Moses v. Ruszkowski

VIGIL, Justice.

ORIGINAL PROCEEDING ON CERTIORARI
Sarah M. Singleton
, District Judge Graeser & McQueen, LLC
Christopher L. Graeser
Santa Fe, NM Frank Susman Santa Fe, NM
for Petitioners New Mexico Public Education Department
Dawn E. Mastalir, General Counsel
Santa Fe, NM Sutin, Thayer & Browne, P.C.
Susan M. Hapka
Albuquerque, NM for Respondent Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Rufus E. Thompson
Jennifer G. Anderson
Sarah M. Stevenson
Albuquerque, NM The Becket Fund for Religious Liberty
Eric S. Baxter
Washington, DC for Intervenors-Respondents

OPINION

VIGIL, Justice. {1} In this opinion we reconsider the constitutionality of New Mexico's textbook loan program. In Moses v. Skandera (Moses II), this Court considered whether using public funds to lend textbooks to private school students violated Article XII, Section 3 support of any sectarian, denominational or private school, college or university." 2015-NMSC-036, 367 P.3d 838, vacated sub nom., N.M. Ass'n of Non-public Sch. v. Moses, 137 S. Ct. 2325 (2017) (mem.). This Court held "that the plain meaning and history of Article XII, Section 3 forbids the provision of books for use by students attending private schools, whether such schools are secular or sectarian." Moses II, 2015-NMSC-036, ¶ 2. The United States Supreme Court subsequently vacated this Court's judgment and remanded the case for further consideration in light of Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017). N.M. Ass'n of Non-public Sch.,137 S. Ct. 2325. {2} On remand, we conclude that this Court's previous interpretation of Article XII, Section 3 raises concerns under the Free Exercise Clause of the First Amendment to the United States Constitution. To avoid constitutional concerns, we hold that the textbook loan program, which provides a generally available public benefit to students, does not result in the use of public funds in support of private schools as prohibited by Article XII, Section 3. We also hold that the textbook loan program is consistent with Article IV, Section 31 of the New Mexico Constitution, which addresses appropriations for educational purposes, and Article IX, Section 14 of the New Mexico Constitution, which limits "any donation to or in aid of any person, association or public or private corporation."

I. BACKGROUND

{3} Cathy Moses and Paul F. Weinbaum (Petitioners) initiated this case by filing a complaint for declaratory judgment against Hanna Skandera, the Secretary of the New Mexico Public Education Department (Department). Petitioners sought a declaration that the Instructional Material Law (IML), NMSA 1978,§§ 22-15-1 to -14 (1967, as amended through 2011), violates several provisions of the New Mexico Constitution because the IML provides for the distribution of public funds to private schools. {4} The IML establishes an instructional material fund that is administered by the Department. See § 22-15-5(A). The Department uses the fund to purchase textbooks that are loaned free of charge to public and private school students enrolled in first based on Zellers v. Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949 (addressing issues concerning public funding of parochial schools and Catholic influence in public schools). But before the district court entered summary judgment, Intervenors, the Albuquerque Academy, the New Mexico Association of Non-public Schools, Rehoboth Christian School, St. Francis School, Hope Christian School, Sunset Mesa School, and Anica and Maya Benia moved to intervene. The district court granted the motion to intervene and ordered the parties to submit additional briefing on whether Zellers precluded the use of IML funds to purchase textbooks for distribution to private schools. At a second summary judgment hearing, the district court concluded that Zellers did not constitute binding or persuasive authority, denied Petitioners' motion for summary judgment, and granted summary judgment in favor of the Department. The Court of Appeals affirmed. Moses v. Skandera (Moses I), 2015-NMCA-036, ¶ 2, 346 P.3d 396, rev'd, 2015-NMSC-036, ¶¶ 12, 41. {6} Petitioners sought review by this Court, raising five issues:

(1) whether this Court's decision in Zellers constituted dicta; (2) whether the IML violates Article XII, Section 3 of the New Mexico Constitution; (3) whether the IML violates Article IV, Section 31 of the New Mexico Constitution; (4) whether the IML violates Article IX, Section 14 of the New Mexico Constitution; and (5) whether the IML violates Article II, Section 11 of the New Mexico Constitution.

