September 22, 2020

DOJ backs suit challenging COVID-19 rules for private schools

Joe Gratz


The U.S. Department of Justice weighed in on a lawsuit alleging that the state’s COVID-19 rules on private schools, including religious schools, during COVID-19 are unconstitutional ahead of a hearing on a temporary restraining order and preliminary injunction scheduled for Wednesday.

U.S. Attorney John Anderson filed a brief agreeing with plaintiffs that the state’s rules violate the U.S. Constitution.

“The United States also has a strong interest, especially in the midst of the COVID-19 pandemic, in ensuring the development and maintenance of the best possible public health strategies to combat the virus and protect the people of the United States from harm,” the brief filed in federal court said. “But that interest must be balanced with constitutional liberties.”

The brief contrasts the rules that say private schools are limited to 25 percent of capacity for in-person instruction to those that allow daycare facilities to operate at 100 percent capacity and elementary schools to operate at 50 percent capacity—as part of a hybrid model which includes online instruction—with COVID-safe precautions, and says this is unfair to families enrolled in private schools.

A spokeswoman for the governor’s office said that private schools actually have more flexibility than public schools.

“Private schools also have substantially more flexibility under the operative emergency public health order than public schools,” Nora Meyers-Sackett said in a statement to NM Political Report. “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.”

DOJ said the state has not explained why private schools are treated differently in COVID-19 restrictions.

Meyers-Sackett echoed what Gov. Michelle Lujan Grisham said in a press conference earlier this month, that the state does not have the same jurisdiction over private schools as it does over public school districts and charter schools. 

Meyers-Sackett said that private schools are governed by the rules applied to businesses and non-profits in the state.

Douglas Peterson, who has a seventh-grade daughter who attends Albuquerque Academy, filed the suit in federal court earlier this month.

Public middle schools are still not open to in-person instruction.

In a footnote, DOJ acknowledged that only kindergarten through sixth grades students are currently able to operate at 50 percent capacity.

“There is no evidence in the record, however, that the standards are not operational, or will not be operational imminently,” the brief said. “While the arguments set forth by the United States below that Defendants have engaged in discrimination in violation of the Equal Protection Clause apply equally to the K to 6 context and the 7 to 12 context, the United States recognizes that the Plaintiffs in this case, a seventh-grade student and her father, only have standing to challenge the injury to themselves.”

Meyers-Sackett also cited this in her statement.

“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.”

The state has prevailed in many court cases regarding COVID-19 restrictions, including in federal court.

In July, a federal district court judge dismissed a lawsuit filed by Legacy Church over restrictions that said places of worship could only operate at 20 percent of capacity for in-person, indoor services. 

The state has since expanded this to 40 percent.