Senate Education panel asks AG to decide if public money can be used for private school

The top member of the Texas Senate Committee on Education is requesting a legal opinion from the attorney general's office on whether it is legal to provide public education funding for tuition costs at private religious schools.

The request was made Friday, the same day Sen. Brandon Creighton, R-Conroe, who chairs the committee, filed a priority bill that would create an education savings account system that parents could tap to use public tax dollars for private schooling.

Creighton's letter asks Attorney General Ken Paxton to issue an opinion on whether a potential education savings account program could run afoul of laws that prohibit public money from benefiting a religious sect or any money from the Permanent School Fund from supporting a religious school.

Creighton said those laws could be unconstitutional if they prevent only religious schools from participating in an education savings accounts.

“In recent years, however, the U.S. Supreme Court has repeatedly condemned materially indistinguishable state laws that discriminate on the basis of religion, in violation of the free exercise clause,” Creighton wrote in the letter.

He referred to the rules prohibiting public money going to religious schools as Blaine Amendments, for the late U.S. House Speaker James G. Blaine, R-Maine, who in 1875 unsuccessfully tried to pass a national law prohibiting governments from sending public money to private religious schools. Blaine's proposal was modeled after laws several states passed in the late 19th century.

Those laws were largely fueled by anti-Catholic sentiment, especially since it was common for public schools to lead children in reciting Protestant prayers.

Paxton's legal opinion on using public money for private religious tuition could have an effect on Creighton's Senate Bill 8, a sweeping proposal that lays out measures for everything from rules around transferring students to a program allowing parents to create an education savings account.

The bill lays out a program that would allow the parents of any child who is eligible for public school to use a state education savings account to pay for private school tuition, purchase textbooks, hire a private tutor or purchase education-related therapies.

Each child would get $8,000 annually, according to the bill. The accounts would also be subject to certain oversight measures from the state comptroller.