On Monday, Texas Attorney General Ken Paxton, a proponent of school choice, issued a legal opinion stating that there is no constitutional barrier prohibiting Texas from implementing such programs.
“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,” said Attorney General Paxton. “Today I issued a legal opinion which informs the Texas Legislature that there are no constitutional barriers to enacting school choice in Texas. It’s time to empower Texas parents and provide additional educational opportunities so every Texas child can reach their dreams.”
State Senator Brandon Creighton, R-Conroe, who chairs the Senate Education Committee, requested the legal opinion after proposing Senate Bill 8, which suggests the establishment of Education Savings Accounts (“ESAs”) using taxpayer funds.
Paxton’s opinion states that ESA programs do not violate the Establishment Clause of the First Amendment – which dictates that: “Congress shall make no law respecting an establishment of religion[.]” – since the United States Supreme Court acknowledges “there is room for play in the joints.”
That “play in the joints” meaning that “there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” In this case Paxton claims the Establishment Clause does not actually “prohibit a neutral educational assistance program just because a religious institution may benefit.”
In the past the Court has said the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.
In addition, Paxton also determined that two provisions in the Texas Constitution — known as Blaine Amendments — that could exclude religious schools from receiving ESA program funds violate the Free Exercise Clause of the First Amendment to the U.S. Constitution.
The Blaine Amendment provisions prohibit direct state support of religious institutions. Article 1, Section 6 prohibits anyone from being “compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent.” Article 1, Section 7 states that “no money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.”
According to Paxton, These Blaine Amendments are unenforceable and may not be relied on to exclude religious schools from receiving funds through the ESA program.
Supreme Court precedent compels that any state action, regardless of the validity of Texas’s Blaine Amendments, that excludes religious schools from otherwise available public benefits based solely on religious affiliation violates the Free Exercise Clause.
The Free Exercise Clause protects citizens’ right to practice their religion as they please, so long as the practice does not run afoul of a “public morals” or a “compelling” governmental interest.
Paxton, alongside Governor Greg Abbott, and Lt. Gov. Dan Patrick have been pushing lawmakers to expand ESAs in Texas this session, touting “parental empowerment” as the reason parents should choose the education that works for their child.
While Sen. Creighton’s bill looks “good on paper,” it still leaves a lot of unanswered questions for the future of Texas education.
SB8 raises concerns about defunding public schools and promoting religious and conservative beliefs at the expense of taxpayer money. While the bill prohibits families from receiving cash upfront and limits the usage of funds to private schools authorized by the state, it lacks accountability for private schools receiving public money.
Creighton claims that the state can both fully fund public education and ESAs. But, what happens during the next Texas legislature? With the absence of a $32.7 billion budget surplus, lawmakers may feel inclined to divert additional funds from public education to bolster the education savings account program.
In addition, the education savings account structure is wrapped into a broader legislative proposal that emphasizes “parental empowerment,” allowing private schools to prioritize religious values over educational content and requiring adherence to certain creeds, practices, and admissions policies.
Thanks to Paxton, the rhetoric claiming the separation of church and state would break down due to school choice, is now overthrown, and the Senate’s school choice plan can claim to stand on firm legal ground as it continues to move through the legislative process.