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Wednesday, Nov. 25th 2020


In the past 4 weeks, our firm has received no fewer than 10 calls from parents wanting to “push back” on restrictions on in-school activities or orders for virtual school in lieu of attendance in person. Even one wrestling coach wanted to know if he or his students could oppose a health department order restricting wrestling practice and competition. I am reminded of when my mother-in-law asked me, a young public defender at the time, “how can you represent people accused of terrible crimes?”

My answer always was that they have a 6th Amendment right to counsel and I do not need to endorse their alleged behavior. Well, I am having real trouble taking up the cause of people wanting to push back against public health orders in the public school arena. And so, I thought it might be helpful to examine what a federal judge in New Mexico did in his order of October 14, 2020, in Hernandez v. Grisham, 2020 WL 6063799.

The Plaintiffs are parents of children in Lea County, New Mexico, one of whom has special needs. The defendants include the Governor of New Mexico, Michelle Lujan Grisham, and the Secretary of Education for the State of New Mexico, Ryan Stewart, plus the Secretary of the New Mexico Department of Health.

On March 26, 2020, Governor Grisham ordered all public schools to close for the remainder of the 2019- 2020 school year. On September 21, 2020, the Plaintiffs filed a Motion for a Temporary Restraining Order, a Preliminary Injunction, and permanent injunctive relief, arguing that the continuing ban on in-person instruction at public schools in certain counties violates the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and further alleged that the Defendants “undoubtedly infringed the fundamental or quasi-fundamental right to a basic education.”

With regard to one special needs student, the Plaintiffs also claim that the governor’s order violates the Individuals With Disabilities Act (IDEA), in that to provide “special education” and “related services” school districts must be able to provide at least some in-person services. Plaintiffs maintain that without in-person learning, in addition to educational deprivation, special needs children will suffer collateral harms including “abuse, depression, suicide, and hunger.” They claim irreparable injury absent an injunction.

In a complicated 156-page opinion, the federal district judge finally ruled that the Plaintiffs’ Equal Protection claims are likely to fail because they have not demonstrated that a discriminatory purpose motivated the Defendants’ guidance on reentry of students. Also, the court declared that the Plaintiffs’ substantive due process claims were not likely to succeed because the defendants have not denied adequate public education to the Plaintiffs.

Finally, the court declared that the Defendants’ Reentry Guidance is rationally related to a legitimate state interest. However, the court did issue a Temporary Restraining Order in favor of the one special needs child because her IEP (Individualized Education Program) likely violated the IDEA statute by failure to provide essential in-person instruction based on her disability.

So, in conclusion, my opinion is that legal action against a school district, state secretary of education or governor is an uphill climb and with the pandemic getting worse by the day, parents need to think carefully about commencing litigation.

Cohen & Duncan Attorneys, LLC remains available to help students and their parents in our broad scope of education law work as described in this website. We do not encourage calls seeking litigation services seeking to push back against public health orders. For more information on these issues, contact Clifford Cohen.

Clifford A. Cohen

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