CATHY MOSES AND PAUL F. WEINBAUM, Plaintiffs-Petitioners,
CHRISTOPHER RUSZKOWSKI, Secretary of Education, New Mexico Public Education Department, Defendant-Respondent, and ALBUQUERQUE ACADEMY, et al., Defendants/Intervenors-Respondents.
ORIGINAL PROCEEDING ON CERTIORARI Sarah M. Singleton,
Graeser & McQueen, LLC Christopher L. Graeser Santa Fe,
NM Frank Susman Santa Fe, NM for Petitioners
Mexico Public Education Department Dawn E. Mastalir, General
Counsel Santa Fe, NM Sutin, Thayer & Browne, P.C. Susan
M. Hapka Albuquerque, NM for Respondent
Modrall, Sperling, Roehl, Harris & Sisk, P.A. Rufus E.
Thompson Jennifer G. Anderson Sarah M. Stevenson Albuquerque,
NM The Becket Fund for Religious Liberty Eric S. Baxter
Washington, DC for Intervenors-Respondents
In this opinion we reconsider the constitutionality of New
Mexico's textbook loan program. In Moses v.
Skandera (Moses II), this Court considered
whether using public funds to lend textbooks to private
school students violated Article XII, Section 3 support of
any sectarian, denominational or private school, college or
university." 2015-NMSC-036, 367 P.3d 838, vacated
sub nom., N.M. Ass'n of Non-public Sch. v.
Moses, 137 S.Ct. 2325 (2017) (mem.). This Court held
"that the plain meaning and history of Article XII,
Section 3 forbids the provision of books for use by students
attending private schools, whether such schools are secular
or sectarian." Moses II, 2015-NMSC-036, ¶
2. The United States Supreme Court subsequently vacated this
Court's judgment and remanded the case for further
consideration in light of Trinity Lutheran Church of
Columbia, Inc. v. Comer, 582 U.S. ___, 137 S.Ct. 2012
(2017). N.M. Ass'n of Non-public Sch., 137 S.Ct.
On remand, we conclude that this Court's previous
interpretation of Article XII, Section 3 raises concerns
under the Free Exercise Clause of the First Amendment to the
United States Constitution. To avoid constitutional concerns,
we hold that the textbook loan program, which provides a
generally available public benefit to students, does not
result in the use of public funds in support of private
schools as prohibited by Article XII, Section 3. We also hold
that the textbook loan program is consistent with Article IV,
Section 31 of the New Mexico Constitution, which addresses
appropriations for educational purposes, and Article IX,
Section 14 of the New Mexico Constitution, which limits
"any donation to or in aid of any person, association or
public or private corporation."
Cathy Moses and Paul F. Weinbaum (Petitioners) initiated this
case by filing a complaint for declaratory judgment against
Hanna Skandera, the Secretary of the New Mexico Public
Education Department (Department). Petitioners sought a
declaration that the Instructional Material Law (IML), NMSA
1978, §§ 22-15-1 to - 14 (1967, as amended through
2011), violates several provisions of the New Mexico
Constitution because the IML provides for the distribution of
public funds to private schools.
The IML establishes an instructional material fund that is
administered by the Department. See §
22-15-5(A). The Department uses the fund to purchase
textbooks that are loaned free of charge to public and
private school students enrolled in first through twelfth
grades and in early childhood education programs.
See §§ 22-15-5(B), 22-15-7(A); see
also § 22-15-2(C) (defining "instructional
material," which is referred to collectively in this
opinion as "textbooks"). Although schools play a
role in the implementation of the IML, they do so as agents
for the benefit of their students. See §§
22-15-7(B), 22-15-8(B). The Department allocates the money in
the instructional material fund to schools based on the
number of students enrolled. See § 22-15-9(A).
