| Perspectives on Texas

Education savings accounts (ESAs) are a form of school choice that allows parents to remove their children from traditional public schools and receive a portion of the funds that would otherwise be spent on them in a bank account. The parents may use those funds to pay for tuition at a private school, materials for homeschooling, or specialized forms of education for students with special needs. The Texas Association of School Boards (TASB) and the Texas Parent-Teacher Association (PTA), argue that the Texas Constitution prohibits school choice programs, including ESAs.

TASB misleadingly claims in their 2016-18 Advocacy Agenda Priorities that the Texas Constitution’s mandate for a system of public free schools, “precludes the funneling of public tax dollars to private institutions or individuals." That language is neither included in the state Constitution nor does it have such a prohibition. The PTA argues that school choice, including ESAs (which the PTA calls “a form of voucher”) “violate separation of church and state” because tax dollars may not be “directed toward schools of religious origin[.]” Both of these objections are based on flawed assertions about the nature of ESAs and the U.S. and Texas Constitutions. The money is not “funneled” to private institutions or “directed towards schools of religious origin.” It is provided to parents who have broad discretion on how to use it.

The Texas Constitution requires the Legislature “to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” There is no qualification of that provision (Article VII, Sec. 1), and the Texas Supreme Court recently ruled 9-0 in Morath vs. The Texas Taxpayer and Student Fairness Coalition that the Legislature is meeting its constitutional obligation. The state has the authority to create additional education programs that complement its constitutional mandates, including school choice.

In his majority opinion, Justice Don Willett pointed out that “[i]n the Texas higher education setting, school choice has proven to be smart policy.” He called arguments that efficiency in public education could be increased by more student-centered funding (i.e. school choice) “intriguing.” And despite no constitutional mandate for school choice, he wrote, “We hope the Legislature will consider these and similar suggestions.” The court would not have opined in this way if the justices believe school choice to be unconstitutional.

Indeed, courts have consistently held that choice programs are permissible where funding of religious institutions is indirect and incidental to the program’s larger purpose. In Zelman v. Simmons-Harris, for example, the U.S. Supreme Court held that “where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause.” Going back to 1899 in Bradfield v. Roberts, the critical question in Establishment Clause cases is whether the government’s principal or primary effect advances religion. Indirect benefits to religious institutions, like those derived from ESAs and similar school choice proposals, are permissible.

At the state level, the Texas Constitution has two provisions, informally called “Blaine amendments,” prohibiting direct state support of religious institutions. Article I, Section 6 prohibits anyone from being compelled to “support any place of worship.” More directly, Article I, Section 7 states that “[n]o 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.”

Similar “Blaine amendments” are found in more than half of U.S. state constitutions and have a sordid history of being adopted on a 19th Century wave of anti-Catholic bigotry and discrimination. As Erica Smith explains in a recent article for Federalist Society Review, “[Blaine] Amendments continue to be used to discriminate against Catholic schools and religious schools of all denominations, as well as the families who wish to send their children to them.”

Ironically, these state-level amendments purposefully discriminate against religion, making their constitutionality under the federal document an open question. Smith’s article explains that while the U.S. Supreme Court has not ruled directly on the application of Blaine amendments to school choice programs, the lower courts are split on the issue.

“[T]he Sixth, Eighth, and Tenth Circuits have all struck down restrictions in public programs that discriminated against students attending religious schools. On the other side of the split, the First Circuit and the Vermont and Maine Supreme Courts have upheld such restrictions.”

Despite their prohibitions on direct state support to religious institutions, Blaine amendments have been read by state courts in the same way that the U.S. Supreme Court has ruled on the Establishment Clause. The Arizona Supreme Court, for example, upheld that state’s program because “[t]he ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents.” The defining characteristic of ESAs — that parents can use the accounts for many different educational expenses — led that court to uphold ESAs although it had previously found vouchers unconstitutional under the same provision. An ESA, the court explained, “does not require any student to be enrolled in a private school, much less a ‘sectarian’ private school.”

The Nevada Supreme Court was crystal clear on the question of constitutionality in a recent ruling on that state’s plan, explaining that funds deposited into an ESA “are no longer ‘public funds’ but are instead the private funds of the individual parent who established the account.” Using those funds to pay tuition at a religious school, the court said, does not violate Nevada’s Blaine amendment.

The two Blaine amendments in the Texas Constitution do not raise constitutional concerns beyond those addressed in Arizona and Nevada, or by the U.S. Supreme Court. As long as a plan is neutral with respect to religion, the fact that a parent may choose to use public funds for tuition at a religious school would not violate the Texas Constitution.

Some opponents of school choice oppose these programs on ideological grounds. Constitutional claims are merely the vehicle through which choice programs are challenged in court when a legislative debate has been lost. If the Texas Legislature passes an ESA bill, proponents should not be surprised if a constitutional challenge is close behind.

Nor should opponents be surprised if the plan is upheld.