2018 New Mexico Statutes
Chapter 22 - Public Schools
Article 5 - Local School Boards
Section 22-5-4 - Local school boards; powers; duties.

A local school board shall have the following powers or duties:

A. subject to the rules of the department, develop educational policies for the school district;

B. employ a local superintendent for the school district and fix the superintendent's salary;

C. review and approve the annual school district budget;

D. acquire, lease and dispose of property;

E. have the capacity to sue and be sued;

F. acquire property by eminent domain pursuant to the procedures provided in the Eminent Domain Code [42A-1-1 through 42A-1-33 NMSA 1978];

G. issue general obligation bonds of the school district;

H. provide for the repair of and maintain all property belonging to the school district;

I. for good cause and upon order of the district court, subpoena witnesses and documents in connection with a hearing concerning any powers or duties of the local school board;

J. except for expenditures for salaries, contract for the expenditure of money according to the provisions of the Procurement Code [13-1-28 through 13-1-199 NMSA 1978];

K. adopt rules pertaining to the administration of all powers or duties of the local school board;

L. accept or reject any charitable gift, grant, devise or bequest. The particular gift, grant, devise or bequest accepted shall be considered an asset of the school district or the public school to which it is given;

M. offer and, upon compliance with the conditions of such offer, pay rewards for information leading to the arrest and conviction or other appropriate disciplinary disposition by the courts or juvenile authorities of offenders in case of theft, defacement or destruction of school district property. All such rewards shall be paid from school district funds in accordance with rules promulgated by the department; and

N. give prior approval for any educational program in a public school in the school district that is to be conducted, sponsored, carried on or caused to be carried on by a private organization or agency.

History: 1953 Comp., § 77-4-2, enacted by Laws 1967, ch. 16, § 28; 1973, ch. 3, § 1; 1979, ch. 335, § 3; 1981, ch. 116, § 1; 1981, ch. 125, § 48; 1990, ch. 52, § 2; 1992, ch. 77, § 2; 1993, ch. 226, § 12; 2003, ch. 153, § 21; 2004, ch. 27, § 20; 2005, ch. 315, § 3.

Cross references. — For requirement of reports as to membership in schools, see 22-8-13 NMSA 1978.

For reemployment or termination of certified school instructors, see 22-10A-22 NMSA 1978 et seq.

For request for operation under variable school calendar, see 22-22-4 NMSA 1978.

For preparation and review of bilingual instruction programs, see 22-23-5 NMSA 1978.

For lease of state lands, see 19-7-55 NMSA 1978.

The 2005 amendment, effective April 7, 2005, provides in Subsection C that the local school board shall review and approve the annual school district budget.

The 2004 amendment, effective May 19, 2004, changed "state board" to "department" in Subsections A and M and added Subsection N.

The 2003 amendment, effective April 4, 2003, rewrote Subsection A to the extent that a detailed comparison is impracticable; in Subsection B, inserted "local" following "employ a" near the beginning and deleted "of schools" following "superintendent" near the beginning; deleted former Subsections C, D, E, F, and G; inserted present Subsection C and redesignated the subsequent paragraphs accordingly; inserted "provide for the" at the beginning of present Subsection H; substituted "rules" for "regulations" near the beginning of present Subsection K; and in present Subsection M substituted "rules" for "regulations that shall be" following "in accordance with" near the end and substituted "state board" for "department of education" at the end.

The 1993 amendment, effective July 1, 1993, added the proviso at the end of the first sentence of Subsection D.

The 1992 amendment, effective May 20, 1992, inserted "or the purchase of instructional materials" in Subsection E; substituted "department of education" for "director" in the second sentence of Subsection Q; and made minor stylistic changes throughout the section.

The 1990 amendment, effective May 16, 1990, added present Subsection E, redesignated former Subsections E to P as present Subsections F to Q, substituted "Procurement Code" for "Public Purchasers Act" at the end of present Subsection N, and, in present Subsection Q, deleted "local" preceding "school district property" at the end of the first sentence and "of the public school finance division" at the end of the second sentence.

Violation of Open Meetings Act. — Charges of multiple intentional violations of the Open Meetings Act, which permitted policy decisions concerning the respective roles of the superintendent and the school board without public participation, were a form of misconduct for which recall was provided. Do a Ana Cnty. Clerk v. Martinez, 2005-NMSC-037, 138 N.M. 575, 124 P.3d 210.

Teaching positions. — A local school board may add or abolish teaching positions in performing its fiscal responsibilities. Aguilera v. Hatch Valley Pub. Schs. Bd. of Educ., 2005-NMCA-069, 137 N.M. 642, 114 P.3d 322, cert. granted, 2005-NMCERT-006, 137 N.M. 767, 115 P.3d 230.

