The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is sele cted for publication by the Court, it is assigned a vendor

- neutral citation by the Chief Clerk for compliance with Rule 23

- 112 NMRA
, authenticated and formally published . The slip opinion may contain deviations from the formal authenticated opinion. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1
Opinion Number: _____________ 2
Filing Date: May 23, 2023 3

No. A

- 1

- CA

- 39732 4

MCKENZIE JOHNSON, 5

Plaintiff

- Appellant, 6

v. 7

BOARD OF EDUCATION FOR 8 ALBUQUERQUE PUBLIC SCHOOLS 9 and MARY JANE EASTIN, 10

Defendants

- Appellees. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Benjamin Chavez, District Court Judge 13

Parnall & Adams Law 14 Charles S. Parnall 15 David M. Adams 16 Albuquerque, NM 17

ACLU of New Mexico 18 Leon Howard 19 Maria Martinez Sánchez 20 Preston Sanchez 21 Albuquerque, NM 22
NM Center on Law and Poverty 23 Sovereign Hager 24 Verenice Peregrino Pompa 25 Albuquerque, NM 26
for Appellant 27Walsh Gallegos Trevi ñ o Kyle & Robinson, P.C. 1 Roxie P. Rawls

- De Santiago 2 Karla Schultz 3 Stephanie Mendivil 4 Albuquerque, NM 5
for Appellee Board of Education for the Albuquerque Public Schools 6
Robles, Rael and Anaya 7 Luis Robles 8 Albuquerque, NM 9
for Appellee Mary Jane Eastin 10
Egolf + Ferlic +Martinez + Harwood, LLC 11 Kristina Martinez 12 Jeff Dan Herrera 13 Santa Fe, NM 14
for Amicus Curiae Equality New Mexico 15
Lysette Romero Córdova, Supervising Attorney 16 Elisa Cibils, Clinicial Law Student 17 Emily Romero, Clinical Law Student 18 Albuquerque, NM 19
for Amici Curiae Native American Budget and Policy Institute and Native 20 American Disability Law Center 21OPINION 1

HANISEE, Judge. 2

{1} This appeal asks whether a public secondary school in New Mexico can be 3

classified as a public accommodation under the pre

- 2023 iteration of the New 4
Mexico Human Rights Act ( the NMHRA), NMSA 1978, §§ 28

- 1

- 1 to

- 1 5 ( 1969, as 5
amended through 202 1 ) , and therefore subject to the requirements of that statute

. 1 6
Although one interpretation of historic New Mexico Supreme Court precedent 7
suggests otherwise, see Hum

. R ts. Comm ’n of N

. M

. v. B d. of Regents of Univ

. of 8

N

. M

. Coll

. of Nursing (Regents ), 1981

- NMSC

- 026, ¶ 11
, 95 N.M. 576, 624 P.2d 518 9
(determining a state university not to be a public accommodation within the meaning 10
of the NMHRA) , we conclude differently here based on the plain language of the 11

NMHRA , the differing circumstances of this case, and our Supreme Court’s own 12
language declar ing Regents ’ limited prospective application, even to the very state 13
university at issue therein

. 14

{ 2 } P laintiff appeal s the grant of Albuquerque Public Schools (APS) and teacher 15

Mary Jane Eastin’s ( collectively, Defendants ’ ) motion to dismiss u nder the 16

NMHRA. Th e NMHRA makes it unlawful for “ any person in any public 17

1 Since briefing was completed in this case, the Legislature amended Secti on 28

- 1

- 2 (H) of the NMHRA to restate the definition of “public accommodation” to expressly include “ any government al entit y ” in addition to “ any establishment. ” See 2023 N.M. Laws, ch. 29 , § 1 (H) ) (signed into law as H.B. 207, Mar. 24, 2023).2 accommodation to make a distinction, directly or indirectly, in offering or refusing 1
to offer its services, facilities, accommodations or goods to any person becau se of 2
race, religion, color, ” or other protected class. Section 28

- 1

- 7(F). The district court 3

determined Plaintiff had failed to state a claim because , under Regents , APS is not a 4
public accommodation for purposes of the NMHRA

