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Justice Department sees bias in limits on private schools

SANTA FE – The U.S. Justice Department sided Monday with the father of a 7th grade prep school student in a lawsuit that challenges pandemic-related limits on classroom capacity at private schools in New Mexico as more restrictive than public school guidelines.

U.S. Attorney John Anderson filed a statement of interest that argues the state is violating the equal protection clause of the U.S. Constitution by limiting attendance at private schools to 25% of building capacity under a public health order.

The limit is set at 50% for public schools under guidance from the Public Education Department, though only select groups of elementary school and disabled students have returned to classrooms.

“COVID-related restrictions must be applied and implemented equally and impartially, and that simply did not happen here,” Anderson said.

The support letter also was signed by Justice Department attorney Eric Drieband of the civil rights division.

The initial lawsuit was filed earlier this month by Douglas Peterson, the father of a student at Albuquerque Academy, after the school opted for online instruction in response to the state’s public health order. The lawsuit asserts that the school could have gone to classroom instruction if it had the same 50% capacity limit as public schools. Peterson is seeking a restraining order and preliminary injunction to lift the 25% capacity limit.

“This case raises issues of national public importance regarding the interplay between the government’s compelling interest in protecting public health and safety from COVID-19 and parents’ fundamental right to direct the upbringing of their children through education,” says the Justice Department letter, which also notes that day care centers can operate at 100% of capacity.

Gov. Michelle Lujan Grisham’s administration says public schools have greater oversight requirements that accompany the potentially higher 50% capacity limit, and that day care centers simply cannot operate remotely by video conference.

The administration also notes that nearly all public school students in grades 7-12 are not receiving in-person instruction as state education officials take a cautious approach to reopening.

Granting private schools the 50% limit “would immediately allow … over 25,000 private school students to congregate for hours each day at a possibly unsafe capacity during an ongoing pandemic – leading to possible outbreaks across the state,” state health officials said in court filings.

As of Monday, New Mexico had the lowest average positivity rate for COVID-19 testing in the western U.S. at roughly 2.1%. The state is delaying a return to classrooms entirely in several counties with positivity rates above 5% or high infection rates.