1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 Opinion Number:______________
3 Filing Date: November 12, 2015
4 CATHY MOSES and PAUL F.
5 WEINBAUM,
6 Plaintiffs-Petitioners,
7 v. NO. S-1-SC-34,974
8 HANNA SKANDERA, Designate
9 Secretary of Education, New Mexico
10 Public Education Department,
11 Defendant-Respondent,
12 and
13 ALBUQUERQUE ACADEMY, et al.,
14 Defendants/Intervenors-Respondents.
15 ORIGINAL PROCEEDING ON CERTIORARI
16 Sarah M. Singleton, District Judge
17 Graeser & McQueen, LLC
18 Christopher L. Graeser
19 Santa Fe, NM
20 Frank Susman
21 Santa Fe, NM
22 for Petitioners
1 New Mexico Public Education Department
2 Albert V. Gonzales, Deputy General Counsel
3 Santa Fe, NM
4 Sutin, Thayer & Browne, P.C.
5 Susan M. Hapka
6 Albuquerque, NM
7 for Respondent
8 Modrall, Sperling, Roehl, Harris & Sisk, P.A.
9 R.E. Thompson
10 Emil J. Kiehne
11 Jennifer G. Anderson
12 Sarah M. Stevenson
13 Albuquerque, NM
14 Becket Fund for Religious Liberty
15 Eric S. Baxter
16 Washington, DC
17 for Intervenors-Respondents
1 OPINION
2 CHÁVEZ, Justice.
3 {1} Since the adoption of the New Mexico Constitution on January 21, 1911, New
4 Mexico has had a constitutional responsibility to provide a free public education for
5 all children of school age. N.M. Const. art. XII, § 1. However, “no part of the
6 proceeds arising from the sale or disposal of any lands granted to the state by
7 congress, or any other funds appropriated, levied or collected for educational
8 purposes, shall be used for the support of any sectarian, denominational or private
9 school, college or university.” N.M. Const. art. XII, § 3 (emphasis added). The New
10 Mexico Department of Public Education’s (Department) Instructional Material
11 Bureau purchases non-religious instructional materials selected by public or private
12 schools, with funds appropriated by the Legislature and earmarked for the schools,
13 and lends these materials to qualified students who attend public or private schools.
14 NMSA 1978, § 22-15-7 (2010); see also NMSA 1978, § 22-8-34 (2001). The
15 question we address in this case is whether the provision of books to students who
16 attend private schools violates Article XII, Section 3. We conclude that the New
17 Mexico Constitutional Convention was not willing to navigate the unclear line
18 between secular and sectarian education, or the unclear line between direct and
19 indirect support to other than public schools. Indeed, in 1969 the voters rejected a
1 proposed constitutional amendment that would have required New Mexico to provide
2 free textbooks to all New Mexico school children. See Proposed New Mexico
3 Constitution (as adopted by the Constitutional Convention of 1969) 45 (October 20,
4 1969). We hold that the plain meaning and history of Article XII, Section 3 forbids
5 the provision of books for use by students attending private schools, whether such
6 schools are secular or sectarian.
7 I. The Instructional Material Law is funded by appropriations
8 {2} The Instructional Material Law (IML), NMSA 1978, §§ 22-15-1 to -14 (1967,
9 as amended through 2011), grants the Department’s Instructional Material Bureau
10 statutory authority to lend approved instructional materials1 to “[a]ny qualified
11 student . . . attending a public school, a state institution or a private school approved
12 by the department in any grade from first through the twelfth grade of instruction
13 . . . .” Section 22-15-7(A) (emphasis added). “Instructional material shall be
14 distributed to school districts, state institutions and private schools as agents for the
15 benefit of students entitled to the free use of the instructional material.” Section 22-
16 1
“ ‘[I]nstructional material’ means school textbooks and other educational
17 media that are used as the basis for instruction, including combinations of textbooks,
18 learning kits, supplementary material and electronic media.” Section 22-15-2(C); see
19 also § 22-15-3(A) (“The ‘instructional material bureau’ is created within the
20 department of education [public education department].” (alteration in original)).
2
1 15-7(B) (emphasis added). In turn, “[a]ny school district, state institution or private
2 school as agent receiving instructional material pursuant to the Instructional Material
3 Law is responsible for distribution of the instructional material for use by eligible
4 students and for the safekeeping of the instructional material.” Section 22-15-7(C)
5 (emphasis added). Students or their parents are “responsible for the loss, damage or
6 destruction of instructional material while the instructional material is in the
7 possession of the student.” Section 22-15-10(B).
8 {3} The Department is required to publish a “multiple list” of state-approved
9 instructional materials. Section 22-15-8(A), (B); § 22-15-2(D) (“ ‘[M]ultiple list’
10 means a written list of those instructional materials approved by the department.”).
