Yazzie plaintiffs call on state to develop transformative education plan

SANTA FE—New Mexico students still lack the basics necessary for a constitutionally sufficient education, charged the Yazzie plaintiffs of the landmark education lawsuit, Yazzie/Martinez v. State of New Mexico in a motion filed with the First Judicial District Court today. The motion asks the court to order the state to develop, implement, and fully fund a long-term plan that will meet the state’s constitutional mandate that guarantees all public school students the opportunity to be college and career ready.

“New Mexico has a historical opportunity, and a constitutional obligation, to transform our education system by building a multicultural educational framework and providing all students the opportunities they need to be ready for college or career,” said Gail Evans, lead counsel for the Yazzie plaintiffs in the lawsuit brought the New Mexico Center on Law and Poverty. “It’s been almost a year and a half since the Yazzie/Martinez decision, but the state still lacks a concrete, long term plan that would put us on the right path for a constitutionally sufficient education, along with necessary funding. New Mexico’s students need action now. We are asking the court to order the state to take immediate action to comply with the court’s order.”   

In July 2018, Judge Sarah Singleton ruled that the state is violating public school students’ rights—especially low-income, students of color, English language learners, and students with disabilities—to a sufficient and uniform education. She ordered the state to take immediate action to overhaul the state’s education system.

The 2019 New Mexico Legislature did not do enough to comply with the Yazzie/Martinez decision. As a result, school districts were unable to provide the programming and supports for at risk students like bilingual education and social services. In fact, many districts were forced to cut basic programs like reading intervention and drop-out/truancy prevention, and cannot meet the demand for pre-K programs.

“Cuba Schools serves predominantly Native American students, but we still lack the funds to provide culturally relevant curriculum and language support,” said Dr. Karen Sanchez-Griego, superintendent of Cuba Independent School District, a plaintiff in the Yazzie lawsuit. “We also can’t provide adequate programming to our students with disabilities or transportation services to get students to and from tutoring, summer school, and after-school programs. We need to make real changes to our education system now to give all our children—and our state—an opportunity to succeed.”

The motion argues that 2019 education legislation did not comply with the court order by failing to:

  • Cover basic instructional materials and technology for classrooms;
  • Ensure teaching is tailored to the unique cultural and linguistic needs of our students, including English-language learners and indigenous communities;
  • Make pre-K, summer school, after-school programs, reading specialists, and smaller class sizes available to all children who need them;
  • Ensure social services, counseling, health care and literacy specialists are available to all students who need them;
  • Invest in our educators to attract and retain new teachers and expand their qualifications, especially for special education, science, and bilingual education; and
  • Adequately increase the transportation budget to ensure all students have the opportunity to participate in after-school and summer programs.

“We still have a substandard education system for our children. Our schools not only lack the basics, they lack the essential culturally relevant resources and materials, that our children need,” said Wilhelmina Yazzie, the lead plaintiff in the case who has a son in the Gallup McKinley County Schools. “This is not acceptable. All our children deserve an equal opportunity to succeed. My hope is that the state will act upon the court’s ruling and make our children a priority. We cannot waste any more time. Our children are the future of New Mexico, and they are sacred.”

The 2019 New Mexico State Legislature increased education funding, but school districts had to spend the bulk of the increase on a much needed raise for educators. Once districts allocated funds for the modest six percent raise, they did not have enough funding for basic educational necessities that would bring the state into compliance with the court’s ruling.

The Legislature increased funding for extended learning, through the K-5 Plus and the Extended Learning programs, but ignored multiple warnings that school districts would not be able to use much of the increase due to rigid requirements imposed by the state. Many districts did not apply for funding because they determined that the money available would not cover the actual cost of the programs; the program requirements were too strict and inflexible; and they did not have time to determine whether they could implement the programs.

“We need to do what’s right for our students, and we need sufficient funding and flexibility to do it,” said Dr. V. Sue Cleveland, superintendent of Rio Rancho Public Schools, a plaintiff in the Yazzie lawsuit. “We have had to cut important instructional positions such as reading interventionists and coaches, and we remain unable to provide sufficient professional development, instructional materials, transportation, and other programs and services our kids truly need.”

Since the court’s July 2018 decision, the Yazzie plaintiffs have worked with a broad group of educators, tribal members, community groups, and school districts to craft a platform of action necessary to transform New Mexico’s educational system to address the needs of at-risk children in compliance with the court order. Most of the programs and funding in the platform, supported by plaintiffs, were blocked by legislative leaders and died in committees.

