Question of whether Nebraska public money can go to private schools still set for November ballot

Nebraska’s top election official has ruled that voters will get to decide this year whether to repeal a law that gives taxpayer money for private school scholarships.

But both Nebraska Secretary of State Bob Evnen and state Sen. Lou Ann Linehan, who authored the school choice law and sought to have the repeal effort kept off the ballot, acknowledge that the courts will likely ultimately decide if the repeal question makes it onto November’s ballot.

Evnen said in a news release late Thursday that he consulted state law and previous state attorney general opinions before concluding that the referendum question is legal and will appear on the November ballot “unless otherwise ordered by a court of competent jurisdiction.”

Those behind the referendum effort lauded Evnen’s decision.

“Nebraskans have been clear that they want to vote on the issue of diverting public tax dollars to fund private schools,” said Nebraska State Education Association President Jenni Benson, who also serves on the board of the group that carried out the referendum petition effort last year. “State lawmakers also must respect voters on this issue and reject new legislative attempts to impose voucher schemes on Nebraska taxpayers.”

The conflict stems from Linehan’s law passed last year allowing millions in state income tax to be diverted to organizations that grant private school tuition scholarships. That passage set up a battle between powerful education unions and heavily-funded conservative groups trying to make their mark on school policies following COVID-19 lockdowns and ongoing fights over transgender policies.

Even before the bill was signed into law, a petition effort backed largely by public school unions and supporters was launched to ask Nebraska voters to repeal it. The effort collected nearly double the number of valid signatures needed to put the question on the November ballot, and Evnen approved the ballot measure in October.

But in January, Linehan sent Evnen a letter backed by private practice attorneys asking him to declare the ballot initiative unconstitutional and pull it from November’s ballot. The letter argued that the state constitution places the power of taxation solely in the hands of the Legislature.

In denying the request, Evnen said he based his rejection on past opinions by the attorney general’s office. Those opinions found that a referendum question can’t be rejected only for frustrating the Legislature’s taxation power. Instead, it must “completely destroy the taxing authority of the Legislature,” which the referendum question doesn’t do, he said.

But Evnen also acknowledged that Linehan’s challenge raises substantive constitutional questions that are “outside the purview of my office to consider.”

“Such issues must be left for the courts to decide,” he wrote.

Linehan has said as much since sending the letter, acknowledging that however Evnen ruled on the ballot challenge, the side not favored would likely sue to reverse it.

“This will end up being left up to the state Supreme Court to decide,” she said.

Passage of the scholarship-funding law made Nebraska among the latest states to adopt a system that allows public money to fund scholarships or vouchers for private school tuition.

Republicans around the country have been pushing private school scholarship funding for years and have seen a recent surge of success. Lawmakers in Iowa approved a similar law last year. In West Virginia, the state Supreme Court in 2022 upheld its school choice model that funds private school scholarships.

The new school funding law does not appropriate taxpayer dollars directly toward private school vouchers. Instead, it allows businesses, individuals, estates and trusts to donate a portion of their owed state income tax.

Businesses and individuals would be allowed to donate up to $100,000 per year, while estates and trusts could offer up to $1 million a year. The bill would allocate $25 million a year over the first two years starting in 2024, and up to $100 million annually thereafter to cover such donations. That dollar-for-dollar tax credit is money that would otherwise go into the state’s general revenue fund.

Supporters of the scholarship program say it helps underprivileged students who have few other choices when they find themselves in an underperforming or toxic public school environment. Public school advocates counter that the act sends taxpayer dollars to private schools that are allowed under religious tenets to discriminate against LGBTQ+ students.

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