December 16, 2020

Yazzie-Martinez plaintiffs want court to order state to address remote learning issues

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All schools in New Mexico will remain closed through the remainder of the academic year.

The plaintiffs in a lawsuit over educational resources in New Mexico filed a request with the First Judicial District Court on Wednesday to order the state to provide computers and high-speed internet access to thousands of at risk students who lack tools for remote learning during the COVID-19 pandemic.

An estimated 23 percent of the New Mexico population lacks broadband internet service, according to the New Mexico Center on Law and Poverty (NMCLP). The nonprofit, which is providing legal counsel to the plaintiffs of the Yazzie-Martinez lawsuit, estimated that 80 percent of Native Americans living on tribal lands do not have internet services at all.

Florena Valencia, of the San Felipe Pueblo, and her three daughters are one Native American family who lack internet at home. Valencia sat with her three daughters in her hot car in the warmer months while her children tried to learn remotely, she said.

Valencia had to drive to a hotspot to enable her daughters to have an internet connection.

“It’s very, very challenging,” she said in an unreleased video created by NMCLP provided to NM Political Report.

Native American children living in rural areas of the state have particularly been impacted by the lack of both broadband as well as the lack of a device during remote learning in the pandemic, according Alisa Diehl, senior attorney with the NMCLP.

“They are effectively being denied access to a public education,” Diehl told NM Political Report

“The pandemic has laid bare existing inequities that already existed, particularly for Native American students. This is in direct violation of the state constitution. The state was told to remedy this issue (by the court). Now the state has to be accountable to students and families. They have to provide high speed access and technology, especially to Native American students who lack tools for education right now.”

New Mexico Public Education Secretary Ryan Stewart issued a statement Tuesday in response to the plaintiff’s filing, stating, in part, that the state has expanded internet access and the quality of the access across the state.

“While it is the policy of the Public Education Department not to discuss pending litigation outside the courtroom, I would like to acknowledge the hard work being done by districts and charter schools, internet service providers, non-profit partners like the Information Technology Disaster Resource Center, collective action by the New Mexico Homework Gap Team and the Public Education Department to bridge New Mexico’s digital divide. The problem of internet access, so critical for education during this pandemic, is not new to New Mexico,” he said through the statement.

Stewart said that the state and its private partners have put “thousands” of digital devices into the hands of students who need them.

But, according to a legislative report issued this fall, one in every 5 students at New Mexico public schools lives in a household without internet. About 8 percent lack computers at home statewide. The report said teachers are having a tough time reaching 20 percent of their students and teachers also report that a third of their students are not engaging in their classwork.

The court ruled in favor of the Yazzie-Martinez plaintiffs in 2018, agreeing that the state had failed to provide a uniform and sufficient education to all of its students, as required under the state’s constitution. The state took steps to address the issues raised by the lawsuit in 2019, but in 2020, the state asked the court to dismiss the case. The court denied the state’s request.

Related: Judge denies PED motion to dismiss Yazzie/Martinez suit

What would it take?

Diehl called the need “critical” and said there are Native American families who suffered through sitting in a hot car trying to take part in distance learning in the warmer months and now have to sit in a car when it’s cold.

“Or students can’t access material that way because they live too far. We’ve painted a very pretty picture of some sitting at home at a desk learning center, but many others are not. Students impacted the most are Native American and something must be done. It’s critical,” she said.

But Stewart, in his statement, said this problem “will not be resolved entirely in one year.”

Tyler Cooper, editor-in-chief of BroadbandNow, a policy analyst group that works on rural broadband issues, said the problems of rural broadband are multi-faceted, and that it’s a problem that is national in scope. 

But, he said, “the pandemic has shined a new light on this issue.”

Cooper said that, according to the Federal Communications Commission, more than 21 million Americans lack internet access. Cooper said that in BroadbandNow’s estimation, that number could be closer to 42 million.

He said that some of the issues pertain to the cost of access. According to BroadbandNow’s data, only 12.5 percent of the state’s residents have access to an Internet plan that costs $60 or less a month.

New Mexico ranks 49th in the nation for state broadband access, according to BroadbandNow’s data.

Cooper said building the infrastructure is another issue for the state to grapple with. Because broadband internet is privately managed, private companies lack incentive to spend the necessary up-front costs to bring fiber to rural areas where the population density is low.

He said connecting a home to fiber cables for broadband can cost up to $8,000 per household, and that is just to connect the home to the larger infrastructure. He said this could be addressed with private-public partnerships and if the state incentivizes private companies to cross the rural divide.

Residents need to be able to access over broadband that is over 100 megabits per second to utilize many social media applications that have become popular since the pandemic began. Currently only 2.5 percent of McKinley County residents, home to part of the Navajo Nation, have access to internet at this speed, according to BroadbandNow’s data.

New Mexico’s topography adds to the challenge because of the expense and difficulties of deploying infrastructure. Fiber optics have to either be dug into the ground or they are run over telephone poles.

But, there is hope, Cooper said.

He said the FCC just wrapped up offering $20.4 billion, the largest rural digital opportunity fund the FCC has ever offered, allowing private and public providers to bid on providing broadband to areas that currently lack it.

He said Space X, run by Elon Musk, was one of the biggest recipients of that federal money. Space X has been launching low earth orbit satellites over the past year. The low earth orbit satellites have the ability to provide internet connection and increased capability.

Even so, closing the gap on the digital divide will take some time, he said.

“It’ll be several years before we see something comprehensive happen,” he said.

That may not be soon enough for the Yazzie-Martinez plaintiffs. 

“This state has to assess the situation and provide a meaningful remedy in our motion,” Diehl said.