New Mexico Supreme Court Upholds Textbook Loans to Private Schools

SANTA FE, N.M. (CN) – New Mexico’s Supreme Court ruled Thursday that a program that lends textbooks to private and religious schools does not violate 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 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.”

Courts originally upheld the textbook-lending program, but in 2015 the New Mexico Supreme Court found that the program violated the state constitution, 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.”

The 2015 ruling, however, was overturned by the U.S. Supreme Court in 2017, which ordered the state high court reconsider based on Trinity Lutheran Church of Columbia, Inc. v. Comer.

In that case, the nation’s highest court found 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.

New Mexico’s Supreme Court heard arguments in May of this year, weighing state constitutional provisions versus the state’s Public Education Department’s assertion that loaning non-religious books in no way threatens the state’s school system and doesn’t make public schools religious.

Also under consideration was the history of the matter. 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.

In a divided decision, three justices of the state’s highest court concluded that the textbook loan program did not violate the New Mexico Constitution.

The textbook program “provides a public benefit to students and a resulting benefit to the state. Any benefit to private schools is purely incidental and does not constitute ‘support’ within the meaning of Article XII, Section 3,” Justice Barbara Vigil wrote in the majority opinion.

In a dissenting opinion, Chief Justice Judith Nakamura said the state Supreme Court’s majority “embraces a construction of Article XII, Section 3 that is inconsistent with the provision’s plain language and ‘permits the state to loan secular textbooks to private school students, including religious students.’ They do so to ‘avoid constitutional concerns,’ but these are concerns that do not exist.”

“New Mexico’s kids are better off today because the New Mexico Supreme Court rejected 19th century religious discrimination,” said John Foreman, state director of the New Mexico Association of Non-Public Schools.

Under Thursday’s ruling, the program will be able to continue, stating, “The textbook loan program furthers New Mexico’s legitimate public interest in promoting education and eliminating illiteracy.”

Eric Baxter, vice president and senior counsel at Becket Law, which defended the New Mexico Association of Non-Public Schools and the state’s textbook program said in a press release, “In shutting the book on religious discrimination, the New Mexico Supreme Court has opened access to quality textbooks for all students.”

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