. Regents held that 5
“[u]niversities are not public accommodations in the ordinary and usual sense of the 6
words,” as indicated by the historical statutory definition and analogous nineteenth 7
century United States Supreme Court precedent, Regents , 1981

- NMSC

- 026, ¶¶ 1 2

- 8

15, but declared its ruling “ should be construed narrowly and is limited to the 9

[u] niversity ’ s manner and method of administering its academic program

. ” Id. ¶ 16. 10

Indeed, our Supreme Court pointedly declined to exclude universities altogether 11

from the reach of the NM H RA , stating that Regents did not answer “the question of 12

whether in a diff erent set of circumstances the [ u] niversity would be a ‘public 13
accommodation’ and subject t o the jurisdiction of the [NMHRA ].” Id. Regents 14
provided no guidance, however, as to what might have led to a different outcome 15
regarding the university then under review. Upon consideration of plain language 16

within the NMHRA and what guiding principles we can discern in Regents , we reach 17

a different o utcome in this case

. W e hold that Cibola High School, a secondary 18
public school , is a public accommodation under the NMHRA , and therefore reverse 19

the district court’s contrary determination

. 203 BACKGROUND 1

{ 3 } Plaintiff alleges the following facts in her complaint: Plaintiff is a Native 2

American who, at the time the underlying events occurred, was a sixteen

- year

- old 3
student enrolled at Cibola High S chool, a school under the supervision of APS. 4
During a n in

- classroom Halloween activity on October 31 , 2018 , Plaintiff’s 5
Advanced Placement English teacher, Eastin, cut off three inches of hair from 6

another Native American student and sprinkled it on that student’s desk

. Eastin then 7

turned to Plaintiff and

— in an apparent reference to a blood smear as part of 8

Plaintiff’s Halloween costume

— asked
, “What are you supposed to be, a bloody 9

Indian?” Following these event s , Plaintiff alleges she “no longer felt welcome in the 10

school environment and her behavior fu ndamen tally changed at school.” 11

{ 4 } Plaintiff filed a complaint alleging a violation of the NMHRA , Section 28

- 1

- 12
7(F), against D efendants, in addition to a claim of negligent operation of a school 13

under the New Mexico Torts Claims Act that does not pertain to this appeal. 14

Defendants filed a motion to dismiss
, arguing that public schools are not public 15

accommodations in the administ ration of their academic programs. After a hearing, 16
the district court granted the motion, determining that public secondary school s are 17
not sufficiently distinct from universities to warrant a different outcome than that in 18

Regents

. 194 DISCUSSION 1

{ 5 } The sole issue raised by Plaintiff is whether the district court erred in 2
determining APS not to be a public accommodation. “A district co urt’s decision to 3

dismiss a case for failure to state a claim under Rule 1

- 012(B)(6) [NMRA] is 4

reviewed de novo.” Delfino v. Griffo , 2011

- NMSC

- 015, ¶ 9, 150 N.M. 97, 257 P.3d 5

917 (internal quotation marks and citation omitted) . “In reviewing a district court’s 6
decision to dismiss for failure to state a claim, we accept all well

- pleaded factual 7
allegations in the complaint as true and resolve all doubts in favor of sufficiency of 8

t he complaint.” Id. (internal quotation marks and citation omitted). “The [district] 9
court’s conclusions of law are not binding upon us; we may draw our own legal 10

conclusions.” Trigg v. Allemand , 1980

- NMCA

- 151, ¶ 15, 95 N.M. 128, 619 P.2d 11

573. 12

{ 6 } Alt hough our Supreme Court did conclude the aspect of the state university 13

under review in Regents was insufficient to establish the school as public 14

accommodation

— specifically, “ manner and method of administering its academic 15

program ”

— w e abide by the stated instruction that its holding “sh ould be construed 16
narrowly .” 1 981

- NMSC

- 026, ¶ 16. “The Court of Appeals must follow applicable 17
precedents of our Supreme Court, but in appropriate situations we may consider 18
whether Supreme Court precedent is applicable.” St ate v. Travarez , 1983

