Hernandez v. Grisham
| Decision Date | 15 November 2022 |
| Docket Number | 20-2176 |
| Parties | CLARISSA HERNANDEZ; ROBERT HERNANDEZ; SHANNON WOODWORTH; DAVID GALLEGOS, Plaintiffs - Appellants, v. MICHELLE LUJAN GRISHAM; RYAN STEWART, Defendants - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before HOLMES, Chief Judge, BALDOCK, and MATHESON, Circuit Judges.
Plaintiffs-Appellants Clarissa and Robert Hernandez and Shannon Woodworth, the parents of school-age children from New Mexico, and New Mexico State Senator David Gallegos brought suit against New Mexico Governor Michelle Lujan Grisham and New Mexico Secretary of Education Ryan Stewart ("Defendants-Appellees") regarding New Mexico's remote-learning policies in response to the COVID-19 pandemic. Specifically, Plaintiffs-Appellants alleged that the state's remote-learning policies in counties with high rates of COVID-19 violated students' substantive and procedural due process and equal protection rights under the United States Constitution and, for those students with disabilities, such as Ms. Woodworth's daughter, that remote learning violated guarantees of the Individuals with Disabilities Education Act (the "IDEA"), 20 U.S.C §§ 1400-1482, to provide a free appropriate public education ("FAPE").
The district court dismissed all of Plaintiffs-Appellants' claims. In its comprehensive, 167-page order, the district court systematically addressed each of the issues and ultimately denied Plaintiffs-Appellants' motion for a preliminary injunction and the court granted Defendants-Appellees' motion for summary judgment. Plaintiffs-Appellants appealed the district court's order. However, during the pendency of this appeal, New Mexico has continued to reassess its remotelearning policies and as of March 8, 2021, all New Mexico public schools have been allowed to resume full, in-person learning. As a result Defendants-Appellees argue that this appeal is now moot.
Though the mootness issue that Defendants-Appellees raise does implicate our subject-matter jurisdiction, we need not reach that issue. That is because Plaintiffs-Appellants' appeal is fatally infirm on another threshold ground: specifically Plaintiffs-Appellants' appellate briefing is so woefully inadequate-especially in light of the complicated constitutional issues at issue here and the district court's extensive analysis of them-that they have waived appellate review. Therefore, we affirm-without any necessity of reaching the merits-the district court's grant of summary judgment to Defendants-Appellees.
To begin our analysis, however, we note that one significant deficiency of Plaintiffs-Appellants' briefing relates to their misguided attempt to challenge the district court's denial of their motion for a preliminary injunction. Taking this challenge at face value, we lack jurisdiction to consider it: Plaintiffs-Appellants' challenge to the district court's denial of their motion for a preliminary injunction is moot because, in the same order denying that motion, the court resolved the lawsuit against them with finality by granting Defendants-Appellees' motion for summary judgment. Therefore, we dismiss Plaintiffs-Appellants' appeal insofar as it challenges the district court's denial of their motion for a preliminary injunction.
This appeal stems from Plaintiffs-Appellants' challenges to Governor Lujan Grisham's closure of New Mexico public schools during the COVID-19 pandemic and the issuance by the New Mexico Public Education Department (the "PED") of Reentry Guidance providing for a phased school reopening based on local rates of COVID-19.
In response to the COVID-19 pandemic, on March 11, 2020 Governor Lujan Grisham declared a public health emergency in the State of New Mexico, invoking the full measure of her authority under the All Hazard Emergency Act, NMSA 1978, §§ 12-10-1 to -10, and the Public Health Emergency Response Act, NMSA 1978, §§ 12-10A-1 to -19. Pursuant to this authority, on March 13, 2020, Governor Lujan Grisham ordered all New Mexico public schools to close from March 16 to April 6, 2020, and when COVID-19 cases in New Mexico continued to increase, she extended the closure, ordering all public schools to close for the remainder of the 2019-2020 school year.
