A. There is hereby created a “public education department” and a “public education commission” that shall have such powers and duties as provided by law. The department shall be a cabinet department headed by a secretary of public education who is a qualified, experienced educator who shall be appointed by the governor and confirmed by the senate.
B. Ten members of the public education commission shall be elected for staggered terms of four years as provided by law. Commission members shall be residents of the public education commission district from which they are elected. Change of residence of a commission member to a place outside the district from which he was elected shall automatically terminate the term of that member.
C. The governor shall fill vacancies on the commission by appointment of a resident from the district in which the vacancy occurs until the next regular election for membership on the commission.
D. The secretary of public education shall have administrative and regulatory powers and duties, including all functions relating to the distribution of school funds and financial accounting for the public schools to be performed as provided by law.
E. The elected members of the 2003 state board of education [public education department] shall constitute the public education commission, if this amendment is approved, until their terms expire and the districts from which the state board of education [public education department] were elected shall constitute the state public education commission districts until changed by law. (As amended November 4, 1958, effective January 1, 1959, November 4, 1986 and September 23, 2003.)
Editor’s notes.
Laws 2004, ch. 27, § 27, effective May 19, 2004, provides that all references in law to the state board of education, state department of public education, and the department of education shall be deemed to be references to the public education department.
Effect of amendments.
The 2003 amendment, which was proposed by S.J.R. 2, 5, 12, and 21 (Laws 2003) and adopted at the special election of September 23, 2003, by a vote of 101,542 for and 83,155 against, transferred the state department of education [public education department] to a cabinet department headed by a secretary of public education and created an elected public education commission.
Notes to Decisions
Generally.
N.M. Const. art XII § 6 is not self-executing and the New Mexico State Board’s control is limited to its statutory powers enumerated under 22-2-1 and 22-2-2 NMSA 1978. Daddow v. Carlsbad Mun. Sch. Dist., 1995-NMSC-032, 120 N.M. 97, 898 P.2d 1235, 1995 N.M. LEXIS 193 (N.M. 1995), cert. denied, 516 U.S. 1067, 116 S. Ct. 753, 133 L. Ed. 2d 700, 1996 U.S. LEXIS 371 (U.S. 1996).
Attorney fees.
Trial court properly found that an attorney was not entitled to recover fees for services performed for the board of education because there was no written contract and the board was not authorized to approve any expenditure in excess of $ 200 without a written contract. Snyder v. Board of Educ., 1900-NMSC-032, 10 N.M. 446, 62 P. 1090, 1900 N.M. LEXIS 32 (N.M. 1900).
Authority.
N.M. Const. art XII § 6, and the Public Education Department Act gave the Secretary of the New Mexico Public Education Department the exclusive authority to revoke a teacher’s license because no constitutional or statutory scheme, including the Uniform Licensing Act, gave the Public Education Commission or any other group such authority. Skowronski v. N.M. Pub. Educ. Dep't, 2013-NMCA-034, 298 P.3d 469, 2012 N.M. App. LEXIS 125 (N.M. Ct. App. 2012), cert. quashed, 314 P.3d 963, 2013 N.M. LEXIS 410 (N.M. 2013).
State Board, which controlled the public schools, under N.M. Const. art XII § 6A, and had authority, under 22-2-1 NMSA 1978, to promulgate and enforce regulations in its exercise of control of public school, upheld the local board’s termination of a tenured teacher’s employment in accordance with its policy on reduction in force and pursuant to the law in effect at the time, former 22-10-15 NMSA 1978, because the proposed realignment would have seriously affected the educational program both in social studies department and in the library. New Mexico State Bd. of Educ. v. Abeyta, 1988-NMSC-017, 107 N.M. 1, 751 P.2d 685, 1988 N.M. LEXIS 357 (N.M. 1988).
The New Mexico State Board of Education [public education department] is created under N.M. Const. art. 12, and it was within the power of the framers of the constitution to confer upon this constitutional body such limited judicial powers as it deemed proper. Such judicial powers as were conferred upon the State Board of Education [public education department] by the legislature pursuant to former 55-101, 1953 Comp. fell clearly within the constitutional authority conferred upon the State Board of Education [public education department] for the control, management and direction of all public schools. McCormick v. Board of Educ., 1954-NMSC-094, 58 N.M. 648, 274 P.2d 299, 1954 N.M. LEXIS 1175 (N.M. 1954).
Children.
In an action against a school teacher for damages for the wrongful death of a student, the representative of the decedent failed to establish constitutional deprivation with regard to the school teacher’s liability because compulsory attendance laws did not impose severe restraints on individual liberty that implicated the due process clause. Maldonado v. Josey, 975 F.2d 727, 1992 U.S. App. LEXIS 21838 (10th Cir. N.M. 1992), cert. denied, 507 U.S. 914, 113 S. Ct. 1266, 122 L. Ed. 2d 662, 1993 U.S. LEXIS 1184 (U.S. 1993).
Construction with other law.
District attorney had the authority under former 1929 Code, § 96-105 (now 10-4-1 NMSA 1978) to seek the removal of school district board members through district court proceedings; the removal authority was not exclusively vested with the state board of education [public education department] under N.M. Const. art XII § 6. State ex rel. Hannah v. Armijo, 1933-NMSC-063, 37 N.M. 423, 24 P.2d 274, 1933 N.M. LEXIS 59 (N.M. 1933).
