A. With the approval of the chief, instructional material acquired by a school district, state institution or private school pursuant to the Instructional Material Law [22-15-1 to 22-15-14 NMSA 1978] may be sold at a price determined by officials of the school district, state institution or private school. The selling price shall not exceed the cost of the instructional material to the state.

B. A school district, state institution or private school may hold the parent or student responsible for the loss, damage or destruction of instructional material while the instructional material is in the possession of the student. A school district may withhold the grades, diploma and transcripts of the student responsible for damage or loss of instructional material until the parent or student has paid for the damage or loss. When a parent or student is unable to pay for damage or loss, the school district shall work with the parent or student to develop an alternative program in lieu of payment. Where a parent is determined to be indigent according to guidelines established by the department, the school district shall bear the cost.

C. A school district or state institution that has funds remaining for the purchase of instructional material at the end of the fiscal year shall retain those funds for expenditure in subsequent years.

D. All money collected by a private school for the sale, loss, damage or destruction of instructional material received pursuant to the Instructional Material Law shall be sent to the department.

E. Upon order of the chief, a school district, state institution or private school shall transfer to the department or its designee instructional material, purchased with instructional material funds, that is in usable condition and for which there is no use expected by the respective schools.

History: 1953 Comp., § 77-13-10, enacted by Laws 1967, ch. 16, § 214; 1975, ch. 270, § 10; 1989, ch. 280, § 1; 1993, ch. 226, § 42; 1997, ch. 100, § 6; 2009, ch. 221, § 8.

Cross references. — For transfer of powers and duties of former chief of public school finance, see 9-6-3.1 NMSA 1978.

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

The 2009 amendment, effective July 1, 2010, in Subsections A, B and E, after "private school", deleted "or adult basic education center"; in Subsection C, after "state institution" deleted "or adult basic education center"; in Subsection B, in the first, second and third sentences, after "parent", deleted "guardian"; and in the last sentence, after "parent", deleted "or guardian".

The 1997 amendment, effective July 1, 1998, substituted "acquired by" for "distributed to" in Subsection A; in Subsection B, deleted "as agent" following "center" in the first sentence and deleted "of education" in the last sentence; added Subsection C and redesignated the remaining subsections accordingly; rewrote Subsection D; in Subsection E, deleted "as ordered" following "transfer" and substituted "purchased with" for "purchased from the"; and made stylistic changes throughout the section.

The 1993 amendment, effective July 1, 1993, substituted "chief" for "director" in Subsections A and D; substituted "department of education" and "department" for "division" in Subsections C and D; added the final sentence of Subsection C; and made a minor stylistic change in Subsection D.

The 1989 amendment, effective June 16, 1989, added the last three sentences in Subsection B and made minor stylistic changes.

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-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. 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-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. 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-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.).