A. On or before April 1 of each year, the department shall allocate to each school district, state institution or private school as agent not less than ninety percent of its estimated entitlement as determined from the estimated forty-day membership for the next school year. A school district's, state institution's or private school's entitlement is that portion of the total amount of the annual appropriation less a deduction for a reasonable reserve for emergency expenses that its forty-day membership bears to the forty-day membership of the entire state. For the purpose of this allocation, additional pupils shall be counted as six pupils. The allocation for adult basic education shall be based on a full-time equivalency obtained by multiplying the total previous year's enrollment by .25. The department shall transfer the amount of the allocation for adult basic education to the adult basic education fund.

B. On or before January 15 of each year, the department shall recompute each entitlement using the forty-day membership for that year, except for adult basic education, and shall allocate the balance of the annual appropriation adjusting for any over- or under-estimation made in the first allocation.

C. An amount not to exceed fifty percent of the allocations attributed to each school district or state institution may be used for instructional material not included on the multiple list provided for in Section 22-15-8 NMSA 1978, and up to twenty-five percent of this amount may be used for other classroom materials. The local superintendent may apply to the department for a waiver of the use of funds allocated for the purchase of instructional material either included or not included on the multiple list. If the waiver is granted, the school district shall not be required to submit a budget adjustment request to the department. Private schools may expend up to fifty percent of their instructional material funds for items that are not on the multiple list; provided that no funds shall be expended for religious, sectarian or nonsecular materials; and provided further that all instructional material purchases shall be through an in-state depository.

D. The department shall establish procedures for the distribution of funds directly to school districts and state institutions. Prior to the final distribution of funds to any school district or charter school, the department shall verify that the local school board or governing body has adopted a policy that requires that every student have a textbook for each class that conforms to curriculum requirements and that allows students to take those textbooks home.

E. The department shall provide payment to an in-state depository on behalf of a private school for instructional material.

F. 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. Any balance remaining in an instructional material account of a private school at the end of the fiscal year shall remain available for reimbursement by the department for instructional material purchases in subsequent years.

History: 1953 Comp., § 77-13-9, enacted by Laws 1967, ch. 16, § 213; 1969, ch. 180, § 26; 1975, ch. 270, § 9; 1977, ch. 99, § 2; 1979, ch. 125, § 1; 1992, ch. 76, § 2; 1993, ch. 226, § 41; 1997, ch. 100, § 5; 1999, ch. 237, § 1; 2005, ch. 80, § 6; 2007, ch. 284, § 1.; 2007, ch. 285, § 2; 2009, ch. 221, § 7.

The 2009 amendment, effective July 1, 2010, in Subsection A, added the last sentence; in Subsection C, after "state institution", deleted "or adult basic education center"; at the beginning of the fourth sentence, deleted "Adult basic education centers" and added "Private schools"; after "may expend up to", deleted "one hundred" and added "fifty"; and in the last sentence, after "multiple list", added the remainder of the sentence; in Subsection D, after "state institutions" deleted "and adult basic education centers"; in Subsection E, after "provide payment to", deleted "a publisher or" and added "an in-state"; and at the end of the sentence, deleted "included on the multiple list provided for in Section 22-15-8 NMSA 1978"; and in Subsection F, after "state institution" deleted "or adult basic education center".

The 2007 amendment, effective June 15, 2007, in Subsection C provided that up to twenty-five percent of the funds appropriated by instructional materials to also be used for other classroom materials.

The 2005 amendment, effective April 4, 2005, in Subsection A, changed the deadline for allocations of entitlements from July 1 to April 1 of each year; in Subsection C, increased the amount of allocations that may be used for instructional material from thirty to fifty percent and provides for a waiver of the use of funds allocated for instructional material; in Subsection D, required the department make payment to the publisher or depository on behalf of a private school for instructional material on the multiple list; and in Subsection E, provided that funds remaining for the purchase of instructional material at the end of the fiscal year shall be retained and used in subsequent year.

The 1999 amendment, effective June 18, 1999, in Subsection A, added the third sentence and deleted the last sentence which read: "For the purpose of this allocation, additional pupils shall be counted as four pupils".

The 1997 amendment, effective July 1, 1998, added "Distribution of Funds for" in the section heading; deleted former Subsection A, relating to the establishment of separate instructional material accounts; redesignated the first paragraph of former Subsection B as Subsection A; in the first sentence of Subsection A, deleted "credit" following "allocate" and deleted "the instructional material account of" preceding "each", and deleted "transportation charges and" preceding "emergency" in the second sentence; redesignated the second paragraph of former Subsection B as Subsection B; in Subsection B, in the first sentence, substituted "adjusting" for "compensating" and deleted "of credit" following "under-estimation", and deleted the former second sentence, relating to disposition of funds remaining for the allocation; rewrote Subsection C; added Subsection D and redesignated former Subsection D as Subsection E; and rewrote Subsection E.

The 1993 amendment, effective July 1, 1993, substituted "department of education" for "division" throughout the section; substituted "not less than ninety percent" for "equal to ninety percent" in the first sentence of the first paragraph of Subsection B; deleted the former third sentence of the first paragraph of Subsection B, which read "Kindergarten MEM shall be calculated on a .5 full-time equivalent basis"; rewrote Subsection C; and substituted "expenditure" for "requisitioning against" near the end of Subsection D.

The 1992 amendment, effective May 20, 1992, substituted "forty-day membership" for "forty-day average daily membership" several times throughout the section; in Subsection B made minor stylistic changes in the first and second sentences and substituted "MEM" for "ADM" in the third sentence; and, in Subsection C, inserted "including the rebinding of used instructional material" in the first and second sentences.

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. 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-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.).

Textbooks for student in private schools. — The public education department's payment of public money for textbooks that are provided to students attending private schools, including sectarian and denominational schools, may violate Article IX, Section 14 and Article XII, Section 3 of the New Mexico Constitution. 2010 Op. Att'y Gen. No. 10-06.