Department of Justice Files Statement of Interest Challenging New Mexico’s More Stringent COVID-19 Capacity Limits on Private Schools than Public Schools

The Department of Justice today filed a statement of interest in a New Mexico federal court asserting that the States’ COVID-19 rules limiting private schools to operating at 25% of capacity but allowing public schools to operate at 50% of capacity violate the Equal Protection Clause of the United States Constitution. The brief, filed in the U.S. District Court in Albuquerque, explains that the Supreme Court has recognized parents’ educational choices for their children as a fundamental right under the Constitution, and that New Mexico has no grounds for abridging that right in adopting stricter rules for private schools than for public schools.

“Parents have a fundamental right under the United States Constitution, without interference from the government, to select the school for their children of their choice, whether a public school, a parochial school, or a non-religious private school,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “New Mexico’s response to COVID-19 has infringed that right by adopting one rule for public schools and another for private schools, resulting in private schools remaining closed for in-person instruction, without justification. There is no pandemic exception to the Constitution and New Mexico’s differential standards for private and public schools cannot stand.”

“I respect Governor Lujan Grisham’s good faith efforts to manage the COVID-19 pandemic and protect the health of New Mexicans,” said John Anderson, U.S. Attorney for the District of New Mexico. “But COVID-related restrictions must be applied and implemented equally and impartially, and that simply did not happen here. There is no good reason to penalize students just because they choose to attend a private school.”

In response to the COVID-19 pandemic, New Mexico has issued various orders imposing limitations on a range of activities to reduce disease transmission. Public schools are permitted to operate at 50% of capacity, and day care centers can operate at 100% of capacity with social distancing and hygiene measures in place. Private schools, however, are limited to 25% capacity, regardless of social distancing and hygiene measures adopted.

Douglas Peterson, who sends his daughter to Albuquerque Academy, a private school, filed a federal lawsuit against state officials on his and his daughter’s behalf after the school determined that it could not open for live instruction of its students with the 25% capacity limit, although it could accommodate all of its currently enrolled students if allowed to operate at 50% capacity. On Sep. 11, 2020, they moved for an injunction mandating equal treatment.

The United States’ brief explains that nearly 100 years ago, the Supreme Court held that parents’ decision whether to send their children to public or private school is part of parents’ fundamental right to direct the upbringing of their children. As such, under the Equal Protection Clause, the government has the burden to show that any differential treatment that abridges that right, even in part, must be supported by a compelling government interest, pursued through the means that are no more restrictive on that right than necessary. New Mexico has not done so here, the brief argues.