Moses II
, 2015-NMSC-036, ¶ 11. This Court held that loaning textbooks to private school students violated Article XII, Section 3 and declined to reach the remaining issues. Moses II, 2015-NMSC-036, ¶ 12. {7} The New Mexico Association of Non-public Schools filed a petition for a writ of certiorari in the United States Supreme Court. The day after the Supreme Court issued its opinion in Trinity Lutheran, 137 S. Ct. 2012, the Supreme Court granted review of this Court's opinion in Moses II, vacated this Court's judgment, and remanded the case to this Court for further consideration in light of Trinity Lutheran. See N.M. Ass'n of Non-public Sch., 137 S. Ct. 2325. In accordance with the Supreme Court's directive, in this opinion we take a fresh look at the constitutionality of the textbook loan program under the New Mexico Constitution.

Christopher Ruszkowski, the current Secretary of Education, has been substituted for Hanna Skandera on remand.

II. DISCUSSION

{8} On remand, Petitioners argue that loaning textbooks to private school students under the IML violates three provisions of the New Mexico Constitution: (1) Article XII, Section 3, which prohibits the use of public funds "for the support of any sectarian, denominational or private school, college or university"; (2) Article IV, Section 31, which precludes an appropriation for "educational . . . purposes to any person, corporation, association, institution or community, not under the absolute control of the state"; and (3) Article IX, Section 14, which limits "any donation to or in aid of any person, association or public or private corporation." {9} The Department and Intervenors argue that Article XII, Section 3, as interpreted by the Court in Moses II, violates the Free Exercise Clause of the First Amendment to the United States Constitution and the equal protection guarantees of the federal and state constitutions. They ask this Court to interpret Article XII, Section 3 in a manner that permits the state to loan textbooks to private school students under the IML and assert that such an interpretation would be consistent with the United States Constitution.

A. Standard of Review

{10} This Court applies a de novo standard of review to a constitutional challenge to a statute. Bounds v. State ex rel. D'Antonio, 2013-NMSC-037, ¶ 11, 306 P.3d 457. In doing so, we presume that the statute is valid and will uphold it "unless we are satisfied beyond all reasonable doubt that the Legislature went outside the bounds fixed by the Constitution in enacting the challenged legislation." Id. (internal quotation marks and citation omitted). "We will not question the wisdom, policy, or justness of a statute, and the burden of establishing that the statute is invalid rests on the party challenging the constitutionality of the statute." Id. (internal quotation marks and citation omitted). B. Loaning Textbooks to Private School Students Under the IML Does Not Constitute Support of Private Schools as Prohibited by Article XII, Section 3 1. This Court's previous interpretation of Article XII, Section 3 in Moses II {11} This Court based its decision in Moses II, 2015-NMSC-036, on Article XII, Section 3 of the New Mexico Constitution, which provides that

[t]he schools, colleges, universities and other educational institutions provided for by this constitution shall forever remain under the exclusive control of the state, and no part of the proceeds arising from the sale or disposal of any lands granted to the state by congress, or any other funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university.

To determine whether loaning textbooks to private school students constituted support of private schools in violation of Article XII, Section 3, this Court considered the historical circumstances that led to the provision's adoption, including the nationwide controversy over public education. See Moses II, 2015-NMSC-036, ¶¶ 19-23. {12} "During the early nineteenth century, public education was provided in public schools known as common schools." Moses II, 2015-NMSC-036, ¶ 19 (internal quotation marks and citation omitted). These common schools were heavily President Ulysses S. Grant entered the debate by vowing to " '[e]ncourage free schools, and resolve that not one dollar be appropriated to support any sectarian schools.' " Moses II, 2015-NMSC-036, ¶ 21 (alteration in original) (emphasis added) (quoting Viteritti, supra, at 670). At that time, "[i]t was an open secret that 'sectarian' was code for 'Catholic.' " Id. (internal quotation marks and citation omitted). {14} In 1875, Congressman James G. Blaine proposed the following amendment to the federal constitution:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, [nor] any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

