Peterson v. Kunkel

• Decision Date: 02 October 2020
• Docket Number: 1:20-cv-00898-WJ-CG
• Citation: 492 F.Supp.3d 1183
• Parties: Douglas H. PETERSON, individually and as parent and next friend of K.P., a minor, Plaintiffs, v. Kathyleen M. KUNKEL in her official capacity as Secretary of the State of New Mexico Department of Health, and Michelle Lujan Grisham, in her official capacity as Governor of the State of New Mexico, Defendants.
• Court: U.S. District Court — District of New Mexico

492 F.Supp.3d 1183

Douglas H. PETERSON, individually and as parent and next friend of K.P., a minor, Plaintiffs,

v.Kathyleen M. KUNKEL in her official capacity as Secretary of the State of New Mexico Department of Health, and Michelle Lujan Grisham, in her official capacity as Governor of the State of New Mexico, Defendants.

1:20-cv-00898-WJ-CG

United States District Court, D. New Mexico.

Filed October 2, 2020

Deena L. Buchanan, Buchanan Law Firm, LLC, Albuquerque, NM, for Plaintiffs.

Kyle P. Duffy, Matthew L. Garcia, Maria S. Dudley, Office of the Governor Michelle Lujan Grisham, Santa Fe, NM, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION EXCEPT FOR THE EQUAL PROTECTION CLAIM, WHICH IS DENIED WITHOUT PREJUDICE

WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, filed September 11, 2020 (Doc. 2 ), and the subsequent hearing on September 23, 2020. Having considered the written and oral arguments of counsel as well as the applicable law, the Court finds that Plaintiffs have not met their burden for obtaining injunctive relief. Therefore, Plaintiffs’ Motion is DENIED with the exception that Plaintiffs’ request for injunctive relief on their equal protection claim is DENIED WITHOUT PREJUDICE to Plaintiffs seeking injunctive relief on their equal protection claim under certain circumstances as explained in this Memorandum Opinion and Order.

INTRODUCTION

Plaintiffs¹ Douglas H. Peterson and his daughter K.P. (collectively "Plaintiffs"), pursuant to 42 U.S.C. § 1983, bring this lawsuit against Defendants Kathleen M. Kunkel, Secretary of the State of New Mexico Department of Health, and Michelle Lujan Grisham, Governor of the State of New Mexico (collectively "Defendants"), alleging that Defendants, through their actions regarding the regulation of private educational institutions, with special emphasis on Secretary Kunkel's Public Health Order ("PHO") and its capacity restrictions, violated the Plaintiffs’ (1) Fourteenth Amendment right to equal protection; (2) Rights under Article I's Contract Clause; (3) Fourteenth Amendment right to procedural due process; and (4) First and Fourteenth Amendment right to freedom of assembly and association. Compl. ¶ 3. Through this Motion, Plaintiffs reassert their allegations of constitutional violations and request that the Court (a) declare that the PHO's 25% capacity limitation on private schools is null and void, such that private schools may operate at 100% like childcare facilities, or 50% capacity like public schools starting September 8, 2020; or (b) enjoin Defendants and any agent deriving authority from the State of New Mexico from enforcing a capacity limitation pursuant to the PHO upon private schools that is greater than that imposed on public schools and childcare facilities. Motion at 22–23.

PROCEDURAL BACKGROUND

I. COVID-19

The novel coronavirus disease ("COVID-19") has spread exponentially across the globe. Approximately six months since the first confirmed cases of COVID-19 in New Mexico, there are over 27,000 confirmed cases in the state and 857 related deaths. See New Mexico Department of Health ("NMDOH"), 2019 Novel Coronavirus Disease (COVID-19), https://cv.nmhealth.org/ (last visited Sept. 24, 2020). COVID-19 is a respiratory illness that spreads easily through close person-to-person contact. Although it has not yet been measured precisely, a significant portion of COVID-19 cases result in mild symptoms or no symptoms. See Nathan W. Furukawa et al., Evidence Supporting Transmission of Severe Acute Respiratory Syndrome Coronavirus While Presymptomatic or Asymptomatic, Emerging Infections Diseases, Vol. 26, Num. 7 (July 2020), https://wwwnc.cdc.gov/eid/article/26/7/20-1595_article (last visited September 24th, 2020). Studies show that children are less vulnerable to severe illness from COVID-19 than adults. See Bloomberg School of Public Health at John Hopkins University, Public Health Principles for a Phased Reopening During COVID-19: Guidance for Governors, https://www.centerforhealthsecurity.org/our-work/pubs_archive/pubs-pdfs/2020/200417-reopening-guidance-governors.pdf. As of August 26, 2020, there have been no known COVID-19 related deaths of any New Mexican under the age of nineteen. See NMDOH, NM COVID-19 Deaths by Age as of 8/26/20.

