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

By Mark Walsh — October 06, 2020 3 min read
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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.