Denver judge determines that there was a ‘reasonable’ belief that a DPS executive session violated the Open Meetings Law.

A judge in the Denver district court concluded that there was “reasonable belief” that the Denver Public Schools board broke Colorado’s open meetings legislation during an executive session in March. The board emerged from the session with a document reversing the district’s policy that threw out school resource officers. The judge decided that there was “reasonable belief” that the board violated the open meetings law.

During the special meeting that the Board of Education conducted on March 23, an executive session was held. A coalition of news outlets, including the Denver Gazette and Colorado Politics, filed a lawsuit against the Board of Education and its custodian of records in order to obtain access to a recording of the session as well as the minutes from the meeting. The conference took place the day after a student at East High School shot and killed two teachers at the school before turning the gun on himself.

In the year 2020, the Board of Education decided to remove school resource officers from the district. This decision came as a result of widespread protests across the country following the passing of George Floyd, as well as concerns regarding the “school-to-prison pipeline,” which is alleged to be fostered by the presence of law enforcement officers in schools.

In March, the board of education decided to abandon that strategy and instead send officers back to certain schools for the remainder of the school year. The previous day, on March 21, a student at East High School is suspected of shooting two school administrators before fleeing the scene and eventually taking his own life hours later. As a prerequisite for being allowed to attend the school, the student Austin Lyle was had to submit to search procedures on a daily basis.

The decision to permanently reinstate school police officers was approved by a vote of 4 to 3 by the Board of Education the previous week. In the order that was issued on June 20, Judge Andrew Luxen stated that the coalition of news organizations had demonstrated reasons for reasonable suspicion that the Board of Education had broken the Open Meetings Law by either establishing a policy or engaging in “substantial discussion” of issues that were not specifically permitted under the statutes. In order for him to evaluate the recording and minutes taken during the meeting, he demanded that Denver Public Schools hand them over to him by Thursday. In an effort to obtain comment on this matter, the Denver Gazette has contacted both a board representative and President Xóchitl Gaytán.

In accordance with the law, a public body is permitted to enter an executive session in order to make an acquisition of real estate, to confer with an attorney for the purpose of obtaining legal advice, and for some subjects that are regarded as confidential, such as issues pertaining to staff or matters concerning individual pupils. In executive session, the law prohibits the discussion of any potential modifications to existing policies.

The order that Luxen issued noted that the school board had returned from its executive session and unanimously voted, without any public debate, to temporarily return police officers as school resource officers to some schools. The school board also voted to direct Superintendent Alex Marrero to come up with a long-term safety plan for the district. Luxen’s order noted that the school board had returned from its executive session.

Marrero stated to the school board hours after the shooting that he desired to have two armed police officers stationed at East High School for the remainder of the school year. This information was included in an email that was obtained by the Denver Gazette. He stated that the district policy against armed cops in schools did not permit it and asked that the topic be discussed in a private session the following day. In addition, the lawsuit asserts that the Board of Education violated the Open Meetings Law by failing to provide sufficient detail in the public notice of the executive session regarding the subject matter that will be discussed. Luxen has stated that he is unable to determine at this time whether or not the notice broke the law.

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