Texas AG says there is no constitutional barrier to school choice in the state

AUSTIN — Texas Attorney General Ken Paxton released an opinion Monday that deems school choice constitutional in Texas.

School choice, sometimes referred to as school vouchers, describes programs that \allow for education funds to follow students to the school of their choosing, including private, religious and homeschooling options.

The announcement came the day before a pro-school choice rally was held at the capitol and just days before a state senate committee is set to hear public testimony on two school choice bills.

“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 statement. “(The legal opinion) informs the Texas Legislature that there are no constitutional barriers to enacting school choice in Texas.”

Paxton’s opinion also states that Education Savings Accounts, an option first proposed by Gov. Greg Abbott, are also legal.

ESAs, similar to Health Savings Accounts, allow parents who withdraw their children from public or charter schools to receive a deposit of public dollars into government-authorized savings accounts. The uses of those dollars are restricted to educational purposes.

It was 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, and therefore are unconstitutional.

This reading of the law clears the way for religious schools to receive ESA dollars.

During a school choice rally at the capitol Tuesday, Abbott promised that the state will fully fund public education while offering parents the opportunity to select schooling that works better for their family.

“More money does not always lead to better results, and more money does not solve the problems that some parents are facing with regard to their children and some of their schools,” Abbott said. “We're going to change education in Texas, and the children will be the beneficiaries with a better education product.”

Abbott and Lt. Gov. Dan Patrick have named passing school choice a top priority this session.

Following the release of the opinion, Patrick said in a statement Monday that Paxton’s opinion 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 said.

Several recent polls including ones by The University of Texas at Tyler and the University of Houston Hobby School of Public Affairs have found that the plurality of Texans favor school choice programs.

Even so, education advocates oppose any school choice or voucher program.

They say they fear programs will siphon money from public education to private entities, financially harming the public school districts that continue to struggle to adequately pay teachers and offer robust curriculums.

Kate Johanns, communications director for the Association of Texas Professional Educators, said the organization is not surprised by the content or the timing of Paxton’s opinion and that it has not deterred them in informing lawmakers of the issues they see with school choice.

“An AG opinion, which is the non-binding opinion of one person, that deems vouchers constitutionally permissible doesn’t make them a good idea or something Texans want,” Johanns said. “Our members have been actively contacting their lawmakers to explain the detrimental effects vouchers will have on their students and their campuses. The decision makers need to keep the focus on Texas students.”