Civil Rights Nonprofit Sues Nebraska Officials, LPS Over Free Speech Discrimination by Schools

by Lewis Thune

(Picture credit LPS)

The New Civil Liberties Alliance (NCLA) is representing two Lancaster County families in a civil rights suit against multiple state and local officials alleging the state education system abridges private and homeschool parents’ free speech.

The plaintiffs, Justin Jacobsen and Timothy & Joanna Menter, argue that they have suffered civil rights violations and financial complications as a result of choosing private and homeschool education for their previously public-schooled children.

Co-defendants include the City of Lincoln, Lincoln Public Schools, and state officials, among others.

The three charges in the lawsuit assert that Nebraska’s education system imposes an unconstitutional condition on parents and abridges their federal and state rights of free speech by mandating education while simultaneously pressuring parents to accept government viewpoints in the absence of any compelling state interest.

The plaintiffs hold that education – from teaching style to curricula to incentivized behavior – is speech. Nebraska mandates educational speech by holding parents responsible for their children’s education under threat of criminal penalty. However, Nebraska parents may only educate their children free of cost if they waive their right to free educational speech by enrolling their children in government schools.

Thus, the plaintiffs believe that the state denies benefits of free education to certain families on the First Amendment-protected interest of free speech, an unconstitutional condition as established in Perry v. Sindermann.

“The unconstitutional conditions doctrine exists to stop the government from doing indirectly what it cannot do directly. Nebraska cannot ban parents from teaching their own children their own values—so instead it penalizes them for exercising that recognized right” said Christian Clase, NCLA Litigation Counsel.

The NCLA and plaintiffs argue that the state of Nebraska imposes a “pay-to-escape” system wherein parents that do not accept government-supplied educational speech must either pay hefty private school tuition, forgo income opportunities by homeschooling, or be charged with Class III misdemeanors.

“The state presses parents to give up their own choice of educational speech and to substitute, not just government teaching, but government teachings” said NCLA founder and Columbia Law Professor Phillip Hamburger.

The suit seeks declarations that compulsory education together with government school-exclusive benefits is unconstitutional, and that awarding benefits solely to those who accept the government’s educational viewpoint is an unconstitutional condition.

It further requests an injunction on Nebraska officials’ ability to impose such conditions, and asks that the City of Lincoln and/or Lancaster County be made to compensate the plaintiffs for damages.

Despite asking that the plaintiff families be compensated for the nonpublic education of their children, the suit make no mention of the ongoing statewide fight over school choice, and refrains from recommending a policy. While the plaintiffs also take issue with Omaha and Lincoln Public Schools’ embrace of racial and gender equity policies, they do not request that such policies be addressed,

“Plaintiffs wish only to halt the government’s abridgement of their First Amendment rights to educational speech” NCLA said via press release. “Plaintiffs do not seek to end, defund, or influence public schools… the lawsuit also does not challenge the content of any specific public-school curriculum.”

The group cites a recent American Legislative Exchange Council report which ranked Nebraska last in the nation in educational choice for parents. It also cites Nebraska College of Law Professor Emeritus Richard F. Duncan, saying education is inherently laden with values and viewpoints.

In 2023, Professor Duncan wrote in the Case Western Reserve Law Review on the first amendment religious rights of parents in education. In the same year, Professor Hamburger of the NCLA wrote in the Texas Law Review on the first amendment speech rights of parents in education.

While Duncan was familiar with Hamburger, he was not previously aware of the lawsuit, and agreed to speak with The Plains Sentinel about what the case for constitutionally protected school choice would entail.

Free Speech and Free Education

As Duncan sees it, the NCLA has a plausible case against Nebraska due almost entirely to some very recent Supreme Court precedent.

“The court just in the last year has decided two really important cases: the Mahmoud case dealing with parental opt-outs… [and] Mirabelli v. Bonta.”

In Mahmoud v. Taylor, the court ruled that parents have a right under the free exercise clause to opt their children out of public school programming that violates the beliefs they teach their children within the home.

“In that case, it was argued: ‘Well, they have the right to opt out – they can leave the public schools and enroll their children in a private school or homeschool them.’ And the majority, Justice Alito, held that that’s an unconstitutional condition: the parents can’t be forced to choose between their constitutional right to control the upbringing and education of their children and governmental funding for education.”

In theory, this case would parse out exactly how far that power extends.

“Someone who wants to opt out of the entire public school system because it’s an engine of secularization can argue, ‘that’s what I want to do, and you can’t condition my opting out of public education on giving up the single largest benefit that most families receive from government.’”

In Nebraska’s case, few benefits come close. The state-wide average cost to publicly educate a single child last year was $19,000. Were Duncan’s five children to be schooled in today’s Nebraska, the Duncan family’s total benefits would total over $1.1 million by the time the last child graduated high school.

With the substantial cost of private school tuition and the high opportunity cost of homeschooling, Duncan agrees with the plaintiffs that most Nebraska families simply cannot forgo the benefit of free education.

“They have no choice. Literally, their children are made a captive audience for whatever the public schools wish to teach.”

But as to whether an objection to public school teachings must come on a religious basis, Duncan pointed to Mirabelli, a 6-3 Per Curiam order from earlier this year siding with parents who argued they have a right to be informed if their children express a different gender identity while in school.

“Parents have a substantive due process right under the 14th Amendment to direct the education and upbringing of their children, and that’s not limited to religious parents” Duncan said.

Duncan also said that the state does not have a compelling interest in making sure each Nebraska student gets a uniform education.

“There is no compelling interest for the state to insist that everybody gets an identical education,” he said. “All of the cases that stand up for free speech in the public schools and free exercise in the public schools are based on the idea that the government has no power to impose intellectual orthodoxy on citizens by mandating that they accept education from public schools only.”

He also granted that might be part of the rationale for NCLA choosing to raise this suit in Nebraska. While the state remains heavily split over the issue of school choice, and some defendants – prominently State Board of Education President Elizabeth Tegtmeier – are even outspoken supporters of it, the state’s history includes a landmark 1923 decision on parental prerogative in education.

“Meyer v. Nebraska arose because Nebraska was prohibiting the teaching of any foreign language in any subject other than a language subject. Some of the private schools were teaching German — we had a lot of German Lutherans in Nebraska… they were teaching German as part of their curriculum, and that violated Nebraska law. That case went up to the Supreme Court of the United States, and they said that [law] interferes with the right of parents to direct the education and upbringing of their children.”

Duncan said he believes the NCLA case will be a good test for free speech rights in the court system.

“Education was supposed to focus on what is true, what is good, what is beautiful. Well, if you only look at it from a secular point of view, you’re missing out on an awful lot of viewpoints that a lot of Nebraskans, a lot of Americans, think are true, think are critically important to the education of children… I think it’s really good that they’re bringing this case.”

— Lewis Thune is a writing fellow with The Plains Sentinel.