(Fort Worth Star Telegram)—Gov. Greg Abbott recently signed a historical school choice bill into law, making Texas the latest — and largest — state to embrace school choice. The new education savings accounts, or ESAs, will empower the parents of some of the state’s six million school-aged children to choose the educational path that best fits their needs.
But as lawmakers and parents celebrate the bill’s passage, education reform opponents are already plotting their next move.
Texas Democratic Party Chairman Kendall Scudder confirmed that Democrats are considering resorting to a “Hail Mary” by going to court to block the law. “There isn’t a lot that we can do on the policy front other than trying to litigate.” he told CBS News. In response, Texas GOP Chairman Abraham George said bring it on, noting that he’s “glad” Democrats are considering litigation against the popular new program because it will further galvanize the electorate in their favor.
But Texans excited about school choice should not underestimate this threat. Recently, school choice programs in Utah and South Carolina were struck down in court, not because they failed families but because special interests and their allies — including affiliates of the National Education Association, a teachers union — engaged in lawfare after failing to stop school choice through the democratic process. In other words, after losing the debate on the merits, school choice opponents are now relying on judges to deny families the right to choose the best education for their children.
Texans should expect similar attacks. The same special interests that lost in the Legislature here won’t walk away; they’ll turn to the courts. And they’ll argue, as they did in Utah and South Carolina, that expanding educational choice for kids somehow violates the state’s constitutional duty to support public education.
These claims are meritless. School choice programs don’t replace the public school system — they supplement it by giving families the freedom to customize education. The funds go to parents, not directly to private institutions, and participation is voluntary.
Texas’ new ESA program is particularly threatening to school choice opponents because it could become a national model. It prioritizes students with disabilities and those from low- and middle-income families, but all six million K–12 students are eligible. It covers a wide range of educational expenses — from tuition to transportation to specialized therapies — and respects the autonomy of participating schools and families.
Fortunately for Texans, Attorney General Ken Paxton has already acted swiftly to protect educational reform. In 2023, as school choice was being hotly debated in the Legislature, he sued six school districts that had illegally lobbied against pro-school choice candidates using taxpayer resources. The effort was aided by Texas citizens who successfully petitioned for precedent-setting criminal charges with the help of the Liberty Justice Center.
Paxton also issued a legal opinion preemptively addressing the inevitable anti-choice lawsuits that will attempt to halt implementation of the program. In that opinion, Paxton concludes that Texas’ “Blaine Amendment” — provisions in the state constitution barring public funds from aiding religious institutions — are unenforceable under the U.S. Constitution’s clause protecting free exercise of religion. That is consistent with Supreme Court precedent recognizing that such provisions are rooted in anti-Catholic (and anti-immigrant) bigotry.
The attorney general further found that Texas’ contemplated ESA program would not violate the state constitutional obligation to permit free public schools, so long as the program does not utilize funds exclusively reserved for traditional public schools. His opinion sends a clear message: Texas’ new school choice program is on solid legal ground.
With the Legislature’s bold action, Texas families have already won the political battle, securing one of the most ambitious school choice laws in the nation. If Texas courts uphold that victory, they’ll win the war, too.