First Amendment becomes latest battleground in fight over educational freedom 

A new free-speech case could have far-reaching implications for educational freedom, potentially affecting families beyond Nebraska, where the case was filed.

While landmark education cases such as Brown v. Board of Education and Pierce v. Society of Sisters addressed racial segregation and parental rights, respectively, Jacobsen v. Spellerberg rests on the First Amendment’s protection of free speech.

Philip Hamburger, head of the New Civil Liberties Alliance and author of the legal theory behind the case, said the free-speech argument is even stronger than the due-process argument at issue in Pierce, the 1925 case in which the Supreme Court recognized parents’ liberty to direct the education and upbringing of their children.

Because education “is almost entirely speech” and the government requires parents to educate their children but subsidizes only one way of doing so – public schools – parents either must pay a high price to opt out or surrender their right to educate their children according to the speech they see fit, Hamburger told Heartlander News.

“If parents, like anyone else, have freedom of speech, that’s most centrally important in choosing which educational speech your children get. And unfortunately, the government in the public schools is coercing parents, and that’s the real problem here – it’s pressuring parents to take government speech in place of their own.”

Nebraska has “a double-barreled element to the speech violation,” he said.

“On the one hand, one’s being forced to give up one’s own educational speech. And in addition, this sort of compelled speech problem, you’re being pressured to adopt the government’s educational speech. So this is about the loss of your own educational speech and imposition of government speech.”

Building on Brown

The case builds on the principle in Brown, which held that state-imposed racial segregation in public schools violated the Equal Protection Clause of the 14th Amendment. The case also held that public education is an opportunity that can’t be denied on grounds that violate the Equal Protection Clause.

“The structure of that argument applies here,” Hamburger said. “It’s an opportunity, a benefit from government that cannot be denied on the basis of giving up your free speech rights. The government cannot give you money on the condition you give up your speech rights.

“It’s a complicated area of law, but it’s quite clear that there’s a lot of pressure here to give up your own educational speech and take government educational speech at such an important financial decision.”

Nebraska is one of just three states without charter schools and one of 16 states without a private school choice program, although Gov. Jim Pillen has opted the state into the new federal school choice program, which takes effect in January.

The Nebraska case was filed on behalf of two families that desire to educate their children according to their values, which include supporting sex-segregated bathrooms and calling people by their biological pronouns, things the school system opposed. Hamburger said, however, that the free-speech argument applies to people with different value systems as well as to the religious and nonreligious alike.

“It seems to me that all parents, be they left or right, religious or not religious, one religion or another, whether they can declare themselves a Darwinist or atheist, they all have a right to educate their children according to their choice of speech. And to be forced to use government speech instead of one’s own is a sobering problem for all parents, regardless of their point of view.

“That’s important in two ways. One, it points to the seriousness of the problem. And second, it means that all parents of all perspectives have an interest in the success of this. There are parents who are disappointed with the religious character of a public school, if they protest the Ten Commandments being put up. There are parents who protest the secular character of a school. Perhaps they all equally have freedom of speech. And so that’s what’s at stake here.”

The suit seeks a declaration that the current system violates parents’ free-speech rights and an injunction barring the state from offering education on the condition that parents surrender their free-speech rights. It also seeks damages “equal to the per pupil value of funding or other benefits” provided to public school students in Lincoln, Nebraska, where the families reside. The state spends more than $19,000 per pupil annually.

Hamburger wouldn’t speculate on a timeline for the case, which was filed in Lancaster County District Court Aug. 13, or whether it could reach a higher court through an appeal. But he said freedom of speech is guaranteed in the Bill of Rights, predating the modern public school system.

“Freedom of speech is simply more fundamental than the subsequent traditions that are developed,” he said. “The founders did not have public schools. The founders had all sorts of private education within their towns, so their ministers taught within the towns. And these schools were not these regimented public schools in which one was basically being pushed into. So our greatest generation managed just fine without public schools.”

Public schools also haven’t lived up to their promise, Hamburger said, calling most of them “a disappointment.” He cited the two-tiered educational system in the country between public and private schools, adding that “for most children, public schools are not the best form of education.”

Zhonette Brown, an NCLA attorney working on the case, said she hopes the case “improves parents’ ability to choose the educational speech that’s delivered to their children,” and requires the state to “put parents who choose to exercise their constitutional right on a level playing field with those who are happy with public school.”

“It’s not about eliminating or having any detriment to public school,” she said on a recent podcast. “It’s about giving parents options for the messages that are provided to their kids, putting them in as good a position as people who send their kids to public school.”

While some may be uncomfortable at the thought of declaring the current funding model unconstitutional, Hamburger said American principles favor free speech over the public school establishment.

“Our traditions are those of freedom, not of coerced speech, and no matter how long the tradition (of public schools) since the 1840s, there’s a longer tradition going back to 1791, the Bill of Rights and the freedom of speech. And that older tradition of freedom of speech is much more important than any particular educational institution.”