Constitutional Challenge to Compulsory Education is Unconvincing
A group of parents is suing state and local officials in a Nebraska court, arguing that the state’s compulsory education law effectively forces them to accept government messaging by enrolling their children in public schools or pay steep private school tuition to escape it. This financial pressure to opt in to public education, the parents say, amounts to an unconstitutional abridgment of free speech.
Represented by the New Civil Liberties Alliance, Justin Jacobsen and Timothy and Joanna Menter, parents in the Lincoln Public Schools district, are challenging Nebraska’s compulsory education law and its public-school-only funding model, a combination which they say closes the door to school choice for families who cannot afford private school. The lawsuit argues that because parents have a First Amendment right to provide educational speech to their children, the Constitution entitles them to choose their children’s school without undue financial pressure. By the plaintiffs’ reasoning, no educational system short of universal school choice would satisfy this constitutional requirement. Consequently, they contend that Nebraska must make every K-12 student eligible for publicly funded assistance to attend private schools, homeschool, or alternative learning environments to respect parents’ right to educational speech.
While the case raises an interesting debate about the limits of the First Amendment’s free speech protections, the plaintiffs’ argument rests on a questionable premise: that exposure to government-selected viewpoints amounts to compelled speech and limits parents’ ability to educate their children according to their own beliefs.
The lawsuit claims that “education in public/government schools consists primarily of government supplied, selected, and reinforced educational viewpoints,” and that “government schools do not merely teach students how to think; they teach them what to think.” While public schools can advance particular viewpoints, they do not necessarily compel children to accept them. After all, it is unreasonable to expect an educational system that relies so greatly on the spoken word of countless teachers to remain neutral on every issue. Public schools, therefore, have a responsibility to allow students to question the ideas they encounter in the classroom.
The Supreme Court has long held that requiring students to adopt or profess government viewpoints as their own is unconstitutional, recognizing that the First Amendment not only protects the right to speak freely, but also the right not to speak. The plaintiffs do not make a strong case that Nebraska public schools violated the latter right, offering scant evidence that students were forced to accept objectionable teachings. Both the Jacobsen and Menter families withdrew most of their children from Nebraska public schools after learning of instruction and classroom displays they found inappropriate. The Menters’ children, for example, were allegedly exposed to a sticker displayed on classroom doors that they claim promoted “alternative sexuality and transgendered ideologies.” Without knowing what the sticker said or looked like, I cannot conclude that its display compelled students to accept a belief, and I am equally skeptical that any sticker would be capable of doing so. The Menter children were free to disagree with the sticker’s message, privately or publicly, and their parents were free to condemn its message at home.
The Supreme Court’s 1925 ruling in Pierce v. Society of Sisters, which struck down an Oregon law requiring all children to attend public rather than private or parochial schools, established that parents have a constitutional right to make fundamental decisions about their children’s education. I do not dispute that the Constitution protects this right; I dispute the notion that parents relinquish it by enrolling their children in public school.
Like many other states, Nebraska gives parents substantial rights to monitor and participate in their children’s public education. Nebraska law directs every public school district to adopt a parental involvement policy outlining procedures for parents to review curricula, testing materials, classroom activities, and textbooks. The law further requires each district’s policy to specify when and how parents can excuse their children from instruction, testing, guest speakers, or other educational experiences they find objectionable. Laws like these undercut the plaintiffs’ argument that enrolling a child in public school abridges or severely restricts educational speech. While parents cannot police every idea taught, text assigned, or image displayed in their child’s classroom, they can, in many instances, remove their children from instruction they object to. In other words, enrolling a child in public school may limit parental control over every classroom interaction, but it does not remove parents’ ability to provide their own educational speech.
A careful review of Nebraska’s education laws and the scope of the First Amendment’s protections casts considerable doubt on the argument that compulsory education is unconstitutional when combined with public-school-only funding. Based on the evidence presented here, parents’ constitutional right to choose their child’s educational path does not imply a right to publicly funded school choice.
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Quilia, Unsplash License, via Unsplash
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