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Editorial: Lawsuit shows disparity in public, private school rules

Fair’s fair. Except when it’s not.

A lawsuit filed by the father of an Albuquerque Academy student makes that point when it comes to the disparate treatment of public and private schools under the current administration.

Under the emergency public health orders issued by New Mexico Health Secretary Kathy Kunkel, public schools can operate at 50% capacity in a hybrid learning format – even though big districts like Albuquerque Public Schools and Santa Fe have chosen to keep classrooms closed for in-person learning in favor of virtual.

In fact, the APS board has already voted to keep virtual lessons for its 80,000 students through the end of the calendar year – although it has left the door open for reconsideration.

At the same time, private schools that are far more inclined to get kids back into the classroom are limited to 25% capacity.

Douglas Peterson, the father of a seventh-grade student at Albuquerque Academy, argues in a lawsuit filed in U.S. District Court last week that the different standards are not only unfair but a violation of civil rights because they arbitrarily restrict students at private schools from getting the same level of in-person education as their public school counterparts.

Albuquerque Academy is operating online-only right now, but spokeswoman Becky Richards said it could bring back 100% of its student body if it were allowed to operate at 50% capacity with social distancing protocols.

Governor’s spokeswoman Nora Meyers Sackett says the different treatment is justified because the state has oversight of public schools and can make sure health and safety precautions are in place. “The Public Education Department does not have similar oversight of private schools to ensure students’ safety there.”

Let’s hold for another time any debate on the general competence of PED oversight. And put aside for a moment the fact Peterson’s lawsuit says the Academy is prepared to meet or exceed all safety guidelines put forward in PED’s re-entry plan.

The state also has mechanisms in both the Department of Health and Environment Department to enforce safety measures from both public health and workplace standpoints. Surely that’s sufficient to also cover private schools.

As more parents seek ways to get their kids back into real school – a recent survey in Rio Rancho found 80% of parents were OK with return to classrooms – those who can, should have the opportunity to do so if public schools leave a void. Rio Rancho, to its credit, plans a return to hybrid learning in grades K-5 next week.

The lawsuit also points out the American Academy of Pediatrics and Centers for Disease Control states children are at risk from NOT being in school.

This isn’t just about Peterson and Albuquerque Academy. His lawsuit says that as of 2015 there were approximately 170 nonpublic schools in New Mexico serving more than 22,000 students. “There is no substantial state interest served by penalizing private school children’s educational opportunities compared to the opportunities afforded to children enrolled in public school or childcare facilities,” his suit argues.

The courts have given huge deference to the governor and her emergency health orders. But as we have more experience with COVID-19, they should take a harder look and actually make the state justify what on their face seem to be arbitrary limits.

We are now at 25% of capacity at retail businesses and indoor dining, 40% at places of worship, up to 75% at hotels, 50% at public schools and 25% for private schools. Meanwhile, childcare facilities can operate at 100% if “COVID-safe” practices are followed. Considering the various limits and especially the stark contrast between public and private schools given their similar missions, it’s fair to ask if various limits make sense. If truly based on science, show us the data.

The current health order penalizes thousands of students in private schools who deserve a fair shake. If the courts decide they don’t deserve one, there should be a compelling reason.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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