parents, not government, who choose from a spectrum of established schools, both public and private.

Chittenden's experience refutes several perennial arguments against school choice:

1. School choice will siphon public funds away from public schools, thus leading those schools to decline. The lower tuition at the Catholic school means choice saves Chittenden money. And even though Chittenden parents have been free to choose between public and private schools for years, the public schools in the area attract the majority of students, a testament to these schools' perceived quality. Parents will choose public schools that they believe meet their children's needs.

2. School choice will destroy a sense of community and commonality. In Chittenden, the small-town life for which Vermont is famous thrives, despite the fact that children have long gone to different schools. The town is divided over the current controversy, but the annual community festival went off as usual.

3. School choice will result in schools divided along racial, ethnic, religious, or other lines. Federal law prohibits discrimination even on the part of private schools. And there is no indication that Chittenden's parents choose schools for any reasons other than educational quality, proximity, or special programs -- all relating to their children's needs.

Finally school-choice opponents insist that public reimbursements to religious schools are unconstitutional, as if this were a settled matter. In fact, the U.S. Supreme Court has not ruled on a tuition-reimbursement program like Vermont's, which treats public, private, and religious schools the same. This is indeed the central question about comprehensive school choice, since more than 80 percent of the nation's private schools have religious affiliations. It is time the question were resolved, and the Chittenden case seems a fine one to press for a definitive ruling.

Libby Sternberg is a freelance writer living in Vermont and a member of Rutlanders for School Choice.

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