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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.