Texas School Choice Bill Heads To Committee; Supporters Lay Out What’s New This Session

Txlege Update“The envy of every school choice state” is how a bill author teased legislation designed to bring school choice to the Lone Star State.

The night before Senate Bill 2 was posted, Sen. Brandon Creighton told a group of local Republican party donors in Austin that the bill answers many objections opponents and skeptics had during the 2023 legislative session. Though a priority bill of the governor, lieutenant governor, and state party during the previous session, the legislation failed as the state House stalled and deadlines commenced.

“Texas families are rejecting the status quo and calling for an education system that prioritizes their children’s success. Senate Bill 2 places parents at the center of their child’s education, empowering them with the freedom to choose the educational path that works best for their families,” Creighton said in a press statement on Friday.

The new bill resurrects the Education Savings Account (ESA) model and would allow up to 100,000 K-12 students whose parents wish to enroll them in a private school to participate. But there’s a catch: students would be required to take one of a list of approved exams so that state education monitors can track how they are performing.

Newly elected House Speaker Dustin Burrows noted in a budget press release on Wednesday there would be $1 billion set aside for a school choice program — which would be about twice of last session’s proposed allotment.

The Senate Education committee is scheduled to discuss the bill Tuesday. While there will be plenty of pros and cons discussed, The Hayride would like to include the text of an X thread by former Texas GOP Chairman James Dickey, clearing up some misconceptions already surrounding the bill as the ink dries.

SB2 Detailed
School Choice in Texas: Fact vs. Fiction

It’ll kill public schools!

It’ll kill private schools!
It empowers globalism!
The money will be wasted!
It won’t help lower-income students!
It won’t help special needs students!
It imposes controls on homeschoolers!
There aren’t any private schools in my town!

Think of Education Savings Accounts as scholarships available for pre-K through 12th grade:

– You have to apply to get one,
– You decide how to apply the funds, and
– You can only apply them wherever or however you attend school.
But the details matter a LOT, and they address the concerns listed above.
So let’s look at Texas Senate Bill 2 as filed by Senator Creighton and see what it actually contains and what that means:

Section 1 of the act specifies its purpose. It’s worth repeating in full here:

The purpose of this Act is to:
(1) provide additional educational options to assist families in this state in exercising the right to direct the educational needs of their children; and
(2) achieve a general diffusion of knowledge.
This is relevant because The Texas Constitution, in Article 7, Section 1, says:
“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.”
Providing these additional educational options does not remove the “public free schools”, but is proven to improve the “general diffusion of knowledge”, and based on the indoctrination we’ve seen far too often lately, is much more likely to lead to the “preservation of the liberties and rights of the people”.
Now let’s get into the details!

Section 2 of the bill adds an entire new Subchapter J. Education Savings Account Program, to Chapter 29 (the Education Code).

Sec. 29.351 defines terms used in the subchapter.
Sec. 29.352 has the Comptroller set up the fund for education-related expenses
Sec. 29.353 specifies where the funds come from – general revenue, money specifically appropriated, plus gifts, grants and donations.
Sec. 29.354 specifies how up to 5 vendors can qualify to be Certified Educational Assistance Organizations – helping the comptroller administer the program, and assisting prospective applicants and program participants.

Sec. 29.355 specifies that a child is eligible to participate if they are eligible to attend a public school or public pre-K program, and stay eligible until they graduate high school, are no longer eligible to be enrolled, or go back to regularly attending a public school in a way that triggers full student funding for that public school. Children of Texas legislators and statewide elected officials are specifically not allowed to participate.

This is why it’s being called “universal”: any current Texas student may apply (unless they’re a child of one of 208 specific elected officials). All are accepted unless there are more people who apply than there’s money to cover.
As a result, the more who apply in order to homeschool, the more students who will be able to participate! More on that below.

Sec. 29.356 gives the Comptroller responsibility for setting up an application deadline, and says that if more applications are received than there is money, the available positions in the program will be allocated as follows: up to 80% of the spots are reserved for current public school students who are low income or have a disability, then the remainder is filled by lottery from all other applicants.

This pretty strongly and directly addresses the “won’t help lower income or special needs students” argument.
It also keeps it universal. For the minimum 20% of participants that aren’t special needs or lower income, there are no limitations on or requirements for student eligibility for the program. If this portion of program gets capped because of budget constraints, the participants are chosen by lottery, not by any characteristic.

Sec 29.357 sets the guardrails for use of the money: has to be used only for allowed expenses (listed in 29.357 below), the child will have to take and share their score on a nationally norm-referenced test, they can’t re-sell what they bought with the funds, and they have to notify the program when the child stops being eligible.

