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Moses v. Ruszkowski

Supreme Court of New Mexico

December 13, 2018

CATHY MOSES AND PAUL F. WEINBAUM, Plaintiffs-Petitioners,
v.
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, District Judge

          Graeser & McQueen, LLC Christopher L. Graeser Santa Fe, NM Frank Susman Santa Fe, NM for Petitioners

          New 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

          OPINION

          VIGIL, JUSTICE.

         {¶1} 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. 2325.

         {¶2} 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."

         I. BACKGROUND

         {¶3} 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).[1] 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.

         {¶4} 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).

         {¶5} 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.

         {¶6} 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 Constitution.

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.

         {¶7} 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.

         II. DISCUSSION

         {¶8} 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."

         {¶9} 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.

         A. Standard of Review

         {¶10} 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).

         B. Loaning Textbooks to Private School Students Under the IML Does Not Constitute Support of Private Schools as Prohibited by Article XII, Section 3

         1. This Court's previous interpretation of Article XII, Section 3 in Moses II

         {¶11} 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.

         To 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, ¶¶ 19-23.

         {¶12} "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.

         {¶13} "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).

         {¶14} 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 or denominations.

         Green, 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.

         {¶15} 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.

         Enabling 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").

         {¶16} 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." Id.

         {¶17} 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, ΒΆΒΆ 34-38. The Court of Appeals concluded that although the IML may ...


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