Section makes local board's supervision and control of public school in district "subject to the regulations of state board." Morgan v. N.M. State Bd. of Educ., 1971-NMCA-102, 83 N.M. 106, 488 P.2d 1210, cert. denied, 83 N.M. 105, 488 P.2d 1209.

No Eleventh Amendment immunity. — School districts and their governing boards in New Mexico are not arms of the state entitled to Eleventh Amendment immunity. Duke v. Grady Mun. Schs., 127 F.3d 972 (10th Cir. 1997).

Legislative intent. — The New Mexico legislature intended school districts or boards to be political subdivisions or local public bodies, not arms of the state. Duke v. Grady Mun. Schs., 127 F.3d 972 (10th Cir. 1997).

Liability of state. — State of New Mexico is not legally liable for judgment against a school district. Duke v. Grady Mun. Schs., 127 F.3d 972 (10th Cir. 1997).

Authority of local board over personnel. — A local board is the only entity with power to terminate employees; the purpose of former Subsection D is to require input of a superintendent before a personnel decision is made, and not to render a board powerless to act except in accordance with the recommendation of its superintendent. Daddow v. Carlsbad Mun. Sch. Dist., 1995-NMSC-032, 120 N.M. 97, 898 P.2d 1235 (decided under prior law).

Procurement Code exemptions applicable to school boards. — The provision of Subsection N(now Subsection J) requires school boards to contract according to all but two sections of the entire Procurement Code; this means that all bidding requirements of the Code, including the exemptions in Section 13-1-98 NMSA 1978, apply to school district contracts. Morningstar Water Users Ass'n v. Farmington Mun. Sch. Dist. No. 5, 1995-NMSC-052, 120 N.M. 307, 901 P.2d 725.

Ultra vires acts by school boards. — Any attempt by a local school board to enter into a contract or formulate a policy that violates the specific statutory provisions governing school boards is ultra vires and void. Thus, any attempt by a school board to enter into a contract or promulgate a termination policy through manuals which give an employee rights in conflict with the School Personnel Act is ultra vires and void. Swinney v. Deming Bd. of Educ., 1994-NMSC-039, 117 N.M. 492, 873 P.2d 238.

The local school board, as the policy maker of the public employer, is the proper party to engage in collective bargaining negotiations and to review employee grievances. — Where the central consolidated school dstrict refused to review grievances appealed to the school board pursuant to a negotiated grievance procedure contained in a collective bargaining agreement (CBA) with the teachers' union, and where the school board asserted that changes made to the Public School Code in 2003 divested school boards of all authority to act on any personnel matters and vested exclusive authority to act on all personnel matters in the local school superintendent, the district court did not err in affirming the order of the public employee labor relations board that the school board is required to hear and decide appeals from decisions of the school superintendent under grievance procedures set forth in the CBA, because the school board, as the policy maker who negotiated and agreed to the CBA is the appropriate entity to determine whether its own policy, or specific provision in the CBA, has been violated, misinterpreted, or misapplied. Alarcon v. Albuquerque Pub. Schs. Bd. of Educ., 2018-NMCA-021, cert. denied.

School board's supervision and discharge of superintendent. — Inherent in the power given to the school board to employ a superintendent is the ability for the board to supervise and discharge a superintendent. Stanley v. Raton Bd. of Educ., 1994-NMSC-059, 117 N.M. 717, 876 P.2d 232.

Employment of administrators. — The school board effectively terminated the plaintiffs' employment as school administrators by declaring the jobs vacant, and therefore met the obligations under this section. The plaintiffs could reasonably infer from the board's actions that they were not reemployed for the next year. Naranjo v. Board of Educ., 1995-NMSC-015, 119 N.M. 401, 891 P.2d 542.

School districts and their governing boards in New Mexico are not arms of the state, and they are accordingly not shielded by the Eleventh Amendment from liability for a 42 U.S.C. § 1983 action in federal court. Duke v. Grady Mun. Schs., 127 F.3d 972 (10th Cir. 1997).

Liability of local board under federal civil rights law. — In an action brought by a school employee against a school district local school board under 42 U.S.C. § 1983, the board was a "person" for purposes of the suit, and the action under such law was not barred by any statutory governmental immunity. Daddow v. Carlsbad Mun. Sch. Dist., 1995-NMSC-032, 120 N.M. 97, 898 P.2d 1235.

No power to create police department. — A local school board does not have the authority to create and fund an independent police department without specific legislative authority. 2007 Op. Att'y Gen. No. 07-07.

Use of public funds to defend actions involving misconduct. — Public funding may be used to defend public school districts, boards and employees in legal actions involving misconduct if the charges arise from the discharge of an official duty in which the government has an interest; the public employee was acting in good faith when the alleged wrongful conduct occurred; the employing government entity has express or implied legal authority to pay the employee's legal expenses; the employee is exonerated of the charges; and the decision to pay the legal fees is made by an impartial official or official body. 2007 Op. Att'y Gen. No. 07-03.

