Moses v. SkanderaMoses v. Skandera
- Reporters:
- ,
- Before:
- James J. Wechsler, Michael D. Bustamante, M. Monica Zamora
Santa Fe, NM
The Graeser Law Firm, LLC
Christopher L. Graeser
Santa Fe, NM
for Appellants
Albert V. Gonzales, Deputy General Counsel
Public Education Department
Santa Fe, NM
Sutin, Thayer & Browne, P.C.
Susan M. Hapka
Albuquerque, NM
for Appellees
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
R.E. Thompson
Emil J. Kiehne
Jennifer G. Anderson
Sarah M. Stevenson
Albuquerque, NM
for Intervenors-Appellees
OPINION
WECHSLER, Judge.
{1} Under the Instructional Material Law,
{2} The district court rejected Plaintiffs’ arguments and granted summary judgment to Defendants Hanna Skandera, Acting Secretary of Education, and New Mexico Public Education Department. We hold that Zellers is not controlling and that the IML does not violate the New Mexico Constitution. We therefore affirm the district court‘s summary judgment.
PROCEDURAL BACKGROUND
{3} Plaintiffs filed a verified complaint seeking a declaratory judgment as to the constitutionality of the IML. After Defendants answered, Plaintiffs filed a motion for summary judgment. At a hearing on the motion for summary judgment, the district court stated that it intended to grant the motion based on Zellers. Intervenors, the Albuquerque Academy, Anica and Maya Benia, the New Mexico Association of Nonpublic Schools, Rehoboth Christian School, St. Francis School, Sunset Mesa School, and Hope Christian School, then filed a motion to intervene. After Plaintiffs withdrew their initial opposition to intervention, the district court granted intervention and ordered additional briefing concerning the applicability of Zellers. The district court held a second hearing on the motion for summary judgment, reversed its prior ruling, and denied Plaintiffs’ motion for summary judgment. It entered an order granting summary judgment to Defendants.
THE IML
{4} The IML emanates from attempts by the New Mexico Legislature over time to provide textbooks and instructional material to New Mexico students. In 1929, the Legislature enacted legislation entitled “Free Text Books” to provide free textbooks in the public schools and appropriated funds to cover purchases for first and second grade students. NMSA 1929, §§ 120-1701, 1702 (1929). In 1931, the Legislature created “a state school building, text book and rural aid fund” under the supervision of the State Board of Education and appropriated the annual balance of the fund under the Mineral Leasing Land Act (MLLA). 1931 N.M. Laws, ch. 138, §§ 1, 2. In 1933, the Legislature expanded the Free Text Book Fund of the Free Text Books statute to include “free text books for all children in the schools in the State of New Mexico, from the first to eighth grades inclusive[.]” 1933 N.M. Laws, ch. 112, § 1. The statute was amended and
The IML was, in turn, amended and recompiled in 1978.
{5} The operation of the IML has historically been connected to the MLLA. Indeed, the principal, if not exclusive, funding source for the instructional material fund is the MLLA. Under the MLLA, one-half of the monies that the federal government receives from the rental of public lands is paid to the state within which the public land is located.
{6} As currently enacted, the IML establishes the instructional material fund, a non-reverting fund administered by the Department, to be used to purchase “instructional material,” defined under the IML as “school textbooks and other educational media that are used as the basis for instruction[.]”
material, it makes payment directly to an in-state depository for the instructional material for private schools.
{7} The school districts or schools, as agents for their students, select particular instructional material from a multiple list adopted by the Department.
CONSTITUTIONAL ARGUMENTS
Standard of Review
{8} Plaintiffs’ constitutional arguments assert that the IML conflicts with four provisions of the New Mexico Constitution. In addressing these provisions, we review questions concerning constitutional interpretation as matters of law under de novo review. Tri-State Generation & Transmission Ass‘n, Inc. v. D‘Antonio, 2012-NMSC-039, ¶ 11, 289 P.3d 1232. We must presume that statutes are valid and
uphold them against constitutional challenge “unless we are satisfied beyond all reasonable doubt that the Legislature” exceeded its constitutional authority. State ex rel. Udall v. Pub. Emps. Ret. Bd., 1995-NMSC-078, ¶ 7, 120 N.M. 786, 907 P.2d 190.