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    GAO identified nine categories of contracting fraud schemes that occurred at the Department of Energy (DOE), including billing schemes, conflicts of interest, and payroll schemes. For example, a subcontractor employee at a site created fraudulent invoices for goods never received, resulting in a loss of over $6 million. In another scheme, a contractor engaged in years of widespread time card fraud, submitting inflated claims for compensation. The contractor agreed to pay $18.5 million to settle the case. DOE reported that it identified nearly $15 million in improper payments due to confirmed fraud in fiscal year 2019. However, due to the difficulty in detecting fraud, agencies—including DOE—incur financial losses related to fraud that are never identified or are settled without admission to fraud and are not counted as such. Fraud can also have nonfinancial impacts, such as fraudsters obtaining a competitive advantage and preventing legitimate businesses from obtaining contracts. DOE has taken some steps and is planning others to demonstrate a commitment to combat fraud and assess its contracting fraud risks, consistent with the leading practices in GAO's Fraud Risk Framework. However, GAO found that DOE has not assessed the full range of contracting fraud risks it faces. Specifically, GAO found DOE's methods for gathering information about its fraud risks captures selected fraud risks—rather than all fraud risks—facing DOE programs. As shown in the figure, DOE's risk profiles for fiscal years 2018 and 2019 did not capture four of nine fraud schemes that occurred at DOE. For example, one entity did not include any fraud risks in its risk profiles, yet GAO identified six types of fraud schemes that occurred at the entity's site. DOE plans to expand its risk assessment process, but officials expect the new process will continue to rely on a methodology that gathers information on selected fraud risks. The Fraud Risk Framework states that entities identify specific tools, methods, and sources for gathering information about fraud risks. Without expanding its methodology to capture, assess, and document all fraud risks facing its programs, DOE risks remaining vulnerable to these types of fraud. Fraud Risks Identified in Fiscal Years 2018 and 2019 Risk Profiles Compared with Types of Fraud Schemes That Have Occurred at DOE DOE is planning to develop an antifraud strategy in fiscal year 2022 and has taken some steps to evaluate and adapt to fraud risks, consistent with leading practices in GAO's Fraud Risk Framework. Part of DOE's effort to manage fraud risks includes adapting controls to address emerging fraud risks. Additionally, DOE is planning to expand its use of data analytics to detect contracting fraud, beginning in fiscal year 2022. DOE relies primarily on contractors to carry out its missions at its laboratories and other facilities, spending approximately 80 percent of its total obligations on contracts. GAO and DOE's Inspector General have reported on incidents of fraud by DOE contractors and identified multiple contracting fraud risks. GAO was asked to examine DOE's processes to manage contracting fraud risks. This report examines, for DOE, (1) types of contracting fraud schemes and their financial and nonfinancial impacts, (2) steps taken to commit to combating contracting fraud risks and the extent to which these risks have been assessed, and (3) steps taken to design and implement an antifraud strategy and to evaluate and adapt its approach. GAO reviewed relevant laws and guidance; reviewed agency media releases, Agency Financial Reports, and DOE Inspector General reports to Congress from 2013 through 2019; and reviewed documents and interviewed officials from 42 DOE field and site offices, contractors, and subcontractors, representing a range of sites and programs. GAO is making two recommendations, including for DOE to expand its fraud risk assessment methodology to ensure all fraud risks facing DOE programs are fully assessed and documented in accordance with leading practices. DOE concurred with GAO's recommendations. For more information, contact Rebecca Shea at (202) 512-6722 shear@gao.gov or Allison B. Bawden at (202) 512-3841, bawdena@gao.gov.
    [Read More…]
  • Hospital Pharmacist Sentenced for Attempt to Spoil Hundreds of COVID Vaccine Doses
    In Crime News
    A Wisconsin man was sentenced today to three years in prison for tampering with COVID-19 vaccine doses at the hospital where he worked.
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  • Imposing Sanctions in Defense of Human Rights in Syria
    In Crime Control and Security News
    Antony J. Blinken, [Read More…]
  • Secretary Blinken’s Call with Israeli Foreign Minister Ashkenazi
    In Crime Control and Security News
    Office of the [Read More…]
  • Justice Department Brings Enforcement Action Against Centurylink
    In Crime News
    The Department of Justice announced today that CenturyLink, Inc. has agreed to settle allegations that CenturyLink violated the court-ordered Final Judgment designed to prevent anticompetitive effects arising from its acquisition of Level 3 Communications, Inc. 
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  • New Bankruptcy Filings Plummet 38.1 Percent
    In U.S Courts
    Bankruptcy filings dropped 38.1 percent for the 12-month period ending March 31, 2021, a dramatic fall that coincided with the coronavirus (COVID-19), which first disrupted the economy in March 2020. 
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  • Former Owner of Michigan Home Healthcare Business Pleads Guilty to Tax Fraud
    In Crime News
    A Michigan man pleaded guilty today to filing a false individual income tax return.
    [Read More…]
  • Bosnia and Herzegovina National Statehood Day
    In Crime Control and Security News
    Michael R. Pompeo, [Read More…]
  • Imperial Pacific International and MCC International Saipan Executives Indicted on Federal Charges
    In Crime News
    Three executives from Imperial Pacific International (IPI) and MCC International Saipan have been indicted on federal criminal charges, including Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy, harboring illegal aliens, unlawful employment of aliens, and international promotional money laundering announced Acting Assistant Attorney General Brian C. Rabbitt of the Justice Department’s Criminal Division and U.S. Attorney Shawn N. Anderson for the Districts of Guam and the Northern Mariana Islands.
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  • Joint Statement on the Occasion of a Trilateral Discussion among Afghanistan, Tajikistan and the United States
    In Crime Control and Security News
    Office of the [Read More…]
  • Shooter pleads guilty
    In Justice News
    A 20-year-old [Read More…]
  • Operation Legend: Case of the Day
    In Crime News
    An Indiana man has been charged with a federal firearm offense for allegedly illegally selling dozens of handguns and assault rifles in the Chicago area.
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  • Terrorist Designation of Abd al-Aziz Malluh Mirjirash al-Muhammadawi
    In Crime Control and Security News
    Office of the [Read More…]
  • Secretary Blinken’s Call with Qatari Foreign Minister Mohammed bin Abdulrahman Al-Thani
    In Crime Control and Security News
    Office of the [Read More…]
  • Justice Department Sues Florida Man for Flagrant Violations of the Rivers and Harbors Act
    In Crime News
    The Justice Department’s Environment and Natural Resources Division (ENRD) announced that the United States has filed a civil lawsuit in the Southern District of Florida against Fane Lozman for violations of the Rivers and Harbors Act (RHA) in connection with Mr. Lozman’s obstruction of Lake Worth Lagoon, a navigable waterway, in Riviera Beach, Florida.
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  • Oil Trader Indicted in International Bribery and Money Laundering Conspiracy Involving Corrupt Payments to Ecuadorian Officials
    In Crime News
    A federal grand jury in [Read More…]
  • U.S. Marshals Operation Results in Recovery of 27 Missing Children in Virginia
    In Crime News
    The Justice Department [Read More…]
  • Wisconsin Pain Management Companies To Settle False Claims Act Allegations
    In Crime News
    The Department of Justice announced today that Advanced Pain Management Holdings Inc. (APMH), its wholly-owned subsidiaries,  APM Wisconsin MSO (“APM MSO”) and Advanced Pain Management LLC (APM LLC); and Advanced Pain Management S.C. (APMSC) (collectively the “APM Entities”) have agreed to pay $885,452 to settle claims that they violated the False Claims Act by paying kickbacks and by performing medically unnecessary laboratory tests.  The APM Entities are headquartered in the Milwaukee, Wisconsin area. 
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  • California Man Arrested for $3.6 Million PPP and EIDL Loan Fraud
    In Crime News
    A California man was arrested Thursday on criminal charges related to his alleged scheming to submit fraudulent loan applications seeking millions of dollars in Paycheck Protection Program (PPP) and Economic Injury Disaster Loan (EIDL) COVID-19 relief funds.
    [Read More…]