Texas AG Ken Paxton’s Legal Opinion Could Help Clear Way For School Choice

Texas Attorney General Ken Paxton speaks at a border town hall in Brackettville, Texas, on Oct. 11, 2021. Charlotte Cuthbertson/The Epoch Times

Education Savings Accounts legislation would not be in violation of constitutional laws, Texas Attorney General Ken Paxton wrote in a legal opinion published this week that could help to clear the way for school choice.

The opinion was issued in response to Republican state Sen. Brandon Creighton’s questions regarding the constitutionality of using state funds to issue vouchers for education outside the public school system, including religious schools. (pdf)

“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 said in a press release on Monday.

“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 parents and provide additional educational opportunities so every Texas child can reach their dreams.”

Republican state Sen. Brandon Creighton, who authored Senate Bill 8, “The Texas Parental Bill of Rights,” to provide ESAs through the state’s Comptroller of  Public Accounts, requested Paxton’s legal opinion on the matter. (pdf) Creighton is chair of the Senate Education Committee.

Creighton’s proposal would disperse up to $8,000 per student to help parents pay for private or religious school tuition for their children not enrolled in public school.

SB 8 bill is one of many school choice bills under consideration in the House and Senate.

Constitutional Arguments

Paxton’s opinion could be used by supporters to shut down arguments that ESA vouchers used for religious education would violate the state’s Blaine Amendments and the Establishment Clause of the Federal Constitution.

In 1875, Congressman James G. Blaine proposed the original Blaine Amendment in the 1870s. Although it was never adopted, the proposal would have barred any federal money from sectarian institutions.

Later, several states, including Texas, adopted similar amendments to their state constitutions, which are referred to as Blaine Amendments.

“No money shall be appropriated, or drawn from the Treasure 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,” the Texas Constitution states in Article 1, Section 7.

The Establishment Clause of the First Amendment to the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...”

“[t]he U.S. Supreme Court has ’repeatedly held that a state violates the Free Exercise Clause when it excludes religious observers from otherwise public benefits,” Paxton wrote.

The attorney general, therefore, concluded that the Blaine Amendments are unenforceable and that implementation of such policy would violate the Free Exercise Clause of the First Amendment.

“An Education Savings Account program offering parents and students education assistance payments that can be directed to public and private schools, including ’sectarian' schools, and that offers parents and students a genuine and independent choice to select a private religious school does not violate the Establishment Clause,” Paxton wrote.

More On SB 8

SB 8 also states that public school districts with enrollment under $20,000 would be held harmless.

It would also ban instruction on gender identity and sexual orientation, and it would require parents to be notified of any changes to the child’s health—mental, emotional, or physical.

“Educating the next generation of Texas is the most fundamental responsibility we have, and I authored Senate Bill 8 to place parents, not government, squarely in the center of the decisions for their children, Creighton said in a release.

“Giving parents the power to determine the best school for the child will encourage competition and innovation, ensuring that each Texas student has the opportunity to succeed.”

Paxton and Republican Gov. Greg Abbott have prioritized school choice in this legislative session, which runs through May 29.