Texas Attorney General Ken Paxton has released his official opinion claiming that Education Savings Account (ESA) programs are constitutional.
“Texas parents should have the right to choose the best school for their kids, and every Texas child deserves the opportunity to attend a good, safe school where they can learn and thrive,” Paxton explained in a press release Monday.
“Today I issued a legal opinion which informs the Texas Legislature that there are no constitutional barriers to enacting school choice in Texas,” he said. “It’s time to empower Texas parents and provide additional educational opportunities so every Texas child can reach their dreams.”
On March 10, Sen. Brandon Creighton (R-Conroe), chair of the Texas Senate’s Education Committee, requested that Paxton examine whether Texas’ Blaine Amendment or ESA programs violate the Texas or U.S. Constitutions.
Creighton has helped lead efforts in the upper chamber to pass school choice programs, filing a package of priority legislation related to the issue on the same day he sent the letter to the attorney general.
In an expedited legal opinion, Paxton first concluded that prior legal decisions from the Supreme Court indicated, “Texas’s Blaine Amendments violate the First Amendment to the United States Constitution and are unenforceable, as is any state action that presumes to exclude religious schools from otherwise available public benefits based solely on religious affiliation.”
Turning to the specific question of whether an ESA program would run afoul of the U.S. Constitution’s First Amendment, Paxton averred that ESA programs are legally permitted if they follow the five requirements outlined in the Supreme Court’s ruling in Zelman v. Simmons-Harris (2002).
In that case, the Court found a tuition voucher program in Ohio to be constitutional since:
- It was part of a “general and multifaceted undertaking” by the state to provide quality education;
- It “confers educational assistance directly” to families instead of schools;
- It was extended “to a broad class of individuals defined without reference to religion;”
- The program was “neutral in all respects toward religion,” allowing “the participation of all schools within the district, religious or nonreligious;”
- Allowed funds to go to select nonreligious options, including “adjacent public schools.”
Therefore, Paxton explained in his opinion, “an ESA program in Texas that satisfies the five-factor inquiry set forth in Zelman does not violate the Establishment Clause” in the First Amendment.
Such a program likewise does not violate the “Texas Constitution to the extent the program is an additional educational initiative and is not funded from the permanent school fund or available school fund,” according to Paxton.
In a statement sent to The Dallas Express, Lt. Gov. Dan Patrick responded positively to the decision, saying, “Attorney General Paxton’s opinion that school choice is legal and constitutional in Texas is not surprising, but it is still great news for all Texans.”
“All Texas children deserve an education that best fits their needs, and parents should not be forced to send their children to schools that they do not believe are best for their child,” he continued. “The Attorney General’s legal opinion is grounded in the United States Constitution and is common sense.”
“Republicans, Independents and Democrats overwhelmingly support school choice,” Patrick concluded.
School choice has become a hotly contested issue in Texas during the 88th legislative session, with GOP leaders calling for the creation of a voucher or ESA program. Gov. Greg Abbott has favored ESA programs as well, advocating for such programs in events across the state, as reported by The Dallas Express.
However, opponents to the proposal claim it would hurt public schools, produce inequality, and negatively impact learning outcomes.
Pastors for Texas Children, an advocacy group that stands against school choice programs, claimed on Twitter, “The entire voucher push is to segregate my kids from your kids. And make you pay for it.”
Pastor Charles Foster Johnson, the executive director of Pastors for Texas Children, told The Dallas Express, “I am fairly confident. We have the votes in the Texas House of Representatives to block Governor Abbott’s voucher plan.”
Similarly, the advocacy group Raise Your Hand Texas suggests, “Vouchers divert public education funds to private schools, neglect our most vulnerable students, and lack transparency when it comes to spending and outcomes.”
Senate Bills 8 and 9, the core of Creighton’s priority legislation package, are slated for a public hearing at 9 a.m. on March 22.