This is where people like to talk about “strings”. Strings are unrelated requirements like “I’ll give you this money for gas but only if you stop by the store for me.” Requiring that the money only be spent on educational expenses and not vacations or boats is not strings, it’s a reasonable guardrail.
“But what about the testing requirement?” The testing requirement is how we’ll prove that competition works.
“But what if I don’t want my child to take one of the nationally norm-referenced tests once per year?” Then don’t let them. It only is a requirement if your application to participate in the program is accepted. You don’t have to apply or participate if you don’t want them to take a test.
Texas Home School Coalition has a great list of the 24 nationally norm-referenced tests with descriptions updated as of 2021 at https://thsc.org/…/2021-Nationally-Normed-Assesments…

Sec 29.358 sets a pre-approval process for providers. The comptroller “shall approve”:

– private schools that annually administer nationally norm-referenced tests,
– public schools that are accredited and provide services different from the type that triggers standard school funding by the state,
– tutors or therapists 1. Employed by or retired from an accredited school or recognized agency, or holding a relevant license or accreditation, or employed at or retired from a teaching or tutoring capacity at a higher education provider, and 2. Provides a clean criminal history record, and 3. Isn’t on a prohibited employment list or registry.
Providers must apply and agree to accept the disbursement schedule as set, and only accept program money for approved expense categories (per 29.359 below), commit to notifying the comptroller if they’re no longer in compliance, and to return any money received in violation of the program.
There is NO provision for any limitations or accreditation requirement for the private schools – including required curriculum or hiring or standards. More on that below.

Sec 29.359 sets the categories of approved education-related expenses:

1. Tuition and fees for a private school, higher education provider, or program that provides training for an industry-based credential,
2. Textbooks or other instructional materials,
3. Fees for classes and educational services (as long as it’s not duplicative of funds already sent by the state to a public or charter school),
4. Costs for academic assessments,
5. Fees for private tutoring or teaching services,
6. Fees for transportation provided by a fee-for-service transportation provider for the child to travel to and from a pre-approved education service provider or vendor,
7. Fees for educational therapies or services that are not already covered by some other insurance or government program.
Even under any of those categories, the money can’t be used to pay relatives of the participating child.
“There will be requirements or limitations on the kind of textbooks or instructional materials!” That’s not in the law. I’d contest any requirement layer anyone at the Comptroller’s office or administering vendor tried to add.
“There are no limits or requirements on the kinds of textbooks or instructional materials! They could say a Bible is ‘instructional material’!” As long as they’re providing the annual test results, yes, they could. We’re trusting that parents who care enough to get their kids the right individually-tailored educational solution will pick better than average instructional materials.
“But the parents might pick something inappropriate or disgusting.” Given what we all have seen in the last few years do you really think parents are more likely to do that than the employees of school districts have been?

Sec. 29.360 sets the process for disbursing the funds:

– parent requests the payment be made to the provider
– if appropriate, payment is sent within 15 business days
– payment amount is limited to available balance under the limit for the child
Parents will have online access to view the balance, request payments to providers, and see transaction history.
Sec. 29.361 Sets the initial limits for the program:
– at least $2,000 for each participant, rising to
– $10,000 if the child is attending an accredited private school, rising to
– $11,500 if the child attending the private school is a child with a disability.
Funds are provided semiannually, and funds not used carry over until the child is no longer participating.

Sec. 29.362 allows the Certified Educational Assistance Organizations (CEAOs) to hold the money in trust and make quarterly payments to the child’s account by the first of July, October, January and April. It also allows the comptroller to charge up to 3% for their overhead, and CEAOs to charge actual costs up to 5%.

“This will grow government!” There are of course overhead costs, but these costs are within the allocation limit – the $1 billion budgeted includes the up to max 8% overhead costs.
“But 8% would be $80 million!” Yes. That’s the max. And the minimum number of children in the program would be 80,000. So worst case that’s a cost of $1,000 per child for total administrative costs.
If instead just 20% of the money went to home school applicants, there’d be 156,000 kids participating, and the total overhead cost per child would be $513.
Austin ISD is spending $956 per student on “School Leadership” alone this year, and another $426 per student on “Guidance, Counseling & Evaluation Services”. Details here: https://www.austinisd.org/…/Austin_ISD_FY2025_Adopted…
It doesn’t “grow government” to pay a lot less per student than the current model.
“The CEAOs will profit off the interest on the funds!” Nope. There’s a specific provision requiring quarterly distribution to the comptroller of any interest or other earnings on the funds.
Also, Austin ISD alone has over 73,000 students. So 80-156,000 students statewide can’t possibly cause the “it’ll kill public schools” catastrophe some people claim when arguing against school choice.

Sec. 29.363 requires an independent private annual audit of the program and all accounts and the Certified Educational Assistance Organization’s internal controls and compliance.

The vendors and the participants can be required to provide the documentation needed to prove expenses were for the allowed types of transactions.
“Parents may have to provide transaction documentation!” Yes, when they apply for a disbursement they fill out the information to have that disbursed. There had to be a transaction for the disbursement and in an audit, that’s subject to verification. That’s accountability, and that’s a good thing.

Sec. 29.364 requires the comptroller to suspend accounts of those not in good standing and provides the processes for that, including recovery for any distributed funds that were not allowed or not approved.