- NMCA

19

003, ¶ 5, 99 N.M. 309, 657 P.2d 636 ; see id. ( concluding in the context of criminal 205 sentencing that “[a]lthough the case law presented by the [s]tate has never been 1
expressly overruled, it is clear that it no longer has precedential value in light of the 2
more recent legislative enactments”). Regarding Regents , w e have previously said 3
that our Supreme Co urt’s pointed restraint therein signaled that this Court should 4
“independently evaluate the applicability of the NMHRA in all future cases.” Elane 5
Photography, LLC v. Willock , 2012

- NMCA

- 086, ¶ 12, 284 P.3d 428. We likewise 6

observed that “ [n] o other guidanc e was provided by [our] Supreme Court to address 7
the Legislature ’ s expansion of the NMHRA to other public accommodations outside 8
the unique academic circumstances analyzed in Regents

. ” E lane Photography, LLC
, 9

2012

- NMCA

- 086, ¶ 11. We interpret Regents to be a case that most directly pertains 10

to state universiti es, and more specifically, to administration of the academic 11
programs available to students or applicants to the university under review

. By 12

contrast , we initially observe two circumstance s that distinguish this case from 13

Regents : First, Cibola High School provides a constitutionally mandated function; 14
that is, the provision of secondary education to primarily minor New Mexico 15

residents. See N.M. Const. art. XII, § 1. Second, this cases arises not from any 16
specified manner or method of adm inistration , such as admission processes or, in 17

Regents , the decision by university officials not to permit a Black nursing student to 18
retake a course after having not received a passing grade in her first such effort, 19

1981

- NMSC

- 026, ¶ 1, effectuated by AP S or Cibola High School; rather, it arises 206 from the spontaneous actions and remark undertaken and spoken by a single teacher 1
on a single occasion as alleged by Plaintiff

. With this in mind, we proceed to apply 2
general principles of statutory interpretation in order to identify the scope of the 3

NMHRA as applied to the circumstance herein
, recognizing that equating state 4

universities as a whole , or even t he university to which Regents narrow ly applied
, 5
and public secondary schools as a stand

- alone inquiry

— as Defendants suggest

— is 6

not outcome determinative

. 7

Plain Language 8

{ 7 } “The guiding principle in statutory construction requires that we look to the 9
wording of the statute and attempt to apply the plain meaning rule, recognizing that 10
when a statute contains language which is clear and unambiguous, we must give 11

effect to that language and refrain from further statutory interpretation.” Tucson 12

Elec. Power Co. v. N.M. Tax’n & Revenue Dep’t , 2020

- NMCA

- 011, ¶ 8 , 456 P.3d 13

1085 (internal quotation marks and citation omitted)

. “ We us e the plain language of 14
the statute as the primary i ndicator of legisla tive intent. ” Baker v. Hedstrom , 2013

- 15

NMSC

- 043, ¶ 11, 309 P.3d 1047 (alterations, internal quotation marks, and citation 16
omitted) . “However, if the plain meaning of the statute is doubtful, ambiguous, or if 17

an adherence to the literal us e of the words would lead to injustice, absurdity or 18
contradiction, we will construe the statute according to its obvious spirit or reason.” 19

Id. (alteration s, internal quotation marks, and citation omitted). 207 { 8 } The Legislature provided a definition for “public accommodation” in the 1

NMHRA statute to mean “ any establishment that provides or offers its services, 2
facilities, accommodations or goods to the public, but does not include a bona fide 3
private club or other place or establishment that is by its na ture and use distinctly 4
private.” Section 28

- 1

- 2(H). This definition exhibits two points of potential 5
ambiguity when applied to public secondary school s : the term “establishment” and 6
the phrase “ provides or offers its services . . . to the public

. ” 7

{ 9 } First, the general meaning of “establishment” plainly appl ies to businesses 8
and commercial enterprises, but cannot be read to exclude pub lic institutions such 9

as secondary schools

. To give words not defined in a statute their ordinary meaning, 10

we often “ consult common dictionary definitions. ” State v. Vest , 2021

- NMSC

- 020, 11

¶ 14, 488 P.3d 626

. Webster’s Third New International Dictionary in part defines an 12

“ establishment ” as “ 1 : d : a more or less fixed an d usu [ally] sizable place of business 13
or residence together with all the things that are an essential part of it
, ” and more 14
specifically, “ 1 : e : a public or private institution (as a school or hospital).” 15

