A group of parents are making the case that government indoctrination in public schools is inevitable, but it is only constitutional if the state also provides equal access to different viewpoints through taxpayer-funded school choice.
An obscure lawsuit filed by three parents and the New Civil Liberties Alliance in the District Court of Lancaster County, Nebraska, could have ripple effects far outside the Cornhusker State.
Unlike most suits involving parents and education, this one is not primarily a fight over a particular curriculum or parental rights to direct the upbringing of their child’s education.
Instead, this suit argues that the state’s compulsory school requirement, absent any school choice, violates parents’ right to freedom of speech and amounts to viewpoint discrimination. This furthers the government’s control on the education of children by way of financial burden or the threat of imprisonment.
The complaint states,
“Formal education occurs through speech. Teaching— including the ideas taught, the texts selected, the hypotheticals used, the values emphasized, and the behavior incentivized— takes place via oral or written words, images, music, and expressive conduct.”
The plaintiffs argue that a parent’s choice in how their child is educated also chooses what messages they want conveyed in that education, making it an exercise of that parent’s educational speech, which is protected by the First Amendment.
But education in public/government schools “consists primarily of government supplied, selected, and reinforced educational viewpoints,” the complaint explains, adding,
“When parents send their children to a government school, the government’s preferred speakers instruct the child using a government’s choice of curricula, standards, codes of conduct, textbooks, lessons, and other applicable resources or rules. The messages are chosen or influenced by state legislatures and departments of education, school boards, and other government entities or employees. The speech in government schools therefore inevitably advances values and ideas preferred by the government. Government schools do not merely teach students how to think; they teach them what to think.”
It is on this point that the suit deviates so conspicuously from most other parental lawsuits regarding education.
While most parents challenge a school’s indoctrination of students with the government’s viewpoint as a violation of the parent’s free exercise of religion or parental authority, this suit takes a far different stance. They argue that it’s permissible for government schools to indoctrinate students with the government’s approved view, but only if the government doesn’t compel that education.
In Nebraska, there is no choice. It’s the government’s way or no way. A parent who fails to provide a government-approved education to their child is guilty of a Class III misdemeanor, a crime punishable by three months in prison, a $500 fine, or both.
Public education is compelled in Nebraska because it has absolutely no publicly funded school choice programs (although Gov. Jim Pillen, R, recently opted the state in to a new federal tax credit scholarship program beginning next year).
So if parents find the government’s viewpoint pushed in schools to be opposite their own, the parents must either concede their right to educational speech by accepting the indoctrination of their child or pay out of pocket for private school.
In Nebraska, it costs an average of over $7,000 annually to send a child to private elementary school and nearly $11,000 for private high school.
The other option is homeschooling, which forces one parent to remain home and forgo a second income.
In either case, the parent misses out on the public benefit of education funded by their own tax dollars unless they assent to the government’s viewpoint. Nebraska spends over $19,000 per student each year and has a budget of $2 billion for schools, but those funds are awarded entirely to government schools.
This combination of factors: compulsory schooling, government indoctrination in public schools, and the absence of any other option to take advantage of a public benefit create what the plaintiffs say is a violation of various Supreme Court precedents handed down in such landmark cases as Brown v. Board of Education, Trinity Lutheran v. Comer, and Mahmoud v. Taylor.
Quoting Brown, New Civil Liberties Alliance states, “the opportunity of an education…where the state has undertaken to provide it, is a right, which must be made available to all on equal terms.”
In Mahmoud, the Supreme Court went a step further, stating,
“…government cannot condition the benefit of a free public education on parents’ acceptance of instruction violating their First Amendment right to free exercise of religion. Defendants’ funding of only their educational viewpoints is particularly problematic here because Defendants compel Plaintiffs, on pain of criminal punishment, to provide educational speech. Plaintiffs do not have the legal option (or the desire) to avoid government pressure by merely refraining from educational speech or not undertaking the activity associated with educational benefits. In no other context does the government require one to pay to avoid repeated and prolonged submission to government orthodoxies.”
The Nebraska lawsuit doesn’t demand that the court system create a particular remedy for their injuries. Instead, it only states that the current scheme is unconstitutional and asks for an injunction and for plaintiffs to be awarded damages “equal to the per pupil value of funding or other benefits those Defendants collect or provide for the benefit of the Lincoln Public Schools, multiplied by the number of Plaintiffs’ school-aged children, with such damages continuing until the unconstitutional scheme no longer exists, such children graduate from high school, obtain a GED, or turn 19 years of age, whichever comes first.”
In other words, force the school system to give parents the money they need right now to provide their child with an education that teaches their views, not the government’s.
In a press release, NCLA said that the speech claim in this case has the potential to finally fulfill the promise of equality first promised in the 1954 case of Brown v. Board of Education of Topeka, which relied on the Equal Protection Clause to end racial segregation in public schools.
Unfortunately, the NCLA argues, “[Brown] did not end educational inequalities. Nearly three-quarters of a century after Brown, it is time to further break down the barriers to education for all children, whatever their race and whatever their parents’ financial ability — and that includes an education free of government indoctrination.”
This lawsuit finally recognizes the reality that many Christians have long understood: There is no such thing as a neutral belief system or a neutral school. A secular education is not neutral; it imparts a particular ideological belief system.
When a school teaches that every living thing evolved from nothing, it is taking a stance on the supremely important issue of human origin. When a school says that everyone must accept a person’s chosen gender identity as absolute truth, it is pushing ideology, not science.
Public schools are not neutral, and though they could be less obvious about their beliefs than they are currently, neutrality was never an option.
Just as every law makes a moral statement, every lesson and every book conveys a position on every topic. The plaintiffs’ approach to that reality is to allow the government to have schools where its approved viewpoint is taught — but only if parents have an equal opportunity to use their tax dollars at a school that teaches a different viewpoint.
How far this case will get in the judicial system is uncertain, but if it reaches the U.S. Supreme Court, it could have lasting implications for the future of America’s children and the direction our country ends up following.
That’s because if the justices agree that compulsory public education violates the First Amendment, then this suit could result in the creation of school choice programs across the country, paving the way for parents to finally liberate their children from failing public schools more concerned with promoting leftist policies than pedagogy.
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