SANTA FE, N.M. (CN) – The New Mexico Supreme Court heard arguments Monday over whether the state’s program that lends textbooks to private and religious schools violates the doctrine of separation between church and state.
The state has a program dating back to the days of the New Mexico territory wherein general grade-appropriate textbooks approved by the state’s Department of Public Education are loaned out to public and private schools.
In 2012, New Mexico parents Cathy Moses and Paul F. Weinbaum sued then-Secretary of Education Hanna Skandera over the program, arguing in their lawsuit that the “continued funding and distribution of textbooks and other instructional materials to private schools, at public expense…is unconstitutional.”
Two lower courts upheld the textbook-lending program, but in 2015 the New Mexico Supreme Court found that the program violated the state constitution.
The ruling was based largely on Article 12, Section 3, which states in part that “no part of the proceeds arising from the sale or disposal of any lands granted to the state by Congress, or any other funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university.”
However, in June 2017, the U.S. Supreme Court vacated the state high court’s ruling, ordering it to reconsider its decision based on the justices’ opinion in Trinity Lutheran Church of Columbia, Inc. v. Comer.
In that case, the nation’s highest court held that a Missouri program which denied a grant to a religious school for playground resurfacing, while providing grants to similarly situated non-religious groups, violated the freedom of religion guaranteed by the First Amendment to the U.S. Constitution.
During Monday’s oral arguments, Frank Susman, representing Moses and Weinbaum, argued that even if Trinity v. Comer could be applied to Article 12, Section 3 of the New Mexico Constitution, which specifically mentions “sectarian” schools, there are two other provisions of the state constitution – Article 9, Section 14 and Article 4, Section 31 – that also prohibit using public funds for educational institutions not controlled by the state.
Attorney Susan M. Hapka of Sutin, Thayer and Browne, arguing for the state’s Public Education Department, said that loaning non-religious books in no way threatens the state’s school system and doesn’t make public schools religious.
It was during Hapka’s arguments that Justice Charles W. Daniels brought up what he called the “elephant in the room” – the fact that when New Mexico was petitioning for statehood in the early 20th century, the addition of a “Blaine provision,” which barred public funding of parochial schools and is seen by many as driven by an anti-Catholic animus of the time, was a requirement for statehood.
Speaking for intervenors Albuquerque Academy, a non-religious private school, and others, Eric Baxter of the law firm Becket in Washington, D.C. addressed the historical context of the Blaine amendment and related provisions more thoroughly.
He gave examples of anti-Catholic bias in New Mexico at the time of the framing of the state constitution, even going so far as to suggest that the inclusion of private schools in Article 12, Section 3 was merely a cover for the religious discrimination that drove it.
In a short rebuttal, Susman recalled the court’s attention to other state constitutions that address the use of public funds for private education, and highlighted the intended narrowness of the Trinity v. Comer ruling. He quoted a footnote by U.S. Supreme Court Chief Justice John Roberts, which read, “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
It is unclear when the New Mexico Supreme Court will issue a decision in the case.