Can Texas leave home schoolers out of a school voucher program for private and religious schools?

Texas AG Opinion JC-0091: Home Schools, School Vouchers, and the Equal Protection Clause

Plain-English summary

As Texas debated a possible school voucher system, Senator Bill Ratliff, who chaired the Senate Finance Committee, asked whether the Legislature could constitutionally leave home schools out of a voucher program built for private and parochial schools. He was especially concerned about the Texas Supreme Court's 1994 decision in Texas Education Agency v. Leeper, which had treated home schools as "private schools" for purposes of the compulsory school attendance law.

The Attorney General framed the question around the Equal Protection Clause of the Fourteenth Amendment, the provision the court of appeals had relied on in the Leeper litigation. The clause does not forbid a state from treating different groups differently; it forbids classifications that have no fair relationship to a legitimate public purpose. Under that rational-basis standard, the opinion concluded the Legislature could exclude home schools from a voucher system so long as it had a basis for doing so that was rationally related to a legitimate public purpose.

The opinion was careful about what it was not deciding. The senator's question was abstract, with no particular bill in front of the office, and equal protection analysis turns on the specific facts, the interests the state is protecting, and the interests of those disadvantaged by the classification. So the opinion did not bless any particular exclusion; it said any real voucher statute would have to pass its own equal protection test. On Leeper specifically, the opinion explained that both the court of appeals and the Supreme Court had construed "private school" only in the context of the compulsory attendance statute, and the court of appeals had applied equal protection only to that statute. A separate voucher law that excluded home schools and justified their different treatment would not automatically violate equal protection, and nothing in Leeper raised a constitutional bar to such a statute.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the opinion say Texas could exclude home schools from vouchers?
It said the Legislature may do so as long as the exclusion bears a rational relationship to a legitimate public purpose. It did not approve any specific exclusion, because no actual voucher bill was before the office.

Didn't Leeper say home schools are private schools?
Yes, but only for the compulsory school attendance law. The opinion explained that the courts in Leeper construed "private school" in the context of that particular statute, so the holding did not control how a separate voucher law could define private schools.

What legal test would a voucher exclusion have to meet?
Rational-basis review under the Equal Protection Clause. The classification would have to bear a fair relationship to a legitimate public purpose, judged on the specific facts, the state's interests, and the interests of those disadvantaged by it.

Did the AG decide whether a real voucher exclusion would be constitutional?
No. The opinion answered the question in the abstract and expressly declined to determine whether any particular exclusion of home-schooled children from a voucher program would pass constitutional muster.

Background and statutory framework

The opinion turned on the Equal Protection Clause of the Fourteenth Amendment, which bars a state from denying any person the equal protection of the laws but permits different treatment of different classes when the classification bears a fair relationship to a legitimate public purpose, citing Plyler v. Doe (457 U.S. 202). It noted that applying the test requires examining the facts behind the law, the interests the state claims to protect, and the interests of those disadvantaged, citing Williams v. Rhodes and a prior opinion, DM-484 (1998).

The factual backdrop came from the Leeper litigation. The compulsory attendance statute, then codified at section 25.085 of the Education Code, required school-age children to attend public school unless exempt, with an exemption for children attending a private or parochial school that taught good citizenship (the exemption provision later codified at section 25.086). The Texas Education Agency had taken the position that a "private school" meant a traditional campus school, not a home school, exposing home-schooling parents to criminal prosecution. The Fort Worth court of appeals (843 S.W.2d 41) found no justification for treating home-school parents differently from traditional private-school parents and held that bona fide home schools fell within the private-school exception. The Texas Supreme Court (893 S.W.2d 432) upheld that construction of the attendance law but did not reach the Equal Protection Clause. Because those rulings interpreted "private school" only for the attendance statute, the opinion concluded they did not bar a voucher law that defined private schools differently and justified excluding home schools.

