Nebraska

Resources

State Protections and Legal Framework

  • State constitutional guarantees regarding right to education – 

    The Nebraska Constitution, specifically Article VII-1, governs.  It says that “[t]he Legislature shall provide for the free instruction in the common schools of this state of all persons between the ages of five and twenty-one years. The Legislature may provide for the education of other persons in educational institutions owned and controlled by the state or a political subdivision thereof.”  

    Case law and legislative history defining and interpreting the right to education – 

    Article VII-1 adds that [t]he term ‘free instruction’ is construed in right to education cases as pertinent to the issue of the constitutionality of school financing, including collection of fees, tuition, and taxes. Kolesnick v. Omaha Pub. Sch. Dist., 251 Neb. 575, 558 N.W.2d 807 (1997).  The Article identifies relevant case law and background (e.g., “The appropriate level of scrutiny in constitutional challenges to school funding decisions is whether the state action is rationally related to a legitimate government purpose. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739 N.W.2d 742 (2007).”).

    State constitutional protections regarding non-discrimination and equity

     – Equal Protection: Article I-3 of the Nebraska Constitution states, “No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws.” Article I-1 states, “All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.”

    Other relevant state constitutional civil rights protections –

     Article VII, generally addresses education.  Article I-5 provides freedom of speech.

  • State law equivalents to Title VI, Title IX, Section 504, and the Educational Opportunities Act (EEOA) – 

    Additional state civil rights protections that go beyond federal requirements (e.g., protections for LGBTQ+ students, multilingual learners, undocumented students) – 

    n/a 

    State law protections regarding color of law or pattern/practice liability for law enforcement in schools – 

    n/a

    Anti-discrimination protections under state human rights statutes – 

    Nebraska Revised Statutes § 79-2,114 to § 79-2,124 (Nebraska Equal Opportunity in Education Act): Prohibits discrimination in public schools based on race, color, religion, national origin, sex, disability, or marital status.

    Private right of action provisions under state civil rights and human rights statutes – 

    n/a

    Identify whether state anti-discrimination laws also prohibit discrimination caused by disparate impact. If yes, does the state law allow a private right of action for disparate impact claims? – 

    Nebraska assesses disparate impact in discrimination cases, but it is unclear whether a state law allows for a private right of action for disparate impact claims.  Caselaw has noted a concern regarding waivers that the ad hoc approach taken in granting waivers can lead to the appearance of discrimination. See Florida Bd. of Bar Examiners; In re Hale, supra.See, also, Teare v. Committee on Admissions, 566 A.2d at 31 (stating that “any case by case consideration of waivers invites the risk of disparate treatment of similar cases, and thus carries its own potential unfairness”). Application of Collins-Bazant, 254 Neb. 614, 620, 578 N.W.2d 38, 42 (1998).

  • Is the right provided by state law conferred on the student, parent/guardian, or both? In other words, who can bring a claim under this law? – 

    Anyone having an interest in or information about the alleged violation may file a signed, written complaint.  No prior process must be exhausted before making a 92 NAC 27 Complaint.  (see https://www.education.ne.gov/cc/complaint-form/). 

    Does the specified law or policy provide protections against retaliation? What are the elements of a retaliation claim? Are protections against retaliation clearly spelled out in the law or policy? – 

    The complaint website provides the following instruction: Retaliation, known as reprisal, is a separate cause for a Complaint. You may contact the Investigator to let him or her know that you believe he or she should also be investigating new allegations of reprisal. The person you filed the original Complaint against will be notified of the new allegations. In addition, you may have other remedies and you would need to consult with an attorney to determine what possible remedies, if any, would apply to your specific situation. If you feel an educator, other than the person you filed a Complaint about is retaliating, you may file a separate Complaint against that educator. See website regarding how to file a complaint and https://www.education.ne.gov/legal-faq/complaints-regarding-educators/what-if-i-feel-i-am-being-retaliated-against-after-i-file-a-complaint/. 

