For the last 45 years, a portion of New Mexico's public education funding has gone to private schools. But now, a Santa Fe district court judge aims to halt that practice, potentially freeing up hundreds of thousands of dollars—previously used to purchase textbooks for private-school students—for New Mexico's strapped public schools.

At a June 11 hearing, 1st Judicial District Court Judge Sarah Singleton granted two plaintiffs their request to declare parts of the decades-old Instructional Material Law unconstitutional. The law allows the state to provide funding to help schools pay for textbooks and other instructional materials. The money is allocated to schools based on enrollment, and each student whose school applies for the money gets the same amount. Some of that money goes to private schools, including parochial and for-profit institutions.

"Whatever amount of money is taken from the fund that's been set aside for education and given to these private schools is money that isn't given to the public schools," Singleton said at the hearing.

The plaintiffs in the lawsuit, Paul Weinbaum and Cathy Moses, asked the court to reject parts of the law that allow private schools to use public funds. The lawsuit names Hanna Skandera, secretary-designate of New Mexico's Public Education Department, as the lone defendant. Moses and Weinbaum argue that the law violates, among other provisions, the state constitution's anti-donation clause, which prohibits government entities from making donations to "any person, association or public or private corporation."

Singleton agreed, saying New Mexico's constitution prohibits the use of public funds to purchase instructional materials for "anything other than public schools." She specifically says she is bound by a 1951 case in which the state Supreme Court ruled that providing free textbooks and transportation to parochial schools violates the state constitution.

Moses, a former English professor (and the partner of Santa Fe Public Schools Board of Education Member Glenn Wikle), has had three children attend SFPS; one is entering sixth grade. She fought against the consolidation of local schools, an experience that taught her that public schools are in "desperate need for funds."

"Therefore, the limited funds should not be spent on private schools of any sort," she says. "I mean, it's a choice people have, to send their kids to private schools. But it's not a choice for people who can't afford that."

Public schools are itching for additional funding. After the recession hit, lawmakers slashed the instructional materials budget. In 2008, the fund for textbooks and other instructional materials was $38 million. This year, it's just $15 million, according to PED data.

Add to that rising enrollment and higher textbook costs, and cash-strapped school districts have been forced to use outdated textbooks—or let some students go without textbooks altogether.

That's why Stan Rounds, the superintendent for the Las Cruces Public School District, is hoping for any additional funding he can get.

"The diminishing [instructional materials budget] has created quite a bind for us," Rounds says. "I would hope that the balance that…had been provided to the privates would be divided among the remaining recipients."

Public school districts may see a slight increase in textbook funding if Singleton's decision goes through, but they won't experience a windfall. According to PED data, of the $15 million allocated for instructional materials in 2011-2012, approximately $909,000—just under 15 percent—went to private schools. The state also gave about 4 percent to charter schools and an even smaller amount to what it classifies as "state-supported schools," such as the New Mexico Military Institute and the New Mexico School for the Deaf. The remaining $13.4 million went to public schools.

St. Michael's High School, a private Catholic school in Santa Fe, received roughly $30,000 in 2011-12 (see table). St. Michael's President Marcia Sullivan says the school would need to raise tuition—currently around $8,000 per year, including fees—if it stops receiving money for instructional materials. Sullivan also notes that St. Michael's is prohibited from using public money to purchase religious materials.

"We've got a lot of working-class parents making the extra effort" to send their kids to St. Michael's, she says. "They pay taxes too, and they're being, I think, penalized."

Neither Rounds nor Sullivan knew about the ruling until SFR informed them of it. PED declined to comment about the case, and it's unclear what short- or long-term effects it might have on funding. Willie Brown, PED's lead counsel on the case, would not comment on whether PED plans to appeal the ruling.

This isn't the first time Weinbaum and Moses have endeavored to change this particular law. In November, with the help of local attorneys Chris Graeser and Frank Susman, they asked the New Mexico Supreme Court to strike down parts of the law, but the court denied their request. In 2003, Weinbaum also unsuccessfully sued Las Cruces and its school district in federal court for using crucifixes in their logos. He considers Singleton's decision a victory.

"Maybe [lawmakers] will learn something from this," Weinbaum says. "Quit using taxpayers' money for religious purposes."

At the end of the June 11 hearing, Susman asked Singleton if he could approach the bench. A transcript doesn't indicate what he communicated to her, although Graeser told SFR that Susman wasn't able to comment for this story because he had undergone surgery.

“Good luck. I’ll think of you,” Judge Singleton replied. “I was going to say, ‘Pray for you,’ but it wouldn’t be appropriate given the circumstances of the case.”

By the Numbers
2011-2012 allocations to Santa Fe schools, according to PED data

Santa Fe Public Schools: $529,468.88 

Private Schools

•Desert Academy $7,437.67
•Rio Grande School: $5,409.21
•Santa Fe Prep School: $13,100.44
•St. Michael’s High School: $30,004.22
•Santa Fe Indian School: $26,919.28 

Charter Schools

•Academy for Technology and the Classics: $14,959.85
•Turquoise Trail: $19,481.61
•Monte del Sol: $14,959.85
•Tierra Encantada: $7,606.70

Note: Not all Santa Fe private schools are listed in PED’s data.

Legal Standing

If you every wonder why there are so many legal dramas on TV, look to one legal term: standing. Standing means there must be conflict between a plaintiff and defendant—meaning not just any fool can sue the president. In this case, the Public Education Department argues that Paul Weinbaum and Cathy Moses, parents of children who attend New Mexico public schools, don’t have standing to bring suit because they haven’t shown that they’ve been injured by the law, a necessity for standing. To prove this, PED says that the plaintiffs haven’t shown that the law has raised their taxes or that their children have been denied free instructional materials because of it. The plaintiffs counter that, while it’s true no taxes have been raised for the law—the money that buys the textbooks comes from royalties paid out from the federal Mineral Lands Leasing Act—they’re injured because money that goes to private schools means less money for public schools. They argued that if parents of public schoolchildren can’t challenge this law, then who can? Judge Sarah Singleton agreed.