Sec. 29.365 prohibits artificial inflation and refunding. A school or vendor can’t charge more than they charge others when selling to students or parents in the program, and they also can’t refund any amount received from the program to the parent.

Sec. 29.366 requires the comptroller to refer to the applicable district attorney any violation of the law in the program.

Sec. 29.367 requires private schools to post a special education notice that specifies private schools are not required to provide the same services to children with disability that public schools are required to provide, and to list those entitlements.

Sec. 29.368 specifies that vendors in the program are not recipients of federal financial assistance and may not be considered state actors. It also prohibits state agencies or officials from taking any action that:

– limits or imposes requirements contrary to the religious or institutional values or practices of a vendor or participant, or
– limits or impacts educational methods or curriculum, admissions and enrollment practices and policies, values, practices, operations, conduct, policies, standards, assessments, or employment practices.
There is one exception, though: in (c) it says: A state agency or state official may adopt a rule that imposes limitations or requirements if the agency or official demonstrates that the application of the burden resulting from the imposition:
(1) is in the furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that interest.
Here is a judgment from a recent court case from the 5th circuit court of appeals that gives some scope on the state’s burden when attempting to trigger that combination. https://www.ca5.uscourts.gov/opin…/pub/23/23-40216-CV0.pdf
Given that example, this exception does not seem likely to be problematic. The protections are broad and comprehensive.
Is it possible that at some future date some legislator could try to weaken those protections? Of course, as it is with nearly every other situation in life. “The price of liberty is eternal vigilance.” We cannot live in perpetual fear, and the bill’s protections as written are robust enough to proceed.

Sec. 29.369 requires school districts to provide parents or the child’s new private school with the child’s student records, and requires the applicable school or district to provide eligibility confirmation to the program if needed. Public and charter schools are not allowed to retain this information after eligibility is confirmed.

Also specifies that student data may not be sold or distributed, and must be stored in compliance with state and federal confidentiality requirements.
“This is all a giant data trap. Kids will be monitored and government will grow.” Students who participate in the program will end up providing data about their annual test performance, how much money they spent, and what they spent it on. That is all needed to confirm they’re learning, they don’t spend more than allowed, and they don’t spend it on things not allowed (like vacations and trailers).
It’s a lot less than they have on every public school student, and a lot more than they have on homeschool and private school students who aren’t getting reimbursements.
Since the goal of the program is to grow the pool of those able to choose alternatives to public school, the net result should be less total data, not more.

Sec. 29.370 provides for gifts, grants and donations to optionally be used to set up and run the program.

Sec. 29.371 Requires an annual report from every Certified Educational Assistance Organization on:
– the number of applications received and accepted by age
– program participant satisfaction
– annual test results
– the effect of the program on public and private school capacity and availability
– cost savings to the state
Also requires biannual reports on amount of funding needed for the next biennium, the amount of gifts, grants and donations received, and the number and percentage of former students who were college ready or career or military ready upon graduation.
The report will include demographic information on each participant, including grade, age, gender, race or ethnicity, school district, assigned campus, zip code, enrollment date, “educationally disadvantaged” or not, has a disability or not.
“This is all a giant data trap. Kids will be monitored and government will grow.” This will be collected and reported in order to show comparative performance of those in the program vs. those in public schools, sliced and diced all the usual ways. Those of us with confidence in the parents making these choices have little concern about what the data will show.
And as for the collection of the data, again, it’s less than they have on every public school student, and more than they have on homeschool and private school students who aren’t getting reimbursements. So as long as we’re moving kids from public schools to alternatives, the net result should be less total data, not more.

Sec. 29.372 allows the comptroller to adopt the rules and procedures for implementing and administering the program.

Sec. 29.373 Allows for appeals of decisions by the comptroller or a CEAO on eligibility or allowable expenses or removal from the program. Those appeals are made to the comptroller. No other appeals level or process applies.
Sec. 29.374 any participant, provider or vendor may intervene in any civil action challenging the constitutionality of the program. No one may be required to join a brief filed on behalf of the state or a state agency, though.

Sections 3,4, and 5 of the bill provide the comptroller with the authority to access state registries, criminal records, and health information.

Section 6 of the bill makes it apply starting with the 2026-2027 school year.
Section 7 requires the comptroller to adopt the needed implementation rules no later than May 15, 2026 — following the required processes.
Section 8 provides for expedited direct appeal to the Texas Supreme Court of any constitutionality challenges and automatic stay of injunction (with limited exception) and prevents the awarding of attorney’s fees for such action.
Section 9 specifies comprehensive severability.
Section 10 provides for the usual effective date — immediately if the bill passes with a 2/3rds majority in both chambers, September 1, 2025 otherwise.
But section 6 specifies either way it goes into effect for the 2026-2027 school year.

Don’t take my word for any of the above. Read the bill language yourself …. unlike far too many bills these days it’s a very manageable 16 pages long.

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