New Mexico’s highest court on Monday renewed debate about whether the state should use public money to pay for textbooks at private schools.

Lawyers on each side again laid out their arguments, which date to a 2011 lawsuit filed by two parents who want to stop the practice of providing public funds for textbooks in private schools.

Those parents — Cathy “Cate” Moses of Santa Fe and Paul Weinbaum of Las Cruces — said using public money for private schools violates 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.”

Frank Susman, the Santa Fe attorney representing the parents, reiterated that argument before the New Mexico Supreme Court. He also said at least two other constitutional amendments make it clear that the state cannot make any such appropriation to private entities, schools or students.

“They all absolutely ban this type of aid,” he told the court.

But attorneys for both The Becket Fund for Religious Liberty, an advocacy group based in Washington, D.C., and New Mexico’s Public Education Department, countered that those constitutional amendments have roots steeped in anti-religious sentiments of New Mexico’s pre-statehood period.

Eric Baxter, vice president and senior counsel for The Becket Fund, told the court that in New Mexico’s efforts to achieve statehood, its leaders chose to “impose an outright ban” on providing support to all private entities and not just those with a religious bent.

“It was all about anti-Catholic animus,” he said.

Several justices brought up that historical context, questioning whether they had the right to ignore it when coming to a decision. Susman told the justices that the constitutional provisions speak for themselves.

“They say what they mean and mean what they say,” Justice Petra Jimenez Maes responded. “If that was true, we wouldn’t be here today.”

Her comment was a reference to the debate the case has inspired for more than six years and the light that a 2017 U.S. Supreme Court case continues to shed on the issue.

That 2017 case — Trinity Lutheran Church of Columbia Inc. v. Comer — centered on a church that sought to resurface a large portion of its playground by replacing pea gravel with a rubber surface made from recycled tires. To pay for the project, the church applied for a grant from a tire-recycling program run by the state of Missouri. But Missouri officials denied the church’s application, pointing to a section of the state constitution prohibiting public financial support for a church.

Reversing lower-court decisions, the U.S. Supreme Court ruled the state’s policy violated the church’s rights by denying an otherwise available public benefit only because of its religious status.

At the time, the U.S. Supreme Court was considering hearing the New Mexico textbook case after The Becket Fund asked that federal body to overturn a 2015 New Mexico Supreme Court ruling that sided with the parents who had complained. But following the Trinity Lutheran Church ruling last summer, the U.S. Supreme Court sent the textbook case back to New Mexico, asking the state justices to reconsider it because of the ruling favoring Trinity Lutheran Church.

At stake in New Mexico is well over $1 million in annual federal funds that come to the state through the U.S. Mineral Leasing Act.

The New Mexico Public Education Department, adhering to the state Supreme Court decision of several years ago, has not provided funding for private school textbooks since that time.

Chief Justice Judith Nakamura said the justices will rule after an unspecified period of time. Baxter said he hopes that decision comes before the end of the year.

Contact Robert Nott at 505-986-3021 or

General Assignment Reporter

Robert Nott has covered education and youth issues for the Santa Fe New Mexican. He is assigned to The New Mexican's city desk where he covers a general assignment beat.

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