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.

ANNOTATIONS

Cross references. — For statute defining persons entitled to free public school education, see 22-1-4 NMSA 1978.

Comparable provisions. — Idaho Const., art. IX, § 1.

Montana Const., art. X, § 1.

Utah Const., art. X, § 1.

Wyoming Const., art. VII, § 1.

No contractual right to education. — The right and privilege to a free public education does not give rise to a contractual relationship for which an individual may sue for breach of contract. Rubio ex rel. Rubio v. Carlsbad Mun. Sch. Dist., 1987-NMCA-127, 106 N.M. 446, 744 P.2d 919.

Only courses "sufficient for the education" should be "free" in the sense of this provision. Courses required of every student shall be without charge to the student, but reasonable fees may be charged for "elective" courses. New Mexico board of education shall define what are "required" or "elective" courses. Norton v. Board of Educ., 1976-NMSC-045, 89 N.M. 470, 553 P.2d 1277.

Magnitude of school district constituting effective denial of free school. — If school districts are made so large that children are unable to make trip to school and back home each day, then they would be denied a free school just as effectively as if no school existed. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176; Strawn v. Russell, 1950-NMSC-028, 54 N.M. 221, 219 P.2d 292.

State responsibility for education of Indians. — Indicative of congressional policy encouraging New Mexico to provide public education to all of its citizens, including Indians, is that part of state's enabling act which orders that provision be made for establishment and maintenance of system of public schools open to all children of the state and free from sectarian control, which order is picked up in this section and N.M. Const., art. XXI, § 1. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176. See June 20, 1910, 36 Stat. 557, ch. 310, §§ 6 to 9.

Federal government responsible too. — The federal government, in compliance with its treaty obligations to the Navajo tribe, also has a duty to provide for education and other services needed by Indians. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176.

Education for the handicapped. — The state is obligated by both federal and New Mexico law to provide all its pre-college age children with appropriate educations. Under federal law relating to state programs receiving federal financial assistance, the state is forbidden from discriminating against the handicapped in meeting this obligation. New Mexico Ass'n for Retarded Citizens v. New Mexico, 678 F.2d 847 (10th Cir. 1982), rev’g 495 F. Supp. 391 (D.N.M. 1980).

Section applicable only to residents. — This section has been interpreted as applicable only to those children who are residents of New Mexico. 1978 Op. Att'y Gen. No. 78-14.

Activity fees may only be charged by express legislative authority, even if not prohibited by constitution. There is no authority in the statutes, and the charging of these fees, if required as a condition to attendance at public school, is prohibited. 1955 Op. Att'y Gen. No. 55-6272.

When school board may allocate attendance. — So long as the statutory and constitutional minimum educational standards are satisfied, the local school board may allocate attendance within the district. 1979 Op. Att'y Gen. No. 79-36.

Proper for district attorney to sue for admittance of black children. — Exclusion of colored children from public school because of race is of such matter of public interest that district attorney could, as a matter of public duty and on behalf of the public, institute proceedings in court in name of parent, to compel school board to receive the children. 1915 Op. Att'y Gen. No. 15-1658.

Marriage not proper ground for exclusion. — Students of school age may not be excluded from public schools by reason of being married. 1957 Op. Att'y Gen. No. 57-258.

Removal for noncompliance with immunization statutes no constitutional deprivation. — "Disenrollment" of a student for noncompliance with immunization statutes (24-5-1 to 24-5-6 NMSA 1978) would not constitute deprivation of constitutional right to free public school education. 1975 Op. Att'y Gen. No. 75-70.

"Public school" for purposes of federal law. — Any school giving instruction up to and including the twelfth grade, supported in whole or in part by public funds of the state and managed by an elective or appointive body authorized by statutes of the state, is a public school for purposes of federal National Defense Education Act of 1958 (20 U.S.C. § 401 et seq.). 1959 Op. Att'y Gen. No. 59-150.

Vouchers for private school education. — This section does not preclude the state from providing tuition assistance in the form of vouchers for private education, as long as it continues to maintain a uniform system of free public schools; however, a constitutional challenge could be supported if the voucher program diverted state funds from public schools so that it compromised the state's ability to establish and maintain a sufficient public school system. 1999 Op. Att'y Gen. No. 99-01.

Summer and after-school remediation programs. — Section 22-2-8.6C NMSA 1978 (now 22-2C-8.6 NMSA 1978), which requires nonindigent parents of children in grades nine through 12 to pay the cost of optional summer and after-school remediation programs, does not offend the "free school guaranty" of this section, as it is construed by the New Mexico supreme court. 1990 Op. Att'y Gen. No. 90-06.

Creation of statewide magnet school. — Article XII, Section 1 of the New Mexico constitution does not preclude the legislature from establishing a statewide publicly funded magnet school, provided the legislature continues to maintain a uniform system of free public schools in the state. 2006 Op. Att'y Gen. No. 06-03.

Law reviews. — For note, "Serrano v. Priest and Its Impact on New Mexico," see 2 N.M. L. Rev. 266 (1972).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 68 Am. Jur. 2d Schools §§ 5 to 7.

Constitutionality and construction of statutes in relation to admission of nonresident pupils to school privileges, 72 A.L.R. 499, 113 A.L.R. 177.

What is common or public school within contemplation of constitutional or statutory provision, 113 A.L.R. 697.

Power of public school authorities to set minimum or maximum age requirements for pupils in absence of specific statutory authority, 78 A.L.R.2d 1021.

Determination of residence or nonresidence for purpose of fixing tuition fees or the like in public school or college, 83 A.L.R.2d 497, 56 A.L.R.3d 641.

Marriage or pregnancy of public school student as ground for expulsion or exclusion or restriction of activities, 11 A.L.R.3d 996.

AIDS infection as affecting right to attend public school, 60 A.L.R.4th 15.

78 C.J.S. Schools and School Districts § 4 et seq.; 78A C.J.S. Schools and School Districts §§ 697, 698.