N.M. Const. art. XII, § 6
A. There is hereby created a “public education department” and a “public education commission” that shall have such powers and duties as provided by law. The department shall be a cabinet department headed by a secretary of public education who is a qualified, experienced educator who shall be appointed by the governor and confirmed by the senate.
B. Ten members of the public education commission shall be elected for staggered terms of four years as provided by law. Commission members shall be residents of the public education commission district from which they are elected. Change of residence of a commission member to a place outside the district from which he was elected shall automatically terminate the term of that member.
C. The governor shall fill vacancies on the commission by appointment of a resident from the district in which the vacancy occurs until the next regular election for membership on the commission.
D. The secretary of public education shall have administrative and regulatory powers and duties, including all functions relating to the distribution of school funds and financial accounting for the public schools to be performed as provided by law.
E. The elected members of the 2003 state board of education shall constitute the public education commission, if this amendment is approved, until their terms expire and the districts from which the state board of education were elected shall constitute the state public education commission districts until changed by law. (As amended November 4, 1958, effective January 1, 1959, November 4, 1986, and September 23, 2003.)
The 2003 amendment, which was proposed by S.J.R. Nos. 2, 5, 12, and 21 (Laws 2003) and adopted at the special election held September 23, 2003, by a vote of 101,542 for and 83,155 against, rewrote Subsection A, which had provided for the creation of a state department of public education and a state board of education and the appointment of a superintendent of public instruction by the board, substituted references to the public education commission for references to the state board of education throughout and deleted “who shall be state officers” preceding “shall be elected” in the first sentence of Subsection B, deleted former Subsection C, which had provided for the nomination by the senate and appointment by the governor of five members of the state board of education for staggered four-year terms, redesignated former Subsection D as present Subsection C and substituted “commission” for “board” twice in that subsection, deleted former Subsection E, which had provided for the transfer to the state department of public education of functions relating to distribution of funds and financial accounting for the public schools, and added present Subsections D and E.
The 1986 amendment, which was proposed by H.J.R. No. 4 (Laws 1986) and adopted at the general election held on November 4, 1986, by a vote of 142,909 for and 126,928 against, repealed existing Section 6 relating to the state department of public education and the state board of education and adopted a new Section 6.
The 1958 amendment, which was proposed by S.J.R. No. 3 (Laws 1957) and adopted at the general election held on November 4, 1958, with a vote of 48,884 for and 41,795 against, completely rewrote this section. Prior to amendment the section read: "A state board of education is hereby created, to consist of seven members. It shall have the control, management and direction of all public schools, under such regulations as may be provided by law. The governor and the state superintendent of public instruction shall be ex officio members of said board and the remaining five members shall be appointed by the governor, by and with the consent of the senate; and shall include the head of some state educational institution, a county superintendent of schools, and one other person actually connected with educational work. The legislature may provide for district or other school officers, subordinate to said board."
Compiler's notes. — An amendment to this section proposed by S.J.R. No. 20 (Laws 1975), which would have repealed this section and adopted a new Section 6 providing for a state board of education of nine members to be appointed by the governor with the consent of the senate, the members to be appointed so as to give geographic representation to all areas of the state, prescribing grounds and methods of removing members and granting the board specified powers and duties, to be exercised as provided by law, including the requirement that budgets and expenditures of funds by public schools be controlled by the board, was submitted to the people at the general election held on November 2, 1976. It was defeated by a vote of 94,258 for and 157,986 against.
For delayed repeals contingent on adoption of the September 23, 2003 amendment to Article 12, Section 6 of the constitution of New Mexico, see Articles 1, 2, 13, 13A and 15 of Chapter 22 NMSA 1978.
Cross references. — For the public education department and commission, see the Public Education Department Act, 9-24-1 NMSA 1978 et seq.
Comparable provisions. — Idaho Const., art. IX, § 2.
Montana Const., art. X, § 9.
Utah Const., art. X, § 3.
Wyoming Const., art. VII, § 14.
