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J. Michael Smith, Esq.

Michael P. Farris, Esq.

February 2008

L.B. 1141: A Solution Looking for a (Non-existent) Problem

Michael P. Donnelly, Esq., Staff Attorney

Home education in Nebraska has a decades-long tradition of respecting the constitutional right of Nebraska parents to direct the upbringing and education of their children. Historically however, Nebraska started out with one of the most controversial and repressive homeschool frameworks in the United States, resulting in persecution and intimidation of homeschooling families. The wisdom of then-Governor Bob Kerrey in urging a legislative solution and then urging the State Board of Education to adopt the least restrictive version of the four Rule 13 proposals (which they did) has been proven as Nebraska homeschoolers continue to perform well academically and to become productive members of our free society that values freedom along with personal (and parental) responsibility.

We urge you to oppose L.B. 1141 and leave Nebraska's current and functioning exempt school law without amendment.

1. L.B. 1141 is a solution looking for a non-existent problem

It is well established that the average homeschooled student in the United States performs better on academic achievement tests than his public and private school counterparts. Research has demonstrated that there is no correlation between increased regulation and better student performance in homeschools. (See reports included in NCHEA Legislative Day packet).

Nebraska homeschoolers are no different. While the state of Nebraska does not have state-specific data on Nebraska homeschooled students, such a lack of data is insufficient to justify the imposition of the proposed regulation on Nebraska homeschoolers. Even if one agrees with the adage “where there is smoke there is fire,” there isn’t even any smoke here. L.B. 1141 is a solution looking for a problem. Nebraska homeschoolers have been operating under the current legislation for nearly 30 years and there have been few problems.

2. LB 1141 is poor public policy

The Nebraska Constitution states that “All persons are by nature free and independent and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness...” The United States Supreme Court has held that parents have a fundamental right to direct the upbringing and education of their children. Nebraska law has respected this right by imposing minimal regulations on parents who choose to privately educate their children.

Senator Schimek’s presumption that unless the state is more involved in children’s education, then education is not occurring, goes against the very fiber of what free societies value in personal responsibility and individual liberty. The government in a free society must be the protector of rights and not seek to regulate simply to supervise or “know what is going on.”

As the United States Supreme Court stated in Parham vs. JR, fit parents must be presumed to be acting in their children’s best interests. Nebraska parents have homeschooled responsibly for decades and there is no compelling reason to change a system that has served the citizens of Nebraska well. By requiring approval and placing the ultimate authority school attendance in the hands of the NDE, this bill arrogantly presumes that Nebraska parents are incapable of adequately educating their children privately, as they have been doing for the past three decades or more.

3. Even if it were good public policy, L.B. 1141 has severely intractable implementation problems

As drafted, L.B. 1141 attempts to pattern itself after the Iowa State’s homeschool law, a law that has had its share of administrative challenges. However, changing from the current climate in Nebraska to the one proposed by Senator Schimek’s bill will create severe problems of bureaucracy, increased costs, vagueness, compliance failure, and litigation.

The bill would grant discretionary authority to the Commissioner of Education. Many homeschoolers simply would not comply with this provision, thus thrusting the state back to an enforcement nightmare parallel with the late 1970s and early 80s.

The annual assessment provision is cumbersome, intrusive and, worst of all, places ultimate control of where and what children are taught in the hands of bureaucrats, rather than parents. This defeats the entire purpose of having exempt schools. Parents who choose private education for their children exercise their right to do so because they want their children taught differently. Furthermore, because of the restrictive and burdensome nature of the bill compliance would be difficult. This would create a strain on Nebraska’s current resources and distract public school officials from focusing on their primary responsibilities. Such legislation would also distract parents and exempt school administrators from what is most important—educating children.

The proposed assessment scheme is heavy-handed and fails to account for the fact that many homeschooled students progress more rapidly than their public school counterparts. It also fails to account for special needs children who may progress at a slower pace than their public school counterparts. The proposal unfairly imposes a higher standard on exempt schools than public schools, by requiring that all exempt school students perform at better than 50% equivalence relative to their peers in public school. If students in public schools did not perform above the 50%, would the state require that they be homeschooled?

Finally, academic performance is only one reason that parents choose to privately educate their children. Safety, emotional well-being and instruction in family values are other important reasons as equally valid.

4. Conclusion

L.B. 1141 appears to be motivated by a faulty presumption that Nebraska parents must be micromanaged. It presumes that the state is ultimately responsible for the education of children, contrary to the Nebraska and United States constitutions. While government has a legitimate interest in ensuring that its children are educated, it does not have the authority to standardize or prescribe how children are educated (See Pierce v. Society of Sisters 268 U.S. 510 (1925) and Wisconsin v. Yoder 406 U.S. 205 (1972)).

The current exempt school law has served Nebraska well. And, because there is no valid extenuating public policy rationale to indicate a need for further regulation, we urge you to oppose this proposed legislation and stand for freedom and liberty with parents who have demonstrated their commitment to their children and their ability to responsibly direct the upbringing and education of their children.

For more homeschooling research visit HSLDA’s research webpages.