Federal Judge Denies Relief in Challenge to New Mexico School Reopening Rules

By Mark Walsh — October 06, 2020 3 min read

In a case that has drawn the involvement of the Trump administration, a federal judge has denied relief to a New Mexico family challenging the state’s restrictions on reopening schools in the pandemic, holding that such constraints are not infringing on their federal constitutional rights.

“Based on the current record, the court cannot find a fundamental right affected by this case,” U.S. District Judge William P. Johnson of Albuquerque said in an opinion denying a temporary restraining order or preliminary injunction against state restrictions.

The Oct. 2 ruling in Peterson v. Kunkel stems from a case brought by Douglas H. Peterson, who sued on behalf of his daughter, a 7th grader at the private Albuquerque Academy who is identified in court papers as K.P. They challenged state rules that permit public schools (including charter schools) to open for in-person instruction at 50 percent capacity and child-care facilities at 100 percent, while private schools are limited to 25 percent capacity, the same as that for many private businesses.

While at least one private school has been able to open for 25 percent in-person instruction by using available space to spread students out, Albuquerque Academy and other private schools have had to use remote learning, court papers say.

Peterson argues that the disparate treatment of private schools in the state’s reopening plan violates his and his daughter’s rights under the 14th Amendment’s equal-protection clause, including the father’s right to direct the upbringing and education of his child.

The suit last month drew support from President Donald Trump’s administration, evidently the first time the U.S. Department of Justice has weighed in on a school reopening lawsuit.

“There Is no pandemic exception to the Constitution,” the Justice Department says in a friend-of-the-court brief on the parent’s side. “Individual rights set forth in the Constitution are always operative and restrain government action.”

The department argued that while New Mexico’s reopening guidelines “nominally allow private schools to open, the manner in which they differentiate between private and public schools abridges the well-established right for parents to choose a private education for their children.”

Thus, the department argued, the judge should analyze the guidelines under “strict scrutiny,” the highest level of scrutiny of government action, which would make it easier for the parent to win relief.

Judge Johnson, without mentioning the Justice Department brief in his 22-page opinion, implicitly rejected the department’s arguments. The judge said Peterson’s liberty interest in directing the upbringing of his daughter “has not been extinguished” by the state’s 25 percent capacity limitation for private schools, and Peterson’s daughter is “attending and being educated—albeit virtually—at Albuquerque Academy.”

The judge applied rational basis review to the state’s restrictions, which means they can be upheld as long as they are rationally related to a legitimate governmental purpose. He said that private schools in the state are actually being allowed to operate without some of the restrictions imposed on traditional public schools and charter schools.

Johnson also observed that the 50 percent capacity limit for public schools currently applies only to elementary grades, not to middle and high school grades, which must conduct all instruction remotely.

“In essence, plaintiffs are not seeking the standard for public and charter schools [to] be applied equally to K.P. and her private school,” Johnson said. “Instead, plaintiffs seek favorable treatment, a request that runs counter to the equal protection clause.”

The judge said that if the state opened middle and high school grades in public schools at 50 percent capacity and kept a 25 percent limit for private school, then Peterson might be entitled to an injunction.

A version of this news article first appeared in The School Law Blog.

Let us know what you think!

We’re looking for feedback on our new site to make sure we continue to provide you the best experience.


This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Future of Work Webinar
Digital Literacy Strategies to Promote Equity
Our new world has only increased our students’ dependence on technology. This makes digital literacy no longer a “nice to have” but a “need to have.” How do we ensure that every student can navigate
Content provided by
Mathematics Online Summit Teaching Math in a Pandemic
Attend this online summit to ask questions about how COVID-19 has affected achievement, instruction, assessment, and engagement in math.
School & District Management Webinar Examining the Evidence: Catching Kids Up at a Distance
As districts, schools, and families navigate a new normal following the abrupt end of in-person schooling this spring, students’ learning opportunities vary enormously across the nation. Access to devices and broadband internet and a secure

EdWeek Top School Jobs

Special Education Teachers
Lancaster, PA, US
Lancaster Lebanon IU 13
Speech Therapists
Lancaster, PA, US
Lancaster Lebanon IU 13
Elementary Teacher
Madison, Wisconsin
One City Schools
Elementary Teacher - Scholars Academy
Madison, Wisconsin
One City Schools

Read Next

Education Obituary In Memory of Michele Molnar, EdWeek Market Brief Writer and Editor
EdWeek Market Brief Associate Editor Michele Molnar, who was instrumental in launching the publication, succumbed to cancer.
5 min read
Education Briefly Stated Briefly Stated: December 9, 2020
Here's a look at some recent Education Week articles you may have missed.
8 min read
Education Briefly Stated Briefly Stated: Stories You May Have Missed
A collection of articles from the previous week that you may have missed.
8 min read
Education Briefly Stated Briefly Stated: Stories You May Have Missed
A collection of stories from the previous week that you may have missed.
8 min read