School Choice

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.

J.D. Tuccille | 8.17.2026 7:00 AM

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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.

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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........

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