Texas attorney general says school choice is constitutional despite anti-religious opposition

Texas officials are paving the road for school choice in the state, legally and legislatively.

Gov. Greg Abbott has been holding school choice and parent empowerment rallies across the state,…

Texas officials are paving the road for school choice in the state, legally and legislatively.

Gov. Greg Abbott has been holding school choice and parent empowerment rallies across the state, building momentum for SB 8, a bill that would create $8,000 education saving accounts (ESAs) for students.

A common roadblock to such programs has been the Blaine Amendments, found in many state constitutions, which forbids states from using public funds to benefit religious educational institutions. ESA programs generally allow students to take their public education funds anywhere they want, even to parochial schools. 

However, the Blaine Amendments, which exist in 37 state constitutions, have been undermined by the Supreme Court – a decision Texas Attorney General Ken Paxton agrees with.  

“There are no constitutional barriers to enacting school choice in Texas,” Paxton said in a press release on Monday. “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 also released an opinion explaining how the Blaine Amendment violates the First Amendment and is therefore “unenforceable.” 

The opinion is support by two recent Supreme Court rulings – Carson v. Makin and Espinoza v. Montana – which hold that denying religious institutions publicly available funds solely on the grounds of their religious nature is discrimination. 

These rulings effectively undermine the premise of the Blaine Amendment, leaving school choice programs stuck between the new precedent and state constitutions.  

However, in Texas, the state legislature is considering two bills – SB 1879 and HB 5003 – which would forbid the Blaine Amendment from being enforced in the state unless the Supreme Court overturns its decisions.  

But not everyone agrees with Paxton and the Supreme Court.  

The Freedom from Religion Foundation (FFRF) called the ESA program’s sponsors “religious fanatics” promoting “Christian nationalist legislation.” 

“These bills are indicative of the chokehold that religious zealots feel they have on this nation,” said Dan Barker, co-president of FFRF. “The bill sponsors have completely decided to disregard our secular Constitution.”  

Nonetheless, Abbott has made school choice a high priority for the legislative session, following in the footsteps of Iowa’s Gov. Kim Reynolds and Arkansas’ Gov. Sarah Huckabee Sanders who both successfully advocated for the passage of universal ESA programs in their states.