Federal high court voids state ruling on textbook funding

Decision in Missouri case upends arguments about who can buy private schools' books


The U.S. Supreme Court on Tuesday (June 27) ordered New Mexico's highest court to reconsider whether state money can be used to pay for textbooks at religious and other private schools.

In ordering the reconsideration, the justices vacated a 2015 decision by the state Supreme Court, which ruled that providing public funds for textbooks in private schools violated the New Mexico Constitution. The constitution prohibits education funds from being "used for the support of any sectarian, denominational or private school, college or university."

The U.S. Supreme Court order in the New Mexico case came a day after the justices ruled that the state of Missouri could not deny a grant to a church for playground improvements simply because it was a religious institution. The Supreme Court cited its ruling in that case in directing New Mexico's justices to revisit the textbook issue.

Prior to the New Mexico Supreme Court ruling in the textbook case, the state was providing more than $1 million a year for textbooks in private schools.

The case began in 2012 when two parents of public school students - Cathy "Cate" Moses, of Santa Fe, and Paul Weinbaum, of Las Cruces - sued the state, saying its practice of using federal dollars to pay for textbooks at private schools took money away from students in public schools.

The Becket Fund for Religious Liberty, an advocacy group, asked the U.S. Supreme Court to overrule the decision by the New Mexico justices, arguing that denying funding for textbooks in religious schools violates the federal Constitution's guarantees of freedom of religion and equal protection.

The U.S. Supreme Court did not hear the New Mexico case. But the court's ruling about the government grant for the church in Missouri seemed to upend some of the arguments against providing public funds to religious institutions.

That case - Trinity Lutheran Church of Columbia Inc. v. Comer - centered on a church that sought to resurface a large portion of its playground by replacing pea gravel with a rubber surface made from recycled tires. To pay for the project, the church applied for a grant from a tire-recycling program run by the state. But the Missouri government denied the church's application, pointing to a section of the state constitution prohibiting public financial support for a church.

Reversing lower-court decisions, the U.S. Supreme Court ruled the state's policy violated the church's rights by denying an otherwise available public benefit only because of its religious status.

"The court made it clear you can't be excluded from generally available government programs because of your faith," said Eric Baxter, general counsel at the Becket Fund.

Frank Susman, a Santa Fe attorney representing Moses and Weinbaum, said New Mexico's decision against textbooks for private schools should stand because it does not have anything to do with religion. Various articles in the New Mexico Constitution say public entities are prohibited from providing any kind of financial support to private institutions regardless of whether those groups are secular or religious, he said.

"Other constitutional mandates would also prohibit it and do not mention churches," he said.

The Public Education Department has stayed out of the dispute, deciding instead to accept the ruling of the New Mexico Supreme Court and stop providing federal funds to private schools.

A spokeswoman for the department did not respond to a request for comment Tuesday.

The New Mexico Supreme Court's next steps are unclear. Its justices will meet after they receive the U.S. Supreme Court's order and decide how to proceed with the case, which could involve calling for more written arguments from the lawyers involved or scheduling another hearing.

Contact Nott at (505) 986-3021 or rnott@sfnewmexican.c­om. Contact Oxford at (505) 986-3093 or aoxford@sfnewmexican.com.

This story first published in the Santa Fe New Mexican, a sister publication of The Taos News.