The schools select textbooks from a "multiple list"
approved by the Department. See §§
22-15-2(D), 22-15-8(B). The IML permits schools to use a
portion of their allocated funds for the purchase of
instructional materials, classroom materials, and "items
that are not on the multiple list; provided that no funds
shall be expended [by a private school] for religious,
sectarian or nonsecular materials." Section 22-15-9(C).
The Department distributes the textbooks to the schools,
see § 22-15-7(B), and the schools disseminate
the textbooks to their students, see §
22-15-7(C). Schools are responsible for the safekeeping of
the textbooks, id., and may hold a student or parent
"responsible for the loss, damage or destruction
of" a textbook that is "in the possession of the
student." Section 22-15-10(B).
Petitioners moved for summary judgment in the district court.
At a summary judgment hearing, the district court indicated
that it intended to grant the motion based on Zellers v.
Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949
(addressing issues concerning public funding of parochial
schools and Catholic influence in public schools). But before
the district court entered summary judgment, Intervenors, the
Albuquerque Academy, the New Mexico Association of Non-public
Schools, Rehoboth Christian School, St. Francis School, Hope
Christian School, Sunset Mesa School, and Anica and Maya
Benia moved to intervene. The district court granted the
motion to intervene and ordered the parties to submit
additional briefing on whether Zellers precluded the
use of IML funds to purchase textbooks for distribution to
private schools. At a second summary judgment hearing, the
district court concluded that Zellers did not
constitute binding or persuasive authority, denied
Petitioners' motion for summary judgment, and granted
summary judgment in favor of the Department. The Court of
Appeals affirmed. Moses v. Skandera (Moses
I), 2015-NMCA-036, ¶ 2, 346 P.3d 396,
rev'd, 2015-NMSC-036, ¶¶ 12, 41.
Petitioners sought review by this Court, raising five issues:
(1) whether this Court's decision in Zellers
constituted dicta; (2) whether the IML violates Article XII,
Section 3 of the New Mexico Constitution; (3) whether the IML
violates Article IV, Section 31 of the New Mexico
Constitution; (4) whether the IML violates Article IX,
Section 14 of the New Mexico Constitution; and (5) whether
the IML violates Article II, Section 11 of the New Mexico
Moses II, 2015-NMSC-036, ¶ 11. This Court held
that loaning textbooks to private school students violated
Article XII, Section 3 and declined to reach the remaining
issues. Moses II, 2015-NMSC-036, ¶ 12.
The New Mexico Association of Non-public Schools filed a
petition for a writ of certiorari in the United States
Supreme Court. The day after the Supreme Court issued its
opinion in Trinity Lutheran, 137 S.Ct. 2012, the
Supreme Court granted review of this Court's opinion in
Moses II, vacated this Court's judgment, and
remanded the case to this Court for further consideration in
light of Trinity Lutheran. See N.M. Ass'n of
Non-public Sch., 137 S.Ct. 2325. In accordance with the
Supreme Court's directive, in this opinion we take a
fresh look at the constitutionality of the textbook loan
program under the New Mexico Constitution.
On remand, Petitioners argue that loaning textbooks to
private school students under the IML violates three
provisions of the New Mexico Constitution: (1) Article XII,
Section 3, which prohibits the use of public funds "for
the support of any sectarian, denominational or private
school, college or university"; (2) Article IV, Section
31, which precludes an appropriation for "educational .
. . purposes to any person, corporation, association,
institution or community, not under the absolute control of
the state"; and (3) Article IX, Section 14, which limits
"any donation to or in aid of any person, association or
public or private corporation."
The Department and Intervenors argue that Article XII,
Section 3, as interpreted by the Court in Moses II,
violates the Free Exercise Clause of the First Amendment to
the United States Constitution and the equal protection
guarantees of the federal and state constitutions. They ask
this Court to interpret Article XII, Section 3 in a manner
that permits the state to loan textbooks to private school
students under the IML and assert that such an interpretation
would be consistent with the United States Constitution.
