Judge rebuffs bid to ease pandemic-limits at private schools

A federal judge has rejected an initial request to ease pandemic-related occupancy limits for in-person instruction at private schools in New Mexico, in a setback for a complaint supported by the U.S. Justice Department

SANTA FE, N.M. — A federal judge has turned down an initial request to ease pandemic-related occupancy limits for in-person instruction at private schools in New Mexico, in a setback for a lawsuit supported by the U.S. Justice Department.

Plaintiffs say the health order unfairly limits in-person learning at private schools to 25% of maximum room capacity, while public schools can apply to reopen under separate guidelines at 50%. To date, only a portion of elementary school have been cleared to restart in-person instruction.

Johnson rejected a preliminary injunction request and noted that some private schools have managed to reboot in-person instruction by expanding into areas such as gymnasiums and cafeterias, while all 7-12 grade public schools are still cut off from in-person learning.

But he said private school students would have a better argument concerning equal protection rights and likely prevail in court if public 7-12 grade schools proceed with returning to classrooms at 50% occupancy.

“The court has difficulty understanding how (state’s) regulatory plan could survive a scenario whereby private schools remain limited to in-person instruction at 25% capacity while public and charter schools are allowed to move to in-person instruction at 50% capacity,” he wrote.

The U.S. Justice Department filed a statement of interest in support of plaintiff Douglas Peterson and his daughter, a student at Albuquerque Academy.

Private schools in New Mexico enroll about 22,000 students — or nearly 7% of school-aged children.

The administration of Democratic Gov. Michelle Lujan Grisham argued at a court hearing in September that private schools already occupy a privileged position with minimal state oversight.

The lawsuit also denounced as unfair the situation in which childcare facilities can open at 100% capacity, but Judge Johnson said childcare for toddlers doesn’t work online and has to take place in a physical setting.

In rejecting the request for a preliminary injunction, Johnson was skeptical of claims that New Mexico was infringing on rights of association and assembly, noting that the seventh grader in question can meet with classmates online or at another location.