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Local private schools affected by state Supreme Court case

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A lawsuit before the state Supreme Court regarding the use of state-distributed textbooks and learning materials is expected to be decided before the end of the year. The head of an association involved in the case said millions of dollars — as well as important civilliberties — are at stake for private and faith-based schools in New Mexico. (Photo courtesy of the University of Illinois Library)

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Local private K-12 schools are being impacted by a court case that is expected to be decided by the New Mexico Supreme Court with the next few months.

The issue at stake in Moses v. Ruszkowski and the New Mexico Department of Education — which originally was Moses v. Skandera when filed in 2011 — concerns whether the state can lend textbook and instructional materials for free to private schools.

The U.S. Supreme Court returned the case to the New Mexico Supreme Court in December, instructing it to reconsider its 2015 decision.

The state Supreme Court had decided two years ago to bar the loaning of the materials by the state, a decision which has cost New Mexico private K-12 schools an estimated $1.4 million to $1.6 million a year, according to Dr. John Foreman, executive director of the New Mexico Association of Non-Public Schools and head of the Mesilla Valley Christian Schools of Las Cruces.

The school association represents about 46 institutions in the state, about 85 percent of them faith-based. Members include All Saints Catholic School and Gateway Christian School in Roswell.

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But the legal issue concerns all private elementary and secondary schools in the state, which number more than 150 and have about 26,000 students enrolled. Since 2015, they have been required to find other sources for new state-approved books and materials, as they were no longer able to borrow them from the Public Education Department as had been the case for about 80 years.

Foreman contends that the issue can have significant effects on some schools and students.

“There are definitely several stereotypes we fight,” he said. “One is that every private school charges some huge amount of money. Another is that all the kids come from wealthy, privileged homes. And if you walk through the hallways of private schools in Roswell you would find that, while you have some kids from some families who are doing OK financially, you have a lot of kids from families that are single-parent homes or that really struggle to keep the kids in school.”

He also noted that the instructional materials at issue are on the state-approved list of educational materials, not religious-oriented texts, and that the program does not involve the exchange of funds, only the lending of materials.

The association has joined with the Becket Foundation for Religious Liberty based in Washington, D.C., to argue on behalf of allowing private schools to have the materials, a position supported by the state Public Education Department

According to Foreman, there are a two primary legal points to his position. He said that the ban is based largely on a legal principle, the so-called Blaine Amendment, which he said wrongly denies students at private and faith-based schools a public benefit and, thereby, restricts religious freedom. The second major point he makes is that parents and guardians of private school children pay state taxes, just as the parents and guardians of public school students do, so private school students should have the benefit of the instructional materials.

The plaintiffs, Cathy Moses of Santa Fe and Paul Weinbaum of Las Cruces, and their attorney Frank Susman, however, have argued that three sections of the New Mexico Constitution, not just those portions derived from the Blaine Amendment, prohibit the use of public education monies and supplies “for the support of any sectarian, denominational or private school, college or university.”

The Blaine Amendment refers to a proposed amendment to the U.S. Constitution forwarded in 1875 by Sen. James Blaine. As many legal and political scholars have written, the unsuccessful effort to pass the amendment was based on strife between Catholics and Protestants regarding schooling at the time. Many Catholics had formed their own schools because the public schools were offering only Protestant-based religious instruction and prayers to students. The Blaine Amendment sought to require all states to block public funds from supporting Catholic or other religious schools.

While the legislation did not become a part of the U.S. Constitution, many states, including New Mexico, adopted what some refer to as “mini-Blaine amendments” that prohibit public funds for the support of religious schools.

However, New Mexico also passed the Instructional Material Law to allow the Public Education Department to purchase and lend materials to public and private schools throughout the state. Moses and Weinbaum decided to challenge that law as unconstitutional in 2011.

The state’s First Judicial District Court and Court of Appeals upheld the law, but the plaintiffs appealed the case to the New Mexico Supreme Court, which unanimously found in favor of the plaintiffs in 2015.

The Becket Foundation and the Non-Public Schools Association then appealed to the U.S. Supreme Court. The Supreme Court did not hear arguments in the case. But it did take up the case of Trinity Lutheran Church of Columbia, Inc. vs. Pauley and ruled 7-2 in June 2017 that the church had been wrongly denied state grant funds for a playground refurbishing. The Supreme Court justices decided that the state of Missouri had violated the church’s rights because it denied public funds otherwise available to all entities only because of the church’s religious status.

A day after that ruling, the Supreme Court returned the Moses v. Ruszkowsi case to the New Mexico State Supreme Court, instructing it to reconsider based on the Trinity Lutheran decision.

The state Supreme Court heard arguments in early May from the Becket Foundation, the state Education Department and Susman, the plaintiffs’ attorney.

Susman did not respond to a request for comment by press time. But according to a brief he and other lawyers filed with the U.S. Supreme Court, the issue is not about religion and the original intent of the Blaine Amendment.

They said that the New Mexico constitutional amendment differs significantly from the Blaine Amendment because it prohibits public funds to any private school, not only faith-based private schools.

The brief also stated that two other parts of the New Mexico constitution, Article 4, Section 31, and Article 9, Section 14, prohibit appropriations, loaning of materials or donations to any non-public entity.

The brief indicated that New Mexico voters rejected a proposed state constitution amendment that would have mandated free textbooks to all students, including those who attend private schools. In addition, the brief notes that Instructional Materials Fund used by the state to purchase materials it distributes does not come from state taxpayers, but from federal mineral leasing funds.

Foreman, who listened to arguments before the state Supreme Court in May, is firm in his view that the ban infringes on religious freedom, as guaranteed by Section 11 of the New Mexico Bill of Rights.

He also said the ruling is “obstructing some of the state’s most successful schools” at a time when the New Mexico, striving to improve student academic performance and high school graduation rates, should instead be encouraging school choice.

Senior Writer Lisa Dunlap can be reached at 575-622-7710, ext. 311, or at reporter02@rdrnews.com.

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Lisa Dunlap is a general assignment reporter for the Roswell Daily Record.