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NM Supreme Court revisits textbook case

New Mexico Supreme Court Chief Justice Judith Nakamura, left, and Justice Charles Daniels, listen as attorney Eric Baxter, representing the New Mexico Association of Nonpublic Schools, during oral arguments in a case involving state money being used to buy textbooks for private schools. The arguments were presented in Santa Fe, Monday. (EDDIE MOORE/ALBUQUERQUE JOURNAL)

SANTA FE — The New Mexico Supreme Court revisited a years-long case Monday morning on whether private schools should get textbooks paid for with state money.

The justices are no strangers to the arguments as they had ruled the practice unconstitutional in 2015.

They upheld a case filed in 2012 by New Mexico parents Cathy Moses of Santa Fe and Paul Weinbaum of Las Cruces against the state’s Public Education Department seeking to stop tax supported textbooks and computer programs for private schools. Public funds for textbooks were cut off from 109 private schools in the state.

But last year the U.S. Supreme Court told the New Mexico Supreme Court to revisit the case. The opinion followed a decision by the U.S. Supreme Court that the Trinity Lutheran Child Learning Center in Missouri had the right to state funds for a playground renovation.

A decision from New Mexico’s highest court is expected by the end of the year.

Frank Susman, who represented Weinbaum and Moses, argued allowing private schools to utilize the state-approved textbooks and other instructional materials was unconstitutional.

“It’s not really subject to interpretation,” Susman said on the Instructional Material Law.

Susman argued that since private schools aren’t under absolute control of the state, including its curriculum and finances, then they aren’t privy to the textbooks provided by taxpayers.

The attorney noted there is a finite amount of funding available to public schools, which he said were underfunded to begin with. And he said to put money toward private schools would be a disservice to the public school system.


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Susan Hapka, representing the Public Education Department, disagreed, arguing the disservice lies in taking away textbooks from schools that already rely on them.

Right now, private schools using the textbooks have to foot the bill due to the New Mexico Supreme Court’s ruling in 2015.

Textbooks and computer programs at private, including some religious, schools cost an estimated $1 million a year.

Hapka said she believes the financial toll will eventually fall on the parents and students if schools have to make up the difference.

“New Mexico has a long history of loaning textbooks to schoolchildren,” she said.

Eric Baxter, representing the New Mexico Association of Nonpublic Schools, said the textbook lending program is 80 years old.

He also said rural areas rely more on private education and the textbooks provided by the state, adding it’s a much smaller burden for the state to provide textbooks than to provide an education for all of the kids in the private schools.

He said the lawsuit the state Supreme Court upheld relies on an “anti-Catholic” measures known as Blaine Amendments.

“That was originally designed to disadvantage New Mexico’s native Catholic citizens. Now, in New Mexico and across the country, Blaine Amendments have been used to keep religious organizations from participating in neutral, generally applicable government programs on the same terms as everyone else,” Baxter wrote in a statement.

In court, Baxter said the ultimate harm is that certain New Mexican citizens are barred from approaching the state for resources that other citizens can.

Garrett White, 17, left, and Nathaniel Mouttet, 18, both students from Mesilla Valley Christian School, were two of a small group of students from private schools attending a New Mexico Supreme Court hearing on state money being used to buy textbooks for private schools. They were represented by Eric Baxter, with the Becket law firm of Washington D.C. Oral arguments were given Monday. (EDDIE MOORE/ALBUQUERQUE JOURNAL)

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