   OFFICE   OF THE   ATTORNEY   GENERAL   STATE   OF TEXAS

   JOHN     CORNYN




                                                  August IO,1999



The Honorable Bill Ratliff                                   Opinion No. JC-0091
Chair, Finance Committee
Texas State Senate                                           Re: Whether legislature constitutionally may
P.O. Box 12068                                               exclude home schools from voucher system for
Austin, Texas 78711                                          private and parochial schools (RQ-0023)

Dear Senator Ratliff:

       You ask whether the legislature constitutionally may exclude home schools t?om a voucher
system for private and parochial schools. Because you ask in particular about the effect ofthe 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, 5 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 criteriaumelated to the objectives ofthe 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. Zd. 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
May24,1991,72dLeg.,R.S.,ch.461,         §2,1991 Tex.Gen.Laws 1678,1680(amended 1995,1997)
(current version at TEX.EDUC.CODEANN. § 25.086 (Vernon 1996 & Supp. 1999)). It had been the
position ofthe 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
The Honorable Bill Ratliff - Page 2              (JC-0091)




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 inpart, 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 5 1. The court of appeals also held that home schools in which
children were taught in a bona tide 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 5 l-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.
The Honorable Bill Ratliff - Page 3           (JC-0091)




                                      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 ofthe 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.




                                            Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
