Public Appropriations, Private Accountability: School Choice Under Nebraska's Opportunity Scholarships Act
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Authors
Thies, Anthony G.
Issue Date
2024-07
Volume
57
Issue
3
Type
Journal Article
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Abstract
After the conclusion of editing on this Note, the Nebraska Legislature passed Legislative Bill 1402. This new bill, signed into law by Governor Pillen on April 24, 2024, effectively repealed L.B. 753 and preempted the referendum vote on L.B. 753 that was set to occur in the November 2024 election. L.B. 1402 serves the same purpose as L.B. 753 but with one major change: instead of providing tax credits for donations to scholarship granting organizations, L.B. 1402 cuts out scholarship granting organizations entirely and directly appropriates $10,000,000 per year from the General Fund to subsidize education scholarships for students to use at private schools. L.B. 1402 retains the tiered system for eligible students, the same requirements for qualified schools, and protects the autonomy of participating private schools. The arguments made in this Note concerning L.B. 753 are applicable to L.B. 1402. First, the funding scheme in L.B. 1402 is even more likely to be unconstitutional under article VII, section 11 of the Nebraska Constitution and the relevant case law discussed herein. Second, schools receiving public funds under L.B. 1402 will not be considered state actors for 42 U.S.C. § 1983 purposes. Finally, L.B. 1402 will appropriate public funds to private schools but not require accountability on the part of participating private schools, leaving students unprotected from potential discriminatory conduct.
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Creighton University School of Law