ALBUQUERQUE, N.M. (KRQE) – Some parents think schools are being treated unfairly when it comes to students returning to the classroom. A lawsuit filed Tuesday afternoon alleges that the public health order is denying some students equal access to a meaningful education. While childcare is fully open and public schools can open at half capacity next week, the same can’t be said for private schools.

Some Albuquerque families think their schools are being singled out. “This is about fairness and making sure the playing field is level,” Deena Buchanan with the Buchanan Law Firm said.

Under the current public health order, private schools are limited to 25% occupancy. “Private schools are specifically called out in the order,” Buchanan said.

Most public schools, on the other hand, are allowed to open at 50% occupancy after Labor Day. Gov. Michelle Lujan Grisham discussed re-entry last week. “We know that students and parents are really anxious to return to in-person learning,” the governor said Thursday.

Buchanan is asking why private and public schools are being treated differently. “We are both confused about why private schools were singled out,” Buchanan said.

She represents the father of an Albuquerque Academy seventh-grader. “They are very frustrated,” Buchanan said.

The Academy is currently closed to in-person learning due to the restriction, but reportedly would be able to reopen if occupancy restrictions eased. The father is now suing the governor and Health Sec. Kathy Kunkel. “Under the constitution, it is illegal for a state to interfere with a contract,” Buchanan said. “Because he signed his daughter up for school and paid the tuition, he is being deprived the benefit of the contract.”

The lawsuit argues that the state is imposing more onerous restrictions on children who attend private school than public school children, noting too that childcare facilities can operate at 100% occupancy. “We are not saying no restrictions, but we are just saying it should be equal,” Buchanan said. “This whole case is about fairness and the opportunity for students to go back.”

The governor’s office said that the state has oversight of public schools to assure health and safety restrictions are in place. However, the state does not have similar oversight of private schools which is partly why restrictions are greater there.

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