In a 167 page opinion released Wednesday afternoon, U.S. District Court Judge James Browning gave a partial victory to those seeking to allow children back in the classroom for in-person learning via a temporary restraining order against the state.
A class action lawsuit filed by attorney A. Blair Dunn, on Sept. 21, with a hearing on Sept. 30, argued Gov. Michelle Lujan Grisham, Secretary Kathyleen Kunkel of the N.M. Department of Health, and Secretary Ryan Stewart of the Public Education Department unfairly targeted students in some parts of the state and denied them access to a free appropriate public education. The class action was entered with three different plaintiff classes — those being parents of regular students, parents of special needs students defined under the Individuals with Disabilities Education Act, and educators.
Browning found a TRO against the state is appropriate for IDEA students, but neither of the other classes, because it, “is likely to succeed in demonstrating that her (the plaintiff representing others in the class) Individualized Education Plan (’IEP’) violates the IDEA. The court, therefore, grants in part and denies in part the Motion for Preliminary Injunction and TRO.”
Dunn said the partial TRO directing all IDEA students to be allowed in-person education and have other services met to go along with their IEPs is a victory for students and parents in New Mexico hoping to have equal educational opportunities for their children, not only now, but in the future.
“This case isn’t just about this case and this pandemic, or even this crisis,” Dunn told the News-Sun. “Hopefully we establish for students in New Mexico that they have a fundamental liberty in getting an education. It’s been recognized in this country since before the 1860s.”
In his ruling federal judge noted, “To be sure, the law permits permit greater intrusions into civil liberties in times of greater communal need. Nevertheless, even during a public health crisis, the Court may not ‘distort the Constitution to approve all that the’ state deems necessary. … Thus, where the state has enacted emergency public health measures, the Court will not uphold policies which (i) have ‘no real or substantial relation’ to the state’s public health objectives; or (ii) are ‘a plain, palpable invasion of rights secured by the fundamental law.’”
“THE HARDEST HIT STUDENTS really are the IDEA students,” Dunn said. Dunn also said parents with IDEA students should contact their local districts on how implementation of the ruling will be enacted, and when those students will be allowed to attend in-person education following the schools’ current model.
Rep. David Gallegos, R-Eunice, who is a Eunice School board member and also a plaintiff for the educational class in the suit, said the ruling is a step in the right direction for New Mexico.
“This opportunity gives us a chance to start the process to be able to show how all of our kids need to be in school,” Gallegos told the News-Sun Wednesday afternoon. “It goes back to our valid point on why our kids need their education, and it needs to be in-person. And (students) need the interaction between teacher and student, and students and student.”
A motions hearing in the case is set for Oct. 19, and Dunn said the state has already filed a motion to dismiss the case, dated Oct. 5. Dunn said the motion is likely to fail, based on the partial TRO issued Wednesday. He did note, Browning’s language in the TRO does open the door for the judge to release Kunkel and Lujan Grisham from the case, and have the case continue against the PED and Stewart.
“The plaintiffs have shown that they likely have standing to bring claims against secretary Stewart, but the plaintiffs have failed to show that they are likely to establish standing to sue governor Lujan Grisham and secretary Kunkel,” Browning noted. “Because the PED issued the reentry guidance and controls the reentry process, the plaintiffs likely have standing to sue secretary Stewart (but) the plaintiffs likely lack standing to sue the governor Lujan Grisham and secretary Kunkel.”
Dunn said the ruling Wednesday, which is really only round one in four or five round court battle, and was set to be the most challenging for the class action, was better than he expected.
“The bar for TROs is really high. It’s the highest hurdle that we have,” Dunn said. “The preliminary injunction is the next hurdle that’s a little bit lower and we get the chance to put on additional evidence to bolster our position. … We think the next opinion we get from Browning will continue the injunction for IDEA students but we have the opportunity to also get the injunction that helps the rest of the students.”
BROWING DID NOT RULE the governor and secretary of health would be dismissed from the case but hinted it is likely as it goes forward. Likewise the educators class and parents of regular students class was also said to be unlikely during the preliminary injunction hearing scheduled for Oct. 30.
“There’s no scientific support now for closing schools, it’s all moving away from that,” Dunn said. “We’ll be able to present that to him (Browning, in the Oct. 30 hearing) and that will bolster the case as to why he should give us the preliminary injunction on the behalf on the rest of the parents.”
The state so far has sought a motion to dismiss the entire case, citing sovereign immunity in each step along the way, and Browning has found that not to be the case.
“New Mexico likely has sovereign immunity with respect to the plaintiffs’ § 1983 claims, but likely lacks sovereign immunity with respect to Woodworth’s IDEA claims,” Browning also found.
Browning also noted the Centers for Disease Control and Prevention released guidelines in the July 23 The Importance of Re-opening America’s School this Fall, stating school closures “can lead to severe learning loss, and the need for in-person instruction is particularly important for students with heightened behavioral needs.”
Dunn said there are things parents, and students, can still do while the case is proceeding through the court.
“I encourage parents at all levels to reach out to their elected officials and to continue to impress upon them that they want this to happen,” Dunn said. “The governor’s office needs to be hearing from people from all over the state, that this isn’t working and it needs to be fixed.”
Gallegos said the federal judge’s ruling is an impartial interpretation of the law in regards to shutdown orders for schools issued by Lujan Grisham’s administration shows children need to be allowed to attend in-person learning.
“If she (Lujan Grisham) starts playing politics with this, it’s going to be really harmful for her,” Gallegos said.
“I’m super disappointed to hear from a governor who campaigned on how important education is that she would dare now to say you don’t have a fundamental liberty interest in getting an education as a student,” Dunn said. “She really has failed to honor her campaign promises that education is important by fighting against allowing kids to get an education. It’s completely opposite of what she said in the campaign.”
Blake Ovard may be reached at managingeditor@hobbsnews.