By Philip Hamburger
Friday, August 14, 2026
Parent Justin Jacobsen has had it with Lincoln,
Nebraska’s public schools. He’s therefore paid tens of thousands of dollars to
educate his youngest children outside the government monopoly. Now, he’s taking
legal action against state officials, asking the court to declare
unconstitutional the state’s pressure to send his kids to public schools.
Today, Jacobsen filed suit in Lancaster County, Nebraska,
District Court to preserve his freedom of speech in educating his children.
This case heralds a new direction in constitutional jurisprudence that seeks to
secure not only parents’ speech rights but also better education for children.
Instead of teaching reading, writing, and math skills,
public schools are “push[ing] sexual things on kids, which is child abuse and
indoctrination,” Jacobsen says. They’re inculcating politically charged
messages in students, “put[ting] down police and ICE officers.” As a father who
just wants his kids to get a good education, he is “exhausted by the
race-baiting narratives” and is troubled by school messaging depicting the
United States as “the worst ever.”
Americans disagree about such issues, and parents have a
right to make their own choice of educational speech for their children. That’s
why Jacobsen objects to Nebraska pressuring parents to adopt government
education and consequently government viewpoints for educating their kids. And
it’s why he’s teamed up with the New Civil Liberties Alliance, where I am the
CEO, to bring his legal challenge.
Most cases defending parental choice in education focus
on parental rights (as in Pierce
v. Society of Sisters) and religious liberty (Mahmoud v.
Taylor). Those cases don’t center on speech. But all education is
speech. That means all parents have a freedom of educational speech in raising
their children — a freedom to choose the schooling (whether state, private, or
home schooling) they want for their children. When states simultaneously
require parents to educate their children and offer cost-free education only at
government-run schools, they make state instruction compulsory, unless parents
pay to escape the indoctrination. That’s Jacobsen’s problem.
In addition to this direct coercion, Nebraska conditions
its education funding on parents’ sending their kids to state schools,
abandoning their own educational speech and subjecting their children to state
speech. Many parents can’t afford to opt out of the inculcation of government
viewpoints and so end up submitting.
Of course, states don’t have to fund education, public or
private. But if they press parents to forsake their own speech and submit their
children to government speech, they violate the First Amendment and Nebraska’s
free-speech clause.
Brown v. Board of Education (1954) is a famous
equal protection case, but it’s also a conditions case: Brown declared
that “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.”
Public education, in other words, must be available without violating the
Fourteenth Amendment — to which it need only be added that such education must
be available without the First Amendment.
A state cannot pressure parents, either directly or by
condition, to give up their educational speech or to adopt government
educational speech. Although this has always been true, it’s especially
important when states, such as Nebraska, introduce overtly ideological
teachings.
States can avoid this speech danger in several ways,
including vouchers. The point of the suit, however, isn’t to dictate any
particular solution, but rather to vindicate parents’ free speech. Once the
court has declared that the current system unconstitutionally pressures parents
to subject their children to government educational speech, the state
legislature can consider whether to adopt vouchers or other policies. At this
stage, the point is that the current Nebraska system, like so many in this country,
unconstitutionally pressures parents to abandon their choice of educational
speech and to adopt government views.
The speech claim in this case has the potential to
fulfill Brown’s promise of equality. That decision relied on the equal
protection clause to end racial segregation in public schools. But it 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.
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