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New Mexico Supreme Court says private and religious schools can get state-funded textbooks

December 14, 2018

Advocates for a state program that used public funds to provide textbooks to private and religious schools had reason to rejoice Thursday when the New Mexico Supreme Court rejected claims that the practice violates the state constitution.

The 3-2 decision followed a debate that came down to fundamental questions about religious discrimination and the separation of church and state.

The parents who filed the court challenge — Cathy “Cate” Moses of Santa Fe and Paul Weinbaum of Las Cruces — argued the program subsidized religious institutions with tax dollars and violated the New Mexico Constitution, which prohibits using education funds “for the support of any sectarian, denomination or private school, college or university.”

But religious and private schools involved in the suit countered that excluding them from the program amounted to discrimination and was based on a constitutional amendment grounded in anti-Catholic animus and woven into the laws of many states long ago.

“I’m pretty excited about the decision,” said Eric Baxter, an attorney for the Becket Fund for Religious Liberty, an advocacy group based in Washington, D.C., which argued that state constitutional amendments prohibiting the practice sprang from an effort to stamp out Catholic influence in public life around the time New Mexico became a state.

“It’s a really good opinion … and great for the students of New Mexico, great for religious liberty in New Mexico and great for the state Supreme Court,” he said.

As recently as 2015, the New Mexico Supreme Court sided with the plaintiffs in the case. But the U.S. Supreme Court told New Mexico to reconsider the case after issuing an opinion last year that found it discriminatory to exclude religious institutions from some government programs simply because those organizations are religious.

So, on its second go around, the state’s high court changed its stand.

A majority decided the textbook program’s benefits do not amount to “support” for schools as outlined in the constitution. Rather, justices argued that the books, which are issued to schools through the state’s Public Education Department, go to students and benefit them and their parents, and not the schools.

“The textbook loan program furthers New Mexico’s legitimate public interest in promoting education and eliminating illiteracy,” Justice Barbara Vigil wrote in the majority opinion. “We conclude that the [program] provides a public benefit to students and a resulting benefit to the state. Any benefit to private schools is purely incidental. …”

Moreover, the majority decided, the program does not violate a part of the New Mexico Constitution prohibiting appropriations of public money for private benefit.

Justices Petra Jimenez Maes and Charles Daniels signed on to Vigil’s opinion.

The director of Gov.-elect Michelle Lujan Grisham’s transition team said she accepted the court’s decision, writing that “for over a half century, the New Mexico legislature has made textbooks available to all students regardless of where their parents chose to enroll them in school.”

“The Governor-elect and her administration will comply with the court’s ruling and ensure that private school students are entitled to participate in New Mexico’s longstanding textbook loan program,” Dominic Gabello wrote in an email.

The court’s only two Republicans dissented. Chief Justice Judith Nakamura suggested that the majority had misinterpreted the scope of last year’s U.S. Supreme Court ruling.

Excluding private schools from using the state’s textbook program would not amount to religious discrimination because the state excluded all private schools, not just religious institutions, she argued.

“The decision by the drafters of our state constitution that state largess be directed to the public schools alone, and not to private schools, is rationally supported by the legitimate principle that doing so ensures that the public schools of our state are maximally financed … ,” Nakamura wrote in her dissent, joined by Justice Gary Clingman.

Santa Fe attorney Frank Susman, who represented the plaintiffs, said Thursday he thought Nakamura’s argument was “much more logical and made sense and followed the law.”

Susman said one article of the state constitution makes it clear that the state should not give any “aid” to any person, and the three justices who issued the ruling seemed to ignore that.

He said he isn’t sure what options he has in terms of pursuing further legal action.

Baxter said it’s possible the plaintiffs could petition the U.S. Supreme Court to reconsider the case. But he said he thinks it’s unlikely that the outcome would be any different.

The state stopped providing textbooks to private school students following the 2015 court decision. Baxter said it’s unclear if the state would resume providing books before the start of the next fiscal year on July 1.

Public Education Department spokesman Chris Eide did not respond to a request for comment.

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