Constitution clear on textbooks

I WRITE in response to the op-ed opinion May 7 by John Foreman, state director, N.M. Association of Non-Public Schools, appearing on the same date as oral argument in Moses v. Ruszkowski on this issue, before the N.M. Supreme Court.

Of note is that the Blaine amendment referenced by Foreman was never adopted. Our N.M. Supreme Court has held on two separate occasions that the lending of textbooks by the state to private schools is unconstitutional.

In 1951, our Supreme Court in Zellers v. Huff ruled unanimously that the lending of textbooks by the state to private schools violated Article IX, Section 14 and Article XII, Section 3 of our state Constitution; and in 2015, our Supreme Court in Moses v. Skandera ruled unanimously that the lending of textbooks by the state to private schools violated Article XII, Section 3 of our state Constitution.

The relevant provisions of our state Constitution are unambiguous and as noted by our Supreme Court in Harrington v. Atteberry, “[T]he language of our constitutional provisions are so clear and explicit, that they do not require construction; all that need be done is to read them and apply the language in their ordinary sense.”

It does not take a Ph.D. to understand the meaning of Article IV, Section 31 which forbids “any . . . appropriation . . . for . . . educational purpose to any person, corporation, association, or institution . . . not under the absolute control of the state . . .”

As our Supreme Court noted in Prince v. Board of Education, “[w]e interpret ‘control’ to mean control over the curriculum, discipline control, financial control and administrative control and in general, control over all of the affairs of the school.” Similarly, Article IX, Section 14 of our Constitution provides “(n) either the state nor any county or school district . . . shall directly or indirectly lend or make any donation to or in aid only person, association or public or private corporation.” These provisions say exactly what they mean, and they mean exactly what they say.

Nor is there a valid issue as to whether the loan of textbooks is to the student or to the school, since the prohibitions of each of the two foregoing Articles and Sections apply to any person (a student), as well as to any corporation, association, institution, public or private (a school).

A proposed constitutional amendment to permit the provision of free textbooks to all schools, public and private, was defeated by the voters in 1969.

FRANK SUSMAN CHIEF TRIAL AND APPELLATE COUNSEL, MOSES V. SKANDERA AND MOSES V. RUSZKOWSKI SANTA FE