Lawsuit Argues That School Choice Is a First Amendment Issue

A lawsuit has been filed in Nebraska arguing that the state’s compulsory education laws violate the First Amendment by forcing parents to fund government-approved educational viewpoints. The case, Jacobsen v. Spellerberg, was announced by the New Civil Liberties Alliance (NCLA), which represents plaintiffs including Justin Jacobsen and the Menter family, parents whose children attend non-government schools. According to the NCLA, the suit contends that the state’s requirement for children to receive formal education, combined with substantial taxpayer funding for public schools, effectively compels parents to support government-endorsed ideological instruction, thereby infringing upon parental rights under the Constitution. At the heart of the argument is the claim that education constitutes protected speech under the First Amendment. Zhonette Brown, general counsel for the NCLA, stated that all aspects of education, from curriculum choices to values emphasized, constitute “educational speech.” She asserted that parents, rather than the government, hold the legal responsibility and right to determine the content of their children’s education. The lawsuit argues that requiring families to enroll their children in government-run schools, while simultaneously denying them access to comparable financial assistance for alternative educational models, creates an unconstitutional condition that forces compliance with state-sanctioned viewpoints. The NCLA’s complaint references judicial precedents affirming that the primary authority and duty to educate children lies with parents. It further states that both state and federal constitutions prohibit the government from limiting this parental right. However, the complaint notes that public schools in Nebraska predominantly deliver educational content aligned with government-selected perspectives. While the state allows for private schooling and homeschooling, these options lack the level of financial backing available to students enrolled in government schools, which receive over $19,000 annually per student. Plaintiffs allege that this disparity compels taxpayers who opt for non-governmental education to indirectly subsidize the ideological framework of public schools. This, they argue, is an unconstitutional imposition that violates the free exercise clause of the First Amendment. The lawsuit seeks a declaration that Nebraska’s current system of mandatory education and funding for public schools violates both federal and state constitutions. Additionally, the plaintiffs request an injunction preventing defendants, including State Treasurer Joey Spellerberg, Attorney General Michael Hilgers, and Commissioner of Education Brian L. Maher, from enforcing the alleged unconstitutional conditions on educational benefits. If granted, the injunction could compel the state to reform its educational policies to ensure that parents retain the right to direct their children’s education without being forced to endorse government-approved viewpoints. The plaintiffs also seek monetary compensation from the City of Lincoln and Lancaster County, calculated based on the per-student funding allocated to Lincoln Public Schools. The amount would be multiplied by the number of school-age children in each plaintiff’s household and paid out continuously until the unconstitutional system is dismantled, the children complete high school or obtain a GED, or reach the age of 19, whichever occurs first. The lawsuit highlights growing tensions around school choice and the role of government in shaping educational content. Advocates for school choice have long maintained that allowing families to select their children’s educational environment fosters competition, accommodates diverse learning styles, and promotes innovation within the sector. This case, however, takes the debate to a constitutional level, framing school choice not merely as a policy preference but as a fundamental civil liberty issue tied to the protection of free expression and religious freedom. The outcome of the case could set a precedent for similar lawsuits in other states grappling with the intersection of education policy and constitutional rights. If successful, the ruling might prompt legislative changes aimed at aligning public funding mechanisms with parental choice, ensuring that all educational options receive equitable support. Meanwhile, the defendants have yet to formally respond to the allegations, leaving the legal battle to unfold in the courts.