2020 New Mexico Statutes
Chapter 22 - Public Schools
Article 15 - Instructional Material
Section 22-15-7 - Students eligible; distribution.

A. Any qualified student or person eligible to become a qualified student attending a public school, a state institution or a private school approved by the department in any grade from first through the twelfth grade of instruction is entitled to the free use of instructional material. Any student enrolled in an early childhood education program as defined by Section 22-13-3 NMSA 1978 or person eligible to become an early childhood education student as defined by that section attending a private early childhood education program approved by the department is entitled to the free use of instructional material.

B. Instructional material shall be distributed to school districts, state institutions and private schools as agents for the benefit of students entitled to the free use of the instructional material.

C. Any school district, state institution or private school as agent receiving instructional material pursuant to the Instructional Material Law [22-15-1 to 22-15-14 NMSA 1978] is responsible for distribution of the instructional material for use by eligible students and for the safekeeping of the instructional material.

History: 1953 Comp., § 77-13-7, enacted by Laws 1967, ch. 16, § 211; 1975, ch. 270, § 7; 1977, ch. 99, § 1; 1993, ch. 226, § 39; 1997, ch. 100, § 3; 2003, ch. 394, § 5; 2009, ch. 221, § 5.

Cross references. — For transfer of usable materials, see 22-15-10 NMSA 1978.

For the transfer of powers and duties of the former state board of education, see 9-24-15 NMSA 1978.

The 2009 amendment, effective July 1, 2010, in Subsection A, deleted the last sentence which provided that any student in a basic education program approved by the commission on higher education was entitled to the free use of instructional material from the instructional material bureau; in Subsection B, after "private schools", deleted "and adult basic education centers"; and in Subsection C, after "private school as agent", deleted "and adult basic education centers".

The 2003 amendment, effective April 8, 2003, in Subsection A, substituted "commission on higher education" for "state board" following "approved by the" and added "from the instructional material bureau of the department of education" at the end.

The 1997 amendment, effective July 1, 1998, in Subsection C, made a stylistic change and substituted "by" for "of".

The 1993 amendment, effective July 1, 1993, in Subsection A, substituted "22-13-3 NMSA 1978" for "77-11-2 NMSA 1953" and made a minor stylistic change in the second sentence.

Constitutionality of 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 IV, Section 31, Article IX, Section 14, or Article XII, Section 3 of the New Mexico constitution. The textbook loan program, which provides a generally available public benefit to students, does not result in the use of public funds in support of private schools as prohibited by Article XII, Section 3, and is consistent with Article IV, Section 31, which addresses appropriations for educational purposes, and Article IX, Section 14, which limits any donation to or in aid of any person, association or public or private corporation. Moses v. Ruszkowski, 2019-NMSC-003.

Constitutionality. — N.M. Const., Art. XII, § 3 expressly prohibits the appropriation of public funds to sectarian, denominational or private schools. 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.).

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.).

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 N.M. Const., art. XII, § 3, 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, N.M. Const., art. XII, § 3 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-NMCA-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.).

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 N.M. Const., art. IX, § 14, because under the IML, there is no donation to a private school because there is neither a gift nor an allocation or appropriation of something of value without consideration; although private schools receive possession of the instructional material, as agents for the students, they never have an ownership interest in the instructional material. Moses v. Skandera, 2015-NMCA-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.).

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 N.M. Const., art. IV, § 31, because under the IML, no funds are appropriated to any private school; the mere indirect or incidental benefit to the private schools does not violate N.M. Const., art. IV, § 31. Moses v. Skandera, 2015-NMCA-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.).

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 N.M. Const., art. II, § 11, which serves the same goals as the establishment clause of the first amendment of the United States constitution; the United States supreme court has made clear that textbook and instructional material programs that benefit all children, regardless of the school of their attendance, do not conflict with the establishment clause. Moses v. Skandera, 2015-NMCA-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.).

Right to inspect instructional material. — Local school boards have no authority to prohibit citizens of the state from inspecting instructional material used in a public school within the district. 1988 Op. Att'y Gen. No.88-37.