Standard of Review
This Court applies a de novo standard of review to a
constitutional challenge to a statute. Bounds v. State ex
rel. D'Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d
457. In doing so, we presume that the statute is valid and
will uphold it "unless we are satisfied beyond all
reasonable doubt that the Legislature went outside the bounds
fixed by the Constitution in enacting the challenged
legislation." Id. (internal quotation marks and
citation omitted). "We will not question the wisdom,
policy, or justness of a statute, and the burden of
establishing that the statute is invalid rests on the party
challenging th e constitutionality of the statute."
Id. (internal quotation marks and citation omitted).
Loaning Textbooks to Private School Students Under
the IML Does Not Constitute Support of Private Schools as
Prohibited by Article XII, Section 3
This Court's previous interpretation of Article XII,
Section 3 in Moses II
This Court based its decision in Moses II,
2015-NMSC-036, on Article XII, Section 3 of the New Mexico
Constitution, which provides that
[t]he schools, colleges, universities and other educational
institutions provided for by this constitution shall forever
remain under the exclusive control of the state, and 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.
determine whether loaning textbooks to private school
students constituted support of private schools in violation
of Article XII, Section 3, this Court considered the
historical circumstances that led to the provision's
adoption, including the nationwide controversy over public
education. See Moses II, 2015-NMSC-036, ¶¶
"During the early nineteenth century, public education
was provided in public schools known as common schools."
Moses II, 2015-NMSC-036, ¶ 19 (internal
quotation marks and citation omitted). These common schools
were heavily influenced by non-denominational Protestantism.
See Mark Edward DeForrest, An Overview and
Evaluation of State Blaine Amendments: Origins, Scope, and
First Amendment Concerns, 26 Harv. J.L. & Pub.
Pol'y 551, 559-60 (2003) (describing the "overt
fusion of Protestant faith with public education");
Joseph P. Viteritti, Blaine's Wake: School Choice,
The First Amendment, and State Constitutional Law, 21
Harv. J.L. & Pub. Pol'y 657, 666 (1998) (noting that
the common schools promoted "the teachings of mainstream
Protestantism"). The Protestant-run common schools
were" 'designed to function as an instrument for the
acculturation of immigrant populations, rendering them good
productive citizens in the image of the ruling
majority.'" Moses II, 2015-NMSC-036, ¶
19 (quoting Viteritti, supra, at 668). "State
statutes at the time authorized Bible readings in public
schools and state judges generally refused to recognize the
Bible as a sectarian book." Id.
"By the middle of the nineteenth century," an
"influx of Catholic immigrants created a demand for
Catholic education, and consequently Catholics and other
minority religionists challenged the Protestant influence in
the common schools." Id. ¶ 20. Protestants
responded by "calling for legislation prohibiting
sectarian control over public schools and the diversion of
public funds to religious institutions." Steven K.
Green, The Blaine Amendment Reconsidered, 36 Am. J.
Legal Hist. 38, 43 (1992). President Ulysses S. Grant entered
the debate by vowing to" '[e]ncourage free schools,
and resolve that not one dollar be appropriated to
support any sectarian schools.'"
Moses II, 2015-NMSC-036, ¶ 21 (alteration in
original) (emphasis added) (quoting Viteritti,
supra, at 670). At that time, "[i]t was an open
secret that 'sectarian' was code for
'Catholic.'" Id. (internal quotation
marks and citation omitted).
In 1875, Congressman James G. Blaine proposed the following
amendment to the federal constitution:
No State shall make any law respecting an establishment of
religion, or prohibiting the free exercise thereof; and no
money raised by taxation in any State for the support of
public schools, or derived from any public fund therefor,
[nor] any public lands devoted thereto, shall ever be under
the control of any religious sect; nor shall any money so
raised or lands so devoted be divided between religious sects
supra, at 38 n.2 (quoting 4 Cong. Rec. 5453 (1876)).
