Senator Mark Kolterman AGO 15-12 No. 15-012
Nebraska Attorney General Opinions State of Nebraska Office of the Attorney General October 16, 2015 SUBJECT: Constitutionality of LB 232 - the Nebraska College Choice Grant Program REQUESTED BY: Senator Mark Kolterman Nebraska State Legislature WRITTEN BY: Douglas J. Peterson, Attorney General Lynn A. Melson, Assistant Attorney General You have requested our opinion concerning the constitutionality of LB 232, which would create the Nebraska College Choice Grant Program Act. Your letter explains that this bill "would provide state funds to resident students with financial need who attend Nebraska privately-controlled, nonprofit colleges and universities." Noting that the language of the proposed College Choice Grant Program is quite similar to the Postsecondary Education Award Program (or "PEAP"), which was in effect from 1991 to 2003, you have asked us to revisit our prior opinion concerning the PEAP Act in which this office opined that the Act was constitutional. Op. Att'y Gen. No. 91037 (May 5, 1991). As our review of Nebraska law reveals that the law in this area has not changed significantly since our 1991 opinion, we conclude that LB 232 would also likely be held constitutional. As drafted, LB 232 would provide "for awards made directly to eligible students demonstrating substantial financial need and shall be administered by the commission [the Coordinating Commission for Postsecondary Education] in conjunction with eligible postsecondary educational institutions." LB 232, §13. An "eligible" institution is a "nonprofit institution not controlled or administered by any state agency or any political subdivision of the state" which is located in Nebraska and meets other statutory criteria. LB 232, § 7. An "eligible student" is a Nebraska resident who is enrolled as an undergraduate student at an eligible institution and who is eligible to receive student financial assistance as provided for in the Act. LB 232, § 8. Sections 13 and 14 of the proposed Act provide that the award is made directly to the eligible student, although section 13(2) also states that "[I]n order to reduce the costs of administering the act, the commission shall allocate the funds to be distributed pursuant to the act to the eligible postsecondary educational institutions which shall act as the agents of the commission in the distribution of funds to eligible students."...