Establishment
, Webster’s Third New Int ’l Dictionary ( Unabridged ed. 2002). 16
Similarly, the relevant definition in the current edition of Black’s Law Dictionary 17

defines “ establishment” as “[a]n institution or place of business.” Establishment
, 18
Black’s Law Dictionary (11th ed. 2019). A public secondary school

— even if merely 19
potentially an establishment

— is decidedly an institution. See Institution , Black’s 208 Law Dictionary (11th ed. 2019) (defining “institution” in pertinent part: “ An 1
established organization, esp [ecially] one of a public character”). The edition of 2

Black’s Law Dictionary that was current in 1969 at the formulation of the NMHRA 3

defined an “establishment” as an “ [i] nstitution, place where conducted and 4
equipment; industrial plant and appurtenances; place of business and fixtures; 5
residence with grounds, furniture, equipage, etc.” Establishment
, Black’s Law 6

Dictionary (4th ed. 1968)

. We observe that the 1968 definition carries a more 7

commercial orientation , but this does not change that dictionaries consistently have 8

define d establishments as including institutions for the past five decades

. We easily 9
conclude there to be an absence of ambiguity, doubt, or for that matter
, contrary 10
legislative intent, such as to make it necessary or justified to deviate from the 11
ordinary meaning of “establishment” or “institution.” Therefore, considering the 12
language of the statute and the ordinary definitions of the words therein, we agree 13

with Plaintiff that a public secondary school is an establishment for purposes of the 14

NMHRA. 15

{ 10 } The second point of potential ambiguity we encounter with in the statutory 16
definition of public accommodation comes from the phrase
, “ provides or offers its 17
services . . . to the public.” Section 28

- 1

- 2(H). Defendant s contend that schools are 18
not public accommodations because they are not “open to the public at large,” as 19
they cater their services to school

- age children within a certain age range. Under 209 Defendant s ’ argument, a public school is even less like a public a ccommodation than 1
a university in Regents because public schools cater to “ a much smaller and finite 2
group of young people .” Plaintiff argues that schools are open to the public because 3
they are mandated to offer services to all school

- age students accordi ng to Article 4

XII, Section 1 of the New Mexico Constitution, and accordingly offer a “wide array 5

of services and accommodations to students and families.” Moreover, Plaintiff 6
asserts that APS’s adult education services, such as GED and adult literacy class es, 7
provide services to individuals well beyond school

- age years. Again, we conclude 8
that Plaintiff gets the better of this disagreement. 9

{ 11 } Both parties focus their arguments on the statutory term “public,” but that is 10
but a smaller part of the larger phrase “ provides or offers its services . . . to the 11
public.” Defendant might be correct if the only verb in the statute was “provide,” b ut 12

the statute also includes establishments that offer services to the public

. Black’s Law 13

Dictionary provides relevant definitions for “offer” as “ [t] he act or an instance of 14
presenting something for acceptance; specif [ically] , a statement that one is willing 15
to do something for another person or to give that person something ,” Offer
, Black’s 16

Law Dictionary (11th ed. 2019), and “public” as “ [t] he people of a country or 17
community as a whole,” Public
, Black’s Law Dictionary (11th ed. 2019 )

. A public 18
school does present its servic es to the community as a whole , which appears to fall 19
into the plain language of the statute. 2010 { 12 } We are unpersuaded by Defendant s ’ arguments that restrictions to an 1
otherwise public accommodation’s services based on age or place of residence are 2
determinative parameters that demonstrate Cibola H igh School ’s , as administrated 3
by APS, educational services are not open to the public. In looking to the purpose 4
that underpins Plaintiff’s cause of action, our Supreme Court has said that “[t]he 5
prohibition against discrimination in public accommodations arose from the 6
common law duties of innkeepers and public carriers to provide their services to the 7
public without imposing unr easonable conditions.” Regents , 1981

- NMSC

- 026, ¶ 12. 8

Reasonable conditions on an offer of services to the public do not render an offer 9
meaningless or without effect

