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The U.S. Supreme Court has recognized in Pierce v. Society of Sisters (1925) and other cases that parents have the right to send their children to private schools. It has elsewhere recognized the right of states to provide tax deductions, vouchers and other aid to parents who send their children to private schools.
Some scholars, most notably Philip Hamburger of the Columbia University law school, who is also the chief executive officer of the New Civil Liberties Alliance, have further argued that unequal funding of public and private schools violates the free speech clause of the First Amendment. They believe that education largely consists of speech, and that presenting parents with the choice of a free public education or a costly private education imposes an unconstitutional condition upon them.
Nebraska Case
These arguments were recently raised in a suit entitled Jacobsen v. Spellerberg (District Court of Lancaster County, Nebraska, August 13, 2026), brought by a number of parents who home-school or send their children to private schools in Lancaster County, Nebraska, against the Nebraska State Treasurer, the Nebraska Commissioner of Education and other officials in the District Court of Lancaster County.
The opening paragraph observes that “Formal education occurs through speech.” It further asserts that the primary responsibility for providing such education rests with parents, whose free-speech rights are protected against governmental infringement by the First Amendment. The suit observes that “education in public/government schools consists primarily of government supplied, selected, and reinforced educational viewpoints, and that such schools “do not merely teach students how to think; they teach them what to think.”
The state provides criminal punishment for parents who fail to enroll their school-age children, but they “provide various and significant educational benefits only if Plaintiffs enroll their children in government schools, where the government’s viewpoint reigns.” Just as other cases have outlawed public prayer and devotional Bible reading in government schools to protect students against compulsion, so too states should be forbidden to financially pressure parents to send their children to schools that do not share their beliefs. Otherwise, the states are involved in viewpoint discrimination that violates free-exercise rights such as those recognized in Mahmoud v. Taylor (2025).
The complaint observes that Nebraska spends more than $19,000 a year per student in public schools, and the costs of tuition at private schools in the area ranges from more than $7,000 to $11,000 per child per year, while home schooling results in other opportunity costs, such as requiring that one parent forego outside work to stay and home and teach. Unlike some other states, Nebraska offers no financial support for parents who do not choose the public-school option.
Following arguments advanced by Professor Hamburger, who believes that modern policies are a carry-over from the 19th century when states tried to impose religious and ideological conformity on immigrants, the suit observes that Nebraska’s schools are designed to promote ideological conformity. It notes its mandate to implement “Social and Emotional Learning Practices” that include an emphasis on equity, that promote what the complaint describes as “transgender ideology,” that discourage driving as a way to reduce carbon-dioxide, and that suggest that “some races were oppressors due solely to the color of their skin.”
According to the suit, “it is impossible for a government educational institution not to espouse a worldview or viewpoint.” It explained that “Messages and practices like these are neither apolitical nor value-neutral: Each comes with a set of normative commitments and policy prescriptions that parents may, or may not, want to espouse for a variety of religious, moral, philosophical, cultural, political, or other reasons.”
The complaint alleges that the state thereby abridges plaintiffs’ education speech “by conditioning the funding and provision of educational benefits on acceptance of the government’s viewpoint.” In so doing the government violated the “unconstitutional conditions” doctrine. Citing FCC v. League of Women Voters (1988), the Court observed that “even minimal amounts of financial pressure by the government violate the unconstitutional conditions doctrine.” Moreover, anytime the government engages in viewpoint discrimination, the courts are required to apply “strict scrutiny,” to assure that government actions are “‘narrowly tailored’ to achieve a ‘compelling state interest,” as they allege, Nebraska has not done.
Just as government cannot compel speech, so too, it cannot “impose costs on that speech based on the viewpoint Plaintiffs choose to espouse.” The complaint observed that the fact that “Defendants have chosen children’s education for this arrangement is especially pernicious, as children are uniquely susceptible to the state’s educational messages.”
The plaintiffs are seeking a declaratory judgment that governmental policies were unconstitutional and an injunction requiring that they stop doing so, leaving it to the states to decide how to proceed with this declaration in place.
Implications
The rights in the First Amendment are generally considered to be admonitions of what the government cannot do (so-called negative rights), but if this case succeeds, it suggests that it also carries certain governmental obligations (positive rights), which might require funding not only for government speech but also for alternative fora.
The case resembles a Massachusetts case (Hellman v. Department of Elementary and Secondary Education), in which plaintiffs claim that the state is discriminating against private school students by requiring that any special educational benefits that they receive should be delivered on public school campuses.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.
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