N.M. Const. art. XII, § 3
The schools, colleges, universities and other educational institutions provided for by this constitution shall forever remain under the exclusive control of the state, and no 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.
Cross references. — For provisions establishing freedom of religion, see N.M. Const., art. II, § 11, and art. XII, § 9.
For general prohibition of aid to charities, see N.M. Const., art. IV, § 31.
For prohibition of aid to private enterprise, see N.M. Const., art. IX, § 14.
Purpose of this section is to insure exclusive control by state over public educational system and to insure that none of state's public schools ever become sectarian or denominational. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176 (1975).
Private schools not "rural school rooms". — Private or denominational schools are not "rural school rooms under the jurisdiction of the county school superintendent" for purposes of determining salary of county school superintendent under Section 73-5-1, 1953 Comp. (repealed). Thomson v. Board of Cnty. Comm'rs, 1959-NMSC-072, 66 N.M. 159, 344 P.2d 171.
"Control" construed. — "Control" means control over curriculum, disciplinary control, financial control, administrative control and, in general, control over all affairs of the school. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176.
Leasing school lands from Navajos does not prevent state control. — Fact that some schools to be constructed from proceeds of bond issue would be located on reservation lands leased from Navajo tribe would not prevent state from exercising exclusive control over such schools. Prince v. Board of Educ., 1975-NMSC-068, 88 N.M. 548, 543 P.2d 1176.
Proper to regulate teachers who are members of religious orders. — Members of religious orders who are employed as public school teachers must refrain from teaching sectarian religion and doctrines and from disseminating religious literature during such time, and wearing of religious garb and insignia must be barred during time members of religious orders are on duty as public school teachers. Teachers must be under actual control and supervision of responsible school authorities. Zellers v. Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949.
Barring disobedient from teaching in public schools. — Barring certain members of religious order from again teaching after they had knowingly taught sectarian religion in public schools during regular school hours was not improper. Zellers v. Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949.
Constitutional provision construed. — N.M. Const. Art. XII, § 3 serves the dual purposes of ensuring that the state maintains control over the public education system and that the public schools do not become religious schools. Moses v. Ruszkowski, 2019-NMSC-003.
Textbook loan program. — The Instructional Material Law (IML), §§ 22-15-1 to -14 NMSA 1978, in which the New Mexico public education department purchases textbooks that are loaned free of charge to public and private school students enrolled in first through twelfth grade and in early childhood education programs, does not violate Article XII, Section 3 of the New Mexico constitution, because the IML provides a public benefit to students and a resulting benefit to the state; any benefit to private schools is purely incidental and does not constitute “support” within the meaning of Article XII, Section 3. Moses v. Ruszkowski, 2019-NMSC-003.
The appropriation of educational funds to private schools is unconstitutional. — N.M. Const., Art. XII, § 3 expressly prohibits the appropriation of public funds to sectarian, denominational or private schools. A public school under the control of the state can directly receive funds, while a private school not under the exclusive control of the state cannot receive either direct or indirect support. Moses v. Skandera, 2015-NMSC-036, 367 P.3d 838, rev’g 2015-NMCA-036, 346 P.3d 396, vacated sub nom. N.M. Ass’n of Non-public Sch. v. Moses, 137 S.Ct. 2325 (2017) (mem.).
Where petitioners filed a complaint for declaratory judgment against the secretary of the New Mexico public education department seeking a declaration that the state issuing instructional materials to students attending private schools is unconstitutional, the New Mexico supreme court held that the Instructional Material Law, §§ 22-15-1 through 22-15-14 NMSA 1978, in which the New Mexico public education department purchases and distributes instructional material to school districts, state institutions, and private schools as agents for the benefit of eligible students, violates N.M. Const., Art. XII, § 3, because the constitutional provision expressly restricts the use of public funds to other than sectarian schools and expressly prohibits the appropriation of educational funds to private schools. Moses v. Skandera, 2015-NMSC-036, 367 P.3d 838, rev’g 2015-NMCA-036, 346 P.3d 396, vacated sub nom. N.M. Ass’n of Non-public Sch. v. Moses, 137 S.Ct. 2325 (2017) (mem.).
