Texas
Any kind of educational choice program should pass constitutional muster in the Lone Star State after Espinoza. Prior to Espinoza, two state attorney general opinions had concluded that distributing textbooks to private schools and providing funds through a religiously neutral choice program would be compatible with the Texas Constitution. Policymakers should take care, however, to appropriate money for such programs from outside the state’s permanent school fund.
Constitutional Provisions
Compelled Support Clause
“No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent.” Texas Const. Art. I, § 6.
Blaine Amendments
“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.” Texas Const. Art. I, § 7.
“The permanent school fund and the available school fund may not be appropriated to or used for the support of any sectarian school.” Texas Const. Art. VII, § 5(c).
Education Article
“A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.” Texas Const. Art. VII, § 1.
Relevant Case Law
Church v. Bullock, 109 S.W. 115 (Tex. 1908)
The Texas Supreme Court held that reading from the King James Bible and reciting the Lord’s Prayer did not turn a Texas public school into a “sectarian” institution because both are critical to developing students’ moral faculties.
1975 Tex. AG LEXIS 285, Letter Advisory No. 105
The Texas attorney general concluded that distribution of state-owned textbooks to private school pupils would not violate a Blaine Amendment (Article I, Section 7) of the Texas Constitution because it would provide only “minimal benefits to the sectarian activities of nonpublic schools.”
1973 Tex. AG LEXIS 231, 15-16 Opinion No H-66
The Texas attorney general concluded that providing public funds to parochial schools through tuition equalization grants under a religiously neutral program is not inherently unconstitutional under the Texas Constitution because although Texas’ second Blaine Amendment (Article VII, Section 5) “prohibits aid to sects[,]” “not all denominational institutions are sectarian in the constitutional sense.”
Existing Private School Choice Programs
None
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
