Attorney asks N.M. high court to block book funds

State Supreme Court still to decide if private schools can use federal cash for textbooks

A lawyer representing several parents of New Mexico public school students has again asked the state Supreme Court to block private schools from drawing on tax dollars to buy textbooks.

The action is just the latest turn in a six-year legal battle that reached the U.S. Supreme Court. The parents filed a lawsuit against the state to stop a longtime practice that they view as an unconstitutional use of public funds to support private secular and religious schools.

Following another decision earlier this year on the separation of church and state, the U.S. Supreme Court declined to hear the case, instead sending it back to New Mexico’s highest court for another review.

With uncertainty shrouding the issue, the state Supreme Court may have to intervene soon and decide whether private schools can indeed turn to the New Mexico government to buy textbooks. Santa Fe attorney Frank Susman filed a motion earlier this week asking the court to block such funds until it has decided the issue once and for all.

At stake is somewhere between $1.1 million and $1.8 million in annual federal funding that comes to the state

through the U.S. Mineral Leasing Act. The state Supreme Court decided in 2015 that distributing the public funds to private schools violated the New Mexico Constitution.

The case began in 2011 when two parents of public school students — Cathy “Cate” Moses of Santa Fe and Paul Weinbaum of Las Cruces — petitioned the state Supreme Court to rule on the issue. After the justices declined to hear their request, they filed a state District Court lawsuit against the state in 2012, saying its practice of using federal dollars to pay for textbooks at private schools took money away from public school students.

First District Court Judge Sarah Singleton in Santa Fe sided with the state and the private schools, as did the New Mexico Court of Appeals.

The case made its way to the state Supreme Court, which ruled in favor of the parents. The court said the state constitution prohibits education funds from being “used for the support of any sectarian, denominational or private school, college or university.”

The New Mexico Public Education Department stopped providing funding for books at private secular and religious schools, and Susman said he would be “shocked” if the agency changed its position.

However, an association of private schools appealed to the U.S. Supreme Court, arguing the state justices’ decision was based on law that is a relic of anti-Catholic discrimination. And the U.S. Supreme Court told the state to reconsider the case in June.

The order came a day after the U.S. justices ruled that the state of Missouri could not deny a grant to a church for playground improvements simply because it was a religious institution. The Supreme Court cited its ruling in that case in directing New Mexico’s justices to revisit the textbook issue.

Whether that decision will change how the New Mexico Supreme Court views the case remains unclear, and legal experts have disagreed sharply on the significance of the Missouri ruling. A hearing on the case has yet to be set. In the meantime, the Public Education Department says it will not provide funding for textbooks for students at nonpublic schools.

Some private schools are bracing for a lack of funding for textbooks and are buying their own.

Taylor Gantt, president of St. Michael’s High School, said the school has received an average of about $30,000 per year from the state in textbook credits.

“We never actually received any money,” he said. “We had a credit on the textbook website and could order the books, and the credit would decrease. We have internally decided to make other long-term arrangements for those textbooks and have been able to budget to absorb and account for the expense.”

Jim Leonard, head of Santa Fe Preparatory School, said the school has ordered new books from the state but will pay for them at the cost of “a few thousand dollars.”

“We are not getting funded through the state right now,” he said Thursday. “We’ll be OK with that.”