Article XII, Section 3 of the New Mexico Constitution
{9} As pertinent to this case,
{10} Plaintiffs do not assert that the distribution of instructional material to private schools as agents for their students interferes with the state‘s control over the public educational system. Indeed, under the IML, the Department controls the distribution and content of instructional material used by all students, including those in private schools.
instructional material itself is sectarian or denominational because the IML specifically prohibits the use of funds for such material.
{11} Plaintiffs do argue, more generally, that the furnishing of free instructional material to private schools conflicts with
{12} In addressing Plaintiffs’ position, we initially discuss Zellers because Plaintiffs argue that it controls this case and because, as we discuss, it is illustrative of the problems addressed by
Zellers v. Huff
{13} The district court initially indicated its intent to hold that Zellers applies to the IML, but, after allowing intervention and additional briefing, and holding a second hearing, decided that Zellers did not control this case. Plaintiffs urge this Court on appeal to hold that Zellers is binding precedent.
{14} Zellers was a class action in which the plaintiffs requested the district court to declare illegal the teaching of sectarian religion in the public schools and the expenditure of public funds in aid of Roman Catholic parochial schools, to declare members of Roman Catholic religious orders ineligible to teach in public schools, to bar certain Roman Catholic sisters and brothers from teaching in the public schools, and to enjoin the activities embraced within the district court‘s rulings. 1951-NMSC-072, ¶¶ 1-2. The complaint named as defendants the individual members of the State Board of Education, members of certain county, independent, and municipal boards of education, the State Educational Budget Auditor, and various members of Roman Catholic religious orders teaching in the schools included in the complaint. Id. ¶ 1.
{15} The district court in Zellers addressed a number of issues arising from the multi-faceted interrelationship of the Roman Catholic Church, the State of New Mexico, and local schools in the operation of both public and parochial schools in various school districts in the state. Id. ¶¶ 1, 2, 4. The district court summarized this
interrelationship by finding that “New Mexico had a Roman Catholic school system supported by public funds within its public school system.” Id. ¶ 13.
{16} The district court issued a broad-ranged declaratory judgment that included declaring that “the furnishing of free textbooks to schools other than tax supported schools” violates
textbooks for Catholic schools only to private or parochial schools at the expense of the state.” Id. ¶ 19.
{17} The issue before our Supreme Court in Zellers that is relevant to this case concerns the injunction the district court issued barring the individual board members from taking action that the district court declared to be unconstitutional. Our Supreme Court vacated the injunction because the district court lacked subject matter jurisdiction. Id. ¶ 77. It otherwise affirmed the district court‘s judgment with exceptions not applicable to this case. Id. ¶ 83. Making an exception to its rule of refraining from addressing issues not before it for decision, because of the “grave importance of the matters involved,” the Court stated that if the district court had properly had jurisdiction, its rulings underlying its injunction were correct. Id. ¶ 79.
{18} We do not believe that Zellers is precedent for this case for three reasons. First, both the district court and our Supreme Court lacked subject matter jurisdiction to address an injunction against the individual board members. When the lower court lacks jurisdiction to decide issues, the court on appeal also may not decide them. State ex rel. Overton v. N.M. State Tax Comm‘n, 1969-NMSC-140, ¶ 20, 81 N.M. 28, 462 P.2d 613.
{19} Second, our Supreme Court‘s expression of its opinion concerning aspects of the district court‘s judgment over which it did not have jurisdiction is dictum. Dictum
is a statement “unnecessary to [a] decision of the issue before the Court . . . no matter how deliberately or emphatically phrased.” Ruggles v. Ruggles, 1993-NMSC-043, ¶ 22 n.8, 116 N.M. 52, 860 P.2d 182. The Court‘s statement of the importance of the issue only emphasizes that it was expressing an opinion that was unnecessary to its decision. Id.; see also Pincheira v. Allstate Ins. Co., 2007-NMCA-094, ¶ 51, 142 N.M. 283, 164 P.3d 982 (“When an appellate court makes statements that are not necessary to its decision, those statements are without the binding force of law.“).
