New Mexico

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.

Vouchers: No

Tax Credits: Yes

Existing Private School Choice Programs

Voluntary Pre-K (with choice of public and private providers)

New Mexico Statutes Annotated Section 32A-23

Relevant Case Law

Moses v. Skandera, 367 P.3d 838 (N.M. 2015), petition for cert. filed, New Mexico Association of Non-Public Schools v. Moses (U.S. May 19, 2016) (No. 15-1409)

Rejecting the theory that textbooks benefit the children rather than their schools, the New Mexico Supreme Court held that lending instructional materials for free to students who attend private schools involved an appropriation of state funds and violated one of New Mexico’s two Blaine Amendments (Article XII, Section 3).

Miller v. Cooper, 244 D.2d (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.

Analysis and Recommendations

Tax credits are the best choice for New Mexico given the recent ruling in Moses v. Skandera, in which the New Mexico Supreme Court held that lending instructional materials for free to students who attend private schools was an appropriation and violated Article XII, Section 3, one of two Blaine Amendments in the state constitution. The reasoning of that decision appears to bar vouchers.

Model Legislation: Education Savings Account, Great Schools Tax Credit Program, Family Education Tax Credit Program

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