Push to re­open pri­vate schools ar­rives in fed­eral court

Al­bu­querque man ar­gues state’s pan­demic guide­lines on in-per­son in­struc­tion un­con­sti­tu­tional

Santa Fe New Mexican - - LOCAL & REGION - By Morgan Lee

A fed­eral judge on Wed­nes­day weighed whether pan­demic-re­lated oc­cu­pancy lim­its on pri­vate schools in New Mex­ico vi­o­late con­sti­tu­tional rights to equal pro­tec­tion and free­dom of assem­bly, in a case closely watched by the Trump ad­min­is­tra­tion.

The law­suit by the fa­ther of a sev­enth grader at a prep school in Al­bu­querque says the state is vi­o­lat­ing the U.S. Con­sti­tu­tion by set­ting more strin­gent re­stric­tions at pri­vate schools re­gard­ing the re­turn to class­rooms, as the coro­n­avirus rages unchecked by vac­cines. The school in ques­tion, Al­bu­querque Acad­emy, is pro­vid­ing on­line in­struc­tion only — though some pri­vate schools have re­sumed in-per­son in­struc­tion.

A state pub­lic health or­der lim­its in-per­son in­struc­tion to 25 per­cent of max­i­mum room ca­pac­ity, while the pub­lic schools can sub­mit re­open­ing pro­pos­als to the state Pub­lic Ed­u­ca­tion Depart­ment with guide­lines for a 50 per­cent oc­cu­pancy limit or al­lowances for six feet of so­cial dis­tanc­ing.

Plain­tiff ’s at­tor­ney Deena Buchanan de­scribed the man’s daugh­ter as a shy mid­dle school stu­dent who is cut off from vi­tal so­cial and aca­demic in­ter­ac­tion — while far more peo­ple legally as­sem­ble in preschools, houses of wor­ship and re­tail stores.

“Hun­dreds of peo­ple can be in a Home De­pot and thou­sands can be in an Al­bu­querque church,” Buchanan said. “But less than a hand­ful are al­lowed to be in a class­room in Al­bu­querque Acad­emy only be­cause it’s a pri­vate school.”

The ad­min­is­tra­tion of Demo­cratic Gov. Michelle Lu­jan Gr­isham says pri­vate schools al­ready oc­cupy a priv­i­leged po­si­tion with min­i­mal state over­sight and re­sources that al­lowed some to re­boot in-per­son in­struc­tion be­fore com­pa­ra­ble pub­lic schools.

Pri­vate schools in New Mex­ico en­roll about 22,000 stu­dents — or nearly 7 per­cent of school-aged chil­dren.

The out­come of the fed­eral law­suit could re­ver­ber­ate be­yond New Mex­ico, as the U.S. Jus­tice Depart­ment filed a state­ment of in­ter­est in sup­port of plain­tiff and par­ent Dou­glas Peter­son, signed by its civil rights di­vi­sion and lo­cal U.S. at­tor­ney.

Pres­i­dent Don­ald Trump and his ed­u­ca­tion sec­re­tary have threat­ened to try and di­vert

fed­eral fund­ing away from pub­lic schools that de­cline to re­open and to­ward par­ents who wish to send their chil­dren to pri­vate schools or for home school­ing, learn­ing pods or other op­tions that have arisen dur­ing the coro­n­avirus pan­demic.

Judge Wil­liam John­son fo­cused his ques­tions Wed­nes­day on whether pub­lic mid­dle and high school stu­dents could soon re­turn to class­rooms in num­bers that sur­pass cur­rent le­gal thresh­olds for pri­vate schools.

He promised to rule quickly on a re­quest for a pre­lim­i­nary in­junc­tion to ease re­stric­tions, with­out set­ting a spe­cific dead­line.

Matthew Gar­cia, an at­tor­ney for the gov­er­nor and state Health Depart­ment, said it was Al­bu­querque Acad­emy — and not state health of­fi­cials — that made the de­ci­sion to go with­out in-per­son learn­ing. He noted that schools can stay within the build­ing oc­cu­pancy limit by teach­ing out of ath­letic fa­cil­i­ties, cafe­te­rias and other non-class­room build­ings.

“They don’t want equal treat­ment, they al­ready have pref­er­en­tial treat­ment,” Gar­cia said. “What they want is more pref­er­en­tial treat­ment than they al­ready have.”

He said no pub­lic mid­dle or high school stu­dents have re­turned to in-per­son learn­ing so far in New Mex­ico, as state ed­u­ca­tion of­fi­cials fo­cus at­ten­tion on re­open­ing class­rooms to K-6 stu­dents and those with dis­abil­i­ties.

Gar­cia said there is no fun­da­men­tal right to in-per­son ed­u­ca­tion and that nu­mer­ous courts have up­held the broad au­thor­ity of state health of­fi­cials to im­pose emer­gency health re­stric­tions dur­ing a once-in-a life­time health emer­gency.

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