Judge Blocks Bid To Get More Kids Back to In-Person Learning in Private Schools


A federal judge has turned down a request to ease pandemic-related occupancy limits for in-person instruction at private schools in New Mexico.

In a Friday order, U.S. District Court Judge William Johnson cast doubt on the complaint from the father of a seventh grade prep school student in Albuquerque who has only received online instruction during the pandemic due to provisions of a statewide coronavirus mandate.

Plaintiffs say the order unfairly limits in-person learning at private schools to 25 percent of maximum room capacity, while public schools can apply to reopen under separate guidelines at 50 percent. To date, only a portion of elementary schools 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 7th-12th 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 7th-12th grade schools proceed with returning to classrooms at 50 percent occupancy.

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“The court has difficulty understanding how [New Mexico’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.

President Donald Trump and his education secretary have threatened to divert federal funding from public schools that refuse to reopen and toward parents who wish to home school their children or send them to private schools.

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

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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.

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

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