11 Using the multiple list of state-approved instructional materials, “each school district,
12 state institution or private school as agent may select instructional material for the use
13 of its students . . . .” Section 22-15-8(B). “At least ten percent of instructional
14 material on the multiple list concerning language arts and social studies shall contain
15 material that is relevant to the cultures, languages, history and experiences of multi-
16 ethnic students.” Section 22-15-8(A). Moreover, “[t]he Department shall ensure that
17 parents and other community members are involved in the adoption process at the
18 state level.” Id.
3
1 {4} The IML is funded through a non-reverting “instructional material fund”
2 established by the State Treasurer “consist[ing] of appropriations, gifts, grants,
3 donations and any other money credited to the fund.” Section 22-15-5(A). In 1931,
4 the Legislature enacted the State School Building, Text Book and Rural Aid Fund to
5 purchase instructional materials with unappropriated federal funds obtained through
6 the Mineral Lands Leasing Act, 30 U.S.C. §§ 181 to 287 (1920, as amended through
7 2012). N.M. Laws 1931, ch. 138, § 2 (“There is hereby appropriated for the purposes
8 of this fund, annually, all of the balance, not otherwise appropriated, in the Mineral
9 [Lands Leasing] Act Fund . . . .”). Today the Department’s Instructional Material
10 Bureau continues to purchase instructional materials for New Mexico students using
11 federal Mineral Lands Leasing Act funds. See § 22-8-34(A) (“Except for an annual
12 appropriation to the instructional material fund and to the bureau of geology and
13 mineral resources of the New Mexico institute of mining and technology . . . all other
14 money received by the state pursuant to the provisions of the federal Mineral Lands
15 Leasing Act, shall be distributed to the public school fund.” (citation omitted)).
16 {5} Each public and private school is allocated a percentage of money available in
17 the IML fund based on the number of students enrolled in their school. Section 22-
18 15-9(A). “Private schools may expend up to fifty percent of their instructional
4
1 material funds for items that are not on the multiple list; provided that no funds shall
2 be expended for religious, sectarian or nonsecular materials . . . .” Section 22-15-9(C)
3 (emphasis added). Such instructional material purchases must be identified and
4 purchased through the Department’s in-state depository. Section 22-15-9(C), (E); see
5 also § 22-15-4(D). “Any balance remaining in an instructional material account of
6 a private school at the end of the fiscal year shall remain available for reimbursement
7 by the department for instructional material purchases in subsequent years.” Section
8 22-15-9(F). The Department’s Instructional Material Bureau has the authority to
9 “withdraw or withhold the privilege of participating in the free use of instructional
10 material in case of any violation of or noncompliance with the provisions of the
11 Instructional Material Law or any rules adopted pursuant to that law.” Section 22-15-
12 4(C).
13 {6} In summary, the Legislature appropriates instructional materials funds and
14 private schools are allocated a percentage of the funds based on the number of
15 students enrolled in their schools. Private schools select instructional materials from
16 a multiple list, but they may spend up to 50 percent of their instructional materials
17 funds on items that are not on the multiple list, as long as the material is not religious
18 in content. Any money remaining in the private schools instructional material fund
5
1 may be carried over to subsequent years. Once the materials are purchased, the
2 materials are loaned to the students. Hereafter in this opinion we will refer to this
3 process as a “schoolbook loan program” for ease of reference.
4 II. Procedural history
5 {7} Plaintiffs-Petitioners Cathy Moses and Paul F. Weinbaum (Petitioners) are New
6 Mexico residents and have been taxpayers for at least the past five years. Petitioners
7 currently have one or more children enrolled in elementary and/or secondary public
8 schools in New Mexico. As New Mexico residents and taxpayers, Petitioners assert
9 that the IML violates their constitutional rights because it supposedly forces them to
10 “support[] and aid[] the religious dictates of others with whom they disagree”;
11 appropriates or donates public funds to private parties; and supports “sectarian,
12 denominational or private school[s].”
13 {8} Petitioners filed a verified complaint for declaratory judgment in the district
14 court against Defendant-Respondent Hanna Skandera (Respondent), Secretary of the
15 Department, seeking a declaration that the State issuing instructional materials to
16 students attending private schools is unconstitutional because doing so supports
17 sectarian, denominational, or private schools in violation of New Mexico Constitution
18 Article XII, Section 3; forces them as taxpayers to support the religious dictates of
6
1 others in violation of New Mexico Constitution Article II, Section 11; and
2 appropriates or donates public funds to private parties in violation of New Mexico
3 Constitution Article IX, Section 14. Petitioners also relied on Zellers v. Huff, 1951-
4 NMSC-072, 55 N.M. 501, 236 P.2d 949 to support their allegation that the
5 schoolbook loan program is unconstitutional.
