The Justice Department filed a statement of interest this week supporting a lawsuit challenging New Mexico’s different capacity limits for in-person classes at private and public schools, with private schools facing more stringent reopening restrictions.
In a brief filed in the U.S. District Court in Albuquerque, the DOJ said that New Mexico’s coronavirus restrictions limiting private schools to operating at 25 percent capacity while allowing public schools to operate at 50 percent capacity violate the Constitution’s Equal Protection Clause. The brief also cited the state’s rules for daycare facilities, which are allowed to operate at 100 percent capacity.
“Parents have a fundamental right under the United States Constitution, without interference from the government, to select the school for their children of their choice, whether a public school, a parochial school, or a non-religious private school,” said Assistant Attorney General Eric Dreiband of the DOJ’s Civil Rights Division, adding that New Mexico’s coronavirus response “infringed that right by adopting one rule for public schools and another for private schools, resulting in private schools remaining closed for in-person instruction, without justification.”
“There is no pandemic exception to the Constitution and New Mexico’s differential standards for private and public schools cannot stand,” Dreiband said.
John Anderson, U.S. Attorney for the District of New Mexico, who filed the DOJ brief, added that coronavirus 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.”
Douglas Peterson, whose seventh-grade daughter attends Albuquerque Academy, filed the federal lawsuit claiming his family’s civil rights were violated earlier this month after the private school concluded it could not open for in-person classes within the 25 percent capacity limit, although it would be able to serve all of its students within a 50 percent capacity limit.
The discrepancy in Governor Michelle Lujan Grisham’s public health order is because the state considers private schools to operate similarly to retail businesses, Public Education Secretary Ryan Stewart said. He also cited a greater ability to provide government oversight of public schools.
“There’s always been oversight difference between the public and the private schools with the private schools falling more into that bucket similar to some of the other businesses,” Stewart said.
Public schools in New Mexico are so far only holding in-person classes for elementary school students, a fact cited by Nora Meyers-Sackett, a spokeswoman for the governor’s office.
“No seventh-grader in the state is attending in-person classes at a public school,” she told NM Political Report. “It’s difficult to reason how an argument about prejudice withstands that fundamental reality.”