Nebraska
The Nebraska Constitution’s Blaine Amendment was amended in the 1970s to prohibit appropriations “to”—rather than “in aid of”—sectarian schools. In the years since, the Nebraska Supreme Court’s decisions have made clear that all forms of educational choice will pass state constitutional muster. For example, in Father Flanagan’s Boys Home v. Department of Social Services the Court allowed the state to contract with private schools for the education of children with special needs. And in Cunningham v. Lutjeharms the Court upheld a textbook loan program. As a result, Nebraska policymakers were already free to enact any type of educational choice program. The decision in Espinoza simply reinforces Nebraska’s jurisprudence by prohibiting states from excluding religious options for families in generally available scholarship programs.
Constitutional Provisions
Compelled Support Clause
“No person shall be compelled to attend, erect or support any place of worship against his consent .…” Nebraska Const. Art. I, § 4.
Blaine Amendment
“1. Notwithstanding any other provision in the Constitution, appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof; Provided, that the Legislature may provide that the state or any political subdivision thereof may contract with institutions not wholly owned or controlled by the state or any political subdivision to provide for educational or other services for the benefit of children under the age of twenty-one years who are handicapped, as that term is from time to time defined by the Legislature, if such services are nonsectarian in nature.
2. All public schools shall be free of sectarian instruction.
3. The state shall not accept money or property to be used for sectarian purposes; Provided, that the Legislature may provide that the state may
receive money from the federal government and distribute it in accordance with the terms of any such federal grants, but no public funds of the state, any political subdivision, or any public corporation may be added thereto.
4. A religious test or qualification shall not be required of any teacher or student for admission or continuance in any school or institution supported in whole or in part by public funds or taxation.” Nebraska Const. Art. VII, § 11. 1
Relevant Case Law
Father Flanagan’s Boys Home v. Department of Social Services, 583 N.W.2d 774 (Neb. 1998)
The Nebraska Supreme Court rejected the state’s attempt to invoke its Blaine Amendment to avoid paying private schools for educating special needs students under a contract signed by the state. The Court held that payments under such a contract are not the type of appropriations prohibited by Nebraska’s Blaine Amendment.
Cunningham v. Lutjeharms, 437 N.W.2d 806 (Neb. 1989)
The Nebraska Supreme Court held that lending textbooks to private schools does not violate the First Amendment’s Establishment Clause because it merely makes available to all children the benefits of a general program to lend schoolbooks free of charge. The Court found that the textbooks were secular in nature and the program would not require excessive monitoring.
State ex rel. Creighton University v. Smith, 353 N.W.2d 267, 272 (Neb. 1984)
The Nebraska Supreme Court held that the fact that a private institution derives indirect benefits from a contract with the state does not “transform payments for contracted services into an appropriation of public funds proscribed by article VII, § 11, of the Nebraska Constitution [the Blaine Amendment].” The Court ordered the state director of health to consider an application for a public research grant filed by a religious university. The director had previously refused, citing the Blaine Amendment.
State ex rel. Bouc v. School District, 320 N.W.2d 472 (Neb. 1982)
The Nebraska Supreme Court held that any benefit accruing to a private school as a result of publicly supported busing of its students is incidental and therefore not a violation of Nebraska’s Blaine Amendment.
Lenstrom v. Thone, 311 N.W.2d 884 (Neb. 1981)
The Nebraska Supreme Court held that nothing in the Nebraska Constitution prevents the state from creating a scholarship program to provide financial assistance to students attending public and private postsecondary educational institutions in Nebraska.
Gaffney v. State Department of Education, 220 N.W.2d 550, 557 (Neb. 1974)
Interpreting the Nebraska Blaine Amendment when it still prohibited appropriation of public funds “in aid of” any private school (language that has since been removed), the Nebraska Supreme Court held that a statute requiring the loan of textbooks by public schools to non-public schools for students in grades seven to 12 was unconstitutional. Giving free textbooks “lends strength” to the school that, in turn, “lends strength and support to the sponsoring sectarian institution.”
State ex rel. Rogers v. Swanson, 219 N.W.2d 726 (Neb. 1974)
Striking down a student aid statute, the Nebraska Supreme Court held that using public money to fund a tuition grant program violated the state’s Blaine Amendment. According to the Court, no attempt was made to restrict the use of funds and, as a result, some of the funds invariably paid for sectarian instruction.
State ex rel. Freeman v. Scheve, 93 N.W. 169, 172 (Neb. 1903)
The Nebraska Supreme Court held that reading from the Bible does not constitute sectarian instruction. Thus, when public school teachers require Bible reading, public funds are not going to sectarian institutions in violation of the precursor to the state’s current Blaine Amendment.
Existing Private School Choice Programs
None
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