    Statute of limitations for filing education-related state civil rights complaints (or state civil rights complaints broadly) or state human rights complaints? – 

    One year for complaints filed with the Nebraska Department of Education.  “An organization or individual may file a State Complaint if they believe that the school district is not complying with Federal or State laws or regulations relating to special education.  The complaint must allege a violation that occurred not more than one year prior to the date the complaint is received.” https://www.education.ne.gov/wp-content/uploads/2021/02/PUBLIC-Complaint-Guideline-Nebraska-Department-of-Education.pdf) .

    Are there areas where the state laws provide more protections than federal law? What are those areas? –

     no

How do I file a complaint about discrimination in a K-12 public school in Nebraska? 

Nebraska Department of Education

Complaint is available here: https://www.education.ne.gov/cc/complaint-form/.  Per the webpage, “The Complainant is you.  The Respondent is the certificated teacher or school administrator you are making the complaint about.”  There is no civil rights division at the Nebraska DOE, but it has links to civil rights resources here: https://www.education.ne.gov/ns/forms-resources/national-school-lunch-program/civil-rights/.  The first link specifies that “[t]o file a program discrimination complaint, a Complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form which can be obtained online at: https://www.usda.gov/sites/ default/files/documents/ad-3027.pdf, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA.”

State Attorney General Enforcement Actions

  • Has the AG taken civil rights actions involving education in the past 5 years? 

    • The Nebraska AG has issued several education-related opinions that may implicate civil rights. In Opinion No. 24-001 (2024), the AG concluded that a law designating group bathrooms and locker rooms for use according to biological sex would be constitutional. In an April 2023 opinion, the AG concluded that a policy requiring schools to allow certain patriotic youth organizations to have annual visits to schools would be constitutional, provided that other organizations were not denied access based on viewpoint. In Opinion No. 22-005, the AG concluded that allowing law enforcement access to the electronic monitoring information of juveniles under probation would be constitutional.

    • The AG joined an amicus brief in Rudisill v. McDonough, supporting a claim by military veterans for an improper denial of G.I Bill benefits. 

    What enforcement powers does the AG possess in education-related cases? 

    • Neb. Rev. Stat. § 84-203 (“The Attorney General is authorized to appear for the state and prosecute and defend, in any court or before any officer, board or tribunal, any cause or matter, civil or criminal, in which the state may be a party or interested.”). 

    • The AG does not appear to have explicit powers to intervene in education-related cases where the state is not a defendant. The public protection function of the AG’s office is directed at consumer protection and public health. 

    • See Major Duties of the Nebraska Attorney General’s Office. 

    • The AG may have an interest in claims alleging a violation of state law. 

    Does the AG accept individual education civil rights complaints, or does the office only take on broad investigations? (if they do individual complaints, would want to answer the below complaint process questions for the AG’s office) 

    Complaints to the AG generally can be filed here: https://www.nebraska.gov/apps-ago-complaints/. 

    The AG’s office does not provide a complaint channel related to education.

  • Does the AG have an office/section dedicated to education or education civil rights issues? (If the AG has sections or offices dedicated to education or children's rights issues, please identify that office when responding to relevant questions above and with respect to the complaint process below.) 

    • The Civil Litigation Bureau “defends all lawsuits filed against the State” including “state civil rights” cases (see: https://ago.nebraska.gov/about). 

    • There is no specific office or section related to education.

Other State Enforcement Systems

    • State Department of Education - relevant divisions and complaint processes – Complaint is available here: https://www.education.ne.gov/cc/complaint-form/.  Per the webpage, “The Complainant is you.  The Respondent is the certificated teacher or school administrator you are making the complaint about.”  There is no civil rights division at the Nebraska DOE, but it has links to civil rights resources here: https://www.education.ne.gov/ns/forms-resources/national-school-lunch-program/civil-rights/.  The first link specifies that “[t]o file a program discrimination complaint, a Complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form which can be obtained online at: https://www.usda.gov/sites/ default/files/documents/ad-3027.pdf, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA.”

