Two New Mexico residents, including a man who sued Las Cruces to remove the crosses from that city's logo, are asking the state Supreme Court to stop New Mexico's 40-year-old-old practice of providing textbooks to religious schools.

The petition, filed Wednesday, claims that more than 40 percent of the money the state spends on textbooks for private schools goes to religious schools. The average total for the previous two fiscal years was approximately $1.8 million a year.

Named as defendants are Gov. Susana Martinez and Attorney General Gary King — even though the petition cites an opinion by King's office that acknowledges the practice of providing books to schools like St. Michael's High School and Española's McCurdy School might not pass constitutional muster.

The plaintiffs in the case are Cathy Moses of Santa Fe and Paul Weinbaum of Las Cruces, who has been active in other church/state lawsuits. In addition to the Las Cruces crosses case, which was dismissed in a federal appeals court, Weinbaum also made news in 2005, when he criticized then Gov. Bill Richardson for giving state workers half a day off to honor Pope John Paul II after the pontiff's death.

Larry Behrens, a spokesman for the state Public Education Department, said Wednesday, "While we haven't seen the lawsuit, I can tell you [the department] follows the decades-old Instructional Materials Act, which means all students are entitled to textbooks and other instructional materials."

That law, passed about 40 years ago, says "any qualified student or person eligible to become a qualified student attending a public school, a state institution or a private school approved by the department in any grade from 1-12th grade of instruction is entitled to the free use of instructional material." Also, students enrolled in an early-childhood education program, including those in private programs, are entitled to the free use of instructional materials.

The lawsuit notes that the U.S. Supreme Court has "repeatedly held" that the use of public funds to provide textbooks to religious schools does not violate the Constitution. But, the suit argues, state constitutions are sometimes more strict than the U.S. Constitution.

"New Mexico has one of the strictest," said Santa Fe lawyer Frank Susman, who is one of the lawyers representing Weinbaum and Moses.

King spokesman Phil Sisneros said Wednesday that the attorney general had not yet seen the lawsuit, so he couldn't comment.

However, late last year, King's office, at the request of state Rep. Sheryl Williams Stapleton, published an opinion dealing with the question of whether the state law on providing textbooks to private and religious schools violated the state constitution.

Deputy Attorney General Elizabeth Glenn, in the Dec. 27, 2010, opinion, said, "We have little choice but to conclude that the provisions of the [Instructional Materials] Law requiring [the Public Education Department] to provide private schools with free textbooks and other instructional materials for the use of their students may be vulnerable to constitutional challenge."

In the opinion, Glenn said the law might be in violation of the anti-donation clause of the state constitution, which prohibits the government from donating assets to a private entity, as well as another section of the constitution that prohibits the state from donating to "any sectarian, denominational or private school, college or university."

The opinion refers to a 1951 state Supreme Court ruling that found it violated the state constitution to subsidize parochial schools by providing free textbooks and transportation. Susman noted the opinion doesn't mention any case law to the contrary.

In the previous two fiscal years, according to an exhibit submitted by the plaintiffs, St. Michael's, a Roman Catholic school, received textbooks worth a total of more than $107,000, while McCurdy, which is a project of the United Methodist Church, received almost $50,000

Contact Steve Terrell at 986-3037 or sterrell@sfnewmexican.com. Read his political blog at roundhouseroundup.com.


UPDATE: 11:22 a.m. The name of lawyer Frank Susman was misspelled in a previous version of this story. It has been corrected.

UPDATE : 4:30 p.m. 11-18-11 A previous version of the story mistakenly said Temple Beth Shalom's preschool had received about $17,000 in state funds for the fiscal year beginning in July 2008. The amount listed on the state Public Eduation Department’s web site, as well as in a document accompanying the lawsuit  is $2,134. However, Rabbi Marvin Schwab of Temple Beth Shalom said the pre-school has not received any state funds. The reference to the school has been deleted in the text.