Schools allege overreach by New Mexico education secretary

SANTA FE, N.M. (AP) — A coalition of school districts is challenging the authority of Democratic Gov. Michelle Lujan Grisham’s education secretary to drastically limit in-person instruction, dictate COVID-19 testing procedures and ensure employment for school staff whether they return to work or not.

A lawsuit filed Tuesday in state court asked a state judge to limit a litany of measures implemented during the pandemic, from mandating COVID-19 testing of staff to dictating how and when student lunches are distributed.

“This is about local control and the competence of our school boards to make these decisions. We don’t need to be micromanaged. This is not about avoiding the science or avoiding safety protocol,” Gallup-McKinley School District Superintendent Mike Hyatt said.

The Gallup-McKinley School District, on the outskirts of the Navajo Nation that was ravaged by early outbreaks of coronavirus, is one of the plaintiffs.

An injunction in the case could severely limit the education department’s ability to implement what state officials describe as a science-based process of limiting risk in schools. A ruling against the education department could require the governor to explicitly include each detail in its public health order, or submit to a lengthy rule-making process.

Hyatt said an injunction would also allow schools to decide which at-risk students should be allowed to attend school in person. Currently, younger children are prioritized by the state. Hyatt suggests that students without internet access could be a priority for in-person learning.

It’s the latest lawsuit aimed at limiting the power of the executive branch to use health orders to direct decisions in public education. Another recent lawsuit filed in a New Mexico district court argues the state’s orders violate federal protections for disabled students.

The latest lawsuit argues the state has meddled in budgets that should be controlled by school boards, forced districts to spend money on staff who aren’t working and subtracted federal CARES Act money assigned to districts from state funding.

New Mexico Gov. Michelle Lujan Grisham has received praise for keeping the COVID-19 in check. But she is facing a simmering revolt over an ongoing ban of in-person learning for most students.

“I am humbled to be part of an administration that has on its shoulders the tremendous task of keeping our students and communities healthy while also maximizing in-person learning during these challenging times,” said Public Education Department Secretary Ryan Stewart, who is named in the lawsuit. “We are fully cognizant of the need to do both, and I have tried, with every decision, to balance those goals. Protecting health and safety means schools must implement proactive, science-backed measures, even as we recognize difficult challenges for those who must implement and abide by those measures.”

The challenges of online learning have fallen disproportionately on the shoulders of low-income and rural students.

In metro Albuquerque, about 90 percent of students have been able to connect to online learning throughout the pandemic. The school board there decided to stay online through the rest of the year, even for K-5 students who were recently given the green light to go back to school by the state education and public health officials.

In New Mexico’s periphery, however, especially in predominantly Native American areas like Gallup, around half of students have been connecting to remote schooling.

“The problem is we’re an extremely rural state. And in our area, it’s probably compounded by the high level of poverty and lack of infrastructure, even basic utilities that compounds the problem,” Hyatt said.

The lawsuit includes a litany of complaints about directives by the education department that the schools argue are unlawful, either because they violate the state constitution’s commitment to adequate education, or because they lacked the authority of the governor’s health order.

The lawsuit alleges that in late March, the education department sent an email requiring schools to give away supplies like toilet paper and cleaning supplies. It says a mandate to “randomly” test teachers for COVID-19 may violate federal laws protecting worker rights, and that an order to keep unnecessary staff on the payroll goes against constitutional provisions barring government entities from giving aid to individuals or companies.

The lawsuit was submitted to New Mexico’s first judicial court, where it was assigned to Judge Matthew Wilson.

In June, Wilson sided with Gallup-McKinely schools and other plaintiffs in Martinez/Yazzie, refusing to dismiss a lawsuit finding that the state had failed its constitutional obligation to provide adequate education to low-income, disabled, Native American, and English-learning students. That lawsuit, filed in 2014, was ruled on before the pandemic began and continues to hang over the heads of the Lujan Grisham Administration and the state legislature.

Separate lawsuits have scratched at the state’s authority over schools in federal courts, but they haven’t had immediate success. Last week, a federal judge turned down a request for an injunction against health requirements that restrict private school capacity, while another considered a complaint on behalf of special needs students whose parents want them to attend school in person.

The state education department has created exceptions for special needs students to attend in-person schooling, as long as they study in very small groups.

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Attanasio is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on under-covered issues. Follow Attanasio on Twitter.

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