{20} Third, the issues of Zellers, as included in the district court‘s judgment in Zellers, are different from the issues in this case. Although the district court in Zellers enjoined the state from furnishing free textbooks to private schools, it did not rule upon the constitutionality of a predecessor statute to the IML, entitled “Text Books,” NMSA 1941, Sections 55-1701 to -20, that was in effect at that time. That statute, like the IML, provided for the distribution of free textbooks to the students of the state regardless of the schools they attended. Id. In addition, the context in which the textbooks in Zellers were furnished is different from the manner in which instructional material is distributed under the IML. The furnishing of textbooks in Zellers was merely one aspect of the unconstitutional interrelationship that was the foundation for the education system. 1951-NMSC-072, ¶ 13. (“In short, New Mexico had a Roman Catholic school system supported by public funds within its
public school system.“). The district court in Zellers found that public funds used for free textbooks “are used in furtherance of the dissemination of Roman Catholic religious doctrines to students attending” private schools and that the state had adopted a “complete line of text books . . . for use in Catholic schools” that it furnished to those schools as well as certain public schools without charge. Id. ¶ 4. There is no such record in this case. In contrast, the IML specifically provides that public funds cannot be used for sectarian materials.
United States Supreme Court Establishment Clause Cases
{22} The issue underlying Plaintiffs’ argument is whether the furnishing of instructional material to students attending private schools provides unconstitutional support to private schools. Before discussing the cases involving constitutional provisions of other states cited by the parties, we note that the United States Supreme Court has determined issues involving the Establishment Clause of the First
Amendment to the United States Constitution that are relevant to our analysis. The Establishment Clause prevents Congress from making any law “respecting an establishment of religion[.]”
{23} The United States Supreme Court has specifically addressed the question of whether a state statutory program providing textbooks to all students violates the Establishment Clause. In Board of Education of Central School District No. 1 v. Allen (Allen II), 392 U.S. 236 (1968), the Court upheld a New York program in which local public school authorities loaned textbooks to all students in grades seven through twelve against an Establishment Clause challenge. Id. at 238. In its analysis, the Court looked to whether there was “a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” Id. at 243. It determined that the New York textbook law was intended to advance educational opportunities by extending the benefits of a general textbook lending program to all children and that the financial benefit was to the parents, not the schools the children attended. Id. at 243-44. The Court declined to hold, based on the record in the case, that the
textbooks, which required approval by public school authorities and included only secular textbooks, were “instrumental in the teaching of religion” at sectarian schools. Id. at 247-48. The Court recognized that the textbooks in part fulfilled the state‘s interest in providing a secular education. Id. The Court noted that the problem presented to it of drawing a “line between state neutrality to religion and state support of religion” was not an easy one and was “one of degree.” Id. at 242 (internal quotation marks and citation omitted).
