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

Vouchers: Yes

Tax Credits: Yes

Existing Private School Choice Programs


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.

Analysis and Recommendations

Both tax credit and voucher programs are school choice options for Nebraska. Its constitution contains a Blaine Amendment that was changed in 1972 and 1976, which created a large divide in the state’s case law. As altered, it prohibits only appropriations “to” rather than “in aid of” sectarian schools. Applying the updated Blaine Amendment, the Nebraska Supreme Court has held that the state can supply textbooks to private school students at public expense and can contract with religious schools without violating the Nebraska Constitution. School choice programs intended to help students and having only incidental effects on the schools they attend are therefore likely to be constitutional.

Model Legislation: Education Savings Account, Parental Choice Scholarship Program (Universal Eligibility), Parental Choice Scholarship Program (Means-Tested Eligibility), Special Needs Scholarship Program, Foster Child Scholarship Program, Autism Scholarship, Great Schools Tax Credit Program, Family Education Tax Credit Program

Sign up to receive IJ's biweekly digital magazine, Liberty & Law along with breaking updates about our fight to protect the rights of all Americans.