. See Conditional O ffer
, Black’s Law Dictionary (11th 10
ed. 2019) (defining a “ conditional offer ” as “[a] n offer made on the stipulation that 11
it will not take effect until some contingent prerequisite has been satisfied ”). 12
Quintessential public accommodations such as inns and taverns are not excluded 13
from that class merely because th ey only rent rooms or offer alcoholic beverages to 14
individuals over a certain age

. We do not believe it to be the intent of the Legislature 15
to exclude hotels, bars, and public transportation from being public accommodations 16
merely because there are reasona ble age restrictions on their services. If mere age 17
or residence restrictions were enough to except an establishment from being open to 18
the public, small restrictions enacted in bad faith could suddenly permit 1911 accommodations to avoid this statute that our Legislature clearly intended to apply 1
to govern such places of business or institutions

. 2

{ 13 } Accordingly, we are persuaded that in the context of this case, the term 3
“provides or offers its services . . . to the public” is not so ambiguous that we cannot 4
apply a plain language reading to the statute. See § 28

- 1

- 2 (H). T he statute only 5
expressly exc epts the following from its definition of establishments that serve the 6
public: “ bona fide private club or other place or establishment that is by its nature 7
and use distinctly private .” Id. Alt hough that provision may not state the only 8

exclusions to the statute, w e are persuaded by Plaintiff’s argument that APS does 9
not restrict its services in such a way that could be said to be by its nature and use 10
distinctly private

. Cibola High School, and more broadly APS, offers services to the 11

c ommunity as a whole such that refusing educational services based on race, 12
religion, or any other protected category would be to contravene what the Legislature 13

intended under Section 28

- 1

- 7(F). The statutory definition of public accommodation 14

is clear to us in its ordinary and usual sense, and it inc ludes public secondary schools

. 15

Therefore, we hold that Cibola High School is a public accommodation for purposes 16

of the NMHRA under the circumstances of this case

. 17

Historical Meaning 18

{ 14 } Despite our conclusion that the plain language of the NMHRA directs the 19

outcome reached above, had the statute been ambiguous as to its application to 2012 Cibola High School in this case, such that we were required to construe the statute 1
“according to its obvious purpose,” we believe the same outcome is appropriate

. See 2
N.M. Boys & Girls Ranch v. N.M. Bd. of Pharma cy , 2022

- NMCA

- 047, ¶ 19, 517 3

P.3d 248 (internal quotation marks and citation omitted)

. We briefly explain. 4

{ 15 } In defining a “ public accommodation ” in Regents , our Supreme Court looked 5

to the “ historical and traditional meanings ,” 1981

- NMSC

- 026, ¶ 11, including the 6
NMHRA’s predecessor , the New Mexico Public Accommodations Act, 1955 N.M. 7

Laws, ch. 192, §§ 1

- 7 (signed into law as H

. B

. 52, Mar. 24, 1955) , and federal civil 8
rights jurisprudence and enactments such as the Civil Rights Cases
, 109 U.S. 3 9
(1883) and 42 U.S.C. § 2000 a(b) (19 64 )

. See Regents , 1981

- NMSC

- 026, ¶¶ 12

- 14. 10
We do so as well, bearing in mind the NMHRA’s overarching purpose: “ to promote 11
the equal rights of people within certain specified classes by protecting them against 12
discriminatory treatment. ” Elane Photography, LLC , 2013

- NMSC

- 040, ¶ 13. We 13

must also be mindful that the differing resu lt we reach in this case is not afoul of 14

Regents

. 15

{ 16 } The 1955 Public Accommodations Act included the following kinds of 16
establishments as public accommodations: inns, taverns, roadhouses, hotels, motels, 17

buffets, saloons, barrooms, and any store or enclosure where spirituous or malt 18
liquors are sold, ice cream parlor s, soda fountains, clinics, hospitals, recreation 19
parks, billiard and pool parlors, public libraries, and all public conveyances operated 2013 on land, water
, or in the air. See 1955 N.M. Laws, ch. 192, § 5. Alt hough the Regents 1