Green, supra, at38 n.2 (quoting 4 Cong. Rec. 5453 (1876)). This proposed amendment to the federal constitution failed to pass, but similar provisions were soon incorporated into state law. Moses II, 2015-NMSC-036, ¶ 23. "By 1876, fourteen [s]tates had enacted legislation prohibiting the use of public funds for religious schools; by 1890, twenty-nine [s]tates had incorporated such provisions into their constitutions." Viteritti, supra, at 673. {15} Although many states voluntarily chose to adopt state constitutional provisions based on the failed Blaine amendment, Congress forced New Mexico and other territories seeking admission to the union to adopt Blaine provisions as a condition of statehood. See DeForrest, supra, at 573-74; Viteritti, supra, at 673. Congress passed the Enabling Act for New Mexico in 1910. See Enabling Act for New Mexico of June 20, 1910, ch. 310, 36 Stat. 557. The Enabling Act required New Mexico to establish and maintain "a system of public schools . . . free from sectarian control," id. § 2, and granted New Mexico "over thirteen million acres of federal land . . . to be held in trust for the benefit of various public schools and other institutions." State of N.M. ex rel. King v. Lyons, 2011-NMSC-004, ¶ 5, 149 N.M. 330, 248 P.3d 878. The Enabling Act further mandated

[t]hat the schools, colleges, and universities provided for in this Act shall forever remain under the exclusive control of the said State, and no part of the proceeds arising from the sale or disposal of any lands granted herein for educational purposes shall be used for the support of any sectarian or denominational school, college, or university.

Enabling Act § 8. "The Enabling Act required that the people of New Mexico incorporate its mandates into the state constitution, and it specified that those mandates could not be modified without the consent of Congress and a ratifying vote of our citizens." Lyons, 2011-NMSC-004, ¶ 4; see also N.M. Const. art. XXI, § 9 (consenting to Enabling Act provisions); N.M. Const. art. XXI, § 10 (making Clause required Missouri to include religious schools in a program that provided grants to schools and other entities to resurface playgrounds with recycled tire rubber. 137 S. Ct. at 2017. The preschool at Trinity Lutheran Church applied for a grant, but the state deemed the preschool categorically ineligible to receive a grant based on restrictions set forth in article I, section 7 of the Missouri Constitution. Trinity Lutheran, 137 S. Ct. at 2017-18. Article I, section 7 provides

[t]hat no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

Trinity Lutheran Church sued, arguing that Missouri's policy of denying grants based on the religious identity of the applicant violated the Free Exercise Clause. Trinity Lutheran, 137 S. Ct. at 2018. The federal district court ruled in favor of the state, reasoning that the case was controlled by Locke and that the Free Exercise Clause did "not prohibit withholding an affirmative benefit on account of religion." Trinity Lutheran, 137 S. Ct. at 2018. The Eighth Circuit Court of Appeals affirmed, concluding that the Free Exercise Clause did not compel Missouri "to disregard the antiestablishment principle" embodied in its state constitution. Id. at 2018-19. sectarian schools (which in practical terms meant Catholic") (internal quotation marks and citation omitted)). This history casts constitutional doubt on the motive underlying Article XII, Section 3. We therefore consider whether the history or circumstances in New Mexico that led to the adoption of Article XII, Section 3 cured the provision's anti-Catholic origins.

4. History of public and sectarian schools in New Mexico

{36} New Mexico has a unique history and culture, and the public school debate within New Mexico took a different course than the debate at the national level. Formal schooling commenced in New Mexico with the arrival of the first Franciscan missionaries over four hundred years ago. See Kathleen Holscher, Religious Lessons: Catholic Sisters and the Captured Schools Crisis in New Mexico 28 & 206 n.13 (2012). "Under both Spanish and Mexican rule, the Roman Catholic Church . . . handled all education with little interference from secular forces." Robert W. Larson, New Mexico's Quest for Statehood: 1846-1912 101 (1968). During that time period, "New Mexico's remote location, its rugged landscape, and its struggling economy made a centralized system of schools no more than a far-off hope." Holscher, supra, at 28. {37} In 1848, Mexico ceded present-day New Mexico to the United States, and in (holding unconstitutional the appropriation of bond money to finance auditoriums for use by private corporations because the aid was "direct and substantial"). {51} In this case, the textbook loan program does not involve any donation or gift to students or private schools. The Department merely loans textbooks to students for use while attending school. See §§ 22-15-7, 22-15-10(B). The Department retains ownership and control over the textbooks and the fund used to purchase them. See §§ 22-15-4(B), 22-15-5(A), 22-15-10(E). We hold that loaning textbooks to students under the IML does not involve a donation to any person or entity as prohibited by Article IX, Section 14.