Public policy did not authorize parents to sue an insurer for a local board of education for the injuries the parents’ child suffered in a collision involving a school bus and a motorcycle because the New Mexico State Board of Education [public education department], pursuant to its right under N.M. Const. art XII § 6 to determine public school policy, did not adopt any rule or regulation requiring local boards of education to obtain liability insurance, and because former § 64-27-25(A), 1953 Comp. of the New Mexico Motor Carrier Act exempted school buses from the provisions of the Act. Caster v. Board of Educ., 1974-NMCA-121, 86 N.M. 779, 527 P.2d 1217, 1974 N.M. App. LEXIS 735 (N.M. Ct. App. 1974).
Under 1929 Code, § 96-105 (now 10-4-1 NMSA 1978), the district attorney was vested with the authority to seek the removal of school board members through district court proceedings, the removal authority was not exclusively vested with the state board of education [public education department], and such authority was not inconsistent with the control, management, and direction of all public schools confided in the state board of education [public education department] by N.M. Const. art XII § 6. State ex rel. Hannah v. Armijo, 1933-NMSC-063, 37 N.M. 423, 24 P.2d 274, 1933 N.M. LEXIS 59 (N.M. 1933).
Education.
Although the State Board has general authority over schools statewide such as to determine public school policy and to have control, management, and direction pursuant to N.M. Const. art XII § 6, local school boards have many other responsibilities and duties, which they perform without state control and supervision, such as the election of local board members pursuant to 22-5-1.1 NMSA 1978, and supervision of public schools and their property pursuant to 22-5-4 NMSA 1978; thus, local school boards are not entitled to Eleventh Amendment immunity. Duke v. Grady Mun. Sch., 127 F.3d 972, 1997 U.S. App. LEXIS 28809 (10th Cir. N.M. 1997).
N.M. Const. art XII § 6, which authorized creation of a state board of education [public education department], did not impose any restrictions upon the exercise of the power in local school boards to employ teachers, as the legislature provided the local boards of education with legislation governing the reemployment of terminated teachers. Bourne v. Board of Educ., 1942-NMSC-039, 46 N.M. 310, 128 P.2d 733, 1942 N.M. LEXIS 37 (N.M. 1942).
Elections.
Consolidation of two school districts from different counties was entirely lawful although it meant that some parents would not be eligible to vote for the school board in the district where their children attended school; nothing in N.M. Const. art VII § 1 or § 3, guaranteed the right to vote for any school board other than the one in which the elector resided, as provided by N.M. Const. art XII § 6. State ex rel. Apodaca v. New Mexico State Bd. of Educ., 1971-NMSC-058, 82 N.M. 558, 484 P.2d 1268, 1971 N.M. LEXIS 1566 (N.M. 1971).
Review.
The state board was an administrative agency created by N.M. Const. art XII § 6 to determine policy and manage the public schools; it had superintending control over the local school boards. Deciding whether or not appellee assistant principal was fit to perform his duties was a question of policy and would not be altered unless it was unreasonable, not supported by substantial evidence, or not in accordance with statute. Board of Educ. v. Jennings, 1982-NMCA-135, 98 N.M. 602, 651 P.2d 1037, 1982 N.M. App. LEXIS 922 (N.M. Ct. App. 1982), abrogated in part as stated in Skowronski v. N.M. Pub. Educ. Dep't, 2013-NMCA-034, 298 P.3d 469, 2012 N.M. App. LEXIS 125 (N.M. Ct. App. 2012).
—Standard.
Court’s review of the State Board of Education’s [public education department’s] decision not to re-employ a teacher is limited to a determination of whether the decision is arbitrary, unreasonable, unlawful, or capricious because the State Board is a constitutional body pursuant to N.M. Const. art XII § 6, with authority to control public schools as provided by law. Wickersham v. New Mexico State Bd. of Educ., 1970-NMCA-012, 81 N.M. 188, 464 P.2d 918, 1970 N.M. App. LEXIS 543 (N.M. Ct. App. 1970).
OPINIONS OF ATTORNEY GENERAL
Analysis
Authority of assistant superintendent.
Generally.
The department of education [public education department] may implement the provisions contained in N.M. Const. art XII § 6E, notwithstanding the lack of legislation transferring the powers now vested in the office of education to the department of education [public education department]. Implementing legislation is not necessary to authorize specifically the department to perform the functions that article XII, section 6E transfers to it. 1987 N.M. Op. Att'y Gen. No. 1987-36.
Authority of assistant superintendent.
An assistant superintendent employed by the Santa Fe school district may also serve as an elected member of the state board of education [public education department], so long as the duties of membership on the state board of education [public education department] do not physically interfere with the duties of the assistant superintendent during the ordinary working hours of that position and the two positions are not otherwise incompatible. 1992 N.M. Op. Att'y Gen. No. 1992-4.
Conflict of interest.
While membership of a state board of education [public education department] member on the advisory council on vocational-technical education is not specifically prohibited, it is certainly an activity which might give rise to an appearance or suspicion of conflict of interest. Therefore, the attorney general’s office cannot endorse a state board member’s participation in the advisory council. 1983-1986 N.M. Op. Att'y Gen. No. 242.