The private school choice program, on track to be the nation’s largest when it launches next school year, is facing its first lawsuit, with a parent claiming religious discrimination because of its exclusion of Islamic schools.
Applications for the Texas Education Freedom Accounts (TEFA) program opened about a month ago for the upcoming school year. But the lawsuit claims state officials have excluded Islamic-oriented private schools from the program, based on an opinion from Attorney General Ken Paxton allowing Acting Comptroller Kelly Hancock to bar schools based on ties to terrorist organizations and foreign adversaries.
The defendants are Paxton, Hancock, who administers the program, and Education Commissioner Mike Morath.
Mehdi Cherkaoui, an attorney and father of two children who attend Houston Qur’An Academy Spring, an Islamic private school north of Houston, is the plaintiff and filed the lawsuit on Sunday.
“Not a single accredited Islamic private school has been approved to participate in TEFA—despite the approval of hundreds of other private schools statewide, including numerous Christian schools,” Cherkaoui states in the complaint.
Some advocates of Texas’s voucher program don’t believe the state’s actions are religious discrimination.
“The governor and the comptroller’s team have made it abundantly clear, as has the attorney general, that in no way will the state of Texas be providing funding to entities tied to foreign terrorist groups,” said Mandy Drogin, a senior fellow at the Texas Public Policy Foundation.
Hancock excluded schools from the program with an accreditation from an organization that had hosted events organized by the Council on American-Islamic Relations, a civil rights group that Texas’ Republican governor, Greg Abbott, labeled a terrorist organization. CAIR is suing over the label, the Texas Tribune reported.
Because of their use of the same accreditor, some schools that serve primarily Christian students and students with disabilities have also been excluded, the Houston Chronicle has reported.
What schools qualify for Texas’ ESA program?
Texas passed its school choice program in 2025, after years of resisting choice programs that other Republican-led states have embraced. The program provides education savings accounts (ESA) of about $10,000 to families that they can use for private schools, with up to $30,000 available for students with disabilities and $2,000 available for home-school students.
Any student is eligible to apply, though the program will prioritize students based on disability status and family income if too many apply for the available funding—$1 billion over the next two years.
Student applications close March 17, according to the Houston Chronicle. Private schools can apply on a rolling basis.
To be eligible to receive ESA funds, private schools must:
- Be accredited by an organization recognized by the Texas Private School Accreditation Commission or the Texas Education Agency.
- Have run a campus for at least two years.
- Administer a nationally norm-referenced assessment, such as the SAT or ACT, and NWEA’s MAP tests.
- Be located in Texas or, for a virtual school, have a Texas office.
About three-quarters of private schools across the United States are religious, so they’ve been among the main beneficiaries of private school choice funding. Choice programs typically allow schools to turn away students based on their religion, sexual orientation, disability, or other criteria.
In Texas, the only clear criterion for schools to participate in the ESA program is accreditation, said David DeMatthews, a professor in the Department of Educational Leadership and Policy at the University of Texas at Austin.
While he does not believe private school choice programs to be effective in improving student achievement, he recommends that they have “strong nondiscrimination protections.”
But this isn’t the case with Texas, said DeMatthews.
“Schools should have to accept kids that meet their criteria if they’re accepting state funds,” he said.
Texas’ comptroller’s office didn’t respond to a request for comment.
Texas isn’t the first state to get sued over its ESA program
Across the nation, school choice programs have grown exponentially in recent years. Today, 18 states have programs open to all students or are on track to be in the coming years; four years ago, no states had universal choice programs.
There are nearly 1.5 million students this school year using private school choice programs, up from 1 million just a year-and-a-half ago, according to the advocacy group EdChoice.
Choice programs have faced lawsuits throughout their history, and at least nine other states have faced recent legal challenges to these programs.
DeMatthews said private school choice programs have a long history of discrimination, so the new lawsuit isn’t a surprise.
“Whether it’s students with disabilities or Black children, there are always access issues,” he said. “This [Texas] voucher policy follows that long history of discrimination—this time based on religion.”
But Drogin, from the Texas Public Policy Foundation, argues the Lone Star State program revolves around a choice for parents, not discrimination.
“This program is not set up specifically for schools. It’s not an institutional program. It is for parents to be able to utilize and select the school that meets the requirements of the program,” she said.