Funding textbooks in private schools OK’d

NM Supreme Court reverses decision it made in 2015

The New Mexico Supreme Court ruled Thursday that taxpayer dollars can be used for nonreligious textbooks in both religious and secular private schools, reversing its previous decision on the matter.

The case has been winding its way through the courts for years.

The state Supreme Court originally ruled in 2015 that a state law allowing private schools to get publicly purchased textbooks and other instructional materials is unconstitutional. But it was forced to reconsider after the U.S. Supreme Court vacated that conclusion and sent it back to the state Supreme Court.

But ultimately, the New Mexico Supreme Court ruled that its original decision raises concerns under First Amendment guarantees of free exercise of religion. The most recent opinion confirms that the state textbook loan program does not violate the state Constitution.

“We reinstate the provisions of the (Instructional Material Law) that allow private school students to participate in the textbook loan program,” says the opinion, written by Justice Barbara Vigil.

Thursday’s decision came about seven months after the most recent arguments. Two justices dissented.

The case began with a 2012 lawsuit. New Mexico parents Cathy Moses of Santa Fe and Paul Weinbaum of Las Cruces filed suit against the state Public Education Department, seeking to stop tax-supported textbooks and computer programs for private schools.

The PED stopped funding textbooks for students in private schools after the 2015 ruling. Nearly $1.4 million worth of books were provided to 109 private schools around New Mexico in 2014, PED previously reported.

But everything changed when the U.S. Supreme Court ruled in a Missouri church’s playground case in which justices decided it is unconstitutional to ban the use of public funds for certain projects at religious institutions based solely on the schools’ private or religious status. The conversation around the First Amendment shifted and the state Supreme Court re-evaluated its ruling.

And although the 2015 ruling asserted that the textbook lending program violates a constitutional provision, justices now believe there was “discriminatory intent” and “anti-Catholic sentiment” in that provision, which is why First Amendment concerns surfaced.

The opinion also rejects two other constitutional provisions that were challenged, including arguments that putting state money toward a private entity that isn’t under the direct control of the state is unconstitutional; the opinion rejects this argument by saying legislative appropriations are made directly to the Public Education Department.

However, Chief Justice Judith Nakamura and Justice Gary Clingman dissented.

Nakamura said in her dissent that the U.S. Supreme Court’s decision doesn’t require the state’s highest court to abandon its original conclusion.

She reiterated that the court originally decided that a provision in the Constitution bars supplying books to private schools and asserts there is insufficient evidence that the provision stems from discriminatory motives.

And she pushed back on the majority’s opinion that the court’s original decision brings up First Amendment concerns.

“These are concerns that do not exist,” Nakamura’s dissenting opinion said.

Frank Susman, who represents the two plaintiffs, Moses and Weinbaum, said he found it “strange” that the decision wasn’t unanimous.

“One of the most surprising things was that there was a dissent,” he said.

Despite the dissent, he said he is disappointed by the ruling and doesn’t think there’s any other avenue to take the case.

“Generally, when the state’s highest court rules on a state law or the state Constitution, that’s the end of it,” he told the Journal. “And in light of what the U.S. Supreme Court has done, it would be useless.”

Thursday’s decision was praised by Eric Baxter, vice president and senior counsel at Becket Law Firm, who defended the New Mexico Association of Nonpublic Schools alongside the PED.

“We didn’t know this was coming down today,” he told the Journal. “This is a really exciting day.”

He said the ruling is especially crucial for rural areas that relied on the resources.

Baxter said reimbursement for the years without textbook funding “is something that would have to be looked at moving forward.”

“It would make perfect sense for the Legislature to reimburse the schools for the funding that was lost,” he said.