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Op-Ed: Why Nebraska’s Opportunity Scholarships will survive

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Nebraska parents scored a victory on May 30, when Gov. Jim Pillen signed into law an Opportunity Scholarships Act that will give families a lifeline out of schools that fail to meet their needs. But the state teachers’ union will not give up power so easily.

Even before a supermajority of state lawmakers approved the measure, which broadens the schooling options for qualifying families through financial assistance, the Nebraska State Education Association launched a campaign to overturn it. The union will first try to put the issue on the 2024 ballot for a referendum vote. If that effort fails, a lawsuit could be next.

Educational choice opponents commonly turn to the courthouse after they don’t get their way in the statehouse. My public interest law firm, the Institute for Justice, will be ready. We have defended the constitutionality of educational choice programs in multiple states, and have scored U.S. Supreme Court victories for families in Montana and Maine.

Nebraskans can rest assured that the arguments against educational choice in their state are no different from those that teachers’ unions have repeatedly advanced—and that courts have repeatedly rejected—throughout the country.

Take the most common argument: that the Opportunity Scholarships Act violates Article VII, Section 11 of the Nebraska Constitution, which prohibits the “appropriation of public funds … to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof.” This is a curious charge.

For one thing, the act does not appropriate any public funds at all. Rather, Opportunity Scholarships will be funded entirely by private donations made by private donors. True, these private donors may claim a tax credit for their donations, but the U.S. Supreme Court and state appellate courts throughout the country have held that tax credits are not appropriations of public funds.

States cannot appropriate funds they never collected in the first place.

As the Supreme Court explained regarding an Arizona tax credit scholarship program, “[c]ontributions result from the decisions of private taxpayers regarding their own funds,” and “[p]rivate bank accounts cannot be equated with the Arizona state treasury.” To argue otherwise, the court observed, “assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands.”

Even if the tax credits offered by the Opportunity Scholarships Act could somehow be viewed as appropriations of public funds (which they can’t), those appropriations still would not go to private schools or institutions of learning. The tax credits, after all, are not provided to schools. They are provided to private donors who fund the scholarships. Meanwhile, the scholarships themselves are awarded to students, not schools.

Opponents ignore these distinctions. They say scholarships ultimately will be used at private schools, so private schools will benefit. Again, however, courts throughout the country, including the Supreme Court, have repeatedly held that the beneficiaries of educational choice programs are students, not schools.

Of course, one might argue there is still some incidental benefit to the schools themselves. But that is not enough to establish a violation of Article VII, Section 11. In fact, while the language of that provision previously barred appropriations “in aid of” private schools, the language was amended in the 1970s to only prohibit appropriations “to” private schools. And the Nebraska Supreme Court has held that this amended language must be taken “literally.”

Thus, it is irrelevant that private schools might incidentally benefit from students’ choices to use their Opportunity Scholarships at particular institutions. There is still no appropriation “to” any school.

The Nebraska Legislature and governor did well by the state Constitution in enacting the Opportunity Scholarships Act. Just as importantly, they did well by Nebraska families, who will now enjoy much needed educational alternatives and the ability to tailor their children’s education to fit their individual needs.

Educational choice should not be a luxury reserved just for families with resources. All Nebraska parents should have freedom to direct the education of their children.

Marie Miller is an attorney at the Institute for Justice in Arlington, Va.

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