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Are vouchers unconstitutional?

Attorney Kelly Frels makes the case that private school vouchers will not pass constitutional muster in Texas.

State Sen. Dan Patrick has proposed that the state of Texas provide vouchers to help parents pay for private school tuition. Vouchers are bad public policy, and they are not permitted by the Texas Constitution.


From a public policy perspective, assume that Texas adopts a voucher system. Will all private schools that benefit from state voucher money be required to accept any child who appears at the school’s door or will the private school be able to continue to pick and choose from those who apply? Will such private schools be required to offer bilingual education and to provide an appropriate, free education for students with disabilities? Or will the private school be able to take the state’s money for its chosen students and deny admission to those with educational challenges or those who misbehave, leaving them to the public schools to educate?


Constitutionally, vouchers are dead before they start. The Texas Constitution, Article VII, Section 1, recognizes the importance of “a general diffusion of knowledge being essential to the preservation of the liberties and rights of the people …” Article VII, Section 1 mandates that “… 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.” Given this constitutional mandate, how can the state’s money be used to fund private schools, even if the money follows the child to a private school?

Private schools that are sponsored by a church or a religious group face another constitutional roadblock in Section 7 of the Texas Constitution’s Bill of Rights. “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 purpose.” Can anyone in good conscience argue that vouchers do not benefit the private school, even if the voucher is given to the child’s parents?

You don’t have to convince me that vouchers are bad public policy. Frels references prior op-eds by Ronald Trowbridge in making that case. The constitutional question I’m not qualified to evaluate, but I feel certain that Dan Patrick has consulted with an attorney or two, and that they have a differing opinion. I’m sure we’ll see a response from someone on Patrick’s team in the near future. For what it’s worth, Louisiana’s voucher program was ruled unconstitutional in state court last week, though the ruling is not seen as an insurmountable obstacle to the program. Personally, I’d rather win by defeating any legislation before it ever gets to the Governor, and not have to depend on the whims of the judiciary. Any lawyers out there want to weigh in on this?

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