    • Human Rights/Relations Commissions (state and local) – To file an education-related civil rights complaint in Nebraska for issues like discrimination in K–12 schools, you must submit a complaint to the U.S. Department of Education’s Office for Civil Rights (OCR) (https://ocrcas.ed.gov/contact-ocr?field_state_value=667).  The Nebraska Equal Opportunity Commission (NEOC) (website here: https://neoc.nebraska.gov/) is the state administrative agency that investigates and enforces Nebraska civil rights laws, but it does not handle education claims.  Lincoln Commission on Human Rights (LCHR) (https://www.lincoln.ne.gov/City/Departments/City-Attorneys-Office/LCHR) and Omaha Human Rights & Relations Department (OHRD) (https://humanrights.cityofomaha.org/) are civil rights departments local to Lincoln and Omaha, respectively.  

    • State Civil Rights Departments independent of AG offices - There is also an Ombudsman office (https://nebraskalegislature.gov/divisions/ombud.php), separate from the AG, which serves as a general oversight body for agency conduct—but does not enforce civil rights statutes specifically.

    Other State Offices with relevant jurisdiction – n/a

Office of Civil Rights (OCR)

  • Who is eligible to file (students, parents, advocates, others)? – 

    “A complainant on behalf of or regarding to another person(s) is responsible for securing any necessary written consent from that individual, including when a parent files for a student over the age of 18. Where the person is a minor (under the age of 18) or a legally incompetent adult, the Consent Form must be signed by that person’s parent or legal guardian. Parental or legal guardian consent may not be required for persons under the age of 18 if they are emancipated under state law and are therefore considered to have obtained majority. Proof of emancipation or incompetence must be provided.” (see https://www.ed.gov/laws-and-policy/civil-rights-laws/file-complaint/ocr-discrimination-complaint-form). 

    Are there other administrative processes someone may have to exhaust before initiating a complaint? (i.e., going through school’s, district’s, or other agency’s process first, etc.) – 

    No, but “You will be asked whether you have tried to resolve the matter using a grievance procedure or by filing with another agency” (see https://www.ed.gov/laws-and-policy/civil-rights-laws/file-complaint/ocr-discrimination-complaint-form).

    How to initiate the process (relevant websites, standard forms, submission locations) –

     “You may contact an OCR enforcement office to obtain a complaint form or you may file a discrimination complaint by using the on-line complaint form. You may also write an e-mail or a letter setting forth your complaint to the OCR enforcement office.” (see https://www.ed.gov/laws-and-policy/civil-rights-laws/civil-rights-faqs/questions-and-answers-on-ocrs-complaint-process). The OCR office for Nebraska is located at Kansas City Office

    Office for Civil Rights

    U.S. Department of Education

    One Petticoat Lane

    1010 Walnut Street, 3rd floor, Suite 320

    Kansas City, MO 64106

    Telephone: 816-268-0550

    FAX: 816-268-0599; TDD: 800-877-8339

    Email: OCR.KansasCity@ed.gov. 

    Can complaints be filed anonymously or confidentially? 

    Unspecified

    Are there language access requirements for complaint processes? – 

    No 

    Are there known barriers to accessing enforcement (filing fees, documentation requirements)? - 

    No

    Can complainants have advocates or legal representation? – 

    Unspecified

    Are complainants entitled to legal representation or other advocates to file or at any point in the process? – 

    “If you are considering filing in court, bear in mind that OCR does not represent complaining parties or provide advice regarding court filings. You would need to use the services of your own attorney. Also, if you proceed with your claim in a court, OCR will not continue to pursue your OCR complaint.” (see https://www.ed.gov/laws-and-policy/civil-rights-laws/civil-rights-faqs/questions-and-answers-on-ocrs-complaint-process).

