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NM Supreme Court rejects public funds for textbooks for private schools

SANTA FE – The New Mexico Supreme Court ruled Thursday that a state law allowing private schools to get publicly purchased textbooks and other instructional materials is unconstitutional, effectively cutting more than $1 million in state funding from private schools’ budgets.

The high court’s unanimous decision overturned two previous lower court rulings and affects 109 private schools around the state – both secular and religiously affiliated.

“I’m disappointed in the ruling because I think all New Mexico kids should have access to this funding,” said Jim Leonard, the head of Santa Fe Prep, a private school that is receiving roughly $17,000 worth of textbooks and materials this year.

“Our parents do pay taxes …. and for them to have to pay more for the books on the state (textbook) list instead of having the state pay for it seems less than just,” he added.

However, one of the attorneys for the two parents who filed the petition with the Supreme Court – both have children in public schools – said the Supreme Court’s ruling follows similar rulings in other states and could free up more funding for public schools.

Frank Susman, the Santa Fe attorney, also said he was surprised the state Public Education Department had been distributing funding to private schools for nearly 30 years, under the state’s Instructional Material Law, before the law was challenged in 2011.

“I’ve always been of the belief that if you want to send your kids to private school that’s fine, but don’t expect public funds to pay for it,” Susman said in a Thursday interview.

In all, nearly $1.4 million worth of books were provided to the 109 private schools around New Mexico last year, according to the Public Education Department.

More than $1 million had been allocated for the current budget year.

The state law under scrutiny has called for PED to allocate money to each school district or private school for textbooks and other materials, such as computer programs. At least half of the textbooks must be selected from an approved list maintained by the state.

The funding amount is based on enrollment, with larger schools receiving more money, and schools have been barred from procuring religious texts with public dollars.

But the Supreme Court, in its Thursday ruling, said the writers of the state Constitution chose to explicitly prohibit the use of public funds for the benefit of private schools, regardless of whether they are secular or sectarian.

“A public school under the control of the state can directly receive funds, while a private school not under the exclusive control of the state can not receive either direct or indirect support,” Supreme Court justice Edward Chávez wrote in the 28-page ruling.

He also noted that private schools have benefited from the current law by being able to divert tuition payments and donations – which public schools generally do not get – for other uses due to the state providing textbooks and materials.

The two plaintiffs in the case – Cathy Moses of Santa Fe and Paul Weinbaum of Las Cruces – had based their constitutional argument against the state law on two points: because it provides public funds to private parties in violation of the state’s “anti-donation clause” and because it forced them, as taxpayers, to follow the religious dictates of others.

Both a district court judge and the Court of Appeals had rejected those arguments, before the Supreme Court overturned the lower court rulings, focusing primarily on the public dollars for private schools issue.

The high court ruling pointed out that New Mexico voters rejected a 1969 constitutional amendment that would have required the state to provide free textbooks to all school children in the state, leaving in place the restrictive private school language.

Meanwhile, it was unclear Thursday what might happen with the already-provided textbooks and materials being used in private schools. Susman, the plaintiffs’ attorney, said he plans to contact the Public Education Department about the issue and whether it plans to retrieve the texts.

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