Talking about this on American Family Radio, legal expert Jenna Ellis and attorney Mike Donnelly tackled the new challenge backed by the New Civil Liberties Alliance, which argues that compulsory school attendance and funding laws violate the First Amendment.
Donnelly explained the novel legal theory frames classroom instruction directly as speech.
"What is education? What do kids listen to when they're in the classroom? They're listening to speech all the time," he noted. "Education is really speech... so why should this not come under the First Amendment?"
Nearly 30 states offer some form of taxpayer-funded assistance, scholarships, or tax credits for private K-12 education.
The lawsuit, Jacobsen v. Spellerberg, targets Nebraska's system in which families pay taxes into public schools — receiving roughly $19,000 per student annually — yet receive no state educational benefits if they choose private options or homeschooling.
Plaintiffs claim that because alternative options require families to pay completely out of pocket while still paying local and state taxes, the state is penalizing parents who exercise their right to direct their children's education away from the public school system's "government messaging."
Jenna Ellis highlighted how compelling parents to fund specific viewpoints under threat of criminal penalties pushes beyond standard government authority.
"Why am I funding a specific viewpoint under the theory that this is a government benefit? Add on the layer … that parents are compelled by the government to not only fund those viewpoints, but then there's a criminal penalty if they don't actually send their kids to hear from the state," she said.
While school choice advocates hope the case opens a path to universal funding vouchers, Donnelly pointed out that appellate courts are more likely to strike down compulsory attendance structures than dictate legislative budgets.
The case is expected to work its way through state courts and potentially reach the U.S. Supreme Court.