In the lead up to the 2020-2021 academic year, the PED worked with the Office of the Governor and the New Mexico Department of Health to develop a plan for a phased reopening of schools. Using certain criteria, including daily cases and test positivity rates, to assess the spread of COVID-19 in New Mexico, the PED issued its official Reentry Guidance on July 24, 2020, requiring that school districts in New Mexico with higher rates of COVID-19 provide either fully remote or hybrid learning, while permitting full in-person learning for schools in districts with lower rates.[1] The Reentry Guidance also allowed, but did not require, school districts in the fully remote category to provide in-person education to children with disabilities in groups of five children or fewer.
Applying the Reentry Guidance across the state, the PED required schools in several counties to begin the 2020 school year operating in a fully remote capacity, while other schools were permitted to resume in-person learning through either the hybrid or full reentry categories.
On September 16, 2020, Plaintiffs-Appellants brought this suit pursuant to 42 U.S.C. § 1983.[2] Plaintiffs-Appellants are Clarissa and Robert Hernandez, the parents of four school-age children who live in a county in the remote-learning category; Shannon Woodworth, the parent of a school-age daughter with special needs in a county also in the remote-learning category; and David Gallegos, a member of the Board of Education for Eunice Public Schools, a remote-learning only county. Plaintiffs-Appellants sued Governor Lujan Grisham and Secretary of Education Ryan Stewart in their individual and official capacities,[3] alleging that in the ten New Mexico counties prohibited from resuming any form of in-person learning, the 2020 Reentry Guidance violated students' due process and equal protection rights.[4]
Additionally Plaintiffs-Appellants alleged a violation of the IDEA, arguing that remote schooling prevented students with disabilities, such as Ms. Woodworth's daughter, from socializing with non-disabled students and thus prevented such students from receiving a FAPE. See, e.g., Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 137 S.Ct. 743, 748-49 (2017) (); see also Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 U.S. 176, 203 (1982) ().
Plaintiffs-Appellants sought declaratory relief, a temporary restraining order, and preliminary and permanent injunctions "enjoining Defendants from prohibiting in-person instruction." Aplees.' Supp. App., Vol. 1, at 28 . Plaintiffs-Appellants also filed a separate Motion for a Temporary Restraining Order, Preliminary Injunction, and Permanent Injunctive Relief on September 21, 2020.
On October 14, 2020, in Hernandez v. Grisham (Hernandez I), 494 F.Supp.3d 1044 (D.N.M. 2020), the district court issued an order on Plaintiffs-Appellants' September 21, 2020, motion for preliminary injunction and temporary restraining order, granting it in part and denying it in part. Specifically, the court denied virtually all of the Plaintiffs-Appellants' requested relief-finding Plaintiffs-Appellants unlikely to succeed on the merits-but granted a narrow TRO under the IDEA to correct Ms. Woodworth's daughter's individualized education plan ("IEP") to allow for in-person instruction because the local education agency had misinterpreted the Reentry Guidance as prohibiting in-person learning for students with special needs.[5] See, e.g., Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 580 U.S. 386, 137 S.Ct. 988, 994 (2017) . Plaintiffs-Appellants did not interlocutorily appeal the district court's denial of their requested preliminary injunction in Hernandez I. See, e.g., 28 U.S.C. 1292(a)(1) ().
Following Hernandez I, on October 26, 2020 Defendants-Appellees filed their (second) motion to dismiss.[6] They argued that the district court should dismiss Plaintiffs-Appellants' constitutional claims because the Reentry Guidance is subject to and survives rational-basis scrutiny. More specifically, they argued that the suspension of in-person learning is rationally related to the legitimate state interest of stopping the spread of COVID-19. Defendants-Appellees also argued that the district court should dismiss Plaintiffs-Appellants' IDEA claim because the IDEA does not require in-person learning for students to receive a FAPE, and, moreover, the 2020 Reentry Guidance does not actually prohibit in-person education for special needs students and instead provides such students with the same opportunity as nondisabled students to participate in...
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