Corey DeAngelis is a research fellow at the Heritage Foundation and a senior fellow at Americans for Fair Treatment.
In 2021, Columbia University law professor Philip Hamburger argued that the U.S. public school system violates the First Amendment. “Education,” he wrote, “consists mostly in speech, and parents have a right under the First Amendment to exercise authority over what their children hear.” Forcing families to accept government messaging — or pay a steep price to escape it — amounts to unconstitutional pressure.
A lawsuit filed in Nebraska on Aug. 13 brings that argument into court — and could open a path toward universal school choice.
Justin Jacobsen and Timothy and Joanna Menter, parents in the Lincoln Public Schools district, are suing state and local officials in Lancaster County District Court. Represented by the New Civil Liberties Alliance, they are challenging Nebraska’s combination of compulsory education and public-school-only funding.
Nebraska law requires parents to enroll children in a “public, private, denominational or parochial school” or to home-school them. Noncompliance is a Class 3 misdemeanor punishable by up to three months in jail and a $500 fine.
Yet the state offers educational benefits — roughly $19,000 per student statewide in 2024-25, and about $17,400 in Lincoln — only to families that enroll their children in public schools, thus accepting the government’s preferred viewpoints. Nebraska ranks near the bottom nationally on school-choice indexes and provides no scholarships, tax credits or charter schools. (Gov. Jim Pillen has opted Nebraska into the new federal tax credit scholarship program, effective Jan. 1, 2027).
Families that opt out of the public system shoulder the full cost of their children’s education themselves. Average private school tuition in Nebraska runs about $7,800 a year. The resulting penalty, over a K-12 career, exceeds $100,000.
The Menters now home-school their school-age children after pulling the two oldest out of Lincoln Public Schools. The Jacobsen family home-schools one child, sends the two youngest to a private religious school and has another trying public high school. It would send all four to private schools if it could direct its tax dollars to the education providers of its choice.
Both families withdrew most of their children because remaining in public schools meant adopting educational speech they reject. The Menters’ elementary school displayed a classroom door sticker promoting alternative sexuality and transgender ideologies and pressed climate-change views the parents found fear-based. The Jacobsens’ school taught transgender ideology; the children were also exposed to divisive narratives suggesting certain races were victims and others were oppressors because of their skin color.
The parents’ complaint rests on three theories. First, the combination of a criminal education mandate and funding limited to government viewpoints directly abridges parents’ free-speech rights under the First Amendment. Education is inherently speech, and parents hold the primary right to speak or to choose who speaks on their behalf. Second, the same facts violate the Nebraska Constitution’s free speech clause, which state courts treat as mirroring the federal guarantee. Third, the arrangement creates an unconstitutional condition: that is, the state may not condition a valuable public benefit on the surrender of a constitutional right.
This combination of a compulsory mandate and exclusive public school funding is viewpoint discrimination, not a neutral funding decision. Nebraska mandates educational speech, then funds only the government’s perspective and withholds support from any other. That arrangement fails strict scrutiny. The state has no compelling interest in government-run education specifically, as opposed to education generally, and less-restrictive alternatives exist. The government could still fund education with taxpayer dollars, for example, while allowing the money to follow the child to the school or program that aligns with the family’s values.
The lawsuit does not ask the court to invent a new system or order the legislature to adopt any particular program. It seeks only a declaration that the current structure is unconstitutional as applied to these plaintiffs, an injunction against continuing the unconstitutional conditions, and prospective damages from the city of Lincoln and Lancaster County equal to the per-pupil value of local benefits directed to Lincoln Public Schools, continuing until the violation ends or each child graduates from high school, earns a GED or turns 19. The plaintiffs do not challenge the content of any specific curriculum — the claim is structural, concerning funding and compulsion.
Universal school choice resolves the constitutional problem while preserving public support for education. Nebraska can keep its compulsory-education laws and continue to provide education with taxpayer funding. The difference is that families, not the state, would direct that money to the schools or programs that best align with their values — public, private, religious or home-based. Funding would follow the child rather than force every family to be indoctrinated in a single government viewpoint.
This approach respects free speech. Parents who prefer the public system’s messaging can remain there. Parents who do not can exit without financial penalty. Every child still receives an education funded by the public, and no family is compelled to underwrite or accept speech it rejects for its own children. Force gives way to freedom.
The Nebraska case makes plain that the status quo cannot stand. Universal school choice is the path that honors both education and the Constitution.
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