Texas Attorney General Ken Paxton recently issued an opinion in response to Sen. Brandon Creighton's filing of an Education Savings Account (ESA) bill that would establish a program to designate funds for parents to use for their children's education choice.
Creighton inquired with Paxton to rule on whether or not the ESA program would be allowed under the Texas and U.S. constitutions. In response, Paxton said that an ESA program does not violate the Establishment Clause of the Texas Constitution or the First Amendment.
"The Texas Constitution does not prohibit the Legislature from establishing an ESA program so long as it is not funded by the permanent school fund or available school fund," Paxton said.
According to the Dallas Morning News, Texas Republicans are pushing for school choice measures that would give families government funds to spend on private school tuition or other educational expenses. This legislative session, Republicans are focused on rural Republicans and Democrats to push through a school choice bill. Critics argue that voucher-like programs fail to cover the true cost of private schools, which don't have to accept all students, and divert money and resources from public schools.
Governor Greg Abbott has promoted his plan at a series of "Parent Empowerment" events in rural areas, while Lt. Gov. Dan Patrick, who presides over the Senate, is also in favor of the education savings accounts this year, Dallas Morning News reported. Proponents say school choice efforts would ensure that families can decide the best educational settings for their children. Creighton's school choice bill would establish an ESA program, designating an account with up to $8,000 per student for parents to use on certain educational systems or resources such as tutoring, uniforms or books.
According to a document released by Paxton, Creighton was determining if an ESA program would violate the Constitution by providing government funds to a religious institution, in this case, a school that describes itself as religious. Creighton asked if "Texas’s Blaine Amendments violate the Free Exercise Clause of the First Amendment to the U.S. Constitution," if “an ESA program that makes available education assistance payments to program participants, including for sectarian schools and tutors, violate[s] the Establishment Clause of the First Amendment to the U.S. Constitution" and if "an ESA program that makes available education assistance payments to program participants in order to achieve a general diffusion of knowledge violate[s] Article VII, [section] 1 or Article VII, [section] 5 of the Texas Constitution.”
Paxton responded that the First Amendment of the U.S. Constitution provides that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise of religion. The U.S. Supreme Court has repeatedly ruled that a state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.
Since 2017, the court has struck down state policies that discriminated against religious organizations on terms materially indistinguishable from Texas's Blaine Amendments. 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. Paxton concluded that, "The Establishment Clause does not prohibit a neutral educational assistance program just because a religious institution may benefit."
Paxton also answered Creighton's second question: whether an ESA program that provides financial assistance to participants, including for sectarian schools and tutors, would violate the Establishment Clause of the First Amendment to the U.S. Constitution, saying the Supreme Court has acknowledged the tension between the Establishment and the Free Exercise clauses but allows for some state actions permitted by the Establishment Clause, but not required by the Free Exercise Clause. This has allowed religious observers and organizations to benefit from neutral government programs.
The Supreme Court has upheld a voucher program against an Establishment Clause challenge, stating that a voucher program does not violate the Establishment Clause if it is neutral with respect to religion, provides assistance directly to a broad class of citizens, and the government aid to religious schools results from the genuine and independent private choice of the beneficiaries. He concluded that, "The Texas Constitution does not prohibit the Legislature from establishing an ESA program so long as it is not funded by the permanent school fund or available school fund."
In summary, Paxton said an ESA 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."