New Mexico
New Mexico is open to all manner of educational choice programs. The state’s supreme court has had a sea change in its jurisprudence in recent years. Despite having a Blaine Amendment that it construed restrictively, the court reversed course in a textbook lending case, Moses v. Ruszkowski, holding that Trinity Lutheran Church of Columbia, Inc. v. Comer clarified that a state Blaine Amendment could not be used to deny a generally available public benefit unless justified by a state interest of the highest order. Espinoza further cements the decision in Moses. There is therefore no state constitutional obstacle to enacting a robust educational choice program in the Land of Enchantment.
Constitutional Provisions
Compelled Support Clause
“No person shall be required to attend any place of worship or support any religious sect or denomination ….” New Mexico Const. Art. II, § 11.
Blaine Amendments
“[N]o 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.” New Mexico Const. Art. XII, § 3.
“Provision shall be made for the establishment and maintenance of a system of public schools which shall be open to all the children of the state and free from sectarian control, and said schools shall always be conducted in English.” New Mexico Const. Art. XXI, § 4.
Other Relevant Provisions
“No appropriation shall be made for charitable, educational or other benevolent purposes to any person, corporation, association, institution or community, not under the absolute control of the state ….” New Mexico Const. Art. IV, § 31.
“Neither the state nor any county, school district or municipality, except as otherwise provided in this constitution, shall directly or indirectly lend or pledge its credit or make any donation to or in aid of any person .…” New Mexico Const. Art. IX, § 14.
Relevant Case Law
Moses v. Ruszkowski, 458 P.3d 406 (N.M. 2018)
The New Mexico Supreme Court held that loaning secular textbooks to private-school students did not violate the state constitution’s prohibition on using public funds to support religious schools and students.
Miller v. Cooper, 244 D.2d 520 (N.M. 1952)
The New Mexico Supreme Court reaffirmed that religious groups cannot use public school facilities to disseminate religious material but refused to enjoin religious individuals from teaching in public schools.
Zellers v. Huff, 236 P.2d 949 (N.M. 1951)
The New Mexico Supreme Court concluded that public school teachers may not dress in religious “garb” and a church may not operate a school system within the public school system.
Attorney General Opinion No. 12-03 (Feb. 1, 2012)
It would be unconstitutional to permit the distribution of money from the land grant permanent funds to finance private or sectarian education.
Attorney General Opinion No. 99-01 (1999)
This opinion of the New Mexico attorney general found that vouchers present serious constitutional problems, notwithstanding earlier attorney general opinions to the contrary, because they constitute a “donation” to a private individual in violation of the state constitution’s Anti-Donation Clause (Article IX, Section 14).
Attorney General Opinion No. 79-7 (1979)
In this opinion, the New Mexico attorney general concluded that proposed legislation appropriating state money for tuition grants to students attending private colleges and universities appeared to be an outright gift to students in violation the Anti-Donation Clause (Article IX, Section 14) because the state received no consideration or benefit in exchange.
Attorney General Opinion No. 76-6 (1976)
In this opinion, the New Mexico attorney general declared that a voucher program under which the parents of exceptional children whose needs were not being met by the public schools could use the funds the school district would otherwise have spent on the children to purchase special education at private, nonsectarian institutions would be consistent with the New Mexico Constitution.
Existing Private School Choice Programs
Voluntary Pre-K (with choice of public and private providers)
New Mexico Statutes Annotated Section 32A-23
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
