State May Lend Textbooks to Private School Students, N.M. High Court Rules

By Mark Walsh — December 13, 2018 3 min read
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New Mexico’s highest court on Thursday reversed its own earlier decision and held that the inclusion of private and religious school students in a general program of lending textbooks to K-12 students does not violate the state constitution.

The New Mexico Supreme Court’s 3-2 ruling in Moses v. Ruszkowski was an about-face from its 2015 decisionwhich held that the state’s Instructional Material Law could not be used to fund the loan of textbooks to private school students—either in religious or secular schools. The court had cited several state constitutional provisions, including one that prohibits the use of public funds “for the support of any sectarian, denominational or private school, college or univers


The New Mexico Association of Non-Public Schools had appealed that ruling to the U.S. Supreme Court, arguing that the provision was an example of a state “Blaine amendment” that was based on 19th Century animus against the growing Roman Catholic population in the United States. Some 39 states have such provisions in their state constitutions. Those amendments are named for James G. Blaine, the 19th-century congressman who led an unsuccessful 1876 effort to amend the U.S. Constitution to prohibit public funding of religious schools at a time when the growing Catholic population was pressing for government funding for parochial schools.

In 2017, the U.S. Supreme Court held on to the New Mexico appeal while it decided Trinity Lutheran Church of Columbia, Mo. v. Comer, in which it held that Missouri violated the First Amendment free-exercise-of-religion rights of a church by denying it a playground improvement grant solely on religious grounds. The justices then threw out the earlier New Mexico Supreme Court decision in the textbook case and ordered a fresh review based on the new Trinity Lutheran decision.

The new decision from the New Mexico high court is the result of the second look, and the state court made no bones about the fact that the Trinity Lutheran decision was central to its decision to uphold the loan of textbooks to private school students.

“In Trinity Lutheran, the Supreme Court changed the landscape of First Amendment law,” Justice Barbara J. Vigil wrote for the majority. “Under Trinity Lutheran, if a state permits private schools to participate in a generally available public benefit program, the state must provide the benefit to religious schools on equal terms.”

While the provision of the New Mexico Constitution that bars aid to all private schools is religiously neutral, Vigil said, the history surrounding the federal Blaine amendment and the New Mexico Enabling Act, a 1910 federal law that required New Mexico to establish a public school system “free from sectarian control” as a condition for admission to the Union, “lead us to conclude that anti-Catholic sentiment tainted its adoption.”

The majority said it was adopting a view of the New Mexico constitutional provision that avoids federal free-exercise clause problems.

“We conclude that the [Instructional Material Law] provides a public benefit to students and a resulting benefit to the state,” Vigil said. “Any benefit to private schools is purely incidental and does not constitute ‘support’ within the meaning of” the constitutional provision.

Chief Justice Judith K. Nakamura, in a dissent joined by one other justice, said there was insufficient historical evidence that the New Mexico constitutional provision barring aid to private schools “stems from discriminatory motives.”

“The decision by the drafters of our state constitution that state largesse be directed to the public schools alone, and not to private schools, is rationally supported by the legitimate principle that doing so ensures that the public schools of our state are maximally financed, a circumstance necessary to ensure that ‘a uniform system of free public schools sufficient for the education of, and open to, all the children of school age in the state shall be established and maintained,’” Nakamura wrote, quoting a constitutional passage.

The original lawsuit challenging the inclusion of private school students in the textbook-loan program was brought by two New Mexico residents, Cathy Moses and Paul F. Weinbaum. It will be up to them to decide whether they wish to appeal the latest state high court ruling to a U.S. Supreme Court that is widely considered to be at least as sympathetic to federal free-exercise claims as the Trinity Lutheran court was.

A version of this news article first appeared in The School Law Blog.