Do compulsory education and government-school funding violate the U.S. Constitution and the free-speech rights of parents as enshrined in the First Amendment? A Nebraska court is considering that very question right now. The implications could be far-reaching.
A pair of Lincoln families have finally put into a courtroom what Columbia Law School Professor Philip Hamburger has been arguing for years: the government-school monopoly is not merely a bad policy. It is an unconstitutional machine for substituting the government’s speech for the speech of parents.
On August 13, as children across Nebraska headed back to class, the New Civil Liberties Alliance filed Jacobsen v. Spellerberg in Lancaster County District Court. Plaintiffs Justin Jacobsen and Timothy and Joanna Menter are challenging the state’s combination of compulsory schooling and public-school-only funding.
Represented by the organization Hamburger founded, they contend that Nebraska abridges their First Amendment right to educate their own children.
That argument should sound familiar. In 2021, Hamburger wrote in the Wall Street Journal that government schools are unconstitutional because they “unduly pressure parents into substituting their own speech when it comes to their children for government speech they disagree with.”
Education, he noted, “consists mostly in speech,” and parents—not bureaucrats—possess the liberty to decide what their children hear. The public-school system, “by design, pressures parents to substitute government educational speech for their own,” Hamburger said. Government education, he added, is a “benefit” tied “to an unconstitutional condition.”
Nebraska has now given that theory a live defendant.
State law requires parents to enroll children in a “public, private, denominational or parochial school,” or to homeschool them. Fail to obey, and you face a Class III misdemeanor: up to three months in jail and a $500 fine.
Yet the only education the state actually funds—roughly $19,000 per pupil statewide in 2024-25, about $17,400 in Lincoln—is available to families who surrender their children to government classrooms and government viewpoints. Leave, and you keep paying for the system you fled.
That is not a choice, according to the plaintiffs. It is coercion masquerading as a public service. And considering the role education plays in shaping the hearts and minds of children, the issue is far more critical than other government activities.
The Jacobsen and Menter families know the cost. Both previously enrolled older children in Lincoln Public Schools, then pulled them out rather than accept indoctrination that contradicted their values.
Jacobsen has four school-age children; some are now in private school, one is homeschooled online, and one remains in the district. The Menters homeschool.
Joanna Menter is not employed outside the home so she can teach her own children. A full private-school course through high school in Nebraska, meanwhile, can exceed $100,000. In other words, homeschooling costs families in terms of lost income as well as cash.
Despite the added costs, those same families are still forced to finance the very “educational speech” they rejected by removing their children from the system.
Jacobsen has described the problem without euphemism: schools “push sexual things on kids, which is child abuse and indoctrination,” he explained. They also routinely put down police and ICE officers, traffic in “race-baiting narratives,” and present the United States as “the worst ever.”
Those are not incidental disputes over textbooks. They are competing sermons about God, sex, nation, and the human person. But only one side gets to have the tax collector force everyone to pay to propagate its view.
NCLA General Counsel Zhonette Brown put the constitutional point cleanly: “Education happens through speech: Every lesson taught, book selected, idea discussed, and value emphasized conveys a message to the child. And parents, not the government, have the legal duty and the primary right to provide or select the educational speech their children receive.”
Litigation counsel Christian Clase added the doctrine that should decide the case. “The unconstitutional conditions doctrine exists to stop the government from doing indirectly what it cannot do directly,” he said. “Nebraska cannot ban parents from teaching their own children their own values—so instead it penalizes them for exercising that recognized right.”
Hamburger himself said the state “presses parents to give up their own choice of educational speech and to substitute, not just government teaching, but government teachings.”
The precedents cited by the plaintiffs are well known to lawyers and judges. The theory is novel: The Supreme Court has never held that the Constitution requires states that fund government schools to provide equivalent educational benefits to parents who reject government educational speech. But the plaintiffs argue that several established lines of Supreme Court precedent lead directly to that conclusion.
Meyer v. Nebraska (1923) recognized the parent’s “natural duty” to educate. Pierce v. Society of Sisters (1925) smashed Oregon’s attempt—driven by Democrats, Free Masons, and the Ku Klux Klan—to force every child into government indoctrination centers. West Virginia v. Barnette forbade official orthodoxy in the classroom. Wooley v. Maynard barred the state from compelling a message. Perry v. Sindermann forbade dangling a public benefit on the surrender of speech. Even recent parental-rights rulings, including Mahmoud v. Taylor, reinforce that the state does not own the child’s mind.
Hamburger’s 2021 essay also recalled the sordid origins of the government-school project. Controversial figures seeking to remake children in their own image were behind the push. In Oregon a century ago, the purpose was forcible conversion by capturing the young. The Supreme Court protected private schools in Pierce. It did not, however, dismantle the funding trap that still punishes parents who use them.
Hamburger is right that the freedom belongs to all parents, not only the religious, and that free speech “more completely explains this educational liberty.”
He is less reliable on the history of Horace Mann, often described as the founder of America’s government-school system. Mann was not a Protestant crusader seeking to convert Catholic children. In fact, he rejected orthodox Christianity in favor of Unitarianism and secular utopian schemes that have proven disastrous.
The modern government school is the heir of that utopianism, not of historic Christian catechesis.
Other serious lawyers have reached the same destination — government schools are unconstitutional — by a different road. Former Attorney General Bill Barr, for example, argued that the government “education” system’s hostility to Christianity itself may render the whole arrangement unconstitutional.
Liberty University law professor Jeffrey Tuomala has gone further, contending that tax-funded schooling is a violation of religious liberty and the establishment of religion, as prohibited by the Constitution.
Civil government has no jurisdiction over the mind, he explains. And yet, government schools have become “the chief means by which all levels of civil government have established religion in the United States,” said Tuomala in an exhaustive legal study of the issue.
Only privately funded schools and churches fit the First Amendment’s actual design, he argues, citing numerous constitutional framers and their arguments about religious liberty.
The Nebraska plaintiffs are not asking the court to write a voucher statute or to micromanage Lincoln’s curriculum. Instead, they seek a declaration that the present scheme abridges free speech, an injunction against conditioning educational benefits on surrender of parental speech, and damages equal to the per-pupil subsidy they are forced to fund until the children graduate, earn a GED, or turn 19. The legislature can then decide how to stop violating the Constitution.
Of course, vouchers are the fashionable answer. Barr and Hamburger have both gestured toward tax-funded choice. But government money is never truly free. Attach the Treasury to private and home education and the regulators will follow, turning independent schools into replicas of the indoctrination centers families are fleeing.
Hamburger’s better suggestion—tax exemptions for dissenting parents—would let families keep more of what they earn without handing the administrative state a new leash. If that can be done without compromising the independence of private schools and homeschooling, it would accelerate the stampede already underway.
Regardless of what the Nebraska court rules in this case, government schools remain a bad and unbiblical idea. Scripture assigns the formation of children to parents, not to Caesar. A century and a half of compulsory, tax-funded schooling has produced functional illiteracy, official hostility to the faith that built the West, and a generation catechized in race obsession and sexual confusion.
As regular readers of The Newman Report and this writer’s books know well, that is not an accident. Rather, it is what happens when a deliberate plan to transform society uses government to usurp the place of fathers and mothers.
If declaring the scheme unconstitutional is what it takes to stop compelling parents to pay for the corruption of their own children, Nebraska’s court should say so. The rest of the country should be next. Today would be a good time to start.
But unleashing a new “voucher” program will not solve the problem. It may make it worse by entangling private and home education with government. Only a full restoration of parental responsibility over children’s education will do.
