Justice Department sees bias in limits on private schools

SANTA FE, N.M. (AP) — The U.S. Justice Department sided Monday with the father of a seventh grade prep school student in a lawsuit that challenges pandemic-related limits on classroom capacity at private schools in New Mexico as more restrictive than public school guidelines.

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Albuquerque-based U.S. Attorney John Anderson filed a statement of interest that argues the state is violating the equal protection clause of the U.S. Constitution by limiting attendance at private schools to 25% of building capacity under a public health order.

The limit is set at 50% for public schools under guidance from the Public Education Department, though only select groups of elementary school and disabled students have returned to classrooms.

“COVID-related restrictions must be applied and implemented equally and impartially, and that simply did not happen here,” Anderson said. “There is no good reason to penalize students just because they choose to attend a private school.”

The support letter also was signed by Justice Department attorney Eric Drieband of the civil rights division.

The initial lawsuit was filed earlier this month by Douglas Peterson, the father of a student at Albuquerque Academy, after the school opted for online instruction in response to the state's public health order. The lawsuit asserts that the school could have moved forward with classroom instruction if it had the same 50% capacity limit as public schools. Peterson is seeking a restraining order and preliminary injunction to lift the 25% capacity limit.

“This case raises issues of national public importance regarding the interplay between the government’s compelling interest in protecting public health and safety from COVID-19 and parents’ fundamental right to direct the upbringing of their children through education,” says the Justice Department letter, which also notes that daycare centers can operate at 100% of capacity.

The administration of Gov. Michelle Lujan Grisham says public schools have greater oversight requirements that accompany the potentially higher 50% capacity limit, and that daycare centers simply cannot operate remotely by videoconference.

“Private schools have substantially more flexibility under the operative emergency public health order than public schools,” Lujan Grisham spokeswoman Nora Sackett said in an email.

The administration also notes that students in grades seven-12 are not receiving in-person instruction as state education officials take a cautious approach to reopening.

Granting private schools the 50% limit “would immediately allow ... over 25,000 private school students to congregate for hours each day at a possibly unsafe capacity during an ongoing pandemic — leading to possible outbreaks across the state,” state health officials said in court filings.

As of Monday, New Mexico had the lowest average positivity rate for COVID-19 testing in the western U.S. at roughly 2.1%. The state is delaying a return to classrooms entirely in several counties with positivity rates above 5% or high infection rates.

Health officials also questioned whether the 25% limit is what led Albuquerque Academy to defer classroom instruction and said that dismissing the lawsuit “will not deprive (the student) of her ability to virtually attend class with her peers — obtaining the education plaintiffs claim she is being deprived of."

The legal wrangling takes place as President Donald Trump has proposed diverting federal funding away from public schools that decline to open 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.

For most people, the new coronavirus causes mild or moderate symptoms, such as fever and cough that clear up in two to three weeks. For some, especially older adults and people with existing health problems, it can cause more severe illness, including pneumonia and death.