Authority of secretary of public education to revoke teachers’ licenses. — Article XII, Section 6 of the New Mexico Constitution, the Uniform Licensing Act (61-1-1 NMSA 1978 et seq.), the Public Education Department Act (Chapter 9, Article 24 NMSA 1978), the Public School Code (Chapter 22 NMSA 1978), and the School Personnel Act (Chapter 22, Article 10A NMSA 1978), do not preclude the secretary of public education from having exclusive authority to make the final decision to revoke a teacher’s license. Skowronski v. New Mexico Pub. Educ. Dep't, 2013-NMCA-034, 298 P.3d 469, cert. granted, 2013-NMCERT-003.
Section not self-executing. — This section, requiring state board of education to determine public school policy and to have control, management and direction of all public schools, pursuant to authority and powers provided by law, is not self-executing. Amador v. State Bd. of Educ., 1969-NMSC-076, 80 N.M. 336, 455 P.2d 840.
Appellate review. — It is not province of appellate court to retry case brought before it on appeal from state board. Wickersham v. State Bd. of Educ., 1970-NMCA-012, 81 N.M. 188, 464 P.2d 918.
Courts should not inquire into policy or justness of legislation. — Procedure for deciding whether to reemploy tenured teacher is provided by statute (former 22-10-15, 22-10-20 and 22-10-21 NMSA 1978), and it is not the appellate court's function to inquire into policy or justness of acts of legislature. Wickersham v. State Bd. of Educ., 1970-NMCA-012, 81 N.M. 188, 464 P.2d 918.
Deciding whether or not an administrator is fit to perform his duties is a question of policy, and the appellate court will not alter the state board's decision unless the court is convinced it is unreasonable, not supported by substantial evidence or not in accordance with law. Board of Educ. v. Jennings, 1982-NMCA-135, 98 N.M. 602, 651 P.2d 1037.
Courts may evaluate board's action by standard of reasonableness. — Courts have jurisdiction of purely legal questions which may arise in connection with teacher tenure statutes (22-10A-24 NMSA 1978 and former 22-10-15 NMSA 1978), and other educational acts, such as question here presented as to whether or not appellee had tenure; and action of state board of education would be subject to review on ground that it was wholly arbitrary, unlawful, unreasonable or capricious. McCormick v. Board of Educ., 1954-NMSC-094, 58 N.M. 648, 274 P.2d 299, superseded by statute, Sanchez v. Board of Educ. of Town of Belen, 1961-NMSC-081, 68 N.M. 440, 362 P.2d 979.
Appellate court review is limited to determination of whether constitutional body acted arbitrarily, unreasonably, unlawfully or capriciously. Wickersham v. State Bd. of Educ., 1970-NMCA-012, 81 N.M. 188, 464 P.2d 918.
Board powers. — Board has control, management and direction of public schools, but only as provided by law. Fort Sumner Mun. Sch. Bd. v. Parsons, 1971-NMCA-066, 82 N.M. 610, 485 P.2d 366, cert. denied, 82 N.M. 601, 485 P.2d 357.
Board has judicial powers. — It was within power of framers of constitution to confer upon state board of education such limited judicial powers as they deemed proper. McCormick v. Board of Educ., 1954-NMSC-094, 58 N.M. 648, 274 P.2d 299.
Such judicial powers as have been conferred upon state board by legislature pursuant to 55-101, 1941 Comp. (repealed), fall clearly within constitutional authority conferred upon state board for control, management and direction of public schools. McCormick v. Board of Educ., 1954-NMSC-094, 58 N.M. 648, 274 P.2d 299, superseded by statute, Sanchez v. Board of Educ. of Town of Belen, 1961-NMSC-081, 68 N.M. 440, 362 P.2d 979.
Board decisions are conclusive. — Within limited area prescribed by this section, decisions of board are final and conclusive as between the parties and are not subject to review. McCormick v. Board of Educ., 1954-NMSC-094, 58 N.M. 648, 274 P.2d 299, superseded by statute, Sanchez v. Board of Educ. of Town of Belen, 1961-NMSC-081, 68 N.M. 440, 362 P.2d 979.
