By Mike Hernandez

LINCOLN, NEB–A Nebraska Court will rule on a Aug. 13 lawsuit on universal school choice filed by Justin Jacobsen and Timothy and Joana Menter, parents in the Lincoln Public Schools–the second largest public school district in the state in the heart of the Great Plains.  Lincoln students speak 52 languages, largely due to Lincoln being declared a refugee-friendly city in the 1970s.

The parents represented by the New Civil Liberties Alliance have sued state and local school officials challenging Nebraska’s compulsory education and public school-only funding. Nebraska ranks near the bottom nationally on school-choice indexes and provides no scholarships, tax credits or charter schools.

Families that opt out of the public system shoulder the full cost of their children’s education. Average private school tuition in Nebraska runs about $7,800 a year. 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 rejected. 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:

1. Forcing families to accept government messaging—or pay a steep price to escape it—amounts to unconstitutional pressure.
2. Education is inherently speech, and parents hold the primary right to speak or to choose who speaks on their behalf.
3. Universal school choice resolves the constitutional problem while preserving public support for education.

In 2021, Columbia University law professor Philip Hamburger  argued that the U.S. public school system violated the First Amendment. He wrote: “Education 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 messagin–or pay a steep price to escape it–amounst to unconstitutional pressure.

Writing in the Wall Street Journal, Hamburger, who leads the New Civil Liberties Alliance as Chief Executive Officer said it was time for American courts to start acknowledging that public education was a clear violation of the First Amendment. Once that happens, states and families can start working on solutions for real education. “The freedom of parents in educating their children belongs to all parents, not only the faithful. Freedom of speech more completely explains this educational liberty.”  Hamburger writes: “The public school system weighs on parents. It burdens them not simply, with poor teaching and discipline, but with political bias, hostility toward religion, and now even sexual and racial indoctrination. Schools often seek openly to shape the very identity of children. What can parents do about it?” (Editor: See: https://nclalegal.org/opinion/is-the-public-school-system-constitutional/.) 

Liberty University Law Professor Jeffrey Tuomala writing in Volume 18 Issue 4, of the Liberty University Law Review published in March, 2024 wrote: “Tax-Funded Education Unconstitutional?” He takes aim at “government schools” efforts to exert illegitimate control over the minds of students. He concludes that government schools must give way to privately funded Christian education.

“The parallels between the forms of state-church relationships and state-school relatons–as establishment of religion–are striking. Four distinct forms of school-state relations parallel four distinct forms of church-state relations that have existed in colonial Virginia or the United States. Only the model of free churches and free schools is consistent with the First Amendment” writes Tuomala.

(Editor’s Note: Journalist Alex Newman posted this story on Jan. 16, 2025. See: https://www.freedomproject.com/2025/01/16/tnr20250116/ and it was reposted on The Liberty Sentinel on Jan. 20, 2025 and on Public School Exit on Jan. 21, 2025: https://www.publicschoolexit.com/government-education-is-unconstitutional-says-top-us-law-professor/ and New American on Sept. 29, 2025: https://thenewamerican.com/us/education/government-education-is-unconstitutional-says-top-us-law-professor/.)

—————————————————————————————————————–

(Editor’s Note: CaliRedNews.com is an online news platform focused on Making California Red by the 2028 elections through reaching Gen Z (ages 13-28), Hispanics, and Christians with biblical traditional values. CaliRed News reports on political, church and education news. Free subscriptions are available at: https://substack.com/@calirednews or CaliRedNews.com.

Mike Hernandez, is co-founder of the Citizens Journal–Ventura County’s online news service. He is a former Southern California daily newspaper journalist and religion and news editor, writer of “CaliRed News” on Substack.com and other columns. Mr. Hernandez mentors citizen journalists and is author of “Citizen Journalism: How to Report, Write and Publish Local News Like a Pro–Finding Your Voice, Reporting the Truth, and Building a News Source for Your Community” and can be contacted at MikeHernandezMedia.com dedicated to advancing truth, service, and hope through Mission News Service. He is also founder/publisher/editor of https://calirednews.com/.)