Growing number of critics oppose New Mexico's school, business restrictions

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New Mexico government maintains children do not have a fundamental right to in-person education.

In a hearing last week before U.S. District Judge William Johnson, Matthew Garcia, chief general counsel to Gov. Michelle Lujan Grisham, made the state’s position on education clear.

“There is no fundamental right to in-person education,” he argued according to a report published by the Associated Press.

Garcia also maintained that numerous courts have upheld broad authority of state health officials to impose emergency health restrictions during a health emergency.

But critics ask what kind of public health crisis exists when the coronavirus death rate in New Mexico is 0.04 percent.

According to the New Mexico Department of Health COVID-19 tracker’s latest reported data, there have been 905,329 coronavirus tests conducted. Of them, 29,435 have tested positive. Of these, 16,301 have recovered and 877 have died from or with the virus.

The number of people who have tested positive as a percentage of the state’s roughly 2 million people is 1.4 percent; the number who have died is 0.04 percent.

Still, the state remains locked down, with the state reporting new case numbers without also reporting recovery or other data, critics note.

Republican state Rep. David Gallegos and others filed a federal lawsuit challenging New Mexico’s refusal to authorize the reopening of schools in every county, arguing the governor’s executive orders violate the state constitution and the U.S. Constitution.

Albuquerque attorney Blair Dunn filed a class action lawsuit on behalf of educators and families from 10 counties. They argue the state’s delay of in-person instruction will “deprive them of critical if not life-saving socialization, increase the exposure of those children to physical, emotional and sexual abuse, and will cause extreme damage to children with special needs.”

They also maintain that Grisham and two of her Cabinet secretaries “are illegally denying a free, appropriate education to children in southeastern and southern New Mexico.”

Last month, Dunn also filed lawsuits in district courts throughout the state on behalf of nine businesses asking for financial reparations from the state as a direct result of the state forcing them to close. The state and governor have also been sued by the president of the New Mexico Tea Party, the New Mexico Restaurant Association (twice), Eddy County Commissioners, and numerous parents and schools over the governor’s ongoing executive orders keeping the state locked down.

“The relationship between aggressive lockdowns and success in reducing the virus are questionable at best,” Paul Gessing, president of the Rio Grande Foundation, argues in an op-ed published by the Santa Fe New Mexican.

At a Sept. 17 news conference, in response to being asked about when bars, entertainment venues, and other public venues could reopen, Grisham said many of them would not reopen until a vaccine for the coronavirus becomes publicly available. Whether this means New Mexicans would be required to be vaccinated to go to these venues remains an unanswered question.

“Unfortunately, no one knows when a vaccine will be available, but current estimates are that one will be coming by the second or third quarter of 2021,” Gessing adds. “That means that numerous New Mexico businesses, many of which have been shut down since March, may not open until April or even as late as October 2021.

“Most New Mexicans, especially small businesses, cannot hang on that long. And, traditional New Mexico events, from Bataan Death March commemorations to the Gathering of Nations and even the 2021 State Fair and Balloon Fiesta simply cannot be canceled for a second consecutive year.”

The U.S. Department of Justice (DOJ) formally intervened in one education lawsuit last week, arguing the state’s education policy violates the Equal Protection Clause of the U.S. Constitution.

The DOJ filed a brief in the U.S. District Court in Albuquerque, arguing the state’s COVID-19 rule limiting private schools to 25 percent operating capacity and public schools to 50 percent operating capacity violates the Equal Protection Clause.

The U.S. Supreme Court has recognized parents’ educational choices for their children as a fundamental right under the Constitution, the DOJ argues, and “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,” Assistant Attorney General Eric Dreiband for the Civil Rights Division, said.

“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,” Dreiband added. “There is no pandemic exception to the Constitution and New Mexico’s differential standards for private and public schools cannot stand.”

Judge Johnson said he would rule quickly on the plaintiff’s request for a preliminary injunction to ease restrictions, although he did not mention a timeframe for when this might occur.

Parents, schools and business owners are waiting on other judges to decide on whether the state shutdown will continue, related to their specific complaints, and for how long and in what capacity.

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