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Public Free Schools: a Constitutional Right to Educational Choice in Texas

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Public Free Schools: a Constitutional Right to Educational Choice in Texas SMU Law Review Volume 45 Issue 2 Article 4 1991 Public Free Schools: A Constitutional Right to Educational Choice in Texas Allan E. Parker Jr. Follow this and additional works at: https://scholar.smu.edu/smulr Recommended Citation Allan E. Parker, Public Free Schools: A Constitutional Right to Educational Choice in Texas, 45 SW L.J. 825 (1991) https://scholar.smu.edu/smulr/vol45/iss2/4 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. PUBLIC FREE SCHOOLS: A CONSTITUTIONAL RIGHT TO EDUCATIONAL CHOICE IN TEXAS Allan E. Parker,Jr. * I. Introduction ............................................. 827 II. Texas Education Prior to 1875 ............................ 833 A . 1845 Constitution .................................... 833 B. School Law of 1854 (Partial Voucher plan) ............ 837 C. School Law of 1856 (Pure Voucher plan) .............. 840 D. 1858 and 1860 School Law ..... ................. 841 E. The Civil War and Texas Education ................... 845 F. Radical Reconstruction ............................... 845 III. Reaction to Reconstruction - The 1875 Convention and the 1876 Constitution ........................................ 847 A. The Constitutional Convention ........................ 848 B. The Education Resolutions ........................... 849 C. The Reports of the Committee on Education and the D ebates .............................................. 852 D. Select Committee on Education ....................... 865 E. Debate on the Select Committee on Education's Proposal ............................................. 871 F. Contemporaneous Political Meaning of Public Schools.. 881 IV. The School Law of 1876 - "Public Free Schools" . ........ 885 A . The Statute .......................................... 885 B. Later Amendments ................................... 891 C. Community Schools - A True Voucher System ....... 892 D. Defects in the Community Schools .................... 893 V. The 1883 Constitutional Amendment ...................... 894 A. The Amendment ..................................... 895 B. 1884 School Law ..................................... 897 VI. Constitutional Amendments Since 1883 .................... 903 VII. The Consititutional Prohibition of Aid to Sectarian Schools .................................................. 906 VIII. Social Policy Analysis ..................................... 909 * Professor of Law, St. Mary's School of Law; B.A. 1974, University of Oklahoma, Magna Cum Laude; J.D. 1979, University of Texas School of Law. I gratefully acknowledge the helpful comments and suggestions of my colleague, Professor Aloysius A. Leopold. I also appreciate the hard work of my research assistant, Tom Stack, and the support of my wife, Susan. Deo soli gloria. SOUTHWESTERN LAW JOURNAL [Vol. 45 IX . C onclusion ............................................... X . A ppendices ............................................... Appendix A. Education Article from the 1869 Constitution of the Radical Republican Reconstruction ... Appendix B. Educational Resolutions from the 1875 Convention ................................ Appendix C. Sansom's Libertarian Philosophy on Educational Taxation ....................... Appendix D. Reports on Education from the 1875 Convention ................................ Appendix E. Voting Results on the Educational Resolutions from the 1875 Convention .................. Appendix F. County Land Report ....................... Appendix G. Opinions on the Educational Resolutions from the 1875 Convention ....................... Appendix H. Further Debate on the Education Article, Substitutions, and Amendments ............. Appendix I. The M ills Plan ............................ Appendix J. Amendments, Opinions, and Voting Results During Debate over the Select Committee's Proposal for an "Efficient System of Public Free Schools" . ............................ Appendix K. New Voucher System ...................... 