{24} The United States Supreme Court subsequently ruled upon textbook lending programs on two other occasions. In Meek v. Pittenger, 421 U.S. 349 (1975), overruled by Mitchell v. Helms, 530 U.S. 793 (2000), following Allen II, the Court upheld a Pennsylvania program that authorized the loan of textbooks that would be acceptable in the public schools to children attending nonpublic schools. Meek, 421 U.S. at 353-54, 362. As a guideline, it applied the three-part test it had developed in its recent Establishment Clause cases: (1) whether the statute has a secular purpose, (2) whether the statute has a primary effect that neither advances religion nor inhibits it, and (3) whether the statute and its administration avoids excessive government entanglement with religion. Id. at 358-59. The Court noted, as in Allen II, that the Pennsylvania program was part of a policy to lend textbooks to all schoolchildren, the financial benefit inured to the parents and children rather than the nonpublic schools,
and the textbooks to be loaned were acceptable for the public schools and used only for secular purposes. Meek, 421 U.S. at 360-62. It reiterated that the
{25} The United States Supreme Court again considered a statutory textbook program in Wolman v. Walter, 433 U.S. 229 (1977), overruled by Mitchell, 530 U.S. 793. The Court followed Allen II and Meek. Wolman, 433 U.S. at 238. It also determined that provisions of the Ohio statute that provided public funds for standardized tests and scoring services; speech and hearing diagnostic services; and therapeutic, guidance, and remedial services were not constitutionally inappropriate
but that the lending of instructional materials and equipment to students and the funding of field trip transportation and services was. Id. at 239-54.
{26} In Wolman, the Supreme Court specifically declined to overrule the textbook rulings of Allen II and Meek. Wolman, 433 U.S. at 238. In Mitchell, however, it did overrule Meek and Wolman with respect to its previous instructional material and equipment rulings. Mitchell, 530 U.S. at 808. In Mitchell, the Court held that a federal program under which state and local governmental agencies received funds to loan educational materials and equipment to public and private schools based on enrollment did not offend the Establishment Clause. Id. at 801. According to the Court, the program was neutral with respect to religion because it “makes a broad array of schools eligible for aid without regard to their religious affiliations or lack thereof” and because “[t]he aid follows the child.” Id. at 830.
{27} As demonstrated by Allen II, Meek, and Wolman, the United States Supreme Court‘s analysis under the Establishment Clause does not support Plaintiffs’ position in this case. The Court‘s analysis focuses upon the neutrality of a challenged law and does not invalidate a law that applies neutrally to students of public and private schools, even if there may be a degree of benefit that inures to the private school. But this case is based on state constitutional provisions, not on the Establishment Clause.
We thus turn to the cases cited by the parties and the state constitutional provisions at issue in those cases.
Cases Addressing Other State Constitutional Provisions
{28} Plaintiffs rely on five cases that they contend involve similar issues to
Neither the Legislature, nor any county, city and county, township, school district, or other municipal corporation, shall ever make an appropriation, or pay from any public fund whatever, or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help to support or sustain any school, college, university,
hospital, or other institution controlled by any religious creed, church, or sectarian denomination whatever; nor shall any grant or donation of personal property or real estate ever be made by the state, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever[.]
{29} The California court discussed at some length United States Supreme Court cases concerning the Establishment Clause. It independently decided that the textbook program could not survive state constitutional scrutiny. Id. at 964. Persuaded by Justice Brennan‘s dissent in Meek, which was critical of the characterization of the textbook program as a loan to students, it did not accept the “child benefit” theory that the program benefitted the students and not the schools or that the benefit to the schools was only incidental. Riles, 632 P.2d at 960-64.
{30} Gaffney v. State Department of Education, 220 N.W.2d 550 (Neb. 1974) addressed a broad constitutional provision with similar language to Article XVI, Section 5 of the California Constitution. Gaffney, 220 N.W.2d at 552; Riles, 632 P.2d at 964. The Nebraska Supreme Court relied on the broad language of its constitutional provision to hold that the textbook loan program furnished “aid” to private sectarian schools. Gaffney, 220 N.W.2d at 552-54. It stated that, even assuming neutrality, the loan program “is for the purpose of augmenting the public school secular education with religious training” and was “aiding the church” in advancing religious education. Id. at 557. It further stated that the fact that the loan of the textbooks was to the parents and students was not determinative because the
program “lends strength and support to the school and, although indirectly, lends strength and support to the sponsoring sectarian institution.” Id.