Conditions under which private group may use facilities. — 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. 1963-64 Op. Att'y Gen. No. 63-106.

Include equal treatment of all 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. 1963-64 Op. Att'y Gen. No. 63-106.

And 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. 1963-64 Op. Att'y Gen. No. 63-106.

Payment for time spent away from district by district employee. — A local school district employee who serves on the state board of education may draw salary from the district and per diem and expenses from the state department of education; however, he may not be paid for time spent away from his duties with the district unless he takes authorized leave with pay. 1987 Op. Att'y Gen. No. 87-45.

Character of private use determines whether state approval required. — Where a local school board desires to enter into a lease of real property to any private party or religious group and proposes to give exclusive right of possession and occupancy to school lands or buildings, the state board of finance must give its approval pursuant to Section 13-6-2 NMSA 1978. Where, however, the use permitted is temporary or brief and limited to hours when the property is not needed for school purposes, the approval of the state board of finance is not necessary, and the local board of education may or may not authorize such usage according to its discretion. 1963-64 Op. Att'y Gen. No. 63-106.

School board attendance allocation proper. — 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.

School boards have authority to enact reasonable regulations relating to the suspension or expulsion of students. 1959-60 Op. Att'y Gen. No. 59-214.

Regulating married students. — A rule or regulation prohibiting married students from participating in band, glee club, dramatic events, school newspapers, school clubs, school sponsored trips and school athletics is arbitrary and unreasonable and therefore void. 1967 Op. Att'y Gen. No. 67-117.

Pregnant students. — A rule which would require the withdrawal of a student when it is known that she is pregnant and when the school officials do not believe that such attendance is proper clearly violates the compulsory attendance law; therefore if the girl is physically capable of attending school, the local school board may not prohibit her attendance by rule or regulation merely because she is pregnant. 1967 Op. Att'y Gen. No. 67-117.

School boards have authority to ban smoking. — Because local school boards have authority to supervise and control all public schools within their district, they can use that authority to ban smoking by both adults and minors on all public school campuses within their district. 1994 Op. Att'y Gen. No. 94-03.

School board president's authority. — A local school board president has authority to deny citizens the right to address the local school board during a meeting of the board, if he is authorized to do so by rules promulgated by the board and he does not exercise that authority arbitrarily or capriciously. 1990 Op. Att'y Gen. No. 90-26.

Health club memberships for employees. — A school district may spend public funds to provide its full time employees with membership in a private health club if the membership is provided in return for services rendered to the district. 1989 Op. Att'y Gen. No. 89-20.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 68 Am. Jur. 2d Schools § 15 et seq.

Releasing public school pupils from attendance for purpose of attending religious education classes, 2 A.L.R.2d 1371.

Trust for school children as charitable, or merely benevolent, 25 A.L.R.2d 1114.

Operation of garage for maintenance and repair of municipal vehicles as governmental function, 26 A.L.R.2d 944.

Rejection of public schoolteacher because of disloyalty, 27 A.L.R.2d 487.

Title to buildings when school lands revert for nonuse for school purposes, 28 A.L.R.2d 564.

Validity, as a charity, of trust to lend money to students, 33 A.L.R.2d 1183.

Hearing on charges before suspension or expulsion from educational institution, 58 A.L.R.2d 903.

Waiver of, or estoppel to assert, failure to give required notice of claim of injury to school district or authorities, 65 A.L.R.2d 1278.

Malicious prosecution, civil liability of school officials for, 66 A.L.R.2d 749.

Tax: rescission of vote authorizing school district expenditure or tax, 68 A.L.R.2d 1041.

Power of school district to employ counsel, 75 A.L.R.2d 1339.

Age: 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.

Use of public school premises for religious purposes during nonschool time, 79 A.L.R.2d 1148.

Attendance: determination of school attendance, enrollment, or pupil population for purpose of apportionment of funds, 80 A.L.R.2d 953.

What is "public place" within requirements as to posting of notices, 90 A.L.R.2d 1210.

Use of school property for other than public school or religious purposes, 94 A.L.R.2d 1274.

Inclusion or exclusion of first and last days in computing the time for performance of an act or event which must take place a certain number of days before a known future date, 98 A.L.R.2d 1331.

Regulations as to fraternities and similar associations connected with educational institution, 10 A.L.R.3d 389.

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

Validity of regulation by school authorities as to clothes or personal appearance of pupils, 14 A.L.R.3d 1201.

Local improvements: exemption of public school property from assessments for local improvements, 15 A.L.R.3d 847.

Participation of student in demonstration on or near campus as warranting expulsion or suspension from school or college, 32 A.L.R.3d 864.

