Judge rebuffs bid to ease pandemic limits at private schools

Public elementary school teachers Julia and Seth Hooper pick up their children Emry, 7, and Ivy, 4, on Monday, Aug. 10, at the Western Heights Learning Center in Albuquerque, New Mexico. The Hoopers said Emry will attend a private school at the center this fall because public schools won't be in person. Emry struggled with online learning in the spring and his parents were unable to help him while simultaneously teaching other online classes. (AP Photo/Cedar Attanasio) (Cedar Attanasio, Copyright 2020 The Associated Press. All rights reserved)

SANTA FE, N.M. – A federal judge has turned down an initial request to ease pandemic-related occupancy limits for in-person instruction at private schools in New Mexico, in a setback for a lawsuit supported by the U.S. Justice Department.

In a Friday order, U.S. District Court Judge William Johnson cast doubt on the complaint from the father of a seventh grade prep school student in Albuquerque who has only engaged in online learning during the pandemic due to provisions of a statewide public health order.

Plaintiffs say the health order unfairly limits in-person learning at private schools to 25% of maximum room capacity, while public schools can apply to reopen under separate guidelines at 50%. To date, only a portion of elementary schools have been cleared to restart in-person instruction.

Johnson rejected a preliminary injunction request and noted that some private schools have managed to reboot in-person instruction by expanding into areas such as gymnasiums and cafeterias, while all 7-12 grade public schools are still cut off from in-person learning.

But he said private school students would have a better argument concerning equal protection rights and likely prevail in court if public 7-12 grade schools proceed with returning to classrooms at 50% occupancy.

“The court has difficulty understanding how (state's) regulatory plan could survive a scenario whereby private schools remain limited to in-person instruction at 25% capacity while public and charter schools are allowed to move to in-person instruction at 50% capacity,” he wrote.

The U.S. Justice Department filed a statement of interest in support of plaintiff Douglas Peterson and his daughter, a student at Albuquerque Academy.

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.

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

The administration of Democratic Gov. Michelle Lujan Grisham argued at a court hearing in September that private schools already occupy a privileged position with minimal state oversight.

The lawsuit also denounced as unfair the situation in which childcare facilities can open at 100% capacity, but Judge Johnson said childcare for toddlers doesn't work online and has to take place in a physical setting.

In rejecting the request for a preliminary injunction, Johnson was skeptical of claims that New Mexico was infringing on rights of association and assembly, noting that the seventh grader in question can meet with classmates online or at another location.