Education savings accounts for special-needs students in Texas are constitutional

Photo by Laura Skelding for The Texas Tribune

After years of waiting, Texas children with special needs may finally get the chance at the quality education their parents and families want for them and that they so rightfully deserve. A committee in the state Senate added an education savings account (ESA) program for special-needs students to House Bill 21, a school finance measure. If parents of special-needs students in public school believe their children’s needs are not being met, ESAs empower them to use state funds to help pay for private education that does meet their children’s unique learning needs.  ESAs are also flexible, allowing parents to personalize their children’s education with a variety of options.

Many Texas parents whose children have learning and physical disabilities cannot afford the special education and related services their children need and deserve. Unless they live in school districts with high-performing public schools, can afford to pay private-school tuition, or have the time and money to homeschool their children, most parents must accept whatever level of education their assigned public school provides.

In contrast, the proposed ESA program in HB 21 recognizes that there is no one-size-fits-all-approach to educating students. If it is enacted, parents would have the option of using money deposited in their ESA to pay for tuition at accredited private schools, tutoring, special-education therapies, homeschool curriculum, online courses or any combination of those options. Participation would be strictly voluntary.

Yet opponents of educational choice reforms in Texas fiercely oppose ESAs because, I believe, they fear it threatens their lucrative monopoly on public school funding. Placing the perceived needs of institutions before the real needs of individual children is shameful. They also claim ESAs violate the U.S. and Texas Constitutions.

While the educational choice debate swirls around the state every two years, there is no doubt that the ESA program would be constitutional. For nearly a century, the U.S. Supreme Court has recognized that parents possess a constitutionally protected, fundamental right to direct their children’s education. This includes the right to choose private educational options instead of public schools.

More recently, the Supreme Court has held that educational choice programs are constitutional. In its 2002 decision, Zelman v. Simmons-Harris, the high court ruled in favor of a group of Cleveland parents who used publicly funded scholarships to send their children to private schools.

The parents were represented by the Institute for Justice, a public interest law firm. In Zelman, a majority of the Supreme Court rejected the argument that Ohio’s educational choice program ran afoul of the establishment clause of the First Amendment, which famously prevents the government from enacting laws “respecting an establishment of religion.”

The court reasoned that, as long as educational choice programs are religiously neutral (i.e. allow both religious and secular options) and ensure that any students who attend religious schools do so based upon the independent decisions of their parents, they pass federal constitutional muster. In the wake of this important precedent, educational choice programs spread across the country and are now available in around 30 states and the District of Columbia.

In fact, five states — Arizona, Florida, Mississippi, Nevada and Tennessee — already have ESA programs on the books. The ESA programs in Arizona and Nevada also faced constitutional challenges, but after the Institute for Justice became involved, those challenges were rebuked in court.

Texas could soon become the next state to promote choice in education. Like the program upheld in Zelman, the proposed ESA in HB 21 would not provide any incentives that would skew parents’ choice toward or away from religious schools.

Moreover, the proposed ESA program would also comport with the Texas Constitution. The funds in the ESAs are not given to private schools, but instead are placed in accounts controlled by parents. Because parents — not the state — are in the driver’s seat, ESAs are consistent with the Texas Constitution.

The ESA program will give students with special needs access to educational options that their families might not otherwise be able to afford. As HB 21 moves toward a final vote, the Texas Legislature should approve, not attack, education savings accounts. Parents of children with special needs deserve to have every possible option to help their children succeed.

Arif Panju

Managing attorney, Institute for Justice