New Mexico reconsiders funding textbooks at private schools

SANTA FE, N.M. -- Advocates for religious and private schools Monday pressed the New Mexico Supreme Court to reverse its recent ban on the use of public funding for providing textbooks in private schools, as states respond to a U.S. Supreme Court ruling last year about state funding for religious institutions.

The six-year court battle in New Mexico was initiated by two parents who say state funding for educational material at religious and secular private schools takes money away from public schools -- violating a constitutional amendment prohibiting the practice.

The state supreme court sided with those arguments in a 2015 ruling that was voided last year by the U.S. Supreme Court. The U.S. justices declined to hear the case but asked for new consideration in light of a June 2017 ruling the state of Missouri could not deny public money to a church for a playground because of its religious status.

A new decision from the state Supreme Court could be months away, after justices heard oral arguments Monday.

Attorneys for private schools and the state's allied Public Education Department said state constitutional restrictions on public funding for private schools are a relic of anti-Roman Catholic political fervor in the 19th and early 20th centuries.

"This wasn't really a public versus private school fight, it was an effort to really exclude the Catholic view," said Eric Baxter, an attorney with the not-for-profit Becket Fund for Religious Liberty, which is representing an association of New Mexico private schools. "The private schools also become victims of the law."

Gov. Susana Martinez's administration has long said adherence to the state's Instructional Materials Act means all students are entitled to subsidized textbooks and other educational materials.

In a written brief, attorneys for the agency urged the state supreme court to reverse course, saying its 2015 decision "altered the law to create two classes of similarly situated individuals ... providing public school children with books, but depriving private school children of the same benefit."

A pivotal constitutional provision in the case states no state funds "shall be used for the support of any sectarian, denominational or private school, college or university."

Frank Susman, an attorney for the original plaintiffs, said that phrase should be taken literally to mean state aid cannot be provided to any person at a private school. He said the Missouri playground decision hinged on the narrow issue of the church's religious status and has little bearing.

The original plaintiffs in the case are Cathy Moses of Santa Fe and Paul Weinbaum of Las Cruces. Weinbaum attended oral arguments with his wife, Lisa, a social-studies teacher at a public middle school in Las Cruces who said outside court she often tells parents she cannot loan scarce textbooks to her students.

The case revolves around more than $1 million a year in annual textbook funding. Attorneys for the parents say reversing the decision would open the way for more public funding at private schools, such as buses, desks and buildings.