  • What are the required elements of the civil rights claim? – 

    • “You should let us know which school, college or other institution you are complaining about, the person(s) who has been discriminated against, when the discrimination occurred, and you should sign and date the form or letter and let us know how we can reach you by phone, e-mail, and letter so that we can contact you. If filing electronically or on-line, you will still need to provide an original signature by mail, which may be done by printing and mailing a ‘Consent Form’ linked from the bottom of the on-line complaint form.” (see https://www.ed.gov/laws-and-policy/civil-rights-laws/civil-rights-faqs/questions-and-answers-on-ocrs-complaint-process).

    Who reviews claims and what timeframes apply? – 

    • “OCR evaluates the written information that it receives to determine whether it constitutes a complaint that is subject to further processing. If so, OCR determines whether it can investigate the complaint. OCR makes this determination with respect to each allegation in the complaint. For example, OCR must determine whether OCR has legal authority to investigate the complaint; that is, whether the complaint alleges a violation of one or more of the laws OCR enforces. OCR must also determine whether the complaint is filed on time. Generally, a complaint must be filed with OCR within 180 calendar days of the date of the alleged discrimination. If the complaint is not filed on time, the complainant should provide the reason for the delay and request a waiver of this filing requirement. OCR will decide whether to grant the waiver. In addition, OCR will determine whether the complaint contains enough information about the alleged discrimination to proceed to investigation. If OCR needs more information in order to clarify the complaint, it will contact the complainant; and the complainant has 14 calendar days within which to respond to OCR’s request for information unless the complainant has requested additional time to provide the information.” (see https://www.ed.gov/laws-and-policy/civil-rights-laws/file-complaint/how-the-office-for-civil-rights-handles-complaints).

    What type of investigation may occur?

    •  “If OCR determines that it will investigate the complaint, it will issue letters of notification to the complainant and the recipient. Opening a complaint for investigation in no way implies that OCR has made a determination with regard to the merits of the complaint. During the investigation, OCR is a neutral fact-finder. OCR will collect and analyze relevant evidence from the complainant, the recipient, and other sources, as appropriate. OCR will ensure that the actions it takes in investigations are legally sufficient, supported by evidence, and dispositive of the allegations raised in the complaint. . . . OCR may use a variety of fact-finding techniques in its investigation of a complaint. These techniques may include reviewing documentary evidence submitted by both parties, conducting interviews with the complainant, recipient’s personnel, and other witnesses, and/or site visits. At the conclusion of its investigation, OCR will determine, with regard to each allegation, whether: a) There is insufficient evidence to support a conclusion that the recipient failed to comply with the law, or b) A preponderance of the evidence supports a conclusion that the recipient failed to comply with the law. OCR’s determination will be explained in a Letter of Findings sent to the complainant and recipient. Letters of Findings contain fact-specific investigative findings and dispositions of individual cases. Letters of Findings are not formal statements of OCR policy and they should not be relied upon, cited, or construed as such. OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the public.”  (see https://www.ed.gov/laws-and-policy/civil-rights-laws/file-complaint/how-the-office-for-civil-rights-handles-complaints ).

    Who participates in investigations? - 

    OCR

    Are complainants entitled to a hearing of any kind? If yes, what are complainants entitled to during the hearing? – 

    No 

    What privacy/confidentiality protections exist? – 

    The parties undergo a confidential mediation

    Are school districts required to publicly post civil rights complaint procedures? – 

    No

  • What is the appeals process, if any? – 

    “OCR affords complainants an opportunity to appeal a determination(s) based on a finding of noncompliance (Section 303(a) of OCR’s CPM) and dismissals based on Sections 108(a), (b), (c), (d), (h), and (i) of OCR’s CPM. An appeal can be filed electronically, by mail, or fax. The complainant must either submit electronically a completed appeal form or submit a written statement of no more than ten (10) pages (double-spaced, if typed) to the Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue SW, Washington, D.C. 20202; if submitted by e-mail, to OCR@ed.gov; if submitted by fax, to 202-453-6012. The filing date of an appeal submitted by mail is the date the appeal is postmarked or submitted electronically or by fax.