II. Defendants’ Response to COVID-19, The New Mexico Public Education Department's Reentry Guidelines, and the Effect on Private Schools and Plaintiffs

On March 11, 2020, Governor Lujan Grisham issued Executive Order 2020-004 ("Executive Order") to address the spread of Covid-19. Governor Michelle Lujan Grisham, Executive Order 2020-004, https://cv.nmhealth.org/wp-content/uploads/2020/03/Executive-Order-2020-004-r.pdf (March 11, 2020). The Executive Order directs all State departments and agencies to, among other things, comply with "the directives in this Order" and any instructions given by the NMDOH. Id.

On or about June 20, 2020, the New Mexico Public Education Department ("NMPED") published a document providing considerations, recommendations, best practices, and minimum requirements for public and charter schools in New Mexico. See NMPED, New Mexico Public Education Reentry Guidance ("the Reentry Guidelines"). The Reentry Guidelines state that New Mexico will allow "[t]he state [to] assess the impact of school reentry on the rate of spread of the virus ..." Id. at 4. Upon assessment, public and charter schools may operate in three primary reentry categories: (1) Remote, (2), Hybrid, and (3) Full Reentry. Under the Hybrid model "[t]he number of students in the building at any time is capped by the number that can be accommodated while adhering to at least six feet of social distancing or 50% classroom capacity. " Id. at 9 (emphasis added).

On August 3, 2020, and of extreme importance to Plaintiffs’ Motion, the NMPED announced that the school reentry phases had changed from what was initially expressed in the Reentry Guidelines. See Instructional Models for Reentry: Reentry Guidance Addendum A ("Addendum A"). Addendum A adds a fourth category to the existing instructional models. This newly added category, entitled "Phase in to Hybrid," is a transitional model that bridges the Remote and Hybrid instructional models. The Phase in to Hybrid model is characterized by in-person learning for elementary school students, while keeping middle and high school students confined to remote learning. Under the Phase in to Hybrid plan, "Grades PreK–5 [and 6 if the affected school serves 6th grade students] return no sooner than Sept. 8 ... Grades 6–8 will return next ... Grades 9–12 will return last." Id. Addendum A lists no return dates for middle and high school students. It notes that "return dates for grades 6–8 and 9–12 will be determined by public health officials based on health conditions." Id.

On July 30, 2020, Secretary Kunkel issued an updated PHO providing, in relevant part:

Private educational institutions serving children and young adults from pre-Kindergarten through 12th Grade ... shall adhere to the face covering and other requirements for in-person instruction described in [the Reentry Guidelines] published by New Mexico's Public Education Department on June 20, 2020 and as updated from time to time thereafter, and shall operate with a maximum occupancy of 25% of any enclosed indoor space, with the occupancy restriction herein to govern in the event of any discrepancy with [the Reentry Guidelines].²

The PHO does not mention public or charter schools.

On August 17, 2020, a local Albuquerque news station published an article on one of the area's private schools, Hope Christian School. Francesca Washington, Hope Christian School Reopens with In-Person Learning, https://www.krqe.com/news/education/hope-christian-school-reopens-with-inperson-learning/ (Aug. 17, 2020) (last visited Sept. 25, 2020). The article notes that "[w]hile Albuquerque Public Schools continue online learning, [Hope Christian] welcomed students back to the classroom on [August 17th]." Id. The article emphasizes, [p]rivate schools ... are treated more like a private business." Id. Private schools do not have to submit a reopening plan to NMPED. Instead, private schools may generate their own plans for how to follow state guidelines. In this instance, Hope Christian complied with the PHO's 25% capacity ceiling by using its gyms, libraries, and outdoor structures to space out students. Id. The Court is informed that certain other private schools in the Albuquerque area are operating with in person learning at 25% capacity but the Record in this case is not clear as to the names of those other private schools operating with some form of in person learning.

On August 28, 2020, Secretary Kunkel issued another updated Public Health Order ("August 28th PHO"). NMDOH, Public Health Order, https://cv.nmhealth.org/wpcontent/uploads/2020/08/082820-PHO.pdf (August 28, 2020). The August 28th PHO categorizes childcare facilities as an essential business and imposes on them certain COVID-safe practices, including adherence to maximum group sizes, child-to-teacher ratios, and physical distancing plans. See NMDOH, Health and Safety Guidance for New Mexico Child Care Centers and Early Childhood Professionals, https://www.newmexicokids.org/wpcontent/uploads/child_care_health_and_safety_guidance_english.pdf. (Aug. 14, 2020). The August 28th PHO restates verbatim the language concerning private schools.

In response to the issuance of the August 28th PHO, Julianne Puente, Head of the Albuquerque Academy, a private school in the Albuquerque area, informed students and parents via email that the school's on-campus education plan is not viable under the 25% capacity ceiling imposed by the PHO. Due to this limitation, Albuquerque Academy suspended on-campus education and as of September 25,...