Public schools: modern status of doctrine of sovereign immunity as applied to public schools and institutions of higher learning, 33 A.L.R.3d 703.

Tax exemption: garage or parking lot as within tax exemption extended to property of educational, charitable, or hospital organizations, 33 A.L.R.3d 938.

Tort liability of public schools and institutions of higher learning from accidents due to condition of buildings or equipment, 34 A.L.R.3d 1166.

Athletic events: tort liability of public schools and institutions of higher learning for accident occurring during school athletic events, 35 A.L.R.3d 725.

Vocational training: liability of public schools and institutions of higher learning for accidents associated with chemistry experiments, shopwork and manual or vocational training, 35 A.L.R.3d 758.

Fellow students: tort liability of public schools and institutions of higher learning for injuries caused by acts of fellow students, 36 A.L.R.3d 330.

Physical education: tort liability of public schools and institutions of higher learning for accidents occurring during physical education classes, 36 A.L.R.3d 361.

Nonschool purposes: tort liability of public schools and institutions of higher learning for accidents occurring during use of premises and equipment for other than school purposes, 37 A.L.R.3d 712.

Playground: tort liability of public schools and institutions of higher learning for injuries due to condition of grounds, walks, and playgrounds, 37 A.L.R.3d 738.

Tort liability of public schools and institutions of higher learning for injuries resulting from lack or insufficiency of supervision, 38 A.L.R.3d 830.

Fees: validity of exaction of fees from children attending elementary or secondary public schools, 41 A.L.R.3d 752.

Property taxes: validity of basing public school financing system on local property taxes, 41 A.L.R.3d 1220.

Loitering or trespass: validity and construction of statute or ordinance forbidding unauthorized persons to enter upon or remain in school buildings or premises, 50 A.L.R.3d 340.

Tax exemption: charitable or educational organization from sales or use taxes, 53 A.L.R.3d 748.

Discipline of pupil for conduct away from school grounds, 53 A.L.R.3d 1124.

Residence for purpose of admission to public school, 56 A.L.R.3d 641.

What constitutes "school," "educational use," or the like within zoning ordinance, 64 A.L.R.3d 1087.

Zoning regulations as applied to colleges, universities, or similar institutions for higher education, 64 A.L.R.3d 1138.

Zoning regulations as applied to private and parochial schools below the college level, 74 A.L.R.3d 14.

Zoning regulations as applied to public elementary and high schools, 74 A.L.R.3d 136.

Sex education: validity of sex education programs in public schools, 82 A.L.R.3d 579.

Student's right to compel school officials to issue degree diploma, or the like, 11 A.L.R.4th 1182.

Personal liability of public school teacher in negligence action for personal injury or death of student, 34 A.L.R.4th 228.

Personal liability of public school executive or administrative officer in negligence action for personal injury or death of student, 35 A.L.R.4th 272.

Personal liability in negligence action of public school employee, other than teacher or executive or administrative officer, for personal injury or death of student, 35 A.L.R.4th 328.

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

Liability of school authorities for hiring or retaining incompetent or otherwise unsuitable teacher, 60 A.L.R.4th 260.

Validity, construction, and effect of municipal residency requirements for teachers, principals, and other school employees, 75 A.L.R.4th 272.

Tort liability of public schools and institutions of higher learning for accidents associated with transportation of students, 23 A.L.R.5th 1.

Search conducted by school official or teacher as violation of fourth amendment or equivalent state constitutional provision, 31 A.L.R.5th 229.

Tort liability of public schools and institutions of higher learning for accidents occurring in physical education classes, 66 A.L.R.5th 1.

Tort liability of schools and institutions of higher learning for personal injury suffered during school field trip, 68 A.L.R.5th 519.

Tort liability of public schools and institutions of higher learning for accidents occurring during school athletic events, 68 A.L.R.5th 663.

Tort liability of public schools and institutions of higher learning for injury to student walking to or from school, 72 A.L.R.5th 469.

Lunches and nutrition: construction and application of National School Lunch Act (42 U.S.C.S. §§ 1751 et seq.) and Child Nutrition Act of 1966 (42 U.S.C.S. §§ 1771 et seq.), 14 A.L.R. Fed. 634.

Freedom of press: validity, under federal Constitution, of public school or state college regulation of student newspapers, magazines, or other publications - federal cases, 16 A.L.R. Fed. 182.

Attorneys' fees: construction and application of § 718 of Education Amendments Act of 1972 (20 U.S.C.S. § 1617) authorizing court to allow prevailing party, other than United States, reasonable attorneys' fee as part of costs in school desegregation case, 22 A.L.R. Fed. 688.

Tax exemption: construction and application of so-called "charitable and educational exemption" of Copyright Act (17 U.S.C.S. § 104), 23 A.L.R. Fed. 974.

78 C.J.S. Schools and School Districts § 100 et seq.