E. Equal Protection Clauses of the State and Federal Constitutions

{52} The Department and Intervenors argue that excluding private school students from participation in the textbook loan program violates the equal protection guarantees of the state and federal constitutions. See U.S. Const. amend. XIV, § 1; N.M. Const. art. II, § 18. We decline to address these arguments because we conclude that private school students may participate in the textbook loan program. See Trinity Lutheran, 137 S. Ct. at 2024 n.5 (deciding the case on free exercise grounds and declining to reach the equal protection claim raised by the church).

III. CONCLUSION

{53} We hold that the textbook loan program established by the IML does not violate Article IV, Section 31; Article IX, Section 14; or Article XII, Section 3 of the New Mexico Constitution. We reinstate the provisions of the IML that allow private school students to participate in the textbook loan program.

{54} IT IS SO ORDERED.

/s/ _________

BARBARA J. VIGIL
, Justice

WE CONCUR:

/s/ _________
PETRA JIMENEZ MAES
, Justice /s/ _________
CHARLES W. DANIELS
, Justice JUDITH K. NAKAMURA, Chief Justice, dissenting GARY L. CLINGMAN, Justice, joining in dissent review is the drafting of a constitutional provision that occurred a century ago. See id. The problem is only further compounded when the provision under scrutiny is neutral and constitutional on its face. Id. {63} The history the majority recounts suggests that a straight line of anti-Catholic bigotry runs from the motivations underlying the Blaine Amendment to Article XII, Section 3. Maj. Op. ¶¶ 12-17, 43. This history, first explicated in Moses II, purports to establish that anti-Catholic animus prompted the Blaine Amendment, which was in turn incorporated into the Enabling Act (most directly) at Section 8, which was in turn the basis for Article XII, Section 3. Maj. Op. ¶¶ 12-17, 43. Moses II was too quick to conclude that the root of this series of events was, in fact, anti-Catholic bigotry. {64} "Those who characterize the Blaine Amendment as a singular exercise in Catholic bigotry . . . give short shrift to the historical record and the dynamics of the times." Steven K. Green, The Insignificance of the Blaine Amendment, 2008 B.Y.U. L. Rev. 295, 296 (2008).

The Blaine Amendment had as much to do with the partisan climate of the post-Reconstruction era and related concerns about federal power over education as it did with Catholic animus. Included in the mix was a sincere effort to make public education available for children of all faiths and races, while respecting Jeffersonian notions of church-state

separation.

Id
. (internal quotation marks and citation omitted). Any attempt at a summary of the many social forces at play in the lead-up to the creation of the Blaine Amendment is beyond the scope of this dissent. See generally id. It suffices to state that there is reason to doubt the first link in the chain of inferences that must be accepted to conclude that Article XII, Section 3 was motivated by anti-Catholic animus (i.e., that anti-Catholic animus was the sole force behind the Blaine Amendment). The next link—that between the Blaine Amendment and the Enabling Act—is equally susceptible to attack. {65} The suggestion that the motives underlying the Blaine Amendment (whatever they were) were shared by the drafters of the Enabling Act is problematic. The enabling act

which authorized the statehood of Arizona and New Mexico contained the proviso that both nascent states must have constitutional language forbidding public funding to sectarian schools. Opponents of the Blaine Amendment claim that the same anti-Catholic animus behind the federal Blaine Amendment motivated this mandate to new states in the enabling acts. However, a recent study by historians prepared in an amicus brief to Locke v. Davey found that no evidence of anti-Catholic bigotry lay behind a similar enabling act for Washington State that same year, and the Supreme Court noted in a footnote that the history of the federal Blaine Amendment was not relevant to consideration of Washington's similar provision.

by the legitimate principle that doing so ensures that the public schools of our state are maximally financed, a circumstance necessary to ensure that "[a] uniform system of free public schools sufficient for the education of, and open to, all the children of school age in the state shall be established and maintained." N.M. Const. art. XII, § 1. "It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause." Norwood v. Harrison, 413 U.S. 455, 462 (1973). {78} Trinity Lutheran does not require us to abandon the conclusion reached in Moses II that Article XII, Section 3 precludes the provision of school books to private schools under the IML. The state-constitution, equal-protection claims advanced by Respondent fails. {79} Accordingly, I respectfully dissent.

Footnote three was joined by four justices (including the Chief Justice), but has unquestionable significance for future cases (like this one) given how the other Justices proposed to resolve Trinity Lutheran. Laycock, supra, at 135-36. --------

/s/ _________

JUDITH K. NAKAMURA
, Chief Justice

I CONCUR:

57 /s/_________ GARY L. CLINGMAN, Justice