Purpose of this section. — The purpose of this provision is to insure exclusive control by the state over the public educational system, and to insure that none of the state’s public schools ever become sectarian or denominational. Moses v. Skandera, 2015-NMSC-036, 367 P.3d 838, rev’g 2015-NMCA-036, 346 P.3d 396, vacated sub nom. N.M. Ass’n of Non-public Sch. v. Moses, 137 S.Ct. 2325 (2017) (mem.).
Furnishing of instructional material to students attending private schools is not an unconstitutional support of private schools. — The Instructional Material Law (IML), 22-15-1 through 22-15-14 NMSA 1978, in which the New Mexico public education department purchases and distributes instructional material to school districts, state institutions and private schools as agents for the benefit of eligible students, does not violate this section because the focus of the IML is not to support private schools, but to provide instructional material for the benefit of students, the program is secular in nature, and the state controls the use and disposition of the instructional material; although the private schools receive some benefit, this section will not be interpreted to prohibit indirect and incidental benefit when the legislative purpose of the IML does not focus on support of private schools. Moses v. Skandera, 2015-NMSC-036, 367 P.3d 838, rev’g 2015-NMCA-036, 346 P.3d 396, vacated sub nom. N.M. Ass’n of Non-public Sch. v. Moses, 137 S.Ct. 2325 (2017) (mem.).
Salary to public school teacher not aid to religion. — Since salaries of members of religious orders who serve as teachers are the same as those of other teachers, this is not aid to religion or to the church denounced by federal and state constitutions. Zellers v. Huff, 1951-NMSC-072, 55 N.M. 501, 236 P.2d 949.
Use of land grant funds to finance private or sectarian education programs. — The Enabling Act of June 20, 1910, 36 Stat. 557, ch. 310 and the constitution of New Mexico prohibit the state from using money, directly or indirectly, from the land grant permanent fund for private, sectarian or denominational schools. The distribution of land grant funds to a private, sectarian or denomination school would require amendments to the Enabling Act by congress and an amendment to the constitution of New Mexico proposed by the legislature and adopted by the state’s voters. 2012 Op. Att’y Gen. No. 12-03.
Section forbids disbursement of public money to nonpublic schools. — New Mexico Const., art. IV, § 31, art. IX, § 14 and this section would be violated if public money was disbursed to nonpublic schools in order to purchase secular education service. 1969 Op. Att'y Gen. No. 69-06.
Voucher system would aid children, not schools. — Under a voucher system for exceptional children, parents would apply for money already allocated to their children and would use that money to purchase educational services at a private school. The money, therefore, is used for children and not for schools. The "support," if any, of private schools is only an indirect consequence. The prohibition in this section is limited to direct support of private schools, and thus voucher system would not be in violation of that provision. 1976 Op. Att'y Gen. No. 76-06.
Vouchers for private school education. — Tuition assistance in the form of vouchers for private education may constitute the unconstitutional use of public money for the support of sectarian, denominational or private schools. 1999 Op. Att'y Gen. No. 99-01.
Public school trucks may not be used to transport pupils of private schools. 1921 Op. Att'y Gen. No. 21-3170.
Driver of school bus can legally refuse to transport school children attending Catholic school, for county board of education is prohibited from using public school funds for benefit of sectarian schools. 1931 Op. Att'y Gen. No. 31-36.
Statute allowing transportation of students compelled to attend school proper. — Section 73-7-36, 1953 Comp. (repealed), extending scope of school bus transportation by allowing transportation of all pupils attending school in compliance with compulsory school attendance laws under certain conditions does not violate constitution of New Mexico. 1951 Op. Att'y Gen. No. 51-5339.
Contracts for transportation of students to private schools. — While school districts may not provide transportation of students to private schools pursuant to this provision, a county may contract with a school district for such transportation pursuant to former 22-16-7 NMSA 1978 if the county is reimbursed for the cost of such transportation by the private schools or their students pursuant to an enforceable contract. 1989 Op. Att'y Gen. No. 89-02.
No religious instruction in public school buildings without payment. — In the absence of payment for such use, public school buildings may not be used for religious instruction. 1969 Op. Att'y Gen. No. 69-16.
Paying salary to teacher belonging to religious order not unconstitutional support. — Public money paid to members of a religious order teaching in the public schools, which would go to the religious order, is not support in violation of this section. 1979 Op. Att'y Gen. No. 79-07.
