(Picture credit Nebraska Department of Education)
Exercising constitutional rights is not supposed to exact a penalty. Unfortunately, Nebraska has structured its education system to do just that.
That is why we have sued the state on behalf of two families harmed by the viewpoint discrimination arising from Nebraska’s educational statutes.
Nebraska might seem an unlikely target for such a constitutional challenge. It is not as though that state facially requires children to attend government-run public schools, after all. Parents remain free to choose private schools or homeschooling. But the way Nebraska conditions educational funding and other benefits raises a profound First Amendment problem.
Education is inherently speech. Teaching happens through words, texts, images, and expressive conduct. Which books are assigned, which ideas are emphasized, which values are reinforced, are all expressions of speech and qualify as speech under the First Amendment and Nebraska’s State Constitution. And courts have long recognized that parents hold the paramount right to direct their children’s education, going back to Meyer v. Nebraska and Pierce v. Society of Sisters.
Nebraska state law requires parents to educate their children, whether through public schools, private schools, or homeschooling. Failure to comply with this law is punishable with fines and even prison time. That requirement itself is not at issue. The constitutional problem is what Nebraska does next.
The state provides public funding and other educational benefits only to families that enroll their children in public schools, thereby accepting the government’s preferred educational viewpoints. Parents who disagree with these viewpoints and choose to educate their children through other means must bear the full cost themselves, which can average between $7,100 and $11,000 per child each year.
That arrangement forces many families into an impossible choice: accept the government’s views or bear the financial burden of providing a mandated alternative.
The Constitution prohibits the government from placing that kind of penalty on the exercise of constitutional rights. Even when government has discretion over how it spends public funds, it cannot condition a significant public benefit, such as education funding, on the surrender of protected freedoms. Yet Nebraska’s educational scheme does exactly that.
This is not hypothetical for the families we represent. Both withdrew their children from public schools because they concluded that foregoing a funded education was the only way to shield their children from educational speech they found objectionable.
That’s why we are asking the courts to declare that Nebraska’s education structure violates the First Amendment and the Nebraska Constitution’s free speech clause, to enjoin the unconstitutional conditions placed on educational benefits, and to award these families damages.
Importantly, we are not arguing against public schools. Most Nebraska families are happy with the education their children receive at public schools. Nor does this lawsuit ask the court to rewrite public-school curricula, dictate what teachers should teach, or require the legislature to adopt education savings accounts, tax-credit scholarships, or any other particular policy. Those are questions for Nebraska’s elected representatives.
Instead, the lawsuit asks the court to simply answer a narrower constitutional question: Can the state require parents to provide educational speech to their children while offering funding and other benefits only if they accept the government’s educational views?
We believe the answer is no.
Schools can teach what they teach. Our claim is structural: The state can’t compel educational speech then offer tens of thousands of dollars per year only for speech reflecting its own viewpoint.
The First Amendment protects freedom of speech. It should also protect parents from being penalized for having their own views about the proper speech provided to their children.
Christian Clase and Zhonette Brown are attorneys at the New Civil Liberties Alliance, a public interest law firm that litigates nationwide to vindicate the Constitution’s freedoms.