Public Schools are unconstitutional- courts might decide

 Public Schools Unconstitutional??

A court hearing in Nebraska will consider the position of a Columbia University law professor who believes public schools to be unconstitutional.  His position is that the First Amendment guarantees free speech.  Since he believes education is primarily speech, parents should have the right to exercise authority over the speech their children hear in school.   He continues to argue that families must accept the government messaging of public school or pay a steep price to provide a private education for their children.

Parents in Lincoln Nebraska are challenging the State’s combination of compulsory education and public-school-only funding.  Nebraska law requires parents to enroll their children in a “public, private, or parochial” school.  Families may also home-school.   Failure to do so could result in up to 3 months in jail or a $500 fine.

The problem, as these parents see it, is that public funding of around 19k is spent on kids in public schools but not a dime of public money goes to the other options.  Nebraska ranks near the bottom of the 50 states for other than public school choice options.  Parents who opt out of the public school system bear the full cost of the private school they might select.  Both of the families in the lawsuit have withdrawn their children from the public schools because they do not approve of the speech to which their children would be exposed.

The case is based on 3 issues:

Requiring children to attend a government funded school abridges the free -speech rights of the parents.

The same requirement also abridges the Nebraska Constitutions free-speech clause which closely mirrors the federal constitution.

Thirdly, the state may not condition a valuable public benefit on the surrender of a Constitutional right.

The point is that the state requires a compulsory mandate then only funds the one that reflects the government’s point of view.  Their argument is that the government has no compelling interest in funding public education.  The plaintiffs are not challenging the content of any curriculum, they are challenging the process and want the money to follow the child so that parents could direct those funds to any educational system the parents preferred.

The rationale of the plaintiffs totally ignores the stake that the entire society of a democracy has in an educated electorate.  That is the premise behind the funding of free public education, so that the folks who get to vote will be educated sufficiently to make an informed choice.   It is also why folks who have no children, or whose children have long since left public schooling are still taxed to provide for the public schools.   If only those people who had kids in school paid for schools there would be a great deal less money in the system. Another point is that once a child hits 18, they are emancipated and could still be in school.  Do they get to cede their rights to hear whatever speech they choose to their parents?

It will be interesting to see how this theory plays out in the courts.