{31} In Dickman v. School District No. 62C, 366 P.2d 533 (Or. 1961) (en banc), the Supreme Court of Oregon considered a textbook loan program in the context of two constitutional provisions: one prohibited in part money to be drawn from the state treasury “for the benefit” of any religious or theological institution; and the other provided that various revenue sources “shall be exclusively applied to the support, and maintenance of common schools in each School district, and the purchase of suitable libraries, and apparatus therefor.” Id. at 535 nn.2-3, 537. It noted that the first provision expressed “in more specific terms” the policy of the First Amendment. Id. at 537. Like the California Supreme Court, the Oregon court rejected the child benefit principle. Id. at 539, 543-44. It stated that “the aid is extended to the pupil only as a member of the school” the pupil attends and, thereby, although the pupil may share in the benefit, “such aid is an asset to” the school. Id. at 543.
{32} Bloom v. School Committee of Springfield, 379 N.E.2d 578 (Mass. 1978), and Paster v. Tussey, 512 S.W.2d 97 (Mo. 1974), also involve particular constitutional provisions. The Massachusetts provision at issue in Bloom prohibited in relevant part the “grant, appropriation or use of public money . . . for the purpose of . . . maintaining or aiding any . . . school, or charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers. . . .” 379 N.E.2d at 581, 585 (internal quotation marks and citation omitted). As stated by the Paster court, the Missouri Constitution “goes even farther than those of some other states” and is more restrictive than the Establishment Clause. 512 S.W.2d at 101-02 (internal quotation marks and citation omitted).
{33} The district court determined that the out-of-state cases cited by Defendants provided more persuasive authority than those cited by Plaintiffs. Defendants cited Board of Education of Central School District No. 1 v. Allen (Allen I), 228 N.E.2d 791 (N.Y. 1967); Chance v. Mississippi State Textbook Rating & Purchasing Board, 200 So. 706 (Miss. 1941) (in banc); and Borden v. Louisiana State Board of Education, 123 So. 655 (La. 1929). The New York Court of Appeals in Allen I, in rejecting the state constitutional challenge, recognized the legislative
Interpretation of Article XII, Section 3 of the New Mexico Constitution
{34}
{35} An essential difference between the United States Supreme Court cases and the cases cited by Plaintiffs is the approach to the public benefit of textbook programs. The principle underlying such programs is the public obligation to educate all children regardless of where they attend school. See, e.g., Allen II, 392 U.S. at 243 (stating that the purpose of the New York textbook law was to further “the educational opportunities available to the young. . . . The law merely makes available to all children the benefits of a general program to lend school books free of charge.“). In Plaintiffs’ cases, the courts have held that the programs do not only benefit the children and their parents, but also the private, parochial schools. As stated in Riles, textbooks are “a basic educational tool.” 632 P.2d at 963 (internal quotation marks and citation omitted). As discussed in Gaffney, and quoted in Riles, because “one of the main purposes of the parent sending his child to a parochial school is to insure the early inculcation of religion[,]” even if textbooks are secular, the loan of textbooks to students “is for the purpose of augmenting the public school secular training with religious training.” Gaffney, 220 N.W.2d at 557; Riles, 632 P.2d at 964, n 15 (internal quotation marks and citation omitted); see
{36} We are not persuaded that the cases cited by Plaintiffs should be followed in this case. We believe that the legislative intent in promoting the education of all schoolchildren in New Mexico deserves greater weight than the cases cited by Plaintiffs afford. Despite Justice Brennan‘s dissent in Meek, relied upon in Riles, the United States Supreme Court has repeatedly recognized the general, public nature of such programs and has declined to hold that “the processes of secular and religious training are so intertwined that secular textbooks furnished to students by the public are in fact instrumental in the teaching of religion.” Allen II, 392 U.S. at 248; Meek, 421 U.S. at 360-62; Wolman, 433 U.S. at 257. Under the IML, the instructional material is strictly secular.
{37} As part of its analysis rejecting the “child benefit” principle, the California court in Riles stated that it could not harmonize the reasoning of Allen II, Meek, and Wolman with regard to the loan of other instructional material such as maps, globes, and charts. Riles, 632 P.2d at 960-61. Indeed, the United States Supreme Court has had difficulty reaching harmony in this regard. However, such a disharmony no longer exists in the United States Supreme Court jurisprudence since the Court stated in Mitchell that Meek and Wolman were “no longer good law” in this regard. Mitchell, 530 U.S. at 808.