6 {9} Petitioners filed a motion for summary judgment, and Respondent and
7 Albuquerque Academy, et al. (Intervenors) each filed a memorandum in opposition.
8 The district court ruled that Zellers did not control and the provisions of the IML
9 challenged by Petitioners did not violate the New Mexico Constitution. The district
10 court then entered its order denying Petitioners’ motion for summary judgment and
11 granted summary judgment to Respondent.
12 {10} Petitioners appealed to the Court of Appeals, which affirmed the district court’s
13 grant of summary judgment to Respondent. Moses v. Skandera, 2015-NMCA-036,
14 ¶¶ 3, 54, 346 P.3d 396, cert. granted, 2015-NMCERT-001. We granted Petitioners’
15 petition for writ of certiorari to consider the following issues: (1) whether this
16 Court’s decision in Zellers constituted dicta; (2) whether the IML violates Article XII,
17 Section 3 of the New Mexico Constitution; (3) whether the IML violates Article IV,
18 Section 31 of the New Mexico Constitution; (4) whether the IML violates Article IX,
7
1 Section 14 of the New Mexico Constitution; and (5) whether the IML violates Article
2 II, Section 11 of the New Mexico Constitution.
3 {11} We conclude that the schoolbook loan program violates Article XII, Section
4 3, and therefore we do not address the remaining issues. We reverse both the Court
5 of Appeals and the district court.
6 III. The IML violates Article XII, Section 3 of the New Mexico Constitution
7 {12} Article XII, Section 3 provides:
8 The schools, colleges, universities and other educational institutions
9 provided for by this constitution shall forever remain under the
10 exclusive control of the state, and no part of the proceeds arising from
11 the sale or disposal of any lands granted to the state by congress, or any
12 other funds appropriated, levied or collected for educational purposes,
13 shall be used for the support of any sectarian, denominational or private
14 school, college or university.
15 (Emphasis added.)
16 {13} Whether the schoolbook loan program violates the New Mexico Constitution
17 is a question of law that we review de novo. Tri-State Generation & Transmission
18 Ass’n v. D’Antonio, 2012-NMSC-039, ¶ 11, 289 P.3d 1232. “It is well settled that
19 there is a presumption of the validity and regularity of legislative enactments.”
20 Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457 (internal
21 quotation marks and citations omitted). Petitioners bear the burden of proof to
8
1 overcome the presumption of the validity and regularity of the IML. Id. We will
2 uphold the constitutionality of the IML unless we are satisfied beyond all reasonable
3 doubt that the Legislature exceeded the bounds of the New Mexico Constitution in
4 enacting the IML. Id.
5 {14} “[T]he rules of statutory construction apply equally to constitutional
6 construction.” State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830 (internal quotation
7 marks and citation omitted). “[W]e examine the plain language of the statute as well
8 as the context in which it was promulgated, including the history of the statute and
9 the object and purpose the Legislature sought to accomplish.” State v. Nick R., 2009-
10 NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (internal quotation marks and citation
11 omitted).
12 {15} The Court of Appeals interpreted Article XII, Section 3 to provide protection
13 only against the establishment of religion, similar to the Establishment Clause of the
14 First Amendment to the United States Constitution and the Establishment Clause of
15 Article II, Section 11 of the New Mexico Constitution. Moses, 2015-NMCA-036, ¶
16 22. Accordingly, the Court of Appeals relied primarily on First Amendment cases to
17 hold that the IML did not violate Article XII, Section 3. Moses, 2015-NMCA-036,
18 ¶ 34 (citing Elane Photography, LLC v. Willock, 2012-NMCA-086, ¶ 33, 284 P.3d
9
1 428).
2 {16} We might agree with the Court of Appeals if the language of Article XII,
3 Section 3 only prohibited the use of any public funds for the support of sectarian or
4 denominational schools. The plain language of Article XII, Section 3 is more
5 restrictive, and it therefore stands as a constitutional protection separate from the
6 Establishment Clause as illustrated by the difference in language in each provision.
7 {17} The Establishment Clause provides, in relevant part, that “Congress shall make
8 no law respecting an establishment of religion . . . .” U.S. Const. amend. I. In
9 contrast, Article XII, Section 3 provides:
10 The schools, colleges, universities and other educational institutions
11 provided for by this constitution shall forever remain under the
12 exclusive control of the state, and no part of the proceeds arising from
13 the sale or disposal of any lands granted to the state by congress, or any
14 other funds appropriated, levied or collected for educational purposes,
15 shall be used for the support of any sectarian, denominational or private
16 school, college or university.
17 (Emphasis added.) The plain language of Article XII, Section 3 expressly restricts
18 the use of public funds to other than sectarian schools, and therefore our analysis
19 cannot be restricted by cases that analyze the Establishment Clause.
20 {18} The historical context in which Article XII, Section 3 was adopted helps
21 explain why this constitutional provision was not a recodification of the
10
1 Establishment Clause of the New Mexico Constitution. During the early nineteenth
2 century, public education was provided in public schools known as “common
3 schools.” See Mark Edward DeForrest, An Overview and Evaluation of State Blaine
4 Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub.
5 Pol’y 551, 558 (2003). “The common school was designed to function as an
6 instrument for the acculturation of immigrant populations, rendering them good
7 productive citizens in the image of the ruling majority.” Joseph P. Viteritti, Blaine’s
8 Wake: School Choice, The First Amendment, and State Constitutional Law, 21 Harv.
9 J.L. & Pub. Pol’y 657, 668 (1998). “Protestant ministers and lay people were in the
10 forefront of the public-school crusade and took a proprietary interest in the institution
11 they had helped to build. They assumed a congruence of purpose between the
12 common school and the Protestant churches.” Id. (internal quotation marks and
13 citation omitted). “In many cases, it was difficult to distinguish between public and
14 private institutions because they were often housed in the same building.” Id. at 664.
15 State statutes at the time authorized Bible readings in public schools and state judges
16 generally refused to recognize the Bible as a sectarian book. G. Alan Tarr, The New
17 Judicial Federalism in Perspective, 72 Notre Dame L. Rev. 1097, 1103-04 nn.22-23
18 (citing Miss. Const. of 1890, art. 3, § 18); Hackett v. Brooksville Graded Sch. Dist.,
11
1 87 S.W. 792 (Ky. 1905); Donahoe v. Richards, 38 Me. 379 (1854)); Viteritti, supra,
2 at 667-68.
3 {19} By the middle of the nineteenth century, the Catholic immigrant population
4 rose significantly. Viteritti, supra, at 669. The influx of Catholic immigrants created
5 a demand for Catholic education, and consequently Catholics and other minority
6 religionists challenged the Protestant influence in the common schools. Id. at 667-68;
7 Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 44
8 (1992). By the 1870s, Catholic church leaders began to lobby their state legislatures
9 for public funds to develop their own educational system. Viterriti, supra, at 668;
10 Green, supra, at 44. This rise in Catholic influence created an obvious tension
11 between the Protestant majority and the mostly Catholic minority on the issue of
12 education, see Viterriti, supra, at 670-72, because the Protestant-run “common school
13 was designed to function as an instrument for the acculturation of immigrant
14 populations, rendering them good productive citizens in the image of the ruling
15 majority.” Id. at 668.
16 {20} In response, “[o]pposition to aid to ‘sectarian’ schools acquired prominence in
17 the 1870’s . . . .” Mitchell v. Helms, 530 U.S. 793, 828 (2000). “[I]t was an open
18 secret that ‘sectarian’ was code for ‘Catholic.’ ” Id. Common school leaders
12
1 successfully lobbied their state legislatures to adopt amendments prohibiting the use
2 of state funds to support sectarian schools by the mid-to-late nineteenth century. See,
3 e.g., Colo. Const. art. IX, § 7; Del. Const. art. X, § 3; N.D. Const. art. VIII, §§ 1, 5;
4 Ohio Const. art. VI, § 2. “In September of 1875, President Ulysses S. Grant
5 responded to mounting political pressure when he publicly vowed to ‘[e]ncourage
6 free schools, and resolve that not one dollar be appropriated to support any sectarian
7 schools.’ ” Viterriti, supra, at 670 (alteration in original). President Grant called on
8 Congress to draft a proposed constitutional amendment that would deny public
9 support to religious institutions. Id.
10 {21} Congressman James G. Blaine of Maine agreed to sponsor an amendment to
11 the First Amendment that fulfilled President Grant’s request. See id. at 670-71.
12 Congressman Blaine’s proposed constitutional amendment read:
13 No State shall make any law respecting an establishment of religion, or
14 prohibiting the free exercise thereof; and no money raised by taxation
15 in any State for the support of public schools, or derived from any public
16 fund therefor, nor any public lands devoted thereto, shall ever be under
17 the control of any religious sect; nor shall any money so raised or lands
18 so devoted be divided between religious sects and denominations.
19 Green, supra, at 38 n.2 (quoting 4 Cong. Rec. 5453 (1876) (quotation marks
20 omitted)). Congressman Blaine believed that his proposed constitutional amendment
21 would correct a “constitutional defect” because at the time, the Establishment Clause
13
1 had not been interpreted to apply to the states under the Fourteenth Amendment.
2 Viterriti, supra, at 671 n.66 (citing Permoli v. Municipality No. 1 of New Orleans, 44
3 U.S. (3 How.) 589, 609 (1845) (“The Constitution makes no provision for protecting
4 the citizens of the respective states in their religious liberties; this is left to the state
5 constitutions and laws . . . .”).
6 {22} Despite the fact that Congressman Blaine’s proposed amendment failed to pass
7 in the United States Senate, several states amended their constitutions to include a
8 ban on funding of sectarian education. Viterriti, supra, at 672. “By century’s end
9 [congressional] leaders had come to understand that federal aid could be used as a
10 wedge for manipulating public policy. . . . Particularly vulnerable to the Republican
11 agenda were those new territories seeking statehood.” Id. at 672-73. “As a matter of
12 course, [new territories seeking statehood] would be required to incorporate Blaine-
13 like provisions into their new constitutions in order to receive congressional
14 approval.” Id. at 673.
15 {23} Congress granted New Mexico statehood on the explicit condition that it adopt
16 a similar “Blaine” provision in the New Mexico Constitution. See Enabling Act for
17 New Mexico of June 20, 1910, 36 Stat. 557, ch. 310, § 8 (Enabling Act).2 In the
18 2
Section 8 of the Enabling Act explicitly requires that
14
1 Enabling Act, “Congress set forth the terms by which New Mexico would be admitted
2 as a state.” Forest Guardians v. Powell, 2001-NMCA-028, ¶ 6, 130 N.M. 368, 24
3 P.3d 803. In an election held on January 21, 1911 to vote on the New Mexico
4 Constitution adopted by the Constitutional Convention of 1910, New Mexico voters
5 ratified all of the terms of the Enabling Act in Article 21, Section 9 of the 1911 New
6 Mexico Constitution. See Constitutions of New Mexico 1910-34. Article 21, Section
7 10 of the 1911 New Mexico Constitution provides that “[t]his ordinance is
8 irrevocable without the consent of the United States and the people of this State, and
9 no change or abrogation of this ordinance, in whole or in part, shall be made by any
10 constitutional amendment without the consent of Congress.” Id.; Enabling Act § 2;
11 see also N.M. Const. art. 21, §§ 1-11 (incorporating all Enabling Act measures into
12 the New Mexico Constitution and making the Enabling Act irrevocable without the
13 consent of Congress and the citizens of New Mexico). Because the Enabling Act was
14 adopted during New Mexico’s 1910 Constitutional Convention, N.M. Const. art. 21,
15 §§ 1-11, it functions as a “fundamental law to the same extent as if it had been
16 [t]he schools, colleges and universities provided for in this act shall
17 forever remain under the exclusive control of the said state, and no part
18 of the proceeds arising from the sale or disposal of any lands granted
19 herein for educational purposes shall be used for the support of any
20 sectarian or denominational school, college or university.
15
1 directly incorporated into the Constitution.” State ex rel. King v. Lyons, 2011-
2 NMSC-004, ¶ 3, 149 N.M. 330, 248 P.3d 878 (internal quotation marks and citation
3 omitted).
4 {24} Sections 6 through 9 of the Enabling Act pertain to specified public lands that
5 were granted to New Mexico to be held in trust “for the support of common schools.”
6 Enabling Act § 6. To the extent that lands “are mineral, or have been sold, reserved
7 or otherwise appropriated or reserved by or under the authority of any act of
8 congress,” they are to be treated as all other public lands specified under Sections 6
9 through 9 of the Enabling Act. Enabling Act § 6.
10 Congress contemplated that any change . . . to the use of the proceeds of
11 the lands granted to the state should be effectuated by amendment to the
12 Constitution, and . . . any change in the use and application of the
13 proceeds of these land grants may . . . be done by way of a constitutional
14 amendment.
15 Lyons, 2011-NMSC-004, ¶ 4 (first and third omissions in original) (internal quotation
16 marks and citation omitted). Thus, Intervenors’ argument that funds from the Mineral
17 Lands Leasing Act that are used for the Instructional Material Fund are “federal funds
18 which are not subject to state constitutional limitations” is without merit.
19 {25} Grants of land were made to New Mexico specifically for, among other things,
20 “university purposes, . . . schools and asylums for the deaf, dumb and the blind, . . .
16
1 normal schools, . . . agricultural and mechanical colleges, . . . school of mines, [and]
2 military institutes.” Enabling Act § 7. Lands granted to New Mexico and any
3 proceeds derived from them are to be held in trust. Enabling Act § 10, ¶ 1. If the
4 lands or money so derived are used for something other than the named purposes, it
5 is a breach of the Enabling Act. Enabling Act § 10, ¶ 2. The Enabling Act “is
6 binding and enforceable and the legislature is without power to divert the fund for
7 another purpose than that expressed.” State ex rel. Interstate Stream Comm’n v.
8 Reynolds, 1963-NMSC-023, ¶ 22, 71 N.M. 389, 378 P.2d 622.
9 {26} Specifically relevant to our inquiry is Section 8 of the Enabling Act, which may
10 be characterized as a Blaine provision because of the time of its adoption and because
11 it precludes the use of public funds for the support of sectarian or denominational
12 schools.
13 [T]he schools, colleges, and universities provided for in this act shall
14 forever remain under the exclusive control of the said state, and no part
15 of the proceeds arising from the sale or disposal of any lands granted
16 herein for educational purposes shall be used for the support of any
17 sectarian or denominational school, college or university.
18 Id. This language is nearly identical to that of Article XII, Section 3, with two critical
19 differences. The Enabling Act prohibits the use of “proceeds arising from the sale or
20 disposal of any lands granted [in the Enabling Act] for educational purposes” to
17
1 support sectarian schools. Enabling Act § 8. In contrast, the drafters of the New
2 Mexico Constitution restricted the use of proceeds from any lands granted to New
3 Mexico by Congress, not only those granted in the Enabling Act, and they also
4 restricted the use of any funds appropriated, levied, or collected for educational
5 purposes for the support of not only sectarian schools, but also the much broader
6 category of private schools. Through these changes, the Constitutional Convention
7 decided to provide for additional restrictions on public funding of education beyond
8 the restrictions required by Section 8 of the Enabling Act. See Highlights of the
9 August 15, 1969, Session of the 1969 Constitutional Convention Submitted August
10 14, 1969 at 4. The members of the Constitutional Convention chose to play it
11 safe—by broadening the provision to reach all private schools, they avoided drawing
12 a line between secular and sectarian education. In addition, they were not willing to
13 limit the funds that would be restricted from use for private schools—they went well
14 beyond “proceeds arising from the sale or disposal of any lands granted” under
15 Section 8 of the Enabling Act and chose to restrict the use of “any other funds
16 appropriated, levied or collected for educational purposes.” N.M. Const. art. XII, §
17 3.
18 {27} The Court of Appeals held that the direct recipients of the IML financial
18
1 program are the parents of the children, and therefore the benefit to private schools
2 is not direct enough to violate Article XII, Section 3. Moses, 2015-NMCA-036, ¶ 40.
3 We can not agree that Article XII, Section 3 only prohibits direct support to private
4 schools. The broad language of this provision and the history of its adoption and the
5 efforts to amend it evince a clear intent to restrict both direct and indirect support to
6 sectarian, denominational, or private schools, colleges, or universities. Our
7 interpretation is supported by the failed attempt in 1969 of the delegates to the New
8 Mexico Constitutional Convention to amend the precursor of Article XII, Section 3.
9 Report of the Constitutional Revision Commission 158 (1967). Using the Alaska
10 Constitution as a template, the Constitutional Revision Commission proposed
11 revising the precursor of Article XII, Section 3 to read “[t]he public schools and
12 institutions of the state shall be free from sectarian control. No money shall be paid
13 from public funds for the direct benefit of any religious or other private educational
14 institution.” New Mexico Legislative Council Service, Workbook of Selected
15 Constitutions Prepared For Delegates to the New Mexico Constitutional Convention
16 1969 (July 15, 1969) (emphasis added). This proposed revision would not have been
17 necessary if a reasonable interpretation of Article XII, Section 3 as written only
18 precluded direct support of sectarian and private schools. However, the proposed
19
1 revision was never submitted to the voters for ratification in December 1969. See
2 generally Proposed New Mexico Constitution (as adopted by the New Mexico
3 Constitutional Convention of 1969) (October 20, 1969).
4 {28} Instead, the Constitutional Convention proposed a constitutional amendment
5 that would address the crux of the question: may public funds be used to provide free
6 textbooks to all students, including those who attend private schools? See id. at 45.
7 The constitutional amendment submitted to the voters for adoption read: “The
8 legislature shall provide for a system of free textbooks for use by school children of
9 this state. The system shall be administered by the state board of education.” Id. The
10 Legislative Council Service warned the Constitutional Convention that “[t]his
11 [provision] violates the Enabling Act and conflicts with other provisions of the
12 proposed constitution.” New Mexico Legislative Council Service, A New
13 Constitution for New Mexico? An Analysis of Major Changes and Arguments For
14 and Against 43 (October 31, 1969). Specifically, the Legislative Council Service was
15 concerned that “[t]his provision requires the state to indirectly aid and support
16 sectarian and denominational schools.” Id. Notwithstanding the Legislative Council
17 Service’s concerns, the Constitutional Convention submitted this constitutional
18 amendment to the voters for ratification, which the voters rejected. See Proposed
20
1 New Mexico Constitution at 45; N.M. Const. art. XII, § 3.
2 {29} The history of Congressman Blaine’s attempt to amend the United States
3 Constitution coupled with the New Mexico Enabling Act demonstrates why Article
4 XII, Section 3 cannot be interpreted under jurisprudence analyzing the Establishment
5 Clause. Article XII, Section 3 must be interpreted consistent with cases analyzing
6 similar Blaine amendments under state constitutions. For example, in California
7 Teachers Ass’n v. Riles, the California Supreme Court addressed a challenge to a
8 California law authorizing the Superintendent of Public Instruction to lend to students
9 attending non-profit, non-public schools textbooks used in the public schools without
10 charge. See generally 632 P.2d 953 (Cal. 1981). Article IX, Section 8 of the
11 California Constitution provided that “[n]o public money shall ever be appropriated
12 for the support of any sectarian or denominational school, or any school not under the
13 exclusive control of the officers of the public schools . . . .” Similar to Article XII,
14 Section 3 of the New Mexico Constitution, this constitutional provision incorporated
15 a Blaine-like amendment for sectarian and denominational schools, but it also
16 extended the restriction to non-public schools. Additionally, Article XVI, Section 5
17 of the California Constitution provided:
18 Neither the Legislature, nor any county, city and county, township,
19 school district, or other municipal corporation, shall ever make an
21
1 appropriation, or pay from any public fund whatever, or grant anything
2 to or in aid of any religious sect, church, creed, or sectarian purpose, or
3 help to support or sustain any school, college, university, hospital, or
4 other institution controlled by any religious creed, church, or sectarian
5 denomination whatever . . . .
6 {30} In California Teachers Ass’n, the California Supreme Court was critical of the
7 “child benefit theory” in light of its state constitutional provision because the
8 “doctrine may be used to justify any type of aid to sectarian schools[;] . . . practically
9 every proper expenditure for school purposes aids the child.” 632 P.2d at 957, 960
10 (internal quotation marks and citation omitted). The California Supreme Court
11 reasoned that “the application of the ‘child benefit’ theory in this circumstance
12 ‘ignores substance for form, reality for rhetoric, and would lead to total
13 circumvention of the principles of our Constitution.’ ” Id. at 963 (emphasis added)
14 (citation omitted). The California Supreme Court noted that the broad language of
15 Article IX, Section 8 and Article XVI, Section 5 of the California Constitution “do
16 not confine their prohibition against financing sectarian schools in whole or in part
17 to support for their religious teaching function, as distinguished from secular
18 instruction.” California Teachers Ass’n, 632 P.2d at 964 (emphasis added). As a
19 result, a full majority of the California Supreme Court concluded that the textbook
20 program could not survive state constitutional scrutiny, even if the benefit to the
22
1 schools was only incidental. See id. at 961-62 n.12.
2 {31} In Gaffney v. State Department of Education, the Nebraska Supreme Court
3 addressed the constitutionality of a textbook lending program under Article VII,
4 Section 11 of the Nebraska Constitution:
5 Neither the state Legislature nor any county, city or other public
6 corporation, shall ever make any appropriation from any public fund,
7 or grant any public land in aid of any sectarian or denominational
8 school or college, or any educational institution which is not exclusively
9 owned and controlled by the state or a governmental subdivision
10 thereof.
11 220 N.W.2d 550, 553 (Neb. 1974) (quoting Neb. Const. art. VII, § 11 (emphasis in
12 original) (internal quotation marks omitted)). The Nebraska Supreme Court relied on
13 the broad language of Article VII, Section 11 of the Nebraska Constitution to hold
14 that the textbook loan program unconstitutionally furnished aid to private sectarian
15 schools. Gaffney, 220 N.W.2d at 557. The Nebraska Supreme Court concluded that
16 the fact that the loan of textbooks was to the parents and students was not
17 determinative because the program “lends strength and support to the school and,
18 although indirectly, lends strength and support to the sponsoring sectarian
19 institution.” Id.
20 {32} The Supreme Courts of Oregon, Massachusetts, and Missouri interpreted
21 similar Blaine-like state constitutional provisions and determined that even indirect
23
1 aid to the sectarian, denominational, or private schools violates the constitutional
2 provision. See Dickman v. Sch. Dist. No. 62C, Or. City, of Clackamas Cty., 366 P.2d
3 533, 543 (Or. 1961) (en banc) (holding that “the aid is extended to the pupil only as
4 a member of the school” the pupil attends, and although the pupil may share in the
5 indirect benefit, “such aid is an asset to” the sectarian or private school); see also
6 Bloom v. Sch. Comm. of Springfield, 379 N.E.2d 578, 580 (Mass. 1978) (same);
7 Paster v. Tussey, 512 S.W.2d 97, 104 (Mo. 1974) (en banc) (same).
8 {33} South Dakota and Hawaii have reached similar conclusions under their state
9 constitutions. This is important because like New Mexico, these states were required
10 to adopt Blaine-like amendments into their respective state constitutions for their
11 admission into the Union. For example, in In re Certification of a Question of Law
12 from the United States District Court, District of South Dakota, Southern Division,
13 the South Dakota Supreme Court addressed a textbook lending program in which the
14 defendants raised arguments similar to those raised by Respondent and Intervenors
15 in this case. See generally 372 N.W.2d 113 (S.D. 1985). The South Dakota Supreme
16 Court noted that it was charged “with the responsibility of interpreting provisions of
17 [its] state constitution that are more restrictive than the Establishment Clause of the
18 United States Constitution.” Id. at 116, 118 (“[T]hose provisions of our constitution
24
1 . . . are not mere reiterations of the Establishment Clause of the United States
2 Constitution but are more restrictive as prohibiting aid in every form.” (internal
3 quotation marks and citation omitted)). In ultimately holding that the textbook loan
4 program was unconstitutional, the South Dakota Supreme Court specifically rejected
5 the defendants’ analogy between the textbook lending program “and the lending of
6 books by the public libraries in the state,” because any benefit to sectarian or private
7 schools violated its state constitutional provision. Id. at 117.
8 {34} In addition, Hawaii, which was the last state admitted into the Union, has a
9 constitutional provision similar to New Mexico’s. Article X, Section 1 of the Hawaii
10 Constitution provides: “[N]or shall public funds be appropriated for the support or
11 benefit of any sectarian or nonsectarian private educational institution . . . .” Like the
12 New Mexico Constitution, the Hawaii Constitution is more restrictive than the federal
13 Establishment Clause. In Spears v. Honda, the Hawaii Supreme Court addressed the
14 constitutionality of a statute requiring state-subsidized bus transportation for all
15 school children, including sectarian and private school students. 449 P.2d 130, 132,
16 135, 135 n.5 (Haw. 1968). The Court attributed great significance to the history of
17 what was then Article IX, Section 1 of the Hawaii Constitution, now codified as
18 Hawaii Constitution Article X, Section 1. Spears, 449 P.2d at 134-36. The Court’s
25
1 review of the constitutional history of Article IX, Section 1 revealed that the
2 prohibition on using public funds to benefit private schools in Hawaii was intended
3 to narrow the gap between the quality of education provided by private schools and
4 public schools. Spears, 449 P.2d at 132-33, 135 n.5.
5 {35} The Spears Court concluded that it was important to understand that, unlike the
6 Establishment Clause of the United States Constitution, what was then Article IX,
7 Section 1 of the Hawaii Constitution was not exclusively about religion. 449 P.2d at
8 137-38. The Court found that
9 [(1)] the bus subsidy buil[t] up, strengthen[ed] and ma[d]e successful the
10 nonpublic schools[; (2)] the subsidy induce[d] attendance at nonpublic
11 schools, where the school children are exposed to a curriculum that, in
12 many cases, if not generally, promotes the special interests and biases of
13 the nonpublic group that controls the school[; and (3)] to the extent that
14 the State [paid] out funds to carriers owned by the nonpublic schools or
15 agents thereof, the State [gave] tangible support or benefit to such
16 schools.
17 Id. (internal quotation marks omitted). The Spears Court ultimately held that the bus
18 subsidy violated Article IX, Section 1, because it constituted an appropriation of
19 public funds to non-public schools. Id. at 139. It is worth noting that the Spears
20 Court suggested that the Legislature “return to the people to ask them to decide
21 whether their State Constitution should be amended to grant the Legislature the
22 power that it seeks, in this case, the power to provide ‘support or benefit’ to
26
1 nonpublic schools.” Id.
2 {36} Article XII, Section 3 of the New Mexico Constitution prohibits the use of any
3 part of the proceeds from the sale or disposal of any land granted to the state by
4 Congress or any other funds appropriated, levied, or collected for educational
5 purposes for sectarian, denominational schools. The framers of our Constitution
6 chose to further restrict the use of public funds by prohibiting their use for the support
7 of private schools. As a result, a public school under the control of the State can
8 directly receive funds, while a private school not under the exclusive control of the
9 State can not receive either direct or indirect support.
10 {37} It is clear that private schools in New Mexico have control of what
11 instructional materials will be purchased with their allocation of instructional material
12 funds. The fact that students who attend private schools, just like students who attend
13 public schools, are only loaned these instructional materials is not material to the
14 analysis. Private schools benefit because they do not have to buy instructional
15 materials with money they obtain by tuition or donations and they can divert such
16 money to other uses in their schools. Consistent with the rules of statutory
17 construction and the majority of jurisdictions interpreting similar state constitutional
18 provisions, the IML violates Article XII, Section 3 because it provides support to
27
1 private schools.
2 IV. Conclusion
3 {38} We reverse the Court of Appeals and the district court and determine that the
4 IML violates New Mexico Constitution Article XII, Section 3.
5 {39} IT IS SO ORDERED.
6 ______________________________
7 EDWARD L. CHÁVEZ, Justice
8 WE CONCUR:
9 ___________________________________
10 BARBARA J. VIGIL, Chief Justice
11 ___________________________________
12 PETRA JIMENEZ MAES, Justice
13 ___________________________________
14 RICHARD C. BOSSON, Justice, Retired
15 Sitting by designation
16 ___________________________________
17 CHARLES W. DANIELS, Justice
28
Moses v. Skandera
Combined Opinion