Power to hire and fire in municipal boards. — Power to employ and discharge teachers and other school employees was reposed in municipal boards of education. Bourne v. Board of Educ., 1942-NMSC-039, 46 N.M. 310, 128 P.2d 733.
State board only has jurisdiction over teacher where teacher appeals to board from adverse ruling by local board of education. Amador v. State Bd. of Educ., 1969-NMSC-076, 80 N.M. 336, 455 P.2d 840.
Affair may be found insufficient cause for firing. — It is within the province of the state board to decide that a private affair between consenting adults, an assistant principal and a school secretary is not "good and just cause" to fire an employee. Board of Educ. v. Jennings, 1982-NMCA-135, 98 N.M. 602, 651 P.2d 1037.
Board without authority to manage private schools. — Legislature has constitutional authority to invest state board with power to approve courses of instruction in private schools, but 22-12-2 NMSA 1978 does not extend to board authority to supervise or exercise control or management over private schools. Santa Fe Cmty. Sch. v. State Bd. of Educ., 1974-NMSC-005, 85 N.M. 783, 518 P.2d 272.
Board lacks exclusive power to remove district board members. — State board did not have exclusive power to remove member of district board of education. State ex rel. Hannah v. Armijo, 1933-NMSC-063, 37 N.M. 423, 24 P.2d 274.
Board action not within purpose of its authority. — Suspension of teacher for incompatibility with membership on the state board of education does not fall within purpose of insuring high quality of public instruction. Amador v. State Bd. of Educ., 1969-NMSC-076, 80 N.M. 336, 455 P.2d 840.
Members of state board of education are state officers and not local officers. State ex rel. Apodaca v. State Bd. of Educ., 1971-NMSC-058, 82 N.M. 558, 484 P.2d 1268.
No right to elect board members from district where child attends school. — Although nothing in constitution or statutes prohibits school district from crossing either county or judicial district boundaries, and there is no requirement that children attend public schools within judicial district where they reside, yet there is nothing in N.M. Const., art. VII, §§ 1 and 3, which suggests that there is conferred on a qualified elector the right to cast his vote for a candidate for state board of education from judicial district in which elector's child attends public school. Rather, his right is to vote for the candidate of his choice, to be elected from the judicial district in which he has voting residence. State ex rel. Apodaca v. State Bd. of Educ., 1971-NMSC-058, 82 N.M. 558, 484 P.2d 1268.
State board member appealing from local board action. — If teacher who is also member of state board should appeal from action of local board, the teacher would simply refrain from acting as member of the board in his case, just as would a member of any other trade or profession who appealed to board of which he was member. Amador v. State Bd. of Educ., 1969-NMSC-076, 80 N.M. 336, 455 P.2d 840.
Board member's right to vote. — Ex-officio officers and members of state boards have right to vote unless that right is specifically denied them by constitution or statute. 1951 Op. Att'y Gen. No. 51-5408.
Distribution of bond proceeds. — Where the 2010 Capital Projects General Obligation Bond Act, Laws 2010, ch. 3, § 10 (2nd Spec. Sess.) appropriated two million dollars ($2,000,000) to the public education department to purchase school books and instructional materials statewide and the act did not include specific restrictions on the bond proceeds other than a directive to "purchase school books and instructional materials statewide", the secretary of public education did not violate the act or any other applicable state law or abuse the secretary’s discretion by distributing the bonds proceeds based on student enrollment to eighty-eight "award" schools across the state, with all but three recipients designated as either "A" or "top growth" schools. 2014 Op. Att’y Gen. 14-03.
Implementation of Paragraph E. — The department of education may implement the provisions contained in Subsection E notwithstanding the lack of legislation transferring the powers now vested in the office of education to the department of education. 1987 Op. Att'y Gen. No. 87-36.
Proper meeting place. — Constitution (art. XXI, § 6) necessitates that state board of education maintain its permanent office, books, records and files in Santa Fe at the state capital, and the board must in most instances hold its regular meetings at the state capitol. Nonetheless, pursuant to its constitutional and statutory authority to supervise the public schools, the board may from time to time hold meetings in various parts of the state to study, consider and decide matters pertinent to schools in the area where the meeting is held. 1964 Op. Att'y Gen. No. 64-21 (opinion rendered under Sections 73-1-1 and 73-1-7, 1953 Comp., now repealed).
