The story: The nation’s education choice movement suffered its second legal defeat in as many days after the Nebraska Supreme Court on Friday put the fate of a new school choice program in the hands of voters on Nov. 5.
What it means for families: The ruling and the legal tactics on both sides that led to it, throw the fate of 2,500 low-income families participating in a scholarship program that lawmakers approved to start in 2023 into uncertainty until after the November election.
Zoom in: In its ruling, the court rejected supporters’ arguments that the bill, LB 1402, which lawmakers passed as a strategic move to replace a previously approved program and keep it off the ballot, was a state appropriation and therefore exempt from a referendum. The bill was concurrently approved with LB1402A, a separate but related appropriations bill that set aside $10 million to pay for the program. However, education choice opponents purposely omitted the appropriations bill when crafting the language for the referendum. Without LB1402A, the court said, the bill was not an appropriation nor exempt from referendum.
“L.B. 1402 makes no appropriation at all, the Secretary of State has no duty to withhold the referendum based on an alleged violation of article III, § 3.” the supreme court opinion said.
Catch up quick: Nebraska lawmakers approved the state’s first school choice program in 2023. It was funded by tax credits and available only to low-income families. Choice opponents fought back by gathering enough signatures to put it on the ballot for repeal. (Nebraska law allows this for bills that do not involve appropriation.) State Sen. Lou Ann Linehan, a longtime education choice champion, then moved to block the referendum by sponsoring a bill for a second program that would repeal and replace the tax credit program. Opponents gathered enough signatures to let voters decide whether to repeal that bill. A scholarship parent then filed a lawsuit asking the state Supreme Court to keep the second bill off the ballot, arguing that it was exempt because it was intertwined with a state appropriation on a second bill. Opponents left the spending bill off the petition. The high court said because the spending bill wasn’t included, the measure wasn’t exempt from a referendum.
What they’re saying: “This ruling puts Nebraska school choice in jeopardy, which is unfortunate: Nebraska families need more power, and the state more freedom, Neal McCluskey, director of Cato Institute’s Center for Educational Freedom, posted on X.
A rough week for ed choice: The Nebraska high court ruling comes two days after the South Carolina Supreme Court tossed out the state’s fledgling education savings account program as unconstitutional. The court’s majority said an education savings account program violates the state constitutional ban on direct aid to private schools even though funds go to families who make individual choices. The decision leaves nearly 3,000 families scrambling to find options as the state’s education department halted tuition payments to private schools.
