Lawsuit Argues That School Choice Is a First Amendment Issue

Nebraska plaintiffs say the state can’t mandate education and also control what kids are taught.

School choice advocates have argued for years that education options encourage competition among schools, cater to differing preferences for learning environments, and allow flexibility for families and children. Now, though, the plaintiffs behind a new lawsuit credibly argue that school choice protects the right of parents to have a say in the speech directed at children in the classroom.

Education Is First Amendment-Protected Speech

"Education happens through speech: Every lesson taught, book selected, idea discussed, and value emphasized conveys a message to the child," Zhonette Brown, general counsel for the New Civil Liberties Alliance (NCLA), noted last week when announcing a lawsuit against the state of Nebraska. "And parents, not the government, have the legal duty and the primary right to provide or select the educational speech their children receive."

"The government cannot condition a valuable public benefit on families surrendering a constitutional right," Brown added. "Nebraska may require children to receive an education, but it cannot use that requirement, and the enormous financial pressure attached to it, to steer parents toward government's preferred speakers and viewpoints."

Put simply, having required Nebraskans to educate their children, the state cannot also control the ideas children are taught.

In its complaint in the case of Jacobsen v. Spellerberg, the NCLA cites court precedents establishing that "the paramount authority and obligation to educate children, and the right to provide educational speech, rests with parents."

"State and federal Constitutions therefore preclude government abridgment of parents' educational speech," the complaint adds. "But education in public/government schools consists primarily of government supplied, selected, and reinforced educational viewpoints."

The complaint acknowledges that parents have the option to choose alternatives such as private schools and homeschooling. But Nebraska spends more than $19,000 per student every year on K–12 education in government schools and "defendants provide various and significant educational benefits only if Plaintiffs enroll their children in government schools, where the government's viewpoint reigns."

That means Nebraska taxpayers—including plaintiffs Justin Jacobsen and Timothy and Joanna Menter, who have school-age children—are forced to subsidize educational orthodoxy even if they choose schooling options that teach different viewpoints. Defendants include State Treasurer Joey Spellerberg, Nebraska Attorney General Michael Hilgers, Commissioner of Education Brian L. Maher, and other education officials who enforce the education mandate, disburse funds, and manage public schools.

Families That Want Choice Suffer Unconstitutional Conditions on Education Benefits

The plaintiffs seek declarations that the current arrangement of mandatory education and coerced funding of public schools teaching government viewpoints violates the federal and state constitutions. They want "an injunction barring Defendants from imposing the afore-declared unconstitutional condition on educational benefits" and court-ordered payment of damages by the City of Lincoln and/or Lancaster County "equal to the per pupil value of funding or other benefits those Defendants collect or provide for the benefit of the Lincoln Public Schools, multiplied by the number of Plaintiffs' school-aged children, with such damages continuing until the unconstitutional scheme no longer exists, such children graduate from high school, obtain a GED, or turn 19 years of age, whichever comes first."

Presumably, the injunction would also force Nebraska officials to adopt a new educational system that respects parents' right to guide their children's education, but the details are left to be determined later.

School Choice Offers Escape From Government-Preferred Viewpoints

That government-preferred viewpoints are pushed in public schools is beyond debate. The New York Times captured the situation in a January 2020 article by Dana Goldstein about the ideological customization of otherwise identical textbooks for California and Texas, where texts are selected at the state level. "The books have the same publisher," Goldstein wrote. "They credit the same authors. But they are customized for students in different states, and their contents sometimes diverge in ways that reflect the nation's deepest partisan divides."

She added, "Texas policymakers feel strongly about giving students a positive view of the American economy; since 1995, state law has required that high school economics courses offer an 'emphasis on the free enterprise system and its benefits.'…California's curriculum materials, by contrast, sometimes read like a brief from a Bernie Sanders rally."

Remarkably, that was before the curriculum wars really took off, when COVID-19 lockdowns sent kids home for online lessons that gave parents glimpses of preexisting biases and were further politicized by the ideological ferment of pandemic policy, racial tensions, and growing partisan polarization. The Cato Institute maintains an online Public Schooling Battle Map tracking disagreements among parents and between families and officials over the teaching of gender issues, morality, sexuality, and (the largest category) curriculum in general.

In 2021, the National Education Association (NEA), an important teachers' union, added fuel to the fire by adopting a resolution defending the teaching of controversial critical race theory in the classroom.

When many families pulled their children out of public school so they could ensure their kids were taught values with which they agree, prominent figures like Harvard Law School's Elizabeth Bartholet complained these parents were "indoctrinating" their children "in views and values that are in serious conflict" with those held by education officials. Bartholet argued that "policymakers should impose greater restrictions on private schools for many of the same reasons that they should restrict homeschooling" so that there would be no escape from official viewpoints.

Penalties for Exercising Choice Are No Better Than a Ban on Dissent

But even in the age of growing homeschooling and increasing portability of school funding in some states through tools like education savings accounts, many places, like Nebraska, still force parents to pay for government schools and official viewpoints no matter what they choose for their own children. Nebraska, notably, offers little in the way of school choice beyond recognizing families' rights to educate their children elsewhere so long as they leave behind the taxes they paid.

"The unconstitutional conditions doctrine exists to stop the government from doing indirectly what it cannot do directly," warns NCLA litigation counsel Christian Clase. "Nebraska cannot ban parents from teaching their own children their own values—so instead it penalizes them for exercising that recognized right. But the Constitution does not tolerate that abridgement of parents' free-speech rights."

If the First Amendment means anything, it should mean that governments are not permitted to penalize parents for making their own decisions about what children can and should be taught.