Push to reopen private schools arrives in federal court

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

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.