{38} Moreover, not only is the United States Supreme Court now clear in its analysis that textbook and instructional material programs that benefit all children regardless of the school of their attendance do not conflict with the Establishment Clause, since Riles, it has also upheld the constitutionality of other governmental programs that benefit all students, including those who attend private and parochial schools. See Zelman v. Simmons-Harris, 536 U.S. 639, 645, 662 (2002) (concluding that a law in which the state of Ohio created a program that provided tuition assistance to parents of eligible children to attend a participating public or private school of the parent‘s choosing was “entirely neutral with respect to religion” and did not violate the Establishment Clause); Mitchell, 530 U.S. at 793 (upholding program lending educational materials and equipment to public and private schools based on enrollment); Agostini v. Felton, 521 U.S. 203, 209-10, 240 (1997) (holding that a federally-funded program in which public school teachers provided remedial education to disadvantaged children in parochial schools as well as public schools did not violate the Establishment Clause); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (holding that the Establishment Clause does not bar local school district from providing a publicly-employed interpreter for a deaf student in a parochial school).
{39} The United States Supreme Court has in addition repeatedly stated that the constitutional issue involved in these types of programs is one of degree. Allen II, 392 U.S. at 242; Meek, 421 U.S. at 359. We agree. In this regard, we do not interpret
{40} Nevertheless, even if we were to assume a similar arrangement, the focus of the IML is to provide instructional material for the benefit of students.
Article IX, Section 14 of the New Mexico Constitution
{41}
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, association or public or private corporation . . . .
Appellants, quoting from Village of Deming v. Hosdreg Co., contend that the IML violates this provision because “the lending of free textbooks and other instructional materials at public expense to private schools constitutes a ‘donation to or in aid of [a] person, association or public or private corporation.‘” 1956-NMSC-111, ¶ 36, 62 N.M. 18, 303 P.2d 920.
{42} In Village of Deming, our Supreme Court addressed
{43} Applying Village of Deming to this case, we see no constitutional infirmity in the IML. There is no “donation” to a private school because there is neither a “gift” nor an “allocation or appropriation of something of value, without consideration.” Id. ¶ 36.
{44} As to a gift, although private schools receive possession of the instructional material,
{45} Nor is there an allocation or appropriation of something of value, without consideration. As we have discussed, the IML authorizes the distribution of instructional material to private schools only as agents for their students.
{46} Our Supreme Court has also stated that
{47} The absence of any lending of credit also distinguishes Hutcheson v. Atherton, 1940-NMSC-001, 44 N.M. 144, 99 P.2d 462, relied upon by Plaintiffs. Indeed, as stated by Plaintiffs, our Supreme Court in Hutcheson affirmed the district court‘s finding that a county‘s issuing bonds to finance an auditorium for the purposes of a private corporation violated
{48} We note that Intervenors argue that
Article IV, Section 31 of the New Mexico Constitution
{49}
{50} Plaintiffs, however, have not demonstrated that funds used to support the IML are not within the control of the state. Under the IML, appropriations are made to the Department‘s instructional material fund, created by the state treasurer.
{51} Plaintiffs rely on Harrington v. Atteberry, 1915-NMSC-058, 21 N.M. 50, 153 P. 1041, to contend that the IML is in “direct conflict” with
Article II, Section 11 of the New Mexico Constitution
{52}
No person shall be required to attend any place of worship or support any religious sect or denomination; nor shall any preference be given by law to any religious denomination or mode of worship.
Plaintiffs argue that the IML violates
{53} This Court has stated that
CONCLUSION
{54} We affirm the district court‘s grant of summary judgment to Defendants.
{55} IT IS SO ORDERED.
JAMES J. WECHSLER, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
M. MONICA ZAMORA, Judge