88th LegislatureEducationState SenateIn School Choice Fight, Paxton Says ‘Blaine Amendments’ Violate State Constitution

Questions still surround the push for school choice, but the attorney general says that education savings accounts would not violate the law.
March 21, 2023
Attorney General Ken Paxton has released his opinion on the constitutionality of educational savings accounts (ESA), a mechanism for school choice preferred by many, including Gov. Greg Abbott, this legislative session.

Sen. Brandon Creighton (R-Conroe) requested the legal opinion to determine whether the Establishment Clause of the First Amendment to the U.S. Constitution and the Blaine Amendments to the Texas Constitution would be violated by the Senate’s school choice plan.

Paxton concluded that the Blaine Amendments themselves are in violation of the Free Exercise Clause of the First Amendment and that “any law, action, or policy implemented to comply with them is unconstitutional.” 

“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.”

State Sen. Angela Paxton (R-McKinney) is seeking to pass a constitutional amendment that would allow for the appropriation of state funds for “the benefit of any sect, religious society, or theological or religious seminary.”

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This filing and opinion come on the heels of Texas’s big push for school choice this year and the filing of the Senate’s plan for school choice reform.

Opponents of school choice like Rebecca Pringle of the National Education Association state that school choice systems like vouchers “siphon millions of much-needed public school dollars from school districts and into private schools.”

Other challengers to school choice say that the move to give parents more choice over their children’s education would “break down barriers between church and state.” 

Despite the rhetoric claiming the separation of church and state would “break down” due to school choice, the United States Supreme Court has set precedent on multiple occasions that give a different perspective.

Carson v. Makin in June 2022 was the most recent case ruled on pertaining to school choice. The State of Maine offers tuition assistance for students in rural areas of the state but stipulated that the money could not be used to attend a religious school. The Supreme Court in a 6 to 3 decision held that Maine’s tuition assistance program was in violation of the Free Exercise Clause of the First Amendment that protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.”

The court ruled in 2020 on Espinoza v. Montana Department of Revenue that the State of Montana’s tax credit scholarship program could be used by students who attend religious schools. The argument against the tax credit cited the state’s Blaine Amendment, which is included in multiple state constitutions, that prevents the use of government funds for religious institutions. 

The Texas Constitution has two Blaine Amendment provisions that prohibit direct state support of religious institutions. Article 1, Section 6 prohibits anyone from being “compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent.” Article 1, Section 7 states that “no 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.”

The Senate’s plan for school choice would allow for education savings accounts (ESA), which are endorsed by Gov. Greg Abbott. The ESA for each student would grant $8,000 a year and allow parents to “direct the moral and religious training” of their child. 

After the issued opinion from the attorney general, the Senate’s school choice plan can now claim to stand on firm legal ground as it continues to move through the legislative process.


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Cameron Abrams

Cameron Abrams is a reporter for The Texan. After graduating with a Bachelor’s Degree in Psychology from Tabor College and a Master’s Degree from University of the Pacific, Cameron is finishing his doctoral studies where his research focuses on the postmodern philosophical influences in education. In his free time, you will find him listening to a podcast while training for an endurance running event.