Indirect benefit may not invoke prohibition. — To the extent that proposed tuition grants for the purpose of defraying tuition costs at private colleges and universities are made to the students upon their application and not to private colleges, institutions and universities, the proposal did not authorize the direct support of private schools, and this distinction may be sufficient to avoid a violation of this section. 1979 Op. Att'y Gen. No. 79-07.
Noninterfering use of gymnasium proper. — School board may permit students from parochial schools to use gymnasiums or other school facilities if such use does not interfere with regular school activities, but they may not use public school property and funds for support of parochial schools. 1937 Op. Att'y Gen. No. 36-1479.
Conditions under which private group may use school. — A local board of education may permit a particular religious denomination or private group to use public school buildings or facilities after school hours where such use in the opinion of the school board will not interfere with normal school activities, but the board may not in any respect sanction or give endorsement to such religious denominational programs. 1963 Op. Att'y Gen. No. 63-106 (rendered under former law).
Include equal treatment of groups. — A local school board must, in exercising its discretion as to whether a particular religious denomination may use public school facilities after school hours, either make the use of school facilities available to all religious groups on an equal basis and without preference as to any particular group or not permit such use at all. 1963 Op. Att'y Gen. No. 63-106 (rendered under former law).
Reimbursement of school's actual expenses. — Since a school district may not in any manner lend its financial or other support to any private religious denominations, it is incumbent upon school authorities to obtain reimbursement for any actual expenses occasioned from a religious group's private use of public school facilities. 1963 Op. Att'y Gen. No. 63-106 (rendered under former law).
Contract for medical training in Colorado. — Contract entered into by university of New Mexico regents for medical training for limited number of students to be taught at university of Colorado would be valid and would not contravene constitution or laws of New Mexico if said contract would be so drawn as to withhold in New Mexico and the university such control as would not contravene this section. 1951 Op. Att'y Gen. No. 51-5334.
City ordinances inapplicable to university land. — Ordinances of city of Albuquerque dealing with crimes do not apply to land under control of board of regents of university of New Mexico, except for traffic offenses as provided in 35-14-2 NMSA 1978. 1969 Op. Att'y Gen. No. 69-48.
State may not bar prayers at university functions. — State educational institution may neither order nor ban prayers at university functions. To do either act would violate constitutional duty of strict neutrality in church-state relations. 1970 Op. Att'y Gen. No. 70-27.
Law reviews. — For note, "Indirect Funding of Sectarian Schools: A Discussion of the Constitutionality of State School Voucher Programs Under Federal and New Mexico Law After Zelman v. Simmons-Harris," see 34 N.M. L. Rev.194 (2004).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 68 Am. Jur. 2d Schools §§ 96, 97, 349, 365, 366.
Religious meeting in schoolhouse, 5 A.L.R. 886, 141 A.L.R. 1153, 75 A.L.R.2d 742.
Schoolhouse as a "public building," 19 A.L.R. 545.
Pledge or mortgage of property or income therefrom, power as to, 71 A.L.R. 828.
Hiring or leasing schoolhouse to private persons for occasional use, 86 A.L.R. 1175.
Lease of school property, power of school or local authorities as to grant of, 111 A.L.R. 1051.
Sectarianism in schools, 141 A.L.R. 1144.
Inclusion of period of service in sectarian school in determining public schoolteachers' seniority, salary or retirement benefits, as violation of constitutional separation of church and state, 2 A.L.R.2d 1033.
Wearing of religious garb by public school teachers, 60 A.L.R.2d 300.
Use of public school premises for religious purposes during nonschool time, 79 A.L.R.2d 1148.
Public payment of tuition, scholarship or the like, to sectarian school, 81 A.L.R.2d 1309.
Furnishing free textbooks to sectarian school or student therein, 93 A.L.R.2d 986.
Use of school property for other than school or religious purposes, 94 A.L.R.2d 1274.
Lease or sublease of school property, power of municipal corporations as to, 47 A.L.R.3d 19.
Validity of local or state denial of public school courses or activities to private or parochial school students, 43 A.L.R.4th 776.
Constitutionality of regulation or policy governing prayer, meditation, or "moment of silence" in public schools, 110 A.L.R. Fed. 211.
Bible distribution or use in public schools - modern cases, 111 A.L.R. Fed. 121.
78 C.J.S. Schools and School Districts §§ 11, 809 et seq.