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Lawsuit targets delayed return of in-person classes


In this file photo, Evelyn Sunderland works on school assignments remotely. A new lawsuit aims to force New Mexico to open more schools for in-person classes. (Roberto E. Rosales/Albuquerque Journal)

Copyright © 2020 Albuquerque Journal

SANTA FE – Republican state Rep. David Gallegos and others filed a federal lawsuit this week challenging New Mexico’s refusal to authorize the reopening of schools in every county in the state, arguing it violates the constitutional right of students to an equal education.

The lawsuit comes as Democratic Gov. Michelle Lujan Grisham’s administration delays the return of in-person classes for students in some districts because their home counties exceed statistical thresholds on the spread and prevalence of COVID-19.

Many of the affected districts are in the southeast quadrant of the state – a region with three times as many new virus cases per person as New Mexico overall, according to a recent report issued by the state Department of Health.

The new lawsuit, filed on Wednesday by Albuquerque attorney Blair Dunn, accuses Lujan Grisham and two of her Cabinet secretaries of illegally denying a free, appropriate education to children in southeastern and southern New Mexico.

The plaintiffs include Gallegos, a legislator and member of the Eunice school board; Clarissa and Robert Hernandez, parents of four school-aged children in Lea County; and Shannon Woodworth, parent of a daughter with special needs.

The lawsuit was filed as a class action on behalf of educators and families with school-age children in 10 counties. It argues that the delay of in-person instruction will “deprive them of critical if not life-saving socialization, increase the exposure of those children to physical, emotional and sexual abuse, and will cause extreme damage to children with special needs.”

The plaintiffs accuse the state of violating the New Mexico and U.S. constitutions.

Health and education officials under Lujan Grisham say their cautious approach to schools is warranted by the deadly, contagious nature of COVID-19. They have argued repeatedly that one of the keys to successfully reopening schools is how prevalent the disease is in the broader community.

In a news conference Thursday, Lujan Grisham said New Mexico wants to avoid the possibility of reopening schools too quickly only to have to shut them down again – inconsistency that could harm children and their families.

Part of the criteria for allowing districts to bring back students for some in-person classes is whether the schools’ home county has fewer than eight new virus cases a day per 100,000 population and a test-positivity rate under 5%. There are other requirements, too, such as approval of specific re-entry plans for each district.

Lujan Grisham spokeswoman Nora Meyers Sackett said the goal is to provide a safe environment for students and teachers.

“The administration’s approach to reopening schools is predicated on the core principle that students deserve and must have the best possible education, as always, while ensuring that occurs in an environment where their safety – and the safety of educators, parents and families – is protected to the greatest extent possible,” Sackett said in a written statement. “The pandemic is a risk to the health and safety of students, their fam​ilies and school communities. That risk is greater where the spread and incidence of COVID-19 is greater.”

Most of the state’s 33 counties meet the numerical targets on disease prevalence and positivity rates. But many of the counties that exceed both thresholds are in southeastern New Mexico, a Republican stronghold where protesters, often without masks, have opposed the state’s public health orders.

The state on Thursday listed just seven counties that failed to meet both standards – Lea, Eddy, Chaves, Roosevelt, Quay, Luna and Catron counties.

Districts without approval for in-person classes are generally limited to remote learning, with some exceptions for students with special needs and activities in small groups. Schools with approval to return are allowed to use a hybrid model for elementary students who rotate between in-person and online classes.

The state Public Education Department has reported 118 coronavirus cases in school populations since Aug. 17.

The governor’s administration has repeatedly defeated court challenges to the state’s health orders this year. Just last month, the state Supreme Court uphold the governor’s authority to prohibit indoor dining at restaurants.

The governor recently eased the restriction to allow indoor seating at 25% capacity.

The 16-page education lawsuit was filed in U.S. District Court in New Mexico.

Dunn said a hearing on the case is set for Sept. 30.

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