Moses v. Skandera, No. S-1-SC-34,974 (N.M. Nov. 12, 2015)
Abstract: The New Mexico Supreme Court has ruled that Article XII, Section 3 of the New Mexico Constitution prohibits the state from providing books for use by students attending private schools, whether secular or sectarian. As a result, it held that the state’s Instructional Material Law (IML), under which the legislature appropriates instructional materials funds and private schools are allocated a percentage of the funds based on the number of students enrolled in their schools, ran afoul of Article XII, Section 3. The supreme court stated: “Consistent with the rules of statutory construction and the majority of jurisdictions interpreting similar state constitutional provisions, the IML violates Article XII, Section 3 because it provides support to private schools.”
Facts/Issues: Two New Mexico residents and taxpayers filed suit against the New Mexico Public Education Department (NMPED) alleging that the IML violates their rights under the state constitution. Their suit claimed:
[T]he State issuing instructional materials to students attending private schools is unconstitutional because doing so supports sectarian, denominational, or private schools in violation of New Mexico Constitution Article XII, Section 3; forces them as taxpayers to support the religious dictates of others in violation of New Mexico Constitution Article II, Section 11; and appropriates or donates public funds to private parties in violation of New Mexico 3 Constitution Article IX, Section 14.
The state trial court granted NMPED’s motion for summary judgment. The New Mexico Court of Appeals affirmed the trial court’s decision.
The plaintiffs raised five issues on appeal: (1) whether the Court’s decision in Zellers constituted dicta; (2) whether the IML violates Article XII, Section 3 of the New Mexico Constitution; (3) whether the IML violates Article IV, Section 31 of the New Mexico Constitution; (4) whether the IML violates Article IX, section 14 of the New Mexico Constitution; and (5) whether the IML violates Article II, Section 11 of the New Mexico Constitution.
Ruling/Rationale: The New Mexico Supreme Court reversed the Court of Appeals decision, holding that IML violates Article XII, Section 3. It, therefore, did not address the remaining four issues. It rejected the Court of Appeals’ reasoning that Article XII, Section 3 provides “protection only against the establishment of religion, similar to the Establishment Clause of the First Amendment to the United States Constitution and the Establishment Clause of Article II, Section 11 of the New Mexico Constitution.”
The supreme court stressed that Article XII, Section 3’s prohibition, unlike establishment clause prohibitions, was not limited to religious schools, but applied across the board to all private schools. It said, “The historical context in which Article XII, Section 3 was adopted helps explain why this constitutional provision was not a recodification of the Establishment Clause of the New Mexico Constitution.”
After reviewing the history of the so called “Blaine” amendments in their state constitution, the supreme court pointed out that the U.S. Congress “granted New Mexico statehood on the explicit condition that it adopt a similar ‘Blaine’ provision in the New Mexico Constitution.” It emphasized that the “Blaine” provision in New Mexico’s Enabling Act “is nearly identical to that of Article XII, Section 3, with two critical differences.”
According to the court those differences are:
The Enabling Act prohibits the use of “proceeds arising from the sale or disposal of any lands granted [in the Enabling Act] for educational purposes” to support sectarian schools. In contrast, the drafters of the New Mexico Constitution restricted the use of proceeds from any lands granted to New Mexico by Congress, not only those granted in the Enabling Act, and they also restricted the use of any funds appropriated, levied, or collected for educational purposes for the support of not only sectarian schools, but also the much broader category of private schools.
The supreme court also rejected the Court of Appeals reasoning “that the direct recipients of the IML financial program are the parents of the children, and therefore the benefit to private schools is not direct enough to violate Article XII, Section 3.” Instead, it found that the “broad language of this provision and the history of its adoption and the efforts to amend it evince a clear intent to restrict both direct and indirect support to sectarian, denominational, or private schools, colleges, or universities.”
As a result, the New Mexico Supreme Court concluded “Article XII, Section 3 must be interpreted consistent with cases analyzing similar Blaine amendments under state constitutions.” In addition to California Supreme Court and Nebraska Supreme Court precedent, it found the “Supreme Courts of Oregon, Massachusetts, and Missouri interpreted similar Blaine-like state constitutional provisions and determined that even indirect aid to the sectarian, denominational, or private schools violates the constitutional provision.” It also noted that South Dakota and Hawaii have reached similar conclusions under their state constitutions, which the court found significant “because like New Mexico, these states were required to adopt Blaine-like amendments into their respective state constitutions for their admission into the Union.”
The supreme court stated:
The framers of our Constitution chose to further restrict the use of public funds by prohibiting their use for the support of private schools. As a result, a public school under the control of the State can directly receive funds, while a private school not under the exclusive control of the State cannot receive either direct or indirect support.
It, therefore, concluded, “Consistent with the rules of statutory construction and the majority of jurisdictions interpreting similar state constitutional provisions, the IML violates Article XII, Section 3 because it provides support to private schools.”
Moses v. Skandera, No. S-1-SC-34,974 (N.M. Nov. 12, 2015)
[Editor’s Note: Legal Clips summarized an article in the Las Cruces Sun-News reporting that two New Mexico residents, Paul Weinbaum and Cathy Moses, had filed suit challenging a 40-year-old law that calls for the state Public Education Department to provide free textbooks to all students. Their petition to the New Mexico Supreme Court claims that more than 40% of the money the state spends on textbooks for private schools goes to religious schools. The average total for the previous two fiscal years was approximately $1.8 million per year.]