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State Supreme Court rules for private schools in reconsidered case

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In reconsidering a prior decision, the New Mexico Supreme Court has ruled 3-2 that the state can lend state-approved instructional materials to private schools. (Submitted Photo)

A recent decision by the New Mexico Supreme Court upholding the constitutionality of a law that allows the state to lend textbooks and instructional materials to private school students still leaves some questions unsettled, according to the head of an association involved in the legal matter.

Whether the New Mexico Legislature will have to take action to reinstate the program and whether private schools can recover all or some of the estimated millions of dollars that they have spent from their own budgets are two remaining questions, said John Foreman, the head of Mesilla Valley Christian Schools in Las Cruces and state director of the New Mexico Association for Non-Public Schools, an intervenor in the case that began seven years ago.

Lawyers for the plaintiffs who filed the original case did not respond to requests for comment by press time. The plaintiffs have until March 17 to file an appeal.

The issue affects Gateway Christian School and All Saints Catholic School, as well as about 148 other private K12 schools in the state and their 26,000 students.

“Over the years, this program (the instructional materials lending program) has greatly benefited thousands of New Mexico children and their families,” Foreman said. “At the same time, it also has enhanced K12 education for all, regardless of income or geographic location, both in our largest cities and most rural communities.”

Foreman explained that statewide private schools, some of which serve primarily low-income students, have spent about $1.6 million a year on state-approved textbooks and other instructional materials after a 2015 state Supreme Court decision declared the state Instructional Materials Law to be in violation of the New Mexico Constitution. That law allowed the state, working through public schools, to lend instructional materials to private K12 schools.

The lawsuit began when two individuals sued the New Mexico Department of Public Education and an Albuquerque private academy in 2011, saying the law violated three provisions in the state constitution that prohibit the use of public funds for the benefit of individuals or non-public or religious-oriented entities.

The 1st District Court and the Court of Appeals ruled to uphold the law, but the New Mexico State Supreme Court decided in 2015 that the law did violate the state constitution.

That 2015 decision was appealed by the school association and the Beckett Foundation for Religious Liberty to the U.S. Supreme Court, which in 2017 vacated the state decision and remanded the case back, instructing the state court to reconsider its decision based on the U.S. Supreme Court’s ruling in another case.

The U.S. Supreme Court had ruled in 2017 in a case known as Trinity Lutheran Church of Columbia Inc. vs. Pauley that the church had been wrongly denied grant funds provided by the state of Missouri for playground refurbishing only because of the organization’s religious affiliation.

In making its recent ruling, the majority of New Mexico Supreme Court justices found that the Instructional Materials Law is intended to benefit students and their parents, not private institutions, and serves a legitimate state concern to promote education and literacy among its residents.

Furthermore, they found that one of the state constitutional provisions that banned the use of public funds for private schools — Article XII, Section 3, a so-called “mini-Blaine Amendment — had its roots in anti-Catholic sentiment nationwide in the 1800s and should be viewed today as being discriminatory. The other two constitutional provisions in question, they stated, are not in question because the public funds are going to the state, not to individuals or private institutions.

In their dissenting opinions, justices Judith Nakamura and Gary Clingman stated, in part, that there is not sufficient evidence to conclude that Article XII, Section 3, was motivated by religious discrimination. Instead, they stated, the provision makes a distinction between private and public schools, a distinction that can serve a legitimate state concern regarding conserving and managing public funds.

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