New Mexico Supreme Court Files Amended Opinion Again Striking Down Textbook Loan Program

Last week, the New Mexico Supreme Court denied a motion for a rehearing in its recent Blaine Amendment decision (see prior posting) invalidating the state statute that provides for the loan of secular textbooks to private and parochial school students, but substituted a new opinion for the one handed down last month. The primary change in its new opinion in Moses v. Skandera, (NM Sup. Ct., Dec. 23, 2015), is the addition of paragraphs 28 and 29 rejecting the argument that since funding for the textbook program comes from payments to the state under the federal Mineral Lands Leasing Act, this preempts state constitutional limits.  The court said in part:

The MLLA has neither expressly nor impliedly preempted the application of Article XII, Section 3 because restricting funds appropriated for educational purposes to public schools is not incompatible with the purposes announced in the MLLA. Thus, Intervenors’ argument that funds from the MLLA that are used for the Instructional Material Fund are federal funds which are “not subject to state constitutional limitations” is without merit.