Justice Department Backs Challenge to New Mexico’s Pandemic Restriction for Private Schools

September 22, 2020 Updated: September 22, 2020

The U.S. Department of Justice on Monday weighed in on a lawsuit that challenges New Mexico’s public health order concerning classroom capacity, which is deemed to be stricter for private schools than for public schools.

In a statement of interest (pdf), U.S. Attorney John Anderson says that the state has violated the equal protection clause of the Fourteenth Amendment by allowing public schools to operate at 50 percent of capacity, while limiting private schools to 25 percent of capacity for in-person classes.

This differential treatment, according to the statement, has puts private education in New Mexico “at a direct and substantial disadvantage” in terms of the ability to offer meaningful instruction and a healthy social environment for students. It also infringes parents’ educational choices for their children, which is a fundamental constitutional right.

“I respect Governor Lujan Grisham’s good faith efforts to manage the COVID-19 pandemic and protect the health of New Mexicans,” said Anderson in a press release. “But COVID-related restrictions must be applied and implemented equally and impartially, and that simply did not happen here. There is no good reason to penalize students just because they choose to attend a private school.”

The initial lawsuit was brought by Douglas Peterson, whose daughter attends seventh grade Albuquerque Academy, which decided not to open, but instead to rely on remote learning in response to the state’s public health order. Peterson, who wants his daughter to be able to learn in person in the same way that public school students do throughout the state, argues in the lawsuit that the Academy could have offered in-person learning if private schools had the same 50 capacity limit as public schools.

Peterson filed the lawsuit against New Mexico’s health department as well as Gov. Michelle Lujan Grisham earlier this month, alleging that it is unconstitutional for the state to use one rule for public schools and another for private ones.

The governor’s office defends the public health order, saying that private schools already have more flexibility than public schools. It also questions whether Peterson’s seventh-grader is treated unfairly, noting that very few public school students in grades 7–12 are returning to classrooms, because state education officials are taking a very cautious approach to reopening.

“Private schools also have substantially more flexibility under the operative emergency public health order than public schools,” spokeswoman Nora Meyers-Sackett said in a statement. “The 25 percent maximum occupancy limit incorporates all grade levels; public schools that have PED-approved re-entry plans may only return to limited in-person learning for K–5 instruction at this time.”

“No seventh grader in the state is attending in-person classes at a public school,” she said. “It’s difficult to reason how an argument about prejudice withstands that fundamental reality.”