NMAGO 99-01.

• Case Date: January 29, 1999
• Court: New Mexico

New Mexico Attorney General Opinions 1999. NMAGO 99-01. January 29, 1999OPINION OF Opinion No. 99-01PATRICIA A. MADRID Attorney General BY: Elizabeth A. Glenn Assistant Attorney General TO: The Honorable Luciano "Lucky" Varela State Representative 1709 Callejon Zenaida Santa Fe, New Mexico 87501 QUESTION: Is a school voucher program involving the use of public money to provide parents of children attending private schools with tuition assistance permissible under the New Mexico Constitution?CONCLUSION: A school voucher program involving the use of public money to provide parents of private school children with tuition assistance raises serious and substantial state constitutional questions, most significantly under Article XII, Section 3, which proscribes the use of public money for the support of private schools, and the antidonation clause of Article IX, Section 14. FACTS: Legislation has been and is expected to continue to be introduced to provide for a school voucher program under which vouchers would be issued to parents of children attending private schools and used to defray the tuition costs of those schools. The vouchers would be redeemed by the private schools and paid with public money. ANALYSIS: A school voucher program involving the use of state money for tuition assistance to parents of private school children raises significant questions under the New Mexico Constitution. The most serious constitutional questions arise under Article XII, Section 3, which prohibits the use of public money for private schools, and Article IX, Section 14, which prohibits donations of public money or property to private persons and institutions. In addition, the following provisions are implicated by the proposed school voucher program: Article II, Section 11, which prohibits the state from giving any special preferences to religion; Article IV, Section 31, which prohibits appropriations for educational purposes to persons and educational institutions not controlled by the state; and Article XII, Section 1, which provides for a uniform system of free public schools. Article XII, Section 3. Article XII, Section 3 of the New Mexico Constitution provides, in pertinent part: no part of the proceeds arising from the sale or disposal of any lands granted to the state by congress, or any other funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university. Under statutory construction principles, which also apply to the interpretation of constitutional provisions, see Postal Finance Co. v. Sisneros, 84 N.M. 724, 725, 507 P.2d 785 (1973), the intent of a provision's drafters is to be determined primarily by the language of the provision. See Roberts v. Southwest Community Health Services, 114 N.M. 248, 251, 837 P.2d 442 (1992). Legislative enactments must be interpreted to accord with common sense and reason. See Morningstar Water Users Ass'n, Inc. v. Farmington Mun. Sch. Dist., 120 N.M. 307, 319, 901 P.2d 725 (1995). See also State ex rel. Udall v. Colonial Penn Ins. Co., 112 N.M. 123, 128, 812 P.2d 777 (1991) (the constitution is interpreted to carry out its spirit, avoiding legal technicalities and subtle niceties). Applying these rules to Article XII, Section 3, the language of the provisions is straightforward: it provides, without any qualification, that funds appropriated for educational purposes shall not be used for the support of religious or private schools. Without any indication that the drafters of Article XII, Section 3 intended differently, the prohibition applies to all state financial support of private schools, regardless of the means used to provide it. See also Almond v. Day, 89 S.E.2d 851 (Va. 1955) (payment of public money to parents for tuition at private schools violated Virginia constitution's prohibition against the "appropriation of public funds ... to any school or institution of learning not owned or exclusively controlled by the State..."). Despite the clear language of Article XII, Section 3, past opinions issued by the Attorney General's Office have concluded that the provision does not necessarily preclude legislation granting tuition assistance to students attending private schools or to their parents. N.M. Att'y Gen. Op. No. 79-7 (1979) (addressing a bill that authorized tuition grants to students attending private colleges and universities); N.M. Att'y Gen. Op. No. 76-6 (1976) (addressing a proposed voucher program under which the parents of "exceptional" children whose needs were not being met by the public schools could use the funds the school district would otherwise spend on the children to purchase special education at private, nonsectarian institutions). The opinions concluded, without any apparent judicial support, that Article XII, Section 3 prohibited only direct state support of private schools. Based on the plain language of Article XII, Section 3 and on the legal authority discussed below, we do not believe that such a restrictive reading of the prohibition is justified. While there are no reported New Mexico cases on point, the United States Supreme Court has reviewed various government programs that reimburse parents or students for tuition and other educational expenses, generally in the context of determining the programs' constitutionality under the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution.(fn10) The Supreme Court has reached varying conclusions regarding the...