    In the appeal, the complainant must explain why he or she believes the factual information was incomplete or incorrect, the legal analysis was incorrect, or the appropriate legal standard was not applied, and how correction of any error(s) would change the outcome of the case; failure to do so may result in dismissal of the appeal.

    An appeal must be submitted within 60 calendar days of the date indicated on the letter of finding or the dismissal. A waiver of the 60-day timeframe may be granted where the complainant was unable to submit the appeal within the 60-day timeframe because of illness or other circumstances, or because of circumstances generated by OCR’s action that have adversely affected the complainant’s ability to submit the appeal timely.

    OCR will forward a copy of the complainant’s appeal to the recipient. The recipient has the option to submit to OCR a response to the complainant's appeal. Any response to the complainant's appeal must be submitted to OCR within 14 calendar days of the date that OCR forwarded a copy of the complainant’s appeal to the recipient.

    OCR will issue a written decision on the appeal to the parties.” (see https://www.ed.gov/laws-and-policy/civil-rights-laws/file-complaint/how-the-office-for-civil-rights-handles-complaints ).

    Are remedies legally enforceable once a violation is found? – 

    “If OCR determines that a recipient failed to comply with the civil rights law(s) that OCR enforces, OCR will contact the recipient and will attempt to secure the recipient’s willingness to negotiate a voluntary resolution agreement. If the recipient agrees to resolve the complaint, the recipient will negotiate and sign a written resolution agreement that describes the specific remedial actions that the recipient will undertake to address the area(s) of noncompliance identified by OCR. The terms and obligations of the resolution agreement, if fully performed, will remedy the identified violation(s) in compliance with applicable civil rights law(s). OCR will monitor the recipient’s implementation of the terms and obligations of the resolution agreement to verify that the remedial actions agreed to by the recipient are being properly implemented.

    If the recipient does not agree to correct its noncompliance with the civil rights law(s) by entering into a resolution agreement, OCR may initiate proceedings to suspend, terminate, or refuse to grant or continue Federal financial assistance to the recipient, or may refer the case to the Department of Justice.” (see https://www.ed.gov/laws-and-policy/civil-rights-laws/file-complaint/how-the-office-for-civil-rights-handles-complaints).

    Are there other administrative processes that must be exhausted before taking legal action? – 

    “If a complainant alleges discrimination prohibited by the Age Discrimination Act of 1975, a civil action in Federal court can be filed only after the complainant has exhausted administrative remedies. Administrative remedies are exhausted when either of the following has occurred: 1. 180 days have elapsed since the complainant filed the complaint with OCR and OCR has made no findings; or 2. OCR issues a finding in favor of the recipient. If this occurs, OCR will promptly notify the complainant and will provide additional information about the right to file for injunctive relief.” 

    (see https://www.ed.gov/laws-and-policy/civil-rights-laws/file-complaint/how-the-office-for-civil-rights-handles-complaints ).

    Do state agencies publish complaint outcome data? –

     No 

    What enforcement mechanisms exist for non-compliance? – 

    “If OCR determines that a recipient failed to comply with the civil rights law(s) that OCR enforces, OCR will contact the recipient and will attempt to secure the recipient’s willingness to negotiate a voluntary resolution agreement. If the recipient agrees to resolve the complaint, the recipient will negotiate and sign a written resolution agreement that describes the specific remedial actions that the recipient will undertake to address the area(s) of noncompliance identified by OCR. The terms and obligations of the resolution agreement, if fully performed, will remedy the identified violation(s) in compliance with applicable civil rights law(s). OCR will monitor the recipient’s implementation of the terms and obligations of the resolution agreement to verify that the remedial actions agreed to by the recipient are being properly implemented.

    If the recipient does not agree to correct its noncompliance with the civil rights law(s) by entering into a resolution agreement, OCR may initiate proceedings to suspend, terminate, or refuse to grant or continue Federal financial assistance to the recipient, or may refer the case to the Department of Justice.” (see https://www.ed.gov/laws-and-policy/civil-rights-laws/file-complaint/how-the-office-for-civil-rights-handles-complaints).