Attorneys challenge court's ruling on textbooks

Joshua Kellogg
New Mexico Supreme Court

FARMINGTON — An Albuquerque-based law firm and a religious liberties organization are challenging a New Mexico Supreme Court ruling that the use of public funds to purchase textbooks for private schools is unconstitutional

A motion for rehearing was filed on Nov. 24 by the Modrall Sperling Law Firm. It asks the state Supreme Court to address what they believe is an error made in an opinion issued Nov. 12, according to Eric Baxter, senior counsel for the Becket Fund for Religious Liberty.

The Washington, D.C., based religious liberties organization is working on behalf of the New Mexico Association of Non-Public Schools. NMANS Executive Director John Foreman previously said the organization of about 220 New Mexico private schools disagreed with the decision.

The court ruled the Instructional Material Law — which granted the New Mexico Public Education Department authority to provide textbooks to public and private schools — violated the New Mexico Constitution.

Baxter said the state is inappropriately putting additional conditions on the use of federal Mineral Lands Leasing Act funding, which supports the state Education Department’s Instructional Material Bureau. Only non-religious textbooks can be supplied by the Education Department for classroom use.

He said the state Supreme Court was wrong when it said the Instructional Material Law was funded by state and was subject to the state Constitution.

“I think the Supreme Court erred in concluding that these were funds from state land and that it should recognize they are federal dollars that are being used in accordance with federal mandate,” Baxter said. “Any efforts to cut off certain categories of people from using those funds would be a violation of the federal constitution.”

Baxter continued by saying the money is appropriated by the U.S. Congress and if the state places limitations on the use of the federal funds, that would be a violation the Supremacy Clause of the U.S. Constitution.

“You shouldn’t have any systems where certain categories of people are excluded from participating in public benefits because of their religious or educational choices,” Baxter said.

The state Supreme Court can require another hearing or another briefing related to the decision.

Baxter said he was optimistic the court would reconsider the decision and uphold the constitutionality of the Instructional Material Law so private schools can continue to receive textbooks purchased by the state education department.

Joshua Kellogg covers education for The Daily Times. He can be reached at 505-564-4627.

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