Hernandez v. Grisham

508 F.Supp.3d 893

Clarissa HERNANDEZ; Robert Hernandez; Shannon Woodworth and David Gallegos, Plaintiffs,

v.Michelle Lujan GRISHAM; Ryan Stewart; Kathyleen M. Kunkel and the State of New Mexico, Defendants.

No. CIV 20-0942 JB\GBW

United States District Court, D. New Mexico.

Filed December 18, 2020

Marshall J. Ray, Law Offices of Marshall J. Ray LLC, Albuquerque, New Mexico -- and -- A. Blair Dunn, Jared R. Vander Dussen, Western Agriculture, Resource and Business Advocates, LLP, Albuquerque, New Mexico, Attorneys for the Plaintiffs.

Holly Agajanian, Chief General Counsel to Governor Michelle Lujan Grisham, Kyle P. Duffy, Associate General Counsel to Governor Michelle Lujan Grisham, Maria S. Dudley, Associate General Counsel to Governor Michelle Lujan Grisham, Office of the Governor, Santa Fe, New Mexico, Attorneys for Defendants Governor Michelle Lujan Grisham, Secretary Ryan Stewart, and Secretary Kathyleen M. Kunkel.

Hector Balderas, Attorney General for the State of New Mexico, Erin Elizabeth Lecocq, Nicholas M. Sydow, Civil Appellate Chief, New Mexico Office of the Attorney General, Santa Fe, New Mexico, Attorneys for Defendant State of New Mexico.

