Private schools win textbook funding battle in New Mexico

The New Mexico Court of Appeals upheld a law requiring the state’s Department of Education to supply free textbooks to all students in the state, regardless of whether they attend public or private schools. The ruling keeps in place an 85-year-old state law challenged on the grounds it allegedly violated other state laws that forbid using state funds for “sectarian, denominational, or private schools.”

Lawmakers enacted the first version of New Mexico’s Instructional Material Law (IML) in 1929 to “provide free textbooks in the public schools … for first and second grade students,” according to the ruling. Legislators amended IML several times over the years, including expanding the program in 1933 to include free textbooks for all children between first and eighth grade. Funding for IML comes from the rental of government land under the Mineral Leasing Land Act.

Local public school boards choose books and other educational media from a list of materials approved by the state’s Education Department. Private school officials also may order materials for their students. The ruling notes both public and private schools may apply to use up to 50 percent of their funds for items that are not on the list, provided the funding isn’t used for “religious, sectarian, or nonsecular materials.”

In 2012, Cathy Moses and Paul F. Weinbaum challenged IML, claiming that providing instructional material to students in private schools created unconstitutional “support” to private—and most often religious—schools in violation of several other state statutes.

Thirty-seven states, including New Mexico, have laws preventing the use of government funds for sectarian schools or institutions, according to The Becket Fund for Religious Liberty, an attorney group that specializes in religious freedom cases. Such laws are commonly referred to as Blaine Amendments, named after James G. Blaine, who attempted to get such an amendment into the U.S. Constitution in 1875 while he was Speaker of the House. The amendment failed, but many states enacted similar provisions into their state constitutions.

But on Oct. 28, a state-level, 3-judge panel ruled IML does not violate any laws, concluding the funds benefit the students and parents at private schools, not the schools themselves. In addition, the ruling noted the state has an interest “to educate children, regardless of where they attend school” and thus children attending private schools shouldn’t be barred from government-aided educational benefits. The judges referred to several cases in which the U.S. Supreme Court ruled that when public schools lend educational materials to children in nonpublic schools, the items maintain a “secular purpose” that “neither advances nor inhibits religion.”

“[The] ruling allows state legislatures to focus on educating children, regardless of where they go to school,” said Eric Baxter, senior counsel at The Becket Fund, in a press release. “Religious freedom is protected, not threatened, when individuals of faith can participate in state programs on equal footing with everyone else.”