New Mexico’s highest court will once again debate whether the state should use public money to pay for textbooks at private schools.
The parties involved in the nearly six-year court battle filed updated legal briefs last week in the state Supreme Court in preparation for another round of arguments after the U.S. Supreme Court sent the case back to New Mexico earlier this year.
The U.S. court had voided the state court’s 2015 ruling that a longtime practice of providing public funds for textbooks in private schools, both secular and parochial, violated the New Mexico Constitution.
The case stems from a lawsuit filed by two New Mexico parents seeking to stop the practice, which they said was taking public funding away from public schools. The parents argued in their complaint that the practice also violated a provision in the state constitution that prohibits education funds from being used “for the support of any sectarian, denominational or private school, college or university.”
At stake is between $1.1 million and $1.8 million in annual federal funds that come to the state through the U.S. Mineral Leasing Act.
The state Public Education Department, as well as a number of private schools in the state, argue that those funds help the state fulfill its commitment to provide education for all children in New Mexico.
The case has weaved its way through the New Mexico court system since Cathy “Cate” Moses of Santa Fe and Paul Weinbaum of Las Cruces petitioned the New Mexico Supreme Court to hear the case in 2011.
Justices declined to hear the case, so Moses and Weinbaum filed a state District Court suit against the state in 2012. First District Court Judge Sarah Singleton in Santa Fe sided with the state and the private schools, as did the Court of Appeals.
The case made its way to the state Supreme Court, where justices ruled in favor of the parents.
The New Mexico Association of Nonpublic Schools then appealed to the U.S. Supreme Court, arguing the state justices’ decision was based on a law that is a relic of anti-Catholic discrimination.
All sides were counting on the U.S. Supreme Court to settle the matter this year, but those justices declined to hear the case in June, just a day after ruling that the state of Missouri could not deny a grant to a church for playground improvements merely because it is a religious institution.
The U.S. court sent the textbook case back to New Mexico’s high court, asking all parties to comment on what the Missouri ruling means for New Mexico.
The Missouri case, Trinity Lutheran V. Comer, could change the legal landscape in which New Mexico’s textbook case is set, lawyer Eric Baxter said.
“I think the U.S. Supreme Court sent a clear message that the New Mexico Supreme Court needs to think about this issue in light of the Trinity Lutheran case,” said Baxter, senior counsel at the nonprofit Becket Fund for Religious Liberty in Washington, D.C., which is representing the New Mexico Association of Nonpublic Schools in the case.
“I think that bodes well for us,” he said. “We are optimistic moving forward.”
The Becket Fund, in its brief filed last week, maintains that prohibiting the state from providing textbooks to private and religious schools continues a tradition of “religious bigotry” — a point that the Trinity Lutheran case highlights, Baxter said.
The Public Education Department, which also filed a brief in the case, echoed that point and, in a new twist, said New Mexico’s constitution may in turn be violating the U.S. Constitution’s Free Exercise Clause, which says states cannot deny equal protection of laws to any group regardless of religion.
But Santa Fe attorney Frank Susman, who represents Moses and Weinbaum, said the New Mexico Supreme Court’s original ruling should stand. Nothing in the U.S. Supreme Court’s decision to let state justices make a decision suggests they should reverse their initial ruling, he said.
“I would be surprised if they change their mind,” Susman said of the state court justices.
His brief says that if the state Supreme Court does allow the Public Education Department to provide textbooks to private schools, that right could be expanded to include desks, buses, teachers and even buildings, further depleting public education dollars in a state whose budget is already stretched thin.
Lida Alikhani, a spokeswoman for the education department, did not respond to a request for comment on the case.
All parties have until Dec. 18 to file responses to the new briefs, and then the state Supreme Court will schedule a hearing for oral arguments — an event that likely will not take place until early next year, given the approaching holiday season.
Meanwhile, the state is not providing textbook funding to any private schools this year in deference to state justices’ previous ruling.
Contact Robert Nott at 505-986-3021 or email@example.com.