Court pointed to the noninclusion of universities among expressly enumerated 2

accommodations, see 1981

- NMSC

- 026, ¶ 14

— nor for that matter are public 3
secondary schools mentioned

— public institutions such as libraries and parks, along 4
with public transportation, are included. We cannot conclude that our Legislature 5

did not conceive of including constitutionally commanded public institutions of 6
learning , where services are offered to the public, when they created an enumerated 7
list of public accommodations. Indeed , prior to the NMHRA, such accommodations 8
included public institutions endorsed by state action. Alt hough public secondary 9

schools are not identified along with the limited other example s in the Public 10

Accommodations Act , they are similar enough to the listed public institutions such 11
as public libraries, parks, and transit such that we feel comfortable concluding the 12
Legislature did intend to exclude public secondary schools such as Cibol a High 13

School when they enacted a more general statute , the NMHRA in 1969. 14

{ 17 } As well i n Regents , our Supreme Court looked to the text of th e federal 1964 15
Civil Rights Act, specifically to 42 U.S.C. § 2000a(b)
, pertaining to 16

“[e] stablishments affecting interstate commerce or supported in their activities by 17

[s] tate action as places of public accommodation ” to find universities not 18
enumerated among the listed accommodations. Regents , 1981

- NMSC

- 026, ¶ 13. The 19
Court observed that the statute follows the “traditional definition” of public 2014 accommodations that “included places of lodging, entertainment and eating.” Id. We 1

note that even in the heading, 42 U.S.C. § 2000a(b) specifically in cludes 2

“[e]stablishments

. . . supported in their activities by [s] tate action .” Pursuant to 3

statute, d iscrimination is supported by S tate action when it “ is carried on under color 4
of any law, statute, ordinance, or regulation . . . is carried on under col or of any 5
custom or usage required or enforced by officials of the [s] tate or polit ical 6

subdivision thereof; or .

. . is required by action of the [s] tate or political subdivision 7

thereof. ” 42 U.S.C. § 2000a(d). A state

- created public school enacting its 8

constitutional mandate to educate school

- age children seems squarely in this 9

categ ory; we can easily conceive of how a public school ordinance or a rule enforced 10
by public school officials could constitute discrimination for pur poses of 42 U.S.C. 11

§ 2000a. See Nat ’ l Collegiate Athletic Ass ’ n v. Tarkanian , 488 U.S. 179
, 193 n.13 12
(1988) (observing the NCAA likely would be a state actor if “membership consisted 13
entirely of institutions located within the same [s] tate, many of them public 14
institutions created by the same sovereign ”) ; see also Brentwood Aca d. v. Tenn

. 15
Secondary Sch

. Athletic Ass ’ n , 531 U.S. 288
, 304 ( 2001) (“ Nor do we think there is 16
anything to be said for the [a] ssociation ’ s contention that there is no need to treat it 17

as a state actor since any public school applying the [ a ] ssociation ’ s rules is itself 18
subject to suit under [42 U.S.C.] § 1983 [(1996),] or Title IX of the Education 19

Amendments of 1972 [ 20 U.S.C. §§ 1681

- 1688 (1986) ] .” ( e mphas e s added)). 2015 { 18 } Even in historical context , public school s were seemingly contemplated by 1
the Legislature as among the types of establishments comprising a public 2

accommodation. If a public secondary school official in their of ficial capacity were 3

to refuse services to an individual based on the individual’s race, religion, or sexual 4

orientation , then the NMHRA would surely apply. As the district court held that 5
Cibola High School
, as administered by APS, was not a public accommodation, we 6

reverse. We reiterate that this appeal , and our ruling today, pertains only to the 7
“public accommodation” element of th e statutory cause of action, Section 28

- 1

- 7(F)

. 8
All remaining issues related to the viability of Plaintiff’s claim under the NMHRA 9
may be litigated on remand. 10

CONCLUSION 11

{ 19 } For the above reasons, we reverse the decision of the district court and remand 12
for further proceedings consistent with this opinion

. 13

{ 20 } IT IS SO ORDERED. 14

____________________________ __ 15 J. MILES HANISEE , Judge 16

WE CONCUR: 17

____ _____ _

______________________ __ 18 SHAMMARA H. HENDE R SON , Judge 19

_____ ____ _______________________ __ 20 GERALD E. BACA , Judge 21