This proposed amendment to the federal constitution failed to
pass, but similar provisions were soon incorporated into
state law. Moses II, 2015-NMSC-036, ¶ 23.
"By 1876, fourteen [s]tates had enacted legislation
prohibiting the use of public funds for religious schools; by
1890, twenty-nine [s]tates had incorporated such provisions
into their constitutions." Viteritti,
supra, at 673.
Although many states voluntarily chose to adopt state
constitutional provisions based on the failed Blaine
amendment, Congress forced New Mexico and other territories
seeking admission to the union to adopt Blaine provisions as
a condition of statehood. See DeForrest,
supra, at 573-74; Viteritti, supra, at 673.
Congress passed the Enabling Act for New Mexico in 1910.
See Enabling Act for New Mexico of June 20, 1910,
ch. 310, 36 Stat. 557. The Enabling Act required New Mexico
to establish and maintain "a system of public schools .
. . free from sectarian control," id. § 2,
and granted New Mexico "over thirteen million acres of
federal land . . . to be held in trust for the benefit of
various public schools and other institutions."
State of N.M. ex rel. King v. Lyons,
2011-NMSC-004, ¶ 5, 149 N.M. 330, 248 P.3d 878. The
Enabling Act further mandated
[t]hat the schools, colleges, and universities provided for
in this Act shall forever remain under the exclusive control
of the said State, and no part of the proceeds arising from
the sale or disposal of any lands granted herein for
educational purposes shall be used for the support of any
sectarian or denominational school, college, or university.
Act § 8. "The Enabling Act required that the people
of New Mexico incorporate its mandates into the state
constitution, and it specified that those mandates could not
be modified without the consent of Congress and a ratifying
vote of our citizens." Lyons, 2011-NMSC-004,
¶ 4; see also N.M. Const. art. XXI, § 9
(consenting to Enabling Act provisions); N.M. Const. art.
XXI, § 10 (making Enabling Act provisions
"irrevocable without the consent of the United States
and the people of this state").
The drafters of the New Mexico Constitution modeled Article
XII, Section 3 on Section 8 of the Enabling Act but made two
significant changes to the language drafted by Congress.
First, Article XII, Section 3 restricts "the use of
proceeds from any lands granted to New Mexico by
Congress, not only those granted in the Enabling Act."
Moses II, 2015-NMSC-036, ¶ 27. And second,
Article XII, Section 3 restricts "the use of any funds
appropriated, levied, or collected for educational purposes
for the support of not only sectarian schools, but also the
much broader category of private schools."
Moses II, 2015-NMSC-036, ¶ 27 (emphasis added).
"Through these changes, the Constitutional Convention
decided to provide for additional restrictions on public
funding of education beyond the restrictions required by
Section 8 of the Enabling Act." Moses II,
2015-NMSC-036, ¶ 27. "The members of the
Constitutional Convention chose to play it safe-by broadening
the provision to reach all private schools, they avoided
drawing a line between secular and sectarian education."
In Moses II, this Court considered two
interpretations of Article XII, Section 3: a permissive
interpretation that would allow the state to lend textbooks
to private school students under the IML, and a restrictive
interpretation that would preclude such lending. Moses
II, 2015-NMSC-036, ¶¶ 30-38. Our Court of
Appeals had taken the permissive approach, construing the
limitations in Article XII, Section 3 as coextensive with the
limitations set forth in the Establishment Clause of the
First Amendment to the United States Constitution. See
Moses I, 2015-NMCA-036, ¶ 34. The Court of Appeals
explained that the Establishment Clause, which prohibits
Congress from making any law "respecting an
establishment of religion," U.S. Const. amend. I, does
not bar a state from creating a textbook loan program that
provides secular instructional material for the benefit of
students and their parents, "regardless of the school of
their attendance." See Moses I, 2015-NMCA-036,
¶¶ 34-38. The Court of Appeals concluded that
although the IML may ...