Nebraska Supreme Court Lets Voters Decide School’s Fate
LINCOLN — The Nebraska Supreme Court on Friday gave voters a choice over the future of the latest scholarship or voucher program to help families offset the cost of a private K-12 education.
The court ruled unanimously, 7-0, that the ballot measure seeking to repeal Legislative Act 1402 was not an appropriation and therefore required a referendum under the Nebraska Constitution.
Daniel Gutman of the First Amendment Clinic at the University of Nebraska-Lincoln School of Law. (Jazari Kuhl/Nebraska Examiner)
“We do not see any appropriation language at all in LB 1402 Section 1,” the court wrote in a joint opinion or in the Kuriam opinion. “It is established law in Nebraska that there can be no implied appropriation…. Appropriations must be expressly stated or directly necessary to carry out statutory provisions.
An attorney for the mother of a Douglas County student who received scholarship program funds argued that the measure is a regular expenditure by the Legislature and should not receive a vote of the people.
Tom Venzor, an attorney known for his work with the Nebraska Catholic Conference, argued Tuesday that Article III, Section 3 of the Nebraska Constitution preserves that right for the Legislature.
He believes the bill and its related appropriations bills are intertwined.
Reasoning at the hearing
On Tuesday, the justices telegraphed the majority’s reasoning that the ballot measure promoted by Support Our Schools was only intended to repeal LB 1402, not its related but separate appropriations bill, LB 1402A.
Tim Royers, president of the Nebraska Education Association. July 17, 2024.
Local school choice advocates, including Omaha State Sen. Lou Ann Linehan, the sponsor of LB 1402, and others who voted for the bill, including Omaha State Sen. Justin Wynn Wayne), all thought it was a grant.
Jeremy Ekeler of the Nebraska Opportunity Scholarship said, “We applaud Ms. Kohler for her courage in bringing this case and on behalf of the thousands of Nebraska parents like her who Hope for your kids’ education now through scholarships “We believe voters will stand with kids and families this fall. ”
Daniel Gutman, an attorney for Public School Advocates, argued that if voters reject LB 1402, the $10 million in appropriations in LB 1402A would still exist and would eventually be restored to the general fund.
He argued that LB 1402 unconstitutionally directed state funds to private institutions by benefiting private schools, which is prohibited by Title VII Section 11.
The court sidestepped the issue and instead ruled on the narrower question of whether a law without an associated appropriations bill could be repealed through a public referendum, ruling that it could.
Elkhorn state Sen. Lou Ann Linehan, chairman of the tax committee. August 20, 2024.
Tim Royers, the new president of the Nebraska Education Association who supports our schools, said his organization is “pleased that the Supreme Court has protected one of our most important rights as Nebraskans. , we look forward to repealing LB 1402 in the upcoming election.” ”
His predecessor at NSEA, Jenni Benson, said those seeking public funding for private schools have fought to let voters decide “at any time.”
“These voucher proponents want to foist an expensive private school voucher program on Nebraska taxpayers,” she said in a statement. “But public school proponents from across our state have united to protect our Public Schools, successfully petitioned twice and successfully defended the petition process before the Nebraska Supreme Court.”
Vinzo said in a statement to the Catholic Conference on Friday that the decision “hurts children and families who need support the most – those who face difficulties such as bullying, disabilities or the unique challenges of military life.”
The lawsuit targets Nebraska Secretary of State Bob Evnen, who has pledged to force another lawsuit if the court sidesteps key legal issues and instead rules on technicalities. More complex.
The court did not appear happy with his change of position. Chief Justice Mike Heavican argued that Avnen had “established that the referendum was valid and sufficient”.
“Once this is done, I am not aware of the process by which the minister can change his mind and ‘rescind his legal adequacy decision and not place the referendum on the ballot,'” Shivakan wrote in a concurring opinion criticizing Avni En sought to overturn his certification decision.
Avnen’s office had no immediate comment on the decision.
Will appropriators gain power?
Linehan said she felt sad for the 2,500 students now attending the private schools of their choice and whose families will now worry about having money to help them attend.
But she said she was more worried about what the interpretation of the decision might mean for the future Legislature, since it appears to increase the power of senators on the Appropriations Committee.
She said it would make Lincoln more like Washington, D.C., where she served as chief of staff to former U.S. Sen. Chuck Hagel, R-Neb. Anyone who wants to do anything goes through appropriators, she said.
Omaha Sen. Justin Wynn speaks during a Judiciary Committee hearing. August 2, 2024.
“It’s terrible,” Linehan said. “It has nothing to do with school choice. The real issue is that the decision states that if the line item is not in the budget, if appropriators don’t like it, then everyone else in the Legislature is out.
Sen. Justin Wynn, D-Omaha, said the decision could even affect judicial staff salaries because their funding bills come through the Judiciary Committee.
He argued that if voters were upset, they could cut wages.
“The bill (the appropriations bill) was written to allow the Legislature to track the situation,” he said.
Linehan said any spending bill that doesn’t go ahead and isn’t included in the budget risks being rejected by voters. She blamed in part the tight schedule the court had to decide the case.
“I think the tight schedule probably didn’t give the court enough time to think through what they were doing here,” Linehan said. “The governor and appropriators will now run this place.”
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