1991] TEXAS PUBLIC EDUCATION I. INTRODUCTION HE Texas Supreme Court's decision in Edgewood Independent School District v. Kirby I has aroused much controversy, political maneuver- ing, and some "educational reform" by the Texas legislature.2 As a result of Edgewood, the state's educational leadership has grappled with many issues of educational reform beyond the pure finance equity issues ad- dressed in Edgewood, including the idea of public/private educational choice. This article will deal with two issues. First, whether the Texas Con- stitution gives parents the right to select an educational provider of their choice and receive tuition funding from the state, rather than being com- pelled to select an unsatisfactory state-operated institution of public educa- tion. Second, whether the legislature could constitutionally choose to adopt a plan of public/private educational choice as a method of providing public education in Texas. Many believe that a system of competition fostered by public/private choice, which would empower parents with greater control over their children's education, would invigorate public education with par- ticular benefit to the economically disadvantaged. The Texas Constitution requires the legislature to establish a system of "public free schools," not free public schools in the modem sense. What is a public free school system? This article will demonstrate that a "system of public free schools" must include educational choice for parents and tuition reimbursement for providing education, especially for indigent students. At an absolute minimum, such a plan could be constitutionally adopted by the legislature. The idea of educational choice as a desirable social policy is currently experiencing a national rebirth.3 The Bush Administration has made school 1. 777 S.W.2d 391 (Tex. 1989), 2. See Act of June 7, 1990, 71st Leg., 6th C.S., ch. 1, 1990 Tex. Gen. Laws 1. This reform legislation was declared unconstitutional by the district judge on September 24, 1990. Edgewood Indep. School Dist. v. Kirby, No. 362516 (Dist. Ct. of Travis County, 250th Judi- cial Dist. of Tex., Sept. 24, 1990),judgment vacated in part, 804 S.W.2d 491 (Tex. 1991). The statute introduces accountability into the government monopoly on education in a number of ways such as publishing test results and other performance data. More data on low perform- ance will contribute to a growing public clamor for choice in education as the deficiencies of current schools become more widely known and glaringly apparent. 3. See J. CHUBB & T. MOE, POLITICS, MARKETS AND SCHOOLS (1990); REPORT TO THE PRESIDENT, U.S. DEPT. EDUC., EDUCATING OUR CHILDREN: PARENTS AND SCHOOLS To- GETHER (1989); Chubb & Moe, America's Public Schools: Choice is a Panacea, BROOKINGS REV. 4 (Summer 1990); Clark, The Future Civil Rights Agenda: Speculation on Litigation, Legislation, and Organization, 38 CATH. U.L. REV. 795, 798 (1989); Clinchy, Public School Choice: Absolutely Necessary but not Wholly Sufficient, PHI BETA KAPPAN, Dec. 1989, at 289; Finn, The Choice Backlash, NAT'L REV., Nov. 10, 1989, at 30; Glenn, PuttingSchool Choice in Place, PHI BETA KAPPAN, Dec. 1989, at 295; Mitchell, Secularism in Public Education: The ConstitutionalIssues, 67 B.U.L. REV. 603, 681-82 (1987); Nathan, Helping all Children, Em- powering all Educators: Another View of School Choice, PHI BETA KAPPAN, Dec. 1989, at 304; A New Escape Route from Public Schools, U.S. NEWS & WORLD REP., Apr. 9, 1990, at 10; Shapiro, Pick a School, Any School, U.S. NEWS & WORLD REP., Sept. 3, 1990, at 70; 1 R. Domanico, Model for Choice: A Report of Manhattan's Dist. 4 (October 1989) (Education Policy Paper for the Manhattan Institute for Policy Research); H. Levin, The Theory of Choice Applied to Education (May 1989) (Paper prepared for the conference on "Choice and SOUTHWESTERN LAW JOURNAL [Vol. 45 choice a centerpiece of its educational restoration plan.4 Some public schools have already adopted public school choice plans voluntarily, 5 giving each school a special emphasis and allowing students to choose their own schools. Schools that cannot attract students are closed and reopened under new management. An even more far reaching and innovative experiment is taking place in the Milwaukee public schools. As of September 4, 1990, Wisconsin will al- low a few fortunate indigent students to attend private non-sectarian schools of their own choice in Milwaukee, with the state reimbursing up to $2500 of their tuition expense.6 Voters in Oregon were asked in November 1990 to approve a plan for every school student to receive $2500 to attend any school of his choice, public or private, sectarian or non-sectarian. While the plan failed to elicit majority support, almost forty percent of the voters ap- proved of this fundamental restructuring of public education. Clayton Wil- liams, the Republican gubernatorial candidate in Texas, advocated public/private tuition vouchers, and was only narrowly defeated. The constitutionality of any educational choice plans which include pri- vate schools will certainly be a key factor in their implementation. The cur- rently entrenched educational monopoly has spent decades consolidating its power; vast sums of money and massive numbers of jobs are at stake. Both teachers unions and educational management are, as a group, overwhelm- ingly opposed to allowing parents the normal economic right to choose
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