Legislature determines scope of board's authority. — The authority granted the state board for "control, management and direction" of all public schools must be specifically defined by the legislature. It necessarily follows that legislature may also divest board of duties previously defined since the power and authority of board may be exercised only as "provided by law". Thus legislature may provide for repeal of 22-2-2 NMSA 1978, delegating duties of certification to the board. 1977 Op. Att'y Gen. No. 77-06.
Duty of board to establish routes from rural districts to high schools. — If necessity exists for establishment of routes from rural districts to high schools in municipal or independent school district, which would serve only rural district, county board of education, with approval of state board, would have right to establish such routes. Efficiency and convenience may require that such routes be established to serve both local districts and municipal or independent school district, and in such case boards of county and municipal or independent district to be served have right to establish them with approval of state board. But if boards could not agree, state board, under its authority and responsibility created by constitution, must establish routes when satisfactory ones are not proposed by August 15 of each year. 1939 Op. Att'y Gen. No. 39-3288.
Duty to approve proper high school budget estimates. — It is mandatory on state board of education and superintendent of public instruction to approve proper budget estimates for high schools. 1932 Op. Att'y Gen. No. 32-452 (decided prior to 1986 amendment, adding Subsection E).
Board can ban smoking. — The state board of education can choose to ban smoking for both adults and minors in public school buildings and campuses since the New Mexico constitution grants the board broad authority to determine public school policy. 1994 Op. Att'y Gen. No. 94-03.
Teacher's salary cannot be based upon residence within district. — No school board may lawfully increase or decrease a teacher's salary solely upon basis of residence or nonresidence within school district. 1964 Op. Att'y Gen. No. 64-85.
Eligibility of school personnel. — An assistant superintendent employed by the Santa Fe school district may also serve as an elected member of the state board of education so long as the duties of membership on the state board do not physically interfere with the duties of the assistant superintendent during the ordinary working hours of that position and the two positions are not otherwise incompatible. 1992 Op. Att'y Gen. No. 92-04.
Law reviews. — For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1967).
For article, "An Administrative Procedure Act for New Mexico," see 8 Nat. Resources J. 114 (1968).
For student symposium, "Constitutional Revision - The Executive Branch - Long or Short Ballot?," see 9 Nat. Resources J. 430 (1969).
For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M. L. Rev. 1 (1981).
For annual survey of New Mexico law relating to administrative law, see 12 N.M. L. Rev. 1 (1982).
For 1984-88 survey of New Mexico administrative law, 19 N.M. L. Rev. 575 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 68 Am. Jur. 2d Schools §§ 52 to 59.
Extent of power of school district to provide for the comfort and convenience of teachers and pupils, 7 A.L.R. 791, 52 A.L.R. 249.
Dismissal or suspension of pupil, personal liability of school authorities for, 42 A.L.R. 763.
Power of school board to make appointment of, or contract of employment with, teacher or superintendent of school for period beyond its own term, 70 A.L.R. 802, 149 A.L.R. 343.
Invalid public money obligation, personal liability of public officers to holders of, 87 A.L.R. 273.
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.
Tort liability of public schools and institutions of higher learning, 86 A.L.R.2d 489, 33 A.L.R.3d 703, 34 A.L.R.3d 1166, 34 A.L.R.3d 1210, 35 A.L.R.3d 725, 35 A.L.R.3d 758, 36 A.L.R.3d 361, 37 A.L.R.3d 712, 37 A.L.R.3d 738, 38 A.L.R.3d 830, 23 A.L.R.5th 1.
Student's right to compel school officials to issue degree diploma, or the like, 11 A.L.R.4th 1182.
Applicability and application of § 2 of Voting Rights Act of 1965 (42 USCS § 1973) to members of school board, 105 A.L.R. Fed. 254.
78 C.J.S. Schools and School Districts §§ 7, 81 et seq.