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New Mexico’s mask mandate for schools sparks legal battle

August 6, 2021 GMT

ALBUQUERQUE, N.M. (AP) — A legal battle is brewing in New Mexico over what power state education officials have over local school boards and what limits there are to that authority.

The fight stems from the Public Education Department’s suspension this week of a rural school board that voted to make masks optional for students when they return to class. The agency also has filed a complaint in state district court seeking the permanent removal of the board.

Robert Aragon, one of the attorneys representing the Floyd school board, said the education department is overstepping its authority and that the case highlights one of the basic tenants of education governance — that local officials know best about the needs of the local community.

“This is not a partisan issue,” Aragon said. “It’s an issue that goes to the core of governance. ... Schools have locally been governed by locally elected individuals, and now we have a state secretary and governor who are trying to centralize one-size-fits-all policies contrary to state statute.”

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He pointed to a previous court ruling that found the state education secretary does have some authority but it’s not without limits and that state statutes provide for those limits by granting school boards the authority of self-governance.

In its court filing, the state argued that all schools in New Mexico are required to follow guidelines issued by the Public Education Department concerning the COVID-19 pandemic. Those guidelines mandate that all unvaccinated people wear a mask while in a school building, during school-sponsored activities and on buses. There also are testing requirements, and social distancing is required for unvaccinated students and staff.

The New Mexico Department of Health on July 30 issued an updated public health order confirming the education department’s authority to issue guidelines for public schools. The order also authorized the department to enforce the guidelines on private schools.

The department warned in its complaint of “irreparable injury” if the court doesn’t permanently remove the board, saying the school year begins next week and there could be an outbreak of COVID-19 cases.

While infections have been increasing nationwide, state data shows the uptick among school-age children in New Mexico has been lower than other age groups. As of Monday, the state reported that about 16% of the infections over the last seven days were pediatric cases and that no hospitalizations had been reported for that group.

More parents have been coming forward with concerns about the mandates, saying they aren’t being given a choice as school boards adopt state and federal guidance.

Republican lawmakers also have criticized the state’s approach.

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The dismissed school board members will be filing their own complaint in state district court Friday, asking that the court deny the state’s request for their permanent removal.

There are concerns about how the Public Education Department crafted the COVID-19 guidelines, Aragon said, noting that rules are usually proposed, the public has an opportunity to comment and the agency considers the input before adopting a final version. That didn’t happen in this case, he said.

“There is a law that allows school boards to act independent, to be a separate governing entity, to create policies for their local districts,” he said. “This fight is important to every family in the state of New Mexico.”