Citations

Constitutional and statutory provisions:

• U.S. Const. amend. XIV, § 1
• Tex. Educ. Code Ann. § 25.085, § 25.086 (Vernon 1996 & Supp. 1999)

Cases:

• Texas Education Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994)
• Texas Education Agency v. Leeper, 843 S.W.2d 41 (Tex. App.-Fort Worth 1991)
• Plyler v. Doe, 457 U.S. 202 (1982)
• Williams v. Rhodes, 393 U.S. 23 (1968)

Attorney General opinion referenced: DM-484 (1998).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0091
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0091.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

August 10, 1999

The Honorable Bill Ratliff
Chair, Finance Committee
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. JC-0091

Re: Whether legislature constitutionally may exclude home schools from voucher system for private and parochial schools (RQ-0023)

Dear Senator Ratliff:

You ask whether the legislature constitutionally may exclude home schools from a voucher system for private and parochial schools. Because you ask in particular about the effect of the Texas Supreme Court's decision in Texas Education Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994), we address the constitutional provision raised by the court of appeals in that case: the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

The Equal Protection Clause prohibits a state from denying "to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. But it does not prohibit states from treating different classes of people in different ways. Rather, it prohibits laws that treat different classes differently on the basis of criteria unrelated to the objectives of the statute. See Plyler v. Doe, 457 U.S. 202, 216 (1982). "In applying the Equal Protection Clause to most forms of state action," the United States Supreme Court has said, "we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose." Id.

In Leeper, 893 S.W.2d 432, the courts considered whether children educated at home were subject to the compulsory school attendance requirements of the Education Code. The statute at issue, now section 25.085 of the Education Code, required all school-age children in Texas to attend public schools a minimum number of days per year unless exempted by law. Id. at 433. Among those exempt from the attendance requirement was "'any child in attendance upon a private or parochial school which shall include in its course a study of good citizenship.'" Id. (quoting Act of May 24, 1991, 72d Leg., R.S., ch. 461, § 2, 1991 Tex. Gen. Laws 1678, 1680 (amended 1995, 1997) (current version at TEX. EDUC. CODE ANN. § 25.086 (Vernon 1996 & Supp. 1999)). It had been the position of the Texas Education Agency ("TEA") that a "private school" meant a traditional campus-type private school and not a home school. Id. at 443. Parents who educated their children at home could be criminally prosecuted for violating the compulsory attendance law. Id. at 433.

The court of appeals in Leeper considered whether TEA's policy violated the Equal Protection Clause because it treated the parents of home-schooled children differently from the parents of children attending traditional private schools. See Texas Education Agency v. Leeper, 843 S.W.2d 41, 50 (Tex. App.-Fort Worth 1991), rev'd in part and aff'd in part, 893 S.W.2d 432 (Tex. 1994). The court of appeals found no justification for the distinction, and thus found that it violated the equal protection doctrine. Id. at 51. The court of appeals also held that home schools in which children were taught in a bona fide manner from a curriculum designed to meet basic education goals were private schools within the private school exception to the compulsory school attendance requirement. Id. at 51-52. The Texas Supreme Court upheld the court of appeals' construction of the compulsory attendance law, that is, that "private school" includes home schools, but did not consider the question of the Equal Protection Clause. See Leeper, 893 S.W.2d 432, 443-44, 446.

The United States Supreme Court has said that the application of the equal-protection-clause test necessarily requires an examination of "the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Williams v. Rhodes, 393 U.S. 23, 30 (1968); accord Tex. Att'y Gen. Op. No. DM-484 (1998) at 5. The question you pose is in the abstract; we do not have before us a particular statute or the other information required for the equal protection analysis. Accordingly, we do not determine whether any particular exclusion of home-schooled children from a voucher program would pass constitutional muster under this test. However, in our view, neither the decision of the supreme court nor that of the court of appeals in Leeper bars the legislature from excluding home schools from a voucher system. The court of appeals applied the equal protection analysis only to the particular statute at issue. A voucher law excluding home schools would have to undergo its own analysis. And both the court of appeals and the supreme court construed the meaning of "private school" in the context of that particular statute. A law that excluded home schools from the definition of private schools for purposes of the voucher program and that substantiated their different treatment would not necessarily run afoul of the Equal Protection Clause. Nothing in Leeper raises a constitutional bar to such a statute.

SUMMARY

The Texas Legislature may exclude home schools from a voucher system for private and parochial schools so long as it has a basis for that exclusion that bears a rational relationship to a legitimate public purpose. The decision of the Texas Supreme Court in Texas Education Agency v. Leeper, 893 S.W.2d 432 (Tex. 1994), does not bar the legislature from enacting a law that excludes home schools from a voucher system for private and parochial schools.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee