Moses v. Skandera

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 11:45:03 2015.12.23

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMSC-036

Filing Date: December 17, 2015

Docket No. S-1-SC-34974

CATHY MOSES and PAUL F.
WEINBAUM,

Plaintiffs-Petitioners,

v.

HANNA SKANDERA, Designate
Secretary of Education, New Mexico
Public Education Department,

Defendant-Respondent,

and

ALBUQUERQUE ACADEMY, et al.,

Defendants/Intervenors-Respondents.

ORIGINAL PROCEEDING ON CERTIORARI
Sarah M. Singleton, District Judge

Graeser & McQueen, LLC
Christopher L. Graeser
Santa Fe, NM
Frank Susman
Santa Fe, NM

for Petitioners

New Mexico Public Education Department
Albert V. Gonzales, Deputy General Counsel
Santa Fe, NM

Sutin, Thayer & Browne, P.C.

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Susan M. Hapka
Albuquerque, NM

for Respondent

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
R.E. Thompson
Emil J. Kiehne
Jennifer G. Anderson
Sarah M. Stevenson
Albuquerque, NM

Becket Fund for Religious Liberty
Eric S. Baxter
Washington, DC

for Intervenors-Respondents

OPINION

CHÁVEZ, Justice.

{1} Intervenors’ motion for rehearing is denied. However, our prior opinion filed on
November 12, 2015 is withdrawn and the following is substituted in its place.

{2} Since the adoption of the New Mexico Constitution on January 21, 1911, New
Mexico has had a constitutional responsibility to provide a free public education for all
children of school age. N.M. Const. art. XII, § 1. However, “no part of the proceeds arising
from the sale or disposal of any lands granted to the state by congress, or any other funds
appropriated, levied or collected for educational purposes, shall be used for the support of
any sectarian, denominational or private school, college or university.” N.M. Const. art.
XII, § 3 (emphasis added). The New Mexico Department of Public Education’s
(Department) Instructional Material Bureau purchases non-religious instructional materials
selected by public or private schools, with funds appropriated by the Legislature and
earmarked for the schools, and lends these materials to qualified students who attend public
or private schools. NMSA 1978, § 22-15-7 (2010); see also NMSA 1978, § 22-8-34 (2001).
The question we address in this case is whether the provision of books to students who
attend private schools violates Article XII, Section 3. We conclude that the New Mexico
Constitutional Convention was not willing to navigate the unclear line between secular and
sectarian education, or the unclear line between direct and indirect support to other than
public schools. Indeed, in 1969 the voters rejected a proposed constitutional amendment that
would have required New Mexico to provide free textbooks to all New Mexico school
children. See Proposed New Mexico Constitution (as adopted by the Constitutional
Convention of 1969) 45 (October 20, 1969). We hold that the plain meaning and history of

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Article XII, Section 3 forbids the provision of books for use by students attending private
schools, whether such schools are secular or sectarian.

I. The Instructional Material Law is funded by appropriations

{3} The Instructional Material Law (IML), NMSA 1978, §§ 22-15-1 to -14 (1967, as
amended through 2011), grants the Department’s Instructional Material Bureau statutory
authority to lend approved instructional materials1 to “[a]ny qualified student . . . attending
a public school, a state institution or a private school approved by the department in any
grade from first through the twelfth grade of instruction . . . .” Section 22-15-7(A) (emphasis
added). “Instructional material shall be distributed to school districts, state institutions and
private schools as agents for the benefit of students entitled to the free use of the
instructional material.” Section 22-15-7(B) (emphasis added). In turn, “[a]ny school
district, state institution or private school as agent receiving instructional material pursuant
to the Instructional Material Law is responsible for distribution of the instructional material
for use by eligible students and for the safekeeping of the instructional material.” Section
22-15-7(C) (emphasis added). Students or their parents are “responsible for the loss, damage
or destruction of instructional material while the instructional material is in the possession
of the student.” Section 22-15-10(B).

{4} The Department is required to publish a “multiple list” of state-approved
instructional materials. Section 22-15-8(A), (B); § 22-15-2(D) (“ ‘[M]ultiple list’ means a
written list of those instructional materials approved by the department.”). Using the
multiple list of state-approved instructional materials, “each school district, state institution
or private school as agent may select instructional material for the use of its students . . . .”
Section 22-15-8(B). “At least ten percent of instructional material on the multiple list
concerning language arts and social studies shall contain material that is relevant to the
cultures, languages, history and experiences of multi-ethnic students.” Section 22-15-8(A).
Moreover, “[t]he Department shall ensure that parents and other community members are
involved in the adoption process at the state level.” Id.

{5} The IML is funded through a non-reverting “instructional material fund” established
by the State Treasurer “consist[ing] of appropriations, gifts, grants, donations and any other
money credited to the fund.” Section 22-15-5(A). In 1931, the Legislature enacted the State
School Building, Text Book and Rural Aid Fund to purchase instructional materials with
unappropriated federal funds obtained through the Mineral Lands Leasing Act (MLLA), 30
U.S.C. §§ 181 to 287 (1920, as amended through 2012). N.M. Laws 1931, ch. 138, § 2

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“ ‘[I]nstructional material’ means school textbooks and other educational media that
are used as the basis for instruction, including combinations of textbooks, learning kits,
supplementary material and electronic media.” Section 22-15-2(C); see also § 22-15-3(A)
(“The ‘instructional material bureau’ is created within the department of education [public
education department].” (alteration in original)).

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(“There is hereby appropriated for the purposes of this fund, annually, all of the balance, not
otherwise appropriated, in the [MLLA] Fund . . . .”). Today the Department’s Instructional
Material Bureau continues to purchase instructional materials for New Mexico students
using federal MLLA funds. See § 22-8-34(A) (“Except for an annual appropriation to the
instructional material fund and to the bureau of geology and mineral resources of the New
Mexico institute of mining and technology . . . all other money received by the state pursuant
to the provisions of the federal [MLLA], shall be distributed to the public school fund.”
(citation omitted)).

{6} Each public and private school is allocated a percentage of money available in the
IML fund based on the number of students enrolled in their school. Section 22-15-9(A).
“Private schools may expend up to fifty percent of their instructional material funds for
items that are not on the multiple list; provided that no funds shall be expended for religious,
sectarian or nonsecular materials . . . .” Section 22-15-9(C) (emphasis added). Such
instructional material purchases must be identified and purchased through the Department’s
in-state depository. Section 22-15-9(C), (E); see also § 22-15-4(D). “Any balance
remaining in an instructional material account of a private school at the end of the fiscal year
shall remain available for reimbursement by the department for instructional material
purchases in subsequent years.” Section 22-15-9(F). The Department’s Instructional
Material Bureau has the authority to “withdraw or withhold the privilege of participating in
the free use of instructional material in case of any violation of or noncompliance with the
provisions of the Instructional Material Law or any rules adopted pursuant to that law.”
Section 22-15-4(C).

{7} In summary, the Legislature appropriates instructional materials funds and private
schools are allocated a percentage of the funds based on the number of students enrolled in
their schools. Private schools select instructional materials from a multiple list, but they may
spend up to 50 percent of their instructional materials funds on items that are not on the
multiple list, as long as the material is not religious in content. Any money remaining in the
private schools instructional material fund may be carried over to subsequent years. Once
the materials are purchased, the materials are loaned to the students. Hereafter in this
opinion we will refer to this process as a “schoolbook loan program” for ease of reference.

II. Procedural history

{8} Plaintiffs-Petitioners Cathy Moses and Paul F. Weinbaum (Petitioners) are New
Mexico residents and have been taxpayers for at least the past five years. Petitioners
currently have one or more children enrolled in elementary and/or secondary public schools
in New Mexico. As New Mexico residents and taxpayers, Petitioners assert that the IML
violates their constitutional rights because it supposedly forces them to “support[] and aid[]
the religious dictates of others with whom they disagree”; appropriates or donates public
funds to private parties; and supports “sectarian, denominational or private school[s].”

{9} Petitioners filed a verified complaint for declaratory judgment in the district court

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against Defendant-Respondent Hanna Skandera (Respondent), Secretary of the Department,
seeking a declaration that the State issuing instructional materials to students attending
private schools is unconstitutional because doing so supports sectarian, denominational, or
private schools in violation of New Mexico Constitution Article XII, Section 3; forces them
as taxpayers to support the religious dictates of others in violation of New Mexico
Constitution Article II, Section 11; and appropriates or donates public funds to private
parties in violation of New Mexico Constitution Article IX, Section 14. Petitioners also
relied on Zellers v. Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949 to support their
allegation that the schoolbook loan program is unconstitutional.

{10} Petitioners filed a motion for summary judgment, and Respondent and Albuquerque
Academy, et al. (Intervenors) each filed a memorandum in opposition. The district court
ruled that Zellers did not control and the provisions of the IML challenged by Petitioners did
not violate the New Mexico Constitution. The district court then entered its order denying
Petitioners’ motion for summary judgment and granted summary judgment to Respondent.

{11} Petitioners appealed to the Court of Appeals, which affirmed the district court’s grant
of summary judgment to Respondent. Moses v. Skandera, 2015-NMCA-036, ¶¶ 3, 54, 346
P.3d 396, cert. granted, 2015-NMCERT-001. We granted Petitioners’ petition for writ of
certiorari to consider the following issues: (1) whether this Court’s decision in Zellers
constituted dicta; (2) whether the IML violates Article XII, Section 3 of the New Mexico
Constitution; (3) whether the IML violates Article IV, Section 31 of the New Mexico
Constitution; (4) whether the IML violates Article IX, Section 14 of the New Mexico
Constitution; and (5) whether the IML violates Article II, Section 11 of the New Mexico
Constitution.

{12} We conclude that the schoolbook loan program violates Article XII, Section 3, and
therefore we do not address the remaining issues. We reverse both the Court of Appeals and
the district court.

III. The IML violates Article XII, Section 3 of the New Mexico Constitution

{13} Article XII, Section 3 provides:

The schools, colleges, universities and other educational institutions provided
for by this constitution shall forever remain under the exclusive control of the
state, and no part of the proceeds arising from the sale or disposal of any
lands granted to the state by congress, or any other funds appropriated, levied
or collected for educational purposes, shall be used for the support of any
sectarian, denominational or private school, college or university.

(Emphasis added.)

{14} Whether the schoolbook loan program violates the New Mexico Constitution is a

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question of law that we review de novo. Tri-State Generation & Transmission Ass’n v.
D’Antonio, 2012-NMSC-039, ¶ 11, 289 P.3d 1232. “It is well settled that there is a
presumption of the validity and regularity of legislative enactments.” Bounds v. State ex rel.
D’Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457 (internal quotation marks and citations
omitted). Petitioners bear the burden of proof to overcome the presumption of the validity
and regularity of the IML. Id. We will uphold the constitutionality of the IML unless we
are satisfied beyond all reasonable doubt that the Legislature exceeded the bounds of the
New Mexico Constitution in enacting the IML. Id.

{15} “[T]he rules of statutory construction apply equally to constitutional construction.”
State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830 (internal quotation marks and citation
omitted). “[W]e examine the plain language of the statute as well as the context in which
it was promulgated, including the history of the statute and the object and purpose the
Legislature sought to accomplish.” State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182,
218 P.3d 868 (internal quotation marks and citation omitted).

{16} The Court of Appeals interpreted Article XII, Section 3 to provide protection only
against the establishment of religion, similar to the Establishment Clause of the First
Amendment to the United States Constitution and the Establishment Clause of Article II,
Section 11 of the New Mexico Constitution. Moses, 2015-NMCA-036, ¶ 22. Accordingly,
the Court of Appeals relied primarily on First Amendment cases to hold that the IML did not
violate Article XII, Section 3. Moses, 2015-NMCA-036, ¶ 34 (citing Elane Photography,
LLC v. Willock, 2012-NMCA-086, ¶ 33, 284 P.3d 428).

{17} We might agree with the Court of Appeals if the language of Article XII, Section 3
only prohibited the use of any public funds for the support of sectarian or denominational
schools. The plain language of Article XII, Section 3 is more restrictive, and it therefore
stands as a constitutional protection separate from the Establishment Clause as illustrated by
the difference in language in each provision.

{18} The Establishment Clause provides, in relevant part, that “Congress shall make no
law respecting an establishment of religion . . . .” U.S. Const. amend. I. In contrast, Article
XII, Section 3 provides:

The schools, colleges, universities and other educational institutions provided
for by this constitution shall forever remain under the exclusive control of the
state, and no part of the proceeds arising from the sale or disposal of any
lands granted to the state by congress, or any other funds appropriated, levied
or collected for educational purposes, shall be used for the support of any
sectarian, denominational or private school, college or university.

(Emphasis added.) The plain language of Article XII, Section 3 expressly restricts the use
of public funds to other than sectarian schools, and therefore our analysis cannot be
restricted by cases that analyze the Establishment Clause.

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{19} The historical context in which Article XII, Section 3 was adopted helps explain why
this constitutional provision was not a recodification of the Establishment Clause of the New
Mexico Constitution. During the early nineteenth century, public education was provided
in public schools known as “common schools.” See Mark Edward DeForrest, An Overview
and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment
Concerns, 26 Harv. J.L. & Pub. Pol’y 551, 558 (2003). “The common school was designed
to function as an instrument for the acculturation of immigrant populations, rendering them
good productive citizens in the image of the ruling majority.” Joseph P. Viteritti, Blaine’s
Wake: School Choice, The First Amendment, and State Constitutional Law, 21 Harv. J.L.
& Pub. Pol’y 657, 668 (1998). “Protestant ministers and lay people were in the forefront of
the public-school crusade and took a proprietary interest in the institution they had helped
to build. They assumed a congruence of purpose between the common school and the
Protestant churches.” Id. (internal quotation marks and citation omitted). “In many cases,
it was difficult to distinguish between public and private institutions because they were often
housed in the same building.” Id. at 664. State statutes at the time authorized Bible
readings in public schools and state judges generally refused to recognize the Bible as a
sectarian book. G. Alan Tarr, The New Judicial Federalism in Perspective, 72 Notre Dame
L. Rev. 1097, 1103-04 nn.22-23 (citing Miss. Const. of 1890, art. 3, § 18); Hackett v.
Brooksville Graded Sch. Dist., 87 S.W. 792 (Ky. 1905); Donahoe v. Richards, 38 Me. 379
(1854)); Viteritti, supra, at 667-68.

{20} By the middle of the nineteenth century, the Catholic immigrant population rose
significantly. Viteritti, supra, at 669. The influx of Catholic immigrants created a demand
for Catholic education, and consequently Catholics and other minority religionists
challenged the Protestant influence in the common schools. Id. at 667-68; Steven K. Green,
The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 44 (1992). By the 1870s,
Catholic church leaders began to lobby their state legislatures for public funds to develop
their own educational system. Viteritti, supra, at 668; Green, supra, at 44. This rise in
Catholic influence created an obvious tension between the Protestant majority and the mostly
Catholic minority on the issue of education, see Viteritti, supra, at 670-72, because the
Protestant-run “common school was designed to function as an instrument for the
acculturation of immigrant populations, rendering them good productive citizens in the
image of the ruling majority.” Id. at 668.

{21} In response, “[o]pposition to aid to ‘sectarian’ schools acquired prominence in the
1870’s . . . .” Mitchell v. Helms, 530 U.S. 793, 828 (2000). “[I]t was an open secret that
‘sectarian’ was code for ‘Catholic.’ ” Id. Common school leaders successfully lobbied their
state legislatures to adopt amendments prohibiting the use of state funds to support sectarian
schools by the mid-to-late nineteenth century. See, e.g., Colo. Const. art. IX, § 7; Del. Const.
art. X, § 3; N.D. Const. art. VIII, §§ 1, 5; Ohio Const. art. VI, § 2. “In September of 1875,
President Ulysses S. Grant responded to mounting political pressure when he publicly vowed
to ‘[e]ncourage free schools, and resolve that not one dollar be appropriated to support any
sectarian schools.’ ” Viteritti, supra, at 670 (alteration in original). President Grant called
on Congress to draft a proposed constitutional amendment that would deny public support

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to religious institutions. Id.

{22} Congressman James G. Blaine of Maine agreed to sponsor an amendment to the First
Amendment that fulfilled President Grant’s request. See id. at 670-71. Congressman
Blaine’s proposed constitutional amendment read:

No State shall make any law respecting an establishment of religion, or
prohibiting the free exercise thereof; and no money raised by taxation in any
State for the support of public schools, or derived from any public fund
therefor, nor any public lands devoted thereto, shall ever be under the control
of any religious sect; nor shall any money so raised or lands so devoted be
divided between religious sects and denominations.

Green, supra, at 38 n.2 (quoting 4 Cong. Rec. 5453 (1876) (quotation marks omitted)).
Congressman Blaine believed that his proposed constitutional amendment would correct a
“constitutional defect” because at the time, the Establishment Clause had not been
interpreted to apply to the states under the Fourteenth Amendment. Viteritti, supra, at 671
n.66 (citing Permoli v. Municipality No. 1 of New Orleans, 44 U.S. (3 How.) 589, 609
(1845) (“The Constitution makes no provision for protecting the citizens of the respective
states in their religious liberties; this is left to the state constitutions and laws . . . .”).

{23} Despite the fact that Congressman Blaine’s proposed amendment failed to pass in the
United States Senate, several states amended their constitutions to include a ban on funding
of sectarian education. Viteritti, supra, at 672. “By century’s end [congressional] leaders
had come to understand that federal aid could be used as a wedge for manipulating public
policy. . . . Particularly vulnerable to the Republican agenda were those new territories
seeking statehood.” Id. at 672-73. “As a matter of course, [new territories seeking
statehood] would be required to incorporate Blaine-like provisions into their new
constitutions in order to receive congressional approval.” Id. at 673.

{24} Congress granted New Mexico statehood on the explicit condition that it adopt a
similar “Blaine” provision in the New Mexico Constitution. See Enabling Act for New
Mexico of June 20, 1910, 36 Stat. 557, ch. 310, § 8 (Enabling Act).2 In the Enabling Act,
“Congress set forth the terms by which New Mexico would be admitted as a state.” Forest
Guardians v. Powell, 2001-NMCA-028, ¶ 6, 130 N.M. 368, 24 P.3d 803. In an election held

2
Section 8 of the Enabling Act explicitly requires that

[t]he schools, colleges and universities provided for in this act shall forever
remain under the exclusive control of the said state, and no part of the
proceeds arising from the sale or disposal of any lands granted herein for
educational purposes shall be used for the support of any sectarian or
denominational school, college or university.

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on January 21, 1911 to vote on the New Mexico Constitution adopted by the Constitutional
Convention of 1910, New Mexico voters ratified all of the terms of the Enabling Act in
Article 21, Section 9 of the 1911 New Mexico Constitution. See Constitutions of New
Mexico 1910-34. Article 21, Section 10 of the 1911 New Mexico Constitution provides that
“[t]his ordinance is irrevocable without the consent of the United States and the people of
this State, and no change or abrogation of this ordinance, in whole or in part, shall be made
by any constitutional amendment without the consent of Congress.” Id.; Enabling Act § 2;
see also N.M. Const. art. 21, §§ 1-11 (incorporating all Enabling Act measures into the New
Mexico Constitution and making the Enabling Act irrevocable without the consent of
Congress and the citizens of New Mexico). Because the Enabling Act was adopted during
New Mexico’s 1910 Constitutional Convention, N.M. Const. art. 21, §§ 1-11, it functions
as a “fundamental law to the same extent as if it had been directly incorporated into the
Constitution.” State ex rel. King v. Lyons, 2011-NMSC-004, ¶ 3, 149 N.M. 330, 248 P.3d
878 (internal quotation marks and citation omitted).

{25} Sections 6 through 9 of the Enabling Act pertain to specified public lands that were
granted to New Mexico to be held in trust “for the support of common schools.” Enabling
Act § 6. To the extent that lands “are mineral, or have been sold, reserved or otherwise
appropriated or reserved by or under the authority of any act of congress,” they are to be
treated as all other public lands specified under Sections 6 through 9 of the Enabling Act.
Enabling Act § 6.

Congress contemplated that any change . . . to the use of the proceeds of the
lands granted to the state should be effectuated by amendment to the
Constitution, and . . . any change in the use and application of the proceeds
of these land grants may . . . be done by way of a constitutional amendment.

Lyons, 2011-NMSC-004, ¶ 4 (first and third omissions in original) (internal quotation marks
and citation omitted).

{26} Grants of land were made to New Mexico specifically for, among other things,
“university purposes, . . . schools and asylums for the deaf, dumb and the blind, . . . normal
schools, . . . agricultural and mechanical colleges, . . . school of mines, [and] military
institutes.” Enabling Act § 7. Lands granted to New Mexico and any proceeds derived from
them are to be held in trust. Enabling Act § 10, ¶ 1. If the lands or money so derived are
used for something other than the named purposes, it is a breach of the Enabling Act.
Enabling Act § 10, ¶ 2. The Enabling Act “is binding and enforceable and the legislature
is without power to divert the fund for another purpose than that expressed.” State ex rel.
Interstate Stream Comm’n v. Reynolds, 1963-NMSC-023, ¶ 22, 71 N.M. 389, 378 P.2d 622.

{27} Specifically relevant to our inquiry is Section 8 of the Enabling Act, which may be
characterized as a Blaine provision because of the time of its adoption and because it
precludes the use of public funds for the support of sectarian or denominational schools.

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 [T]he schools, colleges, and universities provided for in this act shall forever
remain under the exclusive control of the said state, and no part of the
proceeds arising from the sale or disposal of any lands granted herein for
educational purposes shall be used for the support of any sectarian or
denominational school, college or university.

Id. This language is nearly identical to that of Article XII, Section 3, with two critical
differences. The Enabling Act prohibits the use of “proceeds arising from the sale or
disposal of any lands granted [in the Enabling Act] for educational purposes” to support
sectarian schools. Enabling Act § 8. In contrast, the drafters of the New Mexico
Constitution restricted the use of proceeds from any lands granted to New Mexico by
Congress, not only those granted in the Enabling Act, and they also restricted the use of any
funds appropriated, levied, or collected for educational purposes for the support of not only
sectarian schools, but also the much broader category of private schools. Through these
changes, the Constitutional Convention decided to provide for additional restrictions on
public funding of education beyond the restrictions required by Section 8 of the Enabling
Act. See Highlights of the August 15, 1969, Session of the 1969 Constitutional Convention
Submitted August 14, 1969 at 4. The members of the Constitutional Convention chose to
play it safe—by broadening the provision to reach all private schools, they avoided drawing
a line between secular and sectarian education. In addition, they were not willing to limit
the funds that would be restricted from use for private schools—they went well beyond
“proceeds arising from the sale or disposal of any lands granted” under Section 8 of the
Enabling Act and chose to restrict the use of “any other funds appropriated, levied or
collected for educational purposes.” N.M. Const. art. XII, § 3.

{28} The MLLA appropriates funds to New Mexico “to be used by such State and its
subdivisions, as the legislature of the State may direct . . . , for (i) planning, (ii) construction
and maintenance of public facilities, and (iii) provision of public service.” 30 U.S.C. §
191(a). MLLA funds are not specifically allocated for schools or school books. The
Legislature, which has the constitutional responsibility to appropriate funds, see New
Mexico Constitution Article IV, Section 30, has discretion to appropriate MLLA funds for
any purpose consistent with the broad purposes described in the MLLA. Intervenors contend
that the provision of school books for children attending both public and private schools
constitutes a “public service.” Although we agree with this broad philosophical statement,
the provision of school books is an educational purpose. Article XII, Section 3 controls the
Legislature’s discretion when money is appropriated for educational purposes by prohibiting
the appropriation of educational funds to private schools.

{29} Intervenors contend that the MLLA preempts any state constitutional restriction on
the Legislature’s discretion with respect to MLLA funds as long as the Legislature
appropriates the funds consistent with the broad purposes of the MLLA. In support of their
argument, Intervenors cite to State ex rel. Sego v. Kirkpatrick, 1974-NMSC-059, 86 N.M.
359, 524 P.2d 975 and Lawrence County v. Lead-Deadwood School District No. 40-1, 469
U.S. 256 (1985). These cases are inapposite. The Sego Court held that the Legislature does

10
not have the power to control the manner and extent of the use or expenditure of funds
received by institutions of higher learning from Congress or from private donations. 1974-
NMSC-059, ¶¶ 48-51. In Lawrence, the United States Supreme Court held that a federal
statute specifically providing local governments with discretion in distributing federal funds
preempted a state statute attempting to control how local governments allocated such funds.
469 U.S. at 261-68. Stated simply, Congress appropriated the funds to local governments,
not to the State; therefore, the State did not have authority to dictate how local governments
spent the money directly allocated to them by Congress. Similarly, when Congress
appropriates money to New Mexico institutions of higher learning, under this Court’s
holding in Sego, the Legislature lacks authority to direct the use of such funds. The MLLA
does not specifically appropriate funds to or for school purposes. Simply because the MLLA
gives discretion to our Legislature does not mean that the Legislature is at liberty to ignore
state constitutional limitations on its discretion. The MLLA has neither expressly nor
impliedly preempted the application of Article XII, Section 3 because restricting funds
appropriated for educational purposes to public schools is not incompatible with the
purposes announced in the MLLA. Thus, Intervenors’ argument that funds from the MLLA
that are used for the Instructional Material Fund are federal funds which are “not subject to
state constitutional limitations” is without merit.

{30} The Court of Appeals held that the direct recipients of the IML financial program are
the parents of the children, and therefore the benefit to private schools is not direct enough
to violate Article XII, Section 3. Moses, 2015-NMCA-036, ¶ 40. We can not agree that
Article XII, Section 3 only prohibits direct support to private schools. The broad language
of this provision and the history of its adoption and the efforts to amend it evince a clear
intent to restrict both direct and indirect support to sectarian, denominational, or private
schools, colleges, or universities. Our interpretation is supported by the failed attempt in
1969 of the delegates to the New Mexico Constitutional Convention to amend the precursor
of Article XII, Section 3. Report of the Constitutional Revision Commission 158 (1967).
Using the Alaska Constitution as a template, the Constitutional Revision Commission
proposed revising the precursor of Article XII, Section 3 to read “[t]he public schools and
institutions of the state shall be free from sectarian control. No money shall be paid from
public funds for the direct benefit of any religious or other private educational institution.”
New Mexico Legislative Council Service, Workbook of Selected Constitutions Prepared For
Delegates to the New Mexico Constitutional Convention 1969 (July 15, 1969) (emphasis
added). This proposed revision would not have been necessary if a reasonable interpretation
of Article XII, Section 3 as written only precluded direct support of sectarian and private
schools. However, the proposed revision was never submitted to the voters for ratification
in December 1969. See generally Proposed New Mexico Constitution (as adopted by the
New Mexico Constitutional Convention of 1969) (October 20, 1969).

{31} Instead, the Constitutional Convention proposed a constitutional amendment that
would address the crux of the question: may public funds be used to provide free textbooks
to all students, including those who attend private schools? See id. at 45. The constitutional
amendment submitted to the voters for adoption read: “The legislature shall provide for a

11
system of free textbooks for use by school children of this state. The system shall be
administered by the state board of education.” Id. The Legislative Council Service warned
the Constitutional Convention that “[t]his [provision] violates the Enabling Act and conflicts
with other provisions of the proposed constitution.” New Mexico Legislative Council
Service, A New Constitution for New Mexico? An Analysis of Major Changes and
Arguments For and Against 43 (October 31, 1969). Specifically, the Legislative Council
Service was concerned that “[t]his provision requires the state to indirectly aid and support
sectarian and denominational schools.” Id. Notwithstanding the Legislative Council
Service’s concerns, the Constitutional Convention submitted this constitutional amendment
to the voters for ratification, which the voters rejected. See Proposed New Mexico
Constitution at 45; N.M. Const. art. XII, § 3.

{32} The history of Congressman Blaine’s attempt to amend the United States
Constitution coupled with the New Mexico Enabling Act demonstrates why Article XII,
Section 3 cannot be interpreted under jurisprudence analyzing the Establishment Clause.
Article XII, Section 3 must be interpreted consistent with cases analyzing similar Blaine
amendments under state constitutions. For example, in California Teachers Ass’n v. Riles,
the California Supreme Court addressed a challenge to a California law authorizing the
Superintendent of Public Instruction to lend to students attending non-profit, non-public
schools textbooks used in the public schools without charge. See generally 632 P.2d 953
(Cal. 1981). Article IX, Section 8 of the California Constitution provided that “[n]o public
money shall ever be appropriated for the support of any sectarian or denominational school,
or any school not under the exclusive control of the officers of the public schools . . . .”
Similar to Article XII, Section 3 of the New Mexico Constitution, this constitutional
provision incorporated a Blaine-like amendment for sectarian and denominational schools,
but it also extended the restriction to non-public schools. Additionally, Article XVI, Section
5 of the California Constitution provided:

Neither the Legislature, nor any county, city and county, township, school
district, or other municipal corporation, shall ever make an appropriation, or
pay from any public fund whatever, or grant anything to or in aid of any
religious sect, church, creed, or sectarian purpose, or help to support or
sustain any school, college, university, hospital, or other institution
controlled by any religious creed, church, or sectarian denomination
whatever . . . .

{33} In California Teachers Ass’n, the California Supreme Court was critical of the “child
benefit theory” in light of its state constitutional provision because the “doctrine may be used
to justify any type of aid to sectarian schools[;] . . . practically every proper expenditure for
school purposes aids the child.” 632 P.2d at 957, 960 (internal quotation marks and citation
omitted). The California Supreme Court reasoned that “the application of the ‘child benefit’
theory in this circumstance ‘ignores substance for form, reality for rhetoric, and would lead
to total circumvention of the principles of our Constitution.’ ” Id. at 963 (emphasis added)
(citation omitted). The California Supreme Court noted that the broad language of Article

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IX, Section 8 and Article XVI, Section 5 of the California Constitution “do not confine their
prohibition against financing sectarian schools in whole or in part to support for their
religious teaching function, as distinguished from secular instruction.” California Teachers
Ass’n, 632 P.2d at 964 (emphasis added). As a result, a full majority of the California
Supreme Court concluded that the textbook program could not survive state constitutional
scrutiny, even if the benefit to the schools was only incidental. See id. at 961-62 n.12.

{34} In Gaffney v. State Department of Education, the Nebraska Supreme Court addressed
the constitutionality of a textbook lending program under Article VII, Section 11 of the
Nebraska Constitution:

Neither the state Legislature nor any county, city or other public corporation,
shall ever make any appropriation from any public fund, or grant any public
land in aid of any sectarian or denominational school or college, or any
educational institution which is not exclusively owned and controlled by the
state or a governmental subdivision thereof.

220 N.W.2d 550, 553 (Neb. 1974) (quoting Neb. Const. art. VII, § 11 (emphasis in original)
(internal quotation marks omitted)). The Nebraska Supreme Court relied on the broad
language of Article VII, Section 11 of the Nebraska Constitution to hold that the textbook
loan program unconstitutionally furnished aid to private sectarian schools. Gaffney, 220
N.W.2d at 557. The Nebraska Supreme Court concluded that the fact that the loan of
textbooks was to the parents and students was not determinative because the program “lends
strength and support to the school and, although indirectly, lends strength and support to the
sponsoring sectarian institution.” Id.

{35} The Supreme Courts of Oregon, Massachusetts, and Missouri interpreted similar
Blaine-like state constitutional provisions and determined that even indirect aid to the
sectarian, denominational, or private schools violates the constitutional provision. See
Dickman v. Sch. Dist. No. 62C, Or. City, of Clackamas Cty., 366 P.2d 533, 543 (Or. 1961)
(en banc) (holding that “the aid is extended to the pupil only as a member of the school” the
pupil attends, and although the pupil may share in the indirect benefit, “such aid is an asset
to” the sectarian or private school); see also Bloom v. Sch. Comm. of Springfield, 379 N.E.2d
578, 580 (Mass. 1978) (same); Paster v. Tussey, 512 S.W.2d 97, 104 (Mo. 1974) (en banc)
(same).

{36} South Dakota and Hawaii have reached similar conclusions under their state
constitutions. This is important because like New Mexico, these states were required to
adopt Blaine-like amendments into their respective state constitutions for their admission
into the Union. For example, in In re Certification of a Question of Law from the United
States District Court, District of South Dakota, Southern Division, the South Dakota
Supreme Court addressed a textbook lending program in which the defendants raised
arguments similar to those raised by Respondent and Intervenors in this case. See generally
372 N.W.2d 113 (S.D. 1985). The South Dakota Supreme Court noted that it was charged

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“with the responsibility of interpreting provisions of [its] state constitution that are more
restrictive than the Establishment Clause of the United States Constitution.” Id. at 116, 118
(“[T]hose provisions of our constitution . . . are not mere reiterations of the Establishment
Clause of the United States Constitution but are more restrictive as prohibiting aid in every
form.” (internal quotation marks and citation omitted)). In ultimately holding that the
textbook loan program was unconstitutional, the South Dakota Supreme Court specifically
rejected the defendants’ analogy between the textbook lending program “and the lending of
books by the public libraries in the state,” because any benefit to sectarian or private schools
violated its state constitutional provision. Id. at 117.

{37} In addition, Hawaii, which was the last state admitted into the Union, has a
constitutional provision similar to New Mexico’s. Article X, Section 1 of the Hawaii
Constitution provides: “[N]or shall public funds be appropriated for the support or benefit
of any sectarian or nonsectarian private educational institution . . . .” Like the New Mexico
Constitution, the Hawaii Constitution is more restrictive than the federal Establishment
Clause. In Spears v. Honda, the Hawaii Supreme Court addressed the constitutionality of
a statute requiring state-subsidized bus transportation for all school children, including
sectarian and private school students. 449 P.2d 130, 132, 135, 135 n.5 (Haw. 1968). The
Court attributed great significance to the history of what was then Article IX, Section 1 of
the Hawaii Constitution, now codified as Hawaii Constitution Article X, Section 1. Spears,
449 P.2d at 134-36. The Court’s review of the constitutional history of Article IX, Section
1 revealed that the prohibition on using public funds to benefit private schools in Hawaii was
intended to narrow the gap between the quality of education provided by private schools and
public schools. Spears, 449 P.2d at 132-33, 135 n.5.

{38} The Spears Court concluded that it was important to understand that, unlike the
Establishment Clause of the United States Constitution, what was then Article IX, Section
1 of the Hawaii Constitution was not exclusively about religion. 449 P.2d at 137-38. The
Court found that

[(1)] the bus subsidy buil[t] up, strengthen[ed] and ma[d]e successful the
nonpublic schools[; (2)] the subsidy induce[d] attendance at nonpublic
schools, where the school children are exposed to a curriculum that, in many
cases, if not generally, promotes the special interests and biases of the
nonpublic group that controls the school[; and (3)] to the extent that the State
[paid] out funds to carriers owned by the nonpublic schools or agents thereof,
the State [gave] tangible support or benefit to such schools.

Id. (internal quotation marks omitted). The Spears Court ultimately held that the bus subsidy
violated Article IX, Section 1, because it constituted an appropriation of public funds to
non-public schools. Id. at 139. It is worth noting that the Spears Court suggested that the
Legislature “return to the people to ask them to decide whether their State Constitution
should be amended to grant the Legislature the power that it seeks, in this case, the power
to provide ‘support or benefit’ to nonpublic schools.” Id.

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{39} Article XII, Section 3 of the New Mexico Constitution prohibits the use of any part
of the proceeds from the sale or disposal of any land granted to the state by Congress or any
other funds appropriated, levied, or collected for educational purposes for sectarian,
denominational schools. The framers of our Constitution chose to further restrict the use of
public funds by prohibiting their use for the support of private schools. As a result, 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.

{40} It is clear that private schools in New Mexico have control of what instructional
materials will be purchased with their allocation of instructional material funds. The fact
that students who attend private schools, just like students who attend public schools, are
only loaned these instructional materials is not material to the analysis. Private schools
benefit because they do not have to buy instructional materials with money they obtain by
tuition or donations and they can divert such money to other uses in their schools.
Consistent with the rules of statutory construction and the majority of jurisdictions
interpreting similar state constitutional provisions, the IML violates Article XII, Section 3
because it provides support to private schools.

IV. Conclusion

{41} We reverse the Court of Appeals and the district court and determine that the IML
violates New Mexico Constitution Article XII, Section 3.

{42} IT IS SO ORDERED.

____________________________________
EDWARD L. CHÁVEZ, Justice
WE CONCUR:

___________________________________
BARBARA J. VIGIL, Chief Justice

____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
RICHARD C. BOSSON, Justice, Retired
Sitting by designation

____________________________________
CHARLES W. DANIELS, Justice

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