MEMORANDUM OPINION AND ORDER ¹

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Plaintiffs’ Motion for Preliminary Injunction, filed September 21, 2020 (Doc. 6)("PI Motion"); (ii) the Plaintiffs’ Motion to Amend, filed October 26, 2020 (Doc. 41)("MTA"); and (iii) the Defendants’ Motion to Dismiss, filed October 26, 2020 (Doc. 43)("Second MTD"). The Court held a hearing on the Second MTD on November 16, 2020. See Clerk's Minutes at 1, filed November 16, 2020 (Doc. 68). The Court held a hearing on the MTA on November 19, 2020. See Clerk's Minutes at 1, filed November 19, 2020 (Doc. 71). The Court held an evidentiary hearing on the PI Motion on November 19, November 20, and November 23, 2020. See Clerk's Minutes at 1, filed November 23, 2020 (Doc. 74). The Court converts the Second MTD to a Motion for Summary Judgment pursuant to rule 12(d) of the Federal Rules of Civil Procedure. See Minute Order, filed December 2, 2020 (Doc. 78). The primary issues are: (i) whether the Court should grant the Plaintiffs -- Clarissa Hernandez, Robert Hernandez, Shannon Woodworth, and David Gallegos -- leave to amend their Amended Complaint, filed September 17, 2020 (Doc. 4)("Am. Compl.") to include an additional plaintiff: Ronnie Williams, the father of a child with disabilities living in Artesia, New Mexico; (ii) whether the Defendants -- Governor Michelle Lujan Grisham and Secretary Ryan Stewart -- have violated the Plaintiffs’ procedural due process rights under the Fourteenth Amendment of the Constitution of the United States of America by issuing the Reentry Guidance, which closes schools in select New Mexico Counties with higher incidence of COVID-19, without providing the Plaintiffs with individual hearings; (iii) whether the Defendants, by issuing the Reentry Guidance, violate the Plaintiffs’ substantive due process rights, because they infringe upon the Plaintiffs’ fundamental general right to an in-person education under the Constitution; (iv) whether the Defendants violate the Plaintiffs’ equal protection rights under the Constitution, because the citizens of Counties, which the Reentry Guidance targets, are members of a suspect class; (v) whether the Defendants violate the Plaintiffs’ equal protection rights under the Constitution, because the Reentry Guidance targets students with disabilities; (vi) whether the Defendants’ decision to close certain schools rationally relates to their goal of stopping COVID-19's spread; (vii) whether, following the Court's Memorandum Opinion and Order in Hernandez v. Grisham, No. CIV 20-0942 JB\GBW, 494 F.Supp. 3d 1044, 1057–58 (D.N.M. Oct. 14, 2020) (Browning, J.)(" Hernandez I"), Woodworth's claims are moot, because Woodworth's Individualized Education Program ("IEP") team reconvened following Hernandez I to create a new IEP for Woodworth which aims to provide her with a free and appropriate public education ("FAPE") under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (the "IDEA"); (viii) whether Woodworth may bring claims under the IDEA, pursuant to 42 U.S.C. § 1983 ; (ix) whether, in the Counties where the Defendants allow in-person learning only for children with disabilities, the Defendants have denied every child with disabilities a FAPE, because the children with disabilities are prohibited from socializing in-person at school with children who do not have disabilities; (x) whether, where children with disabilities are offered the same remote instruction that is available to children without disabilities, the remote instruction setting qualifies as a regular educational environment or regular class under the IDEA's least restrictive environment ("LRE") provision; (xi) whether the United States Department of Education's ("USDOE") guidance documents issued since the COVID-19 pandemic's start: (a) are entitled to deference from the Court, or (b) limit the Defendants’ responsibilities under the IDEA during the pendency of the pandemic; and (xii) whether the Plaintiffs may sue the Defendants under the IDEA in their individual and official capacities. The Court concludes that: (i) granting leave to amend would be futile, because Williams has not exhausted his administrative remedies under the IDEA; (ii) the Defendants have not violated the Plaintiffs’ procedural due process rights, because: (a) the Defendants have issued the Reentry Guidance during an emergency situation -- the COVID-19 pandemic -- to protect public health and safety, and (b) the Reentry Guidance is a quasi-legislative document; (iii) the Defendants have not violated the Plaintiffs’ substantive due process rights, because there is no general right to an in-person education under the Constitution, and, therefore, the Defendants are not infringing upon the Plaintiffs’ fundamental constitutional rights; (iv) the citizens of Counties which the Reentry Guidance prohibits from providing in-person learning to students without disabilities are not members of a suspect class, because they do not allege a history of unequal treatment or political powerlessness; (v) the Reentry Guidance is facially neutral regarding students with disabilities, and the Plaintiffs have not shown that the Defendants discriminate intentionally against students with disabilities by issuing the Reentry Guidance; (vi) the Defendants’ prohibition on in-person schooling in certain Counties is rationally related to the Defendants’ legitimate purpose of preventing the spread of COVID-19, because students, teachers, and staff spread the virus to one another during in-person learning; (vii) Woodworth's claims are moot, because the IEP team remedied the purely legal defects in her previous IEP when it issued her new IEP, and Woodworth must follow the administrative process to address any other alleged defects; (viii) Woodworth may not bring IDEA claims pursuant to § 1983, because the IDEA includes a comprehensive enforcement scheme; (ix) many students with disabilities may receive a FAPE, although they do not receive in-person socialization with students without disabilities, because remote learning still allows these students to progress towards goals detailed in their IEPs; (x) when children with disabilities are offered the same remote instruction that is available to children without disabilities, the remote instruction setting qualifies as a regular educational environment, or regular class, under the LRE provision, because the provision's plain text and its legislative history indicate that a regular educational environment or regular classroom is any learning environment where a child with disabilities has not been separated from his or her classmates without disabilities; (xi) the USDOE guidance documents: (a) are not entitled to deference, because they are unpersuasive and lack thoroughness, sound reasoning, and consistency with other USDOE guidance, and (b) do not limit the Defendants’ responsibilities under the IDEA, but primarily regurgitate the language contained in the IDEA and its regulations; and (xii) the Plaintiffs may sue the Defendants under the IDEA in their official capacities, because the claims are not duplicative. The Court, therefore, denies the PI Motion and the MTA, and grants the Second MTD.

FACTUAL BACKGROUND

This case arises from the PED's Reentry Guidance, which limits in-person education in New Mexico during the COVID-19 pandemic. See New Mexico Public Education Department Reentry Guidance at 1, New Mexico Public Education Department, https://webnew.ped.state.nm.us/reentry-district-and-school-guidance/ (last visited Dec. 7, 2020)("Reentry Guidance"). The Reentry Guidance requires certain school districts in New Mexico with higher rates of COVID-19 to provide remote or hybrid learning. See Reentry Guidance at 8. The Reentry Guidance also allows -- but does not require -- school districts in the remote category to provide in-person education to children with disabilities in groups of five children or less. See Reentry Guidance at 8.

The Parties do not object to the Court's decision to convert the Second MTD to a motion for summary judgment pursuant to rule 12(d). See Plaintiffs’ Notice of Non-Objection, filed November 30, 2020 (Doc. 76)("Plaintiffs’ Notice"); Defendants’ Notice of Non-Objection, filed December 1, 2020 (Doc. 77)("Defendants’ Notice"). See also De Baca v. United States, 399 F. Supp. 3d 1052, 1183 (D.N.M. 2019) (Browning, J.)(discussing why and when the Court converts motions to dismiss to motions for summary judgment). The Defendants ask the Court to consider "evidence presented by Defendants in briefing and at the preliminary injunction hearing," Defendants’ Notice at 1, and the Plaintiffs ask the Court "to consider all exhibits attached" to the PI Motion, "all exhibits supplied...