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Use of public funds for private school books goes before high court

Critics of the state’s practice of buying textbooks for private and religious schools told the New Mexico Supreme Court on Wednesday that public schools are being robbed of $1.85 million a year.

Those who sued the state Public Education Department and its Cabinet secretary, Hanna Skandera, say using public money to buy books for private schools violates the state constitution.

Advocates of the program countered that both a district judge in Santa Fe and the New Mexico Court of Appeals have found the policy lawful. They say money for the books comes from federal mineral leases, and thus federal law, not the state constitution, controls how the money should be used.

But some of that federal funding flows to the state. Half of the money the federal government receives from use of public lands is paid to the state where the property is located.

Plaintiffs Cathy “Cate” Moses and Paul Weinbaum first filed their lawsuit in 2012 challenging the practice of using state-controlled money for private schools.

Their attorney, Frank Susman, cited for the Supreme Court justices a section of the state constitution that says no money collected for educational purposes should be used to support “any sectarian, denominational or private school, college or university.”

Moses and Weinbaum have also pointed to the court decisions in New Mexico prohibiting the use of public money for private schools. For example, in 1951 the state Supreme Court prohibited the use of public funds for books in parochial schools. It also barred nuns, priests and religious brothers from teaching in public schools.

But so far in this case, judges have ruled for Skandera and her department.

In May 2013, District Judge Sarah Singleton decided that nothing in the state constitution prevents the agency from providing money for instructional materials for private schools. The New Mexico Court of Appeals in a 3-0 vote affirmed Singleton’s decision last October.

In related news, The internet (finally) revolutionized Texas oil leases, and schools are cheering.

Susman said he appealed the case to the Supreme Court for a simple reason. “I think it’s interesting that this has been going on this many years without being challenged. Public schools in the state of New Mexico are underfunded.”

He told the Supreme Court justices that Skandera’s policy actually violates three different sections of the constitution, including one prohibiting any appropriation not under absolute control of the state being made for educational purposes.

Attorney Susan Hapka, who represents Skandera and the Public Education Department, said the state has long provided textbooks for private schools to address illiteracy among children. “It’s supporting children … the state benefits from this,” Hapka told the justices.

The four justices present for the hearing questioned lawyers from both sides equally, giving little hint of which way they were leaning.

For example, Justice Edward Chavez told Susman that the state provides tuition vouchers for students to use at either public or private schools, which does not violate the state constitution. When Susman said in response that vouchers do not support particular schools but specific students, Chavez said that, nonetheless, the tuition ends up supporting the private school.

Justice Richard Bosson asked Hapka whether the infusion of money helps private schools reallocate funds from textbooks to buy computers or raise teacher salaries, giving them an advantage. She said she did not know.

When Hapka repeatedly referred to the Court of Appeals ruling, Bosson said he didn’t care about that: “We’re going to take a fresh look at this,” Bosson said.

The fifth Supreme Court justice, Charles Daniels, was absent from the hearing. Susman said Daniels still would help decide the case. It is unclear how long it will take the justices to render a decision.

Contact Robert Nott at 986-3021 or rnott@sfnewmexican.com.

This article was written by Robert Nott from The Santa Fe New Mexican and was legally licensed through the NewsCred publisher network.

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