Attorneys on the case include lead counsel Gail Evans, Daniel Yohalem, and Lauren Winkler and Preston Sanchez with the New Mexico Center on Law and Poverty.

The motion can be found here: http://nmpovertylaw.org/motion-yazzie-plaintiffs-motion-for-compliance-2019-10-30/

Exhibits for the motion can be found here: http://nmpovertylaw.org/exhibits-yazzie-motion-for-compliance-2019-10-30/

The final ruling in Yazzie/Martinez v. State of New Mexico can be found here: http://nmpovertylaw.org/wp-content/uploads/2019/02/D-101-CV-2014-00793-Final-Judgment-and-Order-NCJ-1.pdf

New ICWA Court aims to keep Native families together

By Cheryl Fairbanks, Director of Native American Budget and Policy Institute

I am overjoyed to share with you that the Second Judicial District Children’s Court in Bernalillo County launched a new court to address historic challenges related to compliance with the Indian Child Welfare Act, which was enacted in 1978. Our community has always known, and research shows, that Native children do much better when they stay with their families, extended families, and in their community. That’s why Congress passed ICWA—to help keep Native families together.

This desperately needed court, announced appropriately on Indigenous People’s Day, is meant to uphold the rights of children, families, and tribal communities in a culturally responsive way. It will be reviewing foster care, pre-adoptive, and adoptive placement cases for Native children.  

The Native American Budget and Policy Institute was honored to contribute to the creation of the new court, which was a collaboration of New Mexico’s tribal and state entities. Pegasus Legal Services for Children, New Mexico Kids Matter, Tribal-State Judicial Consortium, New Mexico Tribal Indian Children Welfare Consortium, Corinne Wolfe Center for Child and Family Justice, and the New Mexico Children, Youth and Families Department were also members of the planning team.

Strong families and communities are embedded in indigenous culture. The stronger our community, the healthier are our families and our children. But unfortunately, unnecessary separation of Native families has continued. 

History has shown that Native American children are placed in foster care at a much higher rate than non Indians, ignoring the value of family unification and healing. Even now, social workers often remove children from their homes before exhausting all familial and tribal opportunities for placement. Native families are four times more likely to have their children removed and placed in foster care than their white counterparts. And although progress has been made, out-of-home placements with non-Native homes still occur. 

Structural racism and institutional bias has had a deep impact on how New Mexico’s courts and institutions treat Native families and children both currently and historically. Our communities have been living a continual crisis of cultural annihilation through family separation. 

When Congress passed ICWA, it acknowledged the historic and systemic government policies, like boarding schools, foster care, and adoptions, meant to assimilate Native people and terminate our culture. ICWA was created to protect children’s best interest as well as their cultural heritage. Knowing who they are as tribal citizens and connecting to their families and tribal communities is in the best interest for Native children. ICWA reaffirms the inherent rights of tribal nations to protect their children.

It’s time we upheld and honored that law. ICWA protections are still needed.

In a truly historic moment, the new court helps acknowledge the political status of tribal children and the sovereignty of tribes and Pueblos communities by working government to government with a primary focus on the child and family and preserving culture and communal ties.

The court is led by Honorable Marie Ward, Presiding Judge and Honorable David Eisenberg, Chief Judge of Taos Pueblo Tribal Court. Honorable Catherine Begaye, Special Master, will be the presiding officer over the court. Cases will begin to be heard by January 2020.

Peacemaking Dispute Resolution, which stresses reconciliation over adversarial court processes, will be a culturally responsive option in the court.

The new court will become the sixth ICWA Court in the United States, joining Billings, Montana; Denver and Adams Counties in Colorado; Los Angeles, California; and Duluth, Minnesota.

Community advocates celebrate Bernalillo County Sick Leave Ordinance but call for improvements

ALBUQUERQUE—Worker and community organizations support the Bernalillo County ordinance that gives employees paid time off for health, family, and domestic violence related issues, but call for improvements so it helps more working people.   

“We are disappointed that the ordinance was watered down, but we still believe this is a victory for Bernalillo County’s working families. Everyone needs paid time off when they are sick, and this law makes that a reality for more people,” said Zeke Sanchez-Taylor with OLÉ.

In a questionable political maneuver, after Bernalillo County Commissioners passed the ordinance on August 20, business lobbyists began pressuring commissioners to weaken it. 

In response, Commissioners Pyskoty and Quezada introduced an amendment to limit its coverage. It requires businesses with two to ten employees provide only 28 hours of leave. Businesses of this size represent 80% of businesses in the county. The same amendment requires larger businesses provide between 44 and 56 hours of leave annually depending on their size.

