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A tiny Vermont school district has become the latest battleground in the fight over religious school choice.

The 200-student Chittenden school district, nestled in Vermont's Green Mountains, wants to pay to send 15 students to a nearby Roman Catholic high school. The proposal has led to a legal battle with the state education department, which has threatened to withhold all of the district's general education aid.

Chittenden is one of about 90 Vermont communities that do not have high schools and are not members of so-called union high school districts. Instead, they pay tuition for students to attend public or nonsectarian private high schools in other communities after they finish Chittenden's K-8 schools. The practice, known as "tuitioning," has been a tradition in Vermont for more than a century. Religious schools were included in the tuitioning system for many years, but in 1961 the Vermont Supreme Court ruled that their inclusion violated the U.S. Constitution's prohibition against government establishment of religion.

Now, several factors have combined to thrust Vermont and the tuitioning practice into the national debate over school choice. For one, advocates of public vouchers for private religious schools have been pressing the cause wherever they think they might get a test case that could bring the issue before the U.S. Supreme Court. They believe the current court would favor the inclusion of religious schools in voucher schemes.

Moreover, Vermont's high court issued a ruling in a 1994 dispute over tuitioning that, in the view of some legal observers, undercuts its 1961 decision against the inclusion of religious schools.

Plus, the three-member Chittenden school board was willing to test the status quo by offering to pay students' religious school tuition. The board voted over the summer to pay the tuition for students who attend Mount St. Joseph's Academy, a Catholic high school in nearby Rutland. Annual tuition at the Catholic high school ranges from $2,525 to $3,000, which the district would cover in full.

"It's the parents who are choosing to send their kids to Mount St. Joseph's, and we feel they should have that option," said David Smith, a member of the school board.

Fifteen students from Chittenden attend the school, and a few others expressed interest after the school board's vote. Chittenden has about 100 students of high school age. Most attend the public high school in Rutland or other nearby public or nonsectarian private schools.

The school board has been considering paying religious school tuition for more than a year. Last year, it obtained an advisory opinion from a lawyer who concluded that the 1961 state supreme court decision had been virtually overturned by a 1994 case from Manchester. In that ruling two years ago, the state high court ordered tuition reimbursement for a family that sent its son to a private boarding school in Delaware.

Although school boards had included out-of-state schools in the tuitioning system, the state objected to the reimbursement in the Manchester case because it considered the boarding school to be religiously affiliated. In ruling for reimbursement, the high court favorably cited a series of U.S. Supreme Court rulings beginning in the early 1980s. Voucher advocates frequently point to the same cases to bolster their argument that religious school vouchers would pass constitutional muster.

The Vermont court said its ruling was limited to the tuition-reimbursement case before it, but some observers viewed it as opening the door to expand tuitioning to religious schools.

After the Chittenden board voted to pay tuition at Mount St. Joseph's, state officials objected. In fact, the state warned the district that if it followed through on its plan, it would lose its general state education aid. That amounts to about $180,000, or 10 percent of Chittenden's $1.8 million budget.

William Reedy, acting deputy commissioner of the state education department, said that the state is still bound by the 1961 state supreme court decision and that religious schools cannot participate in the tuitioning system. "We have nothing against parochial schools," he said. "We just think that direct, unrestricted payments to parochial schools are forbidden by the Constitution."

The Institute for Justice, a Washington, D.C.-based legal organization that has promoted vouchers nationwide, has stepped in to represent the Chittenden board. In late August, the group filed a lawsuit against the state education department on the board's behalf. The suit seeks to bar the department from denying state aid and asks the state courts to decide whether paying tuition for students at private religious schools is constitutional. The suit is pending.

Although the local school board has decided to pursue the legal challenge, it will not pay students' tuition for the Catholic academy until the case is resolved. "We're being prudent," Smith said. "We can't risk all of our state aid on this issue." Meanwhile, state officials said they would not pay out the district's aid until it abandons the religious school initiative.

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