In novel lawsuit, Lincoln families challenge state education funding

Justin Jacobsen and Timothy and Joanna Menter sued state and local education leaders, including the state Commissioner of Education, State Board of Education president, Lincoln Board of Education president, the City of Lincoln, Lancaster County, Lincoln Public Schools, Attorney General Mike Hilgers and others.

Jacobsen has four school-aged children, one of whom is an LPS student. The others are homeschooled or attend a private school. The Menters currently homeschool their three school-aged children.

Lincoln attorney Dick Clark, who is local counsel in the case, said the lawsuit is based on Columbia Law School Professor Philip Hamburger’s 2022 abstract titled: “Education Is Speech: Parental Free Speech in Education.”

“This is the first attempt nationwide at taking the legal theory and trying to put it into action,” he said Friday.

The New Civil Liberties Alliance, a national group representing Jacobsen and the Menters, was founded by Hamburger.

“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,” NCLA attorneys said.

Zhonette Brown, one of the NCLA attorneys, said the nature of public education has changed over time, with schools more willing to take stances on political issues.

“It's not chemistry and algebra,” Brown said. “It's a lot more that get inculcated through various policies that apply, whether you're on the school bus, in the classroom, on the athletic court ... so things have changed and evolved over time. This theory then, sort of, rises to match that.”

When asked why opting out of a specific classroom wouldn't satisfy parents' rights, NCLA attorney Christian Clase said the lawsuit is focused on a larger issue of the government's message in schools.

“It's bigger than discrete lessons or specific examples that are happening in particular classrooms,” Clase said. “The nature of the parents' complaint really have to do more with the sort of values and norms and things like that that pervade the environment.”

The lawsuit says while Nebraska law requires parents to educate their school-aged children or to face a Class III misdemeanor, the state only supplies an education if parents enroll children in public schools “and accept the government’s messaging, even when such messages contradict the parents’ values.”

Last year, the Legislature appropriated $2 billion to fund government schools.

During the 2024-2025 school year, the state paid, on average, $19,038 per student per year, and at LPS around $17,432.

“When parents fulfill the educational mandate but exercise their right to educational speech by homeschooling or by choosing a private speaker, absent special and rare circumstances, the parent bears the entire cost of that education,” NCLA attorneys said in the lawsuit.

They said parents who choose to homeschool or send their children to private schools bear the entire cost of that education, which can be steep, and that Nebraska ranks among the worst in the country for educational choice.

The attorneys are asking a judge to bar the state from imposing the “unconstitutional condition on educational benefits.”

“Plaintiffs do not seek to end, defund, or influence public schools. They seek only a level playing field for their educational speech,” the NCLA said in a news release.

The suit targets the Nebraska Department of Education’s encouragement of “Social and Emotional Learning Practices,” which it equates with DEI (diversity equity and inclusion), and on LPS’ emphasis on equity.

NCLA attorneys pointed to instances where one of Jacobsen’s daughters was expected to use LGBTQ-affirming pronouns at school and encouraged to remove herself from the girls bathroom if she felt uncomfortable sharing it with transgender girls who are biologically male.

One of Menter’s children “became very forceful in suggesting that her parents reduce their driving because the school had successfully inculcated the child with the idea that carbon-dioxide was a pollutant that would destroy the planet.”

“Some of the above government messages and practices may be correct. The point is not that government schools should be apolitical or alter their messages, but instead that government education conveys ideological and value-based orthodoxies that parents are pressured to accept as their own educational speech or pay to avoid,” NCLA attorneys wrote.

LPS spokesperson Mindy Burbach said in a statement the district learned of the lawsuit Thursday, the first day of the school year for most grade levels.

“At Lincoln Public Schools we will continue operating each day within federal and state requirements while working towards our mission of preparing all 42,000+ students for successful careers, lifelong learning, and civic engagement. We are unable to provide additional comments during ongoing litigation,” Burbach said in the statement.