In addition, Commissioner O’Malley introduced amendments to have the ordinance go into effect in January instead of July and to remove the 90 day delay for workers to accrue paid time. Commissioner Quezada also introduced an amendment that would increase the penalty to employers who retaliate against their workers.

All amendments passed.

Workers and community advocates called on commissioners to stick with the original ordinance passed through an open democratic process. The original ordinance guaranteed 56 hours of paid time off to workers at businesses with at least two employees in unincorporated areas of the county. Workers would accrue one hour of paid time off for every 32 hours they work.  

“Workers are the cornerstone of our local economy, and we are proud of their contributions,” said Olga Santana with El CENTRO de Igualdad y Derechos. “We urge the Bernalillo County Commissioners to do what is best for working families in the future.”

“After several open, deliberative, and fair hearings, the Bernalillo County Commission passed a compromise paid time off ordinance,” said Eric Griego with New Mexico Working Families Party. “This amended ordinance is much weaker, but we hope to work with current and future commissioners to improve its coverage and enforcement.”

“Providing only 28 hours of earned paid time off for 80% of businesses in the county severely underestimates the real needs of workers experiencing real health or personal challenges like extended illnesses or addressing domestic violence,” said Stephanie Welch with New Mexico Center on Law and Poverty.  “Twenty-eight hours of leave per year to take care of yourself, family or loved ones is simply not enough for most employees. It should be increased in the future.”

Background

The Chair of the Bernalillo County Commission, Maggie Hart-Stebbins, introduced the original earned sick leave ordinance on May 14, 2019. After consulting with business and community groups, she introduced a compromise earned paid time off ordinance on June 25 that incorporated several of their suggestions. 

At the August 20 commission meeting, several additional amendments requested by business groups were made, including phasing in the ordinance over three years, delaying the start date until July 2020, reducing the penalties for non-compliance, and extending the time for county officials to investigate and exhaust remedies before an employee would be eligible to bring a complaint before the district court. 

At that same meeting, Commissioner Pyskoty introduced an amendment that would have severely limited the ordinance’s coverage. The majority of the Commission rejected the Pyskoty amendment. The ordinance passed with a three to two majority, with Commissioners Hart-Stebbins, O’Malley, and Quezada voting in favor. 

Peggy Browning Workers’ Rights Fellowship

Our Peggy Browning Fellow will become a member of our workers’ rights litigation and advocacy team, contributing to projects around enforcement of the minimum wage laws, health and safety of dairy workers and farmworkers, and local paid sick time legislation.

For example, in NMCLP’s continued monitoring of comprehensive reforms we won through litigation against the state, our Peggy Browning Fellow will identify issues that arise in individual workers’ cases and advocate with the state.  For years, the state’s enforcement officers followed illegal rules that allowed employers to get away with wage theft.  Although their rules and policies changed due to our lawsuit, we expect to have to apply continued pressure until the culture at the agency is also sufficiently changed.  The Fellow will perform intakes with workers, issue-spot violations, and document discrepancies between the new policies as writte and as carried out. 

The Fellow will also perform farmworker outreach.  We are exploring a possible legislative campaign to remove some of the exclusions from our state’s minimum wage that keep farmworkers from being included in this basic guarantee. We also continue to work to enforce farmworkers’ right to workers’ compensation. In 2016, NMCLP won a lawsuit challenging the exclusion of farmworkers from the state’s workers’ compensation statute.  But many of our state’s 15,000 farmworkers continue to work for labor contractors who refuse to provide benefits to workers who are injured.  The Fellow will identify agricultural employers who are violating the law and advocate with the Workers’ Compensation Administration to levy penalties on non-compliant employers.

NMCLP will also be supporting efforts by Bernalillo County to enforce a paid time off ordinance passed by the County in August 2019 that goes into effect in July 2020.  NMCLP is a member of a broad coalition of organizations that advocated for the ordinance.  The ordinance requires employers to provide employees paid time off, with the minimum number of hours increasing each year until it eventually reaches 56 hours in 2022.  The County has committed to create a robust enforcement regime. Our Peggy Browning Fellow will develop training materials on workers’ rights under the ordinance.

Strong written advocacy skills are essential. We are open to working with 1Ls or 2Ls, and will give strong preference to law students with roots in New Mexico or who plan to practice in New Mexico upon graduation. While Spanish-language ability is a plus, it is not a requirement of this fellowship.

The total ten-week stipend for this fellowship will be $6,000.

Address cover letter describing your interest in workers’ rights